Preview
CAUSE NO. 2018 28343
DALE PAPIK, IN THE DISTRICT COURT
§
Plaintiff, §
§
vs. §
§ JUDICIAL DISTRICT
ZMZM LLC, NOWSHEER, LLC D/B/A §
INTEGRITY 1 COMPLETE AUTO CARE, §
DOSTYAR HABIBZAI AND HASAN AL §
DAYEM, §
§
Defendants. § HARRIS COUNTY, TEXAS
DEFENDANTS’ MOTION FOR RECONSIDERATION OF THE COURT’S ORDER
DENYING DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE
THIRD PARTIES
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants HABIBZAI DOSTYAR HASAN AL DAYEM
hereinafter referred to as “Defendant in the above entitled and numbered cause of
action and file this their Motion for Reconsideration of the Court’s Order Denying
Defendants’ Motion for Leave to Designate Responsible Third Parties in support
thereof would respectfully show the Court the following:
SUMMARY OF ARGUMENTS
Defendants respectfully request that this Court reconsider its denial of Defendants’
Motion for Leave to Designate TBC Corporation (hereafter “TBC”) and Midas Realty
Corporation (hereafter “Midas as Responsible Third Parties (“RTP”) for the following
reasons:
The Defendants’ RTP Motion was filed more than sixty (60) days before the
then current trial setting;
Unlike In re Dawson both parties to be named as RTPs were timely disclosed
in response to Plaintiff’s discovery requests one was even identified in
Plaintiff’s Original Petition
Plaintiff has never challenge the sufficiency of the factual allegation
concerning the RTPs’ alleged responsibility; and,
Plaintiff’s objection was not timely filed within the fifteen (15) day window.
EXHIBITS
Exhibit is Plaintiff’s Original Petition
Exhibit is the OSHA Report and citation issued to TBC Corporation
Exhibit C is Defendants’ Motion to Designate Responsible Third Parties, filed on
10/23/2018 and most recently set for submission hearing on 4/6/2020 at 8:00
Exhibit is Plaintiff’s Objection to Defendants’ Motion to Designate Responsible
Third Parties, filed on 4/6/2020 at 1:12
ARGUMENTS AND AUTHORITIES
Tex. Civ. Prac. & Rem. Code § 33.004 provides in pertinent part, that “[a] defendant
may seek to designate a person as a responsible third party by filing a motion for leave
to designate that person as responsible third party. Tex. Civ. Prac. & Rem. Code §
33.004(a). The motion must be filed on or before the 60th day before the trial date unless
the court finds good cause to allow the motion to be filed at a later date. The trial court
“shall grant leave to designate ... a responsible third party” unless another party objects
within fifteen days after service. Id. § 33.004(f). Even with a timely filed objection, the
court must allow the designation unless the objecting party establishes (1) the defendant
Pleadings DEF Motion for Reconsideration
did not plead sufficient facts concerning the person’s alleged responsibility and (2) the
pleading defect persists after an opportunity to replead. Id. § 33.004(g) When the
defendant's motion is timely but filed after the applicable limitations period on the cause
of action has expired with respect to the responsible third party the defendant may not
designate the person as a responsible third party ifthe defendant has failed to comply
with its obligations, if any, to timely disclose that the person may be designated as a
responsible third party under the Texas Rules of Civil Procedure In re Mobile Mini, Inc.
1200, 2020 WL 1224169, at *2 (Tex. Mar. 13, 2020) (internal quotations omitted)
A responsible third party is “any person who is alleged to have caused or
contributed to causing in anyway the harm which recovery of damages is sought, whether
by negligent act or omission, by any defective or unreasonably dangerous product, by
other conduct or activity that violates an applicable legal standard, or by any combination
of these. Tex. Civ. Prac. & Rem. Code § 33.011.
