Pemex Exploracion y Produccion v. BASF Corporation et al, No. 4:2010cv01997 - Document 607 (S.D. Tex. 2013)

Court Description: MEMORANDUM OPINION AND ORDER granting 475 Defendant Plains Marketing L.P.'s Motion for Summary Judgment, granting in part and denying in part 479 Defendant Murphy Energy Corporation's Motion for Final Summary Judgment, granting in part and denying in part 481 Third-Party Defendant Donald Schroeder's Motion for Partial Summary Judgment, granting 486 Defendant Superior Crude Gathering, Inc. and Jeff Kirby's Motion for Summary Judgment, granting in part and denying in pa rt 489 BASF Corporation and BASF FINA Petrochemicals Limited Partnership's Motion for Summary Judgment, granting 517 Defendants RGV Energy Partners, LLC and F&M Transportation, Inc.'s Motion for Summary Judgment, granting in party and d enying in part 492 Plaintiff's Dispositive Motion, mooting as to Plains All-American Pipeline, L.P. and denying without prejudice as to Plains Marketing, L.P. 473 Defendants Plains All-American, L.P. and Plans Marketing L.P.'s Motion to Exclude Expert Testimony of Joseph Wilkinson and Brent Bersin, mooting as to Plains All-American Pipeline, L.P., Superior Crude Gathering, Inc., and Jeff Kirby, and denying without prejudice all other movants 476 Defendants BASF Corporation, et al 's Motion to Strike Alejandro Valle Corona's New Expert Report and Exclude his Expert Testimony, mooting 477 Defendants High Sierra Crude Oil & Marketing, LLC et al's Motion to Exclude Expert Testimony of Brent Bersin and Joseph Wilk inson, denying without prejudice 478 Defendants BASF Corporation, et al's Motion to Exclude Expert Testimony of Brent Bersin and Joseph Wilkinson, mooting as to Highe Sierra Crude Oil & Marketing, LLC, Plains All-American Pipeline, L.P., Jeff Kirby, and Superior Crude Gathering, Inc. and denying without out prejudice as to all other movants 482 Defendants BASF Corporation, et al's Motion to Exclude Expert Testimony of Ana Maria Salazar Slack, denying without prejudice 483 Plainti ff's Motion to Exclude the Expert Testimony of K. Scott Van Meter, CPA, mooting 485 Defendants RGV Partners, LLC and F&M Transportation, Inc.'s Motion to Join All Defendants' Motions to Strike Expert Reports and Exclude Expert Testim ony, denying without prejudice 495 Plaintiff's Motion to Exclude Defendants' Expert David G. Ownby, denying without prejudice 496 Plaintiff's Motion to Exclude Defendants' Expert Frank L. Holder, granting 426 Defendants BASF Corporation and BASF FINA Petrochemicals Limited Partnership's Amended Motion for Leave to Designate Responsible Third Parties, mooting 442 Defendant Superior Crude Gathering, Inc.'s Motion for Leave to Join Defendant High Sierra Oil & M arketing, LLC's Second Motion for Leave to Designate Responsible Third Parties, mooting 537 Defendants Plains Marketing, L.P., et al's Objections to Plaintiff's Summary Judgment Evidence, mooting 548 Plaintiff's Objections to Summary Judgment Evidence, mooting 565 Defendant Plains Marketing, L.P.'s Objections to Evidence Submitted in Support of Plaintiff PEP's Opposition to Defendants' Dispositive Motions, mooting 566 Superior Crude Gathering, Inc. and Jeff Kirby's Objections to Evidence Submitted in Support of Plaintiff's Opposition to Defendants' Dispositive Motions, mooting 575 Superior Crude Gathering, Inc. and Jeff Kirby's Objections to Evidence, mooting 583 Defendants BASF Corporation and BASF FINA Petrochemicals Limited Partnership's Objections to Evidence Submitted in Support of Plaintiff's Opposition to Defendants' Dispositive Motions, mooting 585 Defendant Murphy Energy Corporation's Obje ctions to Evidence Submitted in Support of Plaintiff's Opposition to Defendants' Dispositive Motions. All objections to evidence not referred to herein are over-ruled. (Joint Pretrial Order due by 11/1/2013. Docket Call set for 11/8/2013 at 03:00 PM in Courtroom 9B before Judge Sim Lake.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION PEMEX EXPLORACION Y PRODUCCION, Plaintiff, § § § § § § v. BASF CORPORATION; BASF FINA PETROCHEMICALS LIMITED PARTNERSHIP; MURPHY ENERGY CORPORATION; BIO-NU SOUTHWEST, INC. d/b/a VALLEY FUELS; US PETROLEUM DEPOT, INC.; ARNOLDO MALDONADO; JONATHAN DAPPEN; STEPHEN PECHENIK; TIMOTHY L. BRINK; CONTINENTAL FUELS, INC.; and HIGH SIERRA CRUDE OIL & MARKETING, LLC, Successor to PETRO SOURCE PARTNERS, LP, Defendants. PEMEX EXPLORACION Y PRODUCCION, Plaintiff, v. BIG STAR GATHERING LTD L.L.P.; F&M TRANSPORTATION, INC.; JAMES JENSEN; JOPLIN ENERGY, LLC f/k/a HUTCHISON HAYES ENERGY, LLCi JEFF KIRBY; PLAINS ALL-AMERICAN PIPELINE, L.P.; SAINT JAMES OIL, INC.; SUPERIOR CRUDE GATHERING, INC.; TRANSMONTAIGNE PARTNERS, L.P.; and WESTERN REFINING COMPANY, L.P. , Defendants. § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § § CIVIL ACTION NO. H-IO-1997 CIVIL ACTION NO. H-11-2019 MEMORANDUM OPINION AND ORDER iff, PEMEX Exploraci6n y Producci6n ("PEP") suit multiple defendants two separate I has brought but now consolidated - actions for claims arising from sales in the United States of natural gas condensate allegedly stolen from PEP in Mexico. 1 Pending before the court are five categories motions: (1) motions for summary judgment filed by defendants (a) Plains Marketing l L.P. (Docket Entry No. 475); (b) Murphy Energy Corp. (Docket Entry No. 479); (c) Superior Crude Gathering l Inc. and Jeff Kirby (Docket Entry No. 486); (d) BASF Corp. and BASF FINA Petrochemicals l L.P. (Docket Entry No. 489); and (e) RGV Energy Partners LLC and F&M Transportation l Inc. (Docket Entry No. 517); I (2) third-party defendant Donald Schroeder1s motion for partial summary judgment on cross-claims asserted against him by Murphy Energy and by BASF FINA Petrochemical Limited Partnership (Docket Entry No. 481); (3) PEp/s Dispositive Motion (Docket Entry No. 492); (4) motions to exclude and/or strike expertsl testimony and/or reports l including l (a) motions to exclude expert testimony of Joseph Wilkinson and Brent Bersin filed by Plains AIIAmerican Pipeline l L.P. and Plains Marketing l L.P. (Docket Entry No. 473); by High Sierra Crude oil & Marketing LLC Jeff Kirby and Superior Crude Gathering Inc. (Docket Entry No. 477); and by BASF Corp. BASF FINA Petrochemicals L. P. and Murphy Energy Corp. (Docket Entry No. 478); I I I ll I I I (b) motion to strike expert report and testimony of Alejandro Valle Corona filed by BASF Corp. BASF FINA Petrochemicals l L,P' Murphy Energy Corp. Plains All-American Pipeline l L,P' Plains Marking l L. P. Superior Crude Gathering Inc. and Jeff Kirby (Docket Entry No. 476); I I I I I I I (c) motion to exclude expert testimony of Ana Maria Salazar Slack filed by BASF Corp. BASF FINA I lCivil Action No. H-10-1997. -2- of Petrochemicals r L.P. r High Sierra Crude Oil & Marketing r LLC r Jeff KirbYr Murphy Energy Corp. r Plains All-American Pipeline r L.P. r Plains Marketing r L.P. r and Superior Crude Gathering r Inc. (Docket Entry No. 482) i (d) motion to join all defendants r motions to strike experts r reports and exclude expertsr testimony filed by RGV Energy Partners and F&M Transportation (Docket Entry No. 485) i (e) PEprs motions to exclude expert testimony of K. Scott Van Meter r CPA (Docket Entry No. 483) r David G. Ownby (Docket Entry No. 495) r and Frank L. Holder (Docket Entry No. 496) i and (5) motions to designate responsible third-parties filed by defendants BASF Corp. and BASF FINA Petrochemicals r L.P. (Docket Entry No. 426) r and by defendant Superior Crude Gathering r Inc. (Docket Entry No. 442). In addition r most parties have submitted objections to the evidence cited in support of the various dispositive motions. ~r See Defendants Plains Marketing L.P. r Superior Crude Gathering r Jeff KirbYr Murphy Energy Corporation r BASF Corporation r and BASF FINA Petrochemicals Limited Partnershiprs Objections to Plaintiff PEpr s Summary Obj ections of Marketing r L.P. Judgment PEP to Evidence the (Dkt. 475) Superior Crude Gathering r (Docket Entry Summary Judgment r No. Evidence 537) of i The Plains Murphy Energy Corporation (Dkt. 479) Inc. and Jeff Kirby (Dkt. 486)r r BASF Corporation and BASF FINA Petrochemicals r LP (Dkt. 489) rand RGV Energy (Docket PartnerS r Entry LLC No. and F&M Transportation r Plains (Dkt. 517) Marketing L.p.rs Objections to Evidence Submitted in Support of Plaintiff [Docket 548) i Defendant Inc. Entry No. 545] PEprs Opposition to Defendants r Dispositive Motions -3- (Docket Entry No. or Crude Gathering, 565) i [Docket to Defendants' Dispositive Motions Entry No. 545] PEP's Opposit 566) and Jeff Submitted in Support of Kirby's Obj ections to (Docket Entry No. Inc. Objections of Plaintiff PEP to the i by Superior Crude Gathering, Summary Judgment Evidence Submit , and BASF FINA Petrochemicals Limited Jeff Kirby, BASF Corporat Partnership With Their Joint to Plaintiff's Dispositive Motion (Dkt. 542) and Plains Market Inc. With Its Response to Plaintiff's 536) Dispositive Motion (Dkt. Corporation With Its Response to (Dkt. 541) BASF FINA (Docket Entry No. 575) Petrochemicals and Murphy Energy aintiff's Dispositive Motion De i s BASF Corporation and Limi 's Objections to Evidence Submitted in Support of [Docket Entry No. 545] Plaintiff PEP's Opposition to Defendants' Disposit Motions (Docket Entry No. 583); and Defendant Murphy Energy 's Objections to Evidence Submitted in Support of [Docket Entry No. 545] Plaintiff PEP's Opposition to Defendants' Disposit Motions (Docket Entry No. 585). Background I . There are two live complaints in this consolidated action: PEP's Third Amended Complaint (Docket Entry No. 220) filed in Civil Action No. H-10-1997 (the \\BASF Action") Complaint 2019 (Docket Entry No. 378) (the "Big Star Action fl ). i filed in Each 4- PEP's First Amended 1 Action No. H-11 two 1 complaints asserts claims against different defendants from the use enrichment, stolen property money violation of had and I conversion arising for equit received, (unjust constructive and relief trust), Texas Theft Liability Act, and civil conspiracy. The Third Amended Complaint filed in the BASF Action also asserts claims for violations of Organizat Act (RICO) I the Racketeer I luenced and Corrupt 18 U.S.C. § 1962{c) of defendants referred to as the "Conspi (d) against a group Defendants." On October 20, 2011, the court issued a Memorandum Opinion and Order (Docket Entry No. 292) denying PEP's Mot Determination of Foreign Law (Docket Entry No. 236), and granting the motions of Murphy Corporation (Docket Entry No. 221), BASF Corporation (Docket Entry No. 253), and BASF FINA (Docket Entry No. 261) for leave to signate responsible third parties. the court issued a Memorandum Opinion and Order No. 377) On April 10, 2012, (Docket Entry denying PEP's Motion for Leave to File Fourth Amended Complaint the BASF Action (Docket No. 338) and granting in part PEP's Motion to File First Amended Complaint No. 339) the Big Star Action to low (Docket Entry Plains Marketing, St. James Energy Operation, and RGV Energy Partners to be added as defendants. The pleading history and the live claims against the remaining defendants are summarized below. A. The BASF Action PEP and tially filed suit on June 7, 2010, alleging conversion equitable claims under -5 Texas law against e BASF Corp.; Murphy Energy Corp.; defendants: Inc.; Bio-NU Southwest, Inc. Trammo Petroleum, d/b/a Valley Fuels; US Petroleum Depot, Inc.; Donald P. Schroeder, Jr.; Arnoldo Maldonado; Jonathan ki Dappen; Stephen (the "BASF Action,,).2 Timothy L. Brink; and Joshua Crescenzi its First On September IS, 2011, PEP fil Amended Complaint (Docket Entry No. 59), which added two additional Marketing Fuels, Cont defendants: (successor to June 6, 2011, Petro and High Sierra Crude Oil& Source Partners, L.P.). On court issued an Order Dismissing Defendant November 5, 2010, Trammo Petroleum, Inc. Inc. With Prejudice (Docket Entry No. 95). the court issued orders instructing enter default judgments against defendants US Petroleum On erk to , Inc. (Docket Entry No. 198) and Timothy L. Brink (Docket Entry No. 199). On November 24, (Docket Entry No. 2010, PEP 108). filed its On June 17, Amended Complaint Entry No. BASF FINA Petrochemi Sl L.P. Second Amended Complaint 2011, 220), PEP filed its Third which added and Continental Fuels, endant Inc. On March 14, 2013, the court entered an Agreed Stipulation and Order of Dismissal of Claims Against High Sierra Crude Oil & ing, LLC (Docket Entry No. 527) dismissing with prejudice "all claims [that PEP] asserted, or Crude Oil & Marketing, LLC. d have [] asserted" against The defendants remaining BASF 2See Plaintiff PEp s Original Complaint ("Original Compl ), Docket Entry No.1; PEP's Amended Complaint ( "Amended Complaint II), Docket Entry No. 59 i and Plainti f f PEP's Second Amended Complaint ("Second Amended Complaint"), Docket Entry No. 108. l 6- BASF Corp. Action are: t cal BASF FINA L. P., Murphy EnergYt Bio-NU Southwest, Inc., Donald P. Schroeder t Jr. t Arnoldo Maldonado, Jonathan Dappen, Stephen Pechenik t Joshua Crescenzi t and Continental Fuels, Inc. B. The Big Star Action On May 29, 2011, PEP filed a t second against eleven defendants: Big Star Gathering, Ltd. L.L.P.; F&M Transportation, Inc.; Jensen; James Joplin Energy, LLC (f/k/a Energy); Jeff Kirby; Plains All-American L. P. ; James Saint Inc. i Hutchison Hayes ine, L.P.; SemCrude, Superior Gathering; Co ., L. P . (the TransMontaigne Partners, L.P.; and Western "Big Star Action"). Complaint On April 20, 2012, PEP fil (Docket Entry No. 378) added two additional defendants: Partners, LLC. following in the its Star Action, have since been dismi pursuant to agreed stipulations and orders of di court: Western Refining Co., L.P. July 17, 2012) i which Plains Marketing, L.P. and RGV The claims that PEP has defendants rst Amended against the prejudice ent by (Docket Entry No. 398 dated TransMontaigne Partners, L.P. (Docket Entry No. 463 dated January 22, 2013) i Plains All-American Pipeline, L.P. (Docket Entry No. 533 dated March 15, 2013); and Big Star Gathering, Ltd., L.L.P., James Jensen, and St. James Energy Operating, Inc. Entry No. 603 dated May 30, 2013). Star Action are: (Docket The defendants remaining in the F&M Transportation, Inc.; Joplin Energy, LLC -7- Hutchison Energy); Superior Crude Gathering, Inc.; (f/k/a Jeff Kirby; SemCrude, Plains Marketing, L.P.; L.P.; and RGV Energy Partners, LLC. II. sses trade in the United States of natural This action Mexico, transported to Texas, and sold to gas condensate end-users. Factual Allegations 3 are individuals and entities alleged to The have traded stolen Mexican condensate within the United States from August of 2006 to at least mid-2011.4 PEP alleges that most of the defendants in knew acknowledges that were a trading stolen few did not know that bought and sold was stolen. absent knowledge or Nevertheless, condensate, but the condensate they PEP alleges that even , the defendants' use, purchase, and sale of stolen Mexican in the United States was without right or title from the government and, therefore, wrongful under United States. 5 the laws of Mexico and petrochemical purchase Asserting that I that use condensate will stolen products, PEP alleges that not knowingly selling the 3S ee Third Amended Complaint, Docket Entry No. 220, pp. 5 10, and First Amended Complaint (Big Star Action), Docket Ent No. 378, pp. 5 11. 4First Amended No. 378, p. 7 ~ 30. Complaint (Big Star Action), Docket 5S ee Third Amended Complaint, Docket Entry No. 220, p. 10 and First Amended Complaint (Big Star Action), Docket Ent No. 378, p. 10 ~ 51. ~ 55, -8- to pass the racy in the Unit a coordinated condensate requi stolen condensate across alleges that this border, conspiracy was "Conspiring Defendants" who were (1) managed and St. James, Superior its operated by 1 of the defendants named in the BASF Action except BASF and BASF FINA,6 and Jensen, launder en condensate to end-users. source, and distribute and sell the PEP the States Crude, Kirby, Star, (2) RGV, and F&M Transportation named in the Big Star Action.7 that the existence of the marketing scheme in the PEP al United States is well established law enforcement agencies, including the Immigrat Enforcement Agency ("ICE"), and ( "DRS"). PEP gating the Texas, Dappen, leges that both ICE and the DRS have transport and sale §§ investi- stolen Mexican condensate in have resulted in criminal and Brink. PEP alleges that these defendants have been convicted of receiving and selling, have been and Customs this court against defendants Schroeder, Maldonado, Pechenik, receive and States Department of Homeland Security and that their invest convictions well known to Unit or conspiring to I, stolen PEP condensate knowing the condensate to en or unlawfully converted in violation of 18 U.S.C. 371 and 2315. 6Third Amended Complaint, Docket Entry No. 220, p. 12 7First Amended ~ 68. Complaint (Big Star Action), Docket Entry No. 378, p. 20 ~ 108. Note, however, that at p. 10 ~~ 51 and 53, PEP identifies only Big Star, Superior Crude, and F&M as "Conspiring Defendants." 9 III. A. Applicable Law for Claims Asserted and Limitations Defense Claims Asserted PEP's complaints (for relief unjust assert claims enrichment, for money conversion, had and equitable received, and constructive trust), violation of the Texas Theft Liability Act, and civil conspiracy. PEP's Third Amended Complaint filed in the BASF Action also asserts claims for violation of RICO, 18 U.S.C. 1962 (c) - (d), against the "Conspiring Defendants. also assert claims for unlawful PEP's complaints possession and use of Mexican sovereign property in violation of Mexican law. 2011, If § But on October 20, the court entered a Memorandum Opinion and Order (Docket Entry No. 292) denying Plaintiff PEP's Motion for Determination of Foreign Law (Docket Entry No. 236) after concluding that Mexican law does not apply to this action. 1. Conversion PEP alleges that 120. All Defendants took possession of and utilized sovereign property of the United Mexican States, without title or right. According to Mexican law, the stolen property was the sole and excl usi ve property of PEP. 121. All Defendants have refused to return Mexico's property or to reimburse Mexico for its use. 122. The Defendants' improper assumption and exercise of dominion and control over PEP's property has and will continue to interfere with and diminish PEP's rights in that property. -10- PEP is damages. 123. ent in denial over another's recover actual its of or inconsistent with Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 410 Cir. 2004) 3 84 , 3 91 to wrongful exercise of dominion and control "Conversion is rights." led 8 s (5th Green International Inc. v. Solis, 951 S.W.2d (quot (Tex. 1997». See also Waisath v. Lack's Stores, Inc., 1971) . 474 S.W.2d 444, 447 possession, or "Texas cases require ownership, of immediate possession to conversion claim." il on a United States v. Boardwalk Motor Sports { Ltd., 692 F.3d 378, 381 82 (5th r.2012), Plains Capital Corp. v. United States, 133 S.Ct. 2854 (2013) (cit of Wichita Falls v. ITT Commercial Finance Corp., 827 S.W.2d 6, 8 (Tex.App.-Fort Worth 1992), S.W.2d 65 (Tex. 1992) of immediate rev'd in part on other grounds, ("Either ownership, possession, or ion of the property to the party a requirement an action in conversion./I). of the property converted, S.W.2d 538, 539 Hughs Blanton. (Tex.App.-Dallas 1979, Inc. v. no writ), right eved is The pI conversion case also bears the burden of establishing 835 iff in a identity Shannon, 581 and damages. United Mobile Networks. L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997 (cit "Generally, Prewitt v. Branham, 643 S.W.2d 122, 123 (Tex. 1982». measure of damages for on is the fair 8First Amended Complaint (Big Star Act ), Docket Entry No. 378, pp. 21 22 ~~ 120-123. See also Amended Complaint, Docket Entry No. 220, pp. 33-34 ~~ 188-191. -11- market value of the property However, conversion. at damages are sustained as and a and limited to proximate at 148. defendant's conversion." ther unjustly enrich time place the of amount iff for the actual losses or necessary to compensate inj uries the result of the "A conversion should not wrongdoer or the complaining party." Id. Minerals already from personal property, not the n.r.e.). 353 S.W.2d 870 are considered Humble Oil & Refininq Co. v. ty. West, 508 S.W.2d 812, 817 (Tex. 1974) Murchison, ground (Tex. (citing Lone Star Gas Co. v. .App.-Dallas 1962, writ ref'd See also Phillips Petroleum Co. v. Adams, 513 F.2d 355, 363 (5th Cir.), , 96 S.Ct. 281 (1975). PEP may, thus, establish that the defendants converted its natural gas condensate under Texas law by proving: (1) the defendant wrongfully exercised dominion property or control over inconsistent with PEP's rights; "Demand" and Christian, exclusion In re Moody, of, 899 F.2d 383, (citing Bishop v. Geno Designs, 581, 584 (Tex.App. elements of a the or (2) the identity of the property convertedi and (3) (5th Cir. 1990) to 385 Inc., 631 S.W.2d er 1982, no writ)). 1/ are sometimes identified as addit See,~, conversion claim. 257 S.W.3d 748, 759 Khorshid, (Tex.App.-Dallas 2008, Inc. no (identifying two additional elements of a conversion claim as plaintiff demanded return of the propertYi and . . . the 12 - v. .) refused to return the property") . Permian Petroleum Co. v. Petroleos Mexicanos, 934 F.2d 635, 651 (5th Cir. 1991) s possession of personalty, Texas law, when a party lawfully conversion generally occurs property and a refusal.") upon a demand for (cit Cooper, refusal are merely evidence the However, when a elements need not be met. 284 S.W.2d 138, of ear repudiation of the plaintiff's a rights, the demand and v. return , 519 S.W.2d 955, 958 (Tex.Civ.App.-Texarkana 1975, writ dism'd)). possessor's acts mani ("Under 141 (Tex. 1955) Presley ("Such a demand and a conversion, and where a conversion by the bailee cannot otherwise be shown than by his refusal to comply with the demand are necessary. pos on, such a demand and refusal But they are not necessary if the other evidence establishes an act of conversion."). See also National Union Fire Ins. Co. of Pittsburgh, Pa. v. Care Flight Air Ambulance Service, Inc., 18 F.3d 323, 328 (5 r. 1994) necessary if demand would useless, or if the possessor's acts amount to clear repudiat Wrongful essential intent of the owner's rights). to ementi convert another's property is not an defendant need only intend to do an act amounting to conversion. (Tex.Civ.App. (demand and refusal are not McVea v. Verkins, Christi 1979, no writ) . unauthorized retent "[A] good 531 th but of property can be a conversion." ~====~~~~~~~~~~~~~, Dallas 1980, no writ). 587 S.W.2d 526, 599 S.W.2d 646, 651 (Tex.Civ.App. If a defendant is a bona fide purchaser -13- value, Carter v. has an affirmative fense against a conversion claim. Cookie Coleman Cattle Company, Inc., 858 & n.3 (Tex.App.-Amarillo 2008, no pet.). a party asserting an affirmat defense. prove 271 S. W. 3d 856, It is the burden of defense to sufficiently plead and Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 478 (Tex. 2001). 2. Equitable Relief: Unjust Enrichment, Received, and Constructive Trust PEP leges that 103. All Defendants utilized the sovereign property of Mexico without right or title. As a result, all Defendants were unjustly enriched by any its, commissions, or other benefits received by the use of PEP's condensate. This is true even if the Defendants did not know the condensate was en. 9 125. All Defendants ited from their improper dominion of PEP's property, and there they hold money that in equity and good conscience belongs to PEP. 126. lowing the Defendants to retain the benefits received as a result of their acts would unjustly fit the Defendants at PEP's expense. 127. PEP is entitled to a recovery of all money from all Defendants that equity and good conscience ongs to PEP. 128. As to the Conspiring Defendants, PEP imposition of a constructive trust over property deriving from the use of such monies in order to maintain and remit to PEP the monies 9First Amended Complaint (Big No. 378, p. 19 ~~ 103, 125-28. Docket Entry No. 220, p. 31 ~ 172. -14- Money Had and Star Action), Docket Entry Third Amended Complaint, improperly collected by and maintained by the Conspiring Defendants through their wrongful trade in stolen PEP condensate. 10 "A party may recover under the unjust enrichment theory when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage." Heldenfels Brothers, City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992) Inc. v. (citing Pope v. Garrett, 211 S.W.2d 559, 562 (Tex. 1948), and Austin v. Duval, 735 S.W.2d 647, 649 (Tex.App.-Austin 1987, writ denied)). Unjust enrichment is an equitable principle holding that one who receives benefits unjustly should make restitution for those benefits. "Unjust enrichment" occurs when the person sought to be charged has wrongfully secured a benefit or has passively received one which it would be unconscionable to retain. "Unj ust enrichment" characteri zes the result 0 [f] failure to make restitution of benefits received under such circumstances as to give rise to implied or quasi-contract to repay . . . It has also been said that recovery under unjust enrichment is an equitable right and is not dependent on the existence of a wrong. Villarreal v. Grant Geophysical, Inc., (Tex.App.-San Antonio 2004, pet. denied) 136 S.W.3d 265, (citations omitted). 270 When unjust enrichment is proved, defendants must make restitution of benefits wrongfully received. Id. A claim for money had and received belongs conceptually enrichment. to the doctrine of unjust l°First Amended Complaint (Big Star Action), Docket Entry No. 378, pp. 22-23 ~~ 125-128. See also Third Amended Complaint, Docket Entry No. 220, p. 34 ~~ 193-196. -15- The doctrine of unjust enrichment applies the principles of restitution to disputes that are not governed by a contract between the parties. . It characterizes the result of a failure to make restitution under circumstances that give rise to an implied or quasicontractual obligation to return those benefits. Edwards v. Mid-Continent Office Distributors, L.P., 252 S.W.3d 833, 837 (Tex.App.-Dallas 2008, pet. denied) (citations omitted). An action for restitution for money had and received "seeks to restore money where equity and good conscience require restitution. is not premised on wrongdoing, party, in equity, justice, . . it but seeks to determine to which and law, the money (citing Staats v. Miller, 243 S.W.2d 686, 687 belongs." Id. (Tex. 1951)). Such claims seek "to prevent unconscionable loss to the payor and unjust enrichment to the payee." Id. at 837 (citing Bryan v. National Bank in Abilene, 628 S.W.2d 761, 763 Citizens (Tex. 1982)) As these broad and general descriptions demonstrate, a cause of action for money had and received is "less restricted and fettered by technical rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money, which. belongs to the plaintiff." Id. (quoting Staats, 243 S.W.2d at 687-88). See also United States v. Jefferson Electric Manufacturing Co., 54 S.Ct. 443, 449 (1934) (describing action "for money had and received" as "an equitable action . [that] is less restricted and fettered by technical rules and formalities than any other form of action. It aims at the abstract justice of the case, and looks solely to the inquiry, whether the defendant holds money, which ex aequo et bono belongs -16- Thus, to the plaintiff.") . to prove a claim for money had and received "a plaintiff must show that a defendant holds money which in equity and good conscience belongs to him." at 837 (citing Best Buy Co. v. (Tex. 2007) Barrera, Edwards, 252 S.W.3d 248 S.W.3d 160, 162-63 (per curiam), and Staats, 243 S.W.3d at 687). A constructive trust is an equitable remedy created by the courts to prevent unjust enrichment and may be imposed based on a fiduciary or confidential relationship or when there actual fraud. Swinehart v. Browder, 48 S.W.3d 865, 878 Inc., Stubbeman, McRae, has been Laughlin & Sealy, (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (citing Meadows v. Bierschwale, 516 S.W.2d 125, 128 (Tex. 1974)) To establish a constructive trust the proponent must prove (1) relationship or the breach actual or of a constructive enrichment of the wrongdoer; and res. special (3) trust fraud; or (2) fiduciary the unjust tracing to an identifiable Hubbard v. Shankle, 138 S.W.3d 474, 485 (Tex.App.