Taylor et al v. TESCO Corporation (US)

Filing 321

MEMORANDUM AND ORDER on 306 Ex Parte MOTION for Leave to File Fourth Supplemental and Amended Complaint, 305 MOTION to Strike 301 Answer to Third Party Complaint to Crossclaim MOTION to Strike 301 Answer to Third Party Complaint to Crossclaim, 230 MOTION to Dismiss Based on Forum Non Conveniens, 232 MOTION to Expedite Consideration of Choice of Law (Fact Discovery due by 3/15/2013, Dispositive Motion Filing due by 4/1/2013, Joint Pretrial Order due by 5/15/2013, Docket Call set for 6/7/2013 at 04:00 PM in Courtroom 11D before Judge Ewing Werlein, Jr)Signed by Judge Ewing Werlein, Jr. Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KEITH TAYLOR and BARBARA
TAYLOR, INDIVIDUALLY AND ON
BEHALF OF THEIR TWO MINOR
CHILDREN, DAVID A. TAYLOR and
DARYEL TAYLOR,
Plaintiffs,
CIVIL ACTION NO. H-11-00517
TESCO CORPORATION (US),
TESCO CORPORATION, PRIDE
INTERNATIONAL, INC., and
MEXICO DRILLING LIMITED, LLC,
Defendants.
MEMORANDUM AND ORDER
Pending are Defendant Tesco Corporation's Motion to Dismiss
Based on Forum Non Conveniens (Document No. 230), Defendants Tesco
Corporation

(US) and Tesco Corporation's Motion for Expedited

Consideration of Choice of Law (Document No. 232) , Defendants Pride
International, Inc. and Mexico Drilling, LLC1s Motio3 to Strike
Answer

of

Tesco

Corporation

and

Tesco

Corporation

(US) to

Crossclaim (Document No. 305),' and Plaintiffs' Opposed Motion for

This motion was to strike an Answer mistakenly filed in this
cause by the Tesco Defendants when it should have been filed in the
severed cause, No. H:12-CV-2889. The Answer and Pride's Motion to
Strike are both superceded by Pride's First Amended and
Supplemental Complaint, and the Tesco Defendantst Answer thereto,
filed in the severed cause No. H-12-CV-2889. Accordingly, the
Motion at Document No. 305 is GRANTED, both because the Tesco
Defendants' Answer to the severed original crossclaim should not
have been filed under this cause number and, in any event, it has
been superceded.

Leave to File Fourth Supplemental and Amended Complaint (Document
No. 306). Plaintiffs Keith Taylor and his wife assert claims i n t e r

a l i a of strict products liability and negligence against Defendants
Tesco Corporation
and

together

( "Tesco")

with

International, Inc .
("Mexico

, Tesco Corporation (US)

Tesco,
( "Prider1,
)

Drilling,"

and

"the

Tesco

( "Tesco

Defendants"),

US,"

Pride

and Mexico Drilling Limited, LLC

together

with

Pride,

"the

Pride

Defendants"), for injuries sustained by Plaintiff Keith Taylor when
working on a fixed oil platform in the Bay of Campeche off the
coast of Mexico on January 1, 2009.

After carefully considering

the motions, responses, and the applicable law, the Court concludes
as follows.

I.

Motion to Dismiss Based on Forum Non Conveniens

Tesco moves

to

dismiss based

on

forum

non

conveniens,

seeking--as Tesco US did when the case was before the Louisiana
court--dismissal based on the assertion that Mexico is the proper
The United States District Court for
forum for this litigati~n.~
the Eastern District of Louisiana conditionally granted Defendant
Tesco US'S motion to dismiss for forum non conveniens, provided
that each Defendant agree to certain conditions, including their
submission to the jurisdiction of the Mexican courts and waiver of
any jurisdictional defenses not available to them when the case was

Document No. 230-1 at 6 .

first filed in L ~ u i s i a n a . ~The Tesco Defendants agreed to the
foregoing and other conditions set by Judge Fallon, but the Pride
Defendants did not, and therefore the case was not dismissed for
forum non c ~ n v e n i e n s . ~
Judge Fallon then transferred the case to

this Court "for the convenience of the parties and witnesses, and
in the interest of justice," pursuant to 28 U.S.C.

§

1404(a).

Document No. 142. The Pride Defendants, in response to the present
motion, "reserve their rights to object to or reject any conditions
placed on the di~missal."~
"A federal court sitting in diversity applies the federal law
of forum non conveniens in deciding a motion to dismiss in favor of
a foreign forum." DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785,
793 (5th Cir. 2007). The forum non conveniens analysis begins with
deciding whether there is an alternative forum, considering the
"amenability

of

the

defendant

to

service

of

process

availability of an adequate remedy in the alternative forum."

and

I.
d

"An alternative forum is considered available if the entire case
and all parties can come within its jurisdiction."