The Texas Supreme Court has found that trial court abuses its discretion when
it allows the “case to proceed to trial despite erroneous denial of a responsible third party
designation” as this would “skew the proceedings, potentially affect the outcome of the
litigation, and compromise the presentation” of the defendant’s defense. In re Coppola
535 S.W.3d 506, 509 (Tex. 2017) Trial courts have no discretion to deny a timely filed
motion to designate absent a pleading defect and an opportunity to cure.” 507
A. Standard of Review
“A trial court clearly abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.” Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Unless a decision is arbitrary and
Pleadings DEF Motion for Reconsideration
unreasonable, a Court of Appeals cannot disturb a trial court’s decision, even if the Court
of Appeals would have decided the issue differently. . at 40. However, a trial court has
no discretion in determining what the law is or applying the law to the facts. . Thus, the
failure by the trialcourt to analyze or apply the law correctly will constitute an abuse of
discretion and may result in appellate reversal by extraordinary writ.
B. Applicable Law
The Defendants’ RTP Motion was filed more than sixty (60) days before the
then current trial setting.
The motion must be filed on or before the 60th day before the trial date unless
the court finds good cause to allow the motion to be filed at a later date.” Tex. Civ. Prac.
& Rem. Code Ann. § 33.004. (emphasis added). Defendants filed their Motion for RTP
designation on October 23, 2018. See Exhibit C. At that time, the case was set for trial
on the two week docket beginning September 2, 2019. Defendants’ motion was filed 314
days before the first trial setting and was therefore timely.
Both parties to be named as RTPs were timely disclosed in response to
Plaintiff’s discovery requests and one was even identified in Plaintiff’s
Original Petition
Plaintiff cites to In r Dawson in his objection to persuade this court that it is not
allowed to grant Defendants’ RTP designation, but the facts in Dawson could not be
further from those presented in this case and therefore the outcome should be dissimilar
In Dawson, Plaintiff (a customer of Defendant’s restaurant) was injured when a wall
mounted television fell and struck her. In re Dawson, 550 S.W.3d 625, 62 (Tex. 2018).
The person who installed the television was an independent contractor hired by the
Defendant. . Defendant chose to wait until two weeks after the statute of limitations had
run on any possible claim by Plaintiff against the contractor for Defendant to then file a
Pleadings DEF Motion for Reconsideration
Motion to Designate the contractor as a RTP. The Plaintiff was then unable to counter
Defendant’s RTP designation and bring the contractor into the lawsuit as a defendant.
at 628. The key distinction is but for Defendant’s gamesmanship and hiding of information
concerning possible defendants, Plaintiff would have been able to bring another
Defendant into her lawsuit. at 629. The court found that Defendant only disclosed that
a person had installed the television, not that “[the contractor] was an independent
contractor and not [Defendant’s] employee or agent”.
Plaintiff’s Original Petition (filed on April 24, 2018) states on the third page that,
“Plaintiff, on or about September 30, 2016, was employed by TBC Corporation, and as
part of his job for TBC Corporation.” See p.3 of Exhibit A See the below excerpt from
Plaintiff’s live pleading:
Plaintiff himself clearly identified TBC his employer. Plaintiff cannot later claim to be
surprised that his own employer could be designated as an RTP. This type of estoppel
has been applied before in the case of Sanchez v. Castillo, where the court there found
that:
Pleadings DEF Motion for Reconsideration
In his original petition, [Plaintiff] alleged [Plaintiff’s employer] hired him and
owed him a duty to provide safe working conditions, the breach of which
resulted in his injuries. He then amended his petition to add [Plaintiff’s
employer] as a defendant and alleged [Plaintiff’s employer] was negligent.
Based on [Plaintiff’s] allegations, “it defies all credulity to suggest that
[Plaintiff] did not know that [Plaintiff’s employer] was a potential
responsible third party
Sanchez v. Castillo, 05 01033 CV, 2020 WL 1042519, at *5 (Tex. App.Dallas Mar.
4, 2020, no pet. h.) (internal citation omitted) (emphasis added)
Rule 194.2 obligates a defendant, upon a request from the plaintiff, to disclose,
among other things, the name, address, and telephone number of any person who may
be designated as a responsible third party. Tex. R. Civ. P. 194.2(l). The response must
omplete based on all information reasonably available at the time Tex. R. Civ.