-Fort Worth 2004, pet. denied). F.3d 524, 529 See also American Cancer Society v. Cook, 675 (5th Cir. 2012). The Texas Supreme Court has held that "the policy against unjust enrichment mandates that [a third party] not be beneficiary of S.W.2d 724,728 559, 561-62 allowed to retain [another party's] (Tex. 1984) (Tex. 1948)). property fraud." he received Ginther v. (citing Pope v. Garrett, Taub, as a 675 211 S.W.2d The decision to impose a constructive trust is entrusted to the courts' discretion. 529. -17- Cook, 675 F.3d at 3. Texas Theft Liability Act PEP alleges that the "Conspiring Defendants" named in each action violated the Texas Theft Liability Act ("TTLA"), Tex. Civ. Prac. & Rem. Code §§ 134.001-.005. PEP alleges that 198. The TTLA prohibits unlawfully appropriating property as defined in the Texas Penal Code. Pursuant to the Texas Penal Code appropriation of property is unlawful if "the property is stolen and the actor appropriates the property knowing it was stolen by another." 199. The Conspiring Defendants repeatedly violated the provisions of the TTLA. 200. PEP is entitled to recover its actual damages, up to $1,000 in additional damages assessed by the trier of fact as to each Conspiring Defendant[], and its attorney's fees pursuant to Tex. Civ. Prac. & Rem. Code § 134.005. 11 The Texas Theft Liability Act ("TTLA") provides a civil cause of action to victims of theft, as defined by the Texas Penal Code. See Tex. Civ. Prac. & Rem. Code §§ 134.001-.005. The TTLA allows for the recovery from a person who commits "theft" actual damages, up to $1000 in additional damages, court costs, and reasonable and necessary attorney's fees. Tex. Civ. Prac. & Rem. Code § 134.005. The TTLA defines "theft" as "unlawfully appropriating property or unlawfully obtaining services as described by Section 31.03, 31.04, 31.06, 31.07, 31.11, 31.12, 31.13 or 31.14, Penal Code." Prac. & Rem. Code § 134.002(2). Tex. Civ. The penal provision implicated 11Third Amended Complaint, Docket Entry No. 220, pp. 34-35 198-200. TTLA is also asserted in the Big Star Action. See First Amended Complaint, Docket Entry No. 38, p. 23 ~~ 129-31. ~~ -18- here is § 31.03, which provides that "[a] person commits an offense if he unlawfully appropriates property with to deprive the owner of property." The Penal Code Tex. Penal Code § 31.03(a) defines "appropriate" as "to bring about a trans transfer of t whether to Ie to or other nonpossessory interest in property, t actor or another i or to acquire (1) 31.01 (4). § or otherwise Tex. property. " exercise control over property other than Penal Code or purported "Appropriation of is unlawful if: it is without owner's effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another." Tex. Penal Code § ements of a cause of action The 31.03 (b) (1) - (2). the TTLA are: plaintiff had a possessory right to property; (2) (1) the the defendant unlawfully appropriated property in violation of the Texas Penal Code; and (3) theft. the plaintiff sustained damages as a result of the Tex. Civ. Prac. & Rem. Code §§ 134.002(2), 134.003; Tex. Penal Code § 31.03(a). The plaintiff must also prove that the defendant possessed an intent to the plaintiff of property permanently or for an extended Code § 31.03. of time. the Tex. Penal Deprive means "to withhold property from the owner permanently or for so extended a period of time that a or portion of the value or enjoyment of the property is lost to owner." Tex. Penal Code ======~-=~~, § 31.01. Olufemi-Jones v. Bank of 2013 WL 1482544, *3 (N.D. Tex. 2013). 19 4. PEP alleges: 201. The Conspiring Defendants conspired to accomplish unl purposes in relation to condensate stolen from PEP. These Defendants had the object of committing common law conversion PEP's e and the defrauding of end-users which would not have knowingly purchased stolen product. Conspiring Defendants had a meeting of the minds on those objectives, committed unlawful, overt acts in furtherance of their object and proximately caused PEP to suffer damages as a t . 202. PEP is, therefore, entitled to recover from the ring Defendants, jointly and ly, PEP's actual and exemplary damages resulting from conspiracy. 12 "An actionable civil conspiracy is a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means." S.W.2d 932, 934 (Tex. conspiracy claim are: be accompli action; 1983). "(1) two or more persons; (2) an object to (3) a meeting of minds on the object or course of t." Id. 759, 791 (S.D. Tex. 2010) itself, The essential elements of a civil (4) one or more unlawful, overt acts; and (5) damages as a proximate ~~~, Massey v. Armco Steel Co., 652 See also ~~~~~~~~~, (citing Insurance Co. of North America v. 981 S.W.2d 667, 675 (Tex. 1998)). but an injury 733 F.Supp.2d to the plainti It not the agreement ting from the 12Third Amended Complaint, Docket Entry No. 220, p. 35, ~~ 201202. First Amended Complaint (Big Star Action), Docket Entry No. 378, pp. 22-23, ~~ 132-133. -20- underlying tort, that gives rise to a cause of action for c conspiracy. 925 (Tex. 1 Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 1979). Since conspiracy is a derivative tort, plaintiff must plead facts supporting a claim that at least one the de 26 s is also liable for an underlying tort. 1 conspiracy 'came to be used to extend liability ("[C] beyond the active wrongdoer to those who have merely tort . planned, assisted, or encouraged is proven, each co-conspirator 'is any Id. at 925 conspirators of ," combinat in s acts.'"). "Once a conspiracy ible for all acts done by furtherance of the unlawful Id. at 926 (quoting State v. Standard Oil Co., 107 S.W.2d 550, 559 (Tex. 1937)). , to survive summary judgment on the conspiracy claims asserted this action, PEP must present evidence that is sufficient to create genuine issues of material fact on underlying torts as well as the conspiracy. TMIRS Enterprises, Ltd. v. Godaddy.com. Inc., 2010 WL 3063659, *4 (S.D. Tex. 2010). 5. RICO PEP alleges Action, i.e., BASF Corp. that the in BASF all of the defendants named in that action except and BASF FINA, §§ 1962(c) and (d) by creat by "Conspiring Defendants" violated the provisions of 18 U.S.C. an association in enterprise, icipating directly and indirectly in the conduct of the se's affairs through a pattern of racketeering activity, -21 and by knowingly conspiring to participate in the operation of the association-in-fact enterprise by committing predicate acts of importing and selling in the United States millions of dollars worth of condensate stolen from Mexico's Burgos Field.13 RICO provides civil causes of action for recovery of treble damages for "[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter. u § Plaintiffs have alleged that defendants have violated 1964 (c) . §§ 18 U.S.C. 1962(c) and (d). These subsections state: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt. (d) It shall be unlawful for any person to conspire to violate any of the provisions of subsection . (c) of this section. 18 u. S . C . §§ 1 962 (c) and ( d) . The Fifth Circuit has interpreted these subsections to mean that "a person who is employed by or associated with an enterprise cannot conduct the affairs of the enterprise through a pattern of racketeering activity[, and that] a person cannot conspire to violate subsection [] St. Paul Mercury Insurance Co. v. Williamson, (5th Cir. ~~ 2000). (c) 224 F.3d 425, U 439 To establish a RICO violation plaintiff must 13Third Amended Complaint, 203-226. Docket Entry No. -22- 220, pp. 35-39 prove facts showing: racketeering act "(1) a person who engages in (2) a pattern of (3 ) ty connected to acquisition, the establishment, conduct, or control of an enterprise. II Delta Truck & Tractor, Inc. v. J.I. Case Co., 1 0 9 S. Ct. 153 1 (5th Cir. 1988), (quoting 855 F.2d 241, 242 ( 198 9) } . St. Germain v. Howard, 556 F.3d 261, 263 (5th Cir.), 129 S.Ct. 2835 (2009). the plaintiff must Once these three elements are establish the substantive respective subsect B. the statute. ished each elements rd. Limitations Defense All defendants who have filed motions for summary judgment seek summary judgment that the Texas state law claims asserted against them are barred by the two-year statute of 1 contained in Texas Civil Practice & Remedies Code § ations 16.003(a). alleges that 109. This suit was brought within two years after PEP knew, or by exercise of reasonable dil should known, of the facts giving nst the Defendants. limitations have been tolled as to those claims by the "discovery rule. H 110. The conversion and theft of PEP's condensate was a decept and fraudulent act. Moreover, it was inherently undiscoverable that the Defendants had taken dominion in the United States of Mexico's sovereign property without right or title, the resulting injury from the Defendants' wrongful dominion over the sovereign property Mexico is objectively verifiable. -23- PEP 111. The Conspiring Defendants actively concealed their and therefore conspiracy and illegal actions by the doctrine of limi tations is tolled "fraudulent concealment. l 1I never stolen 112. Mexico and PEP, as sovereign entities abandoned their sovereign rights in the condensate. 14 1. The Limitations Period for State Law Claims is Two Years l Under Texas law the statute of limitations for PEp/s claims for conversion unjust l constructive trust l enrichment TTLA violations l money 1 had and received l and civil conspiracy is the two-year period provided by Texas Civil Practice and Remedies Code § 16.003 1 which states: [A] person must bring suit for trespass for injury to the estate or to the property of another conversion of personal property taking or detaining the personal property of another personal injurYI forcible entry and detainer and forcible detainer not later than two years after the day the cause of action accrues. 1 1 l l Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). The parties all agree that PEp/s claims are governed by this two-year statute of limitations .15 See Mayo 354 1 F.3d at 410 ("The applicable 14First Amended Complaint (Big Star Action) Docket Entry No. 378 p. 20 ~~ 109-112. See also Third Amended Complaint Docket Entry No. 220 p. 32 ~~ 177-180. 1 1 1 1 1 15Seel ~I Defendant Plains Marketing L.P. s Motion for Summary Judgment ("Plains Marketing/s MSJ Docket Entry No. 475 p. 28 (agreeing that applicable statute of limitations is that stated in Tex. Civ. Prac. & Rem. Code § 16.003) i and PEp/s Dispositive Motion Docket Entry No. 492 p. 31 and The Opposition of Plaintiff Pemex Exploraci6n y Producci6n to the Disposi ti ve Motions of Defendants ("PEp s Opposition to Defendants Dispositive (continued ... ) 1 l II l 1 ) 1 1 1 1 1 -24- period for [plaintiff's] claim-whether it is formally limitat labeled 'unjust enrichment' or 'convers at 409 , - is two years.H); (recognizing that claims for constructive trust are not causes of action but, instead, claims for remedial relief, and that the limitations period to be applied must be determined with reference to the theory on which a constructive trust is sought) Elledge v. (Tex. Friberg-Cooper Water Supply Co., 2007) 240 S.W.3d 869, i 870 (recognizing that the limitations period for unjust enrichment claims is the two-year period provided by Tex. Prac. & Rem. Code § Ci v. 16.003(a)); Kingyision Pay-Per-View, Ltd. v. Betancourt, Civil Action No. H-11-0236, 2011 WL 1900166, *5 (S.D. Tex. May 19, 2011) (recognizing that the limitations period TTLA claims is the two-year period provided by Tex. Civ. Prac. & Rem. Code § 16.003(a)) i Navarro v. Grant Thornton, LLP, 316 S.W.3d 715, 719 (Tex.App.-Houston [14th Dist.] 2010, no pet.) (recogniz that civil conspiracy claims are subject to the two-year statute limitations provided by Tex. Civ. Prac. & Rem. Code 2. § 16.003(a)). The Limitations Period Begins When Legal Injury Occurs "When the legislature employs the term 'accrues' without an accompanying definition, the courts must determine when the cause of action accrues and thus when the statute of limitations continued) Motions") Docket Entry No. 545, p. 26 (recognizing that Texas' statute of limitations for conversion is two years) . 15 ( ¢ ¢ ¢ t -25 commences to run." 351 (Tex. 1990). Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, The traditional rule in Texas is that a cause of action accrues and the limitations period begins to run as soon as the owner suffers some becomes discoverable. injury, Id. regardless of when the See also Mayo, 354 F.3d at 410 injury ("Texas follows the 'legal injury' test, under which' [a] cause of action generally accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial Energy, remedy.' Inc., Johnson Higgins of Texas, & 962' S. W. 2d 507, 514 (Tex. Inc. 1998)") v. Kenneco This is true "even if the fact of injury is not discovered until later," S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996), "even if all resulting damages have not yet occurred," id., have not been identified. and even if the alleged wrongdoers Russell v. S.W.2d 343, 344 n.3 (Tex. 1992) fact of injury is known . identified"). 1977) Ingersoll-Rand Co., 841 ("limitations begin to run when the . not when the alleged wrongdoers are See also Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex. (recognizing that "preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute limitations] ) . The Texas Supreme Court has explained that [t]he test to determine when the statute of limitations begins to run against an action sounding in tort is whether the act causing the damage does or does not of itself constitute a legal injury, that is, an injury giving rise to a cause of action because it is an invasion of some right of plaintiff. If the act is of -26- [of itself not unlawful in this sense, and plaintiff sues to recover damages subsequently accruing from, and consequent on, the act, the cause of action accrues, and the statute begins to run, when, and only when, the damages are sustained; and this is true although at the time the act is done it is apparent that injury will inevitably result. If, however, the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, even where little, if any, actual damages occurs immediately on commission of the tort. Atkins v. Crosland, 417 S.W.2d ISO, 153 (Tex. 1967) This "legal injury" rule is often traced to Houston Water-Works Co. v. Kennedy, 8 S.W. 36 (1888). (Tex. 1997). See Murphy v. Campbell, 964 S. W. 2d 265, In Kennedy the defendant cut an arch in plaintiff's building while installing a water pipe In 1884. concealed, 270 was not discoverable until building to settle and crack. The arch, being it eventually caused the Plaintiff brought his negligence action in 1887, three years after the alleged negligence but within two years after the injury became manifest. The Court concluded that the action was barred by limitations: If the act of which the injury was the natural sequence was a legal inj ury, by which is meant an injury giving cause of action by reason of its being an invasion of a plaintiff's right, - then, be the damage however slight, limitation will run from the time the wrongful act was committed, and will bar an action for any damages resulting from the act. . . [A] mere want of knowledge by the owner of injury to his property does not prevent the running of the statute. 8 S.W. at 37-38. In other words, because the negligently cut arch constituted a legal injury, limitations began to run immediately. -27- Texas jurisprudence, however, creates two limited exceptions to the legal inj ury test described in Atkins and Kennedy: concealment and the discovery rule. fraudulent See S. V., 933 S. W. 2d at 4 ("We observe the distinction between the two categories because each is characterized by different substantive and procedural rules."). 3. Exceptions to the Legal Injury Rule (a) Fraudulent Concealment Fraudulent concealment of material facts underlying a cause of action by a defendant may prevent the defendant from relying on the statute of limitations. (Tex. 1983). See Borderlon v. Peck, 661 S.W.2d 907, 908 In Borderlon the Texas Supreme Court noted that where a defendant is under a duty to make disclosure but fraudulently conceals the existence of a cause of action from the party to whom it belongs, the defendant is estopped from relying on the defense of limitations until the party learns of the right of action or should have learned thereof through the exercise of reasonable diligence. Id. See also Velsicol Chemical Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex. 1997) (recognizing that in cases involving fraud or fraudulent concealment, accrual is deferred "until the fraud is discovered or could have been discovered with reasonable diligence"). The doctrine of fraudulent concealment defers accrual because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run. S.V., 933 S.W.2d at 6. -28- A party asserting fraudulent concealment bears the burden of raising it in response to a summary judgment motion and of coming forward with evidence raising a fact issue with regard to each of the (1) existence of an underlying tort; the tort; following four elements: (2) defendant's knowledge of (3) defendant's use of deception to conceal the tort; and (4) plaintiff's reasonable reliance on the deception. See Jones v. Thompson, 338 573, 583 (Tex.App.-El Paso 2010, pet. denied) (citing KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S. W. 2d 746, 748 (Tex. 1999)). (b) The Discovery Rule The discovery rule defers the running of limitations if "the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable." 6. S.V., 933 S.W.2d at "An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence." International, 1996)). Inc. Altai. at 7 Inc., (citing Computer Associates 918 S.W.2d 453, 456 (Tex. The discovery rule is applied to categories of cases where the nature of the particular cases. 886 v. Id. (Tex. 1998). inj ury is inherently undiscoverable, HECI Exploration Co. v. Neel, The objectively verifiable not to 982 S.W.2d 881, element of the discovery rule is typically satisfied when the facts upon which liabili ty evidence. is asserted can be The Texas demonstrated by direct, physical Supreme Court has held that expert -29- testimony is not sufficient to satisfy the objective verification prong of the discovery rule, 21), but that confessions, written statements id. (citing Robinson, criminal convictions, showing contemporaneous 550 S.W.2d at and records or physical injury resulting from the alleged conduct can be sufficient to satisfy the objective verification prong of the discovery rule. Id. at 15. The discovery rule only defers running of limitations until "the plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury.1I at 4 (citing Trinity River Authority v. Texas, 889 S. W. 2d 259, 262 (Tex. referred to this exception as the Smith, 417 S.W.2d 577, 578 1996)) URS Consultants, See id. 'discovery rule' (Tex. 1967)). ("We Id. Inc.first in Gaddis v. See also Colonial Penn Ins. v. Market Planners Ins. Agency Inc., 157 F.3d 1032, 1034 (5th Cir. 1998) (acknowledging that the discovery rule only delays the running of the statute of limitations until the claimant knows or should know the facts that could support a cause of action). The party seeking to benefit the from the discovery rule "bear [s] burden of proving and securing favorable findings thereon." v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (c) Woods (Tex. 1988) Applying Exceptions to the Legal Injury Rule in the Summary Judgment Context A Texas rule of summary judgment procedure requires the moving party to negate the application of the doctrine of fraudulent concealment and/or the discovery rule by proving as a matter of law -30- that no issue of material fact exists concerning when the plaintiff discovered or should have discovered its cause of action. Woods, 769 S.W.2d at 518 n.2. Federal courts, however, follow the federal rule of summary judgment procedure. York, 991 F.2d 216, 220 2704 (1994) (ci ting See F.D.I.C. v. Shrader & (5th Cir. 1993), cert. denied, 114 S.Ct. Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1036 n.10 (5th Cir. 1982)). ~[W]here the nonmoving party will bear the burden of proof at trial on a disposi ti ve issue," the nonmoving party must go ~beyond the designating pleadings" ~'specific and produce summary evidence facts showing that there is a genuine issue for trial. ' " Id. 2553 (quoting Fed. R. Civ. P. 56 (e)) (1986) judgment (citing Celotex Corp. v. Catrett, 106 S.Ct. 2548, ~The plaintiff is required to act with diligence in seeking to discover fraud after being put on inquiry; and if it failed to do so under all of the facts and circumstances of the case, the [running of the] statute [of limitations] will not be [deferred]." Inc. v. Placid Oil Co. (5th Cir. 1991) 612, 613 Professional Geophysics, (In re Placid Oil Co.), 932 F. 2d 394, 399 (quoting Pan Am. Petroleum Corp. v. Orr, 319 F.2d (5th Cir. 1963)). Thus, while defendants relying on the affirmative defense of limitations bear the burden of proving all the elements of limitation, plaintiff bears the burden of producing summary judgment evidence capable or raising a genuine issue of material fact as to whether fraudulent concealment and/or discovery rule applies to defer the running of limitations. -31- the IV. Defendants' Motions for Summary Judgment Pending before the court are motions filed by the following defendants: L.P.'s Motion for Summary for summary judgment (1) Defendant Plains Marketing, Judgment (Docket Entry No. 475); (2) Defendant Murphy Energy Corporation's Motion for Final Summary Judgment (Docket Entry No. Gathering, (Docket Inc. Entry and No. Jeff 486); (3) 479); Kirby's (4) Defendants Superior Crude Motion BASF for Summary Corporation and Judgment BASF FINA Petrochemicals Limited Partnership's Motion for Summary Judgment (Docket Entry No. 489); and (5) Defendants RGV Energy Partners, LLC and F&M Transportation, Inc.'s Motion for Summary Judgment (Docket Entry No. 517). These defendants all seek summary judgment on claims that they argue are time barred by the applicable two-year statute of limitations because limitations began to run more than two years before PEP filed suit against them. These defendants also seek summary judgment on PEP's substantive claims by arguing that these claims fail as a matter of law because PEP is unable to present evidence on one or more of the elements of each of these claims. PEP responds that the defendants moving for summary judgment are not entitled to summary judgment on any of the claims alleged against them because the claims are neither time barred nor subject to failure as a matter of law. 16 16PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545. -32- A. Standard of Review Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact and the law entitles it to judgment. material facts are Fed. R. Civ. P. 56(c) "genuine" if the Disputes about evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, showing sufficient to against a party who fails to make a establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 106 S.Ct. at 2552. A party moving for summary judgment "must 'demonstrate the absence of a genuine issue of material fact,' elements of the nonmovant's case." F.3d 1069, S.Ct. at by (5th Cir. 2553-2554) Rule 56(c) show 1075 If 1994) but need not negate the Little v. Liquid Air Corp., 37 (en banc) (quoting Celotex, the moving party meets this 106 burden, requires the nonmovant to go beyond the pleadings and affidavits, admissions on file, depositions, answers to interrogatories, or other admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. (citing the Celotex, 106 S.Ct. at 2553-2554) In reviewing evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations -33- or weigh the evidence." Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2110 (2000). Factual controversies are to be resol ved in favor of the nonmovant, both "but only when parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. B. Plains Marketing, L.P. PEP first asserted claims against Plains Marketing April 20, 2012, when PEP filed a First Amended Complaint on (Docket Entry No. 378) in the Big Star Action, Civil Action No. H-11-2019. PEP specifically alleges that 80. Plains is a large, publicly-traded limited partnership that markets hydrocarbons and then transports them through a sister company. 81. PEP does not allege that Plains acted with intent or knowledge or that it was a part of any conspiracy. 82. Although PEP's investigation continues, Plains purchased and subsequently resold millions of dollars of stolen condensate. For example, In 2008, Plains purchased at least $700,000 worth of condensate from Kemco at its George West facility, which Kemco had purchased from Arnoldo Maldonado and F&M. Plains sold this and other amounts to Valero. There were other transactions, and on information and belief, much more condensate was purchased and sold by Plains. 83. Plains is liable for all of its transactions involving the stolen property of Mexico. 17 17First Amended Complaint No. 378, p. 16 ~~ 80-83. (Big -34- Star Action), Docket Entry Based on these ions of fact, PEP has asserted claims against I theories of Plains on conversion, and for equitable relief plains Market money had Marketing received argues that and it unj ust is enrichment. 18 entitled to summary the claims asserted against it in PEP's judgment on all Amended Compl and nt filed in the Big Star Action (Docket No. 378) (i) PEP cannot meet its burden under Texas law to show that hydrocarbons purchased by Plains Marketing are the identi hydrocarbons allegedly stolen from PEP, (ii) Marketing was a good-faith purchaser obtained good tit to the hydrocarbons it purchased, (iii) any of Plains Marketing's alleged purchases of stolen Mexican condensate that occurred prior to April 20, 2010 are time-barred, and (iv) PEP's money had and and unjust enrichment claims fail as a matter of law. 19 PEP responds that the defendants named in this action, including Marketing, are not entitled to summary judgment on any of claims alleged against them because PEP need not show that the hydrocarbons purchased and sold by the defendants are the identical hydrocarbons stolen from PEP, obtain good t claims aris years the defendants did not to the stolen hydrocarbons that they purchased, from alleged purchases that occurred more two PEP filed suit against any of the defendants are not PEP does not allege that Plains Marketi Defendant," PEP has not asserted a trust against Plains Marketing. I Marketing's MSJ, Docket Entry No. 475, pp. 1 2. -35- is a for equitable reI time barred, and the claims f asserted in action do not fail as a matter of law. 20 1. Plains Marketing is Entitled to Summary Judgment on PEP's Equitable Claims for Unjust Enrichment and Money Had and Received PEP's money had and received Plains Marketing argues claim fails on its face because [t] here is no evidence Plains Marketing has any money in good conscience belongs to PEP, a requisite element of PEP's money had and received claim. Additionally, PEP does not lege that Plains Marketing perpetrated any kind of or duress on PEP, or that Plains Marketing took undue advantage of PEP allegedly purchasi stolen PEP condensate, which would be required to prove an unjust enrichment claim. 21 Quoting Heldenfels Bros.! Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992), Plains Marketing asserts that "[a] party may recover under the unjust chment theory when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage. 1122 Plains Marketing argues that PEP's unjust enrichment claim fails on its because [i]n this case, PEP does not and could not allege that Plains Marketing perpetrated any kind of fraud or duress on PEP, or that Plains Marketing took undue advantage of PEP in allegedly purchasing stolen Mexican condensate. To the contrary, "PEP does not allege that Plains acted with intent or knowledge or that it was a 2°PEP's opposition to Defendants' Dispositive Motions, Docket Entry No. 545. 21Plains Market 's MSJ, Docket Entry No. 475, p. 5. 22Id. at 39. -36- part of any conspiracy." [PEP's First Amended Complaint, Docket Entry No. 378, , 81.] PEP's pleadings constitute binding admissions that Plains Marketing acted without any intent to raud or take undue advantage of PEP, and there are no allegations to support a f of 23 duress. Citing the Texas Court of Appeals decision in of Corpus Christi v. Heldenfels Bros., Inc., ===:::.:::::...:::::.=::::- 802 S.W.2d 35, "[u]njust i 1990), for its statement (Tex.App.-Corpus 40 enrichment occurs when the party sought to be charged wrongfully secures a unconscionable Marketing's or benef for lack passively him of to receives retain," fraudulent intent one PEP which argues does not would that be Plains prejudice the viability of its equitable claims for unjust enrichment and money had and received. 