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CAUSE NO. 2016-12352
OCCIDENTALCHEMICAL IN THE DISTRICT COURT
CORPORATION
vs. HARRIS COUNTY, TEXAS
TEXAS BRINE
COMPANY, LLC 333RD JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO TEXAS BRINE’S FEBRUARY 7, 2019 FILING
Plaintiff Occidental Chemical Corporation (“Occidental”) files this response to the filing
submitted by Texas Brine Company, LLC (“Texas Brine”) on February 7, 2019.
Texas Brine filed a motion to dismiss this case, claiming that it is somehow inconvenient
for it (a Houston based company named Texas Brine) to litigate with Occidental (another Texas
resident) in Texas. In its latest filing in support of its forum non conveniens motion Texas Brine
argues that this Court should dismiss this 2016 lawsuit because Texas Brine has recently created
the need for excessive activity in the Louisiana courts by requesting and receiving an unlawful
preliminary injunction against the parties arbitrating with the AAA and by filing an invalid lawsuit
against the in Louisiana that was later dismissed with prejudice
While the filing purports to be a response to Occidental’s December 4, 2018 supplement to the
motion to compel arbitration record, it was filed over two months later and is, in substance, a
supplemental brief in support of Texas Brine’s motion to dismiss for forum non conveniens.
That Texas Brine waited two years to file its otion to ismiss belies the claim that this litigation
is so burdensome and inconvenient as to warrant dismissal.
As Occidental explained in its December 4, 2018 record supplement, Texas Brine’s lawsuit
against the AAA was an attempt by Texas Brine to avoid complying with its arbitration agreement
by manufacturing a false claim of bias on the part of the AAA. The Eastern District of Louisiana
dismissed that lawsuit on the pleadings because the claims asserted were barred by the doctrine of
arbitral immunity and by Section 10 of the Federal Arbitration Act, which provides that vacatur is
the exclusive remedy for allegations of arbitrator bias.
he claims in this lawsuit are not and have never been pending in any Louisiana court he
Louisiana appellate court has also held that the courts in that state ha no authority over the claims
asserted here. See Ex. 1 to Oxy’s Opposition (“[W]e find the trial court erred as a matter of law
when it enjoined the Occidental Chemical Company from pursuing its action in Harris County,
Texas.”). he Louisiana state court judge who issued the arbitration related orders touted in Texas
Brine filing has stated on the record that the default claims asserted in this ourt are “not before
me” and are not “for me to hear.” See Ex. 2 to Oxy’s Opposition.There is no authority for T exas
Brine’s request that this Court dismiss this case on the ground of “convenience ” when the
Louisiana courts have recognized that the case is properly pending here.
Texas Brine effort to barrage this Texas Court with evidence of own activities in
Louisiana is entirely irrelevant to the forum non conveniens analysis. Choosing a forum is the
plaintiff’s prerogative. In Texas courts, any plaintiffeven a non Texanenjoys deference to
choice of forum. See Quixtar Inc. v. Signature Mgmt. Team, LLC , 315 S.W.3d 28, 31 (Tex.
2010). A Texas plaintiff suing in a Texas court enjoys an even stronger presumption that the
choice is “reasonable” and “appropriate.” See id. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255
56 n. 23 (1981). Thus a defendant “opposing the plaintiff’s chosen forum” must shoulder a “heavy
burden”; and a defendant opposing a Texas plaintiff in home state has a heavier lift still. See
Quixtar Inc., 315 S.W.3d at 31 32 (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.
549 U.S. 422, 430 (2007)) (internal quotations omitted). A Texas court will not second guess a
plaintiff’s choice unless the “balance” of forum non conveniens factors “is strongly in favor of the
defendant.” Flaiz v. Moore, 359 S.W.2d 872, 874 (Tex. 1962) (non Texas plaintiff); see also In
re G.L.A., 195 S.W.3d 787, 794 (Tex. App.Beaumont 2006, pet. denied) (Texas plaintiff).
