Preview
FILED
9/17/2021 6:56 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY
CAUSE NO. DC-21-09849
TAMARA SUZANNE VARDY, § IN THE DISTRICT COURT
Individually and as Representative of the Estate §
of CHRISTOPHER RAY VARDY,
Deceased, BRENDAN EARL VARDY,
CHRISTOPHER NEFF VARDY,
JAMES ROBERT VARDY, and
MARY LOU VARDY
Plaintiffs,
Vv. DALLAS COUNTY, TEXAS
NEW PRIME, INC, d/b/a PRIME, INC.; ET
AL.
Defendants. § 44" JUDICIAL DISTRICT
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO
PLAINTIFFS’ ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Jailen McKneely (identified in Plaintiffs’ Original Petition as “Jalen
McEnley, a/ka/ Jailen McKneely”) (“Mr. McKneely”), one of the Defendants in the above titled
and numbered cause, and makes and files this his Motion to Transfer Venue and Subject Thereto,
Special Exceptions and Original Answer to Plaintiffs’ Original Petition. Mr. McKneely
respectfully shows as follows:
MOTION TO TRANSFER VENUE
I.
Pursuant to Texas Rules of Civil Procedure 86 and 87, Mr. McKneely objects to venue in
Dallas County, Texas, the county where this action was instituted. Dallas County is not a county
of proper venue for this case. Plaintiffs failed to plead a proper basis that mandates or permits
venue in Dallas County. Plaintiffs’ sole basis for establishing venue in Dallas County arises from
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 1
naming Mr. McKneely and Coca-Cola Southwest Beverages LLC (“CCSWB”), Mr. McKneely’s
employer, as defendants and asserting that (1) Mr. McKneely resides in Dallas County and (2)
CCSWB’s principal office in Texas is in Dallas County. See Plaintiffs’ Original Petition and Jury
Demand, p. 9 § 34. However, Mr. McKneely and CCSWB are not proper defendants and were
fraudulently joined. Mr. McKneely and CCSWB did not breach any legal duty owed to Christopher
Vardy and did not cause or contribute to cause Christopher Vardy’s injuries whatsoever, thus
eliminating any basis for establishing proper venue in Dallas County.
IL.
The subject accident occurred on February 11, 2021 in Tarrant County, specifically on a
bridge on the southbound express lanes on Interstate 35W in Fort Worth, Texas. See Plaintiffs’
Original Petition at p. 12 § 42 and Exhibit A, the Certified Crash Report. Christopher Vardy was
driving one of the over 130 vehicles involved in the subject accident. As the narrative in Certified
Crash Report states, these drivers encountered “icy road conditions.” See Exhibit A. Plaintiffs’
allegations against Mr. McKneely and CCSWB are that they failed to control their speed, failed to
take into account the icy road conditions, and failed to observe the hazardous road conditions as
required by the Federal Motor Carrier Safety Regulations and the common law. See Plaintiffs’
Original Petition at p. 12 § 43.
i.
Although Plaintiffs assert claims against Mr. McKneely and CCSWB for negligence and
gross negligence, Plaintiffs have no legal or factual basis to support this. Plaintiffs’ sole basis for
establishing venue in Dallas County is based on Mr. McKneely’s residence and CCSWB’s
principal office in Texas, but neither Mr. McKneely nor CCSWB breached any duty they owed to
Christopher Vardy nor did they cause or contribute to cause Christopher Vardy’s injuries. Plaintiffs
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 2
fraudulently joined Mr. McKneely and CCSWB in violation of Rule 41 of the Texas Rules of Civil
Procedure in an attempt to establish venue in Dallas County.
iles} '
64
iT Red
Nay
\ SGC
G Hh
{I
i
cf
my ey
i ca Ib
v \
ia
ht
AX Lf
Y
Y |\ \
i
[26] 0
[2 y |
Units 23 and 24 represent Defendants Mr. McKneely and CCSWB, whereas Unit 65
represents Christopher Vardy. There are at over 30 vehicles that separate Christopher Vardy’s
vehicle from Mr. McKneely’s vehicle. Moreover, Christopher Vardy is in a later part of the
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 3
accident from Mr. McKneely, with significant time and space between the respective vehicles.
Simply put, it is not plausible that there is any proximate cause between Christopher Vardy’s
injuries and any actions or inactions of Mr. McKneely.
Because the claims on which venue could be maintained in the county in which suit was
filed are asserted fraudulently, the motion to transfer must be sustained. See Thomason v. Arendt,
241 S.W. 280, 280 (Tex. Civ. App. 1922), writ dismissed w.o.j. (Oct. 11, 1922) (affirming plea of
privilege where one of the defendants was neither a proper nor a necessary party, and was
fraudulently joined as a party defendant for the sole purpose of conferring jurisdiction); Acker v.
Denton Publ'g Co., 937 S.W.2d 111 (Tex. App.—Fort Worth 1996, no writ) (finding that joinder
was improper as to defendant, thereby disestablishing venue).
Iv.
No mandatory or permissive venue exception authorizes the maintenance of this action in
Dallas County. As the Texas Supreme Court held in Jn re Masonite Corp., 997 S.W.2d 194, 197,
“if plaintiff fails to establish proper venue, the trial court must transfer venue to the county
specified in the defendant’s motion to transfer, provided that the defendant has requested transfer
to another county of proper venue. See also, In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex.
2008); Tex. R. Civ. P. 87. Mr. McKneely avers that venue is proper in Tarrant County, Texas,
where the subject accident occurred. Under Texas Civil Practice & Remedies Code § 15.002(a)(1),
venue is proper in the county where the events or omissions giving rise to the claim occurred. Mr.
