Ricky D. Parker and James Myers v. Schlumberger Technology Corporation ( 2015 )

ACCEPTED
01-14-01018-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/23/2015 4:46:51 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-01018-CV
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS
HOUSTON, TEXAS 6/23/2015 4:46:51 PM
CHRISTOPHER A. PRINE
Clerk
RICKY D. PARKER AND JAMES MYERS
Appellants
v.
SCHLUMBERGER TECHNOLOGY CORPORATION
Appellee
Interlocutory Appeal
from the 268th Judicial District Court of Fort Bend County, Texas
Cause No. 14-DCV-218252
APPELLANTS RICKY D. PARKER AND JAMES MYERS’ MOTION TO
REVIEW JUNE 4, 2015 AMENDED TEMPORARY INJUNCTION
Levon G. Hovnatanian
State Bar No. 10059825
hovnatanian@mdjwlaw.com
Robert T. Owen
State Bar No. 24060370
owen@mdjwlaw.com
Kevin G. Cain
State Bar No. 24012371
cain@mdjwlaw.com
MARTIN, DISIERE, JEFFERSON &
WISDOM, L.L.P.
808 Travis, 20TH Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
TO THE HONORABLE COURT OF APPEALS:
Procedural Facts
This is an interlocutory appeal of the Fort Bend County District Court’s
orders denying a motion to compel arbitration and granting a temporary injunction
prohibiting the appellants Rick Parker and James Myers from working in the
wireline industry. On April 30 2015, following oral argument, the Court entered
an order sua sponte staying proceedings in the district court, with the sole
exception that the district court was permitted to hear matters relating to the
temporary injunction and was permitted to issue orders that modify or dissolve that
injunction. On June 4, 2015 the district court signed an order modifying the
injunction. See Supplemental Record & Appendix Tab 1. 1 The modified
injunction maintains all of the substantive work restrictions as to both Parker and
Myers but provides that the work restrictions expire on September 15, 2015 as to
Parker alone. See Supplemental Record & Appendix Tab 1.
1
Attached to the appendix to this motion are true and correct copies of (1) Appellants’ Motion to Modify or
Dissolve the Temporary Injunction; (2) Appellee’s Response to the Motion to Modify or Dissolve the Temporary
Injunction; and (3) the district court’s June 4, 2015 Amended Temporary Injunction. Parker and Myers have also
requested that the Fort Bend County District Clerk supplement the appellate record with these documents.
1
Rule 29.6
The district court’s June 4, 2015 order does not affect this Court’s
jurisdiction to adjudicate this interlocutory appeal. See Tex. R. App. P. 29.6. Rule
29.6 provides:
(a) Motion to Review Further Orders. While an appeal from an
interlocutory order is pending on a party’s motion or on the
appellate court’s own initiative, the appellate court may review
the following:
(1) a further appealable interlocutory order concerning the same
subject matter; and
(2) any interlocutory order that interferes with or impairs the
effectiveness of the relief sought or that may be granted on
appeal.
(b) Record. The party filing the motion may rely on the original record or
may file a supplemental record with the motion.
Tex. R. App. P. 29.6.
The June 6, 2015 amended temporary injunction is an appealable
interlocutory order concerning the same subject matter as this interlocutory appeal.
See Tex. Civ. Prac. & Rem. Code § 51.014(a)(4) (Vernon 2015) (“(a) A person
may appeal from an interlocutory order of a district court, county court at law,
statutory probate court, or county court that . . . grants or refuses a temporary
injunction or grants or overrules a motion to dissolve a temporary injunction as
provided by Chapter 65.”); Supplemental Record & Appendix Tab 1.
2
Accordingly, the appellants respectfully ask that the Court review the June 4, 2015
order in conjunction with the other issues pending in this appeal.
Effect Of June 4, 2015 Order On The Appellate Issues
The June 4, 2015 Amended Temporary Injunction does not affect any issue
in this appeal. The amended injunction maintains all of the substantive work
restrictions previously imposed on Parker and Myers and constitutes an abuse of
the trial court’s discretion for all the reasons previously noted in Parker and Myers’
appellate briefing. See Supplemental Record & Appendix Tab 1. The sole
substantive change in the order is that it sets an expiration date of September 15,
2015 for the work restrictions as to Parker alone. See Supplemental Record &
Appendix Tab 1.
However, that modification does not correct any substantive issue addressed
in the parties’ briefing or at oral argument. Indeed, as noted in appellants’ prior
briefing, an injunction prohibiting an employee from working cannot be properly
based upon an expired non-compete. See Appellants’ Brief at 53-54. It is
undisputed that, absent some act tolling the non-compete at issue, Parker’s non-
compete expired on October 2, 2014, one year after he resigned his position with
Schlumberger, and one week before the district court signed a temporary
restraining order prohibiting him from working in the wireline industry. See 3 RR
31; 5 RR Pl.’s Ex. 1 at ¶ 5. As noted in the prior briefing, there is no evidence in
3
the record that supports any continued restriction on Parker’s right to work. See
Reply Briefing at 29-30. Accordingly, adding an expiration date of September 15,
2015 to Parker’s work restrictions does not correct the substantive issues attendant
to the temporary injunction and the amended temporary injunction remains an
abuse of the trial court’s discretion. The June 4, 2015 amended temporary
injunction should be reversed and dissolved for all the reasons previously
presented to the Court.
Conclusion
Appellants Ricky Parker and James Myers respectfully request that the
Court grant this motion to review the district court’s June 4, 2015 order; reverse
the trial court’s orders denying their motion to compel arbitration and granting
Schlumberger’s application for temporary injunction and permit Parker and Myers
to immediately resume work.
4
Respectfully submitted,
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ Robert T. Owen
Levon G. Hovnatanian
State Bar No. 10059825
hovnatanian@mdjwlaw.com
Kevin G. Cain
State Bar No. 24012371
cain@mdjwlaw.com
Robert T. Owen
owen@mdjwlaw.com
State Bar No. 24060370
808 Travis, Suite 20th Floor
Houston, Texas 77002
(713) 632-1700 – Telephone
(713) 222-0101 – Facsimile
ATTORNEYS FOR APPELLANTS
RICKY D. PARKER AND JAMES MYERS
5
CERTIFICATE OF COMPLIANCE
This is to certify that this computer-generated motion contains 799 words.
/s/ Robert T. Owen
Robert T. Owen
Dated: June 23, 2015
CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of June, 2015, a true and correct copy
of the foregoing was sent by the method(s) indicated to the following individuals:
Mr. Jeff Barnes via e-file and e-mail: barnesj@jacksonlewis.com
JACKSON LEWIS, P.C.
1415 Louisiana, Suite 3325
Houston, Texas 77002
Mr. William L. Davis via e-file and e-mail: davisw@jacksonlewis.com
JACKSON LEWIS, P.C.
500 N. Akard, Suite 2500
Dallas, Texas 75201
/s/ Robert T. Owen
Robert T. Owen
6
APPENDIX
Tab 1 – June 4, 2015 Amended Temporary Injunction
Tab 2 – Motion To Modify Or Dissolve Temporary Injunction
Tab 3 – Response To Motion To Modify Or Dissolve Temporary Injunction
1
ANNIE REBECCA ELLIOTT
DISTRICT CLERK
Fort Bend County, Texas
(281) 341-3754
Fax (281)341-4519
June 11,2015
TO: W.JACKSON WISDOM
MARTIN DISIERE JEFFERSON & WISDOM LLP
808 TRAVIS 20TH FLOOR
HOUSTON TX 77002
Re: Cause No. 14-DCV-218252
268TH JUDICIAL DISTRICT COURT
Schlumberger Technology Corporation vs Ricky D. Parker and James Myers
Dear W.JACKSON WISDOM:
Please find enclosed the following:
(1) CERTIFIED COPY OF THE AMENDED TEMPORARY INJUNCTION FORWARDED TO
YOUR OFFICE FOR FURTHER HANDLING.
DISTRICT CLERK ANNIE REBECCA ELLIOTT
Fort Bend County, Texas
By:
Deputy strict Clerk V a Vasquez
Telephone:(281)341-3754
MAILING PHYSICAL
301 Jackson Street 1422 Eugene Heimann Circle, Room 10142
Richmond,Texas 77469 Richmond, Texas 77469
http://www.fortbendcountytx.gov
Departments — District Clerk
RECEIVED
JUN 15 2015
ORIGINAL
JAMES M. CLEARY,JR.
Filed
5/29/2015 3:40:47 PM !
Annie Rebecca Elliott
District Clerk
Fat Bend County. Texas
Jennifer Melendez
CAUSE NO. 14-DCV-218252
SCHLUMBERGER TECHNOLOGY IN THE DISTRICT COURT OF
CORPORATION,
Plaintiff,
v. FORT BEND COUNTY, TEXAS
RICKY D.PARKER and JAMES MYERS, §
Defendants. 268TH JUDICIAL DISTRICT
AMENDED TEMPORARY INJUNCTION
The Court enters this Amended Temporary Injunction following the hearing on
Defendant Ricky Parker's Motion to Modify or Dissolve the Temporary Injunction that was held
on May 15, 2015.
