Hess Corporation v. Schlumberger Technology Corporation

Filing 40

MEMORANDUM OPINION AND ORDER granting in part and denying in part 29 MOTION to Dismiss Defendant's Motion to Dismiss Second Amended Complaint Under Rule 12(b)(6) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
June 29, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

HESS CORPORATION,

§
§
§
§
§
§
§
§
§
§

Plaintiff,

v.
SCHLUMBERGER TECHNOLOGY
CORPORATION,
Defendant.

David J. Bradley, Clerk

CIVIL ACTION NO. H-16-3415

MEMORANDUM OPINION AND ORDER

Pending before the court is Defendant's Motion to Dismiss
Second Amended Complaint Under Rule 12(b) (6)
to Dismiss")

(Docket Entry No. 29).

("Defendant's Motion

For the reasons stated below,

the motion will be granted in part and denied in part.
I.

Factual and Procedural Background

This case arises
several

Subsurface

Corporation

agreement

Safety

("Hess")

( "Schlumberger") . 1
in

from the

from

sale and subsequent failure

Valves

("SSVs")

Schlumberger

purchased

Technology

by

of

Hess

Corporation

Hess and Schlumberger set out the terms of the

Commercial

"Commercial Agreement") . 2

Agreement
Exhibit J

Number

46000010410

(the

to the Commercial Agreement

1

The following facts are presented as alleged in Plaintiff's
Second Amended Complaint (Docket Entry No. 25).
2

Exhibit 1 - Tab 1 to Plaintiff's Second Amended Complaint,
Docket Entry No. 25-1.

sets

out

the

quality

standards

agreed

upon

by

the

parties. 3

Section 2.10 of the exhibit, titled "Engineering, Design Reviews &
Safety Critical Equipment," states:
comply

with

the

latest

editions

"Contractor equipment shall
of

applicable

standards

and

specifications, e.g.,- API, ASME, ANSI, ASTM, ASNT, ISO, etc., as
required by local/federal regulations, specified by the Company or
identified within the Contract." 4
The Commercial Agreement, along with other documents concerning
the terms of the purchase, was subject to Master Service Contract
No. 7525 (the "MSC"), entered into by the parties in February of
2000. 5

The MSC states that it "shall control and govern all work

performed by [Schlumberger] for [Hess] , and shall be deemed to be
incorporated in full in every subsequent oral and/or written work
or purchase order, service agreements or other project documents. " 6
The MSC also states that "[u]pon [Hess] notifying [Schlumberger] of
the

services,

desired,
strict

products,

[Schlumberger]
conformity

with

equipment,

materials

or

other

will commence furnishing same
the

specifications

and

items
in

requirements

contained herein and in any applicable work order, purchase order,

3

Id. at 72-81.

4

Id. at 76-77.

5

Exhibit 1 - Tab 3 to Plaintiff's Second Amended Complaint,
Docket Entry No. 25-3.
6

See id. at 3,

§

1.
-2-

service

agreement

or

other project

document." 7

The

MSC

also

contains the following express warranty:
[Schlumberger]
warrants
that
all
equipment,
products, materials and other items furnished hereunder
shall:
(1) be new if specified by [Hess]; (2) be free
from defects in design, materials, fabrication and other
workmanship; and (3) conform to AHC's specifications,
drawings
or other descriptions
contained
in the
applicable service agreement, purchase order, work order
or other project document. [Schlumberger] warrants that
all work and other services performed hereunder (whether
by [Schlumberger] , its subcontractors or other parties
for whom it is responsible) shall be free from all faults
and defects and of a quality consistent with the
prevailing standards of workmanship for experienced
contractors with expertise in the particular type of work
or service being performed. 8
The MSC limits Schlumberger's warranties to "a period of one
year after [Schlumberger's] delivery and/or installation . .

( 1)
119

The MSC expressly and conspicuously disclaims all other express or
implied warranties:
[SCHLUMBERGER] MAKES NO OTHER WARRANTY AS TO PRODUCTS,
WORKMANSHIP OR MERCHANTABILITY, WHETHER EXPRESSED OR
IMPLIED (INCLUDING, WITHOUT LIMITATION, THAT THE PRODUCTS
OR SERVICES SHALL BE FIT FOR ANY PARTICULAR PURPOSE),
EXCEPT AS EXPRESSLY STATED HEREIN OR IN AN EXPRESS
AMENDMENT HERETO . 10
The SSVs at issue were purchased for wells in the Tubular
Bells Field,

located 135 miles southeast of New Orleans on the

7

Id. at 3 ,

8

Id.

