Penn Virginia Oil & Gas GP, LLC and Penn Virginia Oil & Gas L.P. v. Alfredo De La Garza, Individually and as Next Friend for I. D. L. G. and K. D. L. G., Minors, and John Paul Adame, Individually and A/N/F for C.A.A., J.P.A., Jr., and J.N.A. ( 2015 )


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  •                                                                                          ACCEPTED
    01-15-00867-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    11/24/2015 10:18:56 AM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-15-00867-CV
    FILED IN
    1st COURT OF APPEALS
    HOUSTON, TEXAS
    FIRST COURT OF APPEALS
    11/24/2015 10:18:56 AM
    HOUSTON, TEXAS                 CHRISTOPHER A. PRINE
    Clerk
    PENN VIRGINIA OIL & GAS GP, L.L.C. & PENN VIRGINIA OIL AND
    GAS L.P., Appellants.
    V.
    ALFREDO DE LA GARZA, INDIVIDUALLY AND AS NEXT OF FRIEND
    FOR XXXXXX XX XX XXXXX AND XXXXXXXX XX XX XXXXX,
    MINORS
    &
    JOHN PAUL ADAME, INDIVIDUALLY AND AS NEXT OF FRIEND OF
    XXXXXXXXX XXXXXX XXXXX, XXXX XXXX XXXXX, XXX, AND
    XXXX XXXXXXXX XXXXX, MINORS,
    Appellees.
    On Appeal from the 215TH Judicial District Court,
    Harris County, Texas
    Cause No. 2014-42519
    APPELLANTS’ RESPONSE TO APPELLEE’S
    MOTION TO DISMISS
    To the Honorable Justices of the First Court of Appeals:
    Appellants, Penn Virginia Oil & Gas GP, LLC and Penn Virginia Oil & Gas,
    L.P. (collectively “Penn Virginia”) file this Response to Appellee Alfredo De La
    Garza’s Motion to Dismiss. In support thereof, Penn Virginia would respectfully
    show this Honorable Court as follows:
    1.     In his Motion at paragraphs 5 and 6, Appellee argues that Penn
    Virginia’s appeal should be dismissed because Penn Virginia filed its Notice of
    Appeal outside of the 20 day deadline to do so under Texas Rule of Appellate
    Procedure 28.1, and that Penn Virginia failed to “reasonably explain the need for
    an extension” in its Motion for Extension of Time to File Notice of Appeal. (See
    Penn Virginia’s Motion for Extension of Time to File, attached as Exhibit A, and
    Penn Virginia’s Reply to Appellees’ Objection, attached as Exhibit B.)
    2.     Rather than reiterate all of the arguments made and facts asserted in
    Penn Virginia’s underlying Motion for Extension of Time to File and Penn
    Virginia’s Reply to Appellees’ Objection to same, Penn Virginia would simply
    direct this Court to those Motions and the affidavits submitted in support of same,
    all of which are attached to this Response as Exhibits A and B, and which are on
    file with this Court. Penn Virginia would show further that this Court has not
    denied Penn Virginia’s Motion for Extension, therefore, there has been no judicial
    determination that the Court lacks jurisdiction as a result of the date of filing. That
    is to say, if this Court grants Penn Virginia’s Motion for Extension to File, then
    Penn Virginia’s Notice of Appeal filed on October 13, 2015 will be considered
    timely filed and there will be no question as to jurisdiction.
    CONCLUSION & PRAYER
    In light of the foregoing, Appellants, Penn Virginia Oil & Gas GP, LLC and
    Penn Virginia Oil & Gas, L.P. pray that this Court deny Appellee’s Motion to
    Dismiss. Penn Virginia further prays for such other and further relief, both special and
    general, at law and in equity, to which it may be justly entitled.
    Respectfully submitted,
    GALLOWAY, JOHNSON, TOMPKINS
    BURR & SMITH
    /s/ Thomas J. Smith
    Thomas J. Smith
    State Bar No. 00788934
    tsmith@gallowayjohnson.com
    Kelly C. Hartmann
    State Bar No. 24055631
    khartmann@gallowayjohnson.com
    Alexis B. Hester
    State Bar No. 24072807
    ahester@gallowayjohnson.com
    1301 McKinney, Suite 1400
    Houston, Texas 77010
    (713) 599-0700
    (713) 599-0777 – facsimile
    ATTORNEYS FOR APPELLANTS, PENN
    VIRGINIA OIL & GAS GP, LLC AND
    PENN VIRGINIA OIL & GAS, L.P.
    CERTIFICATE OF SERVICE
    I hereby certify that, in accordance with Rule 9.5 of the Texas Rules of
    Appellate Procedure, I have served the foregoing document upon the following
    attorneys by electronic service, personal mail, by commercial delivery service or
    by fax on November 24th, 2015:
    John David Hart                         J. Javier Gutierrez
    LAW OFFICES OF JOHN DAVID HART          Ana Laura Gutierrez
    Wells Fargo Tower                       THE GUTIERREZ LAW FIRM, INC.
    201 Main Street, Suite 1720             700 East Third Street
    Fort Worth, Texas 76102                 Alice, Texas 78332
    Phone       817-870-2102                Phone 361-664-7377
    Fax 817-332-5858                        Fax 361-664-7245
    Counsel for Appellee, Alfredo           Counsel for Appellee, John Paul
    De La Garza and his minor children      Adame and his minor children
    /s/ Kelly C. Hartmann
    Kelly C. Hartmann
    ACCEPTED
    01-15-00867-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    10/14/2015 4:27:54 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-15-00867-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    PENN VIRGINIA OIL & GAS GP, L.L.C. & PENN VIRGINIA OIL AND
    GAS L.P., Appellants.
    V.
    ALFREDO DE LA GARZA, INDIVIDUALLY AND AS NEXT OF FRIEND
    FOR XXXXXX XX XX XXXXX AND XXXXXXXX XX XX XXXXX,
    MINORS
    &
    JOHN PAUL ADAME, INDIVIDUALLY AND AS NEXT OF FRIEND OF
    XXXXXXXXX XXXXXX XXXXX, XXXX XXXX XXXXX, XXX, AND
    XXXX XXXXXXXX XXXXX, MINORS,
    Appellees.
    On Appeal from the 215TH Judicial District Court,
    Harris County, Texas
    Cause No. 2014-42519
    MOTION FOR EXTENSION OF TIME TO FILE NOTICE OF APPEAL
    To the Honorable Justices of the First Court of Appeals:
    Appellants, Penn Virginia Oil & Gas GP, LLC and Penn Virginia Oil & Gas,
    L.P. (collectively “Penn Virginia”) file this Motion for Extension of Time to File
    EXHIBIT "A"
    Notice of Appeal pursuant to Rules 26.3 and 10.5(b)(2). In support thereof, Penn
    Virginia would respectfully show this Honorable Court as follows:
    I. FACTUAL SUMMARY
    1.     This appeal arises out of a September 11, 2015 Order denying
    Appellant’s Motion to Compel Arbitration and to Abate, which was filed in the
    215th Judicial District Court of Harris County, Texas.1 The underlying litigation,
    which is currently set for trial on May 31, 2016, involves an April 29, 2014 oilfield
    incident near Shiner, Texas, in which two employees of Nabors Completion &
    Productions Services Co. (“NCPS”) were injured when an improperly constructed
    high pressure flow line parted and caused the sudden release of pressurized gas.
    The two employees (now, Appellees) were standing near the flow line when the
    line separated. NCPS was a well site contractor that had been hired by Penn
    Virginia, the operator, to perform workover operations. Both Appellees were
    members of the NCPS day crew.
    2.     Nabors Industries, Inc. (“Nabors”) and its subsidiaries, one of which
    is NCPS, have a valid arbitration program (known as the Nabors Dispute
    Resolution Program or “DRP”) which requires that disputes involving injuries to
    employees that are incurred during the course and scope of employment be
    1
    See Exhibit “A,” Order Denying Motion to Compel Arbitration.
    submitted to final and binding arbitration. Appellees acknowledged and accepted
    the terms of the DRP as a condition of their employment with NCPS.
    3.     The DRP applies to all direct and indirect subsidiaries of Nabors, all
    current and former employees of the aforementioned subsidiaries, and any
    “Electing Entity” that has agreed to be bound by the terms of the agreement. Penn
    Virginia is an “Electing Entity” and agreed on more than one occasion to be bound
    by the terms of the DRP, first in a 2008 drilling contract and later in a 2010 drilling
    contract. In Penn Virginia’s Motion to Compel Arbitration and Abate, Penn
    Virginia argued that Appellee’s individual claims fall within the scope of the DRP,
    as both were employees of NCPS at the time of the incident and both allege that
    their injuries occurred while in the course and scope of their employment.2
    Because Penn Virginia is an Electing Entity to the Nabors DRP, Appellees’ claims
    against Penn Virginia fall within the scope of the arbitration provisions set forth in
    the DRP.
    4.     On June 18, 2015, Penn Virginia filed its Motion to Compel
    Arbitration and Abate. The matter was set for hearing on July 31, 2015 but was
    reset for September 11, 2015 after counsel for Appellee’s made requests for
    various depositions and additional discovery relating to the arbitration agreement.
    2
    See “Exhibit B,” Motion to Compel Arbitration.
    Following the hearing and on September 11, 2015, the trial court issued an Order
    denying Penn Virginia’s Motion to Compel Arbitration.
    5.     On October 1, 2015, Penn Virginia filed a Motion for Reconsideration
    of the Court’s Order, and with it attached an Affidavit from Mr. Ernest Nelson,
    Vice President of Contracts for Nabors, to address a latent ambiguity raised by the
    Court during the hearing. The trial court heard the Motion for Reconsideration on
    October 12, 2015, and denied the Reconsideration on that same day.
    II. ARGUMENTS & AUTHORITIES
    6.     Penn Virginia now moves this Court of Appeals for an extension of
    time to file its Notice of Appeal in light of the Motion for Reconsideration that was
    presented to the Court and denied on October 12, 2015.3
    7.     Texas Rule of Appellate Procedure 26.3 states that “the appellate
    court may extend the time to file the notice of appeal if, within 15 days after the
    deadline for filing the notice of appeal, the party: “(a) files in the trial court the
    notice of appeal; and (b) files in the appellate court a motion complying with Rule
    10.5(b).”4 Rule 10.5(b)(2) provides the pleading requirements for a motion to
    extend time to file a Notice of Appeal. Under Rule 10.5(b)(2), appellant must
    3
    See “Exhibit C,” Motion for Reconsideration and “Exhibit D,” Order Denying Motion for
    Reconsideration.
    4
    See Exhibit “E,” a File Stamped Copy of Penn Virginia’s Notice of Appeal, which was filed
    with the trial court on October 13, 2015.
    provide the deadline for filing “the item in question;” (in this case, the Notice of
    Appeal); “the facts relied on to reasonably explain the need for an extension;”
    identification of the trial court, “the date of the trial court’s judgment or appealable
    order, and the case number and style of the case in trial court.”
    8.      In this instance, Penn Virginia’s deadline to file the Notice of Appeal
    would have been twenty days from September 11, 2015, pursuant to Texas Rule of
    Appellate Procedure 28.1. Twenty days from September 11, 2015 was October 1,
    2015. If this Motion is granted, the extended deadline will fall on October 16,
    2015. There have been no other requests for extension of time to file this Notice of
    Appeal. The trial court’s judgment or appealable order was entered on September
    11, 2015, and the case number and style of the case in the trial court is as follows:
    Cause No. 2014-42519, Alfredo De La Garza, Individually and as Next Friend for
    xxxxxx xx xx xxxxx and xxxxxxxx xx xx xxxxx, minors v. Penn Virginia Oil & Gas,
    L.P., Penn Virginia Oil & Gas GP, L.L.C., Mike Ferguson, Trifecta Oilfield
    Services, L.L.C., Cudd Pressure Control, Inc., Roywell Services, Inc., and Oaks
    Personnel Services, Inc. d/b/a The Oaks Group.5
    9.      The facts relied on to explain the need for an extension include the
    following:
    5
    It is relevant to note that Appellees non-suited all defendants but for Penn Virginia and the
    Penn Virginia Company Man, Mike Ferguson.
    - At the September 11, 2015 hearing, the Court noted that it would deny
    the Motion to Compel Arbitration and to Abate because the contracts
    entered into between Penn Virginia and Nabors in which Penn Virginia
    became an Electing Entity to the Nabors DRP contemplated application
    to “past and present” employees. The trial court reasoned that because
    neither of the Appellees were past or present employees of NCPS at the
    time the contracts were entered into, Penn Virginia’s status as an Electing
    Entity did not apply to the dispute between Appellees and Penn Virginia,
    and therefore the DRP did not apply.
    - On October 1, 2015, Penn Virginia filed a Motion for Reconsideration in
    which it presented the Affidavit of Ernest Nelson who, as set forth above,
    is the Vice President of Contracts for Nabors. Mr. Nelson entered into
    one of the contracts with Penn Virginia on behalf of Nabors and has
    personal knowledge as to the intent of Nabors when it prepared the
    agreements.
    - In the Motion for Reconsideration, Penn Virginia argues that the
    language providing that “Penn Virginia is an Electing Entity as to all
    disputes with ‘present and former employees and applicants of Nabors,’”
    must be read to mean that Penn Virginia is an Electing Entity “as to all
    disputes involving present and former employees at the time the dispute
    arises,” and not at the time the contract was entered into. In other words,
    “Penn Virginia’s status as an Electing Entity is not limited to present and
    former employees as of 2008 or 2010” (the time the underlying contracts
    were entered into) but instead “applies as to all persons who are present
    Nabors employees or former Nabors employees at the time of the
    dispute.”
    - In this case, the dispute arose between Penn Virginia and Appellees on
    April 29, 2014, at which time both injured parties were NCPS employees.
    Because Penn Virginia became an Electing Entity to the Nabors Dispute
    Resolution Program in 2008 and again in 2010, the DRP applies as to the
    dispute between Penn Virginia and Appellees.
    - Counsel for Penn Virginia mistakenly believed that the deadline to file its
    Notice of Appeal from the Order denying the Motion to Compel
    Arbitration was thirty days from September 11, 2015. Counsel
    determined after the actual deadline had passed that the appealable Order
    was an accelerated appeal and that Penn Virginia in fact had twenty days
    from the date of the September 11, 2015 Order. Penn Virginia now files
    its Notice of Appeal and this Motion to Extend the Deadline to file its
    Notice of Appeal by fifteen days from October 1, 2015.
    10.      The failure to file a Notice of Appeal on October 1, 2015 was not
    deliberate or done in attempt to circumvent the Texas Rules. Counsel for Penn
    Virginia had a good faith belief that the deadline to file its Notice of Appeal of the
    Order denying the Motion to Compel Arbitration fell thirty days from the date of
    the September 11, 2015 Order, pursuant to Rule 26.1. Thus, counsel believed that
    the deadline to file was October 12, 2015 (as October 11, 2015 fell on a Sunday).
    In light of counsel’s erroneous understanding of the deadline, it was Penn
    Virginia’s belief that it could file the Motion for Reconsideration, proceed to oral
    argument on the morning of October 12, 2015, and immediately and timely file the
    Notice of Appeal from the original September 11, 2015 judgment if the Court then
    denied the Motion for Reconsideration.
    11.      In actuality, an appeal from an Order denying a Motion to Compel
    Arbitration is, pursuant to Rule 28.1(a), an accelerated appeal, which permits only
    twenty days to file the Notice of Appeal. Following counsel’s research as to
    available remedies, Penn Virginia has made all available and good faith efforts to
    seek an extension under Rule 10.5(b)(2) to file its Notice of Appeal.
