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CAUSE NO. 2019-30674
JERMAINE WASHINGTON IN THE DISTRICT COURT
VS. HARRIS COUNTY, TEXAS
WASTE MANAGEMENT, IN 281 JUDICIAL DISTRICT
DEFENDANT MOTION TO QUASH AND/OR FOR PROTECTION
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW, Defendant, WASTE MANAGEMENT OF TEXAS, INC., improperly
named as WASTE MANAGEMENT, INC. Waste Management and files this Motion to Quash
and/or For Protection.
INTRODUCTION
Plaintiff alleg that he sustained non-fatal injuries on April 22, 2018. Plaintiff concedes
that he was assigned to work for Waste Management by Taylor Smith Consulting, LLC, a
personnel agency Taylor Smith ), pursuant to their Master Agreement.
Prior to his assignment to Waste Management, Plaintiff signed a Release and Waiver of
Liability, Assumption of Risk and Indemnity Agreement. During his assignment, Plaintiff was
covered by and received benefits under workers compensation policy issued to Taylor Smith,
ich Waste Management was identified as an “alternate employer
Against the backdrop of these uncontested facts, Plaintiff has refused all requests for a
voluntary dismissal of this legally unsupportable claim, choosing instead to issue an oppressive,
burdensome, unnecessary deposition notice. This Motion is filed in response.
Plaintiff s Second Amended Petition at Paragraph 5.
Plaintiff s Second Amended Petition at Paragraph 7 (note however, that Plaintiff s contentions in this regard conflict
with a recent opinion issued by the Texas Supreme Court).
II. REQUESTED RELIEF, ARGUMENT AND AUTHORITY
On or about June 2, 2021, Plaintiff issued his Notice of Intent to Take Oral Deposition of
the Corporate Representatives of Defendant, Waste Management of Texas, Inc., a true and correct
copy of which is attached hereto as Exhibit 1 (the “Notice”). Because Plaintiff’s lawsuit is barred
as a matter of law, the Notice is oppressive, burdensome and beyond the scope of what is necessary
and proper for this case. Accordingly, the Notice should be quashed and an order of protection
issued with respect to both the requested deposition and the records request attached to the Notice
as its Exhibit A.
A. As a matter of law, the deposition is automatically quashed.
As noted, the Notice was received on June 2, 2021. Accordingly, because this Motion is
filed within three (3) business days of issuance, this Motion stays the deposition pending further
determination by the Court. Tex. R. Civ. P. 199.4.
B. As a matter of law, Plaintiff may not pursue his claims against Waste Management
rendering the Notice oppressive, burdensome and beyond the scope of what is
necessary and proper.
1. This Motion is proper because the exclusive remedy defense bars Plaintiff’s claims.
Waste Management is immune from liability as the Texas Labor Code provides it with a
complete defense to Plaintiff’s claims. The immunity conferred under the Texas Labor Code is
often referred to as the “exclusive remedy defense.” Pursuant to the Texas Labor Code:
Section 406.034(a)
…an employee of an employer waives the employee’s right of action at common law
or under a statute of this state to recover damages for personal injuries or death
sustained in the course and scope of the employment.
Section 408.001(a)
Recovery of workers’ compensation benefits is the exclusive remedy of an employee
covered by workers’ compensation insurance coverage or a legal beneficiary against
Waste Management – Motion to Quash and/or for Protection Page 2 of 7
the employer or an agent or employee of the employer for the death or a work-related
injury sustained by the employee.
The defense can be applied to/invoked by Waste Management through its own workers’
compensation policy, or Taylor Smith’s. As to Waste Management’s rights through Taylor
Smith’s policy, Chapter 93 of the Texas Labor Code states:
Section 93.004(b)
For workers’ compensation purposes, ifa temporary employment service [Taylor
Smith] elects to obtain workers’ compensation insurance, the client of the temporary
employment service [Waste Management] and the temporary employment service are
subject to Sections 406.034(a) and 408.001.
