Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/28/2015 4:26:30 PM CHRISTOPHER A. PRINE Clerk *1 ACCEPTED 01-15-01044-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/28/2015 4:26:30 PM CHRISTOPHER PRINE CLERK
NO. 01-15-01044-CV
__________________________________________________________________
IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON __________________________________________________________________
Don Prochaska,
Appellant , v.
Matthew Barnes, Montcalm Co., LLC and Schain Leifer Guralnick Appellees.
__________________________________________________________________
APPELLEE SCHAIN LEIFER GURALNICK’S OBJECTION TO MEMORANDUM ORDER OF REFERRAL TO MEDIATION __________________________________________________________________
From the 334 th District Court of Harris County, Texas.
Trial Court Cause No. 2013-35800 __________________________________________________________________
TO THE HONORABLE COURT:
Appellee Schain Leifer Guralnick (“SLG”) files this Objection to the Memorandum Order of Referral to Mediation (the “Referral Order”), pursuant to Tex. Civ. Prac. & Rem. Code
Ann. §154.022, and would respectfully show unto the Court the following:
PROCEDURAL HISTORY
On December 18, 2015, this Court issued the Referral Order. The Referral Order provides that any party may file an objection to the referral within ten days of receiving the Order.
3. SLG received the Order via electronic mail from counsel to Appellant Don Prochaska (“Prochaska”) on December 20, 2015 and so the current Objection is timely. This action was commenced by Prochaska filing an Original Petition in the
District Court of Harris County, Texas (the “Trial Court”) on or around June 17, 2013. SLG thereafter filed a Special Appearance asserting that it was not subject to
personal jurisdiction in the State of Texas. Following the conclusion of extensive jurisdictional
discovery, SLG filed a Second Amended Special Appearance on October 27, 2014, in which it
substantiated the following:
(a) SLG is not a Texas entity, and is organized under the laws of the State of New York;
(b) SLG does not maintain any office or asset of any kind in Texas and has no employees, agents, and/or representatives that live or work in Texas;
(c) SLG has no systematic and continuous contacts with the State of Texas such as to subject it to the jurisdiction of a Texas court;
(d) SLG in no manner invoked the benefits and protections of the laws of Texas within the context of this lawsuit;
(e) SLG does not own property, maintain a bank account, or pay taxes in the State of Texas;
(f) SLG has not committed any tort, in whole or in part, within Texas to which it would be liable;
(g) SLG did not purposefully avail itself of the privilege of conducting activities with the forum of Texas;
(h) SLG has neither entered into contracts nor engaged in substantial business transactions in Texas in connection with the subject matter of this case; and
(i) SLG is not “essentially at home” in Texas as required by Daimler AG v. Bauman , -- U.S. --, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014).
6. On November 3, 2015, following a hearing, the Trial Court signed an Order granting SLG’s Special Appearance and dismissing all claims and causes of action against SLG
on the grounds that it was not subject to personal jurisdiction within the State of Texas.
7. Prochaska noticed an interlocutory appeal of that dismissal on or around December 7, 2015.
8. SLG now objects to the Referral Order on the grounds that: a) SLG has already been held not to be subject to personal jurisdiction in the State of Texas and so should not be
required to appear here to participate in a mediation or to pay a mediator located here; and b) The
likely costs of mediation significantly exceed the reasonable settlement value of the case, as SLG
is confident of its ability to obtain an affirmance of the Trial Court’s dismissal at minimal
expense.
POINT ONE
SLG SHOULD NOT BE COMPELLED TO MEDIATE BECAUSE IT HAS ALREADY
BEEN FOUND NOT TO BE SUBJECT TO PERSONAL JURISDICTION IN TEXAS SLG was previously dismissed by the Trial Court—who considered an extensive jurisdictional record, developed over the course of several months of discovery—on the grounds
that SLG lacked sufficient contacts with the State of Texas to subject it to personal jurisdiction
here. SLG should consequently not now be required to invest further time, money and
resources in mediation by the courts of this state. Specifically, given the lack of personal
jurisdiction over SLG, it should not be compelled to pay its longtime counsel to prepare for,
travel to and participate in mediation in Texas. Moreover, SLG should not be required to pay a
Texas mediator, when SLG is not subject to suit in Texas. Indeed, compelling SLG to do so in
the face of a finding that it is not subject to jurisdiction would arguably violate its federal right to
due process.
POINT TWO MEDIATION WOULD BE UNPRODUCTIVE AND WOULD EXCEED ANY REASONABLE SETTLEMENT VALUE 11. SLG believes that it can prepare and file a brief in support of an affirmance at minimal cost due to the fact that the record is closed and the sole question on appeal is whether
SLG is subject to jurisdiction in the State of Texas. Furthermore, SLG is confident of its ability to obtain an affirmance due to the
extensive degree of discovery afforded to Prochaska by the Trial Court and the length of the
Trial Court’s deliberation before dismissing SLG. Consequently, SLG believes that the cost of participating in mediation is likely to
exceed both its costs on the appeal and the reasonable settlement value of the now-dismissed
claims against it. *5 For the foregoing reasons, Appellee Schain Leifer Guralnick objects to the
Court’s Memorandum Order of Referral to Mediation.
Respectfully submitted, R YMER , M OORE , J ACKSON & E CHOLS , P.C. By: /s/ Clinton J. Echols Clinton J. Echols State Bar No. 00790625 2801 Post Oak Blvd., Suite 250 Houston, Texas 77056 Telephone: (713) 626-1550 Facsimile: (713) 626-1558 ATTORNEYS FOR APPELLEE SCHAIN LEIFER GURALNICK *6 CERTIFICATE OF SERVICE
I hereby certify that I have caused a true and correct copy of the foregoing instrument to be served upon the following counsel of record herein by method indicated on this 28 th day of
December, 2015:
Anthony L. Vitullo Via Electronic Mail Lance L. Livingston
F EE S MITH S HARP & V ITULLO LLP
Three Galleria Tower
13155 Noel Rd., Ste. 1000
Dallas, TX 75240
Attorney for Plaintiff-Appellant
Don Prochaska
Robert L. Plotz Via Electronic Mail
L AW O FFICES OF R OBERT L. P LOTZ
565 Fifth Avenue, 7th Floor
New York, NY 10017
Gregg Weinberg, Esq.
Frank Carroll, Esq.
R OBERTS M ARKEL W EINBERG P.C.
2800 Post Oak Blvd., 57th Floor
Houston, TX 77056
Attorneys for Defendants-Appellees
Matthew Barnes and Montcalm Co., LLC *7 Keith M. Fleischman, Esq. Via Electronic Mail Ananda N. Chaudhuri, Esq.
T HE F LEISCHMAN L AW F IRM
565 Fifth Avenue, 7th Floor
New York, NY 10017
Patrick Andrew Zummo
L AW O FFICES OF P ATRICK Z UMMO
3900 Essex Lane, Suite 800
Houston, TX 77027
Attorney for Defendants Jonathan Feldman,
Patriot Exploration Company, LLC, and
Millennium Drilling Co., Inc.
Stacy Lee Williams Via Electronic Mail
L OCKE L ORD LLP
600 Travis St., Suite 3400
Houston, TX 77002
Attorney for Defendant Carter Henson, Jr. /s/ Clinton J. Echols Clinton J. Echols