9

Id. at 4,

§

2 (a) .

§

2(a)

-3-

Outer Continental Shelf. 11
Bells Field.

Hess is the operator of the Tubular

The SSVs for Wells D,

B,

and C were installed in

April 2014, June 2014, and April 2015, respectively. 12
on Well D began on January 14,
failure

on August

10,

2015. 13

2015,

Production

and ceased due

Production on Well

to valve

B began on

December 14, 2014, and ceased due to valve failure on January 29,
2016. 14

Production on Well C began on July 21, 2015, and ceased due

to valve failure on July 28, 2016. 15
Hess reported each well failure to Schlumberger.

Schlumberger

investigated the failures and concluded that the primary cause of
the valve failures was the quality of the Metal Spring Energized
( "MSE")

seals.

On April 29,

2016,

Schlumberger issued a report

stating that it had identified an issue with the seals and had
engaged in a worldwide recall of all SSVs in inventory manufactured
from 2012 to 2015. 16

The MSE seals identified in the investigation

were part of the suspect batches.

Schlumberger's engineers also

informed Hess that the issues with the MSE seals may have been

11

Plaintiff's Second Amended Complaint, Docket Entry No.
p. 12 ~ 27.

25,

12Id. at 15, ~~ 41-43.
13

Id. ~ 44.

14

Id. ~ 45.

15Id. at 16, ~ 46.
16 Schlumberger Field Return Analysis Report Rev. 7, dated
April 29, 2016, Exhibit 3 to Plaintiff's Second Amended Complaint,
Docket Entry No. 25-10, p. 30.
-4-

exacerbated

by

Schlumberger's

own

Factory

Acceptance

Testing,

during which high-pressure bleed off may have damaged or at least
compromised the seals. 17

Schlumberger informed Hess that destruc-

tive testing confirmed that the MSE seals in the Well B valve
suffered from the same issue as those in the Well D valve.
On May 17, 2016, Hess notified Schlumberger that it revoked
acceptance of the Schlumberger Safety Valves used in Wells D and B
pursuant to

§

2.608 of the Texas Business & Commerce Code. 18

Hess

revoked acceptance of the SSV used in Well C on July 29, 2016, on
the same basis. 19

Hess now seeks to recover damages for breach of

contract.
Schlumberger moved to dismiss Hess's Original Complaint on the
basis

that

warranties.

the

SSVs

complied with

Schlumberger' s

time-limited

Because the court could not determine the viability of

Hess's claims from its Original Complaint, the court allowed Hess
to amend in order to clarify its allegations.

Hess was instructed

to identify specific contractual obligations with which the valves
failed

to

The

conform.

court

also

directed

the

parties

to

articulate a test for distinguishing between claims that sound in
contract and warranty claims

17

to assist

18

court

in analyzing

Plaintiff's Second Amended Complaint, Docket Entry No. 25,
60.

~

p. 20

the

Id.

at 26,

~

77.

-5-

Schlumberger's

argument

that

its

disclaimer

precluded

Hess's

warranty claims.
Hess now alleges that the SSVs containing the defective MSE
seals

were

non-conforming

goods

and

that

the

non-conformities

substantially impaired the value of the SSVs to Hess.

Hess lists

several ways in which SSVs were non-conforming, but each of Hess's
allegations falls into one of two categories:
not designed,

manufactured,

(1)

the SSVs were

or tested according to the relevant

contractually agreed standards (e.g., American Petroleum Institute
(API) , International Organization for Standardization (ISO) , etc.) ,
or (2) the SSVs failed to perform as specified (e.g., non-commanded
closures and a completion life span of less than 10 -years) . 20
seeks to recover for breach of contract pursuant to
Texas Business and Commerce Code.

§

Hess

2.711 of the

Schlumberger moves to dismiss

pursuant to Federal Rule of Civil Procedure 12(b) (6), citing its
disclaimer and the fact that each of the installed SSVs functioned
for a period of at least one year.

