Air Liquide's Motion to Strike Cameron's Affirmative Defenses of Falure to MItigate and the Statute of Frauds February 05, 2016 (2024)

On November 12, 2013 aMotion,Ex Partewas filedinvolving a dispute betweenCameron International Corporation,Cooper Cameron Inc,andAir Liquide Industrial U S Lp,for DECLARATORY JUDGMENTin the District Court of Harris County.

 
Preview
 CAUSE NO. 2013-67969CAMERON INTERNATIONAL IN THE DISTRICT COURT OFCORPORATION f/k/a COOPERVv HARRIS COUNTY, TEXASAIR LIQUIDE INDUSTRIAL USS. LP.ASSIGNEE OF AIR LIQUIDE AMERICACORPORATION 8 80'" JUDICIAL DISTRICT AIR LIQUIDE’S MOTION TO STRIKE CAMERON’S AFFIRMATIVE DEFENSES OF FAILURE TO MITIGATE AND THE STATUTE OF FRAUDS Defendant/Counter-Plaintiff Air Liquide Industrial U.S., LP, Assignee of Air LiquideAmerica Corporation (“Air Liquide”) files this Motion to Strike Plaintiff/Counter-DefendantCameron International Corporation f/k/a Cooper's (“Cameron”) affirmative defenses of Failureto Mitigate and the Statute of Frauds, plead in an amended Answer filed on February 2, 2016, asbeing untimely filed pursuant to the Rule 11 agreement of the parties and as causing surprise andprejudice upon Air Liquide. See Ex. A, Pl.’s Original Answer. 1 A Rule 11 agreement between the parties dated November 2, 2015, establishedthat January 20, 2016 was the deadline for amendments and supplements to pleadings betweenthe parties. However, Cameron’s affirmative defenses of failure to mitigate and the statute of >frauds were first plead in an amended counterclaim filed on February 2 2016. See Ex. A.Cameron previously filed a pleading titled “Affirmative Defenses” on January 8, 2016, and didnot include these defenses. See Ex. D, Affirmative Defenses. Therefore, these defenses should bestricken because they were filed after the pleading deadline set forth in the Rule 1] agreement ofthe parties and without Cameron filing the requisite motion for leave to amend. In addition, theycause Air Liquide unfair surprise and prejudice.2. The Rule II Sets a January 20 Pleading Deadline. The parties specificallyagreed to set the pleading deadline in a Rule 11 agreement dated November 2, 2015. See Ex. B,Rule 11, 11-02-15. See also Roskey y. Continental Cas. Co., 190 $.W.3d 875, 881 (Tex. App—Dallas 2006, pet. denied) (court did not abuse discretion in refusing amendment six days afterdeadline in pretrial order because party could have amended pleading during 17 months that caseas pending). The deadline was January 20, 2016. 2 3 Cameron Failed to File Leave to Amend and This Amendment Operates as aSurprise to Air Liquide. Pursuant to Rule 63, a party seeking to file an amended pleadingoutside of the deadline proposed by the court’s docket control order. or therefore the Rule 11agreement entered into by the parties and filed with the Court, may not file such pleas if theyoperate as a surprise to the opposing party and must seek leave to amend. See TEX. R. Civ. P. 63.Cameron failed to file such a motion. An amendment that is prejudicial on its face has three characteristics. regardless ofwhether it is filed within 7 days of a trial: (1) it asserts a new substantive matter that reshapes the nature of trial itself; (2) the opposing party could not have anticipated the new matter in light of the development of the case up to the time the amendment was requested: and (3) the amendment would detrimentally affect the opposing party's presentation of its case.Halmos v. Bombardier Aerospace Corp., 314 8.W.3d 606, 623 (Tex. App.—Dallas 2010, nopet.). Cameron’s amendment has all three of these characteristics. 