193.1. (emphasis added). A party has a responsibility to amend or supplement written
discovery responses unless the additional or corrective information has been made
known to the other parties in writing, on the record at a deposition, or through other
discovery responses Sanchez v. Castillo, at *5 (internal quotations omitted) (emphasis
added)
Defendants inform Plaintiff that TBC Midas could be involved in this case
August 9, 2018 before the statute of limitations that would have run on
September 30, 2018 when Defendants served their responses to Requests for
Disclosure. nlike Dawson, Defendants did not merely identify TBC Midas and fail
to state their relationship to any of the current parties to the litigation Defendants clearly
noted that Midas owned the premises and TBC employed the Plaintiff Defendants
disclosed this information as indicated in the excerpt from Defendants’ response (which
Plaintiff used as their own exhibit B, in Plaintiff’s Objection to RTP Designation) below:
Pleadings DEF Motion for Reconsideration
The timeliness limitation on a defendant's ability to designate responsible third
parties is a procedural safeguard designed to prevent a defendant from belatedly pointing
its finger at a time barred responsible third party against whom the plaintiff has no
possibility of recovery In re Bustamante, 510 S.W.3d 732, 736 (Tex. App.San
Antonio 2016, no pet.) (emphasis added). Here, Plaintiff was not ti barred from
bringing TBC and its subsidiary, Midas, into this case Rather, the Workers
Compensation exclusive remedy barred Plaintiff from bringing TBC and Midas to the
case because Plaintiff was employed by TBC Plaintiff was barred from bringing claim
against TBC and Midas, as worker’s compensation is the “exclusive remedy of an
employee covered by worker’s compensation insurance… [for] a work related injury
sustained by the employee.” Texas Labor Code § 408.001(a). See the excerpt from
Plaintiff’s own medical records indicating his employment with TBC and that TBC was a
Workers’ Compensation Insurance subscriber:
Finally, OSHA investigated shortly after the accident made the basis of this lawsuit
occurred ased on its investigatio TBC was cited and fined for violations. See Exhibit
. This information solidifies the point that TBC was Plaintiff’s employer and TBC and
Pleadings DEF Motion for Reconsideration
Midas should have been brought into the lawsuit as defendants but for being barred as
a Workman’s Compensation subscriber See excerpt from Exhibit B highlighting TBC as
Plaintiff’s employer:
Plaintiff has never challenge the sufficiency of the factual allegation
concerning the RTPs’ alleged responsibility.
In no portion of Plaintiff’s Objection to Defendants’ Motion to Designate RTPs does
Plaintiff challenge the sufficiency of the factual allegation concerning the RTPs’ alleged
responsibility. Therefore, Plaintiff has waived any objection he may now bring against
Defendants’ Motion as it would be untimely.
Plaintiff’s objection was not timely filed within the fifteen (15) day window.
As per the Texas Civil Practice and Remedies Code, the deadline to file an
objection to a Motion to Designate RTP is, “the 15 day after the date the motion is
served.” Tex. Civ. Prac. & Rem. Code §33.004(f) (emphasis added). Plaintiff’s objection
erroneously states the deadline is, “on or before the 15th day after the date Defendant’s
Motion was set to be heard by submission”. Defendants’ filed their Motion for Leave to
Designate RTPs on October 23, 2018, as Plaintiff correctly points out in his Objection
Motion. However, Plaintiff chose to not file his objection on the 15 day after Defendants’
motion was served, but rather April 6, 2020 at 1:12 , almost a year and a half
after the motion was served See Exhibit D. This is not only late (by more than
Pleadings DEF Motion for Reconsideration
days) but Plaintiff also filed his Objection after the time the RTP Designation was set on
the Court’s submission docke , which was April 6, 2020 at 8:0 See excerpt from
Defendants’ most recent setting of this Motion on the submission docket (which was field
March 24, 2020
Even if this court were to entertain the notion that Defendants reset the deadline for
Plaintiff to file an objection when Defendants rescheduled the RTP Motion for submission
on April 6, 2020, Plaintiff still did not file his objection before the 8:00
submission hearing on April 6, 2020
CONCLUSION
“Unlike Dawson, the circumstances presented here do not invoke the
gamesmanship concerns section 33.004(d) operates to prevent.” In re Mobile Mini, Inc.