20

Hess asserts a separate breach-of-contract claim that makes
no reference to Chapter 2 of the Texas Business and Commerce Code.
Hess alleges that "Schlumberger breached its contract obligations
with respect to the manufacture and inspection of the Schlumberger
Safety Valves that Schlumberger delivered to Hess that failed."
Plaintiff's Second Amended Complaint, Docket Entry No. 25, p. 30
~ 100.
The alleged result of Schlumberger' s breach was that
"Schlumberger delivered Schlumberger Safety Valves to Hess that
were unable to function under the required contractual conditions
and according to the required contractual configurations." Id. at
31, ~ 102. Because the substance of this claim is the same as the
first - i.e., that Schlumberger breached its contract by delivering
non-conforming goods - the court concludes that the claims are
indistinguishable and that Chapter 2 of the Texas Business and
Commerce Code provides the applicable law.
-6-

II.
A.

Legal Standard

Rule 12 (b) (6)

In a motion to dismiss under Rule 12(b) (6),

the court must

"'accep[t] all well-pleaded facts as true and vie[w] those facts in
the light most favorable to the plaintiff.'"
Aberdeen,

Mississippi,

681 F. 3d 215,

219

Bowlby v.

(5th Cir.

City of

2012).

"[A]

plaintiff's obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do."
Atlantic

Corp.

v.

Twombly,

127

(internal quotation marks omitted)

S.

Ct.

1955,

1964-65

Bell
(2007)

"Factual allegations must be

enough to raise a right to relief above the speculative level[.]"
Id. at 1965.

Dismissal under Rule 12(b) (6) is appropriate when a

plain-tiff's legal theory is incorrect:

"When a complaint raises

an arguable question of law which the district court ultimately
finds is correctly resolved against the plaintiff,
Rule 12 (b) (6) grounds is appropriate . . .
109

S.

Ct.

1827,

1833

(1989).

"[W]hen

"

dismissal on

Neitzke v. Williams,

the

allegations

in a

complaint, however true, could not raise a claim of entitlement to
relief, this basic deficiency should .

be exposed at the point

of minimum expenditure of time and money by the parties and the
court."

Twombly,

127 S.

Ct.

at 1966

omitted)

-7-

(internal quotation marks

B.

Texas Business and Commerce Code

Section

2.608

of

the

Texas

§

2.608

Business

and

Commerce

Code,

entitled "Revocation of Acceptance in Whole or in Part" states:
(a)
The buyer may revoke his acceptance of a lot or
commercial unit whose non-conformity substantially
impairs its value to him if he has accepted it
( 1)
on
the
reasonable
assumption
that
its
non-conformity would be cured and it has not been
seasonably cured; or
(2)
without discovery of such non-conformity if
his acceptance was reasonably induced either by the
difficulty of discovery before acceptance or by the
seller's assurances.
(b)
Revocation of acceptance must occur within a
reasonable time after the buyer discovers or should have
discovered the ground for it and before any substantial
change in condition of the goods which is not caused by
their own defects.
It is not effective until the buyer
notifies the seller of it.
(c) A buyer who so revokes has the same rights and
duties with regard to the goods involved as if he had
rejected them.
Whether a buyer properly revoked acceptance is a fact issue.
Trading Corp. v. Technology Ventures, Inc., 563 F. App'x
(5th
(Tex.

Cir.

2014)

App.

(citing

Fort

Worth

Neily v.
1987,

no

Arron,

724

writ)) .

S.W.2d
The

318, 325
908,

elements

revocation are:
(1) initial acceptance (with a reasonable assumption that
the non-conforming item would be cured and it is not
cured, or without discovery of the non-conforming item if
acceptance was induced by difficulty of discovery or by
seller's assurance); (2) of non-conforming item; (3) such
non-conformity substantially impairs the value to the
buyer; (4) and revocation occurs within a reasonable
time; (5) in any event, the revocation must occur before
-8-

Vemex

913
of

a substantial change in the condition of the goods occurs
(which change is not caused by defect of the goods) . The
determination of each of these elements is a question of
fact.
Neily, 724 S.W.2d at 913-14 (citing Vista Chevrolet v. Lewis, 704
S.W.2d 363, 368 (Tex. App. - Corpus Christi 1985), rev'd on other
grounds, 709 S.W.2d 176 (Tex. 1986)).
this

stage

of

the

proceedings

is

The only element disputed at
non-conformity.