On December 5 and 8, 2014, the Court held a hearing on Plaintiff Schlumberger
Technology Corporation's request for a temporary injunction. Plaintiff appeared at the hearing
and offered evidence in support of the request for a temporary injunction. Defendants did not
appear, but were represented by counsel at the hearing. The Court heard testimony and
considered the evidence and arguments of the parties and finds as follows.
The Court Ends that the evidence establishes the elements necessary for the
issuance of a temporary injunction. Schlumberger has established a probable right to relief
necessary to obtain a temporary injunction with respect to its claims for breach of contract and
tortious interference with contract, tortious interference with prospective business relationships,
breach of contract, breach of fiduciary duty and duty of loyalty, and aiding and abetting breach
of fiduciary ditty and duty of loyalty. Ricky Parker sold the assets of his business (Parker Energy
Services) to Schlumberger. He signed the agreement in Houston, Texas. In connection with the
sale, he and James Myers entered into Intellectual Property, Confidential Information, and Non-
ROUTED TO COURT OW 101 6
RT'D TO D. CLERK 0(01b5
Compete Agreements with Schlumberger (the "ICN Agreements') — Plaintiffs Exhibits 1 and 2.
The ICN Agreements contain detailed and specific definitions of Confidential Information,
Intellectual Property, and Company Intellectual Property and the restrictions relating to the use
and disclosure of Confidential Information:
"Company Confidential Information" is defined as: technical
information, software, databases, methods, know-how, formulae,
compositions, drawings, designs, data, prototypes, processes,
discoveries, machines, inventions, well logs or other data,
equipment, drawings, notes reports, manuals, business
information, compensation data, clients lists, client preferences,
client needs, client designs, financial information, credit
information, pricing information, information relating to future
plans, marketing strategies, new product research, pending
projects and proposals, proprietary design processes, research and
development strategies, information relating to employees,
consultants and independent contractors including information
relating to salaries, compensation, contracts, benefits, inceptive
plans, positions, duties, qualifications, project knowledge, other
valuable confidential information, trade secrets, patent
applications, and related filings regardless of whether or not
identified as confidential or proprietary, and similar items.
"Intellectual Properly is defined as: all patents, trademarks,
copyrights, trade secrets, Company Confidential Information, new
or useful arts, ideas, discoveries, inventions, improvements,
software, business information, lists, information considered by
Company to be confidential, designs, drawings, writings,
contributions, works of authorship, findings or improvements,
formulae, processes, product development, manufacturing
techniques, business methods, tools, routines and methodology,
documentation, systems, enhancements or modifications thereto,
know-how, and developments, any derivative works and ideas
whether or not patentable, and any other form of intellectual
property.
"Company Intellectual Property" is defined as: all Intellectual
Property, that was authored, conceived, developed, or reduced to
practice by Employee (either solely or jointly with others) during
the term of his/her employment. Company Intellectual Property
may be originated or conceived during the term of Employee's
employment but completed or reduced to practice thereafter.
Company Intellectual Property shall be deemed a "work made for
hire" as that term is defined by the copyright laws of the United
States, Company Intellectual Property also includes any "Pre-
existing Intellectual Property" assigned, licensed, or transferred to
Company, and any "Preexisting Intellectual Property" in which
Company has a vested or executory interest.
The ICN Agreements also contained one year restrictions on certain competitive
activities after their employment ended. Paragraph 5 ofthe ICN Agreements provides that while
employed by Sehlumberger, and for a period of one year after their employment with
Schlurnberger ended, they would not directly or indirectly work for or assist, (whether as an
owner, employee, consultant, contractor or otherwise) any business or commercial operation
whose business is in direct or indirect competition with the area of Schlumberger's business in
which they were employed. 'The area of business where James Myers and Ricky Parker were
employed was the wireline, slick line and braided line services for oil and gas wells. The one-
year restriction provides for an extension of time while they were breaching the restrictions.
Both Parker and Myers breached paragraph 5 oftheir ICN Agreements.
Paragraph l3 of the ICN Agreements contains a restriction on soliciting
Schlumberger employees. Both Parker and Myers breached paragraph 13 of their ICN
Agreements.
James Myers signed a Retention Bonus Contract in connection with the sale of the
business — Plaintiff's Exhibit 3. Pursuant to the terms of the Retention Bonus Contract, Myers
was paid money in connection with the sale of the business and in exchange for his agreement to
remain employed for a period oftwo years aRer he signed the agreement. Tie also agreed not to
use or disclose Confidential Information, and agreed to return all documents, email
communications, computer data and other Company materials, whether or not they contain
Confidential Information, upon the separation from employment with the Company or upon
request. Paragraph 5 of the Retention Bonus Contract provides that during his employment with
the Company and for a period of one year following the end of his employment, he would not:
(a) Solicit, contact, or accept work, which was the same or
substantially similar to the work andlor services performed by him for the Company, from clients
of the Company with whom he had business dealings during his employment with the Company.
(b) Provide services (including consulting services) which are the
same or substantially similar to services and/or work performed by him for the Company, for
clients of the Company with whom he had business dealings during his employment with the
Company.
(c) Solicit, recruit, encourage, hire or assist any other person or entity
to solicit, recruit, encourage or hire for employment any employee or independent contractor or
the Company to work fora competitor.
(d) Directly or indirectly own, manage, operate, control, be employed
by, be a consultant ror, or perrorm any job functions for, any business that is in competition with
the Company.
The testimony established that the Company [or purposes of the Retention Bonus
Contract was the Parker Energy Services business acquired by Schlumborger which provided
wireline, slick line and braided line services to oil and gas wells. The geographic territory
specified in the Retention Bonus Contract is the territory serviced by the offices where Myers
worked. Myers had management responsibilities over offices in Oklahoma, Pennsylvania, and
Arkansas. The counties served by these offices arc identified in Plaintiffs Exhibit 74, which is
attached to this ORDER and incorporated herein.
Myers has breached paragraph 5 of the Retention Bonus Contract. The Retention
Bonus Contract provides that Myers entitlement to the $100,000.00 Bonus Award is contingent
upon his complying with paragraph 5 as written. Schlumberger paid the Bonus Award to Myers
and he has not returned the money.
Both Ricky Parker and James Myers were in management roles at Schlumberger
and also had extensive contact with Schlumberger customers. They had access to, and used,
Confidential Information as defined in the agreements at issue. Access and use was necessary
for them to secure business for Schlumberger, staff the jobs, and service the customers. They
also visited customers, teamed their business needs and preferences, and communicated with
other Schlumherger managers and sales representative regarding strategies for developing
business. They were both the beneficiaries of the goodwill Schhunberger developed with
existing customers.
Ricky Parker resigned from Schlumberger on October 2, 2013. He continued to
come to the Schlumberger offices and continued to have access to information regarding
Schlumberger's business alter his employment ended. Without informing Schlumberger, he
ordered six trucks costing approximately $360,000.()() each in January of2014. The trucks were
for use in the business he was forming, PWL-LLC, which would do business under the name
Professional Wireline. The trucks were designed for performing wireline, slick line and braided
line services for oil and gas wells. PWL is the same abbreviation used by Schlumberger in
describing its "Production Wircline" business, Parker also purchased tools, supplies, equipment,
and had Myers assist him while still employed by Schlumberger. lie also registered the PWL-
LLC business with the Texas Secretary of State indicating that it would do business in Texas and
purchased insurance from a Texas-based insurance broker. He also completed a Vendor Profile
seeking to do business with one of Schlumberger's clients stating that services would be
performed by the competing business in Texas, Oklahoma, and Arkansas.
Schlumberger confronted James Myers regarding what he knew about the competing
business and he claimed to have no knowledge, and also confirmed that he would not go to work
for the competing business. Contrary to his representations, SUMS Myers planned to go to work
for the competing business. Ricky Parker took delivery of the trucks and then Schlumberger
employees, while still employed by Schlumberger and during working hours, visited the new
business location where the trucks were delivered.
