Real Party in Interest’s Response to Relator’s Petition for Mandamus

Merema v. ENSCO Offshore

Description: This case was a wrongful death case involving the death of an offshore oil rig worker in the coastal waters off of Singapore while onboard an Australian owned and registered oil rig.  The defendants sought dismissal on the basis of forum non conveniens.  The trial court denied Defendants’ motion and they filed a petition for mandamus.  The plaintiff argued that dismissal was not appropriate because the defendants had their principal places of business in Texas and numerous witnesses were located in Texas.  The court of appeals agreed and denied the mandamus petition. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

No. 05-09-00083-CV
IN THE COURT OF APPEALS FOR THE FIFTH
JUDICIAL DISTRICT OF TEXAS AT DALLAS
IN RE ENSCO OFFSHORE INTERNATIONAL COMPANY, ENSCO INTERNATIONAL INCORPORATED AND ENSCO OFFSHORE COMPANY, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST OF CHILES OFFSHORE, INC.,Relators Original Proceeding RegardingCause No. DC-07-03753

In the 191st Judicial District Court of Dallas County, Texas

REAL PARTY IN INTEREST MARGARET MEREMA’S

RESPONSE TO RELATORS’ PETITION FOR WRIT OF MANDAMUS

 

Real Party in Interest Margaret Merema (“Merema”) submits this Response to Relators’ Petition for Writ of Mandamus and would respectfully show the Court as follow

INTRODUCTION

Paul Aaron Merema worked on behalf of one or more Relators (collectively referred to as “Relators”) on an offshore oil rig called the ENSCO 104.  That rig was owned and operated by one or more Relators.  On April 23, 2005, while working for Relators, Merema was killed when a hydraulic valve exploded, sheared off a stainless steel cabinet door and caused the door to fall on Merema, who was suspended in a riding belt.

Real Party in Interest Margaret Merema (“Merema”) filed suit against Relators on April 20, 2007.  All of Relators are United States corporations.  ENSCO Offshore International Company, ENSCO Offshore Company and Chiles Offshore, Inc. all have their principal places of business in Dallas, Texas.  All Relators are licensed to do business in Texas and all Relators maintain a registered agent in Dallas, Texas. Several of the witnesses in this case are located in Texas.  And the negligent acts and omissions of Relators began in, and emanated from, Dallas, Texas.  Under these facts, Respondent properly denied Relators’ Motion to Dismiss for Forum non Conveniens (the “Motion”).  Their Petition should be denied as well.

STATEMENT OF FACTS

According to Rule 52.3(g) of the Texas Rules of Appellate Procedure, the Statement of Facts is to “state concisely and without argument the facts pertinent to the issues or points presented” and is to be “supported by references to the appendix or record.”  While Merema generally agrees with the factual statements contained in Relators’ Statement of Facts, she disagrees with, and objects to, the numerous argumentative, conclusory statements improperly contained therein.  Specifically, Merema objects to and denies the following portions of Relators’ Statement of Facts:

  1. All of Section B on pp. 5-6 of the Petition, which is actually nothing more than a series of arguments containing very few facts.
  2. The statement on p. 5 of the Petition that this lawsuit “lacks any meaningful connection to the “State of Texas.”  In actuality, there is a strong connection to Texas given the fact that all Relators are located in Texas and the fact that a post-incident report raises the possibility that decisions made by Relators in Texas caused or contributed to the incident.
  3. The statement on p. 5 of the Petition that “TMS is an indispensible party” to this litigation, a statement made without any factual or legal support.  Merema denies that TMS is an indispensible party herein.
  4. The statement on p. 5 of the Petition that “TMS is not subject to the jurisdiction of the trial court,” which is a legal conclusion made without any legal authority.
  5. The statement on p. 5 of the Petition that “a forum in Western Australia is appropriate so that all claims may be adjudicated in a single lawsuit,” which is an improper argumentative and conclusory statement.
  6. The statement on p. 5 of the Petition that “judicial comity and efficiency should dictate that they would be decided in the same proceeding,” which is argumentative.
  7. The statement on p. 6 of the Petition that “the Texas Supreme Court has confirmed the location of a defendant’s corporate headquarters within the state is an insufficient basis” for denying forum non conveniens dismissal, a statement which is a legal conclusion that does not belong in a Statement of Facts.

Merema requests that the foregoing statements be stricken from the Petition as being made in violation of Rule 52.3(g).