Here, Occidental sued Texas Brine in their shared home forum to resolve a breach of
contract claim between them. case holds that Occidental may be deprived of its choice of a
proper, convenient forum simply because Texas Brinethrough attacks on this forum in
Louisiana creates an ostensible “inconvenience.” If that were all that was required to sustain
dismissal for forum non conveniens, chaos would ensue. A party properly sued in its own home
county cannot avoid trial there simply by filing repetitive motions and cases in its preferred forum.
he fact that Texas Brine has created the need for additional arbitration related motion practice
and appeals in the Louisiana courts by filing wrongful injunctions against the arbitration and
wrongful (now dismissed) suit against the AAA there does not alter the forum non conveniens
private and public interest favor analysis. Harris County is a convenient forum; it did not become
“inconvenient” simply because of Texas Brine’s unilateral actions in Louisiana.
The AAA Consent Judgmentby which Texas Brine agreed to dismiss the AAA as a party
and the AAA agreed to submit to the jurisdiction of the Louisiana state court for the purposes of
discovery in anticipation of the trial on Texas Brine’s claim for a permanent injunction against
further arbitration with the AAAalso does not support dismissal of this lawsuit. The face of the
judgment states that “nothing in this Consent Judgment shall be construed to advance any claim
or defense by any party to this Consent Judgement, or by any third parties, in any other proceeding
Although Texas’s forum non conveniens statute only applies in personal injury and wrongful
death cases, it codifies the strong common law deference to a plaintiff bringing an action in its
home state. The statute provides that a Texas court “may not stay or dismiss a plaintiff's claim
[. . .] if the plaintiff is a legal resident of this state or a derivative claimant of a legal resident of
this state.” TEX. CIV. PRAC. & REM. CODE § 71.051. The legislature made plain what Texas
courts have long held: a Texas plaintiff may file suit in his home state immune from forum non
conveniens challenges.
involving either Texas Brine, the AAA, or both parties.” See Ex. B to Texas Brine’s 2/7/19 filing.
Texas Brine agreed to that stipulation in the Consent Judgment while its forum non conveniens
motion was pending; its attempt to use the Consent Judgment to advance its position in this ourt
is prohibited by the judgment. That Texas Brine invokes it here, in violation of its own agreement
and the judgment, cannot alter the public and private interest analysis.
For these reasons, and for the reasons set forth in Occidental’s previous briefing, the Court
should deny Texas Brine’s Motion to Dismiss or Forum Non Conveniens.
Respectfully submitted,
GIBBS & BRUNS LLP
By: /s/ Kathy Patrick
Kathy Patrick
State Bar No. 15581400
Sam W. Cruse
State Bar No. 24036423
Laura KisselCassidy
State Bar No. 24046223
1100 Louisiana Suite 5300
Houston, Texas 77002
Telephone: (713) 751 5253
Facsimile: (713) 750 0903
kpatrick@gibbsbruns.com
scruse@gibbsbruns.com
lcassidy@gibbsbruns.com
ATTORNEYS FOR PLAINTIFF
OCCIDENTAL CHEMICAL
CORPORATION
CERTIFICATE OF SERVICE
I hereby certify that February 12, 2019, a true and correct copy of this instrument was
served on counsel in accordance with Texas Rule of Civil Procedure 21a
Eric J. Mayer James M. Garner
State Bar No. 13274675 State Bar No. 792312
emayer@susmangodfrey.com jgarner@shergarner.com
David Peterson Darnell Bludworth
State Bar No. 24056123 State Bar No. 792142
dpeterson@susmangodfrey.com dbludworth@shergarner.com
SUSMAN GODFREY L.L.P. SHER GARNER CAHILL RICHTER KLEIN
1000 Louisiana Street, Suite 5100
Houston, Texas 77002 HILBERT LLC
Telephone: (713) 651 9366 909 Poydras Street, 28th Floor
Fax: (713) 654 New Orleans, Louisiana 70112
Telephone: (504) 299 2102
Facsimile: (504) 229 2302
/s/ Laura Kissel Cassidy
Counsel for Plaintiff
Preview