    12.    Before counsel became aware of the actual and correct deadline,
    counsel believed it was in Penn Virginia’s best interest to allow the trial court to
    consider the Affidavit of Ernest Nelson and evaluate the Motion for
    Reconsideration before the Notice of Appeal was filed. Counsel further believed
    (in error) that the “thirty day deadline” would permit the trial court to review the
    Motion for Reconsideration and evaluate the Affidavit presented prior to divesting
    the trial court of its jurisdiction. Given the trial court’s expression of concern at the
    September 11, 2015 hearing as to the “ambiguity” set forth above, Penn Virginia
    believed that the Motion for Reconsideration might resolve the issues the trial
    court took with the Motion to Compel Arbitration and that, if not, the Notice of
    Appeal could be timely filed immediately following the October 12 hearing.
    13.    Penn Virginia should be permitted to pursue its appeal and would
    request that this Court of Appeals exercise its discretionary authority to allow Penn
    Virginia to file its Notice of Appeal within fifteen days after the October 1, 2015
    deadline. As this Court is no doubt aware, there is a strong presumption in Texas
    favoring arbitration. See Circuit City Stores, Inc. v. Adams, 
    121 S. Ct. 1302
    (2001);
    Cantella & Co. v. Goodwin, 
    924 S.W.2d 943
    (Tex. 1996); Jack B. Anglin v. Tipps,
    
    842 S.W.2d 266
    , 268 (Tex. 1992). If a valid arbitration agreement exists, and the
    claims are within the agreement’s scope, a trial court has no discretion and must
    compel arbitration. 
    Cantella, 924 S.W.2d at 944
    ; Shearson Lehman Bros., Inc. v.
    Kilgore, 
    871 S.W.2d 925
    , 928 (Tex. App.—Corpus Christi, 1994, orig.
    proceeding).
    14.      Penn Virginia did not deliberately, strategically, or intentionally delay
    in filing its Notice of Appeal in an effort to subvert the Texas Rules of Appellate
    Procedure or engage in any gamesmanship with the trial court. Instead, counsel for
    Penn Virginia mistakenly believed the deadline to file its Notice of Appeal fell on
    October 12, 2015 rather than October 1, 2015. Penn Virginia believed that, with
    the thirty-day deadline, it would have the opportunity to address the trial court’s
    specific concerns as to a particular and nuanced ambiguity in the contracts between
    Penn Virginia and Nabors. Penn Virginia should not be penalized for the errors
    made by its counsel and would request the opportunity to litigate the issues set
    forth in its Motion to Compel Arbitration, particularly the application of the
    arbitration provisions set forth in the Nabors DRP.
    PRAYER
    Accordingly, Appellants, Penn Virginia Oil & Gas GP, LLC and Penn
    Virginia Oil & Gas, L.P. pray that this Court grant this Motion to Extend the
    Deadline to File a Notice of Appeal and permit Penn Virginia to present to this Court
    its arguments and authorities in support of arbitration. Penn Virginia further prays for
    such other and further relief, both special and general, at law and in equity, to which it
    may be justly entitled.
    Respectfully submitted,
    /s/ Thomas J. Smith
    Thomas J. Smith
    State Bar No. 00788934
    tsmith@gallowayjohnson.com
    Kelly C. Hartmann
    State Bar No. 24055631
    khartmann@gallowayjohnson.com
    Alexis B. Hester
    State Bar No. 24072807
    ahester@gallowayjohnson.com
    GALLOWAY, JOHNSON, TOMPKINS
    BURR & SMITH
    1301 McKinney, Suite 1400
    Houston, Texas 77010
    (713) 599-0700
    (713) 599-0777 – facsimile
    ATTORNEYS FOR APPELLANTS, PENN
    VIRGINIA OIL & GAS GP, LLC AND
    PENN VIRGINIA OIL & GAS, L.P.
    CERTIFICATE OF CONFERENCE
    As required by Tex. R. App. P. 10.1(a)(5), I certify that I have conferred
    with counsel for Appellees, both of whom indicated that they are opposed to this
    Motion.
    /s/ Kelly C. Hartmann__________
    Kelly C. Hartmann
    CERTIFICATE OF SERVICE
    I hereby certify that, in accordance with Rule 9.5 of the Texas Rules of
    Appellate Procedure, I have served the foregoing document upon the following
    attorneys by electronic service, personal mail, by commercial delivery service or
    by fax on October 14, 2015:
    John David Hart                         J. Javier Gutierrez
    LAW OFFICES OF JOHN DAVID HART          Ana Laura Gutierrez
    Wells Fargo Tower                       THE GUTIERREZ LAW FIRM, INC.
    201 Main Street, Suite 1720             700 East Third Street
    Fort Worth, Texas 76102                 Alice, Texas 78332
    Phone       817-870-2102                Phone 361-664-7377
    Fax 817-332-5858                        Fax 361-664-7245
    Counsel for Appellee, Alfredo           Counsel for Appellee, John Paul
    De La Garza and his minor children      Adame and his minor children,
    and Intervenor, Ernesto Gonzalez, Jr.
    /s/ Kelly C. Hartmann
    Kelly C. Hartmann
    NO.
    COURT OF APPEALS
    HOUSTON' TEXAS
    PENN VIRGINIA OIL & GAS GP, L.L.C. & PENN VIRGINIA OIL AND
    GAS L.P., Appellants.
    v.
    ALF'REDO DE LA GARZA, INDIVIDUALLY AND AS NEXT OF' F'RIEND
    MINORS
    &
    JOHN PAUL AD                     INDIVIDUALLY AND AS NEXT OF FRIEND OF
    AND
    MTNORS,
    Appellees.
    On Appeal from the 215rH Judicial District Court,
    Harris County, Texas
    Cause No. 2014-42519
    Vnnrrrc¡,TroN oF Tnonn¿,s J. Snnrrn
    STATE OF TEXAS                $
    $
    COUNTY OF HARRIS              $
    BEFORE ME, the undersigned authority on this day personally appeared Thomas        J.
    Smith, who after being duly swom upon his oath stated as f'ollows:
    1.      "My name is Thomas J. Smith. I am over twenty-one (21) years of age. I arn of
    sound mind and in all ways competent to make this affidavit and verification,
    2.      I   am one of the attomeys of record for Defendants, Perur Virginia   Oil & Gas, L.P.
    and Penn Virginia      Oil & Gas GP, LLC. I have personal knowledge of the facts stated in this
    affidavit and those facts are true and correct.
    3.      I   have reviewed the foregoing Motion for Extension of Time to Fil                    of
    Appeal. In my personal knowledge, the Motion truly and correctly recites                      allegations
    set forth in the pleading,"
    Smifh
    STIBSCRIBED AND SWORN TO before me a notary public, which witness my hand
    ffiuV of October, 201 5
    and seal of this office this
    1n   and for the State     Texas
    ROSYN S, MORGAN
    NolÕry Puþlic, Slole ol lexos
    Mv Cornmrssron Explres
    JulY 30, 20.l I
    r-l
    CAUSE NO. 2014-42519
    tfn'ç
    Pfrlt   tl
    ALFREDO DE LA GARZA,                                             $          IN TIIE DISTRICT COURT OX'
    ASNEXT Ì'RIEND                                   $
    FOR                   and                                        $
    tnlnors                                     $
    $
    v                                                                $          IIARRIS COUNTY,TEXAS
    $
    PEI\N VIRGINIA OIL & cAS, L.P., PEI\N                            $
    yIRGTNIA OIL & cAS cP LLC,
    $
    MIKE X'DRGUSON, TRIX'ECTA OILFIELn                               $
    SERVICES, LLC, CUDD PRESSURE                                     $
    CONTROL,INC., ROYWELL                                            $          215th   JUDICIAL DISTRICT
    SERVICES, INC., and OAKS PERSOII¡IEL                             $
    SERVICES, INC. d/b/a TIIE OAKS GROUP                             $
    ORDER DEI\¡-YING DEFENDA¡ITS, PENN VIRGINIA OIL & GAS, L.P. AND PENN
    VIRGIMA OIL &  GA.S GP LLC'S MOTION TO COIVIPEL ARBITRATION AND TO
    ABATE
    On ll#           day   of STt^!               .2015, came to be considered Defendants, Penn
    Virginia Oil & Gas, L,P. and Penn Virginia Oil & Gas GP.LLC's Motion to Compel A¡bitration
    and to Abate. After considering the motion and hearing the arguments of counsel, this Court is                  of
    the opinionthatthe Motion shouldbe           DENIE?
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    SIGNED this                    day   of                    2015
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    order Denying Defendants, Penn virginia oil & Gaq L.P. and Penn Virginia oil & Gas Gp LLC's         Page   I   ofl
    O¡       Motion to Compel Arbiüation and to Abate
    U
    EXHIBIT "A"
    oç
    I, Chris Daniel, District Clerk of Harris
    County, Texas certify that this ís a true and
    correct copy ofthe original record filed and or
    recorded in my office, elechonically or hard
    copy, as it appears on this date.
    'Witness
    my official hand and seal of office
    this October 13.2015
    Certified Document   Number:       66994917 Totp! Pages:   I
    t^Lø¿r¿
    Chris Daniel, DISTRICT CLERK
    IIARRIS COUNÏY, TEXAS
    In accordance with Texas Govcrnment Code 406.013 electronically transmitted authenticated
    documents are valid. If there is a question regarding the validify of this document and or seal
    please e-mail support@hcdistrictclerk.com
    6/1 8/2015 4:58:00 PM
    Chris Daniel - District Clerk Harris County
    Envelope No. 5739243
    By: <>
    Filed: 6/1 8/201 5 4:58:00 PM
    CAUSE NO. 2014-42519
    ALFREDO DE LA GARZA,                                 $            IN THE DISTRICT COURT OF
    INDIVIDUALLY and AS NEXT FRIEND                      $
    FOR                  A and                           $
    , mlnors               $
    $
    v                                                    $               HARRIS COUNTY, TEXAS
    $
    PENN VIRGINIA OIL & GAS, L.P.,                       $
    PENN VIRGINIA OIL & GAS GP, LLC,                     $
    MIKE FERGUSON, TRIFECTA                              $
    OILFIELD SERVICES, LLC, CITDD                        $
    PRES SURE CONTROL, [NIC.,                            $
    ROYWELL SERVICES,INC. and OAKS                       $
    PERSONNEL SERVICES, INC. d/b/A                       $
    THE OAKS GROUP                                       $                281ST   ruDICIAL DISTRICT
    DEFENDANTS, PENN VIRGINIA OIL & GAS, L.P. AND PENN VIRGINIA OIL & GAS
    GP. LLC'S MOTION TO COMPEI , ARRITRATION AND TO ARATE
    Defendants, Penn Virginia    Oil &     Gas, L.P. and Penn Virginia     Oil & Gas GP, LLC
    (collectively referred to hereinafter as "Penn Virginia" unless individual reference is necessary)
    file this Motion to Compel Arbitration and to Abate pending such arbitration. In support thereof,
    Penn Virginia would show as follows:
    I.INTRODUCTION
    l.      Plaintiff, Alfredo "Freddie" De La Garza ("Plaintiff' or "De La Garza"),
    Individually and as Next Friend     of                          and                                 ,   and
    Intervenor, John Paul "J.P." Adame ("Adame"), Individually and as Next Friend             of
    , (collectively "the parties") filed
    personal injury claims against Penn Virginia on Jruly 24, 2014 and, November                   6,   2014,
    respectively. Their claims arise out of an   April 29,2014 incident, which occurred at a well site
    EXHIBIT "B''
    located near Shiner, Texas while De La Garua and Adame were working in the course and scope
    of their employment with Nabors Completion & Production Co. ("NCPS").
    2.        Nabors Industries, Inc. ("Nabors") and its subsidiaries, one of which is NCPS,
    have a valid arbitration agreement which requires that disputes involving injuries to employees
    that are incurred during the course and scope of employment be submitted to final and binding
    arbitration. De La Garza and Adame both acknowledged and accepted the terms                                   of   the
    arbitration agreement.
    3.        The arbitration agreement applies to all direct and indirect subsidiaries of Nabors,
    all current and former employees of the aforementioned subsidiaries, and any "Electing Entity"
    that has agreed to be bound by the terms of the agreement.r Penn Virginia is an "Electing Entity"
    and has agreed on more than one occasion to be bound by the terms of the agreement.2 De La
    Garza's and Adame's individual claims fall within the scope of the arbitration agreement as both
    were employees of NCPS at the time of the incident and allege that their injuries occurred while
    in the course and scope of their employment. De La Garza and Adame also filed claims                               as
    representatives     of their minor children. The minors' claims are also subject to the arbitration
    agreement as they are derivative of De            La Garza and Adame's claims. Consequently, De La
    Garza and Adame's individual claims against Penn Virginia and the claims filed on behalf                           of
    their minor children all fall within the scope of the arbitration agreement.
    4.        Therefore, Penn Virginia's Motion to Compel Arbitration should be granted, and
    this case should be abated or dismissed and compelled to final and binding arbitration.
    I See Nabors Dispute Resolution Program      ("DRP'), a true and correct copy of which is attached as Exhibit l-4.
    2
    See 2008 Penn Virginia Oil & Gas, LP IADC Contract, a true and correct copy of which is attached as Exhibit 1-
    B; see also Contractors Special Proyisions, a true and correct copy of which is attached as Exhibit 1-C, at I 16
    "Operator, its parent, subsidiary and affiliated corporations, as well as the employees, officers and directors ofeach
    (collectively, "Operator") is cognizant of the Nabors Dispute Resolution Program and wishes to become an Electing
    Entity, as defined in that Program." See also 2010 Penn Virginia MC Energy, LLC IADC Contract, a true and
    correct copy of which is attached as Exhibit l-D; see also Contractors Specíøl Provisions, a true and correct copy of
    which is attached as Exhibit 1-E, at fl 16.
    II.I.INDISPUTED FACTS
    5.         Nabors is the "Sponsor" of the Nabors Dispute Resolution Program (ooDRP"),                  as
    that term is defined by the DRP.3
    6.         The DRP is subject to the Federal Arbitration Act ("FA"{").4
    7.         By its terms, the Nabors DRP is designed to provide a means for the resolution of
    disputes between the "Company" and the Company's present and former employees that are
    related to or that arise out of a current or former employment relationship with the Company.s
    8.         The DRP is intended to create an exclusive procedural mechanism for the final
    resolution of all disputes falling within its terms.6 Consequently, the DRP requires that all
    disputes between De La Garza, Adame and the Company are subject to binding arbitration.T
    9.         The DRP defines "Dispute" to include personal injuries that are incurred at the
    worþlace or in the course and scope of employment.s
    10.        The DRP defines "Company" as "Sponsor and every direct and indirect
    subsidiary...ofSponsor,@',,9Aspreviouslymentioned,Naborsisthe
    3 Al/idavit of Keith Nicholson ("Nicholson Alf."), a true and coraect copy of which is attached as Exhibit 1, atl4;
    see also Exhibit I -4, at fl 2(L).
    a SeeExhibit 1-A at
    fl fl 2(C) and 8. The Federal Arbitration Act, 9 U.S.C. $ 2, applies in state courts and preempts
    state anti-arbitration laws to the contrary. Circuit City Stores, Inc. v. Adams, 
    121 S. Ct. 1302
    ; Southland Corp v.
    Keating, 
    465 U.S. 1
    , 16 (1984); see also Palm Harbor Homes v. McCoy, 
    944 S.W.2d 716
    , 721 (Tex. App.-Fort
    Worth 1997) (holding that FAA preempted Texas Arbitratìon Act's requirement that party's attorney sign
    agreement). Although the FAA preempts state arbitration laws, courts still must resort to general state law contract
    principles to determine whether an arbitration agreement will be enforced.