SUMMARY OF THE ARGUMENT

There are six factors that Courts traditionally apply when assessing a forum non conveniens motion.  Factors one, two and four relate to the availability of an adequate alternative forum.  While Merema agrees that adequate alternate forums exist, Relators have failed to identify a single alternate forum and have instead attempted to amalgamate the forums of Australia and Singapore into one for purposes of their analysis.  This analytical framework obscures the myriad problems with trying this case in either Australia or Singapore given the fact that evidence and witnesses in the this case are scattered throughout these two countries as well as other countries such as the United States, India and Malaysia.  Simply put, there is no single alternate forum that provides a more appropriate venue for this dispute.  Relators’ Petition should therefore be denied.

The other factors considered in a forum non conveniens analysis point to maintenance of this lawsuit against Texas Defendants in Texas.  As set forth below, both the private and public interest support jurisdiction in Texas.  Much of the physical evidence is in the possession or control of Relators.  Many of the witnesses are employed by Relators.  Other witnesses are scattered across the globe, and the same methods of compulsory process available in Australia and Singapore through the Hague Convention are available in Texas as well.  As for the identification of a forum that is “at home with the law,” Relators’ fail to identify which foreign law they claim applies to this dispute: the law of Singapore, where the accident occurred, or the law of Australia, the home forum of Decedent’s employer, TMS.  They argue, however, that if this case is litigated in Texas, DOHSA, a uniform body of law specifically applicable to seaman injured or killed on the high seas, will apply.  Thus, uniformity and predictability of the law favors maintenance of this case in Texas.  Finally, Relators’ analysis ignores evidence that decisions made by Relators in Texas may have caused or contributed to Decedent’s death.  For the foregoing reasons, the Motion was properly denied and this Court should deny Relators’ Petition for Writ of Mandamus.

ARGUMENT AND AUTHORITIES

I.          Forum non conveniens factors.

Relators assert that this case should be dismissed under the doctrine of forum non conveniens.  But under Texas law, “[a] plaintiff’s choice of forum is not disturbed unless the balance of factors strongly favor the defendant.”  Keller Dev., Inc. v. One Jackson Pl., Ltd., 890 S.W.2d 502, 505 (Tex. App.–El Paso 1994, no writ).  As the Dallas Court of Appeals has stated:

The doctrine of forum non conveniens should be exercised only in those cases where the balance of factors so strongly favors the defendant that, in the interest of justice, the case should be tried in another forum. The burden of proving that the factors are in his favor rests with the defendant. The trial court must consider not only the negatives of the plaintiff’s forum of choice, but should also consider the negatives of the alternative forum. The trial court also may not dismiss simply because it determines that another forum is superior to that chosen by the plaintiff.

Sarieddine v. Moussa, 820 S.W.2d 837, 844 (Tex. App.–Dallas 1991, writ denied).  “[A]lthough a foreign plaintiff’s choice of forum is entitled to less deference than that of a resident plaintiff, it is not entitled to no deference.”  McClellan v. American Eurocopter, 26 F. Supp.2d 947, 951 (S.D. Tex. 1998).

In Texas, a forum non conveniens analysis is governed by statute.  Section 71.051 of the Texas Civil Practice and Remedies Code states:

(b) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action. In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:

(1)   an alternate forum exists in which the claim or action may be tried;

(2)   the alternate forum provides an adequate remedy

(3)         maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;

(4)         the alternate forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff’s claim;

(5)         the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and

(6)         the stay or dismissal would not result in unreasonable duplication or proliferation of litigation.

Tex. Civ. Prac. & Rem. Code § 71.051.

Factors one, two and four above relate to the availability of an adequate alternative forum.  While Merema agrees that adequate alternate forums exist, Relators have failed to identify a single alternate forum and have instead attempted to amalgamate the forums of Australia and Singapore into one for purposes of their analysis.  This analytical framework obscures the myriad problems with trying this case in either Australia or Singapore given the fact that evidence and witnesses in the this case are scattered throughout these two countries as well as other countries such as the United States, India and Malaysia.  Simply put, there is no single alternate forum that provides a more appropriate venue for this dispute.  Relators’ Petition should therefore be denied.