24 PEP argues that if it "is incorrect owns its proportionate the technical trac recover under an unjust of a commingled mass, and cannot prove needed for conversion, PEP could nei ther alleged nor produced evidence of any facts against Plains Market still chment theory. ,,25 The court is not persuaded by PEP's arguments establishing claims for it it has capable of ust enrichment or money had and received Based on the facts alleged PEP's First Amended Complaint filed in the Big Star Action and contained 23Id. 24PEP'S Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, p. 37. 25Id. -37- in the summary judgment record, the court concludes that PEP's only claim against Plains Marketing is for conversion. Conversion is the wrongful exercise of dominion and control over another's property in denial of, other's rights. or inconsistent with, the Mayo, 354 F.3d at 410; Bandy, 835 s.W.2d at 622. PEP alleges and cites evidence that it contends establishes that Plains Marketing purchased condensate from Kemco and STUSCO that was stolen from PEP, condensate to Valero. and that Plains Marketing then sold that A party who purchases and then sells stolen property is subject to a cause of action for conversion. Sandford v. Wilson, 2 Willson 188, 1884 WL 8120, *1 (Tex. See 1884) ("When the possession of personal property is wrongfully acquired in the first instance, and is transmitted successively to several [parties], each possession is a new conversion.I/). alleges that all defendants, including inter Although PEP alia, Plains Marketing, "were unjustly enriched by any profits, commissions, or benefits received by use of PEP's condensate,I/26 and that "[a] 11 defendants profited from their improper dominion of PEP's property, and therefore, they hold money that in equity and good conscience belongs to PEP,I/27 PEP has failed either to allege any facts or to present any evidence capable 26First Amended Complaint No. 378, p. 19 ~ 103. 27Id. ~ of proving (Big 125. -38- that Plains Star Action), Marketing Docket Entry profited from its use of PEP's condensate, or received money that in equity and good conscience belongs to PEP. court concludes that Plains Marketing is Accordingly, entitled to the summary judgment on PEP's equitable claims for unjust enrichment and money had and received. Plains Marketing Is Not Entitled to Summary Judgment on PEP's Conversion Claims as a Good-Faith Purchaser 2. Citing Texas Business and Commerce Code 2.403, and asserting § that PEP has no evidence tying the hydrocarbons purchased by plains Marketing to any theft, Plains Marketing argues that it is entitled to summary judgment on PEP's conversion claims because it purchased hydrocarbons for value and, therefore, received good title to the hydrocarbons as a good-faith purchaser for value. 28 Plains Marketing argues that PEP has not alleged that Plains Marketing "acted with intent or knowledge or that conspiracy,"29 and that Kemco and STUSCO Plains Marketing allegedly purchased for value Marketing. 30 purchased the hydrocarbons it part of any the sellers from whom stolen that was condensate they sold to each Plains Plains Marketing argues that Kemco and STUSCO had at 28Plains Marketing's MSJ, Docket Entry No. 475, pp. 26-27. 29Id. at 27 (citing First Amended Complaint (Big Star Action) , Docket Entry No. 378, p. 16 ~ 81). 30Id. (citing Exhibit 39, Deposition of STUSCO trader Ed Vrana, pp. 27, 70 (stating that STUSCO purchased condensate from JAG and AGE Refining and sold condensate to Plains) i and Exhibit 32, (continued ... ) -39- least voidable title and that Plains Marketing therefore received good title to the hydrocarbons purchased from Kemco and STUSCO. Thus, Plains Marketing argues that it is entitled to summary judgment on PEP's conversion claims because PEP cannot prove that PEP had superior title or right of possession to the property at issue. 31 A bona fide purchaser for value has an affirmative defense against a conversion claim. Carter, 271 S.W.3d at 858 & n.3. A party asserting an affirmative defense must sufficiently plead and prove the defense. is not Quantum Chemical, 47 S.W.3d at 478. persuaded by Plains Marketing's contention The court that it is entitled to summary judgment as a good-faith purchaser for value because Plains Marketing has failed to cite any evidence capable of establishing that opposed to void - Kemco and/or STUSCO acquired voidable title to the hydrocarbons at issue. as Section 2.403(a) of the UCC as codified in the Texas Business and Commerce Code provides: (a) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser 30 ( ... continued) Deposition of Kemco Vice-President, Kyle May, pp. 10-12, 22 (stating that Kemco purchased product from St. James at Swinney Switch, and sold product to Plains at George West) . 31Plains Marketing's MSJ, Docket Entry No. 475, p. 27. -40- for va When goods have been delivered under a transaction of purchase the purchaser has such power even though (I) the transferor was deceived identity of the purchaser, or as to (2) the delivery was in exchange which is later dishonored, or for (3) was agreed that the transaction was to be a -cash sale", or (4) delivery was procured through punishable as larcenous under the law. a (b) Any entrusting of possession of goods to a who deals in goods of that kind him power to transfer all rights of the entruster to a buyer in ordinary course of business. (c) -Entrusting" includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the part s to the livery or acquiescence and regardless of whether the procurement of the entrusting or the possessor's disposition of the goods have been as to be larcenous under the criminal law. Plains Marketing neither argues nor presents any of establ STUSCO, or any and STUSCO that PEP created apparent authority Kemco, the entities from which PEP contends that Kemco condensate sold to Plains Marketing. Plains Marketing cited any evidence action to c capable that PEP took Kemco, STUSCO, or any of their indicia of ownership." Nor has firmative "with the Absent evidence that PEP ever entrusted condensate to Kemco or STUSCO, or to any sel from whom Kemco or STUSCO Marketing, Marketing condensate sold failed to raise a -41- to fact Plains Plains issue as to whether its sellers possessed voidable as opposed to void title. Plains Marketing has not offered any evidence Moreover, capable of establishing that the condensate it purchased was not stolen. If, as PEP contends, Plains Marketing purchased stolen condensate from Kemco and/or STUSCO, then those purchases would not qualify as U.C.C., transactions of purchase within the meaning of the and Plains Marketing would not qualify as a good-faith ~~~~~~~~, 1999, no See A. Benjamini, value who acquired good ti purchaser .). 2 S.W.3d 611, 614 (Tex.App.-Houston [14th Dist.] In Benjamini an employee stole property and sold amini. it to Mr. The Texas Court Appeals affirmed an order returning the property to the owner even though Mr. Benj amini claimed a right to the property under the U.C.C.'s protection good purchasers. The court held that "[a] thief who wrongfully takes goods against the will of the owner does not take the goods through a transaction section 2.403 const purchase within the meaning [of the U.C.C.] Only voluntary transfers can transactions of purchase, under section 2.403.". See Kotis v. a thief is not a Nowlin Jewelry, Inc., 844 S.W.2d 920, 923 (Tex.App.-Houston [14th Dist.] 1992, no writ). Olin Corp. v. Cargo Carriers. Inc., (Tex.App.-Houston [14th Dist.] 1984, no writ) purchases stolen property from a acquires no title in the property). 673 S.W.2d 211, 216 (holding that one who , no matter how innocently, If, as PEP contends, the condensate purchased by Plains Marketing was stolen, then no one -42- the chain of title following the alleged thieves could transfer title to a subsequent purchaser like Plains Marketing. Texas property, law no is well matter how settled that innocently, property; title remains in the owner. S.W.2d 144, 146 (Tex. 1945) one who purchases no acquires stolen to title the See McKinney v. Croan, 188 ("[I]t is well settled that one in rightful possession of personal property may maintain an action for This its recovery against a thief or one holding under him."). principle of Texas law and the policy supporting it has been aptly stated many times. See Sinclair Houston Federal Credit Union v. Hendricks, 268 S.W.2d 290, 295 ref'd n. r. e. ) ("The general (Tex.Civ.App.-Galveston 1954, writ rule is that the owner of stolen property can recover it or its value from anyone who has received it and exercised dominion over it."); Olin, 673 S. W. 2d at 214 (rule that one who purchases stolen property from a thief, no matter how innocently, acquires no title, places the responsibility of ascertaining true ownership on the purchaser); Benjamini, 2 S.W.3d at 613 ("One who purchases stolen property from a thief, no matter how innocently, acquires no title in the property; title remains in the owner."). In Olin a jury found that Ragsdale was a good-faith purchaser for value of Olin's fertilizer. Nevertheless, the court sustain[ed Olin's] third point of error because this finding [of a good-faith purchaser for value] is immaterial to [Olin's] right to recover the value of its stolen goods from the purchasers thereof. One who purchases stolen property from a thief, no matter how innocently, acquires no title in the property; title remains in the owner. This rule places the responsibility of ascertaining true ownership on the purchaser. -43- Appellee, Ragsdale, asserts that he falls within the exception to the common law rule that if an owner of property, by some act has vested the possess and right to the property apparently in the seller, thereby estops himself from setting up a claim to the property as against the purchaser for value without not This exception does not apply to appel Tinney and Ragsdale, because is no evidence that . the owner of the fertilizer, by some act ve possession and right to the property apparently in the lers... Although a seller may have possession and represents that he has title to the property, an innocent purchaser still cannot defend aga st the true owner, unless there has been some [J a rma ti ve act by the owner whi ch ei ther creates apparent au ty to sell the the seller or cl the seller with of ownership. Olin, 673 S.W.2d at 216 (emphasis added) . Plains Market good-faith purchaser value who received good title to the hydrocarbons at issue, summary judgment Therefore, that it was a led to establish on or that Plains Market PEP's conversion Plains Marketing's argument claims that is entitled to on this basis. is entitled to summary judgment on PEP's conversion claims because it is a goodfaith purchaser for value has no merit. 3. Plains Whether PEP Can Trace Stolen Marketing Is a Fact Issue Marketing argues that it is Property entitled to to Plains summary judgment on PEP's conversion claim because PEP cannot provide any competent evidence that Plains Marketing purchased t identical condensate legedly stolen from PEP. PEP has led to provide any competent evidence of such identif ion, either by tracing the allegedly stolen hydrocarbons from PEP to PI Marketing or by showing that the hydrocarbons allegedly stolen from PEP -44- and hydrocarbons purchased by Plains Marketing share the same distinctive and unique charact st S.32 this argument, In support Plains Marketing cites a number of iffs asserting cases in which Texas courts have held that pI claims for conversion must specifically identify what property was stolen that and the defendant (Tex.Civ.App.-Amarillo 1943, writ denied (cattle) 580 S.W.2d 91 1979, writ denied) 581 denied) same Satterfield v. Knippel, 169 S.W.2d 795, 796 property. Dist.] very converted S.W.2d 538, 1 Shaw's D.B. & 94 (Tex.Civ.App.-Houston [1st (silverware) 539 i i (Tex.Civ.App. las 1979, writ (tools) ting ~==~~-=====~I 108 S.W.2d 954, 955-56 (Tex.Civ.App. Waco 1937, no writ), Plains Marketing contends that "a conversion plaintiff has the burden of showing the allegedly taken wi th \ reasonable certainty. quantity '1133 product Assert that PEP does not know how much condensate was stolen, does not know when its condensate was stolen, does not know from where was stolen, s condensate and does not know who stole its condensate, Marketing PEP is using assumptions meet its burden proof. Plains not to Plains Marketing also cites contradicting PEP's contention that no gas condensate was 1 ly exported from Mexico to the United States from August of 2006 to 32Plains Market 33 's MSJ, Docket Entry No. 475, pp. 3 4. at 6-7. -45- mid 2011. 34 admiss Finally, Plains Marketing argues that is no the condensate it purchased from evidence showing Kemco or STUSCO consisted of Mexican condensate stolen from PEP or, if so, how much. Plains Marketing argues that the evidence, fact, shows that it purchased naphtha and crude oil STUSCO and not gas condensate. 35 in Kemco and Plains Marketing argues that is not enough for PEP to show that there is some probability or possibil that Plains Marketing received some barrels of condensate stolen from PEP, icularly when the facts in evidence lead to multiple equally possible inferences as to whether Plains Marketing any such condensate and if so, how much. PEP must have some evidence a specific number barrels actually received by Marketing are actually PEP's condensate. PEP has no evidence. 36 PEP responds that the issue is not molecules, but ownership. PEP is not required to prove that defendants converted the exact same molecules stolen by the Cartel. Instead, as stated in defendants' own authority, PEP has to prove that it "had, at the time of alleged conversion, acquired some right or title to the identical goods or chattels claimed to have been converted." O'Connor [v. Fred M. Manning, Inc., 255 S.W.2d 277,] 278 [(Tex.Civ.App.Eastland 1953)]. With ly identifiable goods, there is no distinction between the identical property and the property owned. With fungible goods, however, ownership does not necessarily low molecules of oil or water, or grains of sand or wheat, but flows through transactions and transfers of t Ie according to property rules codi f ied in the UCC. 37 34 at 15-16. at 17-26. at 24. 's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, p. 5. -46 As PEP recognizes, " [r]esolution of this argument is critical to determination of this case,"38 because it permeates defendants' factual challenges, particularly the repeated claim that PEP cannot trace its property. For example, if Big Star filled its single sales tank with a mixture of 25% stolen condensate and 75% legal crude, Plains argues that it is mere assumption that the deliveries out of that tank to Plains contained 25% of stolen condensate. As a matter of chemistry, Plains might be correct; it is highly doubtful, but at least theoretically possible, that Plains fortuitously received no hydrocarbon molecules traceable to PEP's Burgos Field. According to the UCC and property law rules explained at length in PEP's dispositive motion, however, as a matter of law, PEP owns 25% of the commingled mass, precisely because individual molecules are mixed together and no longer separable. Since PEP owns a fixed percentage of a combined mass, when defendants bought a portion of the combined mass they took possession of PEP's property without paying PEP for that property. In other words, the issue is one of legal ownership, not chemistry. And, PEP's ownership is determined by the same rules and practices that govern defendants' many daily transactions in crude and condensate. Ignoring their own trade practices and the UCC's property law governing ownership of commingled goods, the defendants ask this Court to adopt an impossible proof standard that requires PEP to trace individual hydrocarbon molecules. The proposed rule is directly contrary to established law. In fact, Corpus Juris Secundum states: "Other claims which are not a defense [to conversion] include. . commingling of the property with other property before the conversion." 90 C.J.S. Trover and Conversion § 68 (2013) (footnotes omitted) . On the other hand, the defendants cite no opinions denying recovery for conversion because the goods converted were fungible and tracing required use of circumstantial evidence. The law of conversion clearly encompasses goods that, according to the defendants, are not identifiable. 38Id. -47- Applying Texas' actual legal rules governing ownership of goods, as set out in the UCC, however, PEP can and has traced its title to the condensate from wi thin Mexico into the defendants' hands. The defendants cannot defeat this proof by referencing irrelevant law related to a different type of property. 39 Missing from PEP's argument quoted above is any cite to Texas law or to a Texas case that has applied proportionate ownership on which PEP relies conversion. the principles of in the context of Instead, citing Humble Oil and Refining Co. v. West, 508 S.W.2d 812 (Tex. 1974), Ortiz Oil Co. v. Luttes, 141 S.W.2d 1050 (Tex.Civ.App.-Texarkana 1940, writ dism'd by agr.), and Mooers v. Richardson Petroleum Co., 201 134 (Tex.Civ.App.- rev'd in part, San Antonio 1946), aff'd in part. S.W.2d 204 S.W.2d 606 (Tex. 1947), PEP asserts that "hydrocarbons can be converted, and there is a well-established legal regime for determining ownership in such cases. ,,40 But none of the cases PEP cites absolved the plaintiff from having to identify the converted property; at issue was only the amount of property converted. These cases all stand for the principle that where there has been a conversion of goods through intentional commingling, and the evidence establishes a reasonably certain estimate of the amount of property converted, judgment should be entered on the basis of that amount, even though the precise amount cannot be ascertained with reasonable certainty. See Exxon Corp. v. West, 543 S.W.2d 667, 673 (Tex.Civ.App.-Houston 39Id. at 6-7. -48- 1976) Ortiz Oil (cit Co. v. Luttes, 141 S.W.2d 1050, 1055 (Tex.Civ.App.-Texarkana 1940, writ dism'd by agr.). PEP seeks to avoid the identification requirement by that the requirement should not apply to fungible contending ei goods, or that under the confusion of goods doct , once PEP has shown that it owns a fixed percentage of a combined mass, it is entitled to a presumption that any defendant who bought a portion of that combined mass took possession of a proportionate percentage of PEP's property_ has merit. The court is not persuaded that either argument Texas courts have not made an exception to the identification requirement for fungible goods, and this court is unwilling to create such an exception. Moreover, PEP has not cited - and the court has not found - any Texas case that has applied a proport e percentage of ownership presumption to a conversion claim as against a defendant who purchased or acquired a portion of a commingled mass. PEP's proportionate percentage argument is based on the legal principle that where one wrongfully confuses and commingles his goods with goods of another, the wrongdoer bears the burden of pointing out his own goods and unless he does so, he is liable for the whole mass. See Holloway Seed Co. v. City National Bank, 47 S.W. 95 (Tex. 1898). In Holloway the Texas Supreme Court expl that [t] rule as to the confusion goods is merely a rule of evidence. The wrongful mingling of one's own goods with those of another, when the question of -49 identification of the property ses, throws upon the wrongdoer the burden of pointing out his own goods, and, if this cannot be done, he must bear the loss which results from it. It is but an application of the e that all things are presumed against the spoi i that is to say, t one who wrongfully destroys or suppresses evidence. Id. at 97. While this principle may be defendants such as Big Star who are condensate stolen from PEP with appl icable against leged to have commingl hydrocarbons, the principle has no application against Plains Marketing because there are no or evidence that PI allegat Marketing commingled PEp 1 s condensate, much less that Plains Marketing did so wrongfully. ~~~~~~~~~I 174 S.W.2d 110, 112 (Tex.Civ.App.-Beaumont 1943, w.o.m.) . writ In Kenyon two junk dealers, converted plaintiffs' and Feldman, wrongful dragline by cutting it into scrap metal. Defendants Eisen, Sampson, and Sampson, purchased scrap metal from the two junk dealers. Plaintif purchasers for conversion. The sued the junk dealers and court instructed a verdict favor of the purchasers upon finding that the evidence raised no issue as to them jury. l and submitted the case against the dealers to a aintiffs appealed the di purchasers. The appeals court af verdict entered for rmed the directed verdict upon concluding that the evidence showed the tonnage, and the value the junk metal that the defendants purchased from the dealers, "but was also shown that scrap metal purchased from the garbage dump of City of Vinton l Louisiana, was included and it was nowhere 50 shown of what dragline. said tonnage came plaintiff[ s] principle that one who the full amount based on recover [the they were entitled to Plaintiffs argued 1I from wrongfully confuses and commingles his goods with the goods another the burden of pointing out his own goods or being held liable for the whole mass. The court rej ected s argument because there was no evidence either that the purchasers - as opposed to the junk dealers had commingled scrap from plaintiff [s dragline with scrap from another source. Nor was any evidence that the purchasers had knowledge or notice that dealers from whom they purchased the scrap did not own all of it. On rehearing[ however, the court concluded that the issue purchasers [ because liability there finding was should have testimony that been presented could have to the jury warranted a jury all of the scrap metal purchased from the dealers came from the plaintiff [s dragline. court explained that "even though Sampson et al purchased without notice that the metal had been wrongfully taken by the sellers, they are liable to appellants for the junk value of the metal purchased from appellants as of time it was received by them./I illustrates that plaint unless fendants liable based on (1) goods [ or machine [ Id. in a conversion action must trace the property actually converted to the defendant hold l l and may not confusion of goods principle[ the defendants themselves wrongfully commingled (2) the defendants acquired the commingled goods with -51 notice that the sellers from whom they purchased did not own all of the goods. to hold Plains Marketing liable for Therefore, in that was actually stolen from conversion, PEP must trace PEP must also present evidence it in Mexico to Plains Market certain estimate of the from which the jury could form a amount of purchased. not stolen See required condensate, ==~~-===, to be if any, that 141 S.W.2d at 1055. proven with exact Plains Marketing These issues are certainty, only with 115 reasonable certainty. S.W.2d 1097 (Tex. 1938). The only evidence that PEP cites that would allow a finder to conclude that PI Marketing purchased fact- reasonably certain amounts of stolen condensate is cited in PEP's Dispositive Motion (Docket Entry No. 492). , PEP argues that on one occasion, around October 2008, F&M purchased $539,479 in stolen condensate from Continental. Exhibit 32 at 104 (deposition Frank del Angel, Jr.) i Exhibit 33:695 (relevant invoice). F&M resold this stolen condensate to a company called Kemco Resources (Exhibit 32 at 105-106; see also Exhibit 34:199), which then d to Plains Marketing. Exhibit 35 at 29 30, 32 (deposition Kyle May, Kemco's president); see also exhibit 36 (invoices produced by Kemco showing the sale to ains) .41 Exhibit 33 is a Continental Fuels November 6, Transportation, 2008, Inc. showing ce s $539,479.25, dated condensate that occurred on October 30-31, to F&M 2008, and 41PEP's Dispositive Motion, Docket Entry No. 492, pp. 7-8. -52 November 1-6, 200B. Exhibit 34 is a Bill Payment Stub showing that On November 20, 200B, Kemco paid F&M Transportation $590,09B.61 for FMS100-100B dated October 31, 200B. Exhibit 36 consists of two invoices showing quantities and prices of "Crude Oil" that Plains Marketing purchased from Kemco in October and December of 200B.42 As evidence that the products being sold by Continental Fuels, including that which made its way to Plains Marketing in October and December of 200B, was stolen from Mexico, deposition of Timothy Brink of Continental Fuels. PEP cites the Brink testified that in July of 2008 his employee, Josh Crescenzi, told him that the product he was purchasing was stolen from Mexico. 43 Brink also testified that once he looked closely at the paperwork documenting shipments of product that he bought from Mexico, the number of discrepancies he spotted caused him to realize that the product was stolen. 44 PEP also cites the transcript from the court proceeding in which Arnoldo Maldonado of Y Oil & Gas pleaded guilty for his role in supplying stolen Mexican condensate to Continental Fuels. 45 42Exhibi t 36 to PEP's Disposi ti ve Motion, Docket Entry No. 49324. 43PEP's Dispositive Motion, Docket Entry No. 492, p. 4 (citing Deposition of Timothy Brink, Exhibit 10, Docket Entry No. 492-12, pp. 13 -14) 44See Plaintiff PEP's Reply in Support Motion [Dkt. 492] ("PEP's Reply in Support Motion"), Docket Entry No. 577, pp. 15-16. of of Its Its Disposi ti ve Disposi ti ve 45PEP's Dispositive Motion, Docket Entry No. 492 (citing Transcript of Rearraignment, Exhibit 12, Docket Entry No. 492-14, p. 20). -53- the invoices Although not dispositive, this evidence together wi in Exhibits 33-34, and 36 to PEP's Dispositive Motion, 2008 October sufficient to raise a fact issue as to whether is ains Marketing purchased reasonably ascertainable quantities condensate stolen from PEP in Mexico. court concludes However, for the reasons explained below, that claims arising from purchases made by Plains Marketing before May 29, 2009, are Therefore, time-barred. because the only finder could conclude purchases cited by PEP from which a Plains Marketing purchased reasonably certain amounts of stolen e condensate would not be admi to support PEP's conversion claim, Plains Marketing is entitled to summary judgment on PEP's conversion claim because PEP cannot trace condensate actually stolen from it in Mexico to Plains Marketing in Texas. 4. Conversion Claims Arising from Purchases that Occurred Before May 29, 2009, Are Time Barred Asserting that PEP did not April 20, 2012, when PEP filed its Big Star Action (Docket Entry No. name it as a defendant until rst Amended Complaint in the 378), ains Marketing argues that all of the conversion claims that PEP has asserted against it injuries arising from purchases alleged to have occurred more than two year s barred. 46 t ier, i.e., before April 20, 2010, are time ains Marketing argues that PEP's conversion claims are barred because those claims accrued when the condensate was 46Plains Market 's MSJ, Docket Entry No. 475, p. 4. -54- initially stolen. Acknowledging that PEP has pleaded the discovery rule in an attempt to avoid time bar imposed by Texas' two-year statute of limitations, Marketing argues that the discovery rule is inapplicable to PEP's claims because the injuries that PEP leged wrongdoing were not inherently suffered as a result of its undiscoverable, because condensate being was United States PEP has stolen and April long admitted knowing converted 20, by that sale in and because 2010, its the Plains Marketing did not conceal PEP's claims. 47 PEP responds that t aims asserted against Plains Marketing are not time barred because they all relate back to May 29, 2011, i.e., the date that PEP filed Action No. H-l1 2019 (B claims its Original Star Action) asserted ains .48 Complaint in Civil PEP also argues that Marketing are not time barred because they did not accrue until PEP demanded return of and/or compensation for its condensate from Plains Marketing, and Plains Marketing had a Alternatively, because the 47Id. PEP di e time to investigate that demand. 49 that e its claims are not and/or the doctrine of time fraudulent at 5. 4BpEP's Opposi t Entry No. 545, p. 38. to Defendants' Dispositive Motions, Docket 49PEP's Dispos Motion, Docket Entry No. 492, pp. 30 31i PEP's Opposition to Defendants' Dispositive Motions, Docket Ent No. 545, pp. 22 25. -55- concealment toll the limitations period for these claims. 