Preview
CAUSE NO. 2017 41522
Vandaven Johnson IN THE DISTRICT COURT OF
Plaintiff,
HARRIS COUNTY, TEXAS
Battleground Oil Specialty Terminal Company,
LLC; Kinder Morgan Battleground Oil, LLC
Kinder Morgan, Inc.; Boone Towing, Inc., and
American River Transportation Company
Defendants. JUDICIAL DISTRICT
DEFENDANT AMERICAN RIVER TRANSP ATION CO.,
OPPOSITION TO BOSTCO S MOTION TO QUASH
TO THE HONORABLE JUDGE OF THE SAID COURT
AMERICAN RIVER TRANSPORTATION CO., LLC (“ARTCO”) issued a Cross
Notice of Deposition Battleground Oil Specialty Terminal Company ( BOSTCO to
designate one or more persons to testify on its behalf regarding the following matters, in addition
to those previously set:
BOSTCO’s or its affiliates earned revenue from tank storage at the facility where
the cargo aboard ART 977 was discharged following the alleged accident to
Vandaven Johnson on or about 4/12/2017.
The documents identified below:
Invoices showing all charges for the revenue earned by BOSTCO or its affiliates,
from 4/12/2017 through 6/15/2017, for the storage, handling, transfer or
transloading of cutter stock cargo that was aboard Barge ART 977B at the time of
the incident on or about 4/12/2017, but which was offloaded on or about
4/13/2017.
See Exhibit A.
The deposition was set for March 27, 2020, at 10 a.m. at the offices of BOSTCO’s
counsel, the same time and place as the deposition of BOSTCO by Eagle Ship Supply.
BOSTCO filed a Motion to Quash ARTCO’s Notice of Deposition arguing that 1) the
notice was untimely in light of the April 6, 2020, trial date; and 2) ARTCO had attended
BOSTCO’s previous deposition noticed by the plaintiff and had had the opportunity to question
BOSTCO’s witnesses at that time. Although the trial date has been continued, discovery
extended, and the date of the deposition continued by consent of the parties, BOSTCO maintains
its objection to ARTCO’s questioning its representative(s) as outlined in its previous notice.
However, BOSTCO does not have a reasonable basis for continuing its objection.
BOSTCO’s timeliness argument is now moot. The April trial has been continued and the
discovery period has been extended. Furthermore, Eagle Ship Supply and the newly added party,
Industrial Products, will both have the opportunity to depose BOSTCO again before the new
trial. ARTCO intends to ask only a handful of additional questions of BOSTCO so BOSTCO
cannot argue that it will be unduly burdened.
While ARTCO was present at BOSTCO’s previous deposition, it did not itself notice that
deposition. In fact, the reason ARTCO is seeking this discovery is because BOSTCO first raised
the argument that Texas state law applied to plaintiff’s claims against it in its Motion for
Summary Judgment, which was filed several months after the deposition. Since its original
deposition, BOSTCO has argued to the Court that Texas state law applies to its claim because it
did not have a “maritime relationship” with plaintiff. According to Purdy v. Belcher Refining
Co., 781 F.Supp. 1559 (S.D.Ala. 1992), the duty owed to plaintiffs using gangways is different
depending on whether they are vessel-based members of the crew of a vessel or land-based
-2-
persons covered under the LHWCA who have a “direct, significant and commercial interest in
the sale and transportation of its products.”
In this case, BOSTCO was not providing a gangway to Plaintiff out of the goodness of its
heart or as a gift. BOSTCO wanted to discharge the product from our barge so they could earn
revenue from storage because it likely was going from the barge to its storage tanks and/or it
may have charged for transloading it to rail or truck. The revenue received by BOSTCO is likely
documented in a half dozen invoices which can be easily produced, but it could require
explanation if the cargo from ART977 was combined with other cutter stock cargo in the same
tank. Also, a tank invoice will likely not refer to specifically to the barge so the need for
testimony is likely.
While this Court has already determined maritime law applies to Plaintiff’s claims
against BOSTCO, this evidence could be relevant at trial and on appeal should BOSTCO
continue to argue that it had no commercial relationship with Plaintiff.
CONCLUSION
For the foregoing reasons, this Court should deny BOSTCO’s Motion to Quash
ARTCO’s Cross-Notice of Deposition.