The other factors considered in a forum non conveniens analysis point to maintenance of this lawsuit against Texas Defendants in Texas.  As set forth below, both the private and public interest support jurisdiction in Texas.  Much of the physical evidence is in the possession or control of Relators.  Many of the witnesses are employed by Relators.  Other witnesses are scattered across the globe, and the same methods of compulsory process available in Australia and Singapore through the Hague Convention are available in Texas as well.  As for the identification of a forum that is “at home with the law,” Relators fail to identify which foreign law they claim applies to this dispute: the law of Singapore, where the accident occurred, or the law of Australia, the home forum of Decedent’s employer, TMS.  They argue, however, that if this case is litigated in Texas, DOHSA, a uniform body of law specifically applicable to seaman injured or killed on the high seas, will apply.  Thus, uniformity and predictability of the law favors maintenance of this case in Texas.  Finally, Relators’ analysis ignores evidence that decisions made by Relators in Texas may have caused or contributed to Decedent’s death.  For the foregoing reasons, the Motion was properly denied and this Court should deny Relator’s petition for Writ of Mandamus.

II.        The unavailability of a single adequate alternate forum supports jurisdiction in Texas.

One of the critical factors in a forum non conveniens analysis is the availability of an adequate alternate forum.  In their Petition, Relators have failed to identify a single alternate forum where this case should proceed.  Instead, they alternate in their Petition between advocating Australia as an alternate forum and advocating Singapore as an alternate forum.  See, e.g., Petition at pp. 6 (“ENSCO sought dismissal in favor of the more convenient fora of Australia or Singapore”); 7 (“both Australia and Singapore are available forums”); 8 (“Most of the key witnesses in this case are located in Australia or Singapore”); 9 (“A writ of mandamus should be issued ordering Respondent to . . . dismiss the underlying lawsuit for Merema to re-file in either Australia or Singapore”); 13 (“Merema has an adequate remedy and/or remedies available to her in both Singapore and Australia.”); 15 (“Merema cannot legitimately contend she will suffer any injustice if this case is dismissed in favor of the available and adequate alternative fora of Australia or Singapore.”).

An examination of the evidence explains their dilemma: there simply is no single alternate forum that provides a more practical venue for this suit than its current venue.  Rather, the evidence submitted by Relators points to two separate and distinct alternate fora, Australia and Singapore.  For example, Relators’ Petition states that:

  • “This dispute arises out of the death of a citizen and resident of Australia during the course and scope of his employment as a seaman with his Australian employer aboard a foreign- flagged offshore oil rig in the territorial waters of Singapore.”
  • “This dispute should be controlled by the laws of Australia or, alternatively, Singapore . . . .”
  • “Three of the four crew members of the crew that were working directly with the Decedent at the time of the incident  . . . are citizens and residents of Australia or New Zealand.”
  • “Most of the key witnesses in this case are located in Australia or Singapore . . .  .”
  • “Most of they key documents are located in Australia or Singapore.”
  • “Of the witnesses under control of a Relator, most of them are located in Australia, Singapore, Malaysia or India . . . .”
  • “The accident made the basis of this lawsuit occurred during the course of repairs being conducted on board the rig in Singapore . . . .”

Petition at pp. 7, 8.

Because the facts, evidence and witnesses are spread throughout a wide geographic area, Relators are unable to identify a single alternate forum.[1] Instead, they have amalgamated the fora of Australia and Singapore into one for purposes of their analysis.  This analytical framework is an attempt to obscure the numerous problems with trying this case in either Australia or Singapore given the fact that evidence and witnesses in the this case are scattered throughout these two countries as well as other countries such as the United States, India and Malaysia.  Simply put, there is no single alternate forum that provides a more appropriate venue for this dispute.  In the case of  In re Air Crash at Taipei Taiwan Multidistrict Litig., No. 04-55787, 153 Fed. Appx. 993, 2005 U.S. App. LEXIS 24800 (9th Cir. Nov. 15, 2005), the court of appeals held that the trial court abused its discretion in granting a forum non conveniens dismissal because it considered multiple adequate alternative fora rather than comparing the plaintiff’s chosen forum with a single alternate forum:

unlike the initial order denying Boeing’s original motion to dismiss, which names and rejects Singapore as the single alternative forum, the order upon reconsideration names three alternative forums: Singapore, Canada, and Taiwan. As a result, the court failed to balance the competing interests fairly by comparing the domestic forum to a particular foreign forum, and it is unclear which alternative forum the court ultimately found to be both adequate and more convenient than the domestic forum chosen by plaintiffs. This defect is of great significance on the facts of the case, as the crash took place in Taiwan, the airline is headquartered in Singapore, and the relevant witnesses appear to reside in Singapore, Taiwan, the United States, and elsewhere.