McKneely requests that this action be transferred to a court of competent jurisdiction in Tarrant
County, where proper venue lies in this case.
Ve
Alternatively and pursuant to Texas Civil Practice & Remedies Code § 15.002(b), venue
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 4
should be transferred to Tarrant County for the convenience of the parties and witnesses and in the
interest of justice. It is undisputed that the facts and circumstances related to the subject accident
are centered in Tarrant County. See Plaintiffs’ Original Petition at p. 12 § 42. While the individuals
in the over 130 vehicles involved in this accident reside in numerous counties, many reside in
Tarrant County and many sought medical treatment in Tarrant County. The investigating law
enforcement agencies and responding medical professionals and treating hospitals are also located
in Tarrant County. A jury in Tarrant County also has a much greater interest in the trial of this
lawsuit because it involves a multiple-vehicle accident that occurred due to icy road conditions on
the express lanes in Tarrant County. Residents of Tarrant County undoubtedly have a greater
interest in the safety and preparation of their roads for weather events than residents of Dallas
County. Further, the Motions to Transfer Venue from Dallas County to Tarrant County in Destiny
Mays v. FedEx Ground Package System, Inc., et al were recently granted, Motions to Transfer
Venue to Tarrant County are pending in at least one other case! arising from the subject accident,
and at least nine cases? arising from the subject accident were originally filed in Tarrant County.
Thus, and in the alternative, this case should be transferred to Tarrant County for the convenience
of the parties and witnesses and in the interest of justice.
SPECIAL EXCEPTIONS, SUBJECT TO MOTION TO TRANSFER VENUE
VI.
' See Mark Patel, Halee Escamilla, and Angela Childeress v. FedEx Ground Package System, Inc., et al
2 See (1) Glenn Reid and Katrina Adams v. NTE Mobility Partners LLC, et al; (2) Jane Watson, Individually and As
Next Friend of the Minor, W.W. And as Representative of the Estate of Aaron Luke Watson and Cameron Watson,
Individually v. NTE Mobility Partners LLC, et al; (3) Marielena Fatima De Frietes Mendoza, Otilia Querales, Luis
Mendoza, and Joann Burgess as Administrator of the Estate of Tamara Mendoza v. Neal William Guthrie and Karen
Mooney v. NTE Mobility Partners, LLC, et al; (4) Devin Meek v. Go To Logistics, et al; (5) Nancy Herrera v, Fed Ex
Ground Package System, Inc., et al; (6) Juan Ferred and Cindy Gerred, Individually, as Representatives of the Estate
of Tiffany Gerred, Deceased, and As Next of Friends of E.C., a Minor Child, and Diego Contreras, As Next of Friend
of E.C., a Minor Child v. Fedex Ground Package System Inc., et al; (7) Shaun William Flach v. Carlos Ruvalcaba, et
al; (8) Jeremy Cruz v. Federal Express Transportation, et al; (9) Cherie Crayton v. Sukhwinder Singh, et al; and (9)
Charles Carroll v. Rhonda Jones, et al
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 5
Mr. McKneely specially excepts to Plaintiffs’ failure to properly plead the full nature and
maximum amount of damages sought as required by Texas Rules of Civil Procedure 47 and 56
and respectfully requests that the Court order Plaintiffs to re-plead pursuant to Texas Rules of Civil
Procedure 68 and 79.
VIL.
Mr. McKneely specially excepts to the extent Plaintiffs have failed to state all laws,
statutes, and regulations Mr. McKneely allegedly violated. Mr. McKneely respectfully requests
that the Court order Plaintiffs to re-plead by identifying all laws, statutes, and regulations that
Plaintiffs allege Mr. McKneely violated.
GENERAL DENIAL
VII.
Mr. McKneely denies generally each and every material allegation contained in Plaintiffs’
Original Petition, demands strict proof thereof, and to the extent such matters are questions of fact,
says Plaintiffs should prove such facts by a preponderance of the evidence if they can do so.
AFFIRMATIVE DEFENSES
IX.
PLEADING FURTHER, ALTERNATIVELY AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that, at the time and on the occasion in question,
Christopher Ray Vardy failed to use that degree of care and caution that would have been used by
a person with ordinary prudence under the same or similar circumstances, and that such failure
was the sole proximate cause or the sole producing cause, or alternatively, a proximate cause or a
producing cause, of the accident in question, Christopher Ray Vardy’s death and Plaintiffs’ alleged
resulting damages. Mr. McKneely, therefore, invokes the comparative responsibility provisions
of the Texas Civil Practice and Remedies Code § 33.001, et seq.
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 6
X.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that the accident in question, Christopher Ray Vardy’s
death and Plaintiffs’ alleged resulting damages were the result of negligent acts and/or omissions
of others beyond Mr. McKneely’s control, whose acts or omissions were the sole proximate cause
or the sole producing cause, or alternatively, a proximate cause or a producing cause, of the
accident in question, Christopher Ray Vardy’s death and Plaintiffs’ alleged resulting damages.
XI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show in the unlikely event that any liability be found on his part,
that such liability be reduced by the percentage of causation found to have resulted from the
negligence of Christopher Ray Vardy and/or any other individuals and/or entities.
XII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely states that in the unlikely event that an adverse judgment is rendered
against him, Mr. McKneely respectfully prays for contribution, indemnity and/or all available
credits and/or offsets as provided by the Texas Civil Practice and Remedies Code and under Texas
or any other applicable law.