    5,Se¿ Exhibit l-4, at fl L
    6 See Exhibit l-4, at fl l.
    7.See Exhibit l-4.
    8 "Dispute" means all legal and equitable claims, demand and controversies, of whatever nature or kind, whether in
    contract, tort, under statute or regulation, or some other law, between persons bound by the Program or by an
    agreement to resolve Disputes under the Program, or between a person bound by the Program and a person or entity
    otherwise entitled to its benefits, including, but not limited to, any matters with respect to...6. any personal ínjury
    allegedly incurred in or about a Company l{orkpløce or ìn the course and scope oføn Employee's employment.
    See Exhibit 1-A at tf 2(E) (emphasis added).
    e
    See   Exhibit l-A   at !f   2(D) (emphasis added).
    "Sponsor" of the DRP. NCPS, De La Garza and Adame's employer at the time of the worþlace
    incident, is a subsidiary of Nabors.r0 The DRP extends to and includes employees of NCPS.Ir
    11.     Further, Penn Virginia is an "Electing Entity" and agreed to be bound by the
    terms of the DRP in two IADC Conhacts between it and Nabors.l2 As an "Electing Entity," Penn
    Virginia is required to resolve disputes with any past or present employee(s) or applicants of
    Nabors in accordance with the DRP.I3
    12.     On January 2, 2013, Adame executed a document entitled "Application For
    Hourly And Daily Employment," as well as another document entitled "Notice to Applicants
    Regarding Dispute Resolution Program."l4 Likewise, on July 16,2013, De                                  La   Garza executed
    the "Application For Hourly And Daily Employment" and the "Notice to Applicants Regarding
    Dispute Resolution Program."l5 De La Gana and Adame, by their signatures, acknowledged and
    agreed that they would                be "required to adhere to the Dispute Resolution Program and its
    requirement for submission of all claims to...arbitration."l6
    13.     On January 7,2013, Adame also executed a document entitled "Employee
    Acknowledgement Concerning Nabors Dispute Resolution Program."lT The document
    specifically states,         "I   have received a copy of the Nabors Dispute Resolution Program."l8 De La
    Garza executed the same document on July                            22, 20l3.re De La Garza and Adame, by their
    to See     Nicholson Aff.   atl 6.
    tt   See   Nicholson Aff.   atl6; see also Affidavit   oJ   Katherine Ryan, a true and corect copy of which attached as
    Exhibit 2.
    t2 See Nicholson Aff, at\l7 through 9; see ølso Exhibits 1-B and l-D; see a/so Exhibits 1-C and 1-E, at t[ 16.
    t3 See Nicholson Af,f. atl 10; see also Exhibits 1-B - I -G.
    ta See Nicholson Aff. atl 12; see also Exhibit 1-F.
    ts See Nicholson Aff. at\ 16; see also Exhibit 1-G.
    t6 See Nicholson Aff. atll 12 and 16; see also Exhibit I -F and 1 -G.
    t7 Nicholson Aff. at\ 13; see also Exhibit I -H.
    ts Nicholson Aff. at
    fl 13; see also Exhibit l-H.
    te NicholsonAff. atllT;see also Exhibit 1-I.
    signatures, again acknowledged and agreed that they would be "required to adhere to the Dispute
    Resolution Program and its requirement for submission of all claims to...arbitration."2O
    14.     On April 29,2003, Adame was hired by Nabors Well Services, Ltd. as a crew
    worker.2l On January 7 ,2013, as a result of a business reorganization, he became a crew worker
    for NCPS when Nabors V/ell Services, Ltd. liquidated into Nabors V/ell Services, Co., which
    liquidated and dissolved into NCPS.22 As a crew worker, Adame's job duties and responsibilities
    included the operation of hand and power tools to perform maintenance and repairs to oil or gas
    wells and related equipment. Adame's job duties also involved activities associated with rigging-
    up and rigging-down workover rigs, pulling levers or turning handles to extend hydraulic or
    screw-type jacks to support and level the rig, laying steel production rods, tubing, and casing,
    and other tasks necessary to support operations.23 Adame's job duties and responsibilities did not
    include the movement of goods in interstate commerce.2a While employed by NCPS, Adame was
    never employed as a commercial truck driver or transportation worker.25
    15.     On July 22,2013, De La Garza was hired by NCPS as a crew worker.26 As a crew
    worker, De La Garza'sjob duties and responsibilities included the operation of hand and power
    tools to perform maintenance and repairs to oil or gas wells and related equipment. De La
    Garza's      job duties also involved activities associated with rigging-up and rigging-down
    workover rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks to
    support and level the          rig, laying steel production rods, tubing, and casing, and other tasks
    necessary to support operations.2T          DeLaGarza'sjob duties and responsibilities did not include
    20
    Nicholson Alf. atll 13 and,17; see also Exhibit l-E.
    2t   Nicholson Aff. at \ 14.
    22
    NicholsonAff. atfl 14.
    23
    Nicholson Aff. at fl 14.
    24
    
    Id. 2s Id.
    26
    Nicholson Aff, at tf 18.
    27
    Nicholson Aff atl 18.
    the movement of goods in interstate commerce.2s While employed by NCPS, De La Garza was
    never employed as a commercial truck driver or transportation worker.2e
    L6.     On July 24, 2014, De La Garza filed his Original Petition, and on September 8,
    2014 and October           l,   2014, De    La   Garza filed his First and Second Amended Petitions.30
    Likewise, on November 6, 2014 and February 19, 2015, Adame filed his Original and First
    Amended Petitions          in Intervention.3l A copy of        all   pleadings are maintained      in the Court's
    records. De       La Garza and Adame allege that on April 29, 2014 and while working for NCPS,
    they were injured when a piece of NCPS line pipe parted, causing both to be thrown back as a
    result ofthe released pressurized gas.32
    III. SUMMARY OF'THE ARGUMENT
    17.     The Company (defined to include Nabors, its subsidiaries, and any "Electing
    Entity") has a valid arbitration agreement, which both De La Garza and Adame acknowledged
    and accepted. Because Penn Virginia is an "Electing Entity," the parties' claims against Penn
    Virginia fall within the scope of the arbitration agreement. Consequently, the parties' claims
    must be submitted to final and binding arbitration in accordance with the DRP. Therefore, Penn
    Virginia's Motion to Compel Arbitration should be granted and this case should be abated.
    IV. ARGUMENT & AUTHORITIES
    18.     Pursuant to the DRP, the parties' lawsuit must be submitted to binding arbitration.
    It is undisputed         that Texas courts recognize that arbitration agreements in an "at-will"
    employment setting apply to personal injury claims.                  In fact, there is a strong presumption in
    Texas favoring arbitration. See Circuit City Stores, Inc. v. Adams, 
    121 S. Ct. 1302
    (2001);
    28
    
    Id. 2e Id.
    30   Plaintiffls Original Petition, First Amended Petition, and Second Amended Petition.
    3rAdame's Original Petition in Intervention and First Amended Petition in Intervention.
    32SeePlaintifls Original Petition and First Amended Petition, as well as Adame's Original Petition in Intervention
    and First Amended Petition in Intervention.
    Cantella      &   Co. v. Goodwin, 924 S.W.2d,943 (Tex. 1996); Jack B. Anglin v. Tipps,
    842 S.W.2d 266
    , 268 (Tex. 1992).             If a valid arbitration     agreement exists, and the claims are within the
    agreement's scope,           atrial cout     has no discretion and must compel arbitration. Cantella,924
    S.V/.2d at 944; Shearson Lehman Bros., Inc. v. Kilgore, 871 S.V/.2d 925,928 (Tex.                     App.-
    Corpus Christi, 1994, orig. proceeding).
    19.      The clear language of the DRP states that the Federal Arbitration Act,9 U.S.C.         $
    1, et. seq. ("FAJA.") controls.33 The Texas Supreme Court has held that in cases where the FAA
    is stated in the agreement as the controlling law, the FAA prevails. EZ Pawn Corp. v. Mancias,
    934 S.W.2d 87,91 (Tex. 1996). In adjudicating a motion to compel arbitration under the FAA,
    courts generally try to determine whether the parties agreed to arbitrate the dispute in question.
    Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 
    473 U.S. 614
    , 626 (1985); Folse                  v.
    Richard Wolf Medical Instruments Corp., 
    56 F.3d 603
    , 605 (5th Cir. 1995); R.M. Perez &
    Assocs., Inc. v. Welch, 960F.2d 534, 538 (5th Cir. 1992).
    20.      Under the FAA, the court applies ordinary state contract law principles in order to
    decide whether a valid arbitration agreement exists. See In re            D. Wilson Constr. Co., 196 S.V/.3d
    774,781 (Tex. 2006) (citing First Options of Chicago, Inc. v. Kaplan, 
    514 U.S. 938
    , 944
    (1995)); 9 U.S.C.A.           $   1 et seq.; Crv. Pnec.      & R¡v. Coon $     171.001 et   seq. Once a valid
    arbitration agreement             is   established,   a   presumption attaches favoring arbitration. Dallas
    Cardiologt Assoc., P.A. v. Mallick,978 S.V/.2d 209,212 (Tex. App.-Dallas, 1998, pet. denied).
    Then Court must then determine whether the arbitration agreement covers the non-movant's
    claims. In re Jim Walter Homes, lnc.,207 S.W.3d 888 (Tex. App.-Houston [14th Dist.] 2006).
    In doing so,      a court must focus on the complaint's factual allegations rather than the legal causes
    of action asserted. 
    Id. 33 S¿¿
      Exhibit l-A at !f fl 2(C) and   8
    21.    Thus, two questions guide the determination of whether Penn Virginia's Motion
    to Compel should be granted: 1) is there a valid agreement to arbitrate; and2) does the dispute in
    question fall within the scope of the agreement? Associated Glass, Ltd. v. Eye Ten Oaks Invs.,
    Ltd., 147 S.W.3d 507,511 (Tex. App.-San Antonio 2004,no pet.).
    A.       Valid Agreement to Arbitrate
    22.    An "at-will" employee who receives notice of an employer's arbitration policy
    and continues or commences employment accepts the terms of the agreement as a matter of law.
    See   In re Halliburton,   S0 S.W.3d 566 (Tex. 2002);      In re Dallas Peterbilt, Ltd., L.L.P., 1.96
    S.\M.3d 761, 162 (Tex. 2006). In Halliburton, the employer created a dispute resolution program
    which obligated both employees and the employer to arbitrate all disputes between them.          See
    
    Halliburton, 80 S.W.3d at 566
    . The Texas Supreme Court held that the employer was justified
    in giving notice to all employees of the program and informing them that by continuing to work
    after the adoption of the program, employees would be considered to have accepted the program.
    See id at 569-71.
    23.    Four years later, the San Antonio Court of Appeals extended Halliburton even
    further. Relying on Halliburton, the Fourth Court of Appeals compelled arbitration where the
    employee expressly refused      to sign an arbitration     agreement   but continued to work    after
    receivingnoticeofthearbit¡ationrequirement. InrefuRGT,Inc.,2006WL622736 (Tex.App.-
    San   Antonio 2006, orig. proceeding).
    24. It should also be noted that the San Antonio Court of Appeals has specifically
    considered the Nabors DRP and held that    it is valid   and enforceable on multiple occasions. See
    NDUSA USA, LP v. Pena, 385 S.V/.3d 103 (Tex. App.-San Antonio 2012, pet. denied);
    NDUSA USA, LP v. Carpenter, 198 S.V/.3d 240,249 (Tex. App.-San Antonio 2006, orig.
    proceeding). Furthermore,               in October 2013 and, then again in        December 2013, the Texas
    Supreme Court denied the family of a deceased Nabors' employee's petition for review when the
    family sought to reverse the Fourth Court of Appeals' determination that the DRP was valid and
    enforceable.        See    Pena,385 S.ïi/.3d 103
    25.       De La Garza and Adame executed documents on several occasions that clearly
    express both parties' agreement to the terms of the DRP.3a The documents specifically state that
    De La Garza and Adame acknowledged receiving, reviewing, understanding, and accepting the
    DRP's requirement to submit disputes to arbitration.3s De LaGarza and Adame's signatures on
    the aforementioned documents is strong evidence of their actual acknowledgment and agreement
    that they are required to adhere to the DRP. See In re Bunzl USA,l55 S.W.3d 202 (Tex.               App.-
    El Paso 2004, orig. proceeding).
    26.       De La Garza and Adame accepted the terms of the DRP as a matter of law.
    Therefore, a valid and enforceable agreement                     to arbitrate was formed. In re Pqlm Harbor
    Homes,       Inc.,l95 S.V/.3d 672,676 (Tex. 2006).
    B.          The Dispute Falls Within the Scope of the Aereement
    21.       The parties' claims fall within the scope of the DRP. The DRP requires that
    disputes between the Company (defined as Nabors, its subsidiaries, and any "Electing Entity")
    and its current or former employees be submitted to arbitration. According to the parties'
    Petitions, De La Gana and Adame were both employees of a Nabors' subsidiary (NCPS) and
    both were allegedly injured while in the course and scope of their employment. Consequently,
    this dispute, which is between NCPS employees and Penn Virginia (an "Electing Entity"), falls
    within the scope of the agreement.
    3a   SeeNicholsonAff.       atfl\12, 13,16,andl7;see also Exhibits 1-F- 1-I.
    35
    Nichols on Aff. at   I I 12, 13, I 6, and 17 ; see also Exhibits -F - 1-I.
    1
    28.     Whether a claim falls within the scope of an arbitration agreement depends on the
    factual allegations of the complaint rather than the legal causes of action asserted. Prudential
    Secs.,     Inc. v. Marshall,909 S.V/.2d 896, 899 (Tex. 1995); Ikon Of/ìce Solutions, Inc. v. Eifert,2
    S.W.3d 688, 697 (Tex. App.-Houston [14th Dist.] 1999, orig. proceeding); Prudentiøl-Bache
    Secs.,     Inc. v. Garza, 848 S.V/.2d 803, 807 (Tex. App.-Corpus Christi 1993). Based on the
    factual allegations contained in the parlies' pleadings, the parties' claims fall squarely within the
    scope of the DRP.
    29.     It is undisputed that De La Garza and Adame were employed by NCPS, which                   is
    a Nabors subsidiary.36            It is undisputed that La   Garza and Adame both alleged that they were
    injured at the worþlace and/or in the course and scope of their employment.3T
    30.     De La Garza and Adame signed an acknowledgement that specifically states,                  "I
    have received a copy of the Nabors Dispute Resolution Program...and understand that                        I   am
    required to adhere to the Dispute Resolution Program and its requirement for submission                        of
    disputes to...arbitration."38          All of these terms are clearly defined in the DRP.
    31.     The DRP clearly and unequivocally states that             it   "applies to and binds the
    Company, each Employee and Applicant."3e The DRP defines "Dispute" to include any personal
    injury that is incurred at the worþlace or in the course and scope of employment.aO According
    to the DRP, "Company" means "Sponsor and every direct and indirect subsidiary...of Sponsor,
    (and) any Electing Entity."al
    36 Nicholson Aff. atl T 6, 11 through 151, see also Plaintiffs Original Petition and First Amended Petition, and
    Adame's Original Petition in Intervention and First Amended Petition in Intervention.
    37 ,See Plaintiffs Original Petition and First Amended Petition and Adame's Original Petition in Intervention and
    First Amended Petition in Intervention.
    38
    Nicholson Aff atll l3 and l6; see also Exhibits l-H and l-I (emphasis added).
    3e,S¿e  Exhibit l-4, at !f l.
    ao      Exhibit 1-A at tf 2(E).