Id. at 995 (citations omitted); In re Omega Protein, Inc., No. 01-08-00656-CV, 2009 Tex. App. LEXIS 419 at * 15 (Tex. App.–Houston [1st Dist.] Jan 20, 2009) (emphasis added) (“Matthews points to two Texas connections: post-suit medical treatment and Omega’s Houston presence. But governing caselaw has found neither to be adequate to defeat a motion to dismiss for forum non conveniens when the plaintiff, the witnesses, the incident scene, and the documents are all found in the same alternative forum, and the defendant has a presence there, too.”).  Similarly, here, Respondents have failed to identify a single adequate alternate forum, instead combining into one the separate and distinct fora of Australia and Singapore. For this reason, their Petition should be denied.

III.       Relators can show no substantial injustice by maintenance of this suit in their home forum.

 

Relators can show no substantial injustice by maintenance of this suit in their home forum.  They assert that they will be prejudiced by the fact that they will be forced to litigate their claims against TMS in a separate court if suit is maintained here.  But there are numerous problems with this allegation.  First, it is Relators who created this issue by suing TMS in Australia.  Second, Relators’ allegation is based on the unsupported conclusion – without citation to any evidence or authorities – that TMS is not subject to jurisdiction in Texas.  Third, Relators’ allegation is based on the inaccurate characterization of a mere choice of law provision as somehow mandating venue in Australia of their dispute with TMS. Petition at p. 15; Appendix to Petition at Tab G, Exhibit H at AL-4, p. 92.  Finally, this allegation would seem to counsel in favor of filing suit in Australia; but such a venue would face the same issues regarding the presence of witnesses, evidence and documents located in Singapore as does a Dallas court.  This factor fails to support dismissal.

IV.       The private interest factors support jurisdiction in Texas.

The private interest factors under a forum non conveniens analysis have been articulated as encompassing:

(1)   the relative ease of access to sources of proof;

(2)   the availability of compulsory process for attendance of unwilling witnesses; and

(3)   the enforceability of a judgment if one is obtained.

Yoroshii Inves. Pte. Ltd. v. BP Int’l Ltd., 179 S.W.3d 639, 643 (Tex. App.–El Paso 2005, pet. denied).  An analysis of these factors demonstrates that they fail to support dismissal on the grounds of forum non conveniens.  As such, the Petition should be denied.

A. The relative ease of access to sources of proof.

1. Documents.

In the Affidavits supporting their Motion, Relators asserted that “all original documents and records” relating to the ENSCO 104 and the subject incident “are located aboard the ENSCO 104 and/or in Singapore or Australia.”  Appendix to Petition at Tab G, Exhibit A, at par. 5.  The presence of some relevant documents in a foreign location hardly mitigates in favor of jurisdiction in Singapore or Australia.  First, Relators only state that all “original documents” are located overseas.  They do not assert that copies of these documents are not available elsewhere.  In fact, given that Relators are all based in Dallas, Texas, it is likely that copies of such documents are located here.  And because Relators have provided their Houston-based attorneys with documents responsive to Plaintiff’s Requests for Production — despite the geographic distance between Houston and the Far East — it is likely that the documents relating to this case are currently located in Houston, just a short Southwest Airlines flight away.

Even assuming the relevant documents are located solely overseas, in this modern day and age, documents can easily be shipped anywhere in the world.  They can even be scanned and sent by e-mail.  As one court has stated, “[t]echnological advances in copying, storing, and transferring data, however, limit the weight to be given the accessibility and location of sources of proof . . .”  Tapia v. Dugger, Civil Action No. SA-06-CA-0147-XR, 2006 U.S. Dist. LEXIS at *11 (W.D. Tex. Sept. 7, 2006);   IBEW-NECA Southwestern Health & Benefit Fund v. B&J Purchasing Services, Civil Action No. 3:05-CV-0794-L, 2006 U.S. Dist. LEXIS 4969 at *8 (N.D. Tex. Feb. 9, 2006) (“the location of documents or relative ease of access to sources of proof has been made much easier in light of technology.   Many documents are now available through electronic means.”).  The mere presence of documents in Singapore is hardly conclusive.  This is especially true where Relators allege that pertinent documents are “located on board the ENSCO 104 and/or in Singapore or Australia.”  Motion at p. 11.  Because the documents are not in one place, they will have to be copied and sent to whatever locale exercised jurisdiction over this case, and it is no more difficult to ship such documents to Dallas, Texas than it is to ship them to Western Australia.  As Relators admitted at the hearing on their Motion:

MR. KLAWETTER:  At this juncture, Your Honor, I can’t honestly tell you.  I think that there will be a significant number of documents.  I think the only feasible way that the parties would have a shot at getting those documents if the case stays here would be to attempt the issue of letters rogatory, which is an expensive and time-consuming process, or to go Singapore and depose record custodians and the individuals involved, which again tailors into our concerns as I’ll be discussing in just a moment.