James Myers also began going to the new business location, while still employed
by Schlumberger, during business hours. He was also using a Schlumberger vehicle. He also
worked with Parker to obtain offers of employment for Schlumberger employees and set up a
meeting with Schlumberger employees to present the offers. On September 16,2014, Myers left
his Schlumberger truck at the Schlumberger offices, but the tool boxes and tools normally in the
truck were missing. While misrepresenting to Schlumberger that he was not resigning, and while
still employed by Schlumberger, James Myers set up a meeting with several Schlumberger
employees and they met with him on the evening of September 16. On September 17, 2014,
cloven Schlumberger employees tendered their resignations with no advance notice to go to work
for Parker and Myers in the competing business. The sudden departure of these employees and
missing equipment caused Schlumberger to be unable to service customers. At the same time,
Myers began meeting with Schlurnberger's customers on September 17, 2014, to solicit business
from the customers. To facilitate solicitation of the customers and convince them to transfer
business to the PWL, Myers took several former Schlumberger employees with him to show the
customers that PWL could offer the services of the same employees who had been performing
work for thcm at Schlumberger. Professional Wireline began performing work for these
76,••••:4
customers shortly after these meetings alter obtaining Master Service Agreements "MSA's" with
the customers. Three such MSA's with customers (BP, XTO and Linn Energy) contain Texas
choice of law and choice of venue provisions. Professional Wireline has performed work in
Texas and several of the customers at issue are based in Texas.
Professional Wireline has also copied its HSE materials from Schlumberger HSE
materials acquired in the purchase ofthe Parker Energy Services business. One of the employees
who left Schlumberger to work for Professional Wireline, Daniel Harrison, also accessed the
Parker Energy Services email account after his employment ended and forwarded client
information such as work orders containing pricing and job safety analysis reports to his PWL-
LJ..0 email account. Defendants also admit taking a Parker Energy Services price list which the
testimony from Plaintiff established was confidential. .lames Myers also retained his cell phone
he used at Schlumberger for communicating with customers, and that phone has now been given
to one or the former employees who left Schlumberger to go to work for Professional Wireline
so he could use it while the temporary restraining order was in place.
The breaches, both during Myers' employment and during the one-year non-
compete period of Myers' and Parker's TCN Agreements, were intended to divert the business to
the new business operated by Myers and Parker. Further, the business names used by them,
"PWL" and "Professional Wireline" is similar to the name used by Schlumberger — Production
Wireline or"PW."
Defendants did not appear at the original hearing set for October 24, 2014, nor
did they appear at the injunction hearing on December 5 or 8, 2014, Defendants did not comply
with the original Temporary Restraining Order entered on October 9, 2014. In the deposition
testimony of Defendants admitted into evidence at the injunction hearing, Defendants offered as
an excuse for their breaches that they never read the agreements. The Court concludes that
Defendants will continue to breach their agreements unless enjoined.
The Established Customers of the Schlumberger business at issue are reflected in
Plaintiff's exhibit I3, The counties where Schlumberger offices managed by Defendants
performed work are reflected in Plaintiff's Exhibit 74,
The Court further finds that immediate and irreparable injury, loss, or damage will result
to Plaintiff unless this temporary injunction is entered, Unless immediately restrained, the
Defendants' breach of the agreements will cause irreparable harm to Schlumberger for which
there is no adequate remedy at law, including loss of existing customers and employees, loss of
business opportunities, loss of goodwill and business reputation, and loss of confidential
information. Money damages cannot adequately compensate Schlumberger. A temporary
injunction is necessary to preserve Schlumberger's rights pending a trial on the merits and
warranted by the plain language and requirements of the agreements.
It is, therefore ORDERED, that James Myers and Ricky Parker, their agents,
servants, employees, and anyone in active concert or participation with them who receive actual
notice ofthis Order("Enjoined Parties") is/are hereby enjoined as follows:
1. Enjoined Parties shall not retain, conceal, move, or share with others any of
Schlumberger's equipment, property, documents, reports, files, hooks,
records, or Confidential Information or Company Intellectual Property.
2. Enjoined Parties shall immediately provide to Schlumberger any and all
external storage devices that James Myers or Ricky Parker ever put
Schlumberger Company Confidential lnlbrmation or Company Intellectual
Property on that is in the Enjoined Parties' possession.
3. Enjoined Parties shall not delete or destroy any Schlumberger property,
Company Confidential Information or Company Intellectual Property
contained on any computer, phone, disc, data storage device, email account, or
cloud storage.
4. Enjoined Parties shall not disclose Schlumberger's Company Confidential
Information or Company Intellectual Property for any reason.
5. Enjoined Parties shall not directly or indirectly recruit, hire, solicit, or assist
others in recruiting, hiring, or soliciting employees of Schlumberger.
6. Enjoined Parties shall not directly or indirectly work for, or assist (whether as
an owner, employee, consultant, contractor or otherwise) any business or
commercial operations or wireline, slick line and braided line operations in the
counties set forth in Plaintiff's Exhibit 74 which is attached.
7. Enjoined Parties shall not solicit, contact, or accept wireline, slick line or
braided line work and/or services, from the Established Customers of
Schlumberger in the states of Oklahoma, Texas, Arkansas, Kansas,
Pennsylvania, and T,ouisiana.
8. Enjoined Parties shall not provide, or supervise, advise, manage, or serve as a
consultant for businesses who are performing, wireline, slick line or braided
line work for the Established Customers of Schlumberger in the states of
Oklahoma, Texas, Arkansas, Kansas, Pennsylvania and Louisiana.
With respect to Defendant Parker only, the restrictions contained in Paragraphs 5-
8 shall expire on September 18,2015.
Plaintiff previously posted a $50,000.00 bond. No further bond is required. The
clerk of this court shall issue a temporary injunction in conformity with the law and the terms of
this Order. Until that time, the original Temporary Injunction Order entered on December l8,
2014 remains in effect.
The Court is not setting this cause for trial in connection with this Amended
Temporary injunction due to the stay ordered by the First Court of Appeals.
SIGNED on this
AGREED:
/s/ JefirBarnes
Jeff Barnes, Counsel for Plaintiff
AGREED AS To FORM ONLY:
/s/ James Cleary
James Cleary, Counsel for Defendant Ricky Parker
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By
VANESSA VA UEZ
2
Filed
5/6/2015 12:35:21 PM
Annie Rebecca Elliott
District Clerk
Fort Bend County, Texas
Jennifer Melendez
CAUSE NO 14-DCV-218252
SCHLUMBERGER TECHNOLOGY, § IN THE DISTRICT COURT
CORPORATION §
Plaintiffs, §
§
vs. § FORT BEND COUNTY, TEXAS
§
RICKY D. PARKER and JAMES MYERS, §
Defendants. § 268th JUDICIAL DISTRICT
DEFENDANT RICKY D. PARKER’S MOTION
TO MODIFY OR DISSOLVE TEMPORARY INJUNCTION
Defendant Ricky D. Parker files this Motion to Modify or Dissolve the Court’s December
18, 2014 Temporary Injunction and respectfully show the following:
PROCEDURAL HISTORY
On October 9, 2014, the Court signed a temporary restraining order prohibiting Parker
and Myers from competing with Schlumberger. 1 On December 5 and 8, 2014, the Court held an
evidentiary hearing to determine whether Schlumberger was entitled to a temporary injunction
prohibiting Parker and co-defendant Jimmy Myers from working in the wireline, slick-line, and
braided line industry. The Court concluded that that Schlumberger was entitled to such an
injunction and signed a temporary injunction on December 18, 2014, indefinitely enjoining
Parker and Myers from working in the wireline industry. 2
Parker and Myers subsequently perfected an interlocutory appeal of that injunction, as
well as the Court’s earlier order denying their motion to compel Schlumberger’s claims to
arbitration. 3 On April 30, 2015, two days after oral argument to the court of appeals, Justice
1
See October 9, 2014 Temporary Restraining Order.
2
See December 18, 2014 Temporary Injunction, attached as Exhibit 1.
3
See Notice of Interlocutory Appeal.
1
Jane Bland issued an order providing: “The court ORDERS a stay of all proceedings in the trial
court pending resolution of the interlocutory appeal, except that the trial court may hear matters
relating to the temporary injunction and may issue orders that modify or dissolve that
injunction.” 4 As contemplated by the court of appeals’ order, Parker asks to modify and dissolve
its December 18 injunction and permit Parker to return to work in the wireline, slick-line, and
braided line industry. 5 Parker is not seeking a modification or dissolution of the Court’s
injunction as it pertains to Schlumberger’s confidential information.
SUMMARY OF THE ARGUMENT
The non-compete forming the basis of the Court’s temporary restraining order and
temporary injunction prohibiting Parker from working expired by its own terms on October 2,
2014, one year after Parker resigned his position with Schlumberger. 6 Moreover, employees are
permitted to prepare to compete with their current or former employers absent a contractual
agreement providing otherwise. See Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 510 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). The non-compete at issue prohibits actual present
competition, not preparations that would permit competition at a later date. Parker’s non-
compete with Schlumberger is long expired, and there is no evidence that supports continuing
the Court’s now five month prohibition on Parker’s constitutional right to work in the wireline
industry. Accordingly, in compliance with the First Court of Appeals’ April 30 order, Parker
respectfully requests that the Court dissolve its prohibition on Parker’s constitutional right to
work.
4
April 30, 2015 Order, attached as Exhibit 2.
5
This motion to dissolve or modify concerns the Court’s indefinite injunction of Parker only. Myers does not move
to dissolve or modify the injunction as it pertains to him at this time, but reserves the right to do so in the future.