    See
    ar ,See Exhibit l-A at 2(D).
    !f
    32.     Nabors is the "sponsor" of the DRP.a2 NCPS is a subsidiary of Nabors.a3 Penn
    Virginia is an "Electing Entity" and agreed that it is bound by the terms of the DRP.44 Therefore,
    Penn Virginia falls within the scope of the "Company."
    33.      The parties' claims clearly fall within the scope of the arbitration agreement.
    Consequently, Penn Virginia's Motion to Compel Arbitration should be granted and this case
    should be abated or dismissed and compelled to final and binding arbitration.
    V. CONCLUSION
    34.     Nabors has instituted a comprehensive dispute resolution program, which requires
    arbitration of disputes between the Company (which is defined as Nabors Industries, Inc., its
    subsidiaries, and any "Electing Entity") and current or former employees. De La Garza and
    Adame unequivocally agreed to adhere to the DRP and its requirement to submit all claims to
    arbitration. The DRP applies to personal injuries that occur at the workplace or while the
    employee is     in the course and scope of his employment.                Therefore, the parties' claims,        as
    asserted   in this lawsuit, are subject to the terms of the DRP.              Consequently, Penn Virginia's
    Motion to Compel Arbitration should be granted and this case should be abated or dismissed and
    compelled to final and binding arbitration.
    PRAYER
    For the foregoing reasons, PENN VIRGINIA OIL & GAS, L.P. and PENN VIRGINIA
    OIL & GAS GP, LLC request that the Court grant this Motion, abate or dismiss this action, and
    order that the claims asserted by Alfredo De La Garza,Individually and as Next Friend of
    a, and Intervenor, John Paul Adame, Individually and as
    Next Friend    of                                                                                                be
    a2
    Nicholson Aff, at\ 4; see also Exhibit l-4, at !J 2(L).
    43Nicholson Aff. atl 6.
    4 See Nicholson Aff. atll7 through l0; see also Exhibits l-C and l-F,, at Contractors Special Provisions,fllí.
    compelled   to final and binding arbitration. PENN VIRGINIA OIL & GAS, L.P. and PENN
    VIRGINIA OIL & GAS GP, LLC further request all other relief to which they are entitled.
    Respectfully submitted,
    /s/ Thomas J. Smith
    Thomas J. Smith
    State Bar No. 00788934
    tsmith@gallowayj ohnson. com
    Kelly C. Hartmann
    State Bar No. 24055631
    khartmarn@gall owayj ohn son. com
    Alexis B. Hester
    State Bar No.24072807
    ahester @gallowayj ohnson. com
    Ge[owey,     JoFTNSoN, Tolr¿prrNs
    Bunn & SurrH
    l30l McKinney, Suite 1400
    Houston, Texas 77010
    (713) s99-0700
    (7 1 3) 599-07 77 - facsimile
    Attorneys for Defendants, Penn VirgÍnÍa
    OÍ1& Gaso L.P. and Penn VÍrgÍnÍa OÍI8t
    Gas GP,   LLC
    CERTIFICATE OF SERVICE
    I hereby certi$ that a true and correct copy of the foregoing document has been served
    electronically, by and through the Court approved electronic filing manager, to participating
    parties on this 18th day of June 2015, as follows:
    John David Hart                                      J. Javier Gutierrez
    L.rw Ornrcns OF JonN D¿,vrn H¿,nr                    Ana Laura Gutierrez
    Wells Fargo Tower                                    Tnn GurrrRREz LAw Frnu,Inc.
    201 Main Street, Suite 1720                          700 East Third Street
    Fort Worth, Texas 76102                              Alice, Texas 78332
    Phone 817-870-2102                                   Phone 361-664-7377
    Fax 817-332-5858                                     Fax     361-664-7245
    Coanselfor Plaintiff, Individaally and as            Counselfor Intervenor,
    Nert Fríend of I                                     John Pøul Adøme, Indivíduølly and øs Next
    , Minor Children               Fríend of
    Benjamin A. Escobar, Jr.
    Brit T. Brown
    BEIRNE, M.lvNnRn & PlnsoNo L.L.P.
    1300 Post Oak Blvd., Suite 2500
    Houston, Texas 77056
    Phone 713-623-0887
    Fax     713-960-1527
    Counsel  for Defendønt, Cudd Pressure
    Control, Inc.
    /s/ Thomas J. Smith
    Thomas J. Smith
    CAUSE NO. 2014-42519
    ALFREDO DE LA GARZA,                                  $              IN THE DISTRICT COURT OF
    INDIVIDUALLY        aTTcl   AS NE,XT FRIEND           $
    FOR                                                   $
    mlnoïs          ç
    $
    $                 HARRIS COI'NTY, TEXAS
    $
    PENN VIRGINIA OlL & GAS, LP,                          $
    PENN VIRGINIA OIL & GAS GP, LLC,                      $
    MII(E FERGUSON, TRIFECTA                              $
    OILFIELD SERVICES, LLC, CUDD                          $
    PRESSURE CONTROL, INC.,                               $
    ROYWELL SERVICES,INC. and OAI(S                       6
    PERSONNEL SERVICES, lNC, cllb/a                       $
    ST
    THE OAKS GROUP                                        $                  28   1        JUDICIAL DISTRICT
    VERIFICATION
    S'|ATE OF TEXAS                  {j
    $
    COUNTY OF HARRIS                 $
    BEFORE ME, the undersigned authority on this day personally appeared Thornas                       J.
    Smith, who after being cluly sworn upon his oath stated as follows:
    1.     "My narne is Thomas J. Srnith. I am over twenty-one (21) years of age. i am of                 sound
    rnind and in all ways competent to make this verification.
    2.     I    am one of the attorneys of record for Dcfcndants, Penn Virginia Oil            &   Gas, L,P, and
    Penn Virginia    Oil & Gas GP, LLC. I have personal knowledge of the facts stated in this affidavit
    and those facts are true and correct.
    3.      I   have revicwcd the foregoing Motion to Compel Arbitration and to Abate this case
    pcnding such arbitration. In my personal knowledge, the Motion truly and correctly recites the
    fäctual allegations set fortir in the pleadings ancl the evidence in the trial court record."
    J
    SUBSCRIBED AND SWOI{N TO before me a notary public, which witness my hand
    and seal of this office this/ l*day of June, 2015.
    Notary Public in and for    ofTexas
    nHoND^ SCHNltZ
    Notory Publlc, Stole ol Toxqs
    MyCommlsslon Fxplr€!
    Docembor     lt,2013
    CAUSE NO. 2014-42519
    ALFREDO DE LA GARZA,                                 $           IN THE DISTRICT COURT OF
    Y andAs NEXTFRIEND                   $
    and              $
    $
    $
    $             HARRIS COLINTY, TEXAS
    $
    PENN VIRGINIA OTL &. GAS, LP,                        $
    PENN VIRGINIA OIL & GAS GP, LLC,                     $
    MIKE FERGUSON, TRIFECTA                              $
    OILFIELD SERVICES, LLC, CUDD                         $
    PRESSURE CONTROL, INC.,                              $
    ROYV/ELL SERVICES, INC. and OAKS                     $
    PERSONNEL SERVTCES, INC. d/b/A                       $
    ST
    THE OAKS GROUP                                       $              28   1        JUDICIAL DISTRICT
    AFFIDAVIT OF KNITH NICHOLSON
    STATE OF'TEXAS                 $
    $
    COUNTY OF HARRIS               $
    Before me, the unclersigned notary, on this day personally appeared Keith Nicholson, the
    afftan6 a person whose identity is known to me. After I administered an oath to affiant, the
    affiant testified:
    I      "My name is Keith Nicholson. I am over l8 years of age, of sound mind, and capable of
    making this affidavit. The facts stated in this affidavit are within my personal knowledge
    and are true and correct.
    2.     I am Assistant General Counsel for Nabors Corporate Services, Inc.
    J     In my capacity as Assistant General Counsel, I am required to be familiar with Nabors
    Industries, Inc.'s corporate structure and the relationship of its various subsidiaries and
    affiliated companies.    I    am also required to be familiar with the Nabors Dispute
    Resolution Program ("DIUt"¡.
    4     Nabors Industries, Inc. is the "Sponsor" of the Nabors DRP as that tem is defined by the
    DRP. A true and correct copy of the DRP is attached to my affìdavit as Exhibit 1-4.
    5     The DRP provides that it applies to all direct and indirect subsidiaries of Nabors
    Inclustries, Inc., as well as all "Electing Entities" that have agreed to be bound by same.
    6.    Nabors Completion     &      Production Services Co. ("NCPS") was a subsidiary of Nabors
    EXHIBIT "1"
    Industries, Inc. at the time of the April 29,2014 incident which makes the basis of the
    lawsuit.
    7        On Septembet 23,2008, Penn Virginia Oil & Gas, LP agreed to be bound by the DRP as
    an "Electing Entity" in the "Contractors Special Provisions" contained in the International
    Association of Drilling Contractors ("IADC") Drilling Contract between it and Nabors
    Drilling USA LP. A true and correct copy of the IADC Contract is attached in its entirety
    to my affidavit as Exhibit l-8. The Contractors Special Provisions portion has been
    pulled out for reference and is attached as Exhibit 1-C.
    8.       The Contractors Special Provisions page states at paragraph 16 that "Operator, its parent,
    subsidiary, and affiliated corporations,..(collectively "Operator")   is   cognizant   of   the
    Nabors Dispute Resolution Program and wishes to become an Electing Entity, as defined
    in that Program. Accordingly, Operator and Nabors Industries, Inc. ("Nabors") hereby
    agree that Operator is an Electing Entity..."
    9        In addition, on September 8, 2010, Penn Virginia MC Energy, LLC agreed to be bound
    by the DRP as an "Electing Entity" in the "Contractors Special Provisions" contained in
    the International Association of Drilling Contractors ("IADC") Drilling Contract between
    it and Nabors Drilling USA LP. A true and conect copy of the IADC Contract is attached
    in its entirety to my affidavit as Exhibit 1-D. The Contractors Special Provisions portion
    has been pulled out for reference and is attached as Exhibit 1-8. lt is my understanding
    that Penn Virginia MC Energy, LLC is a subsidiary or affiliated corporation of Penn
    Virginia Oil & Gas, LP andlor Penn Virginia Oil & Gas GP, LLC.
    10.      As an "Electing Entity," Defendants, Penn Virginia Oil & Gas, LP and Penn Virginia Oil
    & Gas GP, LLC are required to resolve disputes with any past or present employee(s) or
    applicant(s) of Nabors Industries, Inc. or its subsidiaries in accordance with the DRP.
    I   l.   Based upon my review of the personnel file of Mr. Adame, I can confirm that Mr. Adame
    was employed by NCPS, and that he executed various documents that acknowledged that
    he received, reviewed, and accepted the terms and conditions of the DRP.
    t2,      Specifically, my review of the relevant documents confirms that on January 2,2013,Mr.
    Adame executed a document entitled "Application For Hourly And Daily Employment,"
    a true and correct copy of which is attached as Exhibit 1-F. Mr. Adame acknowledged
    and agreed by his signature that he is "required to adhere to the Dispute Resolution
    Program and its requirement for submission of all claims to..,arbitration."
    l3       Further, on January 7,2013, Mr. Adame executed a document entitled "Employee
    Acknowledgement Concerning Nabors Dispute Resolution Program," a true and correct
    copy of which is attached as Exhibit l-H. The document specifically states, "I have
    received a copy of the Nabors Dispute Resolution Ptogram." Mr, Adame acknowledged
    and agreed by his signature that he is "required to adhere to the Dispute Resolution
    Program and its requirement for submission of all claims to...arbitration."
    t4    Mr. Adame was employed by NCPS as a crew worker. As a crew worker, Mr. Adame's
    job duties and responsibilities included the operation of hand and power tools to perform
    maintenance and repairs to oil or gas wells and related equipment. Mr. Adame's job
    duties also involved activities associated with rigging-up and rigging-down work over
    rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks to support
    and level the rig, laying steel production rods, tubing, and casing, and other tasks
    necessary to support operations. 'While employed by NCPS, Mr. Adame was never a
    commercial truck driver or transportation worker.
    15.   Based upon my review of the personnel file of Mr. Alfredo De La Garza,I can confirm
    that Mr'. De La Gana was employed by NCPS, ancl that he executed various documents
    that acknowledged that he received, reviewed, and accepted the terms and conditions of
    the DRP.
    16.   Specifically, my review of the relevant documents confirms that on July 16, 2013, Mr. De
    La Gana executed a       document entitled "Application For Hourly And Daily
    Employment," a true and coüect copy of which is attached as Exhibit l-G. By his
    signature, Mr. De LaGarza acknowledged and agreed that he is "required to adhere to the
    Dispute Resolution Program and its requirement for submission of all claims
    to. .. arbitration."
    17.   Further, on July 22,2013, Mr, De La Garza executed a document entitled "Employee
    Acknowledgement Concerning Nabors Dispute Resolution Program," a true and correct
    copy of which is attached as Exhibit 1-I. The document specifically states, "I have
    received  a copy of the Nabors Dispute Resolution Program." Mr. De La Garza
    acknowledged and agreed by his signature that he is "required to adhere to the Dispute
    Resolution Program and its requirement for submission of all claims to...arbitration."
    18    Mr. De LaGarua was employed by NCPS as a crew worker. As a crew worker, Mr. De
    La Garza's job duties and responsibilities included the operation of hand and power tools
    to perform maintenance and repairs to oil or gas wells and related equipment. Mr. De La
    Garza's job duties also involved activities associated with rigging-up and rigging-down
    work over rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks
    to support and level the rig, laying steel production rods, tubing, and casing, and other
    tasks necessary to support operations. Mr. De La Garza'sjob duties and responsibilities
    did not include the movement of goods in interstate commerce. While employed by
    NCPS, Mr. De LaGarza was never a commercial truck driver or transportation worker.
    t9.   At all times relevant to this matter, NCPS was engaged in interstate commerce as it was
    in the business of providing services for the development of oil and gas resourÇes that are
    placed into commerce in both Texas and other states of the United States.
    20.   On information and belie{ Penn Virginia is also engaged in interstate commerce as it is
    in the business of producing oil and gas resources that are placed into commerce in both
    Texas and other states of the United States.
    21    Attached as Exhibit 1-A to my affidavit is a true and correct copy of Nabors Industries,
    Inc.'s DRP booklet, in English and Spanish, respectively. These records are kept by
    Nabors Industries, Inc. in the regular course and scope of business, and it was the regular
    course of business of Nabors Industries,Ino, for an employee or representative of Nabors
    Industries, Inc., with knowledge of the act or event that was recorded, to make these
    records or to transmit the information to be included in these records. These records were
    made at or near the time or reasonably soon after the act or event that was recorded.
    22    Attached as Exhibit i -B to my affrdavit is a true and correct copy of the 2008 IADC
    Drilling Contract between Nabors and Penn Virginia Oil & Gas, LP, and attached as
    Exhibit l-C is a true and correct copy of the portion of the IADC contract titled
    "Contractors Special Provisions." These records are kept by Nabors Industries, Inc. in the
    regular course and scope of business, and it was the regular course of business of Nabors
    Industries, Inc. for an employee or representative of Nabors Industries, Inc., with
    knowledge of the act or event that was recorded, to make these records or to transmit the
    information to be included in these records. These records werc madc at or near the time
    or reasonably soon after the act or event that was recorded.