THE COURT:  Okay.  But wouldn’t you have that same concern if the case was in Australia?

MR. KLAWETTER:  Well, we would, Your Honor, but to a much lesser extent, and I’ll give you an example of what I’m talking about.

Appendix to Petition at Tab D, pp. 10-11.  Counsel then went on to discuss the cost of travel, between Australia and Singapore, an issue which is irrelevant to the service of letters rogatory for the production of documents.  Id. at p. 11.  Because a court in Dallas, Singapore or Australia will need to issue letters rogatory to obtain documents located elsewhere – in Australia or Singapore – this factor fails to support dismissal.

2. Physical evidence.

With respect to physical evidence, Relators asset in their Petition that key physical evidence is located in Singapore:

The valve seating assembly (sometimes referred to as the mounting block and/or adapter), the hydraulic manifold and the stainless steel cabinet (minus the cabinet door) are all located in Singapore.  Clearly, the burdens on the parties to access those items from the United States are significantly greater than they would be if the matter were to be dismissed for resolution in Australia or Singapore.

Petition at pp. 18-19.  This statement is misleading.  While Relators inform the court that these pieces of evidence are in Singapore, what they fail to mention is that all of this evidence is “under the [Relators’] control” as admitted in their Interrogatory Answers herein.  See Appendix to Response at Tab A.   As Relators admit with respect to the physical evidence, “[a]rguably it could be shipped to the United States.”  Appendix to Petition at Tab D, p. 17.  Because the physical evidence is in the control of Relators and could be shipped to the United States, this factor fails to support dismissal.

3. Witnesses.

In their Petition, Relators fail to inform the Court of the numerous witnesses who are residents of the United States or make unfounded assumptions about their current location that are inconsistent with their treatment of other witnesses.  For example, Relators fail to inform the Court that there are no fewer than nine witnesses who are citizens or residents of the United States, including four witnesses who are citizens and residents of Texas (not including representatives of Realtors located in Dallas).  Appendix to Response at Tabs B-G; see also Appendix to Petition at Tab J, Exhibits A, B; Appendix to Petition at Tab D at p. 45 (“there are some ENSCO personnel who are in the United States.”).  With respect to James Flores, who Relators identify as one of the four crewmembers working directly with Decedent art the time of the incident, Relators simply state that he is “no longer employed by any of the ENSCO Relators herein.”  Petition at p. 19.  What they fail to tell the Court is that in their discovery responses, they stated that Flores’ address was in Brandon, Mississippi.  Appendix to Response at Tab D at p. 10; see also Appendix to Petition at Tab J, Exhibit B at p. 10.  With respect to two other American witnesses — Douglas Everitt of Canton, Texas and Jordan Smith of Lufkin, Texas – Relators ignore their place of residence and citizenship and instead focus on the fact that they are working on rigs in Malaysia and the North Sea (actually, that they were working in such places at the time of the affidavits Respondents rely on, which are dated February 4, 2008, more than one year ago).  Id; Petition at p. 20.  By contrast, when discussing the location of oil rig workers whose place of citizenship, Australia or New Zealand, is helpful to their analysis, Relators focus not on the location of the rig they are working on, but on their place of citizenship.  Petition at p. 19 (discussing fact that Traynor and Murray are “citizens (and presumed residents) of Australia.”).  And yet Relators admit that they do not know where these witnesses are physically located and know nothing more than that “they are residents of Australia and New Zealand.”  Appendix to Petition at Tab D, p. 22.

In addition to the foregoing witnesses, the Human Factors analysis addressing the incident indicates that the Night Toolpusher and the OIM are critical witnesses who have knowledge regarding the actions that led to Decedent’s death.  Appendix to Petition at Tab J, Exhibit C.  Relators identified these two individuals as Timothy Parker of Victoria, Texas and Phillip Townsend of Ruth, Mississippi and Tabs F, G.  These witnesses are mentioned nowhere in Relators’ Petition.

Finally, a review of all of the pertinent evidence demonstrates that witnesses whose testimony is likely to be needed in this case are located in the following locations:

  • Dallas, Texas (employees of Relators);
  • Other cities in Texas, including Lufkin and Victoria;
  • Mississippi;
  • Louisiana;
  • Singapore;
  • Australia;
  • New Zealand;
  • Mumbai, India;
  • The North Sea.