Vascruez v.

~ridqestone/Firestone,
Inc., 325 F.3d 665, 671 (5th Cir. 2003) . If
an alternative forum exists, the Court then weighs both private and
public interest factors to determine if dismissal is appropriate.

Document No. 123 at 14-15.
Document Nos. 133, 134, and 136.
Document No. 241 at 1.

Sauui v. Pride Cent. Am., LLC, 595 F.3d 206, 212 (5th Cir. 2010).
Tesco bears the burden of proof on all elements of the analysis.
DTEX, LLC, 508 F.3d at 794. The Court applies a strong presumption
in favor of the plaintiff's choice of forum, which should not be
disturbed unless the private and public interest factors weigh
strongly in favor of another forum.

Piper Aircraft Co. v. Revno,

102 S. Ct. 252, 265-66 (1981).
Tesco contends that Mexico is an available alternative forum,
and cites case law so holding in situations where d e f e n d a n t s a g r e e
t o submit t o i t s j u r i s d i c t i o n .

Sauui, 595 F.3d at 212; In re Ford

Motor Co., 591 F.3d 406, 412 (5th Cir. 2009) .

In this case,

however, the Pride Defendants have already declined to submit
themselves to the jurisdiction of Mexican courts, and indicate that
they would likewise oppose any conditions imposed by this Court
were it to conclude that dismissal is appropriate. Tesco's motion
therefore impliedly argues that this Court should unconditionally
grant the motion. Tesco states that Mexico Drilling is amenable to
suit in Mexico because it has its principal place of business in
Mexico, and both Pride Defendants are amenable to suit in Mexico
because they stated in an earlier filed 12 (b)(2) motion that
Plaintiffs could have brought this suit against them in M e ~ i c o . ~
However, Tesco provides no explanation of whether service of
process could be executed on the Pride Defendants, and HoustonDocument No. 230-1 at 10-11 (citing Document No. 46-1 at 9) .
4

based Pride, in particular; how it would be so executed; how
Mexican law would determine whether the Pride Defendants were
amenable to suit there; and whether the Pride Defendants would meet
the jurisdictional requirements of a court in Mexico.

Simply put,

Tesco has not shown that all Defendants are amenable to suit in
Mexico and, therefore, has not met its burden to show that Mexico
is an available forum.

The Court cannot unconditionally dismiss

this case without adequate assurance that Mexico is an available
forum. 'Dismissal of an action because of forum inconvenience when
there is in fact no alternative forum is an abuse of discretion."
Constructora S~ilimers,
C.A. v. Mitsubishi Aircraft Co., Inc., 700
F.2d 225, 226 (5th Cir. 1983) (finding that district court abused
its discretion when it unconditionally dismissed case where it was
not clear that the alternative forum was available and adequate and
holding that when such is not clear, the district court can only
dismiss if it imposes conditions, such as requiring parties to
accept service and waive objections to personal jurisdiction).
Tescols motion is therefore denied.

The Court further notes that Tesco seeks dismissal to either
Campeche or Tabasco, Mexico but addresses the availability of suit
contention to Mexico in general, providing the Court with no
explanation regarding whether there is or might be a difference in
the Pride Defendants' amenability to suit in either location. See
Vasauez, 325 F.3d at 671 (parties submitted to the jurisdiction of
the State of Nuevo Leon).

11.

Expedited Consideration of Choice of Law

The Tesco Defendants' Motion for Expedited Consideration
(Document No. 232) seeks an immediate resolution of the choice of
law issue. A determination of choice of law is necessarily a fact
intensive process.

Also pending are motions for summary judgment

filed by all Defendants. At this stage, it will be more efficient
to consider the choice of law question concurrently with the
Court s consideration of the motions for summary judgment.

The

motion for expedited consideration is therefore DENIED.
111. Motion for Leave to File Amended Complaint
Plaintiffs'

Opposed

Motion

for

Leave

to

File

Fourth

Supplemental and Amended Complaint (Document No. 306), which should
be denominated Fifth Amended Complaint because Plaintiffs1 Fourth
Supplemental

and Amended

Complaint

(Document No.

currently the live pleading in the case.

185-2), is

Plaintiffs desire to

amend to add a claim for punitive damages.
Federal Rule of Civil Procedure 15(a) provides that the court
"should freely give leave when justice so requires ."
P. 15 (a)(2).

FED. R. CIV.

While the decision whether to grant leave is left to

the discretion of the court, the Fifth Circuit has stated that
"discretion in this context may be misleading, because Fed. R. Civ.
P. 15(a) evinces a bias in favor of granting leave to amend.