    23    Attached as Exhibit  l-D to my affidavit is a true and conect copy of the 2010 IADC
    Drilling Contract between Nabors and Penn Virginia MC Energy, LLC, and attached as
    Exhibit l-E is a true and correct copy of the portion of the IADC contract titled
    "Contractors Special Provisions." These records are kept by Nabors Industries, Inc. in the
    regular course and scope ofbusiness, and it was the regular course ofbusiness ofNabors
    Industries, Inc. for an employee or representative of Nabors Industries, Inc., with
    knowledge of the act or event that was recorded, to make these records or to transmit the
    information to be included in these records. These records were made at or near the time
    or reasonably soon after the act or event that was recorded.
    24.   The records attached as Exhibits 1-F, 1-G, l-H, and 1-I are true and correct copies of
    records that are kept by NCPS in the regular course and scope of business, and it was the
    regular course of business of NCPS for an employee or representative of NCPS, with
    knowledge of the act or event that was recorded, to make these records or to transmit the
    information to be included in these records. These records were made at or near the time
    the act or event that was recorded."
    Sworn to and subscribed before me by                      on the   Éã*of     June, 2015.
    ú
    Notary         in and for the         ofTexas
    MAny D. Hotstilcroil              My Commission expires
    Notory Publlc, Stote of T6xos
    My Commtsrlon Expkês
    Moy 05,   20tt
    NABORS DISPUTE RESOLUTION
    PROGRAM and RULES
    Copies      thís pamphlet are availahle in S¡sanish, upon
    o,.f
    rer|u.e st, .fi' o m anj, J$a b or,v s u b s i d i a ry' s Hu il1.c¿lt
    Resouvees Deparfinent.
    Copías de eslefall.eto esldtt dispontble en espafiol con
    solo requeriúas al Depa{lamenfo de Recurso^r
    tr,,   *   "..n n   nu
    ^   Ê;¡HlþlT'¡*fl[ri.,'1.         t,
    "^.
    ^t^
    THE    Ì     BORS DISPUTE RESOLUTION              P}   GRAM
    1.   Purpose and Construction
    The Prograrn is designed to pt'ol'ide a means for the quick,
    fair, accessible, and inexpensive resolufion of Disputes
    between the Company and the Company's
    present a¡d fornrer Employees and Applicants for
    enrployment , ñated to or arising out of a cürrcnt, forrne¡
    or potsntial employment relationship with the Company.
    The Prograrn is intended to öreatÉ an exclusive procedural
    mechanism for the final ¡esolution of all Disputes falling
    within its terms. It is not inlended eitler to abridge or
    enlarge substantive rights available under applicable law,
    The Program contractually modifies the "at-wili" employ-
    mÉnf' relafiunship'"'betq'eet''tlte Company -'and its
    Employees, but only to the extent expressly stated in the
    Program. The Program should be interpreted in accor-
    dance with fhese putposes.
    2,   I)efïnítions
    A.     '¿AAA" rüeaüs the Arnerican Arbitration Assosiation,
    B.     '!JAN{S" means Judiciai Arbitration and Mediation
    Servises.
    C. The 'oAct"       meåns the Federal Arbit¡ation Aot,
    9 U.S.C.$1, et seq., as amended frc¡m time to time'
    D.   "Company" means Sponsor and every direct ot
    indiresl subsidiary (wbether a corpotation, lirnited
    liability cornpâny, company partnership or other legal
    entity) of Sponsor, any Electing Eniity, any entity oi
    person alleged to have joint and several liability
    concerning aly Dispute, and all of their ditectors,
    officers, employees, and agents, every plan ofbene'
    fìts, whether or not tax-exempt, established or main-
    tained by any such entity, the fiduciaries, agents and
    employees of all suct¡ plans, and thç successors and
    assigns ofall such entities, plans and persons; provÍd-
    ed, however, that in the case of an Electing Entity,
    "Company" shall include the Electing Entity oúly tc
    the exlent provided in the Electing Entity's agrcement
    to Lre borurd by the Prograrn.
    E.     "Dispute" means     ali legal   arrd equitable elaims,
    demands, a¡d controversies, of whalever nature or
    kind, whether in contract, tort, under statufe or regu-
    Iation, or sóme other law, between persons bound by
    tlre Program or by an agrcement to resolve Disputes
    ler the Ptogtam, or between a person i nd by the
    Program and a person or entity otherwise entitled to
    its benefits, including, but not lirnited to,          any
    matters wilh respect to:
    l.   this Program;
    2.    the employment or polential reemployment of an
    Employee, including the terms, conditions, or
    termination     of   such employment with        the
    Company;
    3.    employee benefits     or incidents of employrnent
    with the Company;
    4:    any 'ofher"matter reiated -to- or çoncerníng^the        '-   '-
    relationship between the Employee and the
    Company includÍng, by way of example and
    wifhout limitati on, allegations ofi discri¡nination
    based on race, sex, religion, national origin, age,
    veteran status or disability; sexual or olher kinds
    of harassment; workers' compensafion retalia-
    tiorr; defanratiorr; infliction of emotional disüess,
    ârtitrust claim concenring wages or otherwiso, or
    status, claim or membership with regard to any
    employee benefit plan;
    5.    arr Applicant's application   for employment    and
    the Company's actions and decisions regarding
    such application; and
    6.    any personal injury allegedly incuned in or about
    a Company worþlace or in the coulse and scope
    of an Employee's employmenl
    "Dispute" includes all such mattcrs regatdless of
    when the çvents on which they are based occurred,
    including mattel:s based on events oceurring before
    the Employee became subject to this Program (so
    long as such disputes were not previously asserted in
    a judioial forum) or affer termination of the employ-
    ment ¡elationship"
    F.   "Electing Entity" mearis any legal entity that         has
    agreed ts be bound by the Program as provided herein.
    G.   "Etnployee" rneans ¿üy person who is or has been in
    the employment of tbe Comparry on or afer the effec-
    tive date of this Prograrn, rvhether ot not empltyed af
    the rime a claim is brought with respect to a Dispute,
    residirrg in the United States, or otherwise subject to
    lau,s of the United States or any   statÊ,   ricipality,
    or other polilical subdivision of the Uniteo States,
    if,   "Applicant" llreâns any person u'ho is seekirrg or has
    sought employmont u'ith the Company affer the effec-
    tive date of this Program.
    I.    "Parly" meills, with respect to ¿ patticular Dispute,
    affecled pe1'solls a¡dlor' enlities bounci try this
    Prograrn,
    .1. "Progrårn" lrealls this        Nabors Dispute Rcsolurion
    Program, as anrended ftotn time to time.
    K.    "Rules" rneans the Nsbors Dispute Resolution Rttles,
    .     .as arnencleId.
    ? Exhibit 
    G, Penn Virginia's Proposed Order granting its Motion to Compel Arbitration and to Abate.
    Respectfu   lly submitted,
    /s/ Kellv C. Hartmann
    Thomas J. Smith
    State Bar No. 00788934
    tsmith@gallowayj ohnson. com
    Kelly C. Hartmann
    State Bar No. 24055631
    khartmann@gallowayj ohnson. com
    Alexis B. Hester
    State Bar No. 24072807
    ahester@gallowayj ohnson. com
    Genowev, JoFrNSoN, TovprrNis
    Bunn&Svrrn
    1301 McKinney, Suite 1400
    Houston, Texas 77010
    (713) s99-0700
    (7 1 3) 599-07 7 7 - facsimile
    Arronnnvs FoR DEFExDANTS, PENN
    Vrncn{raOrl & Gns GP, LLC lNoPBNx
    VrRcn¡r¡ Orr, & Grs,L.P
    CERTIFICATE OF SERVICE
    I hereby certiff that a true and correct copy of the foregoing document has been served
    electronically, by and through the Court approved electronic filing manager, to participating
    parties on this 1't day of October 2015, as follows:
    John David Hart                                  J. Javier Gutierrez
    Llw OprrcES OF JonN Davrn      H,lnr             Ana Laura Gutierrez
    V/ells Fargo Tower                               Tnn GurrnnRnz LAw Frnu, INc.
    201 Main Street, Suite 1720                      700 East Third Street
    Fort Worth, Texas76102                           Alice, Texas 78332
    Phone 817-870-2102                               Phone 361-664-7377
    Fax    817-332-5858                              Fax 36I-664-7245
    Counselfor Plaintffi                             Counsel for Intervenor,
    John Psul Adame
    Benjamin A. Escobar, Jr.
    Brit T. Brown                                    J. J.   Knauff
    BETRNE, M¡ylunn & PansoN, L.L.P.                 The     Miller Law Firm
    1300 Post Oak Blvd., Suite 2500                  Turtle Creek Centre
    Houston, Texas77056                              381I Turtle Creek Blvd., Suite 1950
    Phone 713-623-0887                               Dallas, Texas 75219
    Fax 713-960-1527                                 Phone 469-916-2552
    Counsel for Defendant, Cudd Pressure             Fax        469-916-2555
    Control, Inc.                                    Coanselfor Defendønt,
    Penn Virgínia MC Energy, LLC
    /s/ Kelllt C. Hartmann
    Kelly C. Hartmann
    6/18/2015 4:58:00 PM
    Chris Daniel - District Clerk Harr¡s County
    Envelope No. 5739243
    BY: <>
    Filed: 6/18/2015 4:58:00 PM
    CAUSE NO. 2014-42519
    ALFREDO DE LA GARZA,                               $             IN THE DISTRICT COURT OF
    INDIVIDUALLY      ANd   AS NEXT FRIEND             $
    FoR                                                $
    , minors             $
    $
    $                HARRIS COUNTY, TEXAS
    $
    PENN VIRGINIA OIL & GAS, L.P.,                     $
    PENN VIRGINIA OIL & GAS GP, LLC,                   s
    MIKE FERGUSON, TRIFECTA                            $
    OILFIELD SERVICES, LLC, CUDD                       $
    PRESSURE CONTROL, INC.,                            $
    ROYWELL SERVICES, INC. and OAKS                    $
    PERSONNEL SERVICES, INC. d/b/A                     ö
    THE OAKS GROUP                                     $                28IST   ruDICIAL DISTRICT
    DEFENDANTS, PENN VIRGINIA OIL & GAS, L.P. AND PENN VIRGINIA OIL & GAS
    GP. LLC'S MOTION TO COMPEL ARBITRATION AND TO ABATE
    Defendants, Penn Virginia    Oil &   Gas, L.P. and Penn Virginia     Oil & Gas GP, LLC
    (collectively referred to hereinafter as "Penn Virginia" unless individual reference is necessary)
    file this Motion to Compel Arbitration and to Abate pending such arbitration. In support thereof,
    Penn Virginia would show as follows:
    I.INTRODUCTION
    1.      Plaintiff, Alfredo "Freddie" De La Garza ("Plaintiff'or "De La Garza"),
    Individually and as Next Friend     of                                                             ,   and
    Intervenor, John Paul "J.P." Adame ("Adame"), Individually and as Next Friend of
    , (collectively "the parties") filed
    personal injury claims against Penn Virginia on July 24, 2014 and Novembet                    6,   2014,
    respectively. Their claims arise out of an April 29,2014 incident, which occurred at a well site
    EXHIBIT "A''
    located near Shiner, Texas while De La Garza and Adame were working in the course and scope
    of their employment with Nabors Completion & Production Co. ("NCPS").
    2.       Nabors Industries, Inc. ("Nabors") and its subsidiaries, one of which is NCPS,
    have a valid arbitration agreement which requires that disputes involving injuries to employees
    that are incurred during the course and scope of employment be submitted to final and binding
    arbitration. De     La   Garza and Adame both acknowledged and accepted the terms                            of   the
    arbitration agreement.
    3.       The arbitration agreement applies to all direct and indirect subsidiaries of Nabors,
    all current and former employees of the aforementioned subsidiaries, and any "Electing Entity"
    that has agreed to be bound by the terms of the agreement.r Penn Virginia is an "Electing Entity"
    and has agreed on more than one occasion to be bound by the terms of the agreement.z De La
    Garza's and Adame's individual claims fall within the scope of the arbitration agreement as both
    were employees of NCPS at the time of the incident and allege that their injuries occurred while
    in the course and scope of their employment. De La                   Garza and Adame also filed claims as
    representatives    of their minor children. The minors' claims are also subject to the arbitration
    agreement as they are derivative          of De La Garza and Adame's claims. Consequently, De La
    Garza and Adame's individual claims against Penn Virginia and the claims filed on behalf                           of
    their minor children all fall within the scope of the arbitration agreement.
    4.       Therefore, Penn Virginia's Motion to Compel Arbitration should be granted, and
    this case should be abated or dismissed and compelled to final and binding arbitration.
    I See Nabors Dispute Resolution Program ("DRP'), a true and correct copy of which is attached as Exhibit 1-4.
    2 See 2008 Penn Virginia Oil & Gas, LP IADC Contract, a true and correct copy of which is attached as Exhibit l-
    B; see also Contractors Special Provisions, a true and correct copy of which is attached as Exhibit 1-C, at fl 16
    "Operator, its parent, subsidiary and affiliated corporations, as well as the employees, officers and directors ofeach
    (collectively, "Operator") is cognizant of the Nabors Dispute Resolution Program and wishes to become an Electing
    Entity, as defined in that Program." See also 2010 Penn Virginia MC Energlt, LLC IADC Contract, a true and
    correct copy of which is attached as Exhibit l-D; see also Contractors Special Provisions, a true and correct copy of
    which is attached as Exhibit l-E, at fl 16.
    II. I]NDISPUTED FACTS
    5.        Nabors is the "Sponsor" of the Nabors Dispute Resolution Program ("DRP"),                    as
    that term is defined by the DRP.3
    6.        The DRP is subject to the Federal Arbitration Act ("FAA").4
    7.        By its terms, the Nabors DRP is designed to provide         a means    for the resolution of
    disputes between the "Company" and the Company's present and former employees that are
    related to or that arise out of a current or former employment relationship with the Company.s
    8.       The DRP is intended to create an exclusive procedural mechanism for the final
    resolution of all disputes falling within its terms.6 Consequently, the DRP requires that all
    disputes between De La Garza, Adame and the Company are subject to binding arbitration.T
    9.       The DRP defines "Dispute" to include personal injuries that arc incurred at the
    worþlace or in the course and scope of employment.s
    10.      The DRP defines "Company" as "Sponsor and every direct and indirect
    subsidiary...ofSponsor,@.',9Aspreviouslymentioned,Naborsisthe
    3 Afiidavit oJ' Keith Nicholson ("Nicholson Afn "), a true and conect copy of which is attached as Exhibit I, at I 4;
    see also Exhibit I -4, at fl 2(L).
    fl fl 2(C) and 8. The Federal Arbitration Act, 9 U.S.C. $ 2, applies in state courts and preempts
    a See Exhibit 1-A at
    state anti-arbitration laws to the contrary. Circuit City Stores, Inc. v. Adams, 
    121 S. Ct. 1302
    ;' Southland Corp v.
    Keating,465U.S. 1, 16(1984); seealsoPalmHarborHomesv.McCoy,944S.W.2dT16,T2l (Tex.App.-Fort
    Worth 1997) (holding that FAA preempted Texas Arbitration Act's requirement that party's attomey sign
    agreement). Although the FAA preempts state arbitration laws, courts still must resort to general state law contract
    principles to determine whether an arbitration agreement will be enforced.
    5 ,Se¿     Exhibit l-4, at fl l.
    6
    See    Exhibit l-4, at 'lf l.
    7
    See    Exhibit l-4.
    8 "Dispute" means all legal and equitable claims, demand and controversies, of whatever nature or kind, whether in
    contract, tort, under statute or regulation, or some other law, between persons bound by the Program or by an
    agreement to resolve Disputes under the Program, or between a person bound by the Program and a person or entity
    otherwise entitled to its benefits, including, but not limited to, any matters with respect to...6. any personal injary
    allegedly incuned ín or about a Company Workplace or ín the course and scope of an Employee's employment.