6
Exhibit 3.
2
BACKGROUND FACTS
In connection with his sale of Parker Energy Services Co. to Schlumberger’s predecessor
in interest, Parker agreed to work for Schlumberger and signed an “Intellectual Property,
Confidential Information, and Non-Compete” Agreement (“ICN Agreement”), which provided:
Employee agrees for a period of one (1) year following the date of termination of
his/her employment with Company, Employee will not directly or indirectly work
for or assist (whether as an owner, employee, consultant, contractor or otherwise)
any business or commercial operation whose business is – even in part – in direct
or indirect competition with any area of the Company’s business in which
Employee was employed by Company.
* * *
If Employee is found to have breached any promise made in [the non-compete
provision] of this Agreement, the one-year period specified in [the non-compete
provision] shall be extended by the period of time for which Employee was in
breach. 7
Parker worked for Schlumberger from September 2011 until October 2, 2013. 8 Accordingly,
unless extended by the tolling provision, the ICN Agreement’s non-compete requirements
expired on October 2, 2014. 9
At the December 2014 hearing on Schlumberger’s application for temporary injunction,
Schlumberger elicited evidence showing that, in January 2014, Parker ordered trucks and other
equipment that could be used to perform wireline, slick-line, and braided line work. 10 There was
no evidence however, that Parker, individually, or that PWL, LLC (“PWL”), Parker’s employer,
solicited any wireline work before September 17, 2014, fifteen days before the expiration of the
7
Exhibit 3.
8
Id.
9
Id.
10
Exhibit 4 at 35, 41, 103, 106-09, 112.
3
non-compete. 11 It is also undisputed, and indisputable, that PWL did not perform its first job
until September 29, 2014. 12
The Court concluded that Schlumberger was entitled to a temporary injunction and
signed an order that indefinitely prohibits Parker from working in the wireline industry,
providing, in pertinent part:
6. Enjoined Parties shall not directly or indirectly work for, or assist (whether
as an owner, employee, consultant, contractor or otherwise) any business or
commercial operations of wireline, slick line and braided line operations in the
counties set forth in Plaintiff’s Exhibit 74 which is attached.
7. Enjoined Parties shall not solicit, contact, or accept wireline, slick line or
braided line work and/or service, from the Established Customers of
Schlumberger in the states of Oklahoma, Texas, Arkansas, Kansas, Pennsylvania,
and Louisiana.
8. Enjoined Parties shall not provide, or supervise, advise, manage, or serve
as a consultant for businesses who are performing, wireline, slick line or braided
line work for the Established Customers of Schlumberger in the states of
Oklahoma, Texas, Arkansas, Kansas, Pennsylvania and Louisiana. 13
There is no temporal limitation in the Court’s temporary injunction. 14
ARGUMENT AND AUTHORITIES
Covenants not to compete are restraints on trade and unenforceable as a matter of public
policy unless they are reasonable restraints. See Juliette Fowler Homes, Inc., v. Welce Assocs.,
Inc., 793 S.W.2d 660, 662 (Tex. 1990); see also TEX. BUS. & COMM. CODE § 15.50(a). Indeed,
“[c]ovenants against competition are generally not favored by our courts because of the public
policy against restraints of trade and the hardships resulting from interference with a person’s
11
Exhibit 4 at 48.
12
Exhibit 4 at 68.
13
December 18, 2014 Temporary Injunction, attached as Exhibit 1.
14
December 18, 2014 Temporary Injunction, attached as Exhibit 1.
4
means of livelihood.” Martin v. Linen Sys. for Hospitals, Inc., 671 S.W.2d 706, 709 (Tex.
App.—Houston [1st Dist.] 1984, no writ). “Noncompetes tailored to protectable business
interests have their lawful place, but they should be used sparingly and drafted narrowly. And
employers must demonstrate special facts that legitimize the noncompete agreement. Squelching
competition for its own sake is an interest unworthy of protection. Competition by a former
employee may well rile an employer, but companies do not have free rein to, by contract,
indenture an employee or dampen everyday competition that benefits Texas and Texans.” Marsh
USA Inc. v. Cook, 354 S.W.3d 764, 788 (Tex. 2011) (Willet, J., concurring).
Under Texas law, Schlumberger is entitled to a temporary injunction barring Parker from
working only if the evidence shows that the restraints on trade sought are reasonably limited in
time, geographical area, and scope of activity to be restrained. TEX. BUS. & COMM. CODE
§ 15.50(a). A restraint on trade is unnecessary if it is broader than necessary to protect the
legitimate interests of the employer. Gallahger Healthcare Ins. Servs. v. Vogelsang, 312 S.W.3d
640, 654 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Whether a covenant not to
compete is reasonable is a legal question for the court. Haass, 818 S.W.2d at 386. The burden
of proving the necessity for and the reasonableness of the non-competition covenant falls upon
the employer. Martin, 671 S.W.2d at 709. A convenant not to compete cannot be enforced
absent a record that demonstrates the limitations are reasonable and as nonburdensome as
possible. Marsh USA Inc., 354 S.W.3d at 785.
An Injunction Prohibiting An Employee From Working Cannot Be Properly Based
Upon An Expired Non-Compete.
It is undisputed that, absent some act tolling the agreement, Parker’s non-compete
expired on October 2, 2014, one year after he resigned his position with Schlumberger, and one
week before this Court signed a temporary restraining order prohibiting him from working in the
5
wireline industry. 15 However, Schlumberger argued, and the Court concluded, that Parker was
“preparing to go in competition” by his purchase of equipment in January 2014, which, the Court
concluded, tolled and extended the non-compete past its October 2, 2014 expiration date. 16
Respectfully, Schlumberger has led the Court to error because the purchasing of equipment is not
contemporaneous competition prohibited by ICN Agreement and is perfectly proper under the
First Court of Appeals’ binding precedent.
In Abetter Trucking Co. v. Arizpe, the First Court of Appeals held: “[T]o resign from
one’s employment and go into business in competition with one’s former employer is, under
ordinary circumstances, a constitutional right. There is nothing legally wrong in engaging in
such competition or in preparing to compete before the employment terminates.” 113 S.W.3d
503, 510 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (emphasis added) (citations omitted). It
is only where a covenant not to compete specifically prohibits preparing to compete that one may
be prohibited from engaging in such preparations. See id.
The ICN Agreement on which the Court’s temporary injunction is derived does not
preclude Parker from “preparing” to compete, it provides that, for a period of one year, he may
not “work for or assist . . . any business . . . whose business is . . . in direct or indirect
competition with [Schlumberger].” 17 Such language only precludes Parker from working for
businesses in present competition with Schlumberger. 18 It is undisputed, and indisputable, that
PWL was not in present competition with Schlumberger until either September 17, 2014, when it
first attempted to solicit wireline customers or September 29, 2014, when it performed its first
15
Exhibit 3.
16
Exhibit 5 at 119-120, 122-124.
17
Exhibit 3.
18
Id.
6
wireline job. 19 Such acts would, at most, entitle Schlumberger to a fifteen day extension of the
non-compete. 20 However, as the Court’s indefinite temporary injunction has now prohibited
Parker from working for five months, any extension of the non-compete to which Schlumberger
may have been entitled from the September 2014 solicitation and work is now long expired.
To conclude that the non-compete provision extends beyond actual active competition
and precludes Parker from preparing to compete in the future, improperly adds restrictions to the
agreement and is improper under Texas law. Borders v. KRLB, Inc., 727 S.W.2d 357, 359 (Tex.
App.—Amarillo 1987, writ ref’d n.r.e.) (“The ultimate restraint is that a court cannot, through
the construction process, make a new contract for the parties, one they did not make.”). The
Court’s injunction, which penalizes Parker for preparing to compete, violates Texas public policy
because persons may properly “prepare[] to compete” with their former employers absent an
express agreement to the contrary. Abetter Trucking Co., 113 S.W.3d at 510. Accordingly,
Parker’s purchasing of equipment in 2014 cannot have properly tolled the non-compete as
Schlumberger suggested. Id.
Schlumberger has received more than the benefit of its bargain from its non-compete and
Parker has been prohibited from working for months after the Schlumberger’s non-compete
expired under its own terms. As the non-compete has expired and there is no evidence
supporting any continued prohibition on Parker’s constitutional right to work, Parker respectfully
requests that the Court modify its December 18, 2014 injunction and dissolve the portions
thereof prohibiting him from working in the wireline, slick-line, and braided line industry as
19
Exhibit 4 at 48, 68.
20
See Exhibit 3.
7
required by as required by the Business and Commerce Code. See TEX. BUS. & COMM. CODE §
15.50(a).
CONCLUSION
For the reasons noted above, the defendant, Ricky Parker, respectfully requests that the
Court modify its temporary injunction and permit him to return to work in the wireline industry,
as is his constitutional right.