The

court

concludes that Hess has alleged facts that plausibly support each
of the remaining elements and will therefore limit its analysis to
the disputed element.
III.

Application

Whether Hess's allegations raise an actionable claim depends
on

whether

the

facts

as

alleged

would

permit

Hess

to

revoke

acceptance of the SSVs after the contractual warranty period had
expired.

Hess alleges that it properly revoked its acceptance of

the Schlumberger valves because Schlumberger breached its contract
by delivering non-conforming goods.

Schlumberger argues that the

goods

the

conformed

to

the

terms

of

contract

and

that

the

disclaimer in the Master Service Contract precludes Hess's claims,
which Schlumberger argues are disguised warranty claims.
having extensively researched and briefed the issue,

Despite

the parties

have provided no binding precedent that squarely addresses the
issue before the court.
Hess's

Second

Amended

Defendant's

Motion

to

Complaint

Dismiss

Second
-9-

and

its

Amended

Opposition
Complaint

to

Under

Rule 12(b) (6)
§

2.608.

("Plaintiff's Opposition")

21

focus on the language of

Hess argues that whether the buyer has finally accepted

the goods is the "critical factor" in determining what remedies are
available to the buyer. 22

The Structural Metals case provides the

closest support for Hess's argument.
In the context of revocation, the court in Structural Metals
distinguished when a plaintiff may assert a

breach of contract

claim and when the plaintiff is limited to warranty claims based on
the delivery of non-conforming goods.
plaintiff

in

Structural

warranty claims
provide

Metals

based upon

engineering

and

the

2012 WL 5208543 at *7.

initially

brought

defendant's

manufacturing

contract

alleged

services

electrical system purchased from the defendant.

failure

needed

for

Id. at *1-2.

The
and
to
an
In

an earlier order the court had granted summary judgment for the
defendant on the plaintiff's breach of contract claim.

Id. at *3.

The court had relied on a case holding that "[o]nce a buyer has
accepted the goods and can no longer revoke that acceptance, it is
limited to recovering under section 2.714 of the UCC for breach of
warranty if the goods are defective or nonperforming."

Id. (citing

Bra-Tech Corp. v. Purity Water of San Antonio, 681 F. Supp. 2d 791,
7 9 6 n. 4

21

(W. D.

Tex.

2 010) .

"In deciding the motion for summary

Docket Entry No. 34.

22

Id. at 15 (citing Structural Metals, Inc. v. S & C Electric
Co., 2012 WL 5208543 at *7, Civil Action No. SA-09-CV-984-XR (W.D.
Tex. 2 012) ) .
-10-

judgment,

the Court's primary focus was on the fact that SMI was

complaining about defects in the goods as opposed to non-delivery
or a failure to perform."

Id. at *6.

On reconsideration the court held that "[a]lthough a failure
to deliver or perform gives rise to a breach-of-contract claim,
whether delivery of non-conforming goods or performance gives rise
to breach-of-warranty or breach-of-contract remedies depends on
whether

the

buyer

has

nonconformity."

Id.

Hanes Companies,

Inc.,

at *5

accepted

the

goods

despite

(citing Contractor's Source,

Civ.

A.

No.

09-CV-0069,

Inc.

the
v.

2009 WL 6443116

(S.D. Tex. Dec. 29, 2009) and noting that the case law "is murkier,
and

somewhat

contradictory"

non-conforming goods) .

in

the

case

of

delivery

of

"[T]he critical factor in determining the

remedies available to the buyer is whether the buyer has finally
accepted the goods,

not whether the buyer is complaining about

defects or non-conformities."

Id. at *7 (citing Selectouch Corp.

v. Perfect Starch, Inc., 111 S.W.3d 830,
2003, no pet.)

834

(Tex. App.- Dallas

The holding in Structural Metals thus supports the

position that a latent defect at the time of the delivery may be
grounds for later revocation if the buyer has not finally accepted
the goods with knowledge of the defect.
Schlumberger extrapolates a different rule from the case law:
"When a seller delivers nothing or delivers different goods than
the goods ordered, the seller has failed to comply with a contract
term.