50 reasons explained below, against Marketing PI Original Compl nt the court concludes that relate back to the For the PEP's claims filing of PEP's the Big Star Action, i.e., to May 29, 2011, but that all of the claims arising from purchases that accrued over two years before that date, i.e., all of the claims the May 29, 2009, are time barred and purchases made doctrine prevents fraudulent concealment nor the discovery Plains Market to bar from s from relying on Texas' two-year limitations claims. (a) PEP's Claims Against Plains Marketing Relate Back to the Filing of the Original Complaint Star Action on May 29, 2011 PEP argues that the claims asserted against Plains Marketing in the First Amended Complaint filed in the Big Star Action are not barred by limitations because they relate back to the date on which Complaint, i.e., May 29, 2011. 51 it filed its (1) Applicable Law A party who timely files a complaint may amend t complaint by adding new parties after the applicable statute of limitations has run if requirements of Federal Rule of I Procedure 's Disposit Motion, Docket Entry No. 492, . 30-31; PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, pp. 25-28. 51 -56- 15(c) are met. See Krupski v. Costa Crociere S. p. A., 130 S.Ct. 2485, 2496 (2010) fendant added (addressing when claims asserted against a newly relate back to a a suit filed party). If the requirements of Rule 15(c) compl will "relate back" to the date the original complaint was filed. are met, related the amended Rule 15(c) states: (1) When an Amendment pleading relates pleading when: Re~ates back to Back. the An date amendment to a of the original (A) the law that provides the applicable statute of limitations allows relation back; (B) the amendment asserts a claim or defense that arose out of conduct, transaction, or occurrence set out or attempted to be set out--in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if 15 (c) (1) (B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have brought against it, but for a mistake concerning the party's identity. Fed. R. Civ. P. 15(c). The Supreme Court has stated "[t]he question under Rule 15(c) (1) (C) (ii) is not whether [the plaintiff] knew or should defendant] have known identity of [the newly named as the proper defendant, but whether [the newly named -57- defendant] knew or should have known that it would have been named as a defendant but for an error. Rule 15 (c) (1) (C) (ii) asks what the prospective defendant knew or should have known during the Rule 4( m) period." Krupski, 130 S.Ct. at 2493-94. Information in the plaintiff's possession is relevant only as it relates to the defendant's understanding of whether there was a mistake concerning the proper party's identity. The proper inquiry under Rule 15(c) (1) (C) (ii) is whether the newly named defendant knew or should have known that but for the plaintiff's mistake, the action would have been brought against him. (2) Id. Original Pleadings PEP's Original Complaint filed on May 29, Star Action, 2011, in the Big Civil Action No. H-11-2019, asserted against Plains All-American Pipeline, L.P. the same claims based on the same facts that PEP asserted against Plains Marketing in PEP's First Amended Complaint filed on April 20, 2012. 52 (3) Analysis PEP argues that Rule 15(c) 's requirements for relation back are satisfied as to Plains Marketing because (1) PEP added Plains Marketing as a defendant after Plains All-American complained that it was not the proper party, (2) Pipeline Plains Marketing 52See Original Complaint, Docket Entry No. 1 filed in Civil Action No. H-11-2019 (Big Star Action), pp. 4, 15 and 20-23. -58- sing from the same factual is being sued for the same claims All-American Pipeline was sued in PEP/s Original is as PIa Complaint 1 and (3) Plains Pipeline are related ent Marketing and Plains All-American ies that share legal counsel. PEP argues that these factors "demonstrat[e] the requisite knowledge / " i.e. , that Plains Marketing received notice of the original action within 4(m) for serving summons and complaint the period provided by such that it will not be prejudiced in defending on the meritsi and that ains Market would have been action knew or should have known that brought but against for PEP/ s mistake concerning the proper party/s identity. 53 Plains Market opposes PEP/s relation back argument based solely on PEP's failure to dismiss the claims asserted against Plains All-American Pipeline , L.P. when PEP filed its Complaint. Citing two unpublished cases , Trigo t Amended v. TDCJ-CID Officials 1 Civil Action No. H 05-2012, 2010 WL 3359481 1 *18 (S.D. Tex. No. August 24, 2010) 1 CIVASA02CA0663 XR , and Hansen v. 2003 ASAP WL 22249767 Consultants! (W.D. Tex. Inc., August 29 1 2003), Plains Marketing argues that the claims asserted against do not relate back to the filing of PEP's Original Complaint because [t]he adding of a previously-unidentified party to a case is not a "mistake" under Rule 15 (c) (1) (C) (ii) that 53PEP's Opposition to Defendants' Disposit Entry No. 545, p. 38. -59- Motions, Docket qualifies for relation back original claims. The statute running on PEP's claims PEP filed suit against 2012. 54 new claims to the limitations did not stop Plains Marketing until Marketing on April 20, Plains Marketing argues that PEP's conduct demonstrates that, when it amended its complaint in April 2012, was not merely correcting mistake as to the proper name or the identity of Plains All-American Pipeline vs. ains Marketing. PEP intended to add a second PI entity as a separate defendant, and both Plains All can Pipeline and Plains Marketing subsequently ipated in the substance of thi s case. 55 Missing from Plains Marketing's opposition is any argument or evidence from which the court could conclude that the requirements of Rule 15 (c) have not been satisfied either because Plains Marketing did not receive timely notice of this lawsuit as required by Rule 15(c) (1) (C) (i) or Plains Marketing did not know that this action would have been brought against it but for a mistake concerning the Rul e 15 (c) (1) (C) (i i) . party's ion to PEP's relation back argument are distinguished from No. H-05 2012, required by unpublished cases that Plains Marketing cites in support of its Action identity as s of this case. 2010 WL 3359481, at In Trigo , Civil *14-15, the court rejected the plaintiff's attempt to have claims asserted against newly added defendants relate back to the original filing 54Plains Market ,L. P. 's Reply in Support of Motion for Summary Judgment, Docket Entry No. 567, p. 22. 55Id. at 21-22. -60 there was no evidence that the newly named defendants received timely not of the lawsuit, or that the newly named defendants knew that but for a mistake concerning the proper party's identity, the action would have been brought against them. In No. CIVASA02CA0663 XR, 2003 WL 22249767, at *1-*2, the court held that c asserted against the plaintiff's co-worker did not relate back to the claims asserted the plaintiff's employer complaint because plaintiff's failure to name in the the supervisor in the original compl was not a mistake. PEP's First Amended Complaint added Plains Marketing without dismissing Plains All-American Pipeline, PEP's I-American Pipeline, L.P. (Docket Entry No. 533) signed by the court on March 15, 2013, all the claims asserted Plains All-American Pipeline have has prospect Rule explained, "Rule knew defendant 4{m) All and but pursuant to Stipulation and Order of Dismissal of Claims Against Plains Court L.P., period." dismissed. 15 (c) (1) (C) (ii) or Krupski, should 130 can Pipeline, L.P. and PI are represented by the same have S.Ct. at As the Supreme asks known what during 2493-94. Marketing have similar names counsel. Similar names and interrelationship "heighten the expectation that [Plains Marketing] should suspect a mistake has been made when [Plains All Pipel ] is named in a complaint that actually describes [Plains Market's] activities." Id. at 2498. A party who timely fi a complaint may amend the complaint by adding new parties 61 the applicable statute of limitations has run provided the requirements Krupski, of Federal Rule of Civil Procedure 15(c) are met. s.Ct. at 2496. 130 Here, the court has no basis on which to conclude that the Rule 15(c) requirements are not satisfied. (4) Conclusion Because the factual basis and the claims asserted against Plains Marketing in PEP's First Amended Complaint are virtually identical to the factual basis and the claims asserted against Plains All-American Pipeline in PEP's Original Complaint, and because Plains Marketing does not dispute that the requirements of Rule 15 (c) are satisfied, the court concludes that the claims asserted against Plains Marketing in PEP's First Amended Complaint filed in the Big Star Action relate back to the date that PEP's Original Complaint was filed in that action, i.e., May 29, 2011. (b) PEP's Conversion Claims Accrued When Plains Marketing Purchased Allegedly Stolen Condensate Arguing that PEP alleges that it is liable for purchases of allegedly stolen Mexican condensate that occurred from April 2006 to July 2010, and recognizing that Texas applies a "legal injury" test to determine when a cause of action has accrued, Plains Marketing argues that the claims asserted against it in this action are all time barred because "PEP's claims accrued when the thefts first occurred. ,,56 PEP argues that the claims asserted against Plains Marketing are not time barred because 56Id. -62- limitations d[id] not begin to run when PEP's property was stolen or when the defendants [- including inter alia, ains Marketing -] obtained it, but when the defendants knew of and resisted PEP's ownership. The defendants present no evidence that they knew of PEP's claims more than two years before sui t .57 For the reasons explained below, the court limitations did not begin to run when the the PI Marketing argues, concludes that s first occurred as or when Plains Marketing knew of and resisted PEP's ownership as PEP argues but, instead, when Plains Marketing purchased allegedly stolen condensate. (1) The Limitation Period Did Not Start When the Thefts First Occurred Plains Marketing 04-0383, pet.) Ayers v. Erickson, Civil Action No. 07- 2006 WL 435026, at *2 (Tex.Civ.App.-Amarillo 2006, no in support of its argument that PEP's claims accrued and limitations began to run when the thefts occurred. In Ayers the court held that limitations on claims for conversion of firearms began to run on the date the firearms were stolen even though the plaintiff did not know the thieves' ities. Because the defendants in Ayers were individuals said to be connected to the of the purchasers firearms like Plains support Plains Market and were Marketing, not identified the holding subsequent does not 's argument that PEP's claims against it accrued and limitations began to run on ts. Ayers as Instead, the Ayers holding stands date of the original the well-established 57 PEP 's Reply in Support of Its Disposi ti ve Motion, Entry No. 577, p. 11. -63- Docket rule of Texas law that "[i]n most cases, a cause of action accrues when a wrongful act causes an injury, even if the fact of injury is not discovered until later and even if all resulting damages have yet to occur." Id. at *1 (citing Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998), and S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)). (2) The Limitation Period Did Not Start When Plains Marketing Knew of and Resisted PEP's Ownership Arguing that its claims against a particular defendant did not accrue until it could have sued that defendant for a legal injury, PEP asserts [t]hat, of course, occurred at the earliest when the defendant exercised control over PEP's property. But . PEP's legal rights were not invaded by defendants' innocent possession of PEP's property. Rather, PEP was legally wronged (and defendants' possession of PEP's property unlawful) only after PEP had demonstrated its ownership of the condensate, and the defendants refused to return or pay for the property. 58 Citing Sandford v. Wilson, 2 Willson 188, 1884 WL 8120 (Tex. 1884), PEP argues that "[a] n innocent buyer of stolen goods has not committed conversion until the buyer unreasonably refuses to return the goods on demand of the owner,,,59 and citing Textile Supplies, Inc. v. Garrett, 687 F.2d 123, 128 (5th Cir. 1982), PEP argues that Up] er the DCC, faith from a \ the mere purchase of personal property in good person who has no right to sell it is not a 58PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, p. 23. 59PEP's Dispositive Motion, Docket Entry No. 492, p. 29. -64- conversion. ' iance on Sandford, PEP's ,,60 Garrett, and some unidentified provisions Uniform Commercial Code (U.C.C.) to support its contention the claims asserted against Plains Marketing did not accrue and limitations did not start running until Plains Marketing knew of and resisted PEP's ownership has no merit because purchases of stolen property are not governed by the U.C.C. Sandford and Garrett cases on which PEP and because relies are factually and legally distinguishable. PEP's reliance on in Garrett that \\ faith from a U.C.C. and the Fifth Circuit's statement mere purchase of personal property in good person who has no right to sell it is not conversion," 687 F.2d at 128, is misplaced because assuming PEP alleges - that as condensate was stolen, subsequent purchases of that condensate by purchase within a ains Marketing were not transactions of meaning of the UCC. See A. Benjamini, Inc. v. Dickson, 2 S.W.3d 611, 614 (Tex.App.-Houston [14th Dist.] 1999, no pet.) . Mr. In an employee stole property and sold it to Benj amini . The Texas Court of Appeals affirmed an order returning the property to the owner even though Mr. claimed a right to good-faith purchasers. Benj property under the U.C.C.'s protection The court held that \\ [a] f wrongfully takes goods against the will of the owner does not 60PEP's Opposition to Defendants' Dispositive Motions, Entry No. 545, p. 24. 65- who the goods through a transaction of purchase within the meaning of section 2.403 can Only voluntary trans [of the U.C.C.] transactions of purchase, and a thief is not a purchaser const See Kotis v. Nowlin Jewelry, under section 2.403."). Inc., 844 S.W.2d 920, 923 (Tex.App.-Houston [14th Dist.] 1992, no writ). Olin Corp. v. Cargo Carriers. Inc., (Tex.App.-Houston [14th Dist.] 1984, no writ) 673 S.W.2d 211, 216 one who (holding , no matter how innocently, purchases stolen property from a Because PEP alleges that the acquires no title in the property) condensate was stolen, there is no transaction of purchase to which the U.C.C. applies; thus, no one in the chain of title following the al thieves could trans like Marketing. The fth Circuit's title to a subsequent purchaser statement in Garrett that " mere purchase of personal property in good faith from a person who has no right to sell it is not a conversion, law which settled l II was based on Mississippi the Fifth Circuit explained, differed from "[t] legal proposition that 'ordinarily when one well buys any consumer chattels which belong to another he becomes a converter and must pay for his conversion regardless of his good faith.'" 687 F.2d at 128 & n.13 (quoting First Camden National Bank & Trust ==~~-=~~~==~=-~~, 122 F.2d 826, 826-27 (3d Cir. 1941)). Texas law is in accord with the "well settled legal proposition" referenced in Garrett. See Sandford, 1884 WL 8120, *1 ("When -66 possession of personal property is wrongfully acquired in the first and instance, is transmitted possession is a new conversion. successively If) to several, each ¢ PEP cites Sandford, 1884 WL 8120, in support of its contention that Texas law distinguishes between an innocent purchaser's possession of stolen goods and a wrongful converter's possession of stolen goods. PEP explains that Hodge stole Sandford's horse and sold it to Wilson. When Sandford asked Wilson to return the horse, Wilson demanded that Sandford prove his ownership. Even then, Wilson refused to return Sandford's horse until Sandford produced the thief so Wilson could get his money back. Then, the horse was stolen again, this time from Wilson's stable. The court ruled that, although Hodge, as a horse thief, did not transfer title to Wilson, Wilson's initial possession "was lawful and not a conversion per se. If Id. at 189. Wilson did not commit conversion until he unreasonably refused to return the horse after Sandford established his ownership. Id. at 191. In other words, "Wilson had the right to refuse delivery until Sandford established his ownership in some way.1f Id. at 191. The rule of Sandford is well-recognized and logical, because it affords innocent purchasers of stolen goods an opportunity to preemptively cure a conversion claim. . . According to this rule, an innocent purchaser has done nothing wrong until the purchaser is shown that the item is stolen: "Until demand and refusal, the purchaser in good faith is not considered a wrongdoer. If DeWeerth, 836 F.2d at 106 (citing Gillet, 57 N.Y. at 28) . 61 PEP argues that "aside from the few defendants that admit they bought stolen goods (none of whom filed dispositive motions), the 61Id. at 24-25. -67- defendants continue to claim that they lack sufficient information to determine that they took possession of PEP's property, so they cannot claim that conversion occurred years ago. 1162 PEP's reliance on Sandford in support of its contention that defendants' possession of its condensate was not unlawful until defendants unreasonably refused PEP's demand either to return or pay for PEP's property is misplaced because Sandford factually and legally distinguishable from this case. is Sandford is legally distinguishable because limitations was not at Sandford is discovered factually the distinguishable conversion, the because defendant converted property, i.e., Sandford's horse. demand that the defendant return the still both issue. when Sandford possessed the Thus, Sandford could horse. Only after the defendant refused to return the horse did Sandford seek damages for conversion. Here, in contrast, PEP asserts that it did not know that Plains Marketing had converted its condensate until May of 2011,63 but offers no evidence showing that by that date Plains Marketing continued to possess any stolen condensate. summary judgment evidence that PEP has provided The only of Plains Marketing's purchases of stolen condensate are two invoices showing 62Id. at 25. 63PEP's Second Supplemental and Amended Answers and Objections to Defendant Plains All-American Pipeline's First Set of Interrogatories to PEP ("PEP's Second Supplemental Answers and Objections"), Exhibit 43 to PEP's Dispositive Motion, Docket Entry No. 493-31, p. 6 ("PEP discovered in or around May 2011 that Plains had purchased stolen condensate. ") . -68- that Plains Marketing purchased "Crude oil" from Kemco in October and December of 2008. Assuming that the "Crude Oil" referenced on the two invoices was - as PEP contends - stolen condensate, since PEP alleges that Plains Marketing sold and transferred the "Crude Oil" to Valero soon after purchasing it, any demand that PEP could have made for the condensate's return in or after May of 2011 would have been useless because condensate to return. Plains Marketing no longer had the Under these circumstances demand and refusal are neither conditions precedent to nor required elements of a conversion claim. In Presley v. Cooper, 284 S.W.2d 138, 141 (Tex. 1955), the Texas Supreme Court explained that a demand and refusal are merely evidence of a conversion, and where a conversion by the bailee cannot otherwise be shown than by his refusal to comply with the demand for possession, such a demand and refusal are necessary. But they are not necessary if the other evidence establishes an act of conversion. The rule is well expressed by the Supreme Court of Delaware in Mastellone v. Argo Oil Corp., 7 Terry 102, 46 Del. 102, 82 A.2d 379, 384, in this language: "To us the purpose of the \ demand and refusal' rule, in those cases where it applies, is simply to settle whether there has been a conversion or not. If from other circumstances it is clear that the tort has been committed, the question needs no further settlement, and the court moves on to whatever other questions are in the case." See also Bures v. First National Bank, Port Lavaca, 806 S.W.2d 935, 938 (Tex.Civ.App.-Corpus Christi 1991, no pet.) ("We recognize the rule that a demand and refusal is usually required to establish -69- conversion if possession is acquired lawfully; however, there are exceptions. II ); McVea v. Verkins, 587 S.W.2d 526, 531 (Tex.Civ.App.- Corpus Christi 1979, no writ) ("demand and refusal are not required after the conversion has become complete, or where it is shown that a demand would have been useless"); Loomis v. Sharp, 955, 958 (Tex.Civ.App.-Texarkana 1975, writ dism'd) 519 S.W.2d ("refusal and demand are not necessary when the circumstances and the acts of the possessor authorize a finding, as they do here, of a clear repudiation of the owner's rights and are tantamount to a refusal after demand"); Neyland v. Brammer, 73 S.W.2d 884, Galveston 1933, writ dismissed) 888 (Tex.Civ.App.- ("any necessity for a demand had been obviated; the conversion having become complete") . PEP's contention that Plains Marketing's purchase and subsequent sale of the allegedly stolen condensate was not wrongful until PEP informed Plains Marketing of interest lacks support in Texas law. its superior ownership As recognized by the court in Sandford, 1884 WL 8120, *1, [i]t is settled law that no man can be divested of his property without his consent, and, consequently, even the honest purchaser under a defective title cannot hold against the true proprietor. With regard to sales of personal property, the rules of law with regard to market overt, as known to the common law, do not apply in this state. See also Olin, that one wrongfully. who 673 S.W.2d at 216. takes property The corollary to this law is without title takes property See Cotten v. Heimbecher, 48 S.W.2d 402, 405 (Tex.Civ. App.-Amarillo 1932, no writ) ("Since . . . neither Bowman nor Aetna -70- Company had any acqui title to the tile, the and t appropriation thereof by Cotten and his second contractors was wrongful and in such case a demand is not a condition precedent to the right established Texas law so acknowledged but Marketing PEP's did that one who purchases relied upon by PEP contention not accrue its compensation that until stolen its PEP against demanded property efing. 64 in its claims and stolen is not only takes the property without tit property from a Therefore, holding long The existence conversion] ."). to sue return Plains of or endants the unreasonably refused that demand has no merit. The Texas Supreme Court has explained that [t]he test to determine when the statute of limitations begins to run against an action sounding in tort is whether act causing the damage does or does not of itself constitute a legal injury, that is, an ury giving se to a cause of action because is an invasion some right of plaintiff. Atkins, 417 exception S.W.2d at to s 153. general tortfeasor's Texas rule in courts have conversion zed an cases where a possession is lawful - for example, under a bailment contract in which case a claim for convers accrues when the true owner, or one claiming superior possessory rights, demands that the goods be returned and the tort return the property. 450 (5th r. 1966). refuses to Las Mendozas, Inc. v. Powell, 368 F.2d 445, But where a tort feasor originally gains 64PEP's Dispositive Motion, Docket Entry No. 492, p. 29. -71- possession of property without legal authority, by for purchasing stolen property from a thief or another person or entity without title, the legal injury occurs when the act of conversion is complete. Bodin v. Gulf Oil Corp., 707 F.Supp. 875, 884-85 (E.D. Tex. 1988) Nothing in Sandford contradicts this principle of Texas of law. On the contrary, Sandford expressly states that "[w]hen the possession of personal property is wrongfully acquired in the first instance, and is transmitted successively to a new conversion." each possession (3) Sandford, 1884 WL 8120, *1. Conclusions Applying long-established Texas law the court concludes that Plains Marketing arising from purchases of PEP's claims allegedly stolen condensate did not accrue when the condensate was originally s as Plains Marketing argues, and did not accrue upon demand for return and refusal as PEP argues. against Marketing accrued, a purchased and took possession of condensate because that is when instead, when Plains Marketing the allegedly Plains Market exercised dominion and control over the condensate and/or inconsistent with PEP's rights, legal inj ury . 65 Mayo, PEP's claims Mexican wrongfully denial of and when PEP suffered a 354 F.3d at 410i 951 S.W.2d at PEP's Opposition to Defendants' spositive Motions, Docket Entry No. 545, p. 23 (recognizing that "PEP's claims against a particular defendant accrued when PEP could have sued the defendant for a legal injury. That, of course, occurred at the earliest when the defendant exercised control over PEP's property.") . -72- 391; Atkins, 417 S.W.2d at 153. S.W.3d 438, 450 See also Pipes v. Hemingway, 358 las 2012, no pet.) (Tex.App. (citing Autry v. Dearman, 933 S.W.2d 182, 193 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (recognizing that well settled Texas law holds that a conversion claim begins to run at the the limitations period time of conversion, because that Enters., is i. e., when at the time of the unlawful taking, injury 1 Inc., 930 S.W.2d 157, 166 occurs) i Rogers v. Ricane (Tex.App.-Amarillo 1996, writ denied) . (c) PIa Marketing's Purchases of Allegedly St Condensate Evidenced in Summary Judgment Record Barred Are The only evidence allegedly specific purchases by Plains Marketing of stolen condensate record consists of two motion that show PI contained in the invoices attached to summary judgment PEP's dispositive Marketing purchased "Crude Oil" from Kemco 2008. 66 in October and December Assuming that the "Crude Oil" Plains Marketing purchased from Kemco was - as PEP contends stolen condensate, claims arising from the purchases reflected on the two invoices are time barred because those purchases 1 occurred more than two years before May 29, 2011, the day PEP fi its Original Complaint which the court Marketing the Big Star Action, and the date to concluded that PEP's claims against back. Tex. Civ. Prac. & Rem. Code § 16.003. 66Invoices, Exhibit 36 to PEP's Dispositive Motion, Entry No. 493-24. -73- Docket Citing Pan American Petroleum Corp. v. Orr, 319 F.2d 612, 617 (5th Cir. 1963), that scovery the expressly " 67 and rule to conversions by a applies Texas's di argues t PEP asserts that "the Fifth rule applies to running de of had sufficient facts to support claims against limitations until the individual defendants including, inter alia, Plains Marketing. ies to In support of its argument that the discovery s action including, claims asserted in arising to claims from Plains Marketing's purchases of allegedly stolen condensate, PEP argues that this case is permeated with fraudulent and conduct des to launder the condensate and source and the scheme itself hidden-bribery and s to PEMEX empl and border guards, falsif of export documents on PEMEX letterhead, fraudulent mislabeling product to avoid detection. 68 PEP's citation to with fraudulent and contention that this case is permeated and deceptive conduct raises the issue of fraudulent concealment, not the discovery rule. (1) Fraudulent Concealment Does Not Limitations on PEP's Conversion Claims Defer Fraudulent concealment and the discovery rule are distinct concepts both procedurally and substantively. Oil, 932 F.2d at concealment is an 399. Unlike the discovery rule, rmative defense to the statute of 1 67PEP's Opposition to Defendants' Dispositive Mot Entry No. 545, p. 26. 