Respectfully submitted,
MARTIN, DISIERE, JEFFERSON & WISDOM, L.L.P.
By: /s/ James M. Cleary, Jr.
W. Jackson Wisdom
State Bar No. 21804025
wisdom@mdjwlaw.com
James M. Cleary
State Bar No. 00783838
cleary@mdjwlaw.com
808 Travis Street, 20th Floor
Houston, Texas 77002
Telephone: (713) 632-1700
Facsimile: (713) 222-0101
ATTORNEYS FOR DEFENDANTS
RICKY D. PARKER AND JAMES MYERS
8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing pleading was sent via e-mail,
certified mail, return receipt requested, and/or hand delivery on this 6th day of May, 2015, to the
following:
Jeff Barnes Via E-mail and CMRRR 7010 1060 0002 4061 8497
JACKSON LEWIS P.C.
1415 Louisiana, Suite 3325
Houston, Texas 77002
Email: barnesj@jacksonlewis.com
William L. Davis Via E-mail and CMRRR 7010 1060 0002 4061 8503
JACKSON LEWIS P.C.
500 N. Akard, Suite 2500
Dallas, Texas 75201
Email: DavisW@jacksonlewis.com
Kyle Sears Via Hand Delivery
808 Travis, 20th Floor
Houston, Texas 77002
/s/ James M. Cleary, Jr.
James M. Cleary, Jr.
9
Filed
1211212014 12 :07 :44 PM
Annla Robocca Elliott
District Clem
Fort Bend County. Te~as
Ariana Salazar
CAUSE NO. 14-DCV-218252
SCHLUMBERGER TECHNOLOGY § IN THE DISTRICT COURT OF
CORPORATION, §
§
Plaint itT, §
§
V. § FORT BEND COUNTY, TEXAS
§
RICKY D. P..L\RKER and JAMES MYERS, §
§
Defendants. § 268TH JUDICIAL DISTRICT
TEMPORARY INJUNCTION
On Decemb(;r 5 and 8, 2014, the Court held a hearing on Plaintiff Schlumhergcr
Teclmology Corporation's request for a temporary injunction. Plaintiff appeared at the hearing
and offered evidence in support of the request for a temporary injunction. Defendants did not
appear, but were represented by counsel at the hearing. The Court heard testimony and
considered the evidence :md arguments ofthe parties ;md finds as follows .
The Court finds that the evidence establishes the clement<; necessary for the
isslllmcc of a temporary injunction. Schlumherger has established a probable right to relief
necessary to obtain a temporary injunction with respect to it<> claims for breach of contract and
tortious interference with contract, tortious interference with prospective business relationships,
breach of contract, breach of fiduciary duty and duty of loyalty, and aiding and abetting breach
of fiduciary duty and duty of loyalty. Ricky Parker sold the ao:;set<; of his business (Parker Energy
Services) to Schlumberger. He signed the agreement in Hotlston, Texas. In connection with the
sale, he and James Myers entered into Intellectual Property, Confidential lnfom1ation, and Non-
Compete Agreements with Schlumhcrger (the "ICN Agreements")- Plaintiffs Exhibits I and 2.
Titc ICN Agreements contain detailed and specific definitions of Confidential Infonnation,
ROUTED TO COURT \~ · IV ·\~ ~0~
RT'D TO D. CLERK I~\\~\ \l\ ~y
296
Intdlectual Property, and Company Intellectual Property and the restrictions relating to the use.
and disclosure of Confidentiallnfrmnation:
"Company Confidential Information" is defined as: technical
info1mation, software, databases, methods, know-how, formulae,
compositions, drawings, designs, data, prototypes, processes,
discoveries, machines, inventions, well logs or other data,
equipment, drawings, notes reports , manuals, business
information, compensation data, clients lists, client preferences,
client needs, client designs, financial inJormation, credit
infonnation, pricing infonnation, information relating to future
plans, marketing strategies, new product research. pending
projects and proposals, proprietary design processes, research and
development strategies, information relating to employees,
consultants and indepemknt contractors including infonnalion
relating to salaries, compensation, contracts, benefits , inceptive
plans, positions, duties, qualifications, project l\:110\vkdge, other
valuable confidential infonnation, trade secrets, patent
applications, and related 111ings regardless of vvhether or not
identified as confidential or proprietary, and similar items.
"Intellectual Property" is defined as: all patents, trademarks,
copyrights, trade secrets, Company Confidential Information, new
or useful arts, ideas, discoveries, inventions, improvements,
soft\:varc, business information, lists, infonnation considered by
Company to be confidential, designs, drawings, wntmgs,
contributions, works of authorship, findings or improvements,
fonmtlac, processes, product development, manufacturing
techniques, business methods, tools, routines and methodology,
dncumcntatinn, systems , enhancements nr modifications thereto,
know-hovv, and dcvelopmcnts, any derivative works and ideas
whdher or not patentable, and any other fmm or
intellectual
property.
"Company lntelkctna.l Prop01ty" is defined as: all lntelk:ctual
Property, that was authored, conceived, developed, or reduced to
practice by Employee (either soldy or joint!)' with others) during
thc term of his/her employment. Company Intellectual Property
may be originated or conceived during the lenn of Employee's
employment but compktccl or reduced to practice thereafter.
Company Intellectual Property shall be deemed a "work. made for
hire" as that tcnn is defined by the copyright laws of the United
States. Company Intellectual Property also includes any "Pre-
exi!:iling Intellectual Properly" a!:isigned, licensed, or lransfetTed to
2
297
Company, and any "Pre~ x isting Intellectual Property" m wh.i ch
Company bas a vested or executory inkrest.
111e .ICN Agreements also contained one year r~!slrictions on certain competitive
activities after thc.ir employment ended. Paragraph 5 of the ICN Agreements provides that while
employed by Schlumberger, and for a period of one year after the.ir employment with
Sell lumberger ended, they would not directly or indirectly work for or assist, (whether as an
owner, employee, consultant, contractor or otherwise) any business or commercial operation
whose business is in direct or indirect competition with the area of Schlumbcrgcr's business in
which they were employed. "1l1e area of business where James Myers and Ricky Parker were
employed was the \.Vireline, slick line and braided line services for oil and gas wells. The one-
year restriction pro vides for m1 extension of time while they vvere breaching the restrictions.
Both Parker and !vfyers breached paragraph 5 oftheir ICN Agreements.
Paragraph 13 of the lCN Agreements contains a restriction on soliciting
Schlumbcrgcr employees. Both Parker and Myers breached paragraph 13 of their JC N
Agreements.
James 1vfycrs signed a Retention Bonus Contract in connection with the sale ofthe
business - Plaintiff's Exhibit :i. Pursuant to the terms of the Retention Bonus Contract, Ivfyers
was paid money in connection with the sale of the business and in exchange for his agreement to
remain employed for a period of two years after he signed the agreement. He also agreed not to
usc or disclose Con1idential Infonnaiion, and agreed to retum all documents, email
communications, computer data and other Company materials, whether or not they contain
Confidential Infonnation, upon the separation from employment with the Company or upon
request. Paragraph 5 ofthe Retention Bonus Contract provides that during his employment vvith
the Company and for n period of one year following the end of his employment, he would not:
3
298
(a) Solicit, contact, or acce.pt work, which was the same or
substantially similar to tha work and/or services performed by him for the Company, from clients
ofthe Company with \Vhom he had business dealings during his employment with the Company.
(b) Provide services (including consuliing services) \vhich are the
same or substantially similar to services and /or work performed by him for the Company, for
clients of the Company with whom he had business dealings during his employment with the
Company.
(c) Solicit, recruit, encourage, hire or assist any other perso n or entity
to solicit, recruit, encourage or hire for employment any employee or independent contractor of
the Co mpan y to \Vorlc for a competitor.
(d) Directly or indirectly own, manage, operate, control, be employed
by, be a consultant for, or perfonn any job li.mctions for, any business lhal is in competition with
the Compl I-ltmison, also accessed the
Parker Energy Services email account aHcr his employment ended and forwarded client
infonnation such as work orders containing pricing and job safely analysis reports to his PWL-
LLC email account Defendants also admit taking a Parker Energy Services price list \Vhich the
testimony from Plaintiff established \Vas contidential. James !vlyers also retained his cell phone
he used at Schlumberger for communicating with customers, and that phone has now been given
to one of the fonncr employees who kil Schlumberger to go to work for Professional Wireline
so he could u~e it while the temporary restraining order \NHS in place.
1l1e breaches, both during l\.f'yen:' employment and during the one-year non-
compete period of !vfyers' and Parker' s TCN Agreements, were intended to diveJi the business to
the new business operated by Myers nne! P:u-J.cer. Futihcr, the busin.:;ss names used by them,
"P\VT ." and "Professional \Vi rcl inc" is simi lnr 1n the name used hy Sch lumherr;cr - Product inn
Wireline or "PW .''