    .See Exhibit 1-A at tf 2(E) (emphasis added).
    e   ,!¿¿   Exhibit l-A at !f 2(D) (emphasis added).
    "Sponsor" of the DRP. NCPS, De La Garza and Adame's employer at the time of the workplace
    incident, is a subsidiary of Nabors.r0 The DRP extends to and includes employees ofNCPS.rr
    11.      Further, Penn Virginia is an "Electing Entity" and agreed to be bound by the
    terms of the DRP in two IADC Contracts between it and Nabors.l2 As an "Electing Entity," Penn
    Virginia is required to resolve disputes with any past or present employee(s) or applicants of
    Nabors in accordance with the DRP.I3
    12.     On January 2, 2013, Adame executed a document entitled "Application For
    Hourly And Daily Employment," as well as another document entitled "Notice to Applicants
    Regarding Dispute Resolution Program."l4 Likewise, on July 16,2013, De                                   La Garza executed
    the "Application For Hourly And Daily Employment" and the "Notice to Applicants Regarding
    Dispute Resolution Program."l5 De La Garza and Adame, by their signatures, acknowledged and
    agreed that they would be "required                       to   adhere   to the Dispute Resolution Program and                its
    requirement for submission of all claims to...arbitration."16
    13.     On January 7,2013, Adame also executed a document entitled "Employee
    Acknowledgement Concerning Nabors Dispute Resolution Program."17                                             The   document
    specifically states, "I have received a copy of the Nabors Dispute Resolution Progtam."l8 De La
    Garza executed the same document                        on   J:uly   22, 2013.1e De La Garza and Adame, by their
    to See     Nicholson Aff.   at\6.
    tt   See   Nicholson Aff.   atl 6; see also Affidavit   ol Katherine Ryan, a true and correct copy   ofwhich attached   as
    Exhibit 2.
    t2     Nicholson Aff. at\l7 through 9; see also Exhibits 1-B and 1-D; see a/so Exhibits 1-C and l-E, at fl 16.
    See
    t3 See Nicholson Aff. at \ l0; see als o Exhibits I -B - I -G.
    ta See Nicholson Aff. atl L2; see also Exhibit I -F.
    ts See Nicholson Aff. atl L6; see also Exhibit I -G.
    t6 See Nicholson Aff. atll 12 and 16; see also Exhibit 1-F and l-G.
    t7 Nicholson Aff. atl 13; see also Exhibit I -H.
    fl 13; see also Exhibit l-H.
    t8 Nicholson Aff. at
    te Nicholson Aff. atl 17; see also Exhibit I -I.
    signatures, again acknowledged and agreed that they would be "required to adhere to the Dispute
    Resolution Program and its requirement for submission of all claims to. . . arbitration."2O
    14.        On April 29,2003, Adame was hired by Nabors V/ell Services, Ltd. as a crew
    worker.2l On January 7,2013, as a result of a business reorganization, he became a crew worker
    for NCPS when Nabors Well Services, Ltd. liquidated into Nabors Well Services, Co., which
    liquidated and dissolved into NCPS                .22   As a crew worker, Adame's job duties and responsibilities
    included the operation of hand and power tools to perform maintenance and repairs to oil or gas
    wells and related equipment. Adame's job duties also involved activities associated with rigging-
    up and rigging-down workover rigs, pulling levers or tuming handles to extend hydraulic or
    screw-type jacks to support and level the rig, laying steel production rods, tubing, and casing,
    and other tasks necessary to support operations.23 Adame's                     job duties and responsibilities did not
    include the movement of goods in interstate commerce.2a While employed by NCPS, Adame was
    never employed as a commercial truck driver or transportation worker.25
    15.         On July 22,2013, De La Garzawas hired by NCPS as a crew worker.26 As a crew
    worker, De La Garza'sjob duties and responsibilities included the operation of hand and power
    tools to perform maintenance and repairs to oil or gas wells and related equipment. De La
    Garza's       job duties also involved activities                 associated   with rigging-up and      rigging-down
    workover rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks to
    support and level the                  rig, laying steel production rods, tubing, and casing, and other tasks
    necessary to support operations.21               DeLa Garza'sjob duties          and responsibilities did not include
    20
    Nicholson    Aff,, at flfl 13 and 17; see also Exhibit I -E.
    2t Nicholson    Aff.   atnÁ.
    22
    Nicholson    Aff    at   fl   14.
    23
    Nicholson    Aff.   atl       14.
    24
    Id.
    25
    
    Id. 26 Nicholson
     Aff. at tf 18.
    21
    NicholsonAff. attf 18.
    the movement of goods in interstate commerce.2s While employed by NCPS, De La Garza was
    never employed as a commercial truck driver or transportation worker.2e
    16.     On July 24, 2014, De La Garua filed his Original Petition, and on September 8,
    2014 and October         I,   2014, De   La      Garza filed his First and Second Amended Petitions.30
    Likewise, on November 6, 2014 and February 19, 2015, Adame filed his Original and First
    Amended Petitions        in Intervention.3l A copy of        all   pleadings are maintained        in the Court's
    records. De       La Garza and Adame allege that on April 29,2014 and while working for NCPS,
    they were injured when a piece of NCPS line pipe parted, causing both to be thrown back as a
    result ofthe released pressurized       gas.32
    III. SUMMARY          OF THE ARGUMENT
    17.     The Company (defined to include Nabors, its subsidiaries, and any "Electing
    Entity") has a valid arbitration agreement, which both De La Gana and Adame acknowledged
    and accepted. Because Penn Virginia is an "Electing Entity," the parties' claims against Penn
    Virginia fall within the scope of the arbitration agreement. Consequently, the parties' claims
    must be submitted to final and binding arbitration in accordance with the DRP. Therefore, Penn
    Virginia's Motion to Compel Arbitration should be granted and this case should be abated.
    IV. ARGUMENT & AUTHORITIES
    18.     Pursuant to the DRP, the parties' lawsuit must be submitted to binding arbitration.
    It is undisputed that Texas           courts recognize that arbitration agreements in an "at-will"
    employment setting apply to personal injury claims.                In fact, there is a strong presumption in
    Texas favoring arbitration. See Circuit City Stores, Inc. v. Adams,                   l2l   S. Ct. 1302 (2001);
    28
    
    Id. 2e Id.
    30         s Original Petition, First Amended Petition, and Second Amended Petition.
    Plaintiff
    3rAdame's Original Petition in Intervention and First Amended Petition in Intervention.
    32 SeePlaintifls Original Petition and First Amended Petition, as well as Adame's Original Petition in Intervention
    and First Amended Petition in Intervention.
    Cantella       &   Co. v. Goodwin,
    924 S.W.2d 943
    (Tex. 1996); Jack B. Anglin v. Tipps,842 S.V/.2d
    266, 268 (Tex. 1992).             If   a valid arbitration agreement exists, and the claims are within the
    agreement's scope,            atrial court   has no discretion and must compel arbitration. Cantella,924
    S.W.2d at 944; Shearson Lehman Bros., Inc. v. Kilgore, 
    871 S.W.2d 925
    , 928 (Tex.                      App.-
    Corpus Christi, 1994, orig. proceeding).
    19.      The clear language of the DRP states that the Federal Arbitration Act, 9 U.S.C.        $
    1, et. seq.     ("FAA") controls.33 The Texas Supreme Court has held that in            cases where the   FAA
    is stated in the agreement as the controlling law, the FAA prevails. EZ Pawn Corp. v. Mancias,
    934 S.V/.2d 87,91 (Tex. 1996). In adjudicating a motion to compel arbitration under the FAA,
    courts generally try to determine whether the parties agreed to arbitrate the dispute in question.
    Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 
    473 U.S. 614
    , 626 (1985); Folse                   v.
    Richard Wolf Medical Instruments Corp., 
    56 F.3d 603
    , 605 (5th Cir. 1995); R.M. Perez &
    Assocs., Inc. v. IIlelch, 960F.2d,534, 538 (5th Cir. 1992).
    20.      Under the FAA, the court applies ordinary state contract law principles in order to
    decide whether a valid arbitration agreement exists. See             In re D. ll'ilson Constr. Co., 
    196 S.W.3d 774
    , 781 (Tex. 2006) (citing First Options of Chicago, Inc. v. Kaplan, 
    514 U.S. 938
    , 944
    (1995)); 9 U.S.C.A.            $ I et seq.; Ctv. Pnec. & REn¿. Cone $          171.001 et   seq. Once a valid
    arbitration agreement             is   established,   a   presumption attaches favoring arbitration. Dallas
    Cardiology Assoc., P.A. v. Mallick,978 S.W.2d 209,212 (Tex. App.-Dallas, 1998, pet. denied).
    Then Court must then determine whether the arbitration agreement covers the non-movant's
    claims. In re Jim Walter Homes, lnc.,207 S.W.3d 888 (Tex. App.-Houston [14th Dist.] 2006).
    In doing so, a court must focus on the complaint's factual allegations rather than the legal causes
    of action asserted. 
    Id. 33 .S¿e
      Exhibit 1-A at fl !f 2(C) and 8.
    21.    Thus, two questions guide the determination of whether Penn Virginia's Motion
    to Compel should be granted: 1) is there   a   valid agreement to arbitrate; and 2) does the dispute in
    question fall within the scope of the agreement? Associated Glass, Ltd. v. Eye Ten Oaks Invs.,
    Ltd., 147 S.W.3d 507,511 (Tex. App.-San Antonio 2004, no pet.).
    A.      Valid Aereement to Arbitrate
    22.    An "at-will" employee who receives notice of an employer's arbitration policy
    and continues or commences employment accepts the terms of the agreement as a matter of law.
    See   In re Halliburton, 80 S.V/.3d 566 (Tex.        2002);    In re Dallqs Peterbilt, Ltd., L.L.P.,   
    196 S.W.3d 16l
    , 162 (Tex. 2006)   .   In Halliburton, the employer created a dispute resolution program
    which obligated both employees and the employer to arbitrate all disputes between them. See
    Halliburton, 80 S.V/.3d at 566. The Texas Supreme Court held that the employer was justified
    in giving notice to all employees of the program and informing them that by continuing to work
    after the adoption of the program, employees would be considered to have accepted the program.
    See id at569-71.
    23.    Four years later, the San Antonio Court of Appeals extended Halliburton even
    further. Relying on Halliburton, lhe Fourth Court of Appeals compelled arbitration where the
    employee expressly refused        to sign an arbitration       agreement   but continued to work   after
    receiving notice of the arbitration requirement. In re &RGT, Inc.,2006WL 622736 (Tex.           App.-
    San Antonio 2006, orig. proceeding).
    24. It should also be noted that the San Antonio              Court of Appeals has specifically
    considered the Nabors DRP and held that        it is valid   and enforceable on multiple occasions. S¿e
    NDUSA USA, LP v. Pena,385 S.W.3d 103 (Tex. App.-San Antonio 2012, pet. denied);
    NDUSA USA, LP v. Carpenter, 198 S.V/.3d 240,249 (Tex. App.-San Antonio 2006, orig.
    proceeding). Furthermore,            in October 2013 and, then again in        December 2013, the Texas
    Supreme Court denied the family of a deceased Nabors' employee's petition for review when the
    family sought to reverse the Fourth Court of Appeals' determination that the DRP was valid and
    enforceable.       See   Pena,385 S.W.3d 103
    25.     De La Garza and Adame executed documents on several occasions that clearly
    express both parties' agreement to the terms of the DRP.3a The documents specifically state that
    De La Gana and Adame acknowledged receiving, reviewing, understanding, and accepting the
    DRP's requirement to submit disputes to arbitration.3s De La Garza and Adame's signatures on
    the aforementioned documents is strong evidence of their actual acknowledgment and agreement
    that they are required to adhere to the DRP. See In re Bunzl USA, 155 S.V/.3d 202 (Tex.          App.-
    El Paso 2004, orig. proceeding).
    26.     De La Garza and Adame accepted the terms of the DRP as a maller of law.
    Therefore, a valid and enforceable agreement                  to arbitrate was formed. In re Palm Harbor
    Homes, Inc., 195 S.W.3d 672,676 (Tex. 2006).
    B.         The Disnute Falls Within the Scope of the Asreement
    27.      The parties' claims fall within the scope of the DRP. The DRP requires that
    disputes between the Company (defined as Nabors, its subsidiaries, and any "Electing Entity")
    and its current or former employees be submitted to arbitration. According to the parties'
    Petitions, De La Garza and Adame were both employees of a Nabors' subsidiary (NCPS) and
    both were allegedly injured while in the course and scope of their employment. Consequently,
    this dispute, which is between NCPS employees and Penn Virginia (an "Electing Entity"), falls
    within the scope of the agreement.
    3a
    See Nicholson Aff, atfl\ 12,73,16, and l7; see also Exhibits 1-F - l-I.
    3s
    NicholsonAff. at!ffl 12, 13, 16, and l7;see also Exhibits l-F - 1-I.
    28.      Whether a claim falls within the scope of an arbitration agreement depends on the
    factual allegations of the complaint rather than the legal causes of action asserled. Prudential
    Secs.,   Inc. v. Marshall, 
    909 S.W.2d 896
    , 899 (Tex. 1995) ; Ikon Office Solutions, Inc. v. Eifert, 2
    S.W.3d 688,697 (Tex. App.-Houston                    !4th Dist.l   1999, orig. proceeding); Prudential-Bache
    Secs.,   Inc. v. Garza,848 S.V/.2d 803, 807 (Tex. App.-Cotpus Christi 1993). Based on the
    factual allegations contained in the parties' pleadings, the parties' claims fall squarely within the
    scope of the DRP.
    29.      It is undisputed that De La Garza         and Adame were employed by NCPS, which is
    a Nabors subsidiary.36           It is undisputed that La    Garza and Adame both alleged that they were
    injured at the worþlace and/or in the course and scope of their employment.3T
    30.      De La Garza and Adame signed an acknowledgement that specifically states,                   "I
    have received a copy             of the Nabors Dispute Resolution Program...and          understand that   I   am
    required to adhere to the Dispute Resolution Program and its requirement for submission of
    disputes to...arbitration."38         All of these   terms are clearly defined in the DRP.
    31.      The DRP clearly and unequivocally states that               it   "applies to and binds the
    Company, each Employee and Applicant."3e The DRP defines "Dispute" to include any personal
    injury that is incurred at the worþlace or in the course and scope of employment.a0 According
    to the DRP, "Company" means "Sponsor and every direct and indirect subsidiary...of Sponsor,
    (and) any Electing Entity."+t
    36 Nicholson Aff.atn T 6, ll through 15; see a/so Plaintiffs Original Petition and First Amended Petition, and
    Adame's Original Petition in Intervention and First Amended Petition in Intervention.
    37 S¿e Plaintifls Original Petition and First Amended Petition and Adame's Original Petition in Intervention and
    First Amended Petition in Intervention.
    38
    NicholsonAlf. atfltf 13 and 16; see also Exhibits l-H and 1-I (emphasis added).
    3e,S¿e Exhibit 1-4, at rlf l.
    ao,S¿¿ Exhibit 1-A at !f 2(E).
    al See Exhibit 1-A at 2(D).
    !f
    32.      Nabors is the "Sponsor" of the DRP.a2 NCPS is a subsidiary of Nabors.a3 Penn
    Virginia is an "Electing Entify" and agreed that it is bound by the terms of the DRP.44 Therefore,
    Penn Virginia falls within the scope of the "Company."