6BId. at 28. -74- ions , Docket Id. that must be pleaded and proved by the plaintiff. Weaver v. Witt, 561 S.W.2d 792, 793 (Tex. 1977) (citing (per curiam)). In addition, [t]he plaintiff must prove that the defendant had actual concealed and a fixed knowledge of the purpose to conceal consti tute udulent concea the statute of limitations; rather I the plaintiff is VLJJ:;;.......,.J..e diligence to discover under a duty to exercise its cause of action. Id. Because PEP has not c any evidence showing that Plains Marketing concealed any had a Mere concealment does not t for purposes of tolling s fixed purpose to from PEP, or that Plains Marketing the wrongs alleged and, states in its pleadings instead, "PEP does not allege that Plains acted with intent or knowledge or that it was a part of any conspiracy, PEP has failed either to 1 Jl69 or raise facts capable of showing that the limitations period for its claims against Plains Marketing are subj ect to deferral because Plains Market ing fraudulently concealed facts from PEP. (2) The Discovery Rule Does Not Defer Limitations on PEP's Conversion Claims PEP has not cited and the court has not found any case in which a Texas court has applied the discovery rule the doctrine as opposed to concealment - to a case such as this which the defendant's initial possession of the property at was unlawfully as opposed to lawfully - 69First Amended No. 378, p. 16 , 81. Complaint (Big 75- acquired. Star Action), Docket Ent Exploration Co. v. Neel 982 S.W.2d 881 1 886 (Tex. 1998) l rule is applied to categories cases ~~~~~~~~~I 1 ed) writ cases: 126 S.W.3d 623 (discovery not to particular cases) l i 626-27 (Tex.App.-Beaumont 2004 1 (distinguishing between two classes of conversion one where defendant's initial possession of property was lawfully acquired and l another where cases where the defendant/s init acquired Elgin-Butler l Brick e. g. Co., case because defendants In this was possession of the property was lment I 834 Christi 1992, no writ) . unlawful. possession The discovery rule applies in conversion unlawfully acquired). lawful initial S.W.2d cases. 409 1 Hofland 414 v. (Tex.App.-Corpus scovery rule does not apply in this initial possession of I type case the claims property was accrued, and the limitations period began to runl when the legal injury occurred. Sunwest Bank of EI Paso v. Basil Smith Engineering Co., Inc., 939 S.W.2d 671, 674 (Tex.App. Paso 1996, writ denied) (discovery rule not applicable to injury caused by embezzelment}i Autry v. 933 1996, writ S.W.2d 182, denied) 192-93 (Tex.App.-Houston (discovery rule not [14th Dist.] applicable to cause of action for conversion of lawsuit proceeds subject to subrogation) 930 S. W. 2d at 166 (discovery rule not applicable conversion of oil and gas produced under void lease); Ayers Act No. 07-04-0383, 2006 WL 435026, at *2 applicable to toll lirnitat I i to Civil (discovery rule not until plaintiff learned identity of thief) . -76- Even if this were a case to which the discovery rule applied l that rule would not defer running of the limitations period for Marketing because PEP has PEp/s conversion claims against evidence capable of raising a neither alleged facts nor s issue. fact issue for trial on Because PEP has invoked the discovery rule as a means to avoid being barred by limitations l PEP scovery rule applies to this case is required to show that t l evidence capable of establishing and is also required to being put on inquiry notice. that PEP acted with dil Here l PEP alleges that it brought suit "within two years after PEP knew I or by the exercise reasonable diligence should have known l of the facts giving rise to PEp/s claims against the Defendants. Therefore I limitations have 'discovery rule. until it had I PEP "70 an tolled as to those claims by the that limitations should be tolled opportunity condensate had been st the responsible part to discover not only that its and converted but also the identities of s. Under Texas law all that is required to commence the running of limitations period is the discovery of an injury and its general cause, not the exact cause in fact and the specific part ible. See Russell l 841 S.W.2d at 344 n.3 ("limitations begin to run when the fact of injury is known, Moreno 787 S.W.2d at 351, I identified") . II not when the alleged wrongdoers are 974 S. w. 2d at 40 7CFirst Amended Complaint No. 378 p. 20 ~~ 109 112. (Big 1 -77 (discovery rule delays Star Action), Docket Entry accrual of cause of action until plaintiff knew or should have known of its injury, not Al ternati vely, identity of the wrongdoer) . the discovery rule does not apply to defer limitations for PEP's claims against Plains Marketing because both PEP's injury and its PEP filed suit against cause were known by PEP long before ains Marketing. The extent of PEP's knowledge is evidenced by PEP's responses to Plains Marketing's interrogatories: INTERROGATORY NO.1: Wi th respect to each instance in which Plains purchased or received Natural Gas Condensate that you believe was stolen from PEP . . . identify the following: c. The date on which you discovered that the Natural Gas condensate was stolen; PEP first scovered in or around May 2011 that Plains had purchased condensate that was stolen from Mexico. As explained in its Answer to Interrogatory No. 1 (a) PEP does not, and cannot, know when each barrel of stolen condensate purchased by PI ns was stolen from Mexico. I To the best of PEP's knowledge, PEP learned of some, but not I, of the thefts wi thin days of the individual incidents of theft. There are however almost certainly incidents of theft that PEP still has not uncovered. PEP was aware in general that was a victim of theft - without knowing the full extent of the thefts by at least 2006.71 71pEP's Second Supplemental Answers and Objections, Exhib to PEP's Dispositive Motion, Docket Entry No. 493-31, p. 4. -78- 43 d. The volume of Natural Gas Condensate purchased or received; Quantified Purchases PEP's information to date shows that Plains purchased approximately 100,888 known barrels stolen condensate from STUSCO and Kemco Resources, valued at $7,920,079. of Plains' t 1 shows PEP's current knowl stolen condensate from Kemco Resources. purchased approximately 84,394 barrels stolen condensate from Kemco, valued at $6,991,601. Exhibit 2 shows PEP's current knowledge ains' purchases of stolen condensate from STUSCO. Plains purchased approximately 16,490 barrels stolen condensate from STUSCO, that STUSCO had purchased from JAG , valued at $928,478. The date on which you discovered that Plains . . . had come into possession of the Natural Gas Condensate; i . PEP discovered in or around May 2011 that Plains had purchased stolen condensate. j. Each individual or entity that had possession or ownership of the Natural Gas Condensate from the time of its alleged theft in Mexico until it was sold or transferred to Plains . . . All the condensate sold to Kemco by F&M had been purchased by F&M from Continental Fuels. Although Continental s' records are incomplete and unclear, Continental's President, Tim Brink, confessed to trading in stolen goods, and in his sworn deposition confirmed [th]at all condensate purchased and sold by Continental was form Mexico, was purchased without title, and was stolen. All of Continental's records known to exist have been produced. -79- Al though Y Gas & Oil's records are incomplete, Arnoldo Maldonado, Y Gas & Oil's owner, confessed to trading in stolen goods, and in his sworn deposition confirmed [th]at all condensate purchased and sold by Y Gas & Oil was from Mexico. All of Y Gas & Oil records known to exist have been produced. 1. Each individual or entity to whom Plains transferred possession of the Natural Gas Condensate; and Plains sold the stolen condensate to Valero. m. The dates on which Plains possession of the Natural Gas Condensate. transferred Plains transferred the stolen condensate to Valero shortly after Plains' purchase from suppl 72 INTERROGATORY NO.6: Describe how you, or any individual or entity acting on your behalf, discovered that Plains . . . had possession of Natural Gas Condensate stolen from PEP. In your answer, include the identity of the individuals involved in the discovery and the date on which the discovery occurred. ANSWER: . PEP discovered in or around May 2011 that Plains had been purchasing stolen condensate. The discovery was made by analyzing instant message and other transcript s, all of which have been produced to all defendants. Counsel PEP also obtained this information by speaking with Josh Crescenzi in May 2011.73 72Exhibit 43 to Plaintiff's Dispositive Motion, Docket Entry No. 493-31, pp. 3-4. 73PEP's Second Supplement Answers and Objections, Exhibit 43 to Plaintiff's spositive Motion, Docket Ent No. 493-31, p. 16. -80 PEP's answers to Plains Marketing's interrogatories and the exhibits presented by PEP in support of its Dispositive Motion show that (1) PEP was aware that its condensate was being stolen by at least 2006; (2) PEP learned of some, within days of the individual but not all, incidents of of the thefts theft; (3) Plains purchased allegedly stolen condensate from Kemco in October and December of 2008;74 (4) Plains sold the stolen condensate to Valero; and (5) Plains transferred the stolen condensate to Valero shortly after purchasing it. Al though PEP contends that it did not discover that Plains Marketing had purchased and sold its stolen condensate until May of 2011, and that PEP made this discovery by analyzing instant messages and other transcripts and by having its counsel talk to Josh Crescenzi, PEP present any evidence from which a fails either to argue reasonable or fact-finder could conclude that despite knowing since 2006 that its condensate was being stolen in Mexico and converted in the United States, PEP did not and could not have learned facts that would have entitled it to bring suit against Plains Marketing before May of 2011. In Childs, 974 S.W.2d at 40, the Texas Supreme Court held that even under the discovery rule once a person "discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another," a 74Exhibit 36 to PEP's Dispositive Motion, Docket Entry No. 49324. -81- plaintiff does not know the cause of action accrues, "even if exact identity of the wrongdoer. that II subsequent purchasers of its discover the identities of all condensate or mixtures thereof until over two years after the limitations from running. conversions occurred did not Russell, 841 S.W.2d at 344 n.3. The court has concluded Marketing condensate. accrued conversion) . PEP's conversion claims against when Marketing PEP's knowledge of United States l limitations because purchased the s shortly after they occurred, and knowledge that its the See Steinhagen, 126 S.W.3d at 626 (applying this rule to a claim Plains PEP did not was being converted by sale in is sufficient to trigger by PEp/s own admissions - the running of PEP was aware of its injury and the cause at or near the time of the conversions. Moreover l although PEP contends that it did not learn that Plains Marketing purchased and sold its stolen condensate until May of PEP has failed ei to argue or to present any evidence from which a reasonable finder could conclude that had PEP exercised reasonable dil PEP could not have discovered Plains 2011 1 Marketings I purchases wi thin the two-year period following the dates on which defers accrual until operate to toll the time as plaintiff purchases occurred. The discovery rule only discovery of the inj ury i it does not of the limitations period until scovers all of the elements of a cause 82- See Bayou Bend Towers Council of Co-Owners v. Manhattan action. 866 S.W.2d 740, 1993, C. 743 (Tex.App.-Houston [14th Dist.] denied) . BASF Corporation and BASF FINA Petrochemicals L.P. PEP first asserted claims against BASF on June 7, 2010, when its Original Complaint (Docket Entry No.1) in the BASF PEP fi Action, Civil Action No. H-10-1997. PEP added BASF FINA Petrochemicals Limited Partnership ("BFLP") as a defendant when it filed its Third Amended June 17, 2011. Complaint (Docket Entry No. 220) PEP's Third Amended Complaint alleges that 59. BASF is the self described "world's leading chemical company" with world-wide operations and more than 100,000 employees. In Port Arthur Texas, BASF through BASF FINA operates the world's largest steam BASF is an end user of condensate in its chemical operations. 60. BASF purchased condensate, without knowing it was stolen. 61. PEP does not allege knowledge or that 62. Between April 2007 and March 2009, BASF purchased more than $44 million of stolen PEP condensate. The stolen condensate was purchased directly from Trammo Petroleum Corp. Trammo Petroleum has admitted in a related criminal proceeding it acquired the condensate illegally, knowing was stolen property. 63. According to information provided by Trammo Petroleum Corp., BASF Sabon LT std made the following purchases stolen condensate: apparently BASF acted with intent or was a part of any conspiracy. -83- on Trammo Petroleum's Source Date Barrels Cost per Barrel Total Price Continental Sales April 2007 15,430 $66 $1,016,521.00 May 2007 19,981 $65 $1,306,886.00 June 2007 31,332 $70 $2,185,207.00 July 2007 19,729 $79 $1,567,753.00 August 2007 39,984 $77 $3,072,683.00 September 2007 9,926 $85 $840,846.00 October 2007 19,874 $90 $1,790,189.00 November 2007 30,082 $100 $2,997,744.00 August 2008 4,932 $112 $554,279.00 May 2007 19,577 $65 $1,280,403.00 June 2007 8,408 $70 $586,443.00 July 2007 39,435 $78 $3,084,323.00 August 2007 22,214 $77 $1,707,111.00 September 2007 29,693 $83 $2,477,979.00 October 2007 21,084 $90 $1,903,966.00 November 2007 9,971 $100 $993,677.00 December 2007 12,121 $97 $1,171,356.00 February 2009 16,038 $43 $689,769.00 March 2009 19,803 $52 $1,034,872.00 March 2009 14,464 $52 $749,341.00 March 2007 38,421 $62 $2,387,748.00 May 2007 83,155 $65 $5,436,642.00 October 2007 38,955 $91 $3,554,123.00 December 2008 24,021 $47 $1,118,671.00 February 2009 16,813 $44 $737,976.00 Murphy Energy Petro Source, predecessor of High Sierra Crude Oil & Marketing, LLC Total 64. $44,246,508.00 None of BASF's purchases carried title from Mexico or from PEP. -84- 65. Based on BASF has refused to return PEP's condensate or to reimburse PEP for the condensate BASF received without title or right. 75 allegations PEP asserts claims against BASF Corp. and BFLP for conversion and for equitable relief based on of money had and received and unjust enrichment. 76 BASF and BFLP argue that they are entitled to summary judgment on all of PEP's claims because (1) PEP's money had and received and unjust convers chment claims fail as a matter of law; (2) PEP's claims against BASF fail as a matter of law because BASF never exercised dominion or control over the condensate at issue; all of the complained of transactions were with BFLP, not BASFi (3) BFLP was a good-faith purchaser that obtained good title to the hydrocarbons it purchased; (4) PEP cannot meet its burden under Texas law to show that the hydrocarbons purchased by BFLP are the identi hydrocarbons allegedly stolen from PEP; (5) claims arising from any of BFLP's alleged purchases of stolen Mexican condensate that occurred before June 7, 2008, are time barred. 77 BASF and BFLP also argue that [o]ther than the two 2008 transactions and the February 2009 transaction . all the [ alleged] transactions 75Third Amended Compl ~~ 60 65. Docket Entry No. 220, pp. 10-12 76Because PEP does not allege that either BASF or BASF FINA is a "Conspiring Defendant, /I PEP has not asserted a claim for constructive trust against these defendants. 77BASF Corporation and BASF FINA Petrochemicals Limited Partnership's Motion for Summary Judgment ("BASF and BFLP's MSJ") , Entry No. 489, pp. 3 5. -85 are either time-barred on their face or have judicially admitted as being fully restituted. 78 PEP responds defendants that named in been this action, including inter alia BASF and BFLP, are not entitled to summary judgment because the claims for equitable reli do not fail act as a matter of law, the asserted in this fendants did not obtain good title to the stolen hydrocarbons that they purchased, PEP not show that the hydrocarbons purchased and sold by the defendants are the identical hydrocarbons stolen from PEP, and claims arising from alleged purchases that occurred more than two years before PEP filed time barred. 79 against any of the defendants are not PEP also responds that even if BFLP and not BASF purchased the stolen condensate, BASF can still be held liable BFLP's purchases because BFLP had no employees, all of its operations were run by employees of two joint venture partners BASF and Total Petrochemicals - and BASF employed the individuals who arrange for the purchases at issue. Bo 1. BASF and BFLP Are Entitled to Summary Judgment on PEP's Equitable Claims for Unjust Enrichment and Money Had and Received Citing Bank of Saipan v. CNG Fin. Corp., Cir. 2004), for 7Bld. principle that a 380 F.3d 836, 840 aim for money had and at 6. 79PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545. BOld. at 38-39. -86- received ses when the defendant obtains money that in equity and belongs to the plaintiff , BASF and BFLP argue that good consc Is on its face because PEP/s money-had-and-received claim [in] s case , PEP alleges that Defendants were endusers condensate sold to it by Trammo. (See Dkt. No. 220 3d Am. Compl. ~ 59.) Because they were according to PEP/s own allegations , end-users , not lers , of allegedly stolen condensate Defendants do not have any money that they received , much less any money that in good conscience belongs to PEP. Accordingly PEP s claim for money had and received should be dismissed. 81 I 1 I I Quoting =-,==':::====1 I 832 S.W.2d at 411 for the principle that" [a] party may recover under the unjust enrichment theory when one person has obtained a benefit from another by fraud , duress , or BASF and BFLP argue that PEP ' s taking an undue advantage unjust chment claim fails on its face because I 1182 [i]n this case , PEP does not-and could not-allege that endants perpetrated any kind of fraud or duress on PEP , or that Defendants took undue advantage of PEP in legedly purchasing stolen PEP condensate. To the contrary, PEP specifically all s that "BASF [and BFLP] purchased stolen condensate apparently without knowing was stolen. (Dkt. No. 220 1 3d Am. Compl. ~ 60.) "PEP does not allege that BASF [or BFLP] acted with intent or knowledge [they were] part of any conspiracy. (Id. ~ 61.) PEP/s pleadings constitute binding admissions that Defendants acted without any to defraud or take undue advantage of PEP , and are no allegations to support a finding duress . . . . Accordingly, PEP/s unjust enrichment claim Is as a matter of law. 83 I 1I I II and BFLP/s MSJ , Docket Entry No. 489 82 at 23. 83 at 23-24. -87 1 pp. 22 23. Citing the Texas Court of Corpus Christi v. Appeals decision ln ==-::==== Heldenfels Bros., Inc., 802 S.W.2d 35, 40 (Tex.App.-Corpus Christi 1990), for its statement that "[u]njust occurs when the party sought to be charged wrongfully secures a benefit vely pa or fraudulent intent one which would be ," PEP argues that defendants' lack unconscionable for him to of receives does not prejudice the viability equitable claims for unjust enrichment and money had and its 84 that it owns its proportionate PEP argues that if it "is of a commingled mass, and cannot prove the technical tracing needed for conversion, PEP could still recover under an unjust chment theory. 1185 PEP has neither alleged nor produced evidence of any facts capable of establishing claims for unjust enrichment or money had and received against BASF or BFLP. Based on the facts in PEP's Third Amended Complaint and contained in the summary judgment record, the court concludes that PEP's only claim against BASF and BFLP is for conversion. dominion and control inconsistent with, Conversion is the wrongful over 's property in denial the other's rights. Bandy, 835 S.W.2d at 622. PEP Mayo, se of or 354 F. 3d at 410; leges and cites evidence it contends establishes that BASF - or BFLP acting on BASF's behalf - 's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, p. 37. -88- purchased condensate from Continental Fuels, and Murphy that Petro Source that was stolen from PEP and that BASF condensate in its chemical operations. A party who purchases and then uses stolen property is subj ect to a See Parker v. Kangerga, 482 S.W.2d 43, 47 conversion. er App. applying 1972, writ ref'd n.r.e.) removing timber guilty of conversion. ") . PEP alleges that all defendants 1 1 ("In (Tex.Civ. Although including inter alia BASF and "profited from their improper dominion of PEP ' s property they hold money belongs to PEP, 1186 and ter it had been severed from the to their own uses land, said parties were . BFLP cause of action for I and in equity and good conscience PEP has failed either to allege any s or to present any evidence capable of proving that BASF or BFLP profited from its use of PEP/s condensate or received money that in equity and good conscience belongs to PEP. Accordingly, these are on entitled to summary judgment PEP ' s fendants claims unjust enrichment and money had and received. 2. BASF Is Not Entitled to Summary Judgment on PEP ' s Conversion Claim on Grounds That It Never Exercised Dominion or Control Over PEP/s Condensate BASF argues that it is entitled to summary judgment because it has conclusively established that it never exerci cont over PEP's condensate. dominion or In support of this argument 1 BASF that rd Amended Compl 1 Docket Entry No. 220 89- 1 p. 34 ~ 193. all of the condensate that PEP alleges BASF purchased "directly from Trammo" was purchased by BFLP as the "BUYER. (Dkt. No. 220, 3d Am. Compl. ~ 63.) Trammo and BFLP, a j oint venture between BASF and Total Petrochemicals & Refining USA, Inc., entered into a master contract, called a Crude Oil Sale Confirmation, to govern the sale of "crude oil and condensate" by Trammo. (See, e.g., Ex. 57, Oct. 2, 2006 Crude Oil Sale Confirmation between Trammo and BFLP.) The contract identifies the "Buyer" as BFLP and specifically provides that delivery shall be "into Buyer's or Buyer's assignee's designated carrier at the deliver point (the 'Delivery Location') (A) and (B) into BFLP leased tankage at Sun Nederland." (Id. at 1, 5.) II BASF has made the distinction between itself and BFLP known to PEP since BASF filed its Original Answer. (See Dkt. No.5, BASF Answer and Cross-Claims ~ 3 ("BASF denies that it purchased condensate for use in its Port Arthur, Texas plant: that plant is an asset of the BASF FINA Petrochemicals Limited Partnership.") And, BASF continues to assert the corporate separateness of BASF and BFLP as a defense to PEP's claims. (See Dkt. No. 229, BASF Answer to 3d Am. Compl. and Cross-Claims at 41 (asserting as its "Third Defense" that "Plaintiff's claims against BASF are barred because BASF is not a condensate purchaser from, or counterparty to any condensate purchasing agreements with, any other defendants.") . ) To the extent any BASF employees made purchases of condensate, they did so on behalf of and for the benefit of BFLP. 87 Citing the deposition of BASF employee, David Zani, PEP responds that BASF is not entitled to summary judgment on its conversion claim because Zani negotiated and arranged for purchases of stolen condensate. the Zani also testified that all of his purchases were made on behalf of BFLP, a joint venture between 87BASF and BFLP's MSJ, Docket Entry No. 489, pp. 37-38. -90- BASF and Total Petrochemicals that had no employees of its own. 88 BASF does not dispute that Zani was its employee, that he arranged for the condensate purchases employees of its own. at issue, or that BFLP had no Instead, BASF argues that because Zani's purchases were all made on behalf of BFLP, that BASF cannot be held liable for those purchases unless partner of BFLP. of Texas cases PEP sued BASF as a general In support of this argument, BASF cites a number as standing for the principle that Texas law requires a plaintiff suing under an alter ego theory to separately plead each basis for disregarding the corporate fiction. 89 The court is not persuaded that this argument has merit because the cases that BASF cites are either distinguishable, i.e., at issue are debts or other contractual obligations, or not supportive of BASF's argument. For example, in No Barriers. Chili's Tex .. Inc., 262 F.3d 496, 499 stated that "Texas law requires that, Inc. v. Brinker (5th Cir. 2001), the court to impose liability on a general partner of a limited partnership, the plaintiff must plead and prove a cause of action against that entity in its capacity as the general partner, capaci ty in which II the but that statement was dicta because the defendants had been sued had not been 88Deposition of David R. Zani, Exhibit 59 to PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 546-31, pp. 9-11. 89Defendants' Reply in Support of Motion for Summary Judgment, Docket Entry No. 580, pp. 24-25. -91- challenged. since the undisputed summary judgment evidence is that zani was responsible for issue and that Zani was iating and arranging the purchases at employed by BASF, the court is not persuaded that BASF is entitled to summary judgment even if Zani made the purchases on behalf of BFLP. 3. BASF and BFLP Are Not Entitled to Summary Judgment on PEP's Conversion Claims as Good-Faith Purchasers Citing Texas common law and the Texas Business and Commerce Code § and asserting that PEP has failed to produce any 2.403 evidence tying the hydrocarbons purchased by BASF and/or BFLP to any theft, BASF and BFLP argue that they are entitled to summary judgment on PEP's conversion hydrocarbons for value and, claims because BFLP purchased fore, received good title to the hydrocarbons as a good-faith purchaser for value. 90 In support of s argument BASF and BFLP argue that the undisputed evidence shows that they purchased the condensate at issue from Trammo in good ith and for valuable consideration without or constructive knowledge of any outstanding claims by a third-party. BASF and BFLP also argue that PEP has not alleged that e of them acted "with intent or knowledge or that it was part any conspiracy. 1191 Thus, BASF and BFLP argue that they are ent led to 90BASF and BFLP's MSJ, Docket Entry No. 489, pp. 35 37. at 37 (citing Third Amended Complaint No. 220, p. 10 , 61) . 92- I Docket Entry summary judgment on PEP's conversion claims because PEP cannot prove that PEP had superior title or right of possession to property at issue. A bona fide purchaser for value has an affirmative against a conversion claim. burden of is suff a Carter, 271 S.W.3d at 858 & n.3. firmative party asserting an defense Quantum Chemical iently plead and prove the defense. It to 47 I The court is not persuaded by BASF and BFLP's S.W.3d at 478. contention that they are entitled to summary judgment as good-faith purchasers for value under either the common law of Texas or V.C.C. because they have failed to cite any evidence capable establishing that the condensate they purchased was not stolen. Moreover PEP I for the reasons explained below, the court concludes that submitted evidence capable of establishing that condensate BASF and BFLP purchased from Trammo was stolen. If, as PEP contends, the condensate that BASF and BFLP purchased from Trammo was stolen, BASF and BFLP would not quali as good- ith purchasers value under ei Texas or the V.C.C. because no one in the chain the common law title following a thief could transfer good title to a subsequent purchaser I BASF or BFLP. Texas law is well settled that one who purchases stolen propertYI no matter how innocently, acquires no title to propertYi title remains in the owner. S.W.2d 144, 146 (Tex. 1945) See McKinney v. Croan l 188 (\\[I]t is well settled that one in 93 - rightful possession of personal property may maintain an action for its recovery against a thief or one holding under him. II) ¢ policy supporting it has been aptly e of Texas law and princ stated many times. ~====~=' This See Sinclair Houston Federal Credit Union v. 268 S.W.2d 290, 295 (Tex.Civ.App.-Galveston 1954, writ ref'd n.r.e.) ("The general rule is that the owner of stolen property can recover it or its value from anyone who has received exercised dominion over it. II) i Olin, 673 S. W. 2d at 214 (rule that one who purchases stolen property from a thief, no matter how innocently, acquires no t Ie, places the responsibility ascertaining true ownership on the purchaser) . S.W.3d § at IV. B. 2, 614, above, and discussion where by Plains Market to the of court the Benjamini, 2 U.C.C. rej ected of requirements the same in argument Because BASF and BFLP have failed ish that the condensate they purchased was not stolen, their argument that they are entitled to summary judgment on PEP's conversion claims because are good-faith purchasers for value has no merit. 4. Conversion Claims Arising from Purchases that Occurred Before June 7, 2008, Are Time Barred Citing the two-year statute of limitations provided by Texas I Practices and Remedies Code § 16.003(a), BASF and BFLP argue that PEP's conversion claims arising from purchases of allegedly stolen condensate that occurred prior to June 7, 2008, i.e., more - 94- than two years before PEP filed suit on June 7, 2010, are time barred. 