Defendants did not appear at the original hearing s.:t for October 24, 2014, nor
did they appear at the injunction hearing on December 5 or 8, 2014. Defendants did not comply
with the original Temporary Restraining Order entered on October 9, 2014. Jn the deposition
testimony of Defendants admitted into evidence at the injunction hearing, Defendants otTcrcd as
nn excuse for their breaches that they never read th.~ agreements. T11e Court concludes thnt
Dekndanls will continue to breach thl':)ir agreements unkss enjoined.
7
302
1l1c Established Customers of the Schlumberger business at issue are rdlected in
Plaintiffs exhibit U. The counties \vhere Schlumberger offices managed by Defendants
performed \Vork arc rellectcd in Plaintiffs Exhibit 74.
'T11c Court fmthcr finds that immediate and irrcparnblc injury, loss, or damage w ill result
to Plainlili unless this temporary injunction is entered . T.Jnkss immediatel y restrained, the
Delendants' breach of the agreements will cause iiTeparable hann to Schlumberger for which
there is no adequate remedy at law, including loss of existing customers and emplo yees, loss of
business oppo1iunities, loss of goodwill and business reputation, and loss of confidential
information. i'vfoney damages cannot adequately compensate Schlumberger. A temporary
injunction is ncccssary to preserve Schlumbcrgcr' s rights pending a trial on the merits and
wammled by the plain language and requirements of!he agreements.
1t is, therefore ORDERED, that James 1vlyers and Ricky Parker,. their agents,
servants, employees, and anyone in active conceit or pa1ticipation with them who J't:~ccivc actual
notice of this Order ("Enjoined Parties") is/arc hereby enjoined as follows:
1. Enjoined Parties shall not retain, conceal, move, or share with others any of
Schlumberge:r's equipment, propert y, documents, reports, files , books,
records, or Confidential Tnfom1ation or Company Intellectual Property.
2 . Enjoined Parties shall immediately provide to Schlumbergcr any and all
C:\icma.l storage devices that James !vlycrs or Ricky Parker ever put
Schlumberger Company Confidential lnfonnalion or Company Intelleclual
Property on that is in the Enjoined Pmties · possession.
3. Enjoined Parties shall not delete or destroy an y Schlumberger property,
8
303
Company Confidential Infonnation or Company Intellectual Property
contained on any computer, phone, disc, data. storage device, email account, or
cloud storage.
4. Enj o ined Pruiics shall not disclos.:: Schlumbcrger's Compan y Confidentinl
Infonnation or Company Intclkctual Property for any reason.
5. Enj o in ed Patties shall not directly or indirect ly recruit, hire, solicit or assist
others in recruitin g, hiring, or soliciting employees of Schlumberger.
6. Enjoined Parties shall n ot directly or indireclly work for, or assist (whether as
an O\Nner, employee, co nsull ant, contractor o r otherwise) any business or
comm ercial operations of w irelinc, s lick line and braided line ope rat ions in the
counties set fotih in Plaintiffs Exhibit 74 \:vhich is attach.::d.
7. Enjoin ed Pmti cs shall n ot solicit conta ct, or accept w ircline, slick line or
braided line work and/or services, h om the Established C ustomers of
Schlumberger in the statc.s of Oklahoma, Texas, Arkm1sas, Km1sas,
Penns)'lvania, and Louisiana.
R. Enjoined Parties shall not prov ide, or superv ise, advise, manage, or serve as a
consultant for businesses w ho arc pc1-fonnin g, wirdinc, slick line or braided
line work for the Establi shed C usto mers of Schlumbcrgc r in the states of
Oklahoma, Texas, .:.\rkan sas, Kansas, Pcnnsy'lvania and Louisiana .
Plaintiff previously posted a $5,000.00 bond . The bond is increased to
$50,000.00. Upon posting the additional $45,000 .00 bond, the clerk of this court shall issue a
temporary injunction in conformity \Vith the law and the terms of this Order. Until that time, the
9
304
--···· ----- -·- -------------~~~-~=======""""""=-==-=
Temporary Restraining Order as extended in the Second Agreed Order Extending Temporary
Restraining Order entered on November 13, 2014, shall be exiended and remains in effect. ~
It is further ORDERED that the trial ofthls cause shall commence on the LZ.day
of
-1 A"#;'
/j_--IV~'Vj ~
.c . lg
6/:tW
~-
SIGNED on this __/f;;1y of December __, 2014, at 3~ 0-~ck _fm.
10
305
COlll,\""'.Jl-'-··-~.c;;
- =~a'-<----
Prlntcd Name: JJ_O \~)d~-~S<
- \-b c;,___ _ )-
Title: ~~¥ -----~----­
Date: .____._~~~-_,_,_\I_·- --- -----·--·--..-
lnldh'(:lllal Propi!l'ly, Confidential lnfonnation und Nolt-Ct>mpctc Agrcr.mcn1, M~rch 2CII I
Pllt•,t: 15
258
1
1 REPORTER ' S RECORD
VOLUME 3 OF 5 VOLUMES
2 TRIAL COURT CAUSE NO. 1 4- DCV-218252 FILEDIN
'I st COURT OF APPEALS
3 SCHLUEvlBERGER TECHNOLOGY IN THE DISTRICT I-~-{JSEfi?N, TEXAS
CORPORl\_TION 1/2/2015 3:39:27 PM
4 CHRISTOPHER A. PRINE
vs . FORT BEND COUNTY , pl,e_xll;.s
5
RICKY D . PARKER AND JAMES
6 £'1 YERS 268TH JUDICIAL DISTRICT
7
8
9
10 TEMPORARY INJUNCTION HEARING
11 December 5 , 2014 - Afternoon Session
12
13
14
15 On December 5 , 2014 , the following proceedings came
16 on to be held in the above-tit l ed and numb ered cause
17 before the Honorable Brady G . Elliott , Judge Presiding ,
18 held in Richmond , Fort Bend County , Texas.
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
2
1 APPEARANCES
2 MR . W. JACKSON WISDOM
MR . JA~JES " JIW' M. CLEARY
3 MARTIN DISIERE , JEFFERSON & WISDOM
808 TRAVIS, 20TH FLOOR
4 HOUSTON , TEXAS 77002
Telephone : 713.632.1700
5 Counsel for Defendants
6 ME . BILL DAVIS
MR. JEFF BARNES
7 JACKSON LEWIS, P.C.
1415 LOUISIANA, SUITE 3325
8 HOUSTON , TEXAS 77002
Telephone : 713.568.7860
9 Counsel for Plaintiff
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3 _,<.:
1 "Q: What were yo u signing?
2 "A: Hon estly , I don't remember on that
3 text .
4 "Q: Did i t relate to P . W. L . business?
5 "A: I don ' t know. I don't remember ."
6 IvJR . DAVIS: Moving to Page 7 , -J_,lne
' Jc:: :
7 "Q : Page 3 , we have a text September 13 ,
8 2014 from you to Mr . Myers that says -- quote --
9 'T esting , ' and it's ' L . U . B .', v.1hich I understand is
10 lubricator dash , quote-- ' Wednesday ' ?
11 "A: Uh - huh.
12 " Q: Is that what yo u were talki n g about ,
13 testing a lubricator?
14 "A: That's correct .
15 "Q: And that ' s for the P.W.L. business ,
16 right?
17 " A: I believe it was ."
18 IvlR . DAVIS: Mov ing down to Page -- to
19 Li ne 25 of Page 7 :
20 "Q: We 11 , so v.1 e ' v e got three texts vJ hi le
21 Mr. Myers was still employed by Schlumberger where
22 you ' re texting him about what ' s going on?
23 "A : What I ' m doing.
24 " Q: At the P.W . L . competing business ,
25 right?
41
1 to sig nin g it, did you?
2 "A: No .
3 "Q: But i t ' s your position now that you
4 shouldn ' t have to abide by it , right? "
5 MR . DAVIS : And then Mr . Cleary ob jected.
6 fvlR . CLEARY: I ' l l withdraw the objection .
7 "A: No , I never read it .
8 "Q: So you can ' t po in t to anything in
9 there that you th in k i s unreasonable? "
10 t1R . D.i\ VIS : There ' s an objection .
11 t1R . CLEARY : Yeah , it's a l ega l
12 con c lusion .
13 THE COURT: Overru led.
14 "A : I don ' t kno1r1 . I ha ven ' t read it. "
15 lv:iR. Dli.VI S : And mo v ing down to Page 44 ,
16 Line 9 :
17 "Q: Let ' s go through the calendar here .
18 We ' ve got October 2 , 2013 is yo ur best recollection of
19 when yo u r es igned from Schlumberger , right?
20 "A : Correct.
21 "Q: And we know th at on September 17,
22 which is wi t hin one year , yo u were hi ring employees of
23 Schlumberger to work f or your new busin ess , right?
24 "A: Uh-huh.
25 "Q: And y es? You ne ed to answer yes or
43
1 "A: That ' s correct.