    33.      The parties' claims clearly fall within the scope of the arbitration agreement.
    Consequently, Penn Virginia's Motion to Compel Arbitration should be granted and this case
    should be abated or dismissed and compelled to final and binding arbitration.
    V. CONCLUSION
    34.      Nabors has instituted a comprehensive dispute resolution program, which requires
    arbitration       of   disputes between the Company (which                  is defined   as Nabors Industries, Inc., its
    subsidiaries, and any "Electing Entity") and current or former employees. De La Garza and
    Adame unequivocally agreed to adhere to the DRP and its requirement to submit all claims to
    arbitration. The DRP applies to personal injuries that occur at the worþlace or while the
    employee         is in the course and scope of his employment. Therefore, the parties' claims, as
    asserted       in this lawsuit, are subject to the terms of the DRP. Consequently, Penn Virginia's
    Motion to Compel Arbitration should be granted and this case should be abated or dismissed and
    compelled to final and binding arbitration.
    PRAYER
    For the foregoing reasons, PENN VIRGINIA OIL                        &   GAS, L.P. and PENN VIRGINIA
    OIL & GAS GP, LLC request that the Court grant this Motion, abate or dismiss this action, and
    order that the claims asserted by Alfredo De La Garza,Individually and as Next Friend of                              I
    , and Intervenor, John Paul Adame, Individually and as
    Next Friend          of                                                                                                    , be
    42
    Nicholson Aff.    atl4;      see also   Exhibit 1-4, at fl 2(L).
    43
    NicholsonAff.     atl   6.
    4    See   Nicholson Aff.    at\l7     through L0; see also Exhibits l-C and 7-8, at Contractors Special Provisions,llí.
    compelled to final and binding arbitration. PENN VIRGINIA       OIL & GAS, L.P, and PENN
    VIRGINIA OIL & GAS GP, LLC further request all other relief to which they are entitled.
    Respectfully submitted,
    /s/ Thomas J. Smith
    Thomas J. Smith
    State Bar No. 00788934
    tsmith@gallowayj ohnson. com
    Kelly C. Hartmann
    State Bar No. 24055631
    khartmann@gall owayj ohn son. c om
    Alexis B. Hester
    State Bar No. 24072807
    ahester @gall owayj ohns on. com
    G¡nowev, JoFrNSoN, TotuprrNs
    Bunn &   Svnn
    1301 McKinney, Suite 1400
    Houston, Texas 77010
    (713) s99-0700
    (7 I 3) 599-07 77 - facsimile
    Attorneys for Defendants, Penn VÍrgÍnia
    OÍI8t Gas, L.P. and Penn VirgÍnÍa OiI &
    Gas GP,   LLC
    CERTIFICATE OF SERVICE
    I hereby certiff that a true and correct copy of the foregoing document has been served
    electronically, by and through the Court approved electronic filing manager, to participating
    parties on this 18th day of June 2015, as follows:
    John David Hart                                      J. Javier Gutierrez
    Llw Orrrcns  OF    Jorn   D.nvrn   Hlnr              Ana Laura Gutierrez
    Wells Fargo Tower                                    Tun GurrnRnnzLtw Fmvr, Inc.
    201 Main Street, Suite 1720                          700 East Third Street
    Fort V/orth, T exas 7 6102                           Alice, Texas 78332
    Phone 817-870-2102                                   Phone 361-664-7377
    Fax 817-332-5858                                     Fax     361-664-7245
    Counsel for Plaintiff, Individually and as           Counsel for fntervenor,
    Next Friend of                                       .fohn Paul Adøme, Indìvìdually and øs Next
    Minor Chíldren               Friend of
    Benjamin A. Escobar, Jr.
    Brit T. Brown
    BEIRNE' M¡yll,lRn & Plnson, L.L.P.
    1300 Post Oak Blvd., Suite 2500
    Houston, Texas 77056
    Phone 713-623-0887
    Fax    713-960-1527
    Coansel  for Defendant, Cudd Pressure
    Control, Inc.
    /s/ Thomas.I. Smith
    Thomas J. Smith
    CAUSE NO. 2014-42519
    ALFREDO DE LA GARZA,                                  $             IN THE DISTRICT COURT OF
    INDIVIDUALLY ANC1 AS NEXT FRIEND                      $
    FOR                                                   $
    mlnoïs            $
    $
    ç                 HARRIS COLINTY, TEXAS
    $
    PENN VIRGINIA OlL & GAS, LP,                          0
    PENN VIRGINIA OIL & GAS GP, LLC,                      $
    MIKE FERGUSON, TRIFECTA                               0
    OILFiËLD SERVICES, LLC, CUDD                          $
    PRESSURE CONTROL, INC.,                               $
    ROYWELL SERVICES,INC. and OAI(S                       Ò
    PERSONNEL SERVICES, lNC. cllb/a                       $
    ST
    THE OAI(S GROUP                                       a                 28   1        JUDICIAL DISTRICT
    VE,RIFICATION
    STATE OF TEXAS                  $
    $
    COUNTY OF HARRIS                $
    BEFORE ME, the undersignecl authority on this day personally appeared Thomas                      J.
    Smith, who after being cluly sworn upon his oath stated as follows:
    1.     "My narne is Thomas J. Smith. I am over twenty-one (21) years of age. I am of                 sound
    mincl anct in all ways competent to make this verification,
    2.      I   am one of the attomeys of record for Dcfendants, Penn Virginia Oil            &   Gas, L.P. and
    Penn Virginia    Oil & Gas GP, LLC. I have personal knowledge of the facts stated in this affidavit
    and those facts are truc and correct.
    3.      I   have revicwcd the foregoing Motion to Compel Arbitration and to Abate this case
    pcnding such arbitration. In nly personal knowledge, the Motion truly and correctly recites the
    factual allegations set forth in tire pleadings ancl the evidence in the trial court record,"
    J
    SUBSCRIBED ÀND,SWORN TO before me a notary public, which witness mY hand
    and seal of this office this/fday of June, 2015.
    Notary Public in and for   ofTexas
    THoNDA SÇilMrZ
    Nolory Publlc, Slote of Texqs
    MyCommlsslon Êxpkcs
    Dacrmber 13,2018
    CAUSE NO. 2014-42519
    ALFREDO DE LA GARZA,                                $           IN THE DISTRICT COURT OF
    INDIVIDUALLY ANd AS NEXT FRIEND                     $
    FOR                                                 $
    , minors              $
    $
    $               HARRIS COLINTY, TEXAS
    $
    PENN VIRGINIA OTL &, GAS, LP,                       $
    PENN VIRGINIA OTL & GAS GP, LLC,                    $
    MIKE FERGUSON, TRIFECTA                             $
    OILFIELD SERVICES, LLC, CUDD                        $
    PRESSURE CONTROL, INC.,                             $
    ROYV/ELL SERVICES, INC. and OAKS                    $
    PERSONNEL SERVICES, INC. d/b/A                      $
    ST
    THE OAKS GROUP                                      $               28 I        JUDICIAL DISTRICT
    AFFIDAVIT OF KEITH NICHOLSON
    STATE OF'TEXAS                $
    $
    ,*
    COLINTY OF HARzuS             Y
    Before me, the undersigned notaryo on this day personally appeared Keith Nicholson, the
    affrant, a person whose identity is known to me. After I administered an oath to affiant, the
    affiant testified:
    I      "My name is Keith Nicholson. I am over 18 years of age, of sound mind, and capable of
    making this affidavit. The facts stated in this affrdavit are within my personal knowledge
    and are true and correat.
    2.     I am Assistant General Counsel for Nabors Corporate Services, Inc.
    a
    J      In my capacity as Assistant General Counsel, I am required to be familiar with Nabors
    Industries, Inc.'s corporate structure and the relationship of its various subsidiaries and
    affiliated companies. I am also required to be familiar with the Nabors Dispute
    Resolution Program ("DIUt"¡.
    4      Nabors Industries, Inc. is the "Sponsor" of the Nabors DRP as that term is defined by the
    DRP. A true and correct copy of the DRP is attached to my affrdavit as Exhibit 1-4.
    5      The DRP provides that it applies to all direct and indirect subsidiaries of Nabors
    Inclustries, Inc., as well as all "Electing Entities" that have agreed to be bound by same.
    6.     Nabors Completion    &      Production Services Co. ("NCPS") was a subsidiary of Nabors
    EXHIBIT        "I"
    Industries, Inc. at the time of the Aprl|29,2014 incident which makes the basis of the
    lawsuit.
    7     On September 23,2008, Penn Virginia Oil & Gas, LP agreed to be bound by the DRP as
    an "Electing Entity" in the "Contractors Special Provisions" containsd in the International
    Association of Drilling Contractors ("IADC") Drilling Contract between it and Nabors
    Drilling USA LP. A true and correct copy of the IADC Contract is attached in its entirety
    to my affidavit as Exhibit 1-8. The Contractors Special Provisions portion has been
    putled out for reference and is attached as Exhibit 1-C.
    I     The Contractors Special Provisions page states at paragraph l6 that "Operator, its parent,
    subsidiary, and affiliated corporations,..(collectively "Operator") is cognizant of the
    Nabors Dispute Resolution Program and wishes to become an Electing Entity, as defined
    in that Program. Accordingly, Operator and Nabors Industries, Inc. ("Nabors") hereby
    agree that Operator is an Electing Entity..."
    9     In addition, on September 8,2010, Perur Virginia MC Energy, LLC agreed to be bound
    by the DRP as an "Electing Entity" in the "Contractors Special Provisions" contained in
    the International Association of Drilling Contractors ("IADC") Drilling Contract between
    it and Nabors Drilling USA LP. A true and correct copy of the IADC Contract is attached
    in its entirety to my affidavit as Exhibit I -D. The Contractors Special Provisions portion
    has been pulled out for reference and is attached as Exhibit l-E. It is my understanding
    that Penn Virginia MC Energy, LLC is a subsidiary or affiliated corporation of Penn
    Virginia Oil & Gas, LP andlor Penn Virginia Oil & Gas GP, LLC,
    l0    As an "Electing Entity," Defendants, Penn Virginia Oil & Gas, LP and Penn Virginia Oil
    & Gas GP, LLC are required to resolve disputes with any past or present employee(s) or
    applicant(s) of Nabors Industries, Inc. or its subsidiaries in accordance with the DRP.
    l1    Based upon my review of the personnel file of Mr. Adame, I can confirm that Mr. Adame
    was employed by NCPS, and that he executed various documents that acknowledged that
    he received, reviewed, and accepted the terms and conditions of the DRP.
    12,   Specifically, my review of the relevant documents confirms that on January 2,2013,Mr.
    Adame executed a document entitled "Application For Hourly And Daily Employment,"
    ahue and correct copy of which is attached as Exhibit 1-F. Mr. Adame acknowledged
    and agreed by his signature that he is "required to adhere to the Dispute Resolution
    Program and its requirement for submission of all claims to...arbitration."
    13    Further, on January 7,2013, Mr. Adame executed a document entitled "Employee
    Acknowledgement Concerning Nabors Dispute Resolution Progtam," a true and correct
    copy of which is attached as Exhibit l-H. The document specif,rcally states, "I have
    received a copy of the Nabors Dispute Resolution Program." Mr. Adame acknowledged
    and agreed by his signature that he is "required to adhere to the Dispute Resolution
    Program and its requirement for submission of all claims to.,.arbitration."
    t4.   Mr. Adame was employed by NCPS as a crew worker. As a crew worker, Mr. Adame's
    job duties and responsibitities included the operation of hand and power tools to perform
    maintenance and repairs to oil or gas wells and related equipment. Mr. Adame's job
    duties also involved activities associated with rigging-up and rigging-down work over
    rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks to support
    and level the rig, laying steel production rods, tubing, and casing, and other tasks
    necessary to support operations. While employed by NCPS, Mr. Adame was never a
    commercial truck driver or transportation worker.
    l5    Based upon my review of the personnel frle of Mr, Alfredo De La Gatza,I can confirm
    that Mr. De La Garza was employed by NCPS, and that he executed various documents
    that acknowledged that he received, reviewed, and accepted the terms and conditions of
    the DRP.
    16    Specifically, my review of the relevant documents confir'ms that on July 16, 2013, Mr. De
    La   Garza executed     a document entitled "Application For Hourly And Daily
    Employment," a true and correct copy of which is attached as Exhibit 1-G. By his
    signature, Mr. De La Garza acknowledged and agreed that he is "required to adhere to the
    Dispute Resolution Program and its requirement for submission of all claims
    to. ..arbitration,"
    17.   Further, on July 22,2013, Mr. De La Garza executed a document entitled "Employee
    Aoknowledgement Concerning Nabors Dispute Resolution Program," a true and conect
    copy of which is attached as Exhibit 1-I. The document specifically states, "I have
    received    a oopy of the Nabors Dispute      Resolution Program."     Mr. De La     Garua
    acknowledged and agreed by his signature that he is "required to adhere to the Dispute
    Resolution Program and its requirement for submission of all claims to. . . arbitration."
    18    Mr. De LaGarua was employed by NCPS as a crew worker. As a crew worker, Mr. De
    La Garza'sjob duties and responsibilities included the operation of hand and power tools
    to perform maintenance and repairs to oil or gas wells and related equipment. Mr. De La
    Garza's job duties also involved activities associated with rigging-up and rigging-down
    work over rigs, pulling levers or turning handles to extend hydraulic or screw-type jacks
    to support and level the rig, laying steel production rods, tubing, and casing, and other
    tasks necessary to support operations. Mr. De La Garza'sjob duties and responsibilities
    did not include the movement of goods in interstate commerce. While employed by
    NCPS, Mr. De LaGarza was never a commercial truck driver or transportation worker.
    19.   At all times relevant to this matter, NCPS was engaged in interstate commerce as it was
    in the business of providing services for the development of oil and gas resources that are
    placed into commerce in both Texas and other states of the United States.
    20.   On information and beliet Penn Virginia is also engaged in interstate commorce as it is
    in the business of producing oil and gas resources that are placed into commerce in both
    Texas and other states of the United States.
    21    Attached as Exhibitl-A to my affidavit is a true and correct copy of Nabors Industries,
    Inc.'s DRP booklet, in English and Spanish, respectively. These records are kept by
    Nabors Industries, Inc. in the regular course and scope of business, and it was the regular
    course of business of Nabors Industries,Inc. for an employee or representative of Nabors
    Industries, Inc,, with knowledge of the act ot event that was recorded, to make these
    rçcords or to transmit the information to be included in these records. These records were
    made at or near the time or reasonably soon after the act or event that was recorded.
    22.   Attached as Exhibit 1-B to my affidavit is a true and correct copy of the 2008 IADC
    Drilling Contract between Nabors and Penn Virginia Oil & Gas, LP, and attached as
    Exhibit l-C is a true and correct copy of the portion of the IADC contract titled
    "Contractors Special Provisions." These records are kept by Nabors Industries, Inc. in the
    regular course and scope of business, and it was the regular course of business of Nabors
    Industries, Inc. for an employee or representative of Nabors Industries, Inc., with
    knowledge of the act or event that was recorded, to make these records or to transmit the
    information to be included in these records. These records werc made at or near the time
    or reasonably soon after the act or event that was recorded.
    23    Attached as Exhibit  l-D to my affidavit is a true and correct copy of the 2010 IADC
    Drilling Contract between Nabors and Penn Virginia MC Energy, LLC, and attached as
    Exhibit 1-E is a true and correct copy of the portion of the IADC contract titled
    "Contractors Special Provisions." These records are kept by Nabors Industries, Inc. in the
    regular course and scope ofbusiness, and it was the regular course ofbusiness ofNabors
    Industries, Inc. for an employee or representative of Nabors Industries, Inc., with
    knowledge of the act or event that was recorded, to make these records or to transmit the
    information to be included in these records. These records were made at or near the time
    or reasonably soon after the act or event that was recorded.