92 PEP responds that the claims asserted against BASF and BFLP are not t barred because they did not accrue until PEP demanded return of and/or compensation for its condensate, and defendants had a reasonable time to investigate that demand. PEP argues discovery that its claims are not time § Alternatively, barred because the and/or the doctrine of fraudulent concealment toll the limitations period for these claims. 94 in 93 IV.B.4(b), above, the court has al For the reasons stated concluded that the 92In reply brief (Docket Entry No. 580 at pp. 11-14), BASF and BFLP argue for the first time that the conversion claims asserted against BFLP in PEP's Third Amended Complaint do not relate back to the filing of PEP's Original Complaint because PEP has not substituted BFLP for BASF but, instead, simply added BFLP as a defendant. Defendants argue that Rule 15(c) (1) (C) does not apply when a party adds a new defendant instead of substituting a misidentif defendant. The court will not consider this argument because in addition to being raised the first time in defendant's reply brief, it conflicts with the relief requested in their motion for summary judgment where defendants argue only that claims arising from transactions that occurred prior to June 7, 2008, are time barred. See Docket Entry No. 489, p. 8. Moreover, even if court were to consider this argument, the court would grant PEP's request to add BFLP for largely the same reasons that the court previously allowed PEP to add ains Marketing as a party defendant over similar objections from Marketing and Plains All-American Pipeline. See Memorandum Opinion and Order, Docket Entry No. 377, pp. 22-25. 's Dispositive Motion, Docket Entry No. 492, pp. 30 31; PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, pp. 22-25. 's Dispositive Motion, Docket Entry No. 492, pp. 30 31; PEP's Oppos ion to Defendants' Di tive Motions, Docket Entry No. 545, pp. 25 28. -95- ions conversion claims asserted in this action accrued and I stolen For condensate. the legedly defendants purchased started to run on the dates that reasons stated court below, concludes that neither fraudulent concealment nor the discovery the limitations period from running on PEP's conversion rule claims against BASF and BFLP. PEP's Third Amended Complaint contains a long list of allegedly stolen condensate that BASF made from Trammo purchases Petroleum. The list identifies dates the purchases were made, the quantity of condensate purchased, and the price paid. The majority of these transactions occurred in 2007 and are, therefore, time barred because they occurred more than two years be PEP filed PEP t on June 7, 2010. Citing Orr, 319 F.2d at 617, asserts that "the Fifth Circuit expressly applies Texas' s rule to conversions by a thief, rule appl sufficient s to facts defer to defendants including, ~~~~~~, action including, of limitations claims support argument that the discovery and argues that the discovery ,,95 running scovery against BASF and BFLP. until the claims In support of its arising purchases of allegedly stolen condensate, PEP had individual applies to claims assert to it from in this BASF's that s case is permeated wi th fraudulent and deceptive conduct designed to launder the condensate and keep its 's Opposition to Defendants' Disposit Entry No. 545, p. 26. 96- Motions, Docket source and the scheme itself hidden bribery and threats to PEMEX employees and border guards, falsification of export documents on PEMEX letterhead, fraudulent mislabeling of the product to avo detection. 96 PEP's citation to Orr and contention that this case is permeated with fraudulent and deceptive conduct raises the issue of fraudulent concealment, not the discovery rule. (a) Fraudulent Concealment Does Not Defer Limitations on PEP's Conversion Claims As explained in is an firmative § IV.B.4(c) (1), above, fraudulent concealment defense to the statute of limitations that requires the plaintiff to prove that the defendant had actual knowledge of the facts allegedly concealed and a purpose to conceal the wrong. Mere concealment does not constitute udulent concealment for purposes of tolling the statute of limitations; rather, the plaintiff is under a duty to exercise reasonable diligence to discover its cause of action. Matter of Placid Oil, 932 F.2d at 399. PEP has neither alleged nor ci ted any evidence ishing that capable of BASF or BFLP concealed any facts from PEP or had a fixed purpose to conceal wrongs does not leged. 1 Instead, PEP states in its pleadings that "PEP that BASF acted with intent or knowledge or that it was a of any conspiracy.n9? to al or raise facts capable 96 PEP has .therefore failed e showing that the limitations at 28. 97Third Amended Complaint, Entry No. 220, p. 10 , 61. 97 its claims against BASF or BFLP are subject to deferral period because either of them fraudulently concealed facts from PEP. (b) tations on The Discovery Rule Does Not Defer PEP's Conversion Claims As explained in IV. B. 4 (c) (2), above, PEP has not c § ed and the court has not found any case in which a Texas court has applied the scovery rule - concealment - fraudulent as opposed to the doctrine to a case such as this in which the defendant's possession of the property at issue was unlawfully - init opposed to lawfully (discovery rule particular cases) is i acquired. applied See HECI, to categories of S.W.2d at cases, Steinhagen, 126 S.W.3d at 626-27} ing between two classes of conversion cases: init 982 not as 886 to (distinguish- one where defendant's possession of property was lawfully acquired and another where initial possession was unlawfully acquired). Conversion cases to which the discovery rule has been applied are cases where the fendant's initial possession of the property at issue is lawfully acquired, e.g., bailment cases. See =======, 834 S.W.2d at 414. The discovery rule does not apply to this case because it belongs to the class of cases where possession of the property was unlawful. the defendants' initial In this type of case the claims accrued and the limitations period began to run when the legal injury occurred. Sunwest Bank, 939 S.W.2d at 674 (discovery rule not applicable to injury caused by embezzelment) ~==~, i 933 S.W.2d at 192-93 (discovery rule not applicable to cause 98- of action for subrogation); conversion Rogers, 930 of lawsuit S.W.2d at proceeds 166 subject (discovery to rule not applicable to conversion of oil and gas produced under void lease) . Ayers, Civil Action No. 07-04-0383, 2006 WL 435026, at *2 (discovery rule not applicable to toll limitations until plaintiff learned identity of thief). Even if this were a case to which the discovery rule applied, that rule would not defer running of the limitations period for Because PEP has PEP's conversion claims against BASF and BFLP. invoked the discovery rule as a means to avoid being barred by limitations, PEP is not only required to show that the discovery rule applies to this case, but also to present evidence capable of establishing that inquiry notice. PEP acted with diligence after being put on Here, PEP alleges that it brought suit "within two years after PEP knew, or by the exercise of reasonable diligence should have known, of the facts giving rise to PEP's claims against the Defendants. those claims limitations Therefore, by the should be limitations have been tolled as to 'discovery tolled rule.,"98 until it had PEP an argues that opportunity to discover not only that its condensate had been stolen and converted but also the identities of the responsible parties. under Texas law all that is required to commence the running of the limitations period is the discovery of an injury and its general cause, not the exact cause in fact and the specific parties 98 I d . at 3 2 ~ 177 . -99- 841 S.W.2d at 344 n.3 responsible. begin to run when the at 351 t injury is known t ("limitations 787 S. W. 2d Moreno t It not when the alleged wrongdoers are identified tt ) i 974 S.W.2d at 40 (discovery rule delays accrual of cause of action until plaintiff knew or should have known of its injurYt not the identity of the wrongdoer). The discovery rule does not apply to defer limitations for PEpts claims against BASF and BFLP because both PEpts injury and its general cause were known by PEP long before PEP filed suit against these defendants. PEpts knowledge that had been injured by the conversions of gas condensate in the United Sates is evidenced by PEpts responses to the following requests admissions: REQUEST FOR ADMISSION NO. 11: Admit that you were aware from you was being sold 2007 that condensate stolen the U.S. market. RESPONSE TO REQUEST FOR ADMISSION NO. 11: [Subject to objections] . . . this request for admission is ADMITTED. 99 This admission establishes that condensate was being sold in 2007. PEP was aware that United States at least as stolen as PEP fails either to argue or to offer any evidence from which a reasonable fact finder could conclude that despite knowing s 2007 that its condensate was being stolen in Mexico and converted in the United States t PEP did not and could not have 99Plaintiff PEpts Responses to BASF Corporationts Requests for Admission ("PEP t S Responses to BASF t S Requests for Admission tt ) t Exhibit 8 to BASF and BFLpts MSJ t Docket Entry No. 489-9 p. 7. t -100 learned facts that would have entitled it to bring suit against BASF before June of 2010. In Childs, 974 S.W.2d at 40, the Texas Supreme Court held that even under the discovery rule once a person "discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another," a cause of action accrues "even if the plaintiff does not know the exact identity of the wrongdoer." PEP did not discover the identities of all of The fact that the subsequent purchasers of its condensate or mixtures thereof until more than two years after some of the conversions occurred did not prevent limitations from running. See Russell, Steinhagen, 126 S.W.3d at 626 841 S.W.2d at 344 n.3; (applying this rule to a claim for conversion) PEP's knowledge that its condensate was being converted by sale in the United States is sufficient to trigger the running of limitations because - by PEP's own admissions - PEP was aware of its the injury and conversions. the See general cause at IV.B.4(c) (2), above. § or near time of the Moreover, PEP has failed either to argue or to present any evidence from which a reasonable fact-finder could conclude that had PEP exercised reasonable diligence PEP could not have discovered BASF's and BFLP's purchases within the two-year period following purchases occurred. the discovery of the dates on which those The discovery rule only defers accrual until the injury; it does not operate to toll the running of the limitations period until such time as plaintiff -101- a cause of action. discovers all of the elements Towers Council of Co-Owners v. Manhattan Const. Co. (Tex.App.-Houston 743 [14th 866 S. W. 2d 40 I writ Dist . ] I ed) . AccordinglYI the court concludes that the discovery rule does not apply to defer the running of limitations for PEp s l conversion claims against BASF and BFLP. 5. Whether PEP Can Trace Stolen Property to BASF and BFLP Is a Fact Issue for Trial As stated in § IV.B.3 1 above defendant liable for conversion order to hold any individual I PEP must trace condensate that was l actually stolen in Mexico to the individual defendant. evidence also from which a fact - finder PEP must could form reasonably certain estimate of the amount of stolen condensate each defendant converted. anYI 1055. Ortiz Oil l I a if 141 S.W.2d at amount of condensate converted is not required to proven with exact certainty =:'=':===-';;:=-=~::::"==..l.-I I only with reasonable certainty. 115 S. W. 2d at 1097. PEp s contention that "when l the defendants mixed PEp/s condensate with other hydrocarbons l PEP became owner of its proportionate share of the mixed product as a whole I Mexican not just 1,11100 the individual molecules that were drawn from does not absolve PEP from having to identify stolen condensate and trace it to the individual defendants. IS Reply in Support Entry No. 577, p. 3. Its Dispositive Motion, 102 Docket BASF and BFLP argue that they are entitled to summary judgment on PEP's conversion claims because PEP has no evidence that BFLP actually purchased Mexican condensate from Trammo, or that any Mexican condensate that BFLP purchased (if any) was the identical condensate stolen from PEP. PEP and its witnesses have admitted that PEP cannot trace any specific condensate stolen from PEP to any specific purchase of hydrocarbons by BFLP or any other defendant, and PEP has no other evidence to show that the hydrocarbons purchased by BFLP are the same barrels of condensate stolen from PEP. . As a result, PEP cannot satisfy its burden of proof and its conversion claims against BFLP should be dismissed. 101 In § IV.C.4, above, the court concluded that conversion claims asserted against BASF and BFLP arising from purchases made more than two years before PEP filed its Original Complaint are time barred. Thus, only six of the BASF purchases listed in PEP's Third Amended Complaint remain viable, i.e., one purchase in August of 2008 of condensate alleged to have originated from Continental Fuels; one purchase in December of 2008 of condensate alleged to have originated from Petro Source; two purchases in February of 2009, one of which allegedly originated from Petro Source and one of which allegedly originated from Murphy Energy; and two purchases in March of 2009 of condensate alleged to have originated from Murphy Energy. a The only evidence that PEP cites that would allow reasonable fact-finder to conclude that the six purchases of condensate that BASF and BFLP made from Trammo in 2008 and 2009 that are not time-barred were purchases of stolen condensate is cited in PEP's Dispositive Motion (Docket Entry No. 492). lOlBASF and BFLP's MSJ, Docket Entry No. 489, p. 24. -103- In its Disposi ti ve Motion PEP cites evidence capable of establishing that the condensate BASF purchased from Trammo was stolen Mexican condensate that Trammo acquired from defendants Continental Fuels and Murphy Energy. As condensate being sold by Continental Fuels, evidence that the including that which made its way to BASF in August of 2008 via Trammo Petroleum, was stolen from Mexico, PEP cites the deposition of Timothy Brink of Continental employee, Fuels. Josh Brink testified that Crescenzi, told him that purchasing was stolen from Mexico. 102 in July of the product 2008 his he was Brink also testified that once he looked closely at the paperwork documenting shipments of product that he bought from Mexico the number of discrepancies he spotted caused him to realize that the product was stolen .103 As additional evidence that the product being sold by Continental Fuels was stolen, PEP cites the transcript from the guilty plea of Arnoldo Maldonado, which included facts about the role that he and his company, Y Gas & Oil, played in supplying stolen Mexican condensate to Continental Fuels. 104 PEP also cites the guilty plea and the deposition of Trammo's president, Donald Schroeder, who not only confirmed that 102PEP's Dispositive Motion, Docket Entry No. 492, p. 4 (citing Deposition of Timothy Brink, Exhibit 10, Docket Entry No. 492-12, pp. 13 -14) . 103See PEP's Reply in Support of Its Dispositive Motion, Docket Entry No. 577, pp. 15-16 (citing Deposition of Timothy Brink, Exhibit 39 to PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 546-10, pp. 33-44). 104Id. (citing Exhibit 12 in Docket Entry No. 492). -104- Continental was dealing in stolen condensate, but also that Trammo sold to BASF the stolen Mexican condensate that it purchased from Continental Fuels. 105 During his guilty plea Schroeder admitted that the following facts stated by the Assistant United States Attorney were true: [V]arious companies imported Mexican condensate stolen from PEMEX into the United States. The stolen condensate was sold by these import companies to other U.S. companies such as the following companies: Continental Fuels, Murphy Energy Corporation, and Trammo Petroleum. These companies were in the United States. The companies just mentioned then sold the condensate to larger companies in the United States, such as the company BASF. The import companies sent semi-truck tankers loaded with stolen condensate from Mexico into the U.S. via border ports of entry. The import companies then directed the tanker trucks to deliver the condensate to U. S. companies like Continental Fuels, which was located inside the Port of Brownsville, Texas. The import companies were then paid by wire transfer to various accounts. Under the arrangement of this case in 2009, Continental Fuels paid the importers of the stolen Mexican condensate. Continental Fuels then stored the product until there was a sufficient quantity of condensate to load on a barge and deliver to an end user, which in this case was BASF. Generally, the condensate physically stayed with Continental Fuels, or at least in their tanks, until it was delivered to BASF, though the condensate was sold to intermediaries, such as Murphy Energy and Trammo Petroleum. One of the intermediaries, Trammo Petroleum, through arrangements made by Mr. Donald Schroeder, purchased the stolen Mexican condensate in 2009, which was ultimately sold to BASF. Mr. Schroeder, working through Trammo Petroleum, sold the stolen Mexican condensate in the barge operation beginning in January 2009 to BASF. 105PEP's guilty plea No. 492, pp. Docket Entry Dispositive Motion, Docket Entry No. 492, p. 5 (citing of Donald Schroeder, Exhibit 14-72 in Docket Entry 19-21; Deposition of Donald Schroeder, Exhibit 15 in No. 492, pp. 46-47). -105- As an example of this, on or about February 7th, 2009, Mr. Schroeder and others were responsible for the condensa te in loading a barge containing transported the Brownsville, Texas. The barge stolen condensate to Port Arthur, Texas where it was ultimately sold to BASF. Mr. Schroeder and others were responsible for the sale and barging of about 2 million [dollars] in stolen condensate in 2009, though the profits received by Trammo corporation were about 150,000. The United States can show that Mr. Schroeder had knowledge that the condensate transactions described above involved stolen condensate from Mexico through a of recorded conversations 2008 and 2009, ln which arrangements for the sale and transport were discussed. 106 PEP asserts, and BASF does not dispute, that documents from Trammo confirm that 1 but one of Continental's es to Trammo were sold to BASF .10 7 As additional evidence that the condensate purchased by BASF was stolen Mexican condensate, PEP c Energy' s Executive Vice- President I s the affidavit of Murphy Greg Westfall, who described purchases of Mexican condensate that Murphy made in 2009: 13. In early 2009, Donald Schroeder-the then-president of Trammo-contacted Murphy Energy via instant message (under the username "big_daddy77079 11 ) stating that condensate was about to start flowing across the United States border again at Brownsville, Texas. Schroeder states that, al though Continental Fuels Inc. had suppliers lined up, it did not have the cash liquidity to purchase the condensate on a daily basis. Schroeder asked whether Murphy Energy was interested in purchasing the condensate under the I I 106Transcript from Guilty Plea Donald Schroeder, Exhibit 14 72 to PEP's Dispositive Motion, Docket Entry No. 492-16, pp. 19 21. 's Dispositive Motion, Docket Entry No. 492. -106- same commercial conditions as before, except that the storage facility would be that owned by Continental Fuels, Inc. in Brownsville, Texas instead of the TransMontaigne facility previously used by Murphy Energy. Schroeder also informed Murphy Energy that Trammo would purchase the condensate delivered to Port Arthur, Texas under terms essentially the same as before. 14. Both Tim Brink, President of Continental, and Josh Crescenzi, Vice President of Operations of Continental, contacted Murphy Energy immediately the discussions with Schroeder and described the potential transaction in a similar way. 15. In 2009, follows: Murphy Energy purchased condensate as Date Purchase Price 9 17,745.29 $625,589.38 February 2009 30,276.04 $1,051,523.15 March 2009 20,854.34 $843,465.07 TOTAL: 16. Volume (Barrels) 68,875.67 $2,520,577.60 Murphy Energy sold the condensate it purchased in 2009 for a total of ,066,903.00. 108 BASF obj ects to Westfall's knowledge, but only testimony as not based on personal challenges Westfall's testimony that the condensate was stolen; BASF does not challenge Westfall's testimony about the details of Trammo's purchases from Continental and sales to BASF on which the court is relying here. 109 Although BASF and BFLP argue that "PEP cannot, however, prove that the hydrocarbons purchased by BFLP from Trammo consisted, in l06Declaration of Greg Westfall, Exhibit Dispositive Motion, Docket Entry No. 493-1, p. 3 21 2 to PEP's ~~ 13-16. l09Defendants' Reply in Support of Motion for Summary Judgment, Docket Entry No. 580, p. 23. -107- whole or in any identifiable part condensate I It 110 I of legedly stolen Mexican the evidence quoted above regarding BASF I s purchases of condensate from Trammo that originated with Continental Fuels and Murphy Energy is sufficient to create a fact issue for trial as to whether at least four of BASF/s non time barred purchases were purchases of stolen Mexican condensate. AccordinglYI the court concludes that BASF and BFLP are not entitled to summary judgment on PEp/s conversion claim on grounds that PEP is unable either to trace the stolen condensate to these defendants or to establish a reasonably certain estimate of the amount of stolen condensate I if anYI that they converted. 6. BASF and BFLP are Not Entitled to Summary Judgment on Transactions for Which PEP Has Received Restitution BASF and BFLP argue that they are entitled to summary judgment for the Trammo three complained of 2009 purchases of through Murphy Energy restitution for those purchases. because PEP condensate from has received full The transactions for which BASF and BFLP seek summary judgment are identified on the transaction table in PEp/s Third Amended Complaint as lows: Trammo Petroleum/s Source Date Barrels Cost per Barrel Total Price Murphy Energy February 2009 16,038 $43 $689,769.00 Murphy Energy March 2009 19,803 $52 $1,034,872.00 Murphy Energy March 2009 14,464 $749,341. 00 Total 110BASF and BFLP's MSJ $2 / 473 / 982.00 I Docket Entr Y No . 489 -108- I p. 29 . In support of this argument BASF and BFLP cite PEp/s sworn answer to Interrogatory No. 10 and PEp/s response to request for admissions BASF and BFLP argue 35 1 that they are entitled to summary judgment on the conversion claims arising from these three transactions because PEP has already received restitution for them from Trammo. In a sworn interrogatory answer / ll1 PEP stated that it received the following monies things of value restitution or settlement payments 1 or insurance payments with regard to condensate that was stolen from PEP 2007 1 2008 1 or 2009. Some or all of the stolen PEP condensate in question was ultimately purchased by BASF entity. 1 1 l payment on or About Payment Amount Payment Description August 10, 2009 $2,415,635.72 Cashier's check from Trammo Petroleum, Inc. June 18, 2010 $40,130.45 Check from the United States Treasury in payment of claim in civil forfeiture action related to defendant Continental Fuels, Inc. (Civil Action No. 09-cv1564, Southern District of Texas, Houston Division) August 2010 $118,109.28 Check from the United States Treasury in payment of claim in civil forfeiture action related to Sun Petroco, LLC and Luis Ariel Rivera (Civil Action No. 09-cv-286, Southern District of Texas, Houston Division) October 29, 2010 $1,000,000 Settlement Amount from Trammo Petroleum, Inc. In response to a request for admission dated January 19 1 2011 1 PEP stated: aintiff PEp/s Responses to BASF Corporation/s First Set of Interrogatories ("PEp/s s to BASF/s Interrogatories") Exhibit 1 to BASF and BFLP's MSJ, Docket No. 489-2, pp. 18-19 Interrogatory No. 10. 1 1 -109 REQUEST FOR ADMISSION NO. 35: Admit that you received $2.4 million in restitution for the $2.4 million of stolen condensate referenced in ~ 94(H) of the Complaint. RESPONSE TO REQUEST FOR ADMISSION NO. 35: [T]his request for admission is ADMITTED.1l2 On January 19, 2011, the live complaint in the BASF Action was PEP's Second Amended Complaint November 24, 2010. (Docket Entry No. 108) filed on Paragraph 94(H) of that complaint alleged: [oln or about January-March 2009, Donald Schroeder, Jr. and Trammo Petroleum and their co-conspirators knowingly arranged for Trammo Petroleum's sale of at least $2.4 million worth of stolen PEP condensate to Defendant BASF Corporation, knowing the condensate in question to have been stolen from PEP in Mexico. PEP does not allege that Defendant BASF knew that the condensate in question was stolen. 113 BASF's and BFLP's argument that they are entitled to summary judgment because PEP has already been compensated for at least three of the transactions for which they have been sued raises the applicability of Texas' one satisfaction rule to PEP's claims. "Under the one satisfaction rule, recovery for any damages a plaintiff is entitled to one suffered. II Crown Life Ins. Co. v. 112Plaintiff PEP's Responses to BASF's Requests for Admission, Exhibit 8 to BASF and BFLP's MSJ, Docket Entry No. 489-9, p. 18. 113Second Amended Complaint, Docket Entry No. 108, p. 27 ~ 94.H. See also Original Complaint, Docket Entry No.1, p. 24 ~ 88.H (same) i Amended Complaint, Docket Entry No. 59, p. 26 ~ 94.H (same) i and First Amended Complaint (Big Star Action), Docket Entry No. 378, p. 27 ~ 160.i (same) -110- Casteel, 22 S.W.3d 378, 390 (Tex. 2000) (citing Stewart Title Guar. Co. (Tex. v. Sterling, 822 S.W.2d 1, 7 "The 1991)). one satisfaction rule is grounds for summary judgment in cases in which (1) the one satisfaction rule applies, (2) the settlement credit entirely sets-off the maximum amount of liability claimed by the plaintiff, and (3) punitive damages are not an issue. 1I Nowak v. Pellis, 248 S.W.3d 736, 741 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (citing Cohen v. Arthur Andersen. L.L.P., 106 S.W.3d 304, 309-10 (Tex.App.-Houston [1st Dist.] 2003, no pet.)). The undisputed summary judgment evidence cited by BASF and BFLP shows that Trammo has paid PEP approximately $2.4 million, but that the amount PEP claims it is owed as a result of Trammo's sales of stolen condensate to BASF and BFLP is substantially more than the $2.4 million. Because Trammo's payment of $2.4 million to PEP does not entirely set-off the maximum amount of liability claimed by PEP, BASF and BFLP are not entitled to summary judgment on any individual transactions. The issue of allocation of settlement credits, if any, is an issue to be reached at trial, not on summary judgment. Accordingly, the court concludes that BASF's and BFLP's argument that they are entitled to summary judgment because PEP has already been compensated for damages caused by some of their purchases of stolen Mexican condensate has no merit. D. RGV Energy Partners LLC and F&M Transportation PEP first asserted claims against F&M Transportation in the Original Complaint filed on May 29, 2011, -111- in the Big Star Action (Docket Entry No.1) in Civil Action No. H-II-2019. PEP added RGV Energy as a defendant in PEP's First Amended Complaint in the Big Star Action filed on April 20, 2012 (Docket Entry No. 378). alleges that 70. F&M voluntarily joined the conspiracy to market and distribute stolen PEP condensate. 71. F&M played an important role in the US conspiracy. F&M both bought and sold condensate and also transported much of condensate bought and sold by other members of the conspiracy. 72. For example, F&M bought condensate from, and brokered contracts for, Continental Fuels, whose president has confessed its role in the illegal scheme, and Y Oil and Gas, operated by Arnoldo Maldonado, who also confessed to, and was convicted of, trafficking in condensate stolen from PEP. 73. F&M bought and sold at least $20 million dollars worth of stolen condensate. For example, in October 2008 F&M purchased 8,500 barrels of ~Petroleum Condensate" from Continental Fuels. F&M knew that it was purchasing stolen goods from Continental. F&M sold the condensate to Kemco Resources, Inc. (~Kemco"), which sold it to Plains, which sold it to Valero. F&M bought this stolen condensate for $539,000, and sold it for a substantial profit without informing its customer that the condensate was stolen. 