. . .

Stated differently, district courts must entertain a presumption in
favor of granting parties leave to amend."
Health Serv.

&

Maveaux v. Louisiana

Indmen. Co., 376 F.3d 420, 425 (5th Cir. 2004)

(quotation omitted) .

In deciding whether to grant leave to file an

amended pleading, the district court may consider such factors as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated

failure to

cure deficiencies by

amendments

previously allowed, undue prejudice to the opposing party, and
3
futility of amendment. Wimm v. Jack Eckerd C o r ~ . , F.3d 137, 139
(5th Cir. 1993) (citations omitted) ; see also Foman v. Davis, 83 S.
Ct. 227, 230 (1962) (identifying the same factors).
Plaintiffs contend that their proposed punitive damages claim
is based on additional facts elicited at the October 17, 2012
deposition of Tescors corporate representative.

The testimony,

together with a previously produced report and safety bulletin,
pertain to a prior accident in Australia where a worker lost parts
of several of his fingers due to contact with a Tesco-manufactured
top-drive.
The Tesco Defendants challenge the motion to amend for three
reasons. First, they argue that the amendment is untimely because
Plaintiffs have possessed the report on the Australian accident and
the

safety bulletin

since March, 2012.

Second, the

Tesco

Defendants contend that evidence regarding the previous accident is
inapplicable.

And third, they assert that the addition of a

punitive damages demand changes the landscape of the case and would
cause undue delay and prejudice to the Tesco Defendants.
While the Tesco Defendants are correct that this case is three
years old, they do not contend, nor does the Court find, that
Plaintiffs have purposely sought to delay adjudication of the case,
or that the present motion is tainted by dilatory motive. It
appears that Plaintiffs did not have access to the report about the
previous accident and the safety bulletin until March, 2012, and
Plaintiffs contend that it was not until the October 17, 2012
deposition of Tesco's corporate representative that they learned
additional facts that they believe merit an award of punitive
damages. Within a month thereafter Plaintiffs moved to amend. All
things considered, the motion to amend does not come so late as to
require that it be denied.
The Tesco Defendants further contend that the previous Tesco
top-drive accident is so factually dissimilar as to require its
exclusion from evidence at trial.' The Tesco Defendants ultimately
may be correct on their evidence objection, but such is not so
manifestly certain at this stage of proceedings as to preclude
Plaintiffs from filing the amended complaint.
Finally, the Tesco Defendants contend that the amendment will
substantially change the case and therefore prejudice them and

Document No. 311 at 4-5.
8

cause undue delay.g

They assert that because punitive damages

require evidence of knowledge and intent, they will have to conduct
additional discovery because the witnesses deposed have not been
questioned on these topics.1°

Some additional discovery may be

appropriate, but evidence of knowledge and intent, or the absence
of such, would appear to be within the domain of the Tesco
Defendants and their representatives, and hence should not place an
unreasonable discovery burden on them.
The Tesco Defendants1 alternative request for enlargement of
time if the amended complaint is allowed is well taken, and also
will be GRANTED, to allow a period of 45 days for additional
pretrial discovery, if needed, only on Plaintiffs' punitive damages
claim.
IV.

Order

For the foregoing reasons, it is
ORDERED that Defendant Tesco Corporation's Motion to Dismiss
Based on F o r u m N o n C o n v e n i e n s (Document No. 230), and Defendants
s
Tesco Corporation (US) and Tesco Corporationf Motion for Expedited
Consideration (Document No. 232) are both DENIED; and Plaintiffs'
Opposed Motion for Leave to File [Fifth] Supplemental and Amended
Complaint (Document No. 306) is GRANTED.

The Docket Control Order is AMENDED as follows:
FACT DISCOVERY only on Plaintiffs' punitive
damages claim must be completed by:
Written discovery requests are not timely if
they are filed so close to this deadline that
the recipient would not be required under the
Federal Rules of Civil Procedure to respond
until after the deadline.
DISPOSITIVE MOTIONS only on Plaintiffs'
punitive damages claim by:

March 15, 2013

April 1, 2013

JOINT PRETRIAL ORDER will be filed by:
Plaintiffs are responsible for timely
filing the complete Joint Pretrial Order
to include Voir Dire and Jury Issues.

May 15, 2013

DOCKET CALL is set for:
No instrument filed within 7 days before
Docket Call will be considered at Docket Call.

June 7, 2013
4:00 p.m.

It is SO ORDERED.
The Clerk will enter this Order and provide a correct copy to
all parties.
SIGNED at Houston, Texas, on this

UNITED S

day of January, 2013.

DISTRICT JUDGE

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