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CAUSE NO. 2016-17256
BAKER HUGHES OILFIELD IN THE DISTRICT COURT OF
OPERATIONS, INCORPORATED,
Plaintiff
HARRIS COUNTY, TEXAS
MICHELLE LEE PINA,
Defendant. 189TH JUDICIAL DISTRICT
PLAINTIFF’S MOTION TO STRIKE SUPPLEMENTAL AFFIDAVITS AND,
IN THE ALTERNATIVE, PLAINTIFF’S OBJECTIONS AND REPLY TO
DEFENDANT’S SUPPLEMENT TO DEFENDANT’S SPECIAL APPEARANCE
COMES NOW Plaintiff Baker Hughes Oilfield Operations, Incorporated (“Baker
Hughes” or the “Company”) complaining of Michelle Lee Pina (“Pina”), and files this Motion to
Strike Affidavits, and in the alternative, Reply to Defendant’s Supplement to Defendant’s
Special Appearance. In support thereof, Baker Hughes would respectfully show as follows:
MOTION TO STRIKE AFFIDAVITS
Plaintiff has sought to expand her arguments by untimely submitting new evidence on the
eve of hearing to support the same specious and irrelevant arguments. Texas law soundly
prohibits filing affidavits more than seven days prior to a special appearance hearing; therefore,
Baker Hughes moves to strike Plaintiff’s untimely affidavits.
A. Affidavits Must be Served At Least Seven Days Prior to the Special
Appearance Hearing.
Pina’s affidavits are untimely because they were served less than seven days prior to the
special appearance hearing in this matter. Texas Rule of Civil Procedure 120a clearly states in
relevant part:
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The court shall determine the special appearance on the basis of the
pleadings, any stipulations made by and between the parties, such affidavits and
attachments as may be filed by the parties, the results of discovery processes, and
any oral testimony. The affidavits, if any, shall be served at least seven days
before the hearing, shall be made on personal knowledge, shall set forth specific
facts as would be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify.
Tex. R. Civ. P. 120a(3) (emphasis added); see also Potkovick v. Reg’l Ventures, Inc., 904 S.W.2d
846, 850 (Tex. App.--Eastland 1995).
B. Pina’s Affidavits Are Untimely Because They Were Served Less Than Seven
Days Before the Special Appearance Hearing.
Pina’s affidavits, including the exhibits attached thereto, are untimely because they were
served three days prior to the hearing on her special appearance. Such practice is not permitted
under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 120a(3); Int’l Turbine Serv., Inc.
v. Lovitt, 881 S.W.2d 805, 808 (Tex. App.—Fort Worth 1994, writ denied) (Rule 120a
“mandates strict compliance with the procedure”) (citing cases). Further, Pina has offered no
reason for her late filing. To the extent she labels her submission as a reply to Baker Hughes’s
Brief in Opposition to Plaintiff’s Special Appearance or its Second Amended Petition, she still
must account for her violation of the rules prohibiting the filing of affidavits later than seven
days before the hearing — and plainly has not done so. Baker Hughes’s Brief in Opposition to
Plaintiff’s Special Appearance, which attached several sworn declarations, affidavits, and other
documentary evidence, has been on file since April 22 — nearly three weeks ago. Pina had a
full two weeks to gather and file any controverting affidavits and still be in compliance with the
rules, but she did not do so. Additionally, it should be noted that Pina set the hearing on her
Special Appearance for May 13, over Baker Hughes’s strenuous objection, and then chose to file
Baker Hughes filed and served on Pina a Second Amended Petition on May 6. However, the allegations
contained therein pertaining to personal jurisdiction, as well as the supporting affidavits attached thereto,
are substantively identical to those contained in and attached to Baker Hughes’ April 22 opposition brief.
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her additional affidavits days before the hearing. Accordingly, any argument that Pina was left
with no alternative but to file her recent supporting affidavits beyond the prescribed deadline is
disingenuous and unavailing. The untimeliness of Pina’s affidavits is entirely of her own
contrivance and can only be seen as an attempt to slip in evidence at the last minute strategically
to our detriment and against the rules.
Pina’s supplemental filing includes affidavits from Pina herself; J. Scott Russo, her
attorney; and Thad Freebourn, her once and again coworker. See Def’s. Supp., Exs. A-C. There
is no dispute that Plaintiff’s affidavits constitute new evidence not previously before the court.
In fact, Plaintiff discusses the new affidavits in a section entitled “Additional Evidence.” See
Def’s Supp., p. 5. However, none of the information presented in the affidavits is “new” in the
sense of being previously unavailable to Pina so as to excuse her from complying with the time
requirements of Rule 120a.
For the foregoing reasons, Pina’s Supplemental affidavits, served three days before the
special appearance hearing, should be stricken and disregarded by the court as untimely.