    24.   The records attached as Exhibits 1-F, 1-G, 1-H, and 1-I are true and correct copies of
    records that are kept by NCPS in the regular course and scope of business, and it was the
    regular course of business of NCPS for an employee or representative of NCPS, with
    knowledge of the act or event that was recorded, to make these records or to transmit the
    information to be included in these records. These records were made at or near the time
    the act or event that was recorded."
    FUR
    Sworn to and subscribed before me by                      on the   dâ*   ofJune,20l5
    ú                  -l-
    (.>-
    Notary         in and for the       ofTexas
    MAnY D.   HotstiletoN
    Notory Publlc, Slole ot fetos
    My Commission expires
    My CommlErlon Explre8
    Moy 05,   20tt
    NABORS DISPUTE RESOLUTION
    PROGRAM and RULES
    Copies of this patnphlel are avqilahle in S¡tanislt, upon
    vç.q'u   e S   t, .fr"rs   m   a   nj'   Jtl6   b or'ç s u Í¡ s i d i a 4t' s Hu ntcut
    Re s out'ce          s D eP arl m e nt.
    C.opías de este             folleîo           e   sl:Qtt   disponible en español, con
    sal.o requer'ùlas al Depa.rlamettîo de Recursos
    t"t,, * -.,n a n r-         ¡"'f¡A*,'t ñ t, ^..^
    EX}fl BI T'                                   ^t^
    TIIE   I.   BORS DISPUTE RESOLUTION                  P}   GRAM
    1.   Purpose and Construction
    The Prograrn is designed to plovide &means for the quick,
    fair, accessible, and inexpensive resôluti.on of Disputes
    between        Company and the Company's
    the
    present and formei Employees and Applicants for
    enrploynrent, related fo or arising out of a current fo¡mer
    or potenlial employment relationship with the Company.
    The Program is intended to oreatÉ a¡r exclusive procedural
    mechanisnr for the filal resolution of all Disputes falling
    within its tenns. It is not inteuded either to abridge or
    enlarge zubstantive rights available under applieäblë lãw
    The Program contractually modifi es the'oat-wilf ' ernploy-
    ilreûf relatiorrship" "bellÀ'eelí the Com¡rany "and its -'
    Employees, but only to the extent expressly stated in the
    Program. The Program should be interpreted in accor-
    dance with these PutPoses.
    2,   I)cfÏnitions
    A,   '¿AAA" meâns the A¡nerican Arbitration Association'
    B.   "JAMS' means Judíoial Arbitration and Mediation
    Servises,
    C. The 'oAcÎ"        meâns the Federal Arbi'ration Act,
    9 U.S.C.ô1, et seq., as a¡rended from time to time'
    D.   "Coflipâny" means Sponsor and every direct or
    indirect suhsidiary (whether a co¡poration, limited
    liability company, courpany partnership or other legai
    entity) of Sponsor, any Eiecting Entity, any entity or
    psrson alleged to have joint and several liability
    concerning aly Dispute, and all of their directors,
    officers, employees, and agents, every plan ofbene-
    fits, whether or not tax-exempt, establishcd o¡ main-
    tained by any such entity, the fiduciaries, agents and
    employees ofall suoh plans, and thç successors and
    assÍgns   ofall such entities, plans and   persons; provicl-
    ed, howcver, rhat in the case of an Electing Entity,
    "Company" shall inolude the Electing Entity only to
    the extent provided in the Electing Entity's agreement
    to Lre borurd bY the Program.
    E.   "Dispute" means ali legal ald equitable elaims,
    demands, a¡d controversies, of whatever nature or
    kind, whether in contrac! tort, under staûite or regu'
    lation, or sôme other law, between persons bound by
    tlre Program or by an agleement to resolve Ðisputes
    ler the Program, or between a person I nd by the
    Program and a person or entity otberwise e¡titled to
    its benefits, including, but not litnited to,         any
    matlers wilh respect tol
    1.   this Program;
    2.    the employmenl or potential reemployment of an
    Employee, including the terms, conditions, or
    terrnination    of   such employment with úe
    Company;
    3.    employee'benefits or incidents of employment
    with the Company;
    -'   ' 4;                             or concerning"'dre - '
    any-"ul'her'matter rslated -to-
    relationship between the Employee and tire
    Company including, by way of example and
    without limitatio4 allegations ofi discrimination
    based on raoe, sex, religion, national origin, age'
    veteraü status or disabifity; sexual or olher kinds
    of   harassment; workers' ccirnpensafion retalia-
    tiou; defanration; infliction of emotional distress,
    antitrust claim conoeming wages or othorwise, or
    stâtus, claim or membership with regard to any
    employee benefit plan;
    5.    an Applicant's application for employment       and
    the Company's actions and decisions regarding
    such application; and
    6.    any personøJ injury allegedly incurred iu or about
    a Company workplace or in the course and scope
    of   an Employee's employmenl
    "Dispute" includes all such matters regatdless of
    when the events on whioh they are based occurred,
    including nlatters based on events occurrirrg before
    the Ernployee became subject to this Program (so
    long as such disputes were not previously asserted in
    a judicial forurn) or after termination of the employ-
    ment relationship.
    F. "Electing       Entity" means arry legal entity that      has
    agreed ts bc bound by the Program as provided herein,
    G. "Enployee"       rneans ¡uly person who is or has been in
    the employment of the Company on or afer the effec-
    tive date of this Prograni, rvhether o¡ not ernployed at
    the time a olaim is brought with respecl to a Dispufe,
    residing in the lJnited States, or oflerwise subject to
    laq,s of the Uniied States or any state, ricipality'
    or other polilical subdivision of the Uniteo States,
    t'1. "Applicant"   rneâns âny persôn u'ho is seeking or has
    sought employmont u'ith thp Compary affer the effec'
    tive date of fhis Program.
    I.   "Parly" tì1ealls, with respect to a panicular Dispute'
    afiectcd petsons n¡d/ol enfities bouncl by this
    Prograrn,
    J.   '?rogratn" meatts this l{abols Dispure Rcsolution
    Program, as amelrded fioln time to tirne.
    K. "Rules" means the Nabors Dispute Resolution Rules,
    . .¿s amender;¡ririiritliù¡r I
    {he tenlls             olthis provisiun         as a contìilictlt   olnty      enlpioylllLr¡ìi   ijr crjrlfilrltcttscl¡iirìl;ento nìultlo y pt¡c(iÙ
    {ìtiedar cosartc cl1 ciraìc¡uiei'tì1or]1ctrro, y¿ì sea pof tRi ¡rr:'lo r¡ Por l)tr(c de Ìa OOtnprrilia, sil: avisO ¡rtcvil:
    t;
    prcsen{ación              d   e c¿rr¡sn.
    yo conrp'e:rdr; r¡rre rt)nguria                   ¡rar1c Cel ccnlcltirJo cicl Ptograinn <{c }ì.c:;nl,tcir¡:rt::t
    de         viol¿io linrí!ar. los cictochos de los crlpioados gär'ilrrlizados por-el es{ldo o lirr lcy+s íi<{cr¡lc.s
    (ìorr nti     tccÒnozcg y entiùndo que sc rcquiere {Ltc yc ;uiripla c.rn cl I)Iôgì'1llra 966
    S.W.2d 657
    , 657 (Tex. App.—San Antonio, 1998) (quoting Garcia v. Kastner
    Farms, Inc., 
    774 S.W.2d 668
    , 670 (Tex. 1989) (emphasis added)). “In other words,
    this standard “encompasses the negligence of counsel as a reasonable explanation.”
    
    Dimotsis, 966 S.W.2d at 657
    .
    7.      In Dimotsis v. Lloyds, a 1998 case out of the San Antonio Court of
    Appeals, the attorney seeking the deadline filed a verified statement in which he
    explained that he “erroneously calculated the perfection deadline by adding thirty
    1
    The deadline for Penn Virginia to file its Notice of Appeal fell on October 1, 2015, which was
    twenty days after the September 11, 2015 Order denying the Motion to Compel Arbitration was
    issued. Fifteen days from October 1, 2015 was October 16, 2015. Penn Virginia filed its Notice
    of Appeal on October 13, 2015 and filed its Motion to Extend on October 14, 2015.
    days to the date the trial court overruled [Appellant’s] motion for new trial.” 
    Id. at 657-58.
    The Court held that Appellant’s late filing “was not intentional or
    deliberate, but was due to her attorney's misunderstanding of the law” and held that
    “the explanation offered is a reasonable one.” 
    Id. at 658.
    8.     The Houston First Court of Appeals has accepted similar explanations
    as reasonable and has granted an extension when a party’s attorney miscalculated
    the deadline to perfect an appeal, but that such error was the result of human error
    and a mistake. Hernandez v. Lopez, 
    288 S.W.3d 180
    , 184 (Tex. App.—Houston
    [1st Dist.] 2009, no pet.) (“Because George has also filed a factual explanation
    indicating that he, in good faith, believed that he filed on time and had
    inadvertently miscalculated the dates, we imply an extension of time, and we
    conclude that George's notice of appeal was timely filed.”).
    9.     Texas Rule of Appellate Procedure 10.5(b) permits an extension of
    time so the Texas Appellate Courts are not immediately divested of jurisdiction
    when unintentional errors are made, and so that the substance of appellate issues
    may be evaluated and reviewed by the intermediary courts. The Texas Supreme
    Court has articulated the proper standard for a “reasonable explanation” and
    counsel has sworn that its own mistake was the basis for its failure to timely file.
    Counsel who prepared the Notice of Appeal and Motion for Reconsideration had
    not reviewed the Texas Rules of Appellate Procedure since 2011 and was
    unfamiliar with the applicable timeline for filing.
    II.    Granting an Extension does not cause Prejudice to Appellees
    10.   Finally, Penn Virginia would show that permitting this extension and
    allowing the fifteen day extension to file does not prejudice Appellees in any
    manner whatsoever. The original deadline for Penn Virginia to file its Notice of
    Appeal fell on October 1, 2015. If a fifteen day extension is granted, the deadline
    extends to October 16, 2015. Penn Virginia filed its Notice of Appeal on October
    13, 2015 and filed its Motion to Extend on October 14, 2015. Penn Virginia’s two
    week delay in filing from October 1, 2015 to October 13, 2015 does not cause any
    prejudice or hardship to Appellees.
    III.   Penn Virginia should not be punished for the error of counsel
    11.   Penn Virginia would urge this Court to exercise its discretionary
    authority and extend jurisdiction over this matter. Penn Virginia filed its Notice of
    Appeal within fifteen days after the October 1, 2015 deadline. Penn Virginia did
    not deliberately, strategically, or intentionally delay in filing its Notice of Appeal
    in an effort to subvert the Texas Rules of Appellate Procedure or engage in any
    gamesmanship with the trial court or Appellees. Prior to learning of its error,
    counsel for Penn Virginia believed that, with the thirty-day deadline, it would have
    the opportunity to address the trial court’s specific concerns as to a particular and
    nuanced ambiguity in the contracts between Penn Virginia and Nabors. Penn
    Virginia should not be penalized for the errors made by its counsel and would
    request the opportunity to litigate the issues set forth in its Motion to Compel
    Arbitration, particularly the application of the arbitration provisions set forth in the
    Nabors Dispute Resolution Program.
    PRAYER
    Accordingly, Appellants, Penn Virginia Oil & Gas GP, LLC and Penn
    Virginia Oil & Gas, L.P. pray that this Court grant this Motion to Extend the
    Deadline to File a Notice of Appeal and permit Penn Virginia to present to this Court
    its arguments and authorities in support of arbitration. Penn Virginia further prays for
    such other and further relief, both special and general, at law and in equity, to which it
    may be justly entitled.
    Respectfully submitted,
    /s/ Thomas J. Smith
    Thomas J. Smith
    State Bar No. 00788934
    tsmith@gallowayjohnson.com
    Kelly C. Hartmann
    State Bar No. 24055631
    khartmann@gallowayjohnson.com
    Alexis B. Hester
    State Bar No. 24072807
    ahester@gallowayjohnson.com
    GALLOWAY, JOHNSON, TOMPKINS
    BURR & SMITH
    1301 McKinney, Suite 1400
    Houston, Texas 77010
    (713) 599-0700
    (713) 599-0777 – facsimile
    ATTORNEYS FOR APPELLANTS, PENN
    VIRGINIA OIL & GAS GP, LLC AND
    PENN VIRGINIA OIL & GAS, L.P.
    CERTIFICATE OF SERVICE
    I hereby certify that, in accordance with Rule 9.5 of the Texas Rules of
    Appellate Procedure, I have served the foregoing document upon the following
    attorneys by electronic service, personal mail, by commercial delivery service or
    by fax on October 29th, 2015:
    John David Hart                         J. Javier Gutierrez
    LAW OFFICES OF JOHN DAVID HART          Ana Laura Gutierrez
    Wells Fargo Tower                       THE GUTIERREZ LAW FIRM, INC.
    201 Main Street, Suite 1720             700 East Third Street
    Fort Worth, Texas 76102                 Alice, Texas 78332
    Phone       817-870-2102                Phone 361-664-7377
    Fax 817-332-5858                        Fax 361-664-7245
    Counsel for Appellee, Alfredo           Counsel for Appellee, John Paul
    De La Garza and his minor children      Adame and his minor children,
    and Intervenor, Ernesto Gonzalez, Jr.
    /s/ Kelly C. Hartmann
    Kelly C. Hartmann
    r{o. 01-15-00867-CV
    FIRST COURT OF'APPEALS
    HOUSTON, TEXAS
    PENN VIRGINIA OIL & GAS GP, L.L.C. & PENN VIRGINIA OIL AND
    GAS L.P., Appellants.
    V.
    ALFREDO DE LA GARZA, INDIVIDUALLY AND AS I{EXT OF'F'RIEND
    FOR XXXXXX XX XX XXXXX AND XXXXXXXX XX XX XXXXX,
    MII{ORS
    &
    JOHI{ PAUL ADAME, INDIVIDUALLY AI{D AS NEXT OF'FRIEND OF'
    XXXXXXXXX XXXXXX XXXXX, XXXX XXXX XXXXX, XXX, AND
    XXXX XXXXXXXX XXXXX, MINORS,
    Appellees.
    On Appeal from the 215rH Judicial District Court,
    Harris County, Texas
    Cause No. 2014-42519
    Vnnrnrc¡,TloN oF KELLy C. H¡,nrprlxN
    STATE OF TEXAS               $
    $
    COUNTY OF HARRIS             $
    BEFORE ME, the undersigned authority on this day personally appeared Kelly C.
    Hartmann, who after being duly sworn upon his oath stated as follows:
    1.      "My name is Kelly C. Hartmann. I am over twenty-one (21) years of age. I am of
    sound mind and in all ways competent to make this affidavit and verification.
    2.      I am one of the attorneys of record for Defendants,    Penn   Virginia Oil & Gas, L.P.
    and Penn Virginia    Oil & Gas GP, LLC. I have personal knowledge of the facts stated in this
    affidavit and those facts are true and correct.
    3.      I   have reviewed Appellant's Motion for Extension of Time to File Notice of
    Appeal and Appellant's Reply to Appellees' Response to the Motion for Extension of Time to
    File Notice of Appeal, In my personal knowledge, the Motion truly and correctly recites the
    factual allegations set forth in the pleading."
    C.
    mea        public, which witness my hand
    and
    Notary      in and for the         Texas
    ROBYN S. MORGAN
    Nolory Public, Sloie of lexos
    My Commission Expites
    July 30, 2018