Appendix to Response at Tabs B-G.  Because witnesses are scattered between the United States, Singapore, Western Australia and other locales, there will be some level of inconvenience no matter where this case is tried.  Under these facts, there is no justifiable reason to deprive Plaintiff of her choice of forum.  See, e.g., Sydow v. Acheson & Co., 81 F.Supp.2d 758, 769 (S.D. Tex. 2000) (“Here, the private factors weigh in favor of retaining the action.  The evidence and witnesses in this case will likely be scattered between Canada and Texas. Thus, a trial in either location will present certain difficulties in obtaining the attendance of witness, and necessarily will be burdensome and problematic to one of the parties. However, the doctrine of forum non conveniens should not be invoked simply to shift the inconvenience from one party to another.”); Torres de Maquera v. Yacu Runa Naveira, S.A., 107 F.Supp.2d 770, 780 (S.D. Tex. 2000) (“The evidence and witnesses in this case will likely be scattered between Peru and Texas. Thus, a trial in either location will present certain difficulties in obtaining the attendance of witness, and necessarily will be burdensome and problematic to one of the parties. However, the doctrine of forum non conveniens should not be invoked simply to shift the inconvenience from one party to another.”).  As Relators candidly admit in their Petition, “given the nature of the underlying lawsuit, travel will certainly be required regardless of the forum in which the case is ultimately litigated. . . .”  Petition at p. 23.  The location of the witnesses fails to support dismissal of this case.

B. The availability of compulsory process for attendance of unwilling witnesses.

Relators wholly fail to demonstrate that they cannot procure the attendance of the key witnesses in this case, either for trial or by deposition.   First, many of the witnesses are under the control of Relators.  See, e.g., Petition at p. 20 (identifying at least 2 current ENSCO employees who were employed by ENSCO at the time of the incident and another 5 former employees of TMS that have become employees of Relators).  Some of these witnesses are in the United States.  Petition at p. 45 (“there are some ENSCO personnel who are in the United States.”).  Even if one assumes they are not in the United States, there is no reason to believe Relators could not procure their attendance at trial.  See Sabre, Inc. v. Air Canada, No. 3-02-CV-2016-L, 2002 U.S. Dist. Lexis 2396 at *14 (N.D. Tex. December 9, 2002) (“Moreover, where key witnesses are employees of the party seeking dismissal, their convenience should be entitled to less weight because the party is able to compel their attendance at trial.”); Sydow, 81 F.Supp.2d at 769 (“Because all of the Canadian witnesses will be either Relators or employees of Relators, the Court is confident that Relators will be able to ensure their attendance at trial or otherwise present their testimony.”).  Nor do Relators explain why testimony cannot be procured through the Hague Convention or by other means.  Relators likewise fail to explain why testimony cannot be obtained by videotaped depositions, or live or by video conferencing.  Relators have failed to meet their burden of demonstrating that Respondent abused her discretion.  See, e.g., In re General Electric Co., 271 S.W.3d 681, 684 (Tex. 2008) (“We review a trial court’s decision about whether to dismiss a case on forum non conveniens grounds for an abuse of discretion.”)

Finally, Relators ignore the fact that the same issues that exist with compelling the attendance of unwilling witnesses in the Unites States will exist if this case were brought in Australia or Singapore.  According to Relators, of the four crewmembers who were working with Decedent at the time of the incident, the location of one is unknown, two are “presumed residents of Australia” and one is a “presumed resident of New Zealand.”  Petition at p. 19.  Two additional crewmembers who are U.S. residents are supposedly “currently assigned” to rigs in Malaysia and the North Sea.  Id. at p. 20.  The rig manager on the date of the accident is “currently stationed in Mumbai, India.”  Id. Moreover, according to Relators, numerous “key witnesses” are located in Singapore, including:

  • Employees of Singapore Test Services of Singapore, the entity that was involved in post-incident testing of the physical evidence;
  • Employees of Keppel-Fels Shipyard in Singapore, the shipyard where the rig was docked for repairs at the time of the incident;
  • Employees of various governmental agencies of Singapore who were involved in or oversaw various investigations of the incident and “who are expected to have relevant knowledge of facts and custody of key documents.”

Petition at pp. 19-22.  Where, as here, witnesses are scattered throughout various locations, the location of witnesses’ factor is essentially a “wash”:

The second private interest factor examines the availability of compulsory process for securing the attendance of unwilling witnesses and the cost of securing the appearance of willing witnesses. This Court cannot compel the attendance of any unwilling nonparty witness who is in Belgium, Denmark, or Germany because the witnesses are outside the Court’s subpoena power. However, both parties concede that the Hamburg court similarly has no subpoena power over the witnesses from Denmark or Belgium. Plaintiffs argue the testimony of unwilling witnesses can be obtained in Houston through letters rogatory pursuant to the Hague Convention. . . .

