Original Proceeding on Petition for Writ of Mandamus
consists of Justices Keyes, Brown, and Lloyd.
Russell Lloyd Justice.
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. 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
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).
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.
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. 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
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.
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
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
RPIs case was originally set for trial on August 28, 2017.
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.
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.
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
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.
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.
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.
XTO filed its petition for writ of mandamus, the
Maheu-Guillen lawsuit and the Stassinos
lawsuit were consolidated for discovery and pretrial
Standard of Review
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).
to Dismiss for Forum Non Conveniens
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.).
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.
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.
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 ...