When a seller delivers an inferior or defective version of
-11-

the

goods

ordered,

warranty." 23

the

seller

has

failed

to

comply

with

a

In support of its rule, Schlumberger cites a number

of cases that at least tangentially address the issue before the
court, but the different contexts and claims in those cases limit
their usefulness.

The court does not cite them here to avoid

further muddying an already murky area of law. 24
Schlumberger's position is best illustrated by a Fifth Circuit
case

distinguishing

contract

claims

from warranty claims.

In

Reynolds Metals Co. v. Westinghouse Electric Corp., 758 F.2d 1073
(5th Cir.

1985) ,

a

manufacturer sold electrical equipment

and

included in the bargain a "competent" engineer who was to supervise
installation of the equipment.

Id. at 1074.

During final inspec-

tion and startup of the equipment the manufacturer sent an engineer
who lacked extensive experience with the type of equipment being
installed and who understood his role to be providing technical
assistance rather than supervising.

Id.

at 1075.

A detection

system designed to warn of internal problems in the equipment was
improperly installed,

and the equipment,

which had an expected

23

Defendant's Motion to Dismiss, Docket Entry No. 29, p. 24.
Schlumberger acknowledges that the difference between "different"
and "defective" goods is case-specific and can be difficult to
determine.
Id. at 15.
Assuming Schlumberger' s distinction is
relevant, such a determination would best be made after a full
presentation of the facts at trial. Indeed, none of Schlumberger's
cited cases resulted in dismissal on the pleadings. The court is
skeptical that these issues can be resolved on summary judgment.
24

The court nevertheless assures the parties that it has read
and analyzed each case.
-12-

life-span of twenty to thirty years, failed less than a year after
being put into service.
Id.

Id.

The buyer submitted a warranty claim.

The manufacturer denied the claim on the ground that its

warranty had expired.

Id. at 1076.

The buyer sued, asserting both warranty and contract claims. 25
Id.

At the close of the evidence the district court granted an

instructed verdict that eliminated the buyer's warranty claims.
Id. at 1076-77.

But the court concluded that the manufacturer's

warranty disclaimers did not necessarily bar a breach of contract
claim based on the manufacturer's failure to provide a competent
engineer to supervise installation.

Id. at 1077.

in favor of the buyer on its contract claim.
appealed.

Id.

Id.

The jury found
The manufacturer

The Fifth Circuit affirmed the viability of the

contract claim, reasoning:
If [the manufacturer] had provided a competent engineer
to supervise installation of the transformer, and that
engineer had not performed as expected, there would be a
breach of warranty but not a
total
failure
of
performance. In contrast, if [the engineer] did not even
qualify as a "competent" engineer and did not believe
that it was his duty "to supervise" [the buyer] in the
installation, then by supplying him [the manufacturer]
failed to perform at all as promised under the contract.
Id. at 1078.
Both of the parties' proposed rules are correct -- as far as
they go -- and are compatible.

Hess is correct in pointing out

25

The buyer also alleged causes of action in negligence and
strict liability, but those claims were barred by applicable
statutes of limitation.
-13-

that

§

2. 608

does

not

distinguish between non-conformity with

warranty terms and other contractual obligations.

And Schlumberger

correctly argues that failure to perform sounds in contract whereas
defective performance sounds in warranty.

The court concludes that

the parties' actual disagreement lies in whether the SSVs conformed
to the terms of the contract at the time of delivery.

Schlumberger

argues that the SSVs were conforming, as evidenced by the fact that
each functioned throughout the warranty period.

Hess contends that

Schlumberger's failure to perform its contractual obligations when
manufacturing the SSVs rendered them non-conforming upon delivery
and

that

discovered

2. 608

§

the

permits

Hess

non-conformity,

to

revoke

regardless

acceptance
of

whether

when

it

the

non-

conformity involved a warranty or other contractual term.

The

question before the court on a motion to dismiss is whether Hess
has plausibly alleged that Schlumberger's SSVs were non-conforming
at the time of delivery.

Because Hess alleges that Schlumberger

did not fulfill its contractual obligations when manufacturing the
SSVs, and because Hess alleges that Schlumberger's failure resulted
in delivery of the allegedly defective non-conforming MSE seal that
was present at the time of deli very,

the

court concludes that

Hess's claim is plausible.
Schlumberger's proposed rule provides the second basis for
Hess's breach-of-contract claim,

as illustrated by applying the

reasoning in Reynolds to this case.
bargained for

5~"

Schlumberger argues that Hess

valves and that Hess received
-14-

5~"

valves.