CAUSE NO. 2016-12352 OCCIDENTALCHEMICAL IN THE DISTRICT COURT CORPORATION vs. HARRIS COUNTY, TEXAS TEXAS BRINE COMPANY, LLC 333RD JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO TEXAS BRINE’S FEBRUARY 7, 2019 FILING Plaintiff Occidental Chemical Corporation (“Occidental”) files this response to the filing submitted by Texas Brine Company, LLC (“Texas Brine”) on February 7, 2019. Texas Brine filed a motion to dismiss this case, claiming that it is somehow inconvenient for it (a Houston based company named Texas Brine) to litigate with Occidental (another Texas resident) in Texas. In its latest filing in support of its forum non conveniens motion Texas Brine argues that this Court should dismiss this 2016 lawsuit because Texas Brine has recently created the need for excessive activity in the Louisiana courts by requesting and receiving an unlawful preliminary injunction against the parties arbitrating with the AAA and by filing an invalid lawsuit against the in Louisiana that was later dismissed with prejudice While the filing purports to be a response to Occidental’s December 4, 2018 supplement to the motion to compel arbitration record, it was filed over two months later and is, in substance, a supplemental brief in support of Texas Brine’s motion to dismiss for forum non conveniens. That Texas Brine waited two years to file its otion to ismiss belies the claim that this litigation is so burdensome and inconvenient as to warrant dismissal. As Occidental explained in its December 4, 2018 record supplement, Texas Brine’s lawsuit against the AAA was an attempt by Texas Brine to avoid complying with its arbitration agreement by manufacturing a false claim of bias on the part of the AAA. The Eastern District of Louisiana dismissed that lawsuit on the pleadings because the claims asserted were barred by the doctrine of arbitral immunity and by Section 10 of the Federal Arbitration Act, which provides that vacatur is the exclusive remedy for allegations of arbitrator bias. he claims in this lawsuit are not and have never been pending in any Louisiana court he Louisiana appellate court has also held that the courts in that state ha no authority over the claims asserted here. See Ex. 1 to Oxy’s Opposition (“[W]e find the trial court erred as a matter of law when it enjoined the Occidental Chemical Company from pursuing its action in Harris County, Texas.”). he Louisiana state court judge who issued the arbitration related orders touted in Texas Brine filing has stated on the record that the default claims asserted in this ourt are “not before me” and are not “for me to hear.” See Ex. 2 to Oxy’s Opposition.There is no authority for T exas Brine’s request that this Court dismiss this case on the ground of “convenience ” when the Louisiana courts have recognized that the case is properly pending here. Texas Brine effort to barrage this Texas Court with evidence of own activities in Louisiana is entirely irrelevant to the forum non conveniens analysis. Choosing a forum is the plaintiff’s prerogative. In Texas courts, any plaintiffeven a non Texanenjoys deference to choice of forum. See Quixtar Inc. v. Signature Mgmt. Team, LLC , 315 S.W.3d 28, 31 (Tex. 2010). A Texas plaintiff suing in a Texas court enjoys an even stronger presumption that the choice is “reasonable” and “appropriate.” See id. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 56 n. 23 (1981). Thus a defendant “opposing the plaintiff’s chosen forum” must shoulder a “heavy burden”; and a defendant opposing a Texas plaintiff in home state has a heavier lift still. See Quixtar Inc., 315 S.W.3d at 31 32 (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp. 549 U.S. 422, 430 (2007)) (internal quotations omitted). A Texas court will not second guess a plaintiff’s choice unless the “balance” of forum non conveniens factors “is strongly in favor of the defendant.” Flaiz v. Moore, 359 S.W.2d 872, 874 (Tex. 1962) (non Texas plaintiff); see also In re G.L.A., 195 S.W.3d 787, 794 (Tex. App.Beaumont 