II.
OBJECTIONS AND REPLY TO DEFENDANT’S SUPPLEMENTAL FILING
In the event this Court finds Pina’s newly submitted affidavits and other filings timely or
otherwise properly before the Court, Baker Hughes objects to the Court’s consideration of Pina’s
latest submissions for the following reasons: Pina’s special appearance is defective because it has
not been made by sworn motion, Pina’s own affidavits contain testimony that is flatly
See May 2 and May 6, 2016 email correspondence (Ex. C).
In Potkovick, 904 S.W.2d at 850, the court recognized that courts may exercise discretion under Rule
120a “to enter other orders as are just,” in limited instances where otherwise a movant under Rule 120a
might strategically wait until seven days before the hearing to file its affidavits, thus preventing the
opposition from timely filing controverting affidavits. In this case, however, Pina is the movant, and
Baker Hughes filed its affidavits well ahead of the prescribed deadline, thus allowing Pina sufficient time
to timely file controverting affidavits.
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contradictory with her own sworn admissions on the record, the quoted excerpts from the
California proceeding are misleading and taken out of context, and Pina’s discussion of
compelling California witnesses to attend trial in Texas is irrelevant to the single issue of
personal jurisdiction presently before this Court. Finally, by way of reply, Pina’s submissions as
a whole fail to negate all bases of personal jurisdiction and her conclusory assertions are
thoroughly refuted by the evidence.
A. Pina’s Special Appearance is Defective Because Pina’s Own Supporting
Affidavits Do Not Verify Her Special Appearance Pleading.
Rule 120a states that a special appearance “shall be made by sworn motion.” Pina’s
special appearance is does not comport with Rule 120a because it is neither verified nor do her
accompanying affidavits speak to the veracity of her jurisdictional allegations asserted therein.
Rather, her supporting affidavits state only that the facts in those affidavits are true and correct.
See Def’s Sp. App., Ex. A, ¶ 1; Def’s Supp., Ex. A, ¶ 1. Texas district and appellate courts have
repeatedly held that denial of a special appearance on this basis is proper. See, e.g., Prosperous
Mar. Corp. v. Farwah, 189 S.W.3d 389, 393 (Tex. App.—Beaumont 2006) (holding that where
affidavits attached to special appearance pleadings do not state that facts set out in pleadings are
true and correct, and state only that facts in affidavits are true and correct, affidavits do not verify
special appearance); Casino Magic Corp. v. King, 43 S.W.3d 14, 18 (Tex. App.—Dallas 2001)
(same). Numerous other decisions have emphasized that Rule 120a mandates “strict
compliance” with procedure. See, e.g., Int’l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 808
(Tex. App.—Fort Worth 1994, writ denied) (“‘The special appearance shall be made by sworn
motion.’ The rule mandates strict compliance with the procedure.”) (internal citations omitted);
Slater v. Metro Nissan of Montclair, 801 S.W.2d 253, 254 (Tex. App.—Fort Worth 1990, writ
denied). Accordingly, Pina’s Special Appearance is defective.
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B. Pina’s Own Supporting Affidavits Contain Broad and Conclusory
Statements Contradictory with Her Sworn Deposition Testimony.
Pina’s supporting affidavits are littered with factual inaccuracies and misrepresentations.
Most glaringly false, and inescapable of reproach, are her conclusory and unambiguous
assertions in Paragraph 15 of her Supplemental Affidavit that, “I have no connection to anything
in Texas. I don’t know anyone in Texas. I do not do and have not done any business in Texas.”
Def’s Supp., Ex. A, ¶ 15. As practically every piece of evidence — whether affidavit,
declaration, business record, email message, phone record, or other — Baker Hughes has
submitted confirms, Pina reached out to individuals located in Texas on multiple occasions for
business purposes connected directly to the litigation, and even traveled to Texas on multiple
occasions and at her own request. To claim now she does not know anyone in Texas and has no
connection to Texas is disingenuous at best and untruthful at worst.
Pina’s assertions could arguably be considered generalizations, exaggerations, or
misstatements based on poor recollection — except for the fact that Pina has already admitted
their falsity on the record, under oath. During Pina’s April 14 deposition, counsel for Baker
Hughes reviewed with Pina several communications Pina had with Baker Hughes employees
located in Texas and Pina’s visits to Texas for meetings. He then asked Pina pointedly whether
the statement in Paragraph 10 of her original supporting affidavit filed with her Special
Appearance, “As far as I can recall, I never communicated with anyone in Texas,” was accurate.
Def’s Depo., p. 219. Pina responded in the negative, then stated that she was unaware where the
individuals she conversed with were located until her deposition that morning. Id. at pp. 219-20.
In this day and age of email signatures with business addresses and readily displayed telephone
A complete copy of the deposition transcript was previously filed as Exhibit H to Baker Hughes’s
opposition brief.
