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Liserio v. Colt Oilfield Services, LLC

United States District Court, W.D. Texas, San Antonio Division

November 20, 2019

ROBERT LISERIO, Plaintiff,
v.
COLT OILFIELD SERVICES, LLC, ROY E. AGUILAR, TOTAL TANK SYSTEMS, LLC, and TERRY BOOKER Defendants.

          ORDER

          XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

         On this date, the Court considered Plaintiff's Motion to Remand (docket no. 5), Defendants' Response (docket no. 7), and Plaintiff's Reply (docket no. 8). After careful consideration, Plaintiff's motion is DENIED.

         BACKGROUND

         On September 16, 2019, Plaintiff filed this civil action in the 438th Judicial District Court, of Bexar County, Texas, alleging breach of contract, breach of fiduciary duties, breach of good faith among members of a joint venture, and conversion. Docket no. 1-1.[1] Plaintiff, a Wyoming citizen, brought suit against the following defendants: (1) Colt Oilfield Services, LLC (“Colt”), a Texas LLC in which “all registered members'” are Texas citizens; (2) Total Tank Systems, LLC (“Total Tank”), a Texas LLC whose two members (Roy and Justin Aguilar) are Texas citizens; (3) Roy Aguilar (“Aguilar”), a Texas citizen; and (4) Terry Booker (“Booker”), a Texas citizen. Docket no. 1-1 at 3; no. 4 at 2. The dispute arises from a complex set of allegations involving multiple actors in the oil and gas service industry, but at bottom, Plaintiff alleges he was a party to two agreements whereby he was to receive proceeds from Colt (and therefore also from Total Tank)[2] and that Defendants breached their contractual and fiduciary duties to him.

         The first source of this alleged obligation is a conversation between Plaintiff and Booker in 2010, when Plaintiff began working for Colt as leader of all Wyoming operations. Docket no. 1-1 at 5. In that conversation, Plaintiff claims that Booker told him that Plaintiff would receive a 15% interest in Colt and that he would therefore be a “silent partner.” Id. And “[a]fter this time, Plaintiff always referred to his interest in Colt as a 15% ‘silent partner'…notwithstanding the recorded membership in Aguilar, ” as Aguilar is the only named member of Colt. Id. at 5-6; see also docket no. 7-5 at 1. Plaintiff then refers to this “equitable interest” as a joint venture and that, therefore, “Plaintiff was [sic] been employed by Colt over the past years since 2010….” Id. Indeed, Plaintiff alleges that he properly received his pro-rata 15% of distributions from 2014 to 2016. Docket no. 1-1 at 6. Plaintiff claims he “always treated Booker and Aguilar as his partners and joint owners in the Colt equity” but concedes that “only Aguilar and Booker had access to the books and records of Colt and Total Tank.” Id. at 8-9. Those two, Plaintiff admits, acted as chief officers “with the authority and power to cause Colt or Total Tank to act, or refrain from acting…” and with the “actual authority to bind Colt and Total Tank to commitments, contracts, and agreements….” Id. at 9, 13.

         Plaintiff's second alleged source of obligation stems from an agreement in 2016 (the “2016 Agreement”) which allegedly increased Plaintiff's distribution share to 25% and provided a 25% share of any net proceeds upon any potential sale of Colt. Id. at 11. Unlike the first, this agreement was reduced to a notarized writing which states:

I, Roy E. Aguilar, acknowledge that Robert Liserio and his assigns or heirs is entitled to twenty-five (25%) of all distribution from Colt Oilfield Services, LLC. The benefactors will also be entitled to twenty-five percent (25%) of the net proceeds upon sale of said company.

         Docket no. 1-1 at 11. Nonetheless, Plaintiff concedes this agreement “was not the best expression of clarity as to the full description of the party's [sic] relationship, or their ownership as ‘silent partners….'” Id. Plaintiff claims the parties intended the 2016 Agreement to modify certain parts of the 2010 oral agreement but that other elements of the prior agreement were to persist; specifically, Plaintiff states that Booker and Aguilar promised to properly account for all distributions and make only pro-rata distributions. Id. at 13.

         Plaintiff claims that from these agreements arose either a variety of fiduciary duties or “at least a ‘special relationship.'” Id. at 13-14. Plaintiff claims Defendants breached these fiduciary duties-or the special relationship-through various means including refusing to make any further distributions and negotiating to sell Total Tank and Colt to PetroStar Services, LLC.[3] Due to these alleged breaches, Plaintiff seeks damages, specific performance, the imposition of a constructive trust, and the completion of an accounting. Docket no. 1-1 at 24-34.

         On September 25, 2019, Defendants timely filed this Notice of Removal before being served. Docket no. 1. In that Notice, Defendants initially failed to adequately allege the citizenship of Colt and Total Tank as LLCs, so this Court ordered Defendants to amend their filings. Docket no. 3. In their Amended Notice of Removal, Defendants pled the following:

4. Defendant Colt Oilfield Services, LLC, is a Texas limited liability company with its principal place of business in Bexar County, Texas. Colt Oilfield Services, LLC consists of one member, namely, Roy E. Aguilar. Roy E. Aguilar is a citizen of Texas.
5. Defendant Roy E. (Eddie) Aguilar is an individual who is a citizen of Texas.
6. Defendant Total Tank Systems, LLC, is a Texas limited liability company with its principal place of business in Bexar County Texas. Total Tank Systems, LLC consists of two members, namely, Roy E. Aguilar and Justin Aguilar. Roy E. Aguilar is a ...

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