74. F&M knew that the condensate it purchased and resold was stolen. In the alternative, F&M either consciously disregarded the fact that the condensate was stolen or should have known that the condensate was stolen. 75. As to each of its purchases and sales of PEP condensate, F&M committed at least the following acts in furtherance of the conspiracy: (a) defrauded the ultimate purchaser of the source and patrimony of the condensate in violation of state law and the federal mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343; (b) knowingly engaged in transactions involving -112- PEP stolen goods in violation of 18 U.S.C. §§ 2314 and 2315 and the Texas Theft Liability Act (or Tex. Civ. Prac. & Rem. Code § 134.001 .005i and (c) committed money laundering in violation of 18 U.S.C. § 1956. 76. F&M also provided transportation and brokerage services to the conspiracy knowing that the condensate it was transporting was stolen. While transporting the condensate, F&M took possession of stolen condensate, knowing it was stolen. In the ternative, F&M either consciously disregarded the fact that the condensate was stolen or should have known that the condensate was stolen. For example, in February 2009, F&M transported more than 21,000 gallons of "petroleum distil es"-a euphemism for condensate signed to disguise its source-from Y Oil and Gas, the seller, to Continental s, the buyer. 77. As to its transportation services, F&M likewise commi tted specific acts in furtherance of the conspiracy, including violations of 18 U.S.C. §§ 2314-which applies to "Whoever transports, transmits, or transfers in interstate or foreign commerce any goods . knowing the same to have been en, converted or taken by fraud"-and 2315-which applies to taking possession of property "knowing the same to have been stolen, unlawfully converted, or taken"-and the Texas Theft Liability Act (or TTLA) , Tex. Civ. Prac. & Rem. Code § 134.001-.005. 78. F&M was aware that the conspiracy was much larger than its individual part ipation and that for the conspiracy to succeed, additional criminal conduct was needed to conceal the conspiracy from PEP and from US and Mexican authorities, including the bribery of government ficials and the forging of documents. 79. F&M is responsible for 1 damages inflicted on PEP from the larger conspiracy. Alternatively, F&M is liable for 1 of its transactions involving the stolen property of Mexico, including the transactions in which it transported or brokered sales. 114 114First Amended Complaint No. 378, pp. 13-15 " 70-79. -113 Star Action), Docket Entry s specific to The First Amended Complaint does not allege any RGV's alleged involvement in the trade of stolen Mexican only reference to RGV in PEP's pleadings is as one condensate. of the "Conspiring Defendants:" 108. Conspiring Defendants-. Crude Kirby, RGV, and F&M-are also responsible actions of all members of the conspiracy, whether named in this action [or] not, and they are therefore the value all condensate stolen from PEP the currently estimated to be more than I $300 Based on legations of facti PEP has claims against F&M Transportation and RGV Energy Partners and F&M Transportation for conversion l for equitable relief including constructive trust based on theories of money had and received and unjust enrichment, for civil conspiracy, and for violation of the TTLA. F&M Transportation and RGV Energy argue that they are each entitled to summary judgment because [t] here is no evidence that RGV had any connection whatsoever to PEP's condensate after April 20, 2010 (two years before it was sued in PEp/s Amended Complaint). Similarly there is no evidence that F&M had any connection whatsoever to PEP's condensate after May 29, 2009 (two years before it was sued in PEP's Original Complaint) .116 I In support the argument that PEP's claims against them are time barred, these defendants assert that "[a]ll the alleged facts at 20 , 108. s RGV Energy Partners, LLC and F&M Transportation, Inc. s Motion for Summary Judgment ("RGV and F&M's MSJ") , Docket Entry No. 517, p. 3. I -114- relating to their involvement with PEP's condensate occurred well outside the two-year limitations period." 1l7 I legal arguments and adopt and incorporate "express These two defendants submitted by all other defendants on this issue, related to the discovery rule . PEP acknowledges governed by Texas' in its including those and fraudulent concealment. response that its claims two-year statute of limitations, /I are lIB all and PEP does not dispute RGV and F&M's assertions that neither of them had any connection with PEP's condensate in the two years preceding the filing suit against them. Moreover, in its Disposit PEP acknowledges that the "Two Year Amount" of damages "$0." 119 Motion F&M is PEP's only argument against granting these two defendants summary judgment based on limitations is that the claims asserted against them are not time barred because the running of limitations is by fraudulent concealment and the discovery e. Based on the legal analysis stated in §§ IV.B.4 and IV.C.4, the court concludes that the claims asserted against RGV Energy and F&M Transportation are all limitations and that all time barred because PEP has governed by a two-year statute of claims asserted against them are led to allege facts or present any 117Id. at 5. 118 119PEP's Opposition to Defendants' Disposit No. 545, p. 31. 115- -------_.__._-_.._-.._.-._---- Motions, Docket of these defendants evidence capable of establishing that had any connection to stolen condensate within two years of the dates on which PEP filed suit against them. Fraudulent concealment does from not prevent these two defendants relying on the limitations defense because PEP has ne alleged nor cited any evidence capable of establishing that of them concealed any facts from PEP or had a fixed purpose to conceal the wrongs alleged. The undisputed evidence shows that F&M Transportation provided PEP affiliate PMI information that was exporting Mexican condensate during the period that PEP contends Mexican condensate could not legally be exported from Mexico. Because this evidence shows that PEP knew or with the exercise of reasonable dil should have known that F&M Transportation was dealing in Mexican condensate long before PEP filed already in §§ 1 and because the evidence IV.B.4{c) (2) and IV.C.4{c) 1 shows that PEP was well aware that Mexican condensate was being stolen in Mexico and converted any de the United States the before it filed suit di scovery e does not preclude F&M Transportation or RGV Energy from relying on limitations to bar the claims asserted against them in this action. Accordingly 1 court concludes that F&M Transportation and RGV Energy are entitl to summary judgment because the claims alleged against them are barred by the two-year statute of limitations. 116 I E. Murphy Energy PEP first asserted claims against Murphy Energy on June 7, 2010, when PEP filed its Complaint (Docket Entry No.1) in the BASF action, Civil Action No. H-10-1997. PEp/s Third Amended Complaint alleges that: 80. Murphy Energy provides producer services l marketing and transportation services for various hydrocarbons including crude oil condensate, and gas liquids. I I 81. Murphy Energy voluntari joined the conspiracy to market and distribute stolen PEP condensate. 82. Murphy Energy distributed stolen PEP condensate that it purchased from Continental Fuels and sold stolen PEP to at least Trammo Petroleum. 83. the condensate it Murphy Energy knew that In the purchased and d was stolen. alternative, Murphy Energy ther consciously disregarded the fact that the condensate was stolen or should have known the condensate was stolen. 84. In February 2009, certain Murphy Energy employees met at a Houston-area restaurant with Defendant Brinkl of Defendant Continent Fuels, Inc., and others. The conversation was recorded by federal officers. During the meet the participants discussed several subjects, luding that (a) PEP condensate was not legally exported from Mexico; (b) Mexican drug cartels the delivery of the PEP condensate that Murphy and others purchased and resold in Texas; (c) the PEP condensate was purposefully misidentified so it could be smuggled out of Mexico; and (d) customs officials were being bribed at the border to smuggle the PEP condensate into the United States. I 85. The tone of the conversation makes clear that the information discussed in meeting was no surprise to Murphy Energy. Murphy Energy had been -117- dealing with these same people regarding condensate since at least late 2006. PEP 86. Murphy Energy's knowledge is also demonstrated by its attempt to manufacture false proof that PEP was aware of its activities. In early January 2008, Murphy Energy twice tried to deliver emails to a "Vallin Rivero" at "gas .pemex. com." The email address indicates that, at best, Mr. Rivero worked for Pemex Gas y Petroquimica Basica, a different entity, albeit a Pemex subsidiary. In any event, the emails bounced back. These original two emails contained nothing that would implicate Murphy Energy in any wrongdoing. After the emails were rejected, and Murphy Energy knew its email would not reach anyone at any Pemex affiliate, Murphy Energy drafted a much longer email, sent to the same bad address, purporting to inform Pemex of Murphy's purchases and sale of Mexican condensate in the United States. 87. Al though neither PEP nor PMI are secret organizations, Murphy Energy never sought to communicate with an actual person at either. Murphy Energy never spoke to anyone at any Pemex affiliate or with the Mexican government. 88. PEP was never informed by Murphy Energy of its trading in PEP's stolen condensate, and PEP never approved that conduct. 89. As to each of its purchases and sales of PEP condensate, Murphy Energy committed at least the following acts in furtherance of the conspiracy: (a) defrauded the ultimate purchaser of the source and patrimony of the condensate in violation of the mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343; (b) knowingly engaged in transactions involving stolen goods in violation of 18 U.S.C. §§ 2314 and 2315 and Texas Theft Liability Act (or TTLA) , Tex. Civ. Prac. & Rem. Code § 134.001-.005; and (c) committed money laundering in violation of 18 U.S.C. § 1956. 90. Murphy Energy also was aware of the conduct of others necessary for the conspiracy to succeed, including the bribery of government officials and the forging of documents. -118- Murphy Energy was aware that the conspiracy was much larger than its indi vidual involvement. 120 91. Based on these allegations of fact PEP has asserted claims against Murphy Energy for conversion, for equitable relief including constructive trust based on theories of money had and received and unjust enrichment, civil conspiracy, and TTLA and RICO violations. Murphy Energy argues that it is entitled to summary judgment on all of PEP'S claims because equitable relief, (1) PEP's claims for conversion, and violation of the Texas Theft Liability Act arising from acts that occurred before June 7, barred; meet (2) 2008, are time- PEP's conversion claim is barred because PEP cannot its burden under Texas law to show that the hydrocarbons purchased by Murphy Energy are the identical hydrocarbons allegedly stolen from PEP; (3) PEP's conspiracy claim is barred because there is no evidence that Murphy had knowledge of a conspiracy to convert PEP's condensate and defraud end users; (4) PEP's claim for violation of the Texas Theft Liability Act is barred because there is no evidence that Murphy formed the requisite intent to violate the Act; evidence (6) (5) PEP's that RICO Murphy claim engaged is barred because in racketeering there is activity; no and Texas' one-satisfaction rule bars Murphy Energy from being held liable for losses for which PEP has already received restitution. 121 120Third Amended Complaint, Docket Entry No. 220, pp. 14-16, 80-91. 121Defendant Summary Judgment Murphy Energy Corporation's Motion for Final ("Murphy's MSJ"), Docket Entry No. 479, pp. 2-3. -119- PEP disputes that Murphy Energy is entitled to summary judgment on any of the claims asserted against it. 122 1. PEP's Claims for Conversion, Equitable Relief, and Violation of the Texas Theft Liability Act Arising from Acts that Occurred Before June 7, 2008, Are Time Barred Citing the two-year statute of limitations provided by Texas I Practice and Remedies Code § 16.003(a), Murphy Energy argues ion that PEP's claims for conversion, equitable relief, and of the Texas Theft Liability Act arising from acts that occurred to June 7, 2008, i.e., more than two years before PEP fi on June 7, 2010, are time that the The parties do not dispute two-year limitations od contained in § 16.003 (a) governs all of the state law claims asserted in this action. PEP responds that the claims asserted against all defendants including, inter alia, Murphy Energy are not time barred did not accrue and limitat did not start running until PEP demanded return of and/or compensation for its condensate, defendants had a reasonable t Alternatively, PEP argues because the defendants' and to investigate that demand .123 that its claims are not time barred fraudulent concealment of their actions and/or the discovery rule defer the start of the limitations period 's Opposition to Defendants' Entry No. 545. 's Dispositive Motion, Docket PEP's Opposition to Defendants' Dispos No. 545, pp. 22-25. -120- spositive Motions, Docket No. 492, pp. 30-31; Motions, Docket Entry until PEP identified the entities and individuals who conspired to convert its condensate the United States. 124 For the reasons stated in al concl uded that the § IV.B.4(b), above, conversion claims the court has asserted in this action accrued and limitations started to run on the dates that the defendants purchased allegedly stolen condensate because that is the date that the defendants caused the legal injury for which PEP The limitations period on PEP's claims for equitable seeks reli relief, civil conspiracy, and violation of the Texas Liability Act also begins to run when legal injury occurs, i.e., when defendants' conduct invades PEP's legal interest causing loss Nelson v. American National Bank of Gonzales, 921 and damage. S.W.2d 411, Cathey v. 415 (Tex.App.-Corpus Christi 1996, First City Bank of Aransas Pass, (citing 758 S.W.2d 818, (Tex.App.-Corpus Christi 1988, writ denied)). to an exception, no pet.) 822 Thus, unless subject PEP's claims for conversion, equitable relief, civil conspiracy, and violation of the TTLA arising from any act committed more than two years prior to the filing of suit are barred by limitations. Autry v. Dearman, 933 S.W.2d 182, 191 (Tex.App.-Houston [14th Dist.] 1996, writ denied) unjust enrichment based on allegations of (causes of action money had and received arise when money is paid); Carroll v. Timmers Chevrolet, 124PEP's Dispositive Motion, Docket Entry No. 492, pp. 30 31; PEP's Opposition to Defendants' Dispositive Motions, Docket Ent No. 545, pp. 25-28. -121- Inc., 592 S.W.2d 922, itself, but an 925 injury to (Tex. the 1979) (It is not the agreement plaintiff resulting from the underlying tort that gives rise to a cause of action for civil conspiracy.) . For the reasons stated below, the court concludes e defer that neither fraudulent concealment nor the discovery the limitations period from running on PEP's conversion claims against Murphy Energy. (a) Fraudulent Concealment Does Not Defer PEP's Claims PEP argues that the defendants' their wrongful acts and 1 tations period. fraudulent 1 fraudulent concealment of ies defers the beginning of the When applicable the equitable doctrine concealment estops ions as a defense. a defendant from relying on In Borderlon, 661 S. W. 2d at 908, the Texas Supreme Court noted that where a defendant is under a duty to make disclosure but fraudulently conceals the existence of a cause action from the party to whom it belongs, estopped from relying on the learns of the defendant is of limitations until the the right of action or should have through the exercise of reasonable diligence. learned The doctrine is limited to those situations in which the defendant has a duty of disclosure, such as a physician to a client, or a fiduciary relationship S.W.2d at 531, invol ving fraud ient, or an attorney to a sts. In Velsicol, 956 the Texas Supreme Court explained that in cases or fraudulent concealment -122- accrual is deferred "until the fraud is discovered or could have been discovered with reasonable diligence." PEP has neither alleged nor presented any evidence capable of establishing that Murphy Energy had a duty of disclosure to The PEP. doctrine of fraudulent concealment, therefore, is inapplicable to PEP's claims against Murphy Energy. (b) When The Discovery Rule Does Not Defer PEP's Claims the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable courts have applied the discovery rule as an exception to the "legal injury" rule of accrual. See also S.V., Altai, Inc., See Childs, 974 S.W.2d at 36-37. 933 S.W.2d at 4; Computer Assocs. 918 S. W. 2d 453, 456 (Tex. 1996). Int'l, Inc. v. Asserting that " [k]nowing that property was stolen is not the same as knowing who bought the stolen goods, which could be decades later," 125 PEP offers public policy arguments why the running of the limitations period should be deferred until PEP discovered the tortfeasors' identities. As explained ln §§ IV.B.4(c) (2) and IV.C.4(b), above, PEP has not cited and the court has not found any case in which a Texas court has applied the discovery rule to a case such as this in which the defendants' initial possession of the property at issue was unlawfully - as opposed to lawfully - acquired. See HECI, 982 125PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, p. 29. -123- S.w.2d at 886 (discovery rule is applied to categories of cases, not to particular cases) i Steinhagen, 126 S.W.3d at 626-27 denied) (distinguishing between two classes of conversion cases: one where defendant's initial possession of property was lawfully acquired, and another where initial possession was unlawfully acquired). Conversion cases to which the discovery rule has been applied are cases where the defendant's initial possession of the property at issue is lawfully acquired, e.g., bailment cases. S.W.2d at 414. See Hofland, 834 The discovery rule does not apply to this case because it belongs to the class of cases where the defendants' initial possession of the property was unlawful. In this type of case the claims accrued and the limitations period began to run when the legal injury occurred. 674 (discovery embezzelment) ; rule Autry, not 933 See Sunwest Bank, applicable S.W.2d at to 192-93 939 S.W.2d at injury caused by (discovery rule not applicable to cause of action for conversion of lawsuit proceeds subject to subrogation) i Rogers, 930 S.W.2d at 166 (discovery rule not applicable to conversion of oil and gas produced under void lease). Ayers, Civil Action No. 07-04-0383, 2006 WL 435026, at *2 (discovery rule not applicable to toll limitations until plaintiff learned identity of thief) . Even if this were a case to which the discovery rule applied, that rule would not defer running of the limitations period for PEP's conversion claims against Murphy Energy. Because PEP has invoked the discovery rule as a means to avoid being barred by -124- limitations, PEP is not only required to show that the discovery rule applies to this case, but also to present evidence capable of establishing that inquiry notice. PEP acted with diligence after being put on Here, PEP alleges that it brought suit "within two years after PEP knew, or by the exercise of reasonable diligence should have known, of the facts giving rise to PEP's claims against Therefore, the Defendants. those claims limitations by the should be limitations have been tolled as to \ discovery tolled rule.' ,,126 until it had PEP an argues that opportunity to discover not only that its condensate had been stolen and converted but also the identities of the responsible parties. Under Texas law all that is required to commence the running of the limitations period is the discovery of an injury and its general cause, not the exact cause in fact and the specific parties responsible. See Russell, 841 S.W.2d at 344 n.3 ("limitations begin to run when the fact of injury is known," Moreno, 787 S.W.2d at 351, not when the alleged wrongdoers are identified") i Childs, 974 S.W.2d at 40 (discovery rule delays accrual of cause of action until plaintiff knew or should have known of its injury, not the identity of the wrongdoer). The discovery rule does not apply to defer limitations for PEP's claims against Murphy Energy because both PEP's injury and its general cause were known by PEP long before PEP filed suit against these defendants. 126Id. at 32 ~ 177. -125- PEP's knowledge that its condensate was being converted by sale in the States is sufficient to trigger the running of t limitations because - by PEP's own admissions its injury and the conversions. present any general Moreover, cause at PEP has time of or near failed dence from which a PEP was aware of ei to argue the or to -finder could reasonable PEP could not conclude that had PEP exercised reasonable dil have discovered BASF's and BFLP's purchases within the two-year period following the dates on which those occurred. discovery rule only defers accrual until discovery of not operate to toll the running injurYi it period until such time as plaintiff discovers of a cause action. The the the limitations I of the elements See Bayou Bend Towers Council of Co-Owners 866 S.W.2d 740, [14th Dist.] 1993, writ denied). 743 (Tex.App. Houston Accordingly, the court concludes that the discovery rule does not apply to defer the running of limitations PEP's conversion claims aga Murphy Energy. Whether PEP Can Trace Stolen Property to Murphy Is a Fact Issue for Trial 2. As in § IV.B.3, above, in order to hold any individual defendant liable for conversion PEP must trace condensate that was actually stolen in Mexico to the individual defendant. also present evidence from which a fact f could PEP must form a reasonably certain estimate of the amount of stolen condensate, if any, that 1055. defendant converted. See ==~~-===, 141 S.W.2d at The amount of condensate converted is not required to be -126- proven with exact certainty, only with reasonable certainty. Southwest Battery, 115 S.W.2d at 1097. the See PEP's contention that "when fendants mixed PEP's condensate with other hydrocarbons, PEP became owner of its proportionate share of the mixed product as a whole, not just the individual molecules that were drawn from Mexican soil,"127 does not absolve PEP from having to ident ify its stolen condensate and trace it to the defendants. Murphy Energy argues that it is entitled to summary judgment on PEP's conversion claims because PEP alleges that Murphy purchased stolen Mexican condensate from July 2006 through March 2009, from suppl iers Cont aI, Hutchison Hayes, M&B Trading, Trinity Partners/Alliance Energy Corp. and Valley Fuels. . . . PEP has no evidence that Murphy actually purchased Mexican condensate from any of these entities, or that any Mexican condensate that Murphy purchased (if any) was the identical condensate stolen from PEP. PEP and its witnesses have admitted that PEP cannot trace any condensate stolen from PEP to any specific purchase of hydrocarbons by Murphy, and PEP has no other evidence to show that the hydrocarbons purchased by Murphy are the same barrels of condensate stolen from PEP. . As a result, PEP cannot satisfy its burden of proof and its conversion and constructive trust claims should be dismissed. 128 The court for has concluded that conversion, violation of the TTLA PEP's equitable relief, claims against Murphy civil conspiracy, and ing from acts that occurred more than two years before PEP filed suit against Murphy Energy are time barred. Therefore, only three the BASF purchases of condensate allegedly 127PEP's Reply in Support of Its Dispositive Motion, Entry No. 577, p. 3. 128Murphy's MSJ, Docket Entry No. 479, p. 20. -127- Docket supplied to Trammo by Murphy Energy listed in PEP's Third Amended Complaint remain viable, i.e., one purchase in February of 2009 and two purchases in March that would allow a 2009. The only evidence that PEP cites reasonable fact-finder to conclude that condensate that Murphy Energy supplied to Trammo was stolen is ive Motion (Docket Entry No. 492). cited in PEP's Motion PEP cites the deposition testimony In its Dispos of Continental Fuels president, Murphy Energy acqui Timothy Brink, as evidence that the condensate that it sold to Trammo from Continental Fuels, and that all of the condensate that Continental Fuels sold to Murphy Energy was stolen Mexican condensate. testified that Brink July of 2008 his employee, Josh Crescenzi, told him that the product he was purchasing was stolen from Mexico. 129 Brink also testified that once he looked closely at the paperwork documenting shipments of product that he bought from Mexico the number of discrepancies he spotted caused him to realize that the product was st being sold by 130 As additional evidence that Continental Fuels was stolen, PEP product cites the transcript from the court proceeding in which Arnoldo Maldonado of 129PEP's Deposition pp. 13 14). spositive Motion, Docket Entry No. 492, p. 4 (citing Timothy Brink, Exhibit 10, Docket Entry No. 492-12, PEP's Reply in Support of Its itive Motions, Docket Entry No. 577, pp. 15-16 (citing Deposition of Timothy Brink, Exhibit 39 to PEP's Opposition to Defendants' D~spositive Motions, Docket Entry No. 546-10, pp. 33 44). -128- Y Gas & Oil pleaded guilty for his role in supplying stolen Mexican condensate to Continental Fuels. lE amount of stolen condensate that Murphy As evidence for Energy purchased, PEP cites the affidavit of Murphy Energy's Executive Vice-President, Greg Westfall, who described purchases of Mexican condensate that Murphy made in 2009: 13. In early 2009, Donald Schroeder-the then-president of Trammo-contacted Murphy Energy via instant message (under the username "big_daddy77079"), stating condensate was about to start flowing across Uni ted States border again at Brownsville, Texas. Schroeder states that, al though Continental Fuels, Inc. had suppl lined up, it did not have the cash liquidity to purchase the condensate on a daily basis. Schroeder asked whether Murphy Energy was interested purchasing the condensate under the same commercial conditions as before, except that the facility would be that owned by Cont Fuels, Inc. in Brownsville, Texas the TransMontaigne facility previously used by Murphy Energy. Schroeder also informed Murphy Energy that Trammo would purchase the condensate delivered to Port Arthur, Texas under terms essentially the same as before. 14. Both Tim Brinkl President of Continental, and Josh Vice President of Operations of , contacted Murphy Energy immediately discussions with Schroeder and described the potential transaction in a similar way. 15. In 2009 follows: I Murphy Energy purchased condensate as 131Id. (citing Transcript of Arnoldo Maldonado Rearraignment l Exhibit 12 to PEP's Dispositive Motion[ Docket Entry No. 492-14). -129- -----------------' Purchase Date Purchase Price January 2009 17,745.29 $625,589.38 February 2009 30,276.04 $1,051,523.15 March 2009 20,854.34 $843,465.07 TOTAL 16. Volume (Barrels) 68,875.67 $2,520,577.60 Murphy Energy sold the condensate it purchased in 2009 for a total of $3,066,903.00. 132 Although not dispositive, this evidence is sufficient to raise a fact issue as to whether Murphy Energy purchased reasonably ascertainable quantities of stolen Mexican condensate in 2009. Accordingly, the court concludes that Murphy Energy is not entitled to summary judgment on grounds that PEP is unable either to trace the stolen condensate to it or to establish a reasonably certain estimate of the amount of stolen condensate, if any, that Murphy Energy converted. 3. Murphy Energy Is Not Entitled to Summary Judgment on PEP's Claims for Civil Conspiracy "An actionable civil conspiracy is a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means." PEP alleges that Massey, the obj ect and purpose of 652 S.W.2d at 934. the conspiracy was "committing of common law conversion of PEP's condensate and the defrauding of end-users which would not have knowingly purchased 132Declaration of Greg Westfall, Exhibit Dispositive Motion, Docket Entry No. 493-1, p. 3 -130- 21-2 to ~~ 13-16. PEP's Murphy argues that it is entitled to summary judgment on PEP / s c conspiracy because " [t]here is stolen product. 