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caller ID showing a caller or recipient’s area code (not to mention the reasonable expectation that
an employee would be generally aware of her employer’s corporate structure and organization),
Pina’s claim that she was completely ignorant of any of this basic information prior to her
deposition is dubious.
Repeating a factual assertion in a sworn affidavit and submitting that affidavit to the
Court after discovering and/or admitting that assertion’s inaccuracy is a serious fault which
cannot be overlooked. In this case, Pina did not merely repeat the assertions made in Paragraph
10 of her original supporting affidavit. To the contrary, she removed the phrase “[a]s far as I can
recall,” which preface created some room for mistaken or uninformed recollection. Def’s Supp.,
Ex. A, ¶ 15. Making this significant change implies a conscious decision to state with even more
certainty that which has been demonstrated and admitted by Pina herself elsewhere under oath to
be untrue, and which false assertion goes directly to the heart of Pina’s argument contesting
personal jurisdiction.
C. The Quoted Excerpts from the California Proceeding Contained in Pina’s
Supplemental Filing are Misleading and Taken Out of Context.
The statements of Judge Crandall cited in Defendant’s Opposition are misleading, taken
out of context, and inapposite and therefore should not be given significant consideration in this
matter, and especially for purposes of resolving the immediate matter of Pina’s Special
Appearance. As an initial matter, Judge Crandall’s comments addressed a motion to dismiss on
grounds of forum non conveniens, which involves a completely different analysis than a
challenge to the court’s personal jurisdiction over a defendant. See Milligan Supp. Aff. (Ex. B)
Pina additionally mischaracterizes her illusory offer of making her personal computer, email account,
and smart phone available to Baker Hughes for inspection. To date, Pina refuses to provide access to her
electronic devices or accounts that contain or previously contained Baker Hughes’ property, see Milligan
Supp. Aff. (Ex. B) ¶¶ 8-13 and Exs. 1-3 attached thereto.
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¶¶ 5-6. Personal jurisdiction under Texas law turns on whether a nonresident has minimum
contacts with Texas and whether the exercise of jurisdiction would offend the traditional notions
of fair play and substantial justice. BMC Software Belg., N.V. v. Marchland, 83 S.W.3d 793
(Tex. 2002). Convenience to witnesses called to provide testimony or otherwise appear before
the court is of no significance in determining personal jurisdiction over a defendant and therefore
is not a relevant consideration to the issue presently before this Court.
Additionally, Judge Crandall’s statements regarding the suitability of the Texas forum
and the purported “basic presumption [to] keep the California case...” are inapposite because the
court applied the wrong burden of proof and forum non conveniens analysis. Under the forum
non conveniens analysis for mandatory forum selection clauses (such as the one contained in
Pina’s employment agreement) under California law, the suitability of the forum is not
considered and Plaintiff instead bore a heavy burden of showing enforcement of the clause is
unreasonable. Further, Judge Crandall’s statements regarding unconscionability and the
purported expenses are inapposite for purposes of analyzing enforcement of mandatory forum
selection clauses. See Smith, Valentino & Smith, Inc. v. Superior Court, 17 Cal. 3d 491, 496, 551
P.2d 1206 (1976) (“Mere inconvenience or additional expense is not the test of unreasonableness
since it may be assumed that the plaintiff received under the contract consideration for these
To the extent any inconvenience to witnesses is considered a burden on Pina, this is insufficient to deny
personal jurisdiction. As explained in Baker Hughes’s opposition brief, the same travel-related burden
Pina would purportedly experience can be said of all nonresidents. Fjell Tech. Grp. v. Unitech Int’l, Inc.,
No. 14-14-00255-CV, 2015 WL 457805, at *9 (Tex. App.—Houston [14th Dist.] 2015). Indeed, “[i]n
multi-state disputes, someone will always be inconvenienced, and this argument is frequently rejected as a
basis for denying personal jurisdiction.” Tabasso v. Bearcom Group, Inc., 407 S.W.3d 822, 282 (Tex.
App. —Dallas 2013, no pet.). Texas courts have also observed that “[d]istance alone cannot ordinarily
defeat jurisdiction.” Moncrief Oil Int’l Inc. v. OAO Gazprom Exp., LLC, 414 S.W.3d 142, 155 (Tex.
2013); see also Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231
(Tex. 1991) (citing: “[M]odern transportation and communication have made it much less burdensome for
a party sued to defend himself in a State where he engages in economic activity,” (quoting Burger King
Corp., 471 U.S. at 474)).
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things.”). Baker Hughes has accordingly filed a petition for a “writ of mandate” (mandamus)
regarding the misinterpretation of the forum selection provision.
