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.

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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? Fe¡g$cen "ttd nefgtrdurt.Qgj<* Pc¡sorulet Serv'ecs¡ he .l/h/e Tbe lì@ qr o . 0 bo (d À t-. O' rt F'HL&:Ð Ghris Daniel V.t- o\ q Distrlct Clerk SIGNED this day of 2015 ---\D-"-'-t \n å-> ãËt SEP I # ry6 Få'ff: H. ELEEì JUDGE, 2 I 5TI{ DISTRICT COURT ffie HEE ' Ë<8 cr: rú 6E ôG rË 'Ë 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 arnencle> 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