XI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that the accident in question, Christopher Ray Vardy’s
death and Plaintiffs’ alleged resulting damages were the result, in whole or in part, of a new and
independent cause or causes not foreseeable by Mr. McKneely, or of intervening acts of others,
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 7
which were the sole proximate cause, or in the alternative, a proximate cause, and therefore, such
new and independent acts or causes became the immediate and efficient cause or causes, such that
any and all alleged negligent acts or omissions of Mr. McKneely were not the cause of the accident
in question, Christopher Ray Vardy’s death and any alleged resulting damages.
XIV.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely states that the imposition of joint and several liability violates the equal
protection and due process clauses of the U.S. and Texas Constitutions.
XV.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that Plaintiffs’ claims are barred by the doctrines of
estoppel, ratification and/or laches.
XVI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely asserts the limitation of damages recoverable as provided by applicable
portions of the Texas Business & Commerce Code; the Texas Civil Practice and Remedies Code
(including but not limited to Chapters 32, 33 and 38); and any other applicable statute or rule of
law, and any other applicable affirmative defenses.
XVII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely asserts that he complied with all Federal Motor Carrier Safety
Regulations and all other applicable federal requirements. Accordingly, Mr. McKneely pleads
that Plaintiffs’ claims may be barred in whole or in part by the doctrine of federal preemption.
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 8
XVII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely invokes Section 41.0105 of the Texas Civil Practice and Remedies
Code and requests that to the extent Plaintiffs seek recovery of medical or healthcare expenses, the
evidence to prove such loss be limited to the amount actually paid by or on behalf of Plaintiffs as
opposed to the amount charged.
XIX.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that, pursuant to Section 18.091 of the Texas Civil Practice
and Remedies Code, to the extent Plaintiffs are seeking recovery for loss of earnings, lost wages,
loss of earning capacity, and/or loss of contributions of a pecuniary value, Plaintiffs must present
evidence of the alleged loss in the form of a net loss after reduction for income tax payments or
unpaid tax liability pursuant to any federal income tax law.
XX.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely pleads that Plaintiffs failed to mitigate their damages herein as required
under applicable law and therefore any such claims or causes of action are barred to that extent.
XXI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that some or all of Plaintiffs’ claims are barred because
Plaintiffs have failed to fully perform all conditions and/or conditions precedent required to be
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 9
performed on Plaintiffs’ part and those conditions have not occurred and have not been waived.
XXII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely pleads the defense of unconstitutionality, in that any award of punitive
or exemplary damages would constitute the imposition of a criminal penalty without the safeguards
guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments of the Constitution of the
United States, and similar provisions of the Texas Constitution. Furthermore, the imposition of
such punitive or exemplary damages constitutes an excessive fine under the Eighth Amendment,
denies Mr. McKneely equal protection of the law under the Fourteenth Amendment, and violates
the due process clause of the Fifth and Fourteenth Amendments. Mr. McKneely pleads that any
claim by Plaintiffs for punitive or exemplary damages should be stricken as unconstitutional and
that any award of punitive or exemplary damages should be set aside for the reasons stated above.
XXIII.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that the imposition of punitive damages sought by
Plaintiffs violates Mr. McKneely’s rights to due process and equal protection under the Fourteenth
Amendment of the United States Constitution, to due course of law and equal protection under
Article 1 and 19 of the Texas Constitution, and the prohibition against excessive fines in Article
1, section 13 of the Texas Constitution, in that:
(a) Texas law and the Texas punitive damage scheme, both facially and as applied in
this case, provide no constitutionally adequate or meaningful standards to guide a jury or the court
in determining whether, and if so in what amount, to award punitive damages; there is no
sufficiently clear definition of the conduct or mental state that makes punitive damages
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 10
permissible, and no sufficiently clear standard for determining the appropriate size of an award.
Texas law and the Texas punitive damage scheme leave the determination whether to award and,
if so, the amount of punitive damages to the arbitrary discretion of the trier of fact without
providing adequate or meaningful guidelines for or limits to the exercise of that discretion.
(b) Mr. McKneely had no notice of or means of ascertaining whether, or if so in what
amount, he might be subject to a penalty for the conduct alleged by Plaintiffs in this case. That
lack of notice was compounded by the absence of any adequate or meaningful standards as to the
kind of conduct that might subject Mr. McKneely to punitive damages or as to the potential amount
of such an award.
(c) Under Texas law and the Texas punitive damage scheme, the jury is not instructed
on the limits on punitive damages imposed by the purposes for which such damages are assessed.
(d) Under Texas law and the Texas punitive damage scheme, the jury is not expressly
prohibited from awarding punitive damages, in whole or in part, on the basis of invidiously
discriminatory characteristics, including the corporate status of a defendant.
(©) No provision of Texas law or the Texas punitive damage scheme provides adequate
procedural safeguards consistent with the criteria set forth in BMW of North America, Inc. v. Gore,
517 U.S. 559 (1996); Pacific Mutual Life Insurance Company v. Haslip, 499 U.S. 1 (1990), and
Matthews v. Eldridge, 424 U.S. 319 (1976) for the imposition of a punitive award.
(f) Texas law and the Texas punitive damage scheme do not provide for adequate post-
trial review of punitive damage awards or the amount thereof, and do not provide objective
standards for such review.
(g) Texas law and the Texas punitive damage scheme do not provide for adequate
appellate review of punitive damage awards or the amount thereof, and do not provide objective
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 11
standards for such review. Those inadequacies are compounded by the constraints upon review of
such awards by the Texas Supreme Court, including Article 5, section 6 of the Texas Constitution
and section 22.225 of the Texas Government Code.
(h) In the admission of evidence, the standards provided the trier of fact (including jury
instructions), and post-trial and appellate review, Texas law and the Texas punitive damage
scheme, including sections 41.001 through 41.013 of the Texas Civil Practice & Remedies Code,
place undue emphasis on a defendant’s wealth as a basis for making and enhancing a punitive
damage award, and do not require that the award not be based on any desire to redistribute wealth.