1200, 2020 WL 1224169, at *3 (Tex. Mar. 13, 2020). In this case, Defendants did not
lay in wait for Plaintiff to step over the statute of limitation so that they could name some
previously unknown entities RTP Plaintiff could not bring either TBC or Midas into
this lawsuit as defendant due to the Work ’s Compensation exclusive remedy bar.
Therefore, there was never a time when either could have been disclosed and
subsequently brought into this lawsuit as a defendant. Further, Plaintiff wait until after
Pleadings DEF Motion for Reconsideration
the deadline to file any objection to Defendant’s Motion to Designate RTPs. Finally,
Plaintiff never challenged the sufficiency of the factual allegations concerning the RTPs’
alleged responsibility and therefore has waived any such challenge.
PRAYER
WHEREFORE, Defendant HABIBZAI DOSTYAR and HASAN AL DAYEM pray
that the Court vacate its order denying Defendants’ Motion for Leave to Designate
Responsible Third Parties enter an order overruling Plaintiff’s objection to Defendants’
Motion for Leave to Designate Responsible Third Parties, and grant Defendants’ Motion
for Leave to Designate TBC Corporation and Midas Realty Corporation as Responsible
Third Parties for such other and further relief, at law or in equity, as to which they
may show themselves entitled.
[signature block on next page]
Pleadings DEF Motion for Reconsideration
Respectfully submitted,
HEARD & MEDACK, P.C.
By:/s/ David W. Medack
David W. Medack
State Bar No.13892950
Zachary Z. Robichaux
State Bar No. 24103302
14100 Southwest Freeway, Suite 300
Sugar Land, Texas 77478
dmedack@heardmedackpc.com
zrobichaux@heardmedackpc.com
(713) 772 6400 Telephone
(713) 772 6495 Facsimile
ATTORNEYS FOR DEFENDANTS
HASAN AL DAYEM AND
HABIBZAI DOSTYAR
Pleadings DEF Motion for Reconsideration
CERTIFICATE OF SERVICE
Pursuant to Rule 21a of the Texas Rules of Civil Procedure, I hereby certify that a
true and correct copy of the foregoing has been served upon counsel of record, by
facsimile, hand delivery and/or certified mail, return receipt requested, on this the 1st
day of April 2020:
R. Scott Westlund
Joshua S. Hatley
Ketterman Rowland & Westlund
16500 San Pedro, Suite 302
San Antonio, Texas 78232
(210) 490 7402 Telephone
(210) 490 8392 Facsimile
Email: scott@krwlawyers.com
Email: joshua@krwlawyers.com
ATTORNEYS FOR PLAINTIFF
/s/ David W. Medack
David W. Medack
Pleadings DEF Motion for Reconsideration
Preview
CAUSE NO. 2018 28343 DALE PAPIK, IN THE DISTRICT COURT § Plaintiff, § § vs. § § JUDICIAL DISTRICT ZMZM LLC, NOWSHEER, LLC D/B/A § INTEGRITY 1 COMPLETE AUTO CARE, § DOSTYAR HABIBZAI AND HASAN AL § DAYEM, § § Defendants. § HARRIS COUNTY, TEXAS DEFENDANTS’ MOTION FOR RECONSIDERATION OF THE COURT’S ORDER DENYING DEFENDANTS’ MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTIES TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Defendants HABIBZAI DOSTYAR HASAN AL DAYEM hereinafter referred to as “Defendant in the above entitled and numbered cause of action and file this their Motion for Reconsideration of the Court’s Order Denying Defendants’ Motion for Leave to Designate Responsible Third Parties in support thereof would respectfully show the Court the following: SUMMARY OF ARGUMENTS Defendants respectfully request that this Court reconsider its denial of Defendants’ Motion for Leave to Designate TBC Corporation (hereafter “TBC”) and Midas Realty Corporation (hereafter “Midas as Responsible Third Parties (“RTP”) for the following reasons: The Defendants’ RTP Motion was filed more than sixty (60) days before the then current trial setting; Unlike In re Dawson both parties to be named as RTPs were timely disclosed in response to Plaintiff’s discovery requests one was even identified in Plaintiff’s Original Petition Plaintiff has never challenge the sufficiency of the factual allegation concerning the RTPs’ alleged responsibility; and, Plaintiff’s objection was not timely filed within the fifteen (15) day window. EXHIBITS Exhibit is Plaintiff’s Original Petition Exhibit is the OSHA Report and citation issued to TBC Corporation Exhibit C is Defendants’ Motion to Designate Responsible Third Parties, filed on 10/23/2018 and most recently set for submission hearing on 4/6/2020 at 8:00 Exhibit is Plaintiff’s Objection to Defendants’ Motion to Designate