Additionally significant, but conveniently omitted from Pina’s supplemental filing, is the
fact that Judge Crandall stated that the California court would abide by this Court’s ruling on
Baker Hughes’s pending Motion to Compel Arbitration in Texas, which statement is inconsistent
with any supposed conclusion that the Texas court lacks personal jurisdiction over Pina. See
Milligan Supp. Aff. (Ex. B) ¶ 7. To the extent a prospective arbitration’s venue has been
contested by either party, this is an issue for the arbitrator to decide at the appropriate juncture.
D. Pina’s Discussion of Compelling California Witnesses to Attend Trial in
Texas is Irrelevant to the Single Issue of Personal Jurisdiction Presently
Before this Court.
Pina’s supplemental filing, especially her supplemental supporting affidavit, goes to great
lengths to list all the 19 California-based witnesses she claims are “necessary” to her defense at
arbitration or trial and which would be inconvenienced if compelled to travel to Texas. Def’s
Supp., Ex. A, ¶ 7. Notably, however, she does not explain why each witness is essential to her
defense or why each witness must physically appear in court or in arbitration. Surely Pina does
not require seven witnesses from Aera to testify in court as to her character and work ethic. To
the extent Pina requires Bob Dempsey and Joel Frazier to appear in court, Baker Hughes is
amenable to covering their travel expenses, as both individuals would be called to testify by the
Company anyway. Pina also describes in detail the witnesses’ proximity to the Los Angeles
airport, the estimated cost of flying them to Houston and lodging there (including at the Four
To the degree the Court considers Pina’s witness list in its analysis, it must also consider the location of
the several witnesses and evidence to be offered by Baker Hughes, which are nearly all located in and
around Harris County, Texas. Dempsey Supp. Decl. (Ex. A) ¶ 21.
Pina evidently is able to secure supporting affidavits, and Baker Hughes could be amenable to making
joint stipulations of fact so as to eliminate or at least reduce the need for such testimonial evidence.
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Seasons and other five-star hotels downtown). Pina claims, “I can’t afford such an expense,” as
if to imply that she is responsible for paying all of her fees and costs associated with this lawsuit.
Def’s Supp., Ex. A, ¶ 23. Whether that is indeed the case will have to be determined through
additional discovery, but in any event this is all beside the point — which is that the
inconvenience of witnesses asked or compelled to provide testimony is distraction from the
central issues involved in the immediate task before the Court of determining whether it has
personal jurisdiction over Pina.
E. Pina Still Has Not Satisfied Her Burden of Disproving Jurisdiction By
Negating All Alleged Grounds for Personal Jurisdiction.
Even taking into consideration Pina’s superfluous Supplement and untimely filed
supplemental affidavits, Pina has stillfailed to satisfy her burden of disproving jurisdiction by
negating all alleged grounds for personal jurisdiction. BMC, 83 S.W.3d at 793. Baker Hughes’s
submitted evidence firmly establishes that Pina maintained minimum contacts with Texas giving
rise to personal jurisdiction there, that she purposefully availed herself of benefits available
under Texas law such that she could reasonably anticipate being brought into court in the state,
that the Court’s exercise of jurisdiction over her would not offend traditional notions of fair play
and substantial justice and would be consistent with the constitutional requirements of due
process.
CONCLUSION
For the reasons set forth herein, Plaintiff Baker Hughes Oilfield Operations, Inc.
respectfully requests that Plaintiff’s Motion to Strike Defendant’s Supplemental Affidavits be
GRANTED, that Plaintiff’s Objections to Defendant’s Supplement to Defendant’s Special
See n. 6, supra.
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Appearance be SUSTAINED, and for all further relief to which it is legally and equitably
entitled.
DATED: May 12, 2016 Respectfully submitted,
SEYFARTH SHAW LLP
By: /s/ Jesse M. Coleman
Jesse M. Coleman
Bar No. 24072044
jmcoleman@seyfarth.com
Austin J. Brayley
Bar No. 24094556
abrayley@seyfarth.com
Linda C. Schoonmaker
Bar No. 17806300
lschoonmaker@seyfarth.com;
700 Milam Street, Suite 1400
Houston, Texas 77002-2812
Telephone: (713) 225-2300
Facsimile: (713) 225-2340
Robert B. Milligan (Pro Hac Vice)
California Bar No. 217348
rmilligan@seyfarth.com
2029 Century Park East, Suite 3500
Los Angeles, California 90067-3063
Telephone: (310) 277-7200
Facsimile: (310) 201-5219
Attorneys for Plaintiff,
Baker Hughes Oilfield Operations, Inc.
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CERTIFICATE OF SERVICE
I hereby certify that pursuant to Rules 21 and 21a of the Texas Rules of Civil Procedure
on May 12, 2016, a true and correct copy of the foregoing instrument was served upon:
Grant P. Harpold
Vincent Serafino Geary Waddell
Jenevein, P.C.