@ Under Texas law and the Texas punitive damage scheme, there is no limit on the
number of times Mr. McKneely could be held accountable for punitive damages based on the same
alleged conduct as that alleged in this case.
XXIV.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that the net effect of Texas’s punitive damage system is
to impose punitive damages in an arbitrary and discriminatory manner. The lack of adequate
guidelines or review and undue emphasis on defendant’s wealth inevitably lead to variations in
tesult without any rational basis for differentiation, and without serving any legitimate
governmental purpose or interest. As a result, the federal and state (U.S. Const. Amend 14; Texas
Const. Art. 1, § 3) constitutional mandates for equal protection are violated. Insofar as the
lodestone of the Texas punitive damage system is in the depth of the defendant’s pockets, that
invidious discrimination is itself an affront to the federal and state constitutions’ equal protection
mandates.
XXV.
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 12
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that insofar as the punitive damage award sought by
Plaintiffs seeks to impose punitive damages under Texas law for conduct in other states, the award
violates:
(a) Mr. McKneely’s rights to due process and due course of law under the Fourteenth
Amendment of the United States Constitution and Article 1, section 19 of the Texas Constitution;
(b) the dormant or negative commerce clause derived from Article 1, section 8, clause
3 of the United States Constitution;
() the Full Faith and Credit Clause of Article IV, section 1 of the United States
Constitution;
(d) the requirement of the United States Constitution that a state respect the autonomy
of other states within their spheres; and
(e) the prohibition against excessive fines in Article 1, section 13 of the Texas
Constitution.
XXVI.
PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE
DEFENSE, Mr. McKneely would show that by virtue of Section 41.008 of the Texas Civil Practice
and Remedies Code, any award of exemplary damages is subject to the cap specified in that section
and any award in excess of that cap must be reduced accordingly.
XXVII.
Mr. McKneely gives notice that he intends to rely upon such other defenses or denials as
may become available or appear during discovery as it proceeds in this matter, and hereby reserves
the right to amend his Answer to assert such defenses.
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 13
XXVIII.
Mr. McKneely respectfully requests that a court reporter attend all sessions of court in
connection with this case, and that said court reporter take full notes of all testimony offered,
together with any objections, rulings and remarks of the Court and exceptions thereto, and such
other proceedings as may be needed or requested by Mr. McKneely. See Christie v. Price, 558
S.W.2d 922 (Tex. App. — Texarkana 1977, no writ).
TEX. R. CIV. P. 193.7 NOTICE
XXIX.
Pursuant to Texas Rule of Civil Procedure 193.7, Mr. McKneely provides notice that any
document produced by Plaintiffs may be used in court proceedings by Mr. McKneely.
PRAYER
XXX.
WHEREFORE, PREMISES CONSIDERED, Defendant Mr. McKneely respectfully prays
that Plaintiffs Tamara Suzanne Vardy, Individually and as Representative of the Estate of
Christopher Ray Vardy, Brendan Earl Vardy, Christopher Neff Vardy, James Robert Vardy, and
Mary Loy Vardy take nothing by this suit; that he be awarded all costs and expenses incurred on
his behalf; and for such other and further relief, both at law and in equity, to which Mr. McKneely
may show himself to be justly entitled.
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 14
Respectfully submitted,
/s/ David H. Estes
DAVID H. ESTES
State Bar No. 24012599
destes@hartlinebarger.com
AMANDA A. SAPUTO
State Bar No. 24100984
saputo@hartlinebarger.com
FAISAL AL-ALAM
State Bar No. 24121357
Al-Alam@hartlinebarger.com
HARTLINE BARGER LLP
8750 North Central Expressway, Suite 1600
Dallas, Texas 75231
Phone: (214) 369-2100
Fax: (214) 369-2118
ATTORNEYS FOR DEFENDANT
JAILEN MCKNEELY
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been forwarded
to all known counsel of record in accordance with the Texas Rules of Civil Procedure on the 17"
day of September, 2021.
/s/ David H. Estes
DAVID H. ESTES
DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND
SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER
TO PLAINTIFFS’ ORIGINAL PETITION PAGE 15
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Jennifer White on behalf of David Estes
Bar No. 24012599
jwhite@hartlinebarger.com
Envelope ID: 57381119
Status as of 9/21/2021 12:00 PM CST
Case Contacts
Name BarNumber | Email TimestampSubmitted Status
Betsy Yocum byocum@belaw.com 9/17/2021 6:56:37 PM SENT
Carter LFerguson cferguson@belaw.com 9/17/2021 6:56:37 PM SENT
Henri Dussault hdussault@belaw.com 9/17/2021 6:56:37 PM SENT
TIMOTHY DREWNEWSOM tnewsom@flbranson.com 9/17/2021 6:56:37 PM SENT
Susan Royall sroyall@belaw.com 9/17/2021 6:56:37 PM SENT
Associated Case Party: TAMARASUZANNEVARDY
Name BarNumber Email TimestampSubmitted | Status
Tim Newsom efiletn@flbranson.com | 9/17/2021 6:56:37 PM | SENT
Associated Case Party: COCA-COLA SOUTHWEST BEVERAGES LLC.