The Texas Supreme Court recently considered this very question, literally issuing an
opinion supporting Waste Management’s entitled to the defense under the very same Master
Agreement referenced by Plaintiff in this case. See Exhibit 2 - Waste Management of Texas, Inc.
v. Stevenson, --- S.W.3d ---- (2021) (Opinion Delivered April 30, 2021).
2. The request for these depositions is premature, and likely to result in all parties
incurring unnecessary costs and expenses.
On prior occasions both before and after the Supreme Court’s decision in Stevenson, Taylor
Smith requested that Plaintiff voluntarily dismiss his claims based on one version of the exclusive
remedy defense or the other. While this matter is current set on a two-week docket that begins
August 16, 2021, it will have to be removed from this docket and reset.
With this in mind, there is absolutely no urgency to the requested deposition. The facts
and law, as they are known to the parties right now will support a motion for summary judgment
that fully and finally resolves all claims and causes of action asserted against Waste Management
(whether via the exclusive remedy defense, or the Release Agreement).
Taking the requested deposition prior to the Court’s consideration of a motion for summary
judgment subjects all parties to an unnecessary commitment of time and expense. Moreover,
Waste Management – Motion to Quash and/or for Protection Page 3 of 7
quashing the Notice/granting an order of protection will not prejudice Plaintiff. If the summary
judgment is unsuccessful, there will be ample time to proceed with fact-based discovery specific
to Plaintiff’s negligence claims. Similarly, upon receipt of the contemplated motion for summary
judgment, Plaintiff will still have the ability to propose an agreement, seek a continuance, or take
other action if it can be shown that discovery is needed in order to respond.
Considering the facts and circumstances above, the most efficient, cost-effective, and
straight forward means to final resolution of this matter is through summary judgment. Again, all
issues to be addressed in relation of a motion for summary judgment based on of the exclusive
remedy defense or the Release Agreement can be responded to and argued with information
already available to the parties.
Taking the depositions prior to consideration of such a motion for summary judgment
subjects all parties to an unnecessary commitment of time and expense. Moreover to this point in
time, Plaintiff has put forth no good faith argument that would suggest the defense does not or
should not apply.
As a result, allowing the deposition to proceed would be manifestly unjust. In addition to
the unnecessary commitment of time and expense, it is simply not proportional to the needs of the
case. An examination of the topics identified in the Notice confirms that relative to the exclusive
remedy defense, there is no benefit to be gained from the deposition.
Moreover, the topics identified simply lack relevance when considered in relation to the
exclusive remedy defense. Allowing the deposition to proceed creates an undue burden on Waste
Management, and to the extent itimplicates a refusal to acknowledge the law(s) applicable to
employee-injury claims, can also be considered harassing and sought in bad faith. Accordingly,
Waste Management asks that this Court enter one or more Orders quashing the Notice and/or
Waste Management – Motion to Quash and/or for Protection Page 4 of 7
protecting Waste Management from the requested deposition, at least until such time as a motion
for summary judgment has been filed and considered.
C. The document request included with the Notice is objectionable.
As mentioned, the Notice incorporates a request for documents. The order to quash/for
protection should extend to the document requests for the same reasons discussed above, each of
which is incorporated by reference as if fully restated herein.
Moreover, because the Notice was issued on June 2, 2021, the unilaterally chosen
deposition date is June 24, 2021, and Plaintiff instructs Waste Management to produce documents
by June 17, 2021, the request in inconsistent with the Texas Rules of Civil Procedure.
Further, the requests are objectionable in many, more traditional ways as well. By way of
example, but not limitation, Plaintiff’s records request is duplicative/cumulative of information
provided previously.