815 Walker, Suite 350
Houston, Texas 77002
GHarpold@vinlaw.com
Counsel for Defendant
J. Scott Russo
Russo & Duckworth, LLP
9090 Irvine Center Drive, 2nd Floor
Irving California 92618
srusso@russoandduckworth.com
Counsel for Defendant
/s/ Austin J. Brayley
Austin J. Brayley
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Preview
CAUSE NO. 2016-17256 BAKER HUGHES OILFIELD IN THE DISTRICT COURT OF OPERATIONS, INCORPORATED, Plaintiff HARRIS COUNTY, TEXAS MICHELLE LEE PINA, Defendant. 189TH JUDICIAL DISTRICT PLAINTIFF’S MOTION TO STRIKE SUPPLEMENTAL AFFIDAVITS AND, IN THE ALTERNATIVE, PLAINTIFF’S OBJECTIONS AND REPLY TO DEFENDANT’S SUPPLEMENT TO DEFENDANT’S SPECIAL APPEARANCE COMES NOW Plaintiff Baker Hughes Oilfield Operations, Incorporated (“Baker Hughes” or the “Company”) complaining of Michelle Lee Pina (“Pina”), and files this Motion to Strike Affidavits, and in the alternative, Reply to Defendant’s Supplement to Defendant’s Special Appearance. In support thereof, Baker Hughes would respectfully show as follows: MOTION TO STRIKE AFFIDAVITS Plaintiff has sought to expand her arguments by untimely submitting new evidence on the eve of hearing to support the same specious and irrelevant arguments. Texas law soundly prohibits filing affidavits more than seven days prior to a special appearance hearing; therefore, Baker Hughes moves to strike Plaintiff’s untimely affidavits. A. Affidavits Must be Served At Least Seven Days Prior to the Special Appearance Hearing. Pina’s affidavits are untimely because they were served less than seven days prior to the special appearance hearing in this matter. Texas Rule of Civil Procedure 120a clearly states in relevant part: 26940101v.2 The court shall determine the special appearance on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony. The affidavits, if any, shall be served at least seven days before the hearing, shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify. Tex. R. Civ. P. 120a(3) (emphasis added); see also Potkovick v. Reg’l Ventures, Inc., 904 S.W.2d 846, 850 (Tex. App.--Eastland 1995). B. Pina’s Affidavits Are Untimely Because They Were Served Less Than Seven Days Before the Special Appearance Hearing. Pina’s affidavits, including the exhibits attached thereto, are untimely because they were served three days prior to the hearing on her special appearance. Such practice is not permitted under the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 120a(3); Int’l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 808 (Tex. App.—Fort Worth 1994, writ denied) (Rule 120a “mandates strict compliance with the procedure”) (citing cases). Further, Pina has offered no reason for her late filing. To the extent she labels her submission as a reply to Baker Hughes’s Brief in Opposition to Plaintiff’s Special Appearance or its Second Amended Petition, she still must account for her violation of the rules prohibiting the filing of affidavits later than seven days before the hearing — and plainly has not done so. Baker Hughes’s Brief in Opposition to Plaintiff’s Special Appearance, which attached several sworn declarations, affidavits, and other documentary evidence, has been on file since April 22 — nearly three weeks ago. Pina had a full two weeks to gather and file any controverting affidavits and still be in compliance with the rules, but she did not do so. Additionally, it should be noted that Pina set the hearing on her Special Appearance for May 13, over Baker Hughes’s strenuous objection, and then chose to file Baker Hughes filed and served on Pina a Second Amended Petition on May 6. However, the allegations contained therein pertaining to personal jurisdiction, as well as the supporting affidavits attached thereto, are substantively identical to those contained in and attached to Baker Hughes’ April 22 opposition brief. 2 26940101v.2 her additional affidavits days before the hearing. Accordingly, any argument that Pina was left with no alternative but to file her recent supporting affidavits beyond the prescribed deadline is disingenuous and unavailing. The untimeliness of Pina’s affidavits is entirely of her own contrivance and can only be seen as an attempt to slip in evidence at the last minute strategically to our detriment and against the rules. Pina’s supplemental filing includes affidavits from Pina herself; J. Scott Russo, her attorney; and Thad Freebourn, her once and again coworker. See Def’s. Supp., Exs. A-C. There is no dispute that Plaintiff’s affidavits constitute new evidence not previously before the court. In fact, Plaintiff discusses the new affidavits in a section entitled “Additional Evidence.” See Def’s Supp., p. 5. However, none of the information presented in the affidavits is “new” in the sense of being previously unavailable to Pina so as to excuse her from complying with the time requirements of Rule 120a. For the foregoing reasons, Pina’s Supplemental affidavits, served three days before the special appearance hearing, should be stricken and disregarded by the court as untimely. II. OBJECTIONS AND REPLY TO