Hess

alleges that it contracted not only for SSVs of a certain size but
for SSVs that complied with API 14A industry standards.

Among

these standards is the requirement that "SSSV equipment," such as
the equipment Hess ordered, "shall be manufactured to drawings and
specifications that are substantially the same as those of the
size, type, and model SSSV equipment that has passed the validation
test. " 26

Hess alleges

that

the SSVs were manufactured using a

different spring than the one used in the design that had passed
the API validation test.

Hess does not allege that the spring was

defective or inferior but different (i.e., non-conforming).

Hess

bargained for a part designed and tested under API standards.

Hess

alleges that the components of the part it received had not been so
tested.

Accepting Hess's allegations as true for the purposes of

a motion to dismiss and viewing them in the light most favorable to
Hess, Hess's claim sounds in contract.
The
"SSVs"

court's

for

reasoning

"engineer"

can be

illustrated by

and "API-compliant"

for

substituting

"competent."

If

Schlumberger had provided API-compliant SSVs and those valves had
not

performed as

expected,

Schlumberger might

warranty but not totally failed to perform.

have

breached a

In contrast,

if the

SSVs were not the APr-compliant SSVs Hess contracted for,

then

Schlumberger failed to perform as promised under the contract.

The

26

API Specification 14A § 6. 3. 2. 2, Exhibit 1
Tab 5 to
Plaintiff's Second Amended Complaint, Docket Entry No. 25-5, p. 11
(page number at bottom of document)
-15-

court

concludes

that,

insofar

as

contractually agreed-upon features of

Hess's

claims

the goods,

concern

they sound in

contract.
Some

of

Hess's

alleged

non-conformities

do

not,

however,

support its breach-of-contract claim under either of the rationales
explained above.

Hess seeks

to revoke acceptance of

the SSVs

because they did not maintain the ability to remain in the open
position and did not have a 10-year functional life span.

These

allegations involve the failure of the SSVs to perform as expected,
not a latent defect present at the time of delivery.

Schlumberger

correctly argues that allowing revocations on the basis of the
failure of goods to perform after the expiration of their warranty
period

would

make

time-limited

warranties

meaningless.

Hess

alleges that it contracted for SSVs that would have the ability to
be held open in the open position, but, as the disclaimers in the
MSC make clear, Schlumberger did not warrant that the valves would
do so indefinitely.

Schlumberger explicitly warranted performance

of the parts for one year only.
Schlumberger' s contractual obligation to deliver API-compliant
parts,

on the other hand,

is not time-limited.

Either the SSVs

were APr-compliant on delivery or they were not compliant.
a

fact

issue.

Schlumberger argues

that Hess

That is

is an "extremely

sophisticated" party, that Hess bargained for a one-year warranty,
and that the parts performed for one year.
both ways.

But that argument cuts

Hess also bargained for specific parts that had been
-16-

designed and tested to rigorous standards.

If the valves or their

components did not meet those standards, then Schlumberger did not
provide

what

Hess

bargained

for.

Hess

cannot

have

knowingly

assumed the risk if it could not have known the SSVs were nonconforming at the time of delivery.
IV.

Conclusions and Order

For the reasons stated above,

the court concludes that Hess

has pled sufficient facts to support a viable revocation claim.
Schlumberger's
conforming.

argument

is,

in

essence,

that

the

SSVs

were

But that is for the trier of fact to determine.

Hess

may proceed with its claims based on the alleged non-conformity of
the SSVs at the time of delivery.

Hess may not proceed with its

claims based on the failure of the SSVs to function after the
warranty period had expired.
this

distinction

to

each of

The court has not attempted to apply
Hess's

factual

allegations.

The

parties should endeavor in good faith to apply the court's ruling
to Hess's claims before the upcoming scheduling conference in order
to streamline the case and to inform the scope of discovery.
Schlumberger' s

Motion to Dismiss

(Docket Entry No.

2 9)

is

GRANTED IN PART and DENIED IN PART.
SIGNED at Houston, Texas, on this the 29th day of June, 2017.

UNITED STATES DISTRICT JUDGE
-17-