These documents, together with Plaintiff’s own allegations/judicial admissions, provide
Plaintiff with all the information necessary to not only determine that this case is contrary to law
and should be dismissed voluntarily, but also to respond to a motion for summary judgment motion
(based on the exclusive remedy defense and/or the Release Agreement), should any good faith
response actually exist. Accordingly, Waste Management asks that this Court enter one or more
Orders quashing the Notice and/or protecting Waste Management from the document request
incorporated therein, at least until such time as the motion for summary judgment contemplated
herein has been filed and considered.
III. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant, WASTE MANAGEMENT OF
TEXAS, INC., improperly named as WASTE MANAGEMENT, INC. requests that this Court:
Waste Management – Motion to Quash and/or for Protection Page 5 of 7
1. Enter one or more Orders quashing/protecting Waste Management from appearing
at the noticed deposition and/or responding to the request for documents; and
2. Award Waste Management such other and further relief, general and special, legal
and equitable, to which they, individually or collectively, may show themselves to
be justly entitled.
Respectfully submitted,
GRIFFIN & MATTHEWS
BY: /s/ Neal E. Spielman
NEAL E. SPIELMAN
Texas State Bar No. 00794678
1155 Dairy Ashford, Suite 300
Houston, Texas 77079
281.870.1124 - Phone
281.870.1647 - Facsimile
nspielman@grifmatlaw.com
ATTORNEYS FOR DEFENDANT
WASTE MANAGEMENT OF TEXAS, INC.,
improperly named as WASTE
MANAGEMENT, INC.
Waste Management – Motion to Quash and/or for Protection Page 6 of 7
CERTIFICATE OF CONFERENCE
I certify that I have made multiple attempts to confer with Plaintiff’s counsel regarding the
issues addressed herein. Plaintiff’s counsel has participated in discussions about the issues, but
agreements cannot be reached.
BY: /s/ Neal E. Spielman
NEAL E. SPIELMAN
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served on the 7th day of June
2021 on the following parties in accordance with the Texas Rules of Civil Procedures:
Charles F. Herd, Jr.
19500 Tomball Parkway, Suite 250
Houston, Texas 77070
CFH@HerdLawFirm.LAW
ATTORNEYS FOR PLAINTIFF
BY: /s/ Neal E. Spielman
NEAL E. SPIELMAN
Waste Management – Motion to Quash and/or for Protection Page 7 of 7
Preview
CAUSE NO. 2019-30674 JERMAINE WASHINGTON IN THE DISTRICT COURT VS. HARRIS COUNTY, TEXAS WASTE MANAGEMENT, IN 281 JUDICIAL DISTRICT DEFENDANT MOTION TO QUASH AND/OR FOR PROTECTION TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW, Defendant, WASTE MANAGEMENT OF TEXAS, INC., improperly named as WASTE MANAGEMENT, INC. Waste Management and files this Motion to Quash and/or For Protection. INTRODUCTION Plaintiff alleg that he sustained non-fatal injuries on April 22, 2018. Plaintiff concedes that he was assigned to work for Waste Management by Taylor Smith Consulting, LLC, a personnel agency Taylor Smith ), pursuant to their Master Agreement. Prior to his assignment to Waste Management, Plaintiff signed a Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement. During his assignment, Plaintiff was covered by and received benefits under workers compensation policy issued to Taylor Smith, ich Waste Management was identified as an “alternate employer Against the backdrop of these uncontested facts, Plaintiff has refused all requests for a voluntary dismissal of this legally unsupportable claim, choosing instead to issue an oppressive, burdensome, unnecessary deposition notice. This Motion is filed in response. Plaintiff s Second Amended Petition at Paragraph 5. Plaintiff s Second Amended Petition at Paragraph 7 (note however, that Plaintiff s contentions in this regard conflict with a recent opinion issued by the Texas Supreme Court). II. REQUESTED RELIEF, ARGUMENT AND AUTHORITY On or about June 2, 2021, Plaintiff issued his Notice of Intent to Take Oral Deposition of the Corporate Representatives of Defendant, Waste Management of Texas, Inc., a true and correct copy of which is attached hereto as Exhibit 1 (the “Notice”). Because Plaintiff’s lawsuit is barred as a matter of law, the Notice is oppressive, burdensome and beyond the scope of what is necessary and proper for this case. Accordingly, the Notice should be quashed and an order of protection issued with respect to both the requested deposition and the records request attached to the Notice as its Exhibit A. A. As a matter of law, the deposition is automatically quashed. As noted, the Notice was received on June 2, 2021. Accordingly, because this Motion is filed within three (3) business days of issuance, this Motion stays the deposition pending further determination by the Court. Tex. R. Civ. P. 199.4. B. As a matter of law, Plaintiff may not pursue his claims against Waste Management rendering the Notice oppressive, burdensome and beyond the scope of what is necessary and proper. 