DEFENDANT’S SUPPLEMENTAL FILING In the event this Court finds Pina’s newly submitted affidavits and other filings timely or otherwise properly before the Court, Baker Hughes objects to the Court’s consideration of Pina’s latest submissions for the following reasons: Pina’s special appearance is defective because it has not been made by sworn motion, Pina’s own affidavits contain testimony that is flatly See May 2 and May 6, 2016 email correspondence (Ex. C). In Potkovick, 904 S.W.2d at 850, the court recognized that courts may exercise discretion under Rule 120a “to enter other orders as are just,” in limited instances where otherwise a movant under Rule 120a might strategically wait until seven days before the hearing to file its affidavits, thus preventing the opposition from timely filing controverting affidavits. In this case, however, Pina is the movant, and Baker Hughes filed its affidavits well ahead of the prescribed deadline, thus allowing Pina sufficient time to timely file controverting affidavits. 3 26940101v.2 contradictory with her own sworn admissions on the record, the quoted excerpts from the California proceeding are misleading and taken out of context, and Pina’s discussion of compelling California witnesses to attend trial in Texas is irrelevant to the single issue of personal jurisdiction presently before this Court. Finally, by way of reply, Pina’s submissions as a whole fail to negate all bases of personal jurisdiction and her conclusory assertions are thoroughly refuted by the evidence. A. Pina’s Special Appearance is Defective Because Pina’s Own Supporting Affidavits Do Not Verify Her Special Appearance Pleading. Rule 120a states that a special appearance “shall be made by sworn motion.” Pina’s special appearance is does not comport with Rule 120a because it is neither verified nor do her accompanying affidavits speak to the veracity of her jurisdictional allegations asserted therein. Rather, her supporting affidavits state only that the facts in those affidavits are true and correct. See Def’s Sp. App., Ex. A, ¶ 1; Def’s Supp., Ex. A, ¶ 1. Texas district and appellate courts have repeatedly held that denial of a special appearance on this basis is proper. See, e.g., Prosperous Mar. Corp. v. Farwah, 189 S.W.3d 389, 393 (Tex. App.—Beaumont 2006) (holding that where affidavits attached to special appearance pleadings do not state that facts set out in pleadings are true and correct, and state only that facts in affidavits are true and correct, affidavits do not verify special appearance); Casino Magic Corp. v. King, 43 S.W.3d 14, 18 (Tex. App.—Dallas 2001) (same). Numerous other decisions have emphasized that Rule 120a mandates “strict compliance” with procedure. See, e.g., Int’l Turbine Serv., Inc. v. Lovitt, 881 S.W.2d 805, 808 (Tex. App.—Fort Worth 1994, writ denied) (“‘The special appearance shall be made by sworn motion.’ The rule mandates strict compliance with the procedure.”) (internal citations omitted); Slater v. Metro Nissan of Montclair, 801 S.W.2d 253, 254 (Tex. App.—Fort Worth 1990, writ denied). Accordingly, Pina’s Special Appearance is defective. 4 26940101v.2 B. Pina’s Own Supporting Affidavits Contain Broad and Conclusory Statements Contradictory with Her Sworn Deposition Testimony. Pina’s supporting affidavits are littered with factual inaccuracies and misrepresentations. Most glaringly false, and inescapable of reproach, are her conclusory and unambiguous assertions in Paragraph 15 of her Supplemental Affidavit that, “I have no connection to anything in Texas. I don’t know anyone in Texas. I do not do and have not done any business in Texas.” Def’s Supp., Ex. A, ¶ 15. As practically every piece of evidence — whether affidavit, declaration, business record, email message, phone record, or other — Baker Hughes has submitted confirms, Pina reached out to individuals located in Texas on multiple occasions for business purposes connected directly to the litigation, and even traveled to Texas on multiple occasions and at her own request. To claim now she does not know anyone in Texas and has no connection to Texas is disingenuous at best and untruthful at worst. Pina’s assertions could arguably be considered generalizations, exaggerations, or misstatements based on poor recollection — except for the fact that Pina has already admitted their falsity on the record, under oath. During Pina’s April 14 deposition, counsel for Baker Hughes reviewed with Pina several communications Pina had with Baker Hughes employees located in Texas and Pina’s visits to Texas for meetings. He then asked Pina pointedly whether the statement in Paragraph 10 of her original supporting affidavit filed with her Special Appearance, “As far as I can recall, I never communicated with anyone in Texas,” was accurate. Def’s Depo., p. 219. Pina responded in the negative, then stated that she was unaware where the individuals she conversed with were located until her deposition that morning. Id. at pp. 219-20. In this day and age of email signatures with business addresses and readily displayed telephone A complete copy of the deposition transcript was previously filed as Exhibit H to Baker Hughes’s opposition brief. 