2006, pet. denied) (Texas plaintiff). Here, Occidental sued Texas Brine in their shared home forum to resolve a breach of contract claim between them. case holds that Occidental may be deprived of its choice of a proper, convenient forum simply because Texas Brinethrough attacks on this forum in Louisiana creates an ostensible “inconvenience.” If that were all that was required to sustain dismissal for forum non conveniens, chaos would ensue. A party properly sued in its own home county cannot avoid trial there simply by filing repetitive motions and cases in its preferred forum. he fact that Texas Brine has created the need for additional arbitration related motion practice and appeals in the Louisiana courts by filing wrongful injunctions against the arbitration and wrongful (now dismissed) suit against the AAA there does not alter the forum non conveniens private and public interest favor analysis. Harris County is a convenient forum; it did not become “inconvenient” simply because of Texas Brine’s unilateral actions in Louisiana. The AAA Consent Judgmentby which Texas Brine agreed to dismiss the AAA as a party and the AAA agreed to submit to the jurisdiction of the Louisiana state court for the purposes of discovery in anticipation of the trial on Texas Brine’s claim for a permanent injunction against further arbitration with the AAAalso does not support dismissal of this lawsuit. The face of the judgment states that “nothing in this Consent Judgment shall be construed to advance any claim or defense by any party to this Consent Judgement, or by any third parties, in any other proceeding Although Texas’s forum non conveniens statute only applies in personal injury and wrongful death cases, it codifies the strong common law deference to a plaintiff bringing an action in its home state. The statute provides that a Texas court “may not stay or dismiss a plaintiff's claim [. . .] if the plaintiff is a legal resident of this state or a derivative claimant of a legal resident of this state.” TEX. CIV. PRAC. & REM. CODE § 71.051. The legislature made plain what Texas courts have long held: a Texas plaintiff may file suit in his home state immune from forum non conveniens challenges. involving either Texas Brine, the AAA, or both parties.” See Ex. B to Texas Brine’s 2/7/19 filing. Texas Brine agreed to that stipulation in the Consent Judgment while its forum non conveniens motion was pending; its attempt to use the Consent Judgment to advance its position in this ourt is prohibited by the judgment. That Texas Brine invokes it here, in violation of its own agreement and the judgment, cannot alter the public and private interest analysis. For these reasons, and for the reasons set forth in Occidental’s previous briefing, the Court should deny Texas Brine’s Motion to Dismiss or Forum Non Conveniens. Respectfully submitted, GIBBS & BRUNS LLP By: /s/ Kathy Patrick Kathy Patrick State Bar No. 15581400 Sam W. Cruse State Bar No. 24036423 Laura KisselCassidy State Bar No. 24046223 1100 Louisiana Suite 5300 Houston, Texas 77002 Telephone: (713) 751 5253 Facsimile: (713) 750 0903 kpatrick@gibbsbruns.com scruse@gibbsbruns.com lcassidy@gibbsbruns.com ATTORNEYS FOR PLAINTIFF OCCIDENTAL CHEMICAL CORPORATION CERTIFICATE OF SERVICE I hereby certify that February 12, 2019, a true and correct copy of this instrument was served on counsel in accordance with Texas Rule of Civil Procedure 21a Eric J. Mayer James M. Garner State Bar No. 13274675 State Bar No. 792312 emayer@susmangodfrey.com jgarner@shergarner.com David Peterson Darnell Bludworth State Bar No. 24056123 State Bar No. 792142 dpeterson@susmangodfrey.com dbludworth@shergarner.com SUSMAN GODFREY L.L.P. SHER GARNER CAHILL RICHTER KLEIN 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 HILBERT LLC Telephone: (713) 651 9366 909 Poydras Street, 28th Floor Fax: (713) 654 New Orleans, Louisiana 70112 Telephone: (504) 299 2102 Facsimile: (504) 229 2302 /s/ Laura Kissel Cassidy Counsel for Plaintiff