1. This Motion is proper because the exclusive remedy defense bars Plaintiff’s claims. Waste Management is immune from liability as the Texas Labor Code provides it with a complete defense to Plaintiff’s claims. The immunity conferred under the Texas Labor Code is often referred to as the “exclusive remedy defense.” Pursuant to the Texas Labor Code: Section 406.034(a) …an employee of an employer waives the employee’s right of action at common law or under a statute of this state to recover damages for personal injuries or death sustained in the course and scope of the employment. Section 408.001(a) Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against Waste Management – Motion to Quash and/or for Protection Page 2 of 7 the employer or an agent or employee of the employer for the death or a work-related injury sustained by the employee. The defense can be applied to/invoked by Waste Management through its own workers’ compensation policy, or Taylor Smith’s. As to Waste Management’s rights through Taylor Smith’s policy, Chapter 93 of the Texas Labor Code states: Section 93.004(b) For workers’ compensation purposes, ifa temporary employment service [Taylor Smith] elects to obtain workers’ compensation insurance, the client of the temporary employment service [Waste Management] and the temporary employment service are subject to Sections 406.034(a) and 408.001. The Texas Supreme Court recently considered this very question, literally issuing an opinion supporting Waste Management’s entitled to the defense under the very same Master Agreement referenced by Plaintiff in this case. See Exhibit 2 - Waste Management of Texas, Inc. v. Stevenson, --- S.W.3d ---- (2021) (Opinion Delivered April 30, 2021). 2. The request for these depositions is premature, and likely to result in all parties incurring unnecessary costs and expenses. On prior occasions both before and after the Supreme Court’s decision in Stevenson, Taylor Smith requested that Plaintiff voluntarily dismiss his claims based on one version of the exclusive remedy defense or the other. While this matter is current set on a two-week docket that begins August 16, 2021, it will have to be removed from this docket and reset. With this in mind, there is absolutely no urgency to the requested deposition. The facts and law, as they are known to the parties right now will support a motion for summary judgment that fully and finally resolves all claims and causes of action asserted against Waste Management (whether via the exclusive remedy defense, or the Release Agreement). Taking the requested deposition prior to the Court’s consideration of a motion for summary judgment subjects all parties to an unnecessary commitment of time and expense. Moreover, Waste Management – Motion to Quash and/or for Protection Page 3 of 7 quashing the Notice/granting an order of protection will not prejudice Plaintiff. If the summary judgment is unsuccessful, there will be ample time to proceed with fact-based discovery specific to Plaintiff’s negligence claims. Similarly, upon receipt of the contemplated motion for summary judgment, Plaintiff will still have the ability to propose an agreement, seek a continuance, or take other action if it can be shown that discovery is needed in order to respond. Considering the facts and circumstances above, the most efficient, cost-effective, and straight forward means to final resolution of this matter is through summary judgment. Again, all issues to be addressed in relation of a motion for summary judgment based on of the exclusive remedy defense or the Release Agreement can be responded to and argued with information already available to the parties. Taking the depositions prior to consideration of such a motion for summary judgment subjects all parties to