Name BarNumber Email TimestampSubmitted Status
Cindy Parnell cparnell@hartlinebarger.com 9/17/2021 6:56:37 PM SENT
Jennifer White JWhite@hartlinebarger.com 9/17/2021 6:56:37 PM SENT
Jessica Alvarez jalvarez@hartlinebarger.com 9/17/2021 6:56:37 PM SENT
David H.Estes destes@hartlinebarger.com 9/17/2021 6:56:37 PM SENT
Taylor Accountius taccountius@hartlinebarger.com 9/17/2021 6:56:37 PM SENT
Amanda Saputo asaputo@hartlinebarger.com 9/17/2021 6:56:37 PM SENT
Faisal Al Alam FAI-Alam@hartlinebarger.com 9/17/2021 6:56:37 PM SENT
Preview
FILED 9/17/2021 6:56 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker-Ayodele DEPUTY CAUSE NO. DC-21-09849 TAMARA SUZANNE VARDY, § IN THE DISTRICT COURT Individually and as Representative of the Estate § of CHRISTOPHER RAY VARDY, Deceased, BRENDAN EARL VARDY, CHRISTOPHER NEFF VARDY, JAMES ROBERT VARDY, and MARY LOU VARDY Plaintiffs, Vv. DALLAS COUNTY, TEXAS NEW PRIME, INC, d/b/a PRIME, INC.; ET AL. Defendants. § 44" JUDICIAL DISTRICT DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Jailen McKneely (identified in Plaintiffs’ Original Petition as “Jalen McEnley, a/ka/ Jailen McKneely”) (“Mr. McKneely”), one of the Defendants in the above titled and numbered cause, and makes and files this his Motion to Transfer Venue and Subject Thereto, Special Exceptions and Original Answer to Plaintiffs’ Original Petition. Mr. McKneely respectfully shows as follows: MOTION TO TRANSFER VENUE I. Pursuant to Texas Rules of Civil Procedure 86 and 87, Mr. McKneely objects to venue in Dallas County, Texas, the county where this action was instituted. Dallas County is not a county of proper venue for this case. Plaintiffs failed to plead a proper basis that mandates or permits venue in Dallas County. Plaintiffs’ sole basis for establishing venue in Dallas County arises from DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 1 naming Mr. McKneely and Coca-Cola Southwest Beverages LLC (“CCSWB”), Mr. McKneely’s employer, as defendants and asserting that (1) Mr. McKneely resides in Dallas County and (2) CCSWB’s principal office in Texas is in Dallas County. See Plaintiffs’ Original Petition and Jury Demand, p. 9 § 34. However, Mr. McKneely and CCSWB are not proper defendants and were fraudulently joined. Mr. McKneely and CCSWB did not breach any legal duty owed to Christopher Vardy and did not cause or contribute to cause Christopher Vardy’s injuries whatsoever, thus eliminating any basis for establishing proper venue in Dallas County. IL. The subject accident occurred on February 11, 2021 in Tarrant County, specifically on a bridge on the southbound express lanes on Interstate 35W in Fort Worth, Texas. See Plaintiffs’ Original Petition at p. 12 § 42 and Exhibit A, the Certified Crash Report. Christopher Vardy was driving one of the over 130 vehicles involved in the subject accident. As the narrative in Certified Crash Report states, these drivers encountered “icy road conditions.” See Exhibit A. Plaintiffs’ allegations against Mr. McKneely and CCSWB are that they failed to control their speed, failed to take into account the icy road conditions, and failed to observe the hazardous road conditions as required by the Federal Motor Carrier Safety Regulations and the common law. See Plaintiffs’ Original Petition at p. 12 § 43. i. Although Plaintiffs assert claims against Mr. McKneely and CCSWB for negligence and gross negligence, Plaintiffs have no legal or factual basis to support this. Plaintiffs’ sole basis for establishing venue in Dallas County is based on Mr. McKneely’s residence and CCSWB’s principal office in Texas, but neither Mr. McKneely nor CCSWB breached any duty they owed to Christopher Vardy nor did they cause or contribute to cause Christopher Vardy’s injuries. Plaintiffs DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 2 fraudulently joined Mr. McKneely and CCSWB in violation of Rule 41 of the Texas Rules of Civil Procedure in an attempt to establish venue in Dallas County. iles} ' 64 iT Red Nay \ SGC G Hh {I i cf my ey i ca Ib v \ ia ht AX Lf Y Y |\ \ i [26] 0 [2 y | Units 23 and 24 represent Defendants Mr. McKneely and CCSWB, whereas Unit 65 represents Christopher Vardy. There are at over 30 vehicles that separate Christopher Vardy’s vehicle from Mr. McKneely’s vehicle. Moreover, Christopher Vardy is in a later part of the DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 3 accident from Mr. McKneely, with significant time and space between the respective vehicles. Simply put, it is not plausible that there is any proximate cause between Christopher Vardy’s injuries and any actions or inactions of Mr. McKneely. Because the claims on which venue could be maintained in the county in which suit was filed are asserted fraudulently, the motion to transfer must be sustained. See Thomason v. Arendt, 241 S.W. 280, 280 (Tex. Civ. App. 1922), writ dismissed w.o.j. (Oct. 11, 1922) (affirming plea of privilege where one of the defendants was neither a proper nor a necessary party, and was fraudulently joined as a party defendant for the sole purpose of conferring jurisdiction); Acker v. Denton Publ'g Co., 937 S.W.2d 111 (Tex. App.—Fort Worth 1996, no writ) (finding that joinder was improper as to defendant, thereby disestablishing venue). Iv. No mandatory or permissive venue exception authorizes the maintenance of this action in Dallas County. As the Texas Supreme Court held in Jn re Masonite Corp., 997 S.W.2d 194, 197, “if plaintiff fails to establish proper venue, the trial court must transfer venue to the county specified in the defendant’s motion to transfer, provided that the defendant has requested transfer to another county of proper venue. See also, In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008); Tex. R. Civ. P. 87. Mr. McKneely avers that venue is proper in Tarrant County, Texas, where the subject accident occurred. Under Texas Civil Practice & Remedies Code § 15.002(a)(1), venue is proper in the county where the events or omissions giving rise to the claim occurred. Mr. McKneely requests that this action be transferred to a court of competent jurisdiction in Tarrant County, where proper venue lies in this case. Ve Alternatively and pursuant to Texas Civil Practice & Remedies Code § 15.002(b), venue DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 4 should be transferred to