-3-
Respectfully submitted,
SALLEY, HITE, MERCER & RESOR, LLC
/s/ David M. Flotte
DAVID M. FLOTTE (Attorney-in-Charge)
Texas State Bar No. 00792249
MARCELLE P. MOULEDOUX
Texas State Bar No. 24046492
365 Canal Street, Suite 1710
New Orleans, LA 70130
Tel.: (504) 566-8800
Fax: (504) 566-8828
dflotte@shrmlaw.com
mmouledoux@shrmlaw.com
- and –
RAMEY, CHANDLER, QUINN & ZITO, P.C.
Wade R. Quinn
Texas State Bar No. 16433600
750 Bering Drive, Suite 600
Houston, Texas 77057
Tel.: (713) 266-0074
Fax: (713) 266-1064
wquinn@ramey-chandler.com
ATTORNEYS FOR DEFENDANT,
AMERICAN RIVER TRANSPORTATION
CO., LLC
-4-
CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of March, 2020, a copy of the foregoing was served
upon all counsel of record in compliance with Texas Rules of Civil Procedure.
Jason A. Itkin Frank A. Piccolo
Cory D. Itkin Ken Tribuch
Ryan S. MacLeod John M. Ribartis
Jacob M. Karam CHAFFE MCCALL, L.L.P
Joseph F. McGowin 801 Travis Street, Suite 1910
ARNOLD & ITKIN LLP Houston, Texas 77002
6009 Memorial Drive Counsel for Boone Towing, Inc.
Houston, Texas 77007
Counsel for Vandaven Johnson
Thomas J. Smith Don Swaim
McKenzie L. Jordan D. Todd Parrish
GALLOWAY JOHNSON THOMPKINS BURR & SMITH CUNNINGHAM SWAIM, LLP
1301 McKinney, Suite 1400 7557 Rambler Rd., Ste. 400
Houston, Texas 77010 Dallas, TX 75231
Counsel for Battleground Oil Specialty Terminal Counsel for Werner Co.
Company, LLC and Kinder Morgan Battleground
Oil, LLC
John T. Kovach Steven E. Psarellis
ROSEN & KOVACH, PLLC PSARELLIS & ASSOCIATES, P.L.C.
214 Morton Street 365 Canal Street, Suite 1660
Richmond, Texas 77469 New Orleans, LA 70130
Counsel for Eagle Ship Supply, Inc. Counsel for Eagle Ship Supply, Inc.
/s/ David M. Flotte
DAVID M. FLOTTE
-5-
Preview
CAUSE NO. 2017 41522 Vandaven Johnson IN THE DISTRICT COURT OF Plaintiff, HARRIS COUNTY, TEXAS Battleground Oil Specialty Terminal Company, LLC; Kinder Morgan Battleground Oil, LLC Kinder Morgan, Inc.; Boone Towing, Inc., and American River Transportation Company Defendants. JUDICIAL DISTRICT DEFENDANT AMERICAN RIVER TRANSP ATION CO., OPPOSITION TO BOSTCO S MOTION TO QUASH TO THE HONORABLE JUDGE OF THE SAID COURT AMERICAN RIVER TRANSPORTATION CO., LLC (“ARTCO”) issued a Cross Notice of Deposition Battleground Oil Specialty Terminal Company ( BOSTCO to designate one or more persons to testify on its behalf regarding the following matters, in addition to those previously set: BOSTCO’s or its affiliates earned revenue from tank storage at the facility where the cargo aboard ART 977 was discharged following the alleged accident to Vandaven Johnson on or about 4/12/2017. The documents identified below: Invoices showing all charges for the revenue earned by BOSTCO or its affiliates, from 4/12/2017 through 6/15/2017, for the storage, handling, transfer or transloading of cutter stock cargo that was aboard Barge ART 977B at the time of the incident on or about 4/12/2017, but which was offloaded on or about 4/13/2017. See Exhibit A. The deposition was set for March 27, 2020, at 10 a.m. at the offices of BOSTCO’s counsel, the same time and place as the deposition of BOSTCO by Eagle Ship Supply. BOSTCO filed a Motion to Quash ARTCO’s Notice of Deposition arguing that 1) the notice was untimely in light of the April 6, 2020, trial date; and 2) ARTCO had attended BOSTCO’s previous deposition noticed by the plaintiff and had had the opportunity to question BOSTCO’s witnesses at that time. Although the trial date has been continued, discovery extended, and the date of the deposition continued by consent of the parties, BOSTCO maintains its objection to ARTCO’s questioning its representative(s) as outlined in its previous notice. However, BOSTCO does not have a reasonable basis for continuing its objection. BOSTCO’s timeliness argument is now moot. The April trial has been continued and the discovery period has been extended. Furthermore, Eagle