Because neither this Court nor the Hamburg court has subpoena  power to compel nonparty foreign witnesses to attend trial, and letters rogatory may be issued pursuant to the Hague Convention in either forum, the Court finds the inability to compel the attendance of unwilling witnesses neither favors nor weighs against dismissal.

BBC Chartering & Logistic GMBH & Co. K.G. v. Siemens Wind Power, A.G., 546 F. Supp.2d 437, 447 (S.D. Tex. 2008).  Because a court in Dallas, Singapore or Australia will need to issue letters rogatory to obtain the compulsory attendance of witnesses located elsewhere, this factor fails to support dismissal.

C. The enforceability of a judgment if one is obtained.

As to the third factor, the enforceability of a judgment, Relators state in their Petition that they will stipulate that they will satisfy any final judgment entered against them in favor of Plaintiff in any action filed in Singapore or Australia.  This stipulation appears to make this factor moot.

D. Special factors in a wrongful death case.

Section 71.051 specifically identifies the locus of the acts and omissions causing a wrongful death as a significant factor in a court’s forum non conveniens analysis.  Tex. Civ. Prac. & Rem. Code § 71.051(b)(5) (court is to consider whether “the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state.”).  To invoke this factor, Plaintiff need only make a prima facie showing.  Such “prima facie showing need not be made by a preponderance of the evidence and shall be deemed to be satisfied if the party produces credible evidence in support of the pleading . . . . A prima facie case represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.”  Berg v. AMF, Inc., 29 S.W.3d 212, 219 (Tex. App.–Houston [14th Dist.] 2000, no pet.).

In the instant case, a Human Factors Investigation obtained by Plaintiff demonstrates that actions and inactions of ENSCO corporate management led in part to the incident in question and decedent’s death:

Several persons commented that if safety system practices were not been performed on board, failure to comply with them was ultimately because of a lack of commitment from senior rig management and, possibly, ENSCO shore management. Several persons suggested that commercial imperative was perceived to be interfering with safety management.

Appendix to Petition at Tab J, Exhibit C.  While there has been no merits-based discovery to date, and thus the full import of this document is uncertain, it at least raises an issue regarding the conduct of the various ENSCO entities, including those based in Dallas.  This factor weighs heavily in favor of maintaining jurisdiction in this Court.

V.        The public interest factors support jurisdiction in Texas.

The public interest factors are:

  1. the burden imposed upon the citizens and courts of Texas in trying a case that has no relation to Texas;
  2. the general interest in having localized controversies decided locally; and
  3. the interest in having a diversity case tried in a forum that is familiar with the law that must govern the action.

Yoroshii, 179 S.W.3d at 643.  These factors all support maintenance of this case before this Court.

A. The burden on Texas courts and citizens and the local interests regarding local controversies.

 

The burden on Texas courts and citizens is clearly justified under the facts of this case.  Relators are all licensed to do business in Texas.  Three of the four Relators have their principal place of business in Texas.  Several of the witnesses reside in Texas.  And the evidence raises an issue of fact as to whether the acts and omissions of ENSCO management caused or contributed to decedent’s death.  Under these facts, moreover, there is a clear local interest in having this dispute resolved locally.

In assessing these factors, it is of great importance that all four Relators are licenses to do business in Texas and that three of the four Relators have their principal place of business in Dallas, Texas.  When a case involves the actions of local Relators, the public interest factors favor maintaining jurisdiction in their home state.  See, e.g., McClellan, 26 F. Supp.2d at 952 (court denied forum non conveniens motion in case involving crash of helicopter in Canada and stated that “because a Texas corporation was the seller of the helicopter and the allegedly defective fuel gauge, the people of Texas have a genuine and legitimate interest in the resolution of these issues”); Torres de Maquera, 107 F.Supp.2d 781 (“More importantly, this case is brought against Relators that conduct regular business in Texas. The State of Texas therefore has a keen interest in the disposition of cases involving corporate entities doing business within its borders, a point completely overlooked by Relators.”).