2 "Q: But it's your position , even though
3 that -- even though that you signed this as part of the
4 asset purchase agreement , that it ' s unreasonable or that
5 you shouldn ' t have had to comply with that? "
6 MH . DAVIS : And there ' s an objection .
7 t1R . CLEAFY: Yeah, he ' s asking him to give
8 a legal conclusion as to whether or not the agreement is
9 enforceable.
10 THE COURT: Overruled .
11 "A: I did not k n ow this was part of the
12 asset purchase.
13 "Q: Well , you know you signed it on
14 September , 10 , 2011, right?
15 II Jl.. : Uh-huh .
16 "Q: And you didn ' t ob j ect to signing it ,
17 did you?
18 "A: No. Some of the guys did .
19 "Q: Well , we ' ll talk about that in a
20 second .
21 " You didn ' t -- Before you were paid
22 1 7 million as part of the asset sa l e , you didn't raise
23 your hand and say -- quote -- ' Wait a minute , that
24 vJ a sn ' t par t of the de a l , I ' m n ot s i g n in g t h i s , ' did you ?
25 II Jl.. : No ."
48
1 optional completeness , I'd like to read Page 62 ,
2 Line 20 :
3 "Q: Did you talk to Mr . Myers about what
4 tools and equipment might be needed?
5 "A : No ."
6 ME . CLEAEY : That's it.
7 t1P. . DAVIS: Okay. Page 63 , Line 22:
8 "Q: It looks like you got your insurance
9 fr om Upstream Brokers out of Houston, Texas , right?
10 "A : Correct ."
11 L'1R . DAVIS : Page 64 , Line 18:
12 "Q: t1r. Parker , it ' s my understand in g
13 that in addition to the wireline trucks , you also had
14 pickup trucks that you were assigning to the operators
15 when they came over to P . W. L ., correct?
16 "A: Yes, I had pickup trucks that I had
17 bought.
18 "Q: And when were those purchased?
19 "A: I don ' t remember . End of August ,
20 first of September .
21 " Q: Hov-1 many v-1as it , eight?
22 "A: I believe it was eight or nine .
23 Seven , eight , or nine . Eight or nine .
24 "Q: And you bought th ose - - it's you r
25 testimony yo u bought them n ot knowing how man y people
68
1 somewhere , right?
2 "A: Eventual l y.
3 "Q: Okay . But you actually went to work
4 for P . W. L . the very next day , right?
5 "A: The very next day , yes, sir ."
6 MR . CLEARY : If we could go back to
7 Page 1 3 , beginn i ng at Line 13 :
8 "Q : The contact on the l 7th was a phone
9 call or meeting?
10 "A: lVJeet ing.
11 "Q : Did you arrange for the meeting
12 before the 17th?
13 II .l:l.. : No , sir .
14 "Q: You just showed up?
15 " A: That ' s right .
16 "Q: At what location?
17 " A: l'1cAlester. "
18 lvJR . BARNES : Page 1 8 , Line 22 :
19 " Q: When was the first job for X . T . O . for
20 P . tAI . L . ?
21 "A : September the 29th ."
22 MR . BARNES : Page 20 , L ine 1 8 :
23 "Q: What commu nicat i ons did you have vli th
24 Unit after you left Schlumberger?
25 "A: Told them the same , that I had
103
1 when you questioned him about the drop in revenues while
2 he was there , about business being slow?
3 A I would tend to question it now
4 MR . WISDOM : Ob j ect i on ; based on
5 speculation.
6 THE COURT : Overruled .
7 THE WITNESS : I would question it now
8 based on what I know.
9 Q (BY MR. DAVIS ) What is it that you ' ve learned?
10 A That Mr . Myers has l eft the company a n d gone to
11 work for the competition and l eft without , you know ,
12 discussing with us. You know , that's not normal even ,
13 you know , in a retirement situation .
14 Q Well , you heard the testimony from Mr . Myers
15 and Mr . Parker about the text messages . Does that cause
16 you any concern?
17 A Yes . The text messages seem to show that
18 Mr . Myers was -- and Mr. Parker were getting equipment ,
19 getting tools , and getting M. S . A . ' s for their competing
20 business .
21 MR . WISDOM : Object i on. It 's speculation
22 and misstating wha t the documents actually say .
23 THE COURT : Overr uled.
24 Q (B Y MR . DAVIS) And was this in the same
25 timeframe that the revenues for that location were
106
1 MR . WISDOM: Ob j ection ; le ading .
2 THE WITNESS : That ' s correct .
3 THE COURT: Don ' t lead .
4 Q {BY MR. DAVIS) Now , I don ' t want to get bogged
5 down in the missing tools . Now we have -- but we do
6 have the too l s from the rat pack . Have you done an
7 investigation to see if Mr . Myers actually dropped them
8 off a. L
~
the McA l ester location?
9 A Yes, we have . Immediate l y upon my arrival , one
10 of our concerns was the security of the McAlester
11 facility , concerns of missing tools and such . So I
12 immediately had the crews go down to McAlester and go
13 through the equipment and see what we have , inventory ,
14 and verify if any of the tools from -- that were in the
15 rat pack were dow n there.
16 And so the crews went down there, and they
17 started moving the equipment and informed me that, no ,
18 none of the tools were there .
19 Q And you
20 A Similar tools were there , but not the ones that
21 we specifically were looking for .
22 Q Okay. Would these tools be helpful for whoever
23 was going to take over for Mr . Myers in servicing the
24 customer?
25 A Yes, sir . It would save them some money , and
107
1 then some of them had to be , you know , ordered , may take
2 a l ittle bit longer . And not only that, they \•iere kind
3 of expensive . Specialized overshots for fishing
4 operations were kept in Mr . Myers' pickup . He >vas the
5 fishing expert , also. And so we don't have any of
6 those.
7 Q And you ' ve heard -- well , you ' ve testified
8 about all of the customers he visited on the 17th .
9 Would those tools be helpful if he was going to begin
10 working immediately for customers for Professional
11 \Alire line?
12 A Yes , sir , they would .
13 Q And outside of the rat pack , have you done any
14 investigation to see whether there were any other
15 missing tools?
16 WeLl , let me ask a different question .
17 Do you have any -- was Mr . Myers
18 responsible for ordering tools for Schlumberger?
19 A l-ie was. And I went back and had -- as this
20 rolled out , I went back and had our financia.l contro ll er
21 pull our M. N . S. report and looked into the purchases
22 that we bad done through out that year . And I guess
23 starting back in April , we had purchased what could be
24 construed as tool i ng out a truck . I mean , there were
25 some specific gauge rings ranging from-- I believe it's
108
1 one-and-three-quarter , all the way up to
2 four-and - a-half-inch O.D .
3 THE COURT REPORTER : I'm sorry. Up to?
4 THE WITNESS: Four-and-a-half-inch O.D .
5 Q (BY MR. DAVIS) So you -- are you saying that
6 Mr . Myers was ordering tools while he was at
7 Schlumberger in April?
8 A Yes , sir, he vJas . He did it throughout the
9 year .
10 Q Okay. But a particular tool order , what was
11 your concern about that when you say " tooling out a
12 truck " ?
13 A My concern was that he had maybe taken these
14 tools and put them on the new trucks that he -- that
15 they had at Profession Wire l ine .
16 Q Well , what was it?
17 tviR . vH S DOlVl: Your Honor , I object to the
18 speculation of the illegal activity . He has no
19 evidence . He ' s simply putting his conspiracy theories
20 out there with no foundat i on.
21 THE COURT : Overru l ed .
22 Q (BY MR . DAVIS) Did you have any new trucks
23 going into service in April of 2014?
24 A No , sir , we didn ' t.
25 Q And the order you looked at , what did it l ook
109
1 like was bei n g ordered? Did it have to do with a new
2 t r uck?
3 A Yeah , it would be gauge rings for a new truck.
4 And then the other thing I noticed on this specific
5 order is the overshots , and these grapp l es that are on
6 here are required for overshots. Can ' t find those
7 overshots - - I mean , those grapples . They ' re missing .
8 Q And what is Exhibit 8?
9 A Exhibit 8 is a - - it ' s from our-- it ' s a
10 report from our financial contro l ler that shows the
11 P . O ., the date , the vendor , the part number , and the
12 description of the tools that were ordered .
13 Q And is Exhibit 8 a record kept in the ordinary
14 course of a regularly conducted business activity at
15 Schlumberger?
16 A For Sch l umberger , yes , sir.
17 Q And was making this record a regular practice
18 to document that activity?
19 A Yeah , it ' s a transaction from one system to the
20 other . And we run the reports , you know , to check the
21 purchases and stuff .
22 Q And was th i s record made at or near the time by
23 or from i nformation transmitted by someone wit h
24 knowledge of the infor mation in the report?