5 26940101v.2 caller ID showing a caller or recipient’s area code (not to mention the reasonable expectation that an employee would be generally aware of her employer’s corporate structure and organization), Pina’s claim that she was completely ignorant of any of this basic information prior to her deposition is dubious. Repeating a factual assertion in a sworn affidavit and submitting that affidavit to the Court after discovering and/or admitting that assertion’s inaccuracy is a serious fault which cannot be overlooked. In this case, Pina did not merely repeat the assertions made in Paragraph 10 of her original supporting affidavit. To the contrary, she removed the phrase “[a]s far as I can recall,” which preface created some room for mistaken or uninformed recollection. Def’s Supp., Ex. A, ¶ 15. Making this significant change implies a conscious decision to state with even more certainty that which has been demonstrated and admitted by Pina herself elsewhere under oath to be untrue, and which false assertion goes directly to the heart of Pina’s argument contesting personal jurisdiction. C. The Quoted Excerpts from the California Proceeding Contained in Pina’s Supplemental Filing are Misleading and Taken Out of Context. The statements of Judge Crandall cited in Defendant’s Opposition are misleading, taken out of context, and inapposite and therefore should not be given significant consideration in this matter, and especially for purposes of resolving the immediate matter of Pina’s Special Appearance. As an initial matter, Judge Crandall’s comments addressed a motion to dismiss on grounds of forum non conveniens, which involves a completely different analysis than a challenge to the court’s personal jurisdiction over a defendant. See Milligan Supp. Aff. (Ex. B) Pina additionally mischaracterizes her illusory offer of making her personal computer, email account, and smart phone available to Baker Hughes for inspection. To date, Pina refuses to provide access to her electronic devices or accounts that contain or previously contained Baker Hughes’ property, see Milligan Supp. Aff. (Ex. B) ¶¶ 8-13 and Exs. 1-3 attached thereto. 6 26940101v.2 ¶¶ 5-6. Personal jurisdiction under Texas law turns on whether a nonresident has minimum contacts with Texas and whether the exercise of jurisdiction would offend the traditional notions of fair play and substantial justice. BMC Software Belg., N.V. v. Marchland, 83 S.W.3d 793 (Tex. 2002). Convenience to witnesses called to provide testimony or otherwise appear before the court is of no significance in determining personal jurisdiction over a defendant and therefore is not a relevant consideration to the issue presently before this Court. Additionally, Judge Crandall’s statements regarding the suitability of the Texas forum and the purported “basic presumption [to] keep the California case...” are inapposite because the court applied the wrong burden of proof and forum non conveniens analysis. Under the forum non conveniens analysis for mandatory forum selection clauses (such as the one contained in Pina’s employment agreement) under California law, the suitability of the forum is not considered and Plaintiff instead bore a heavy burden of showing enforcement of the clause is unreasonable. Further, Judge Crandall’s statements regarding unconscionability and the purported expenses are inapposite for purposes of analyzing enforcement of mandatory forum selection clauses. See Smith, Valentino & Smith, Inc. v. Superior Court, 17 Cal. 3d 491, 496, 551 P.2d 1206 (1976) (“Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these To the extent any inconvenience to witnesses is considered a burden on Pina, this is insufficient to deny personal jurisdiction. As explained in Baker Hughes’s opposition brief, the same travel-related burden Pina would purportedly experience can be said of all nonresidents. Fjell Tech. Grp. v. Unitech Int’l, Inc., No. 14-14-00255-CV, 2015 WL 457805, at *9 (Tex. App.—Houston [14th Dist.] 2015). Indeed, “[i]n multi-state disputes, someone will always be inconvenienced, and this argument is frequently rejected as a basis for denying personal jurisdiction.” Tabasso v. Bearcom Group, Inc., 407 S.W.3d 822, 282 (Tex. App. —Dallas 2013, no pet.). Texas courts have also observed that “[d]istance alone cannot ordinarily defeat jurisdiction.” Moncrief Oil Int’l Inc. v. OAO Gazprom Exp., LLC, 414 S.W.3d 142, 155 (Tex. 2013); see also Guardian Royal Exch. Assur., Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 231 (Tex. 1991) (citing: “[M]odern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity,” (quoting Burger King Corp., 471 U.S. at 474)). 