B. Trial in a forum that is familiar with the law.

Relators’ Petition fails to adequately address this issue.  Rather than identify an alternate forum that is familiar with the law to be applied, Relators merely state that “Merema’s claims are governed by foreign law.”  Petition at p. 27.  This begs the question “what foreign law”?  Is it the law of Singapore, where the accident occurred, where evidence is located and where an investigation of the incident took place?  Or is it the law of Australia, where Decedent was domiciled and where his employer, TMS, was located?  Rather than answer this pressing question, Relators amalgamate Singapore and Australia into one.  This, of course, ignores the fact that if suit is brought in Singapore and Australian law applies, the forum will not be familiar with the law.  Likewise, if suit is brought in Australia and Singapore law applies, the forum will not be familiar with the law.  This dilemma can only be resolved if Relators can show that there is one alternate forum and that it is the law of that forum that will apply.  This it has wholly failed to do.

By contrast, if suit is maintained in Texas, there is no doubt that the forum will be familiar with the law.  Either the Court will apply Texas law or it will apply the laws promulgated under the Jones Act and the Death in the High Seas Act (“DOHSA”), federal statutes designed to create a uniform body of law applicable to seaman killed or injured on the high seas.  Moreover, this Court is the only court that can exercise jurisdiction over Plaintiff’s Texas state law claims.  For these reasons, this factor fails to support dismissal.

VI.       Whether dismissal would result in unreasonable duplication or proliferation of litigation.

 

Relators simply misapply this factor.  The inquiry is not whether maintaining the case in  this jurisdicition would result in unreasonable duplication or proliferation of litigation, but whether “stay or dismissal” would do so.  Tex. Civ. Prac. & Rem. Code § 71.051(b)(6).  Moreover, Relators’ argument is unconvincing.  Relators claim that a contract between Relators and TMS, decedent’s alleged employer, requires that any indemnity litigation between Relators and TMS “be brought in Western Australia.”  Petition at p. 15.  The contract, however, contains no mandatory venue provision.  The provision at issue is merely a choice of law provision selecting the law of Western Australia.  Appendix to Petition at Tab G, Exhibit H at AL-4 at p. 92.  Relators have failed to demonstrate that this factor supports dismissal.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Real Party in Interest Margaret Merema, Individually and as heir to and on behalf of the estate of Paul Aaron Merema, deceased, respectfully requests that the Court deny Relator’s Petition for Writ of Mandamus, affirm the ruling of the Trial
Court and grant Merema such other and further relief to which she may be justly entitled.

Respectfully submitted,

_____________________________________

Eric D. Pearson

State Bar No. 15690472

James Craig Orr, Jr.

State Bar No. 15313550

Heygood, Orr, Reyes, Pearson & Bartolomei

2331 W. Northwest Highway, 2nd Floor

Dallas, Texas 75220

(214) 526-7900 Telephone

(214) 526-7910 Facsimile

 

ATTORNEYS FOR PLAINTIFF


CERTIFICATION

 

STATE OF TEXAS                §

§

COUNTY OF DALLAS        §

 

BEFORE ME, the undersigned authority, on this date personally appeared Eric D. Pearson, personally known to me, who, being by me first duly sworn, upon his oath deposed and stated as follows:

1.         My name is Eric D. Pearson.  I am over twenty-one (21) years of age and am otherwise competent to make this certification. I am counsel of record for Real Party in Interest Margaret Merema in this case and the underlying case from which this mandamus proceeding originated.

2.         In accordance with Rule 52.3(j) of the Texas Rules of Appellate Procedure, I certify that I have reviewed this Response to Relators’ Petition for Writ of Mandamus and concluded that every factual statement therein is supported by competent evidence included in the Appendix or Record.

_____________________________________

Eric D. Pearson

 

 

Sworn and subscribed before me on this _____ day of February, 2009, to certify which witness my hand and seal of office.

 

____________________________________

Notary Public in and for the State of Texas

 

My commission expires:

 

 

 


CERTIFICATE OF SERVICE

 

The undersigned certifies that a true and correct copy of the foregoing instrument was served upon all counsel of record in accordance with Rule 21a of the Texas Rules of Civil Procedure on the _____ day of February, 2009.

 

 

______________________________________                                                                    Eric D. Pearson


[1]This fact differentiates this case from In re General Electric Co., 271 S.W.3d 681 (Tex. 2008), in which the court held that forum non conveniens dismissal was appropriate where the facts, law, place of exposure, location of the witnesses and location of documents all pointed to one single alternate forum.  Moreover, while that case involved defendants headquartered in Texas, those Texas defendants were merely three of the twenty separate defendants sued by the plaintiff.  Here, all Relators have offices and registered agents in Dallas.  And here, there is evidence that decisions made in Dallas by Relators may have caused or contributed to Decedent’s death.  Under these circumstances, the holding in General Electric is simply inapplicable.