Tarrant County for the convenience of the parties and witnesses and in the interest of justice. It is undisputed that the facts and circumstances related to the subject accident are centered in Tarrant County. See Plaintiffs’ Original Petition at p. 12 § 42. While the individuals in the over 130 vehicles involved in this accident reside in numerous counties, many reside in Tarrant County and many sought medical treatment in Tarrant County. The investigating law enforcement agencies and responding medical professionals and treating hospitals are also located in Tarrant County. A jury in Tarrant County also has a much greater interest in the trial of this lawsuit because it involves a multiple-vehicle accident that occurred due to icy road conditions on the express lanes in Tarrant County. Residents of Tarrant County undoubtedly have a greater interest in the safety and preparation of their roads for weather events than residents of Dallas County. Further, the Motions to Transfer Venue from Dallas County to Tarrant County in Destiny Mays v. FedEx Ground Package System, Inc., et al were recently granted, Motions to Transfer Venue to Tarrant County are pending in at least one other case! arising from the subject accident, and at least nine cases? arising from the subject accident were originally filed in Tarrant County. Thus, and in the alternative, this case should be transferred to Tarrant County for the convenience of the parties and witnesses and in the interest of justice. SPECIAL EXCEPTIONS, SUBJECT TO MOTION TO TRANSFER VENUE VI. ' See Mark Patel, Halee Escamilla, and Angela Childeress v. FedEx Ground Package System, Inc., et al 2 See (1) Glenn Reid and Katrina Adams v. NTE Mobility Partners LLC, et al; (2) Jane Watson, Individually and As Next Friend of the Minor, W.W. And as Representative of the Estate of Aaron Luke Watson and Cameron Watson, Individually v. NTE Mobility Partners LLC, et al; (3) Marielena Fatima De Frietes Mendoza, Otilia Querales, Luis Mendoza, and Joann Burgess as Administrator of the Estate of Tamara Mendoza v. Neal William Guthrie and Karen Mooney v. NTE Mobility Partners, LLC, et al; (4) Devin Meek v. Go To Logistics, et al; (5) Nancy Herrera v, Fed Ex Ground Package System, Inc., et al; (6) Juan Ferred and Cindy Gerred, Individually, as Representatives of the Estate of Tiffany Gerred, Deceased, and As Next of Friends of E.C., a Minor Child, and Diego Contreras, As Next of Friend of E.C., a Minor Child v. Fedex Ground Package System Inc., et al; (7) Shaun William Flach v. Carlos Ruvalcaba, et al; (8) Jeremy Cruz v. Federal Express Transportation, et al; (9) Cherie Crayton v. Sukhwinder Singh, et al; and (9) Charles Carroll v. Rhonda Jones, et al DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 5 Mr. McKneely specially excepts to Plaintiffs’ failure to properly plead the full nature and maximum amount of damages sought as required by Texas Rules of Civil Procedure 47 and 56 and respectfully requests that the Court order Plaintiffs to re-plead pursuant to Texas Rules of Civil Procedure 68 and 79. VIL. Mr. McKneely specially excepts to the extent Plaintiffs have failed to state all laws, statutes, and regulations Mr. McKneely allegedly violated. Mr. McKneely respectfully requests that the Court order Plaintiffs to re-plead by identifying all laws, statutes, and regulations that Plaintiffs allege Mr. McKneely violated. GENERAL DENIAL VII. Mr. McKneely denies generally each and every material allegation contained in Plaintiffs’ Original Petition, demands strict proof thereof, and to the extent such matters are questions of fact, says Plaintiffs should prove such facts by a preponderance of the evidence if they can do so. AFFIRMATIVE DEFENSES IX. PLEADING FURTHER, ALTERNATIVELY AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that, at the time and on the occasion in question, Christopher Ray Vardy failed to use that degree of care and caution that would have been used by a person with ordinary prudence under the same or similar circumstances, and that such failure was the sole proximate cause or the sole producing cause, or alternatively, a proximate cause or a producing cause, of the accident in question, Christopher Ray Vardy’s death and Plaintiffs’ alleged resulting damages. Mr. McKneely, therefore, invokes the comparative responsibility provisions of the Texas Civil Practice and Remedies Code § 33.001, et seq. DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 6 X. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that the accident in question, Christopher Ray Vardy’s death and Plaintiffs’ alleged resulting damages were the result of negligent acts and/or omissions of others beyond Mr. McKneely’s control, whose acts or omissions were the sole proximate cause or the sole producing cause, or alternatively, a proximate cause or a producing cause, of the accident in question, Christopher Ray Vardy’s death and Plaintiffs’ alleged resulting damages. XI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show in the unlikely event that any liability be found on his part, that such liability be reduced by the percentage of causation found to have resulted from the negligence of Christopher Ray Vardy and/or any other individuals and/or entities. XII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely states that in the unlikely event that an adverse judgment is rendered against him, Mr. McKneely respectfully prays for contribution, indemnity and/or all available credits and/or offsets as provided by the Texas Civil Practice and Remedies Code and under Texas or any other applicable law. XI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that the accident in question, Christopher Ray Vardy’s death and Plaintiffs’ alleged resulting damages were the result, in whole or in part, of a new and independent cause or causes not foreseeable by Mr. McKneely, or of intervening acts of others, DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 7 which were the sole proximate cause, or in the alternative, a proximate cause, and therefore, such new and independent acts or causes became the immediate and efficient cause or causes, such that any and all alleged negligent acts or omissions of Mr. McKneely were not the cause of the accident in question, Christopher Ray Vardy’s death and any alleged resulting damages. XIV. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely states that the imposition of joint and several liability violates the equal protection and due process clauses of the U.S. and Texas Constitutions. XV. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that Plaintiffs’ claims are barred by the doctrines of estoppel, ratification and/or laches. XVI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely asserts the limitation of damages recoverable as provided by applicable portions of the Texas Business & Commerce Code; the Texas Civil Practice and Remedies Code (including but not limited to Chapters 32, 33 and 38); and any other applicable statute or rule of law, and any other applicable affirmative defenses. XVII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely asserts that he complied with all Federal Motor Carrier Safety Regulations and all other applicable federal requirements. Accordingly, Mr. McKneely pleads that Plaintiffs’ claims may be barred in whole or in part by the doctrine of federal preemption. DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 8 XVII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely invokes Section 41.0105 of the Texas Civil Practice and Remedies Code and requests that to the extent Plaintiffs seek recovery of medical or healthcare expenses, the evidence to prove such loss be limited to the amount actually paid by or on behalf of Plaintiffs as opposed to the amount charged. XIX. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that, pursuant to Section 18.091 of the Texas Civil Practice and Remedies Code, to the extent Plaintiffs are seeking recovery for loss of earnings, lost wages, loss of earning capacity, and/or loss of contributions of a pecuniary value, Plaintiffs must present evidence of the alleged loss in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law. XX. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely pleads that Plaintiffs failed to mitigate their damages herein as required under applicable law and therefore any such claims or causes of action are barred to that extent. XXI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that some or all of Plaintiffs’ claims are barred because Plaintiffs have failed to fully perform all conditions and/or conditions precedent required to be DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 9 performed on Plaintiffs’ part and those conditions have not occurred and have not been waived. XXII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely pleads the defense of unconstitutionality, in that any award of punitive or exemplary damages would constitute the imposition of a criminal penalty without the safeguards guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments of the Constitution of the United States, and similar provisions of the Texas Constitution. Furthermore, the imposition of such punitive or exemplary damages constitutes an excessive fine under the Eighth Amendment, denies Mr. McKneely equal protection of the law under the Fourteenth Amendment, and violates the due process clause of the Fifth and Fourteenth Amendments. Mr. McKneely pleads that any claim by Plaintiffs for punitive or exemplary damages should be stricken as unconstitutional and that any award of punitive or exemplary damages should be set aside for the reasons stated above. XXIII. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that the imposition of punitive damages sought by Plaintiffs violates Mr. McKneely’s rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution, to due course of law and equal protection under Article 1 and 19 of the Texas Constitution, and the prohibition against excessive fines in Article 1, section 13 of the Texas Constitution, in that: (a) Texas law and the Texas punitive damage scheme, both facially and as applied in this case, provide no constitutionally adequate or meaningful standards to guide a jury or the court in determining whether, and if so in what amount, to award punitive damages; there is no sufficiently clear definition of the conduct or mental state that makes punitive damages DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 10 permissible, and no sufficiently clear standard for determining the appropriate size of an award. Texas law and the Texas punitive damage scheme leave the determination whether to award and, if so, the amount of punitive damages to the arbitrary discretion of the trier of fact without providing adequate or meaningful guidelines for or limits to the exercise of that discretion. (b) Mr. McKneely had no notice of or means of ascertaining whether, or if so in what amount, he might be subject to a penalty for the conduct alleged by Plaintiffs in this case. That lack of notice was compounded by the absence of any adequate or meaningful standards as to the kind of conduct that might subject Mr. McKneely to punitive damages or as to the potential amount of such an award. (c) Under Texas law and the Texas punitive damage scheme, the jury is not instructed on the limits on punitive damages imposed by the purposes for which such damages are assessed. (d) Under Texas law and the Texas punitive damage scheme, the jury is not expressly prohibited from awarding punitive damages, in whole or in part, on the basis of invidiously discriminatory characteristics, including the corporate status of a defendant. (©) No provision of Texas law or the Texas punitive damage scheme provides adequate procedural safeguards consistent with the criteria set forth in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Pacific Mutual Life Insurance Company v. Haslip, 499 U.S. 1 (1990), and Matthews v. Eldridge, 424 U.S. 319 (1976) for the imposition of a punitive award. (f) Texas law and the Texas punitive damage scheme do not provide for adequate post- trial review of punitive damage awards or the amount thereof, and do not provide objective standards for such review. (g) Texas law and the Texas punitive damage scheme do not provide for adequate appellate review of punitive damage awards or the amount thereof, and do not provide objective DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 11 standards for such review. Those inadequacies are compounded by the constraints upon review of such awards by the Texas Supreme Court, including Article 5, section 6 of the Texas Constitution and section 22.225 of the Texas Government Code. (h) In the admission of evidence, the standards provided the trier of fact (including jury instructions), and post-trial and appellate review, Texas law and the Texas punitive damage scheme, including sections 41.001 through 41.013 of the Texas Civil Practice & Remedies Code, place undue emphasis on a defendant’s wealth as a basis for making and enhancing a punitive damage award, and do not require that the award not be based on any desire to redistribute wealth. @ Under Texas law and the Texas punitive damage scheme, there is no limit on the number of times Mr. McKneely could be held accountable for punitive damages based on the same alleged conduct as that alleged in this case. XXIV. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that the net effect of Texas’s punitive damage system is to impose punitive damages in an arbitrary and discriminatory manner. The lack of adequate guidelines or review and undue emphasis on defendant’s wealth inevitably lead to variations in tesult without any rational basis for differentiation, and without serving any legitimate governmental purpose or interest. As a result, the federal and state (U.S. Const. Amend 14; Texas Const. Art. 1, § 3) constitutional mandates for equal protection are violated. Insofar as the lodestone of the Texas punitive damage system is in the depth of the defendant’s pockets, that invidious discrimination is itself an affront to the federal and state constitutions’ equal protection mandates. XXV. DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 12 PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that insofar as the punitive damage award sought by Plaintiffs seeks to impose punitive damages under Texas law for conduct in other states, the award violates: (a) Mr. McKneely’s rights to due process and due course of law under the Fourteenth Amendment of the United States Constitution and Article 1, section 19 of the Texas Constitution; (b) the dormant or negative commerce clause derived from Article 1, section 8, clause 3 of the United States Constitution; () the Full Faith and Credit Clause of Article IV, section 1 of the United States Constitution; (d) the requirement of the United States Constitution that a state respect the autonomy of other states within their spheres; and (e) the prohibition against excessive fines in Article 1, section 13 of the Texas Constitution. XXVI. PLEADING FURTHER, ALTERNATIVELY, AND BY WAY OF AFFIRMATIVE DEFENSE, Mr. McKneely would show that by virtue of Section 41.008 of the Texas Civil Practice and Remedies Code, any award of exemplary damages is subject to the cap specified in that section and any award in excess of that cap must be reduced accordingly. XXVII. Mr. McKneely gives notice that he intends to rely upon such other defenses or denials as may become available or appear during discovery as it proceeds in this matter, and hereby reserves the right to amend his Answer to assert such defenses. DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 13 XXVIII. Mr. McKneely respectfully requests that a court reporter attend all sessions of court in connection with this case, and that said court reporter take full notes of all testimony offered, together with any objections, rulings and remarks of the Court and exceptions thereto, and such other proceedings as may be needed or requested by Mr. McKneely. See Christie v. Price, 558 S.W.2d 922 (Tex. App. — Texarkana 1977, no writ). TEX. R. CIV. P. 193.7 NOTICE XXIX. Pursuant to Texas Rule of Civil Procedure 193.7, Mr. McKneely provides notice that any document produced by Plaintiffs may be used in court proceedings by Mr. McKneely. PRAYER XXX. WHEREFORE, PREMISES CONSIDERED, Defendant Mr. McKneely respectfully prays that Plaintiffs Tamara Suzanne Vardy, Individually and as Representative of the Estate of Christopher Ray Vardy, Brendan Earl Vardy, Christopher Neff Vardy, James Robert Vardy, and Mary Loy Vardy take nothing by this suit; that he be awarded all costs and expenses incurred on his behalf; and for such other and further relief, both at law and in equity, to which Mr. McKneely may show himself to be justly entitled. DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 14 Respectfully submitted, /s/ David H. Estes DAVID H. ESTES State Bar No. 24012599 destes@hartlinebarger.com AMANDA A. SAPUTO State Bar No. 24100984 saputo@hartlinebarger.com FAISAL AL-ALAM State Bar No. 24121357 Al-Alam@hartlinebarger.com HARTLINE BARGER LLP 8750 North Central Expressway, Suite 1600 Dallas, Texas 75231 Phone: (214) 369-2100 Fax: (214) 369-2118 ATTORNEYS FOR DEFENDANT JAILEN MCKNEELY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been forwarded to all known counsel of record in accordance with the Texas Rules of Civil Procedure on the 17" day of September, 2021. /s/ David H. Estes DAVID H. ESTES DEFENDANT JAILEN MCKNEELY’S MOTION TO TRANSFER VENUE AND SUBJECT THERETO, SPECIAL EXCEPTIONS AND ORIGINAL ANSWER TO PLAINTIFFS’ ORIGINAL PETITION PAGE 15 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Jennifer White on behalf of David Estes Bar No. 24012599 jwhite@hartlinebarger.com Envelope ID: 57381119 Status as of 9/21/2021 12:00 PM CST Case Contacts Name BarNumber | Email TimestampSubmitted Status Betsy Yocum byocum@belaw.com 9/17/2021 6:56:37 PM SENT Carter LFerguson cferguson@belaw.com 9/17/2021 6:56:37 PM SENT Henri Dussault hdussault@belaw.com 9/17/2021 6:56:37 PM SENT TIMOTHY DREWNEWSOM tnewsom@flbranson.com 9/17/2021 6:56:37 PM SENT Susan Royall sroyall@belaw.com 9/17/2021 6:56:37 PM SENT Associated Case Party: TAMARASUZANNEVARDY Name BarNumber Email TimestampSubmitted | Status Tim Newsom efiletn@flbranson.com | 9/17/2021 6:56:37 PM | SENT Associated Case Party: COCA-COLA SOUTHWEST BEVERAGES LLC. Name BarNumber Email TimestampSubmitted Status Cindy Parnell cparnell@hartlinebarger.com 9/17/2021 6:56:37 PM SENT Jennifer White JWhite@hartlinebarger.com 9/17/2021 6:56:37 PM SENT Jessica Alvarez jalvarez@hartlinebarger.com 9/17/2021 6:56:37 PM SENT David H.Estes destes@hartlinebarger.com 9/17/2021 6:56:37 PM SENT Taylor Accountius taccountius@hartlinebarger.com 9/17/2021 6:56:37 PM SENT Amanda Saputo asaputo@hartlinebarger.com 9/17/2021 6:56:37 PM SENT Faisal Al Alam FAI-Alam@hartlinebarger.com 9/17/2021 6:56:37 PM SENT