4 Cameron’s Amendment Detrimentally Affects Air Liquide’s Presentation Of ItsCase. Air Liquide has no idea from Cameron’s pleading what their contention regarding statuteof frauds actually is. Cameron, however, obviously intends to rely on the amended counterclaim,including its new defenses. at trial, including at the parties’ summary judgment hearing. While 5 2Cameron’s defenses are specious, Air Liquide should not be forced to address new claimsthrough an untimely amendment that circumvents the Rule 11 agreement of the parties. As aresult, the new affirmative defenses are unanticipated, reshape the lawsuit, and are detrimental toAir Liquide’s ability to present its case. Air Liquide has had no opportunity to discover exactlywhat statute of frauds claim Cameron is making, and its pleading gives no hint. 5 Cameron Could Have Anticipated These Amendments Long Ago Since AirLiquide First Counterclaimed for Breach of Contract in 2014. Cameron's pleading claims thatit is filed in response to Air Liquide’s Amended Answer and Counterclaim, which was filed onJanuary 6, 2016. The reality, however, is that Air Liquide’s Original Answer and Counterclaim,filed on September 9, 2014, included a counterclaim for breach of contract and substantialfactual allegations. See Ex. C, Def.’s Orig. Ans. and Counterclaim. Therefore, Cameron couldhave filed these defenses long ago and avoided this surprise and prejudice. Although AirLiquide’s Amended Answer and Counterclaim was filed on January 6, 2016, this pleading didnot raise any new material facts and added only a cause for anticipatory repudiation. In addition,the facts attendant to the cause of action for repudiation were already present in Air Liquide’sOriginal Answer on September 9, 2014. Ultimately. Cameron’s defenses of failure to mitigate and the statute of frauds aredefenses that apply equally to breach of contract and anticipatory repudiation—Cameron had fullknowledge of the facts and should have plead these defenses earlier to give Air Liquide fulldiscovery opportunity to investigate. In addition, these affirmative defenses are not directlyresponsive to Air Liquide’s anticipatory repudiation claim, and so Cameron cannot now claimthat these defenses were triggered by Air Liquide’s Amended Answer on January 6, 2016,6 These Defenses are New Substantive Matters That Reshape the Trial Itsself.These defenses operate as a surprise to Air Liquide. They give Air Liquide no opportunity toquestion witnesses or serve discovery that would have Cameron clarify exactly what contract itclaims is outside the statute of frauds. In other words, Cameron filed its amended counterclaim ina way that effectively prevented Air Liquide from conducting discovery. 7 Because Cameron Failed To Seek Leave, the New Affirmative Defenses ShouldBe Struck. Cameron’s affirmative defenses of failure to mitigate and the statute of frauds shouldbe struck and Cameron should follow the rules of procedure and seek leave to amend. Morefundamentally. no leave should be granted. First. the amendment operates as a surprise to AirLiquide. Cameron filed its amended counterclaim late in this case in a way that effectivelyprevented Air Liquide from conducting discovery. While Cameron’s defenses are specious, AirLiquide should not be forced to address new claims through an untimely amendment thatcircumvents the Rule 11 agreement of the parties. As a result, the new affirmative defenses areunanticipated, reshapes the lawsuit. and are detrimental to Air Liquide’s ability to present itscase. Air Liquide has had no opportunity to discover exactly what statute of frauds claimCameron is making, and its pleading gives no hint. 8 Conclusion. For the foregoing reasons, the Court should strike Cameron’suntimely filed affirmative defenses of failure to mitigate and the statute of frauds, plead inPlaintiff's amended Answer filed on February 2, 2016.Respectfully submitted, AHMAD, ZAVITSANOS, ANAIPAKOS, ALAVI & MENSING P.C, /s/ Todd W. Mensing Todd W. Mensing State Bar No. 24013156 E. Philadelphia Tennant State Bar No. 24093248 1221 McKinney, Suite 2500 Houston, Texas 77010 Telephone: (713) 655-1101 Facsimile: (713) 655-0062 tmensing@azalaw.com eptennant@azalaw.com ATTORNEYS FOR DEFENDANT AIR LIQUIDE INDUSTRIAL U.S. LP CERTIFICATE OF SERVICE I hereby certify that on the 5th day of February, 2016, a true and correct copy of theabove and foregoing document was served on all counsel as follows by electronic servicethrough the state provided EFSP Efile.txcourts.gov:Mark J. LevineMurphy S. KlasingWeycer. Kaplan, Pulaski & Zuber, P.C.Eleven Greenway Plaza. Suite 1400Houston, Texas 77046 /s/ Todd W. Mensing Todd W. Mensing4846-8805-3037, v1 

Related Contentin Harris County