Responsible Third Parties, filed on 4/6/2020 at 1:12 ARGUMENTS AND AUTHORITIES Tex. Civ. Prac. & Rem. Code § 33.004 provides in pertinent part, that “[a] defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as responsible third party. Tex. Civ. Prac. & Rem. Code § 33.004(a). The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date. The trial court “shall grant leave to designate ... a responsible third party” unless another party objects within fifteen days after service. Id. § 33.004(f). Even with a timely filed objection, the court must allow the designation unless the objecting party establishes (1) the defendant Pleadings DEF Motion for Reconsideration did not plead sufficient facts concerning the person’s alleged responsibility and (2) the pleading defect persists after an opportunity to replead. Id. § 33.004(g) When the defendant's motion is timely but filed after the applicable limitations period on the cause of action has expired with respect to the responsible third party the defendant may not designate the person as a responsible third party ifthe defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure In re Mobile Mini, Inc. 1200, 2020 WL 1224169, at *2 (Tex. Mar. 13, 2020) (internal quotations omitted) A responsible third party is “any person who is alleged to have caused or contributed to causing in anyway the harm which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these. Tex. Civ. Prac. & Rem. Code § 33.011. The Texas Supreme Court has found that trial court abuses its discretion when it allows the “case to proceed to trial despite erroneous denial of a responsible third party designation” as this would “skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation” of the defendant’s defense. In re Coppola 535 S.W.3d 506, 509 (Tex. 2017) Trial courts have no discretion to deny a timely filed motion to designate absent a pleading defect and an opportunity to cure.” 507 A. Standard of Review “A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Unless a decision is arbitrary and Pleadings DEF Motion for Reconsideration unreasonable, a Court of Appeals cannot disturb a trial court’s decision, even if the Court of Appeals would have decided the issue differently. . at 40. However, a trial court has no discretion in determining what the law is or applying the law to the facts. . Thus, the failure by the trialcourt to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. B. Applicable Law The Defendants’ RTP Motion was filed more than sixty (60) days before the then current trial setting. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.” Tex. Civ. Prac. & Rem. Code Ann. § 33.004. (emphasis added). Defendants filed their Motion for RTP designation on October 23, 2018. See Exhibit C. At that time, the case was set for trial on the two week docket beginning September 2, 2019. Defendants’ motion was filed 314 days before the first trial setting and was therefore timely. Both parties to be named as RTPs were timely disclosed in response to Plaintiff’s discovery requests and one was even identified in Plaintiff’s Original Petition Plaintiff cites to In r Dawson in his objection to persuade this court that it is not allowed to grant Defendants’ RTP designation, but the facts in Dawson could not be further from those presented in this case and therefore the outcome should be dissimilar In Dawson, Plaintiff (a customer of Defendant’s restaurant) was injured when a wall mounted television fell and struck her. In re Dawson, 550 S.W.3d 625, 62 (Tex. 2018). The person who installed the television was an independent contractor hired by the Defendant. . Defendant chose to wait until two weeks after the statute of limitations had run on any possible claim by Plaintiff against the contractor for Defendant to then file a Pleadings DEF Motion for Reconsideration Motion to Designate the contractor as a RTP. The Plaintiff was then unable to counter Defendant’s RTP designation and bring the contractor into the lawsuit as a defendant. at 628. The key distinction is but for Defendant’s gamesmanship and hiding of information concerning possible defendants, Plaintiff would have been able to bring another Defendant into her lawsuit. at 629. The court found that Defendant only disclosed that a person had installed the television, not that “[the contractor] was an independent contractor and not [Defendant’s] employee or agent”. Plaintiff’s Original Petition (filed on April 24, 2018) states on the third page that, “Plaintiff, on or about September 30, 2016, was employed by TBC Corporation, and as part of his job for TBC Corporation.” See p.3 of Exhibit A See the below excerpt from Plaintiff’s live pleading: Plaintiff himself clearly identified TBC his employer. Plaintiff cannot later claim to be surprised that his own employer could be designated as an RTP. This type of estoppel has been applied before in the case of Sanchez v. Castillo, where the court there found that: Pleadings DEF Motion for Reconsideration In his original petition, [Plaintiff] alleged [Plaintiff’s employer] hired him and owed him a duty to provide safe working conditions, the breach of which resulted in his injuries. He then amended his petition to add [Plaintiff’s employer] as a defendant and alleged [Plaintiff’s employer] was negligent. Based on [Plaintiff’s] allegations, “it defies all credulity to suggest that [Plaintiff] did not know that [Plaintiff’s employer] was a potential responsible third party Sanchez v. Castillo, 05 01033 CV, 2020 WL 1042519, at *5 (Tex. App.Dallas Mar. 4, 2020, no pet. h.) (internal citation omitted) (emphasis added) Rule 194.2 obligates a defendant, upon a request from the plaintiff, to disclose, among other things, the name, address, and telephone number of any person who may be designated as a responsible third party. Tex. R. Civ. P. 194.2(l). The response must omplete based on all information reasonably available at the time Tex. R. Civ. 193.1. (emphasis added). A party has a responsibility to amend or supplement written discovery responses unless the additional or corrective information has been made known to the other parties in writing, on the record at a deposition, or through other discovery responses Sanchez v. Castillo, at *5 (internal quotations omitted) (emphasis added) Defendants inform Plaintiff that TBC Midas could be involved in this case August 9, 2018 before the statute of limitations that would have run on September 30, 2018 when Defendants served their responses to Requests for Disclosure. nlike Dawson, Defendants did not merely identify TBC Midas and fail to state their relationship to any of the current parties to the litigation Defendants clearly noted that Midas owned the premises and TBC employed the Plaintiff Defendants disclosed this information as indicated in the excerpt from Defendants’ response (which Plaintiff used as their own exhibit B, in Plaintiff’s Objection to RTP Designation) below: Pleadings DEF Motion for Reconsideration The timeliness limitation on a defendant's ability to designate responsible third parties is a procedural safeguard designed to prevent a defendant from belatedly pointing its finger at a time barred responsible third party against whom the plaintiff has no possibility of recovery In re Bustamante, 510 S.W.3d 732, 736 (Tex. App.San Antonio 2016, no pet.) (emphasis added). Here, Plaintiff was not ti barred from bringing TBC and its subsidiary, Midas, into this case Rather, the Workers Compensation exclusive remedy barred Plaintiff from bringing TBC and Midas to the case because Plaintiff was employed by TBC Plaintiff was barred from bringing claim against TBC and Midas, as worker’s compensation is the “exclusive remedy of an employee covered by worker’s compensation insurance… [for] a work related injury sustained by the employee.” Texas Labor Code § 408.001(a). See the excerpt from Plaintiff’s own medical records indicating his employment with TBC and that TBC was a Workers’ Compensation Insurance subscriber: Finally, OSHA investigated shortly after the accident made the basis of this lawsuit occurred ased on its investigatio TBC was cited and fined for violations. See Exhibit . This information solidifies the point that TBC was Plaintiff’s employer and TBC and Pleadings DEF Motion for Reconsideration Midas should have been brought into the lawsuit as defendants but for being barred as a Workman’s Compensation subscriber See excerpt from Exhibit B highlighting TBC as Plaintiff’s employer: Plaintiff has never challenge the sufficiency of the factual allegation concerning the RTPs’ alleged responsibility. In no portion of