25 A This report was made by our financial
112
1 It ' s stil l hearsay . It still should not be admitted .
2 And it ' s sti l l irrelevant .
3 THE COURT : Well , as to the hearsay
4 objection , as information that ' s compiled in the regular
5 course of business, therefore, it ' s not hearsay. \~lith
6 the annotation removed from it , I ' ll admit it on that
7 basis.
8 DI RECT EXAM I NAT I ON ( CONTI NUED)
9 BY I'1R . DAVIS :
10 Q Okay . We talked about the --
11 THE COURT REPORTER : I ' m sorry. That was
12 No . 8?
13 HR . DAVIS : Yes .
14 Q (BY MR . DAVIS) Mr . Myers , we talked about the
15 first section . I s that the order for the - - what we
16 call " loading up a neitJ truck ," so to speak , that ' s all
17 the gauge rings?
18 The gauge rings , yes , sir.
19 Q Okay . And , again , you weren ' t putting a nevJ
20 truck into service around that time?
21 A No , sir .
22 Q What about the May , June , July , no new t r uck?
23 A ( Shakes head negative l y ).
24 Q And what about the next section? What -- what
25 are your concerns about the orders there?
1
1 REPORTER ' S RECORD
VO L UME 4 OF 5 VO L UMES
2 TRIA L COURT ClWS E NO . 14 - DCV-218252 FILEDIN
1st COURT OF APP EALS
3 SCHLUIV!BERGER TECHNOLOGY DISTRICT Jt~'?N , TEXAS
IN TI-iE
CORPOEATION 1/2/2015 3: 39:27 PM
4 CHRISTOPHER A. PRINE
vs. FOET BEND COUN T Y , 'PleJ..I~s
5
RICKY D. PARKER AND JAMES
6 !VlYERS 268TH JUDICIAL DISTRICT
7
8
9
10 TEMPORARY I NJUNCTION HEARI NG
11
12
13 On December 8 , 2014 , the following proceedings came
14 on to be held in the above-titled and numbered cause
15 before the Honorable Brady G . Ell i ott, Judge Presiding ,
16 held in Eichmond , Fort Bend County , Texas.
17 Proceedings reported by computerized stenotype
18 machine .
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20
21
22
23
24
25
2
1 APPEARANCES
2 MR . W. JACKSON WISDOM
ivJR . J Ar'"lES " JIM " lvJ . CLEARY
3 MART I N DISIERE , JEFFERSON & WISDOM
808 TRAVIS , 20TH F LOOR
4 HO USTON , TEXAS 77002
Telephone: 713 . 632 . 1700
5 Counsel for Defendants
6 !VlR . BILL DAVIS
l"iR . JEFF Bll.RNES
7 JACKSON LEWIS , P.C .
1415 LOUISIANA , SUITE 3325
8 HOUSTON, TE XAS 77002
Telephone: 713.568.7860
9 Counsel for Plaintiff
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
119
1 patience with me. I have tried a few judges ' patience
2 in the past , and today was no exception. I am
3 passionately committed to the idea that these men need
4 to be able to make a living during the holidays , and I
5 think my commitment is based solidly not just on moral
6 principles but the law of Oklahoma , which should apply ,
7 or the law of Texas , if the Court chooses to apply.
8 Thank you.
9 THE COURT : Counsel , if I sounded a little
10 bi t perturbed , we seemed to be covering the same ground,
11 but when I asked you to be direct , you were , and I
12 appreciate that .
13 Do you have a rejoinder?
14 MR . DAVIS : I ' m sorry, your Honor?
15 THE COURT : Do you have a rejoinder?
16 FINAL STATEMENT
17 MR . DAVIS : Your Honor , just quickly on
18 this -- the notion that there ' s no evidence that
19 Mr . Parker -- or that the agreement didn't pr o hibit
20 Mr. Parker from preparing to compete. The language of
21 the agreement talks about performing work . And the
22 evidence is work for Schlumberger would include ordering
23 things , p l anning , preparing ; and he was do i ng work for
24 the new business . To the extent they ' re saying : Well ,
25 the new business didn ' t have its doors open yet , what he
120
1 was do i ng -- and I think the evidence shows this is
2 he had an ex i sting bus i ness , C . C . T . S. , which
3 Schlumberger was okay with , but he was doing some of
4 this under C . C . T.S ., qu i te naturally probably because
5 some people may not want to deal with the startup and
6 then dealing with the C.C.T . S. business .
7 THE COURT : What do you say , Counsel , as
8 to the questions raised by the defense that the wording
9 of the contract seems to avoid geographic limitations
10 that the law i mposes on non-compete agreements?
11 MR . DAVIS : Well , you ' ve got two different
12 types of restrictions . One is the customer restriction ,
13 which I think the law is clear . As long as it ' s limited
14 to customers wi th whom they had dealings , that takes
15 care of the geographic area. I think the law is clear
16 on that . On a customer restriction , you don ' t need to
17 say counties , states , United States .
18 THE COURT : Well , in that same vein , then ,
19 if I take your argument to its natural conclusion,
20 Mr . Parker could solicit business from the next-door
21 neighbor of t h e Schlumberger operat i on as l ong as they
22 had not conducted business with Schlumberger?
23 MR . DAVIS : Correct .
24 THE COURT : I seem to look at that rather
25 broad provision of the agreements as broader than that .
122
1 know , they have slickline business in other states , but
2 we didn ' t offer testimony of that , nor are we asking
3 that it go that far. It was focused on the Parker
4 Energy Service business that was purchased that
5 Mr . Parker continued to manage and then Mr . Myers
6 managed after he l eft . That's why we limited the
7 testimony to those states.
8 THE COURT: But you would agree that they
9 could be -- that l anguage would be interpreted to be
10 broader than that?
11 MR . DAVIS : I don ' t believe No. 1 could
12 because it talks about in which they had an assignment
13 or customer. 2 is customers and assignments where they
14 used intellectual property . And 3 talks about a
15 manufacturing site , development site , but that ' s not an
16 issue in this case.
17 And then 4, it appears to me it talks
18 about the company ' s business in which employee was
19 employed by the company, and then they viewed this
20 business as the Parker En e rgy Services business , not the
21 whole slickline business , so I just don ' t read it as
22 broadly as they do .
23 THE COURT : Okay . Go ahead .
24 MR . DAVIS : I believe that ' s all I have .
25 THE COURT : The purpose of a temporary
123
1 injunction is to n o t re solve the final issues between
2 the parties but to determine whether the -- who would be
3 the prevailing party in the final lawsuit . In that
4 regard , it ' s not my task here today to assign damages ,
5 to assign a particular dollar amount to any violat i ons
6 that may or may not be in the final analysis proved ;
7 it ' s simply to focus on the activities of Mr . Parker and
8 his current company and Mr . Myers . Those are the tw o
9 issu es that ha ve to be resolved .
10 In that regard , I ' l l start out with
11 Mr . Myers. And , firstly, I will say that it ' s my
12 decision that Texas law applies . The parties did
13 business in Texas . Clearly Mr . Parker, by his
14 application for the new company to do business in Texas ,
15 showed very clearly he was doing business in Te xa s ; and
16 as pointed out by the opinions of the Courts o f Appeals
17 and the Supreme Court , the oil and gas business is n ot
18 confined to one state. It's not on l y multinational ,
19 it ' s multig l obal; and they take that in consideration in
20 determining these particular conf licts that arise . In
21 this regard , very specifically , the two agreements that
22 I'm ruling on , the I.C . N . and the retention bonus
23 agreement , specif i cally say the laws of Te xas shall
24 apply ; and the activity was in Texas , so I find that
25 Texas law app l ies .
124
1 In that regard as directed to Mr . Myers ,
2 it's clear he violated both the I.C . N. and retention
3 bonus agreement ; and with that finding, I issue a
4 temporary injunct i on against him as to those issues ; but
5 in that temporary injunction order to be produced, it
6 will be focused as the agreement reads , on the
7 businesses in the areas in which Mr. Myers had
8 responsibility.
9 And I point out , counsel , and I appreciate
10 Mr. Myers is a unique manager ; he likes to get his hands
11 dirty ; he lik es to be out in the field . But he, by
12 definiti on i n the agreements , is an operating manager ;
13 and as such , he has responsibility for more than just
14 the particular truck in the particular county or parish
15 in which he's involved ; therefore , the temporary
16 injunction applies .
17 As to Mr. Parker , I think one cannot look
18 at it with blindness and not ignore the fact that he
19 spent time preparing to go in competition ; but that is a
20 matter to be decided in the final hearing as to when the
21 date should apply ; but , in fact, it d oes apply ; and I ' ll
22 issue a temporary i njunction against Mr . Parker.
23 With that said , i s ther e any other matt er
24 we need to take up at this time?
25 MR. CLEARY : Your Honor , we ask you stay
3
Filed
5/13/2015 3:49:03 PM
Annie Rebecca Elliott
District Clerk
Fort Bend County, Texas
Jennifer Melendez