7 26940101v.2 things.”). Baker Hughes has accordingly filed a petition for a “writ of mandate” (mandamus) regarding the misinterpretation of the forum selection provision. Additionally significant, but conveniently omitted from Pina’s supplemental filing, is the fact that Judge Crandall stated that the California court would abide by this Court’s ruling on Baker Hughes’s pending Motion to Compel Arbitration in Texas, which statement is inconsistent with any supposed conclusion that the Texas court lacks personal jurisdiction over Pina. See Milligan Supp. Aff. (Ex. B) ¶ 7. To the extent a prospective arbitration’s venue has been contested by either party, this is an issue for the arbitrator to decide at the appropriate juncture. D. Pina’s Discussion of Compelling California Witnesses to Attend Trial in Texas is Irrelevant to the Single Issue of Personal Jurisdiction Presently Before this Court. Pina’s supplemental filing, especially her supplemental supporting affidavit, goes to great lengths to list all the 19 California-based witnesses she claims are “necessary” to her defense at arbitration or trial and which would be inconvenienced if compelled to travel to Texas. Def’s Supp., Ex. A, ¶ 7. Notably, however, she does not explain why each witness is essential to her defense or why each witness must physically appear in court or in arbitration. Surely Pina does not require seven witnesses from Aera to testify in court as to her character and work ethic. To the extent Pina requires Bob Dempsey and Joel Frazier to appear in court, Baker Hughes is amenable to covering their travel expenses, as both individuals would be called to testify by the Company anyway. Pina also describes in detail the witnesses’ proximity to the Los Angeles airport, the estimated cost of flying them to Houston and lodging there (including at the Four To the degree the Court considers Pina’s witness list in its analysis, it must also consider the location of the several witnesses and evidence to be offered by Baker Hughes, which are nearly all located in and around Harris County, Texas. Dempsey Supp. Decl. (Ex. A) ¶ 21. Pina evidently is able to secure supporting affidavits, and Baker Hughes could be amenable to making joint stipulations of fact so as to eliminate or at least reduce the need for such testimonial evidence. 8 26940101v.2 Seasons and other five-star hotels downtown). Pina claims, “I can’t afford such an expense,” as if to imply that she is responsible for paying all of her fees and costs associated with this lawsuit. Def’s Supp., Ex. A, ¶ 23. Whether that is indeed the case will have to be determined through additional discovery, but in any event this is all beside the point — which is that the inconvenience of witnesses asked or compelled to provide testimony is distraction from the central issues involved in the immediate task before the Court of determining whether it has personal jurisdiction over Pina. E. Pina Still Has Not Satisfied Her Burden of Disproving Jurisdiction By Negating All Alleged Grounds for Personal Jurisdiction. Even taking into consideration Pina’s superfluous Supplement and untimely filed supplemental affidavits, Pina has stillfailed to satisfy her burden of disproving jurisdiction by negating all alleged grounds for personal jurisdiction. BMC, 83 S.W.3d at 793. Baker Hughes’s submitted evidence firmly establishes that Pina maintained minimum contacts with Texas giving rise to personal jurisdiction there, that she purposefully availed herself of benefits available under Texas law such that she could reasonably anticipate being brought into court in the state, that the Court’s exercise of jurisdiction over her would not offend traditional notions of fair play and substantial justice and would be consistent with the constitutional requirements of due process. CONCLUSION For the reasons set forth herein, Plaintiff Baker Hughes Oilfield Operations, Inc. respectfully requests that Plaintiff’s Motion to Strike Defendant’s Supplemental Affidavits be GRANTED, that Plaintiff’s Objections to Defendant’s Supplement to Defendant’s Special See n. 6, supra. 9 26940101v.2 Appearance be SUSTAINED, and for all further relief to which it is legally and equitably entitled. DATED: May 12, 2016 Respectfully submitted, SEYFARTH SHAW LLP By: /s/ Jesse M. Coleman Jesse M. Coleman Bar No. 24072044 jmcoleman@seyfarth.com Austin J. Brayley Bar No. 24094556 abrayley@seyfarth.com Linda C. Schoonmaker Bar No. 17806300 lschoonmaker@seyfarth.com; 700 Milam Street, Suite 1400 Houston, Texas 77002-2812 Telephone: (713) 225-2300 Facsimile: (713) 225-2340 Robert B. Milligan (Pro Hac Vice) California Bar No. 217348 rmilligan@seyfarth.com 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Plaintiff, Baker Hughes Oilfield Operations, Inc. 10 26940101v.2 CERTIFICATE OF SERVICE I hereby certify that pursuant to Rules 21 and 21a of the Texas Rules of Civil Procedure on May 12, 2016, a true and correct copy of the foregoing instrument was served upon: Grant P. Harpold Vincent Serafino Geary Waddell Jenevein, P.C. 815 Walker, Suite 350 Houston, Texas 77002 GHarpold@vinlaw.com Counsel for Defendant J. Scott Russo Russo & Duckworth, LLP 9090 Irvine Center Drive, 2nd Floor Irving California 92618 srusso@russoandduckworth.com Counsel for Defendant /s/ Austin J. Brayley Austin J. Brayley 11 26940101v.2