Plaintiff’s Objection to Defendants’ Motion to Designate RTPs does Plaintiff challenge the sufficiency of the factual allegation concerning the RTPs’ alleged responsibility. Therefore, Plaintiff has waived any objection he may now bring against Defendants’ Motion as it would be untimely. Plaintiff’s objection was not timely filed within the fifteen (15) day window. As per the Texas Civil Practice and Remedies Code, the deadline to file an objection to a Motion to Designate RTP is, “the 15 day after the date the motion is served.” Tex. Civ. Prac. & Rem. Code §33.004(f) (emphasis added). Plaintiff’s objection erroneously states the deadline is, “on or before the 15th day after the date Defendant’s Motion was set to be heard by submission”. Defendants’ filed their Motion for Leave to Designate RTPs on October 23, 2018, as Plaintiff correctly points out in his Objection Motion. However, Plaintiff chose to not file his objection on the 15 day after Defendants’ motion was served, but rather April 6, 2020 at 1:12 , almost a year and a half after the motion was served See Exhibit D. This is not only late (by more than Pleadings DEF Motion for Reconsideration days) but Plaintiff also filed his Objection after the time the RTP Designation was set on the Court’s submission docke , which was April 6, 2020 at 8:0 See excerpt from Defendants’ most recent setting of this Motion on the submission docket (which was field March 24, 2020 Even if this court were to entertain the notion that Defendants reset the deadline for Plaintiff to file an objection when Defendants rescheduled the RTP Motion for submission on April 6, 2020, Plaintiff still did not file his objection before the 8:00 submission hearing on April 6, 2020 CONCLUSION “Unlike Dawson, the circumstances presented here do not invoke the gamesmanship concerns section 33.004(d) operates to prevent.” In re Mobile Mini, Inc. 1200, 2020 WL 1224169, at *3 (Tex. Mar. 13, 2020). In this case, Defendants did not lay in wait for Plaintiff to step over the statute of limitation so that they could name some previously unknown entities RTP Plaintiff could not bring either TBC or Midas into this lawsuit as defendant due to the Work ’s Compensation exclusive remedy bar. Therefore, there was never a time when either could have been disclosed and subsequently brought into this lawsuit as a defendant. Further, Plaintiff wait until after Pleadings DEF Motion for Reconsideration the deadline to file any objection to Defendant’s Motion to Designate RTPs. Finally, Plaintiff never challenged the sufficiency of the factual allegations concerning the RTPs’ alleged responsibility and therefore has waived any such challenge. PRAYER WHEREFORE, Defendant HABIBZAI DOSTYAR and HASAN AL DAYEM pray that the Court vacate its order denying Defendants’ Motion for Leave to Designate Responsible Third Parties enter an order overruling Plaintiff’s objection to Defendants’ Motion for Leave to Designate Responsible Third Parties, and grant Defendants’ Motion for Leave to Designate TBC Corporation and Midas Realty Corporation as Responsible Third Parties for such other and further relief, at law or in equity, as to which they may show themselves entitled. [signature block on next page] Pleadings DEF Motion for Reconsideration Respectfully submitted, HEARD & MEDACK, P.C. By:/s/ David W. Medack David W. Medack State Bar No.13892950 Zachary Z. Robichaux State Bar No. 24103302 14100 Southwest Freeway, Suite 300 Sugar Land, Texas 77478 dmedack@heardmedackpc.com zrobichaux@heardmedackpc.com (713) 772 6400 Telephone (713) 772 6495 Facsimile ATTORNEYS FOR DEFENDANTS HASAN AL DAYEM AND HABIBZAI DOSTYAR Pleadings DEF Motion for Reconsideration CERTIFICATE OF SERVICE Pursuant to Rule 21a of the Texas Rules of Civil Procedure, I hereby certify that a true and correct copy of the foregoing has been served upon counsel of record, by facsimile, hand delivery and/or certified mail, return receipt requested, on this the 1st day of April 2020: R. Scott Westlund Joshua S. Hatley Ketterman Rowland & Westlund 16500 San Pedro, Suite 302 San Antonio, Texas 78232 (210) 490 7402 Telephone (210) 490 8392 Facsimile Email: scott@krwlawyers.com Email: joshua@krwlawyers.com ATTORNEYS FOR PLAINTIFF /s/ David W. Medack David W. Medack Pleadings DEF Motion for Reconsideration