Ship Supply and the newly added party, Industrial Products, will both have the opportunity to depose BOSTCO again before the new trial. ARTCO intends to ask only a handful of additional questions of BOSTCO so BOSTCO cannot argue that it will be unduly burdened. While ARTCO was present at BOSTCO’s previous deposition, it did not itself notice that deposition. In fact, the reason ARTCO is seeking this discovery is because BOSTCO first raised the argument that Texas state law applied to plaintiff’s claims against it in its Motion for Summary Judgment, which was filed several months after the deposition. Since its original deposition, BOSTCO has argued to the Court that Texas state law applies to its claim because it did not have a “maritime relationship” with plaintiff. According to Purdy v. Belcher Refining Co., 781 F.Supp. 1559 (S.D.Ala. 1992), the duty owed to plaintiffs using gangways is different depending on whether they are vessel-based members of the crew of a vessel or land-based -2- persons covered under the LHWCA who have a “direct, significant and commercial interest in the sale and transportation of its products.” In this case, BOSTCO was not providing a gangway to Plaintiff out of the goodness of its heart or as a gift. BOSTCO wanted to discharge the product from our barge so they could earn revenue from storage because it likely was going from the barge to its storage tanks and/or it may have charged for transloading it to rail or truck. The revenue received by BOSTCO is likely documented in a half dozen invoices which can be easily produced, but it could require explanation if the cargo from ART977 was combined with other cutter stock cargo in the same tank. Also, a tank invoice will likely not refer to specifically to the barge so the need for testimony is likely. While this Court has already determined maritime law applies to Plaintiff’s claims against BOSTCO, this evidence could be relevant at trial and on appeal should BOSTCO continue to argue that it had no commercial relationship with Plaintiff. CONCLUSION For the foregoing reasons, this Court should deny BOSTCO’s Motion to Quash ARTCO’s Cross-Notice of Deposition. -3- Respectfully submitted, SALLEY, HITE, MERCER & RESOR, LLC /s/ David M. Flotte DAVID M. FLOTTE (Attorney-in-Charge) Texas State Bar No. 00792249 MARCELLE P. MOULEDOUX Texas State Bar No. 24046492 365 Canal Street, Suite 1710 New Orleans, LA 70130 Tel.: (504) 566-8800 Fax: (504) 566-8828 dflotte@shrmlaw.com mmouledoux@shrmlaw.com - and – RAMEY, CHANDLER, QUINN & ZITO, P.C. Wade R. Quinn Texas State Bar No. 16433600 750 Bering Drive, Suite 600 Houston, Texas 77057 Tel.: (713) 266-0074 Fax: (713) 266-1064 wquinn@ramey-chandler.com ATTORNEYS FOR DEFENDANT, AMERICAN RIVER TRANSPORTATION CO., LLC -4- CERTIFICATE OF SERVICE I hereby certify that on the 23rd day of March, 2020, a copy of the foregoing was served upon all counsel of record in compliance with Texas Rules of Civil Procedure. Jason A. Itkin Frank A. Piccolo Cory D. Itkin Ken Tribuch Ryan S. MacLeod John M. Ribartis Jacob M. Karam CHAFFE MCCALL, L.L.P Joseph F. McGowin 801 Travis Street, Suite 1910 ARNOLD & ITKIN LLP Houston, Texas 77002 6009 Memorial Drive Counsel for Boone Towing, Inc. Houston, Texas 77007 Counsel for Vandaven Johnson Thomas J. Smith Don Swaim McKenzie L. Jordan D. Todd Parrish GALLOWAY JOHNSON THOMPKINS BURR & SMITH CUNNINGHAM SWAIM, LLP 1301 McKinney, Suite 1400 7557 Rambler Rd., Ste. 400 Houston, Texas 77010 Dallas, TX 75231 Counsel for Battleground Oil Specialty Terminal Counsel for Werner Co. Company, LLC and Kinder Morgan Battleground Oil, LLC John T. Kovach Steven E. Psarellis ROSEN & KOVACH, PLLC PSARELLIS & ASSOCIATES, P.L.C. 214 Morton Street 365 Canal Street, Suite 1660 Richmond, Texas 77469 New Orleans, LA 70130 Counsel for Eagle Ship Supply, Inc. Counsel for Eagle Ship Supply, Inc. /s/ David M. Flotte DAVID M. FLOTTE -5-