an unnecessary commitment of time and expense. Moreover to this point in time, Plaintiff has put forth no good faith argument that would suggest the defense does not or should not apply. As a result, allowing the deposition to proceed would be manifestly unjust. In addition to the unnecessary commitment of time and expense, it is simply not proportional to the needs of the case. An examination of the topics identified in the Notice confirms that relative to the exclusive remedy defense, there is no benefit to be gained from the deposition. Moreover, the topics identified simply lack relevance when considered in relation to the exclusive remedy defense. Allowing the deposition to proceed creates an undue burden on Waste Management, and to the extent itimplicates a refusal to acknowledge the law(s) applicable to employee-injury claims, can also be considered harassing and sought in bad faith. Accordingly, Waste Management asks that this Court enter one or more Orders quashing the Notice and/or Waste Management – Motion to Quash and/or for Protection Page 4 of 7 protecting Waste Management from the requested deposition, at least until such time as a motion for summary judgment has been filed and considered. C. The document request included with the Notice is objectionable. As mentioned, the Notice incorporates a request for documents. The order to quash/for protection should extend to the document requests for the same reasons discussed above, each of which is incorporated by reference as if fully restated herein. Moreover, because the Notice was issued on June 2, 2021, the unilaterally chosen deposition date is June 24, 2021, and Plaintiff instructs Waste Management to produce documents by June 17, 2021, the request in inconsistent with the Texas Rules of Civil Procedure. Further, the requests are objectionable in many, more traditional ways as well. By way of example, but not limitation, Plaintiff’s records request is duplicative/cumulative of information provided previously. These documents, together with Plaintiff’s own allegations/judicial admissions, provide Plaintiff with all the information necessary to not only determine that this case is contrary to law and should be dismissed voluntarily, but also to respond to a motion for summary judgment motion (based on the exclusive remedy defense and/or the Release Agreement), should any good faith response actually exist. Accordingly, Waste Management asks that this Court enter one or more Orders quashing the Notice and/or protecting Waste Management from the document request incorporated therein, at least until such time as the motion for summary judgment contemplated herein has been filed and considered. III. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant, WASTE MANAGEMENT OF TEXAS, INC., improperly named as WASTE MANAGEMENT, INC. requests that this Court: Waste Management – Motion to Quash and/or for Protection Page 5 of 7 1. Enter one or more Orders quashing/protecting Waste Management from appearing at the noticed deposition and/or responding to the request for documents; and 2. Award Waste Management such other and further relief, general and special, legal and equitable, to which they, individually or collectively, may show themselves to be justly entitled. Respectfully submitted, GRIFFIN & MATTHEWS BY: /s/ Neal E. Spielman NEAL E. SPIELMAN Texas State Bar No. 00794678 1155 Dairy Ashford, Suite 300 Houston, Texas 77079 281.870.1124 - Phone 281.870.1647 - Facsimile nspielman@grifmatlaw.com ATTORNEYS FOR DEFENDANT WASTE MANAGEMENT OF TEXAS, INC., improperly named as WASTE MANAGEMENT, INC. Waste Management – Motion to Quash and/or for Protection Page 6 of 7 CERTIFICATE OF CONFERENCE I certify that I have made multiple attempts to confer with Plaintiff’s counsel regarding the issues addressed herein. Plaintiff’s counsel has participated in discussions about the issues, but agreements cannot be reached. BY: /s/ Neal E. Spielman NEAL E. SPIELMAN CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was served on the 7th day of June 2021 on the following parties in accordance with the Texas Rules of Civil Procedures: Charles F. Herd, Jr. 19500 Tomball Parkway, Suite 250 Houston, Texas 77070 CFH@HerdLawFirm.LAW ATTORNEYS FOR PLAINTIFF BY: /s/ Neal E. Spielman NEAL E. SPIELMAN Waste Management – Motion to Quash and/or for Protection Page 7 of 7