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In re XTO Energy, Inc.

Court of Appeals of Texas, First District

May 17, 2018

IN RE XTO ENERGY, INC., Relator

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Justices Keyes, Brown, and Lloyd.

          MEMORANDUM OPINION

          Russell Lloyd Justice.

         Relator XTO Energy, Inc. has filed a petition for a writ of mandamus challenging the trial court's denial of its motion to dismiss the underlying lawsuit based on forum non conveniens.[1] In two issues, XTO argues that the trial court abused its discretion in denying its motion because Texas is an inconvenient forum for the lawsuit and they are entitled to mandamus relief because they do not have an adequate remedy by appeal. We conditionally grant the petition.

         Background

         Daniel Pavon, Justin Pyle, Richard Chadwick Maheu, and Joseph C. Guillen were injured and John Stassinos died of the injuries he allegedly sustained as a result of a flash fire that occurred at the Ryan 14X-09E well pad in North Dakota (the Well) on June 18, 2016 (the Incident).[2]

         Pavon and Ana Pavon, Individually and as Next Friend of D#### R. Pavon, a Minor and Pyle and Brenda Pyle, Individually and as Next Friend of M#####, a Minor, (the Real Parties in Interest or RPIs) sued XTO Energy, Inc. (XTO), Weatherford International, LLC (Weatherford), KLX Energy Services, LLC, and KLX Energy Holdings, LLC (collectively KLX) in Harris County District Court for damages they allegedly sustained as a result of the Incident. The RPIs alleged negligence claims against XTO, which owns and operates the Well, and Weatherford and KLX, which provided equipment for the Well. XTO, Weatherford, and KLX have their principal places of business in Texas.

         The RPIs alleged that during a snubbing operation at the Well on June 18, 2016, "a hole in the final joint of tubing and leaks in the float valves caused a high pressure natural gas release, which resulted in an explosion and flash fire, and launched the final joint and bottom hole assembly . . . out of the wellbore and into the air, likely igniting the gas." According to the RPIs, the incident occurred because XTO decided against "killing" the Well before ordering "snubbing" operations to commence.[3] The RPIs alleged that venue was appropriate in Harris County because "it is a county where a substantial portion of the events and/or omissions giving rise to the subject claims occurred, including critical operational and safety decisions that contributed to and/or caused the accident made the basis of this lawsuit."

         At the time of the incident, Pavon and Guillen were employed by Sherwood Enterprises (SEI), and Pyle, Maheu, and Stassinos were employed by Most Wanted Well Service (Most Wanted). Pavon and Pyle are Colorado residents. Maheu and Guillen are Wyoming residents and SEI and Most Wanted are Wyoming businesses that were doing business in North Dakota.

         The local North Dakota sheriff's department and the fire marshal division of the North Dakota Attorney General's Office investigated the incident and prepared reports. Both reports reference an investigation conducted by the North Dakota office of the Occupational Safety & Health Administration of the U.S. Department of Labor (OSHA). As a result of its investigation in North Dakota, OSHA issued citations to Pavon's and Pyle's employers, SEI and Most Wanted.

         The unredacted version of the Sheriff's Department's report identified 33 persons on the Well's site log, none of whom reside in Texas. The RPIs also identified 20 persons or entities with alleged knowledge of the accident. Eight of those persons are located in North Dakota, while seven other persons or entities are located in Wyoming, Utah, or Colorado.

         The RPIs case was originally set for trial on August 28, 2017.

         During depositions taken in April and May 2017, XTO uncovered evidence directly relevant to the RPIs' allegations that a substantial portion of the events and/or omissions in this case occurred in Texas. Specifically, RPI Pyle testified during his deposition that he and other persons working at the Well site told a consultant named Tom Jones that it was too dangerous to snub and the well should be killed. According to Pyle, Jones directed the crews to snub the well instead of killing it. This alleged directive occurred at the Well during a safety meeting on the date of the accident. Jones, a Montana resident, was employed by Badlands Consulting LLC (Badlands) of Glendive, Montana.

         On May 9, 2017, Nick Brown, an employee of Colter Energy who was at the Well when the incident occurred, testified that he had no knowledge that anyone ever told XTO engineers or completions foremen that they thought the well should be killed. Daniel Dickout, another employee of Colter Energy who was at the Well when the incident occurred, also testified on May 9, 2017 that he did not witness any discussions between XTO and Jones. Brown and Dickout are Canadian residents and Colter Energy has a field office in North Dakota.

         On May 12, 2017, XTO filed a Motion to Stay or Dismiss for Forum Non Conveniens. It is undisputed that XTO's motion, which was filed three days before the statutory deadline, was timely. See Tex. Civ. Prac. & Rem. Code Ann. § 71.051(d) (West Supp. 2017). Weatherford and KLX joined this motion.

         On July 7, 2017, the trial court heard XTO's motion. The parties presented argument through their counsel but did not introduce any evidence. At the hearing's conclusion, the trial court took XTO's motion under advisement.

         On June 8, 2017 and July 11, 2017, XTO supplemented its motion, informing the trial court that two subsequent lawsuits arising from the same oilfield incident were filed in North Dakota federal court. Specifically, on May 22, 2017, Maheu and Guillen filed a personal injury lawsuit in North Dakota federal court against XTO, Weatherford, KLX, Jones, Badlands, Allan Kolden, and Petroleum Experience, Inc. Maheu and Guillen alleged that XTO, Badlands, Jones, Petroleum Experience and Kolden ordered the crews of Most Wanted and SEI to conduct snubbing operations at the North Dakota well instead of killing the well. Approximately a month and a half later, Mary Stassinos and Ryann Stassinos filed a wrongful death lawsuit in North Dakota federal court against the same seven defendants, including XTO, Weatherford, and KLX. The Stassinos plaintiffs alleged, among other things, that XTO decided to snub the well, rather than kill it. Both federal lawsuits allege that a substantial part of the events giving rise to their claims in that case occurred in North Dakota. Pavon's and Pyle's employers, SEI and Most Wanted, are not named defendants in either lawsuit.

         The trial court denied XTO's motion by written order dated August 4, 2017. On August 15, 2017, the trial court reset the case for the two-week period beginning March 26, 2018.

         After XTO filed its petition for writ of mandamus, the Maheu-Guillen lawsuit and the Stassinos lawsuit were consolidated for discovery and pretrial proceedings.

         Mandamus Standard of Review

         Mandamus is appropriate to remedy an improper denial of a motion to dismiss for forum non conveniens. See In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 679 (Tex. 2007). We review a trial court's ruling on a motion to dismiss for an abuse of discretion. See In re ENSCO Offshore Int'l Co., 311 S.W.3d 921, 923 (Tex. 2010); In re Gen. Elec. Co., 271 S.W.3d 681, 685 (Tex. 2008). A trial court commits a clear abuse of discretion when its action is "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003). A trial court has no discretion in determining what the law is or in applying the law to particular facts. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004).

         Motion to Dismiss for Forum Non Conveniens

         Texas Civil Practice and Remedies Code section 71.051 governs motions to dismiss for forum non conveniens in all actions for personal injury or wrongful death. See In re Pirelli Tire, 247 S.W.3d at 674; In re Mantle Oil & Gas, LLC, 426 S.W.3d 182, 187 (Tex. App.-Houston [1st Dist.] 2012, no pet.).

         Section 71.051(b) provides:

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 claims;
(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 Ann. § 71.051(b) (West Supp. 2017); see also In re Mantle Oil & Gas, 426 S.W.3d at 187-88. If these statutory factors weigh in favor of the claim or action being more properly heard in a forum outside Texas, then dismissal is required. See In re ENSCO, 311 S.W.3d at 924; In re Mantle Oil & Gas, 426 S.W.3d at 188.

         Section 71.051 does not require that the movant prove every statutory factor or that every factor must weigh in favor of dismissal for the movant to be entitled to relief. See In re Gen. Elec., 271 S.W.3d at 687; see also In re Mantle Oil & Gas, 426 S.W.3d at 188. The statute also does not contain any language placing the burden of proof on a particular party; instead, section 71.051 "simply requires the trial court to consider the factors, and it must do so to the extent the factors apply." In re Gen. Elec., 271 S.W.3d at 687; see also In re Mantle Oil & Gas, 426 S.W.3d at 188.

         The doctrine of forum non conveniens has always afforded great deference to the plaintiff's choice of forum. In re Pirelli Tire, 247 S.W.3d at 675; In re Mantle Oil & Gas, 426 S.W.3d at 188. However, the doctrine "generally affords substantially less deference to a nonresident's forum choice." In re Pirelli Tire, 247 S.W.3d at 675; In re Mantle Oil & Gas, 426 S.W.3d at 188; see also Quixtar Inc. v.Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex. 2010) (per curiam) (holding same in common-law forum non conveniens context and noting fact "that a plaintiff is not a Texas resident speaks directly to a defendant's burden" in establishing propriety of dismissal). The forum non conveniens doctrine recognizes "that the plaintiff's choice must sometimes yield in the public interest, and in the interest of fundamental fairness." In re Pirelli Tire, 247 S.W.3d at 675. Dismissal on forum non conveniens grounds is appropriate when sufficient contacts between the defendant and the forum state exist to confer personal jurisdiction, but the case itself has no significant connection to the forum state. Id. at 675-76; In re Mantle Oil & Gas, 426 S.W.3d at 188-89. "'It is ...


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