11133 no evidence that Murphy had knowledge of a conspiracy to convert PEP's condensate and defraud end users. There is, however / overwhelming evidence that Murphy never believed that the product 11134 that it was buying was PEP responds that not only is there ample evidence that Murphy knew the condensate was stolen/ but that the same evidence ishes a conspiracy. PEP explains that "[t]hese defendants knew they were buying and selling stolen goods. Knowing the goods were stolen/ the defendants had to know that someone stole the goods/ and with that knowledge/ they agreed to buy the goods and join the conspiracy.II13S As evidence that Murphy Energy knew about the conspiracy to convert PEP's condensate and defraud end users, deposition of Continental S / president, PEP cites the Timothy Brink, who named Murphy Energy's president, Greg Westfall, as one of his coconspirators: 136 133Third Amended Complaint, Docket Entry No. 220, p. 35 , 201. 134Murphy's MSJ, Docket Entry No. 479, p. 30. 135PEP's Opposit Entry No. 545, p. 33. to Defendants' Dispositive Motions, Docket 136PEP'S Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, p. 32 (citing Deposition of Timothy Brink, Exhibit 39, Docket Entry No. 546 10, p. 29). -131- by Judge, of the The elements, as outl crime of dealing in conspiracy to commit One, that two or more stolen products were: to commit the crime of persons made an ling stolen goods as receiving, possessing or charged. Q. Was that true, that you had two or more persons that made such an ? A. Yes. Q. Were the individuals who made that agreement the ones you just ment Greg Westfall, Don Schroeder, Steve [and] Arnoldo Maldonado? A. Yes. 137 Q. Is there any doubt your mind of the people that you named as your co-conspirators, Greg Westfall, Don Schroeder, Arnoldo Maldonado and the Marin brothers, that they knew there was a criminal conspiracy to import stolen Mexican condensate? A. Absolutely none .138 PEP cites the depos testimony of Murphy's Greg westfall as evidence that Murphy admitted that it sold Mexican condensate after receiving stolen. credible Westfall testif information that in that April the of condensate 2009 was Murphy's customer, Trammo, informed Murphy that it would no longer accept delivery of condensate from Murphy unless Murphy could provide a 137Deposition of Timothy Brink, Exhibit 39 to PEP'S Opposition Defendants' itive Motions, Docket Entry No. 546-10, p. 29:3-14. to B8ld. at 75:25 76:6. 132 certificate Westfall of origin and proof of title explained that Trammo's refusal condensate followed Trammo's receipt to the condensate. to accept delivery of notice of from the United States government that Murphy's condensate had been stolen from Pemex.139 westfall testified that Murphy had neither certificates of origin nor proofs of title for the condensate that it had sold to Trammo. 140 Westfall also testified that following Trammo's refusal to accept delivery of condensate Murphy had in storage, Murphy sold that condensate telling AGE Refining that Murphy had to AGE Refining received notice without that the condensate had been stolen from Pemex: Q. . When Trammo advised Murphy in April of 2009 that the U.S. government had advised Trammo that PEMEX had advised the U. S. government that the condensate had been stolen, Trammo notified Murphy of those facts -- of those allegations? A. Trammo notified Murphy of what they said they had been told, yes. Q. And at that point Murphy still had some condensate that it had purchased from Continental but not yet sold to Trammo. Correct? A. Correct. Q. And, in fact, in that same notification Trammo said it would not purchase the condensate because of those facts that the U.S. government had told 139Deposition of Gregory A. Westfall, Exhibit 36 to Opposition to Defendants' Dispositive Motions, Docket No. 546-7, pp. 109-114. 14°rd. at 114:1-7. -133- PEP's Entry - or allegations that the Trammo. Correct? u.s. government had told A. I believe that's correct. Q. And then Murphy that remaining condensate to AGE refinery? after receiving that not A. Yes. Q. Now, at the time that Murphy sold that to AGE refinery, did Murphy I AGE what Murphy had learned from Trammo? A. No. Q. Before that time, it is your testimony that Murphy that anyone was had no idea, no claiming that the condensate Murphy was purchasing had been stolen from PEP? A. That's correct .141 Murphy Energy/s contention that had no knowledge that the condensate it was purchasing was stolen from PEP is contradicted by the presence and participation of West I and two other Murphy employees in a lunch meeting with Cont and Josh Crescenzi, February 3, 2009. employees Tim Brink and Trammo president, Donald Schroeder I on The conversation at the lunch was taped during the United States' criminal investigation: 142 Josh Crescenzi: Yeah. I mean the biggest problem down there right now is a lot guys who used to run the product. M&B. Uh, they aren't doing 141Id. at 123:12-124:15. 142Transcript of Taped Conversation Tuesday, February 3 1 2009, Exhibit 41 to PEP's Opposition to Defendants' spositive Motions 1 Docket Entry No. 546-12. l -134 it anymore. Ah, they've pretty much gone in and the Cartel has switched up everybody who was running product. It's all new people. They're very inexperienced. Ah, they're pulling, ah, all we're going to send you a truck with 12 inches of water and, and so I say, you send me a truck that's fine, I'm gonna refuse it and they don't understand that you just go down the street. You open your valve. You drain your water out and bring it back. I mean, it's, it's bullshit and I'm basically retraining a bunch of drug dealers, I mean. West 1: Josh Cre The Cartel probably kicked everybody out that are having all the problems with volumes or and everything else. Exactly. Tim Brink: You know the other guys at least, you know. Josh Crescenzi: They were semi-businessmen. m Brink: They were smart enough to know and they didn't care, you know, if they had water their truck, before they crossed the border, they would, you know, dump the water. Cause sometimes (inaudible) water. Josh Crescenzi: Now the other big problem that they are experiencing now is, ah, all gove rnment 0 f f i s that are, you know, getting the bribes. They haven't dropped their price down, so they're still getting paid based on $140 oil, so. Greg Westfall: Oh, God! Josh Crescenzi: B a s i c a l l y ' s very little profit for those guys to actually bring the product over to us, because. 135- Tim Brink: Like I say, they're, they're getting better now. We talked to them and they're, they're actually starting to save these guys some prices like, you know, there's a guy at the bridge, you know, ah, you know, who only makes 2,000 bucks a crossing,l4) of the February 3, 2009, lunch When asked about the t meeting, Tim Brink test if Q. Did you have enough discussions with Greg Westfall to recognize his voice? A. Oh, yeah, absolutely. Q. Was Greg West 1 the person who said, as indicated by transcript, "The cartel probably kicked everybody out they were having all the problems with, volumes or everything else"? A. Yeah, that was Greg's voice. Q. Do you have any memory of whether Greg Westfall expressed surprise that the cartels were involved in the importation of Mexican condensate? A. No. I don't think anybody at surprised about anything. Q. Okay. Was this discussion part of the conspiracy to import product? A. Yes. Q. Did was - - was Greg Westfall the person who exclaimed, "Oh, God," after discussing the amount of the bribes being paid by officials? A. Yes. Q. Did you have an impression at the time whether he was about the fact that bribes were being paid or the amount of the bribes? A. The amount I know Greg. the bribes. 143Id. at 19-20. -136- that table was Q. Okay. You understood that bribes were being paid by the people bringing the condensate -- A. Yes. Q. A. - over to you? Yes. Objection Q. Do you believe that it was true that bribes were paid to get the condensate out of Mexico and into the United States? . Objection, form. A. Had to be. Q. Okay. A. No other way to do it. Q. All right. Did you have discussions with Greg Westfall, Don Schroeder, and Steve Pechenik about the fact that bribes were being required to be paid to get the product in? Not that you paid them, but that somebody paid them? A. Yes .144 evidence quoted at length above ses fact issues for trial that preclude the court from granting Murphy Energy summary judgment on PEP's civil conspiracy claim. 4. Murphy Energy Is Not Entitled to Summary Judgment on PEP's Claims for Violation of the TTLA To prevail on its claim for violation of the TTLA PEP must show that (1) PEP had a possessory right to property; (2) Murphy 144Deposition of Timothy Brink, Exhibit 39 to PEP'S Opposition to Defendants' Dispositive Motions, Docket Entry No. 546-10, pp. 59:19-61:25. -137 unlawfully appropriated property in violation of the Texas Code; and (3) PEP sustained damages as a result of the theft. Tex. Civ. Prac. & Rem. Code § 31.03(a). §§ 134.002(2), 134.003; Tex. Penal Code Murphy Energy argues that it is entitled to summary judgment on PEP's claim for violation of the TTLA because \\the evidence shows that Murphy did not know the product was stolen. 145 It evidence cited at length in § IV.E.2-3, above, also raises fact issues that preclude the court from granting Murphy Energy summary judgment on PEP's claim for violation of the TTLA because, believed, this evidence would if low a reasonable fact-finder to conclude that Murphy Energy unlawfully appropriated property in violation of the Texas Penal Code to which PEP had a possessory right and that Murphy Energy's actions damaged PEP. 5. Murphy Energy Is Not Entitled to Summary Judgment on Transactions for Which PEP Has Received Restitution Citing , 822 S.W.2d at 7, Murphy Energy argues that it is entitled to summary judgment on PEP's conversion, equitable relief, and TTLA claims statute of limitations. that are not barred by the Murphy Energy argues that PEP, by its own calculations, received $2,415,635.72 in resti tution for the $2,415,635.72 worth of PEP condensate that was sold to BASF during January-March 2009. Ex. N 145Murphy's MSJ, Docket Entry No. 479, p. 28 (citing Depositions Gregory A. Westfall, Exhibit 00, Docket Entry No. 479-40, pp. 86:8-16, 124:1115, 133:14-19, 159:1721, and 162:15-21; Carter Simmons, Exhibit PP, Docket Entry No. 479-41, pp. 50:9-25; and Grant Simmons, Exhibit QQ, Docket Entry No. 47942, p. 16:16 19). -138- at Response to Interrogatory No. 10i Ex. L. at Response No. 35. According to PEP, this is the same condensate that Murphy purchased from Continental and sold to Trammo, who subsequently sold the condensate to BASF. refore received full restitution for the PEP has condensate Murphy purchased and sold to Trammo in 2009 and is therefore prohibited from seeking a further recovery. _46 that PEP has been compensated for damages Murphy Energy ed States traceable to Murphy Energy by sums received from the Treasury in connection with civil forfeitures involving Sun Petroco, LLC and Luis Ariel Rivera, Trammo, and TransMontaigne. 147 in For the reasons s § IV.C.6, above, with respect to the same argument made by BASF and BFLP, Murphy Energy is not entitled to summary judgment on this basis. The allocation of settlement credits, if any, is an issue to be reached at trial, not on summary judgment. Summary Judgment on PEP's 6. RICO provides I causes of action for recovery damages for "[a] ny injured in his business or property by reason of a violation § 1964(c}. section 1962 of this chapter.· PEP all that the Conspiring Defendants c association-in fact ent distinct purpose-to t import, se and that 18 U.S.C. an "[t] he enterprise had a distribute and fraudulently market stolen condensate in the United Sates and then to launder the 146Murphy's MSJ, Docket Entry No. 479, pp. 36-37. 147Id. 139- -----_.__ _._ -._---------.. .. proceeds of those illegal sales. 11148 PEP alleges that the conduct the Conspiring Defendants violates 18 U.S.C. 1962(c) and (d). §§ subsections state: (c) It shall be unlawful any person employed by or associated with any enterprise engaged or the activit s of which af interstate or foreign commerce to conduct or participate directly or indirectlYI in the conduct of such enterprise/s affairs through a pattern of racketeering activity or collection of unlawful debt. I I I (d) 18 U.S.C. l It shall be unlawful for any person to conspire to violate any of the provisions of subsection . . . (c) this section. 1962 (c) §§ and To (d). pursuant to any RICO subsection establishing \\ (1) racketeering establishment a person activi ty I conduct I (3) l who engages (5th (1989) ) . (2) a Cir. l Energy argues that claim to the pattern acquisition or control of an enterprise.'1 1988), 224 F.3d 425 l 1 Inc. v. J.I. cert. denied, St. l Paul 439 (5th Cir. Case CO' 109 S.Ct. I 855 1531 (5th 129 S.Ct. 2835 (2009). Citing Reves v. Ernst & Young to hold it I 113 S.Ct. 1163 (1993), Murphy liable for a substantive RICO PEP must produce evidence that Murphy Energy played "some part in directing the enterprises's af ~ facie St. Germain v. Howard, 556 F.3d 261, 263 Cir.), cert. denied violation, in connected 2000) (quoting Delta Truck & Tractor, 242 prima PEP must allege facts capable Mercury Insurance Co. v. Williamson F.2d 2411 state a 148Third Amended Complaint, 205. rs . . . . It is not Docket Entry No. 140- 220 1 pp. 35-36 enough to show that Murphy provided services that were used by the purported enterprise, because that is not the same as directing the affairs of the enterprise. ,,149 In Reves the Supreme Court held that \\ \ to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs,' 1962(c), one must participate in § the operation or management of the enterprise itself." 1173. Without citing any specific evidence, PEP asserts that Murphy bought and sold millions of dollars in condensate and met directly with other members of the association-in-fact enterprise to coordinate their illegal conduct. In this way, Murphy partici- pated in the scheme, as that term is defined in Reves. ,,150 Evidence showing that Murphy Energy bought and sold millions of dollars of condensate and met with others to coordinate their sales and purchases merely show that Murphy conducted its commercial business of buying, selling, transporting, and storing hydrocarbons; it is not evidence influencing that the Murphy Energy had any part affairs of the purported in directing or RICO enterprise. Accordingly, the court concludes that Murphy Energy is entitled to summary judgment on PEP's substantive RICO claim. Al ternati vely, entitled to summary the court judgment concludes on PEP's that Murphy substantive Energy RICO is claim because PEP has failed to cite evidence capable of establishing 149Murphy Energy's MSJ, Docket Entry No. 479, p. 32. 150PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 545, p. 34. -141- RICO. that Murphy's conduct was the cause of PEP's injuries The RICO causation analysis focuses on "the directness of the relationship between the conduct and the harm." City of New York, N.Y., 130 S.Ct. 983, 990 (2010). PEP acknowledges that there is no direct relationship between Murphy Energy's conduct and the thefts of PEP condensate. conduct was not Murphy was, at Murphy Energy's cause of PEP's injuries under RICO because , several transactions removed from the theft of condensate that actually injured PEP. See ide at 992 (dismissing RICO claims on causation grounds because the plaintiff's "theory of liability rests on the independent actions of rd and even fourth parties") i Proctor & Gamble Co. v. Amway Corp., 242 F.3d 539, 565 (5th Cir.), cert. denied, 122 S.Ct. 329 (2001) ury to plaintiff did not flow directly from defendant's conduct, and thus "there [were] too many ervening factors for proximate causation to be proven") . "To demonstrate a civil RICO conspiracy, a that: aimant must show (1) two or more persons agreed to commit a substantive RICO offense, and (2) object the defendant knew of and of the RICO offense." 667 F.3d 539, 551 (5th Cir. 2012) to the overall See Davis-Lynch, Inc. v. Moreno, (citing Chaney v. Dreyfus Service Corp., 595 F.3d 219, 239 (5th Cir. 2010)). A person need not commit or agree to commit the requisite two or more predicate acts of 'racketeering activity' to be held nally liable as a conspirator under RICO. To standing to establish a civil Rrco conspiracy, however, a claimant must allege injury from an act that -142- is independently wrongful under RICO. Injury caused by acts that are not racketeering activities or otherwise wrongful under RICO will not establish a viable civil RICO claim. Id. at 551-52 (citing Beck v. Prupis l 120 S.Ct. 1608 1 1616 (2000) plaintiff cannot bring suit under RICO based ("[A] civil conspi that on injury caused by any act in furtherance of a conspi plaintiff injury. might have caused Rather l such plaintiff must allege injury from an act that is analogous to an 'ac[t] of a tortious character . meaning an act that is independently l l wrongful under RICO. II) ¢ The Fifth Circuit has stated that "the core of a RICO civil conspiracy is an agreement to commit predicate acts 1 [therefore] a RICO civil conspiracy complaint 1 at the very least 1 must specifically such an agreement. Services, Inc. v. TBS International, Inc' Cir. 1992). PEP has failed to l offer II 975 F.2d 1134 1 1140 (5th evidence from reasonable fact finder could conclude that Murphy commit a substant overall object of the RICO offense. 930 (acknowledging elements to the PEp/s Absent such Is as a matter Nolen v. Nucentrix Broadband Networks Inc' (5th Cir. ) that I cert. failure denied to plead l 123 and another § 1962 violation impli cannot plead a conspiracy to violate that sect a agreed to RICO offense and knew of and claim against Murphy Energy for RICO conspiracy of law. which S.Ct. 293 F.3d l 600 the (2002) requisite tly means plaintiff under § 1962(d)). AccordinglYI Murphy Energy is entitled to summary judgment on PEp/s RICO conspiracy claim. -143- F. Superior Crude and Jeff Kirby PEP first asserted claims against Superior Crude Gathering and its owner operator, Jeff Kirby, in the Original Complaint filed on May 29, 2011, Big Star action, Action No. H 11 2019). (Docket Entry No. 1 in Civil PEP alleges that 84. Superior Crude is owned and operated by Kirby. Kirby is individually liable for Superior Crude's actions because no corporate dist ion should be recognized between themi they are and were alter , in part because Superior Crude was utilized an illegal purpose and as a sham to perpetrate a Kirby also actively part ipated in, and directed, Superior Crude's conduct. 85. Superior Crude voluntarily joined conspiracy to market and distribute stolen PEP condensate. 86. Superior Crude bought and sold stolen condensate worth at least $52 million. 87. In addition, Superior was a major distributor of PEP condensate. Superior Crude distributed en condensate worth millions dollars. Superior operated barges and tugs to transport the en condensate from storage facilit s in Brownsville, Texas and Rio Hondo, Texas to purchasers' facilities in Sun Nederland and Port Arthur, Texas. The coordinator for these shipments was usually Donald Schroeder of Trammo Petroleum. Schroeder has pleaded guilty to felony conspiracy to receive and sell property, ifically Mexican condensate, his role as ident of Trammo Petroleum. 88. Additionally, Superior Crude brokered transactions involving the sale and purchase of stolen condensate. 89. A typical transaction in which Superior Crude profited from shipping stolen condensate is its shipment, on behalf of Trammo Petroleum, of over 24,000 barrels to Port Arthur in December 2008. 90. Superior Crude knew that the condensate it was buying, selling and distributing was stolen. In -144- the alternative, Superior Crude either consciously disregarded the fact that the condensate was stolen or should have known that the condensate was stolen. 91. 92. As to its transportation services, Superior Crude likewise committed specific acts in furtherance of the conspiracy, including violations of 18 U.S.C. §§ 2314-which applies to "Whoever transports, transmits, or transfers in interstate or foreign commerce any goods . knowing the same to have been stolen, converted or taken by fraud"-and 2315-which applies to taking possession of property "knowing the same to have been stolen, unlawfully converted, or taken"-and the Texas Theft Liability Act (or TTLA) , Tex. Civ. PRac. & Rem. Code § 134.001-.005. 93. Superior Crude was aware that the conspiracy was much larger than its individual participation and that for the conspiracy to succeed, additional criminal conduct was needed to conceal the conspiracy from PEP, its customers, and from US and Mexican authorities, including the bribery of government officials and the forging of documents. 94. ~~ As to each of its own purchases and sales of PEP condensate, Superior Crude committed at least the following acts in furtherance of the conspiracy: (a) defrauded the ultimate purchaser of the source and patrimony of the condensate in violation of state law and the federal mail and wire fraud s tat ute s , 18 U . S . C . §§ 13 4 1 and 13 4 3 ; (b ) knowingly engaged in transactions involving stolen goods in violation of 18 U.S.C. § 2314 and 2315 and the Texas Theft Liability Act (or TTLA) , Tex. Civ. Prac. & Rem. Code § 134.001-.005; and (c) committed money laundering in violation of 18 U.S.C. § 1956. Superior Crude is responsible for all damages inflicted on PEP from the larger conspiracy. Alternatively, Superior Crude is liable for all of its transactions involving the stolen property of Mexico, including the transactions in which it transported or brokered sales. 151 151First Amended Complaint, 84-94. Docket Entry No. -145- 378, pp. 16-18 Based on these allegations of fact, PEP has asserted claims against Superior Crude Gathering, Inc. and Jeff Kirby for conversion, for equitable relief including constructive trust based on theories of money had and received and unjust enrichment, civil conspiracy, and violation of the TTLA. Superior Crude Gathering and Jeff Kirby argue that they are each entitled to summary judgment because [t]he undisputed evidence in this case establishes that all of Superior's alleged purchases and sales of Mexican condensate occurred by December 10, 2008 at the latest. Accordingly, and because PEP did not file suit against Superior until May 29, 2011, all of its claims are timebarred as a matter of law. Al though PEP pleads the discovery rule in an attempt to avoid the obvious time bar, that doctrine applies only if the nature of the injury incurred is inherently undiscoverable and the injury is objectively verifiable. Here, the discovery rule is inapplicable because PEP's injuries are not inherently undiscoverable under Texas law. And, even if the discovery rule could apply to PEP's claim, PEP has admitted that it knew that its condensate was being stolen and sold in the United States long before May 29, 2009 . . . Finally, there is no evidence that Superior fraudulently concealed any of its activities, so that avenue of rescuing time-barred claims is unavailable to PEP as well. 152 In support of the argument that PEP's claims against them are time barred, these defendants argue that PEP "claims that Superior is liable for numerous alleged stolen condensate sales purchases occurring between October 2006 and December 2008. and See 152Defendants Superior Crude Gathering, Inc. and Jeff Kirby's Motion for Summary Judgment ("Superior's and Kirby's MSJ") , Docket Entry No. 486, p. 3. -146- Ex. A at pp. 516:25-518:1i Ex. B at p. 21 ~~ 52-53." 153 is the Expert Report of PEP experts wilkinson, dated October 8, 2012. Brent Bers Exhibit B and Joseph Regarding the purchases made by Superior the Expert Report states: 52. We have examined documents related to Superior, including invoices and settlement summaries. For purposes of our analysis, we have assumed that any references to products sourced from Mexico reflected in Superior's invoices represent Mexican Condensate. 53. Based on our analysis, Superior purchased approximately 312,000 barrels Mexican Condensate totaling over $27.4 million from October 2006 to December 2008 (See Exhibit I). 54. We have also identified about 342,000 barrels totaling approximately $28.1 million of potentially Mexican Condensate purchased by Superior (See Exhibit I). To the extent that Superior blended or purchased blended product which included the Mexican Condensate, at this time we do not have sufficient information to determine the amount of Mexican Condensate which comprises the blended product. 154 Exhibit A is the deposition of PEP's expert Joseph L. Wilkinson who testified that he had no reason to believe that in 2006, 2007, or 2008 Jeff Kirby or other representatives of Superior knew that the condensate they were purchasing was stolen, and that his comments about whatever Superior did or did not do all wi th conduct and purchases that occurred be t December of 2008. 155 153Id. at 8. 154Expert Report of Brent Bersin & Joseph Wilkinson, Exhibit B to Superior's and Kirby's MSJ, Docket Entry No. 486, pp. 21 22. 155Deposition of John L. Wilkinson, Exhibit A to Superior's and Kirby's MSJ, Docket Entry No. 486, pp. 516 18. -147- Although PEP cites to Kirby's deposition as evidence that Kirby the government "admits to having bought and sold condensate informed him that it was stolen, ,,156 that testimony confirms Wilkinson's testimony that Superior has not engaged in any conduct re to sales or purchases of stolen Mexican condensate since December of 2008: Q. Okay. When was your Mexican condensate? last purchase of A. In December of 2008. Q. Okay. A. I -- I don't remember exactly the date, but we were put on notice somewhere around December the 8th to the 10th, 2008. Q. Did you purchase any Mexican condensate after you were put on notice? A. Not with Q. Okay. Did you purchase from any the - did you purchase anything from any of the suppliers who had been sell Mexican condensate to you prior to December 2008 A. The PEPC05 Q. -- after the notice? A. The PEPCOs and Ys? Q. Any suppl that supplied Mexican condensate to you before December of 2008, did you purchase anything from them A. Not that I'm aware of. Q. -- after McAllister's notice? Do you remember what date, more or less? not that we were aware 156PEP's Opposition to Defendants' Disposi ti ve Motions, Docket Entry No. 545, p. 33. -148- A. Not that we're aware of. Q. Is the first time that DOJ or ICE, or any part of the U.S. Government, put you on notice regarding the condensate, was that was the first time that ever happened in December 8th or 10th, 2008? A. No, it was late October 2008. 157 PEP acknowledges in its response that the claims asserted against Superior and Kirby are governed by Texas' two-year statute of limitations, Tex. Civ. Prac. & Rem. Code § 16.003(a)i and PEP does not dispute Superior's and Kirby's assertions that neither them had any connection with PEP's condensate in the two years before PEP filed against them, only argument against i.e., granting after May 29, two 2009. defendants PEP's summary judgment based on limitations is PEP's general argument that claims asserted against all the defendants named in this action are not t barred because the running limitations is de fraudulent concealment and the discovery rule. by Based on the analysis stated in §§ IV.B.4(c}, IV.C.4(a}, and IV.E.l, the court concludes that the claims asserted and f Kirby are time barred Superior Crude Gathering PEP has failed to allege facts or present any evidence capable of establishing that e of two defendants had any connection to stolen condensate within of the dates on which PEP filed suit against them. tion of Jeff Kirby, Exhibit 43 to PEP's Opposition to Defendants' Dispositive Motions, Docket Entry No. 546, pp. 183:8 184:10. 149- Fraudulent concealment does not prevent Superior Crude Gathering or Jeff Kirby from relying on the limitations because PEP has neither alleged nor ted any evidence capable of establishing that either of them concealed any facts from PEP or had a fixed purpose to conceal the wrongs alleged. Moreover, PEP's expert, Joseph Wilkinson/ testified at his deposition that no reason to believe that in 2006, 2007, had or 2008 Jeff Kirby or other representatives of Superior knew that the condensate they were purchasing was stolen. 158 discovery rule does not prevent Superior Crude or Jeff Kirby from relying on the limitations defense because the evidence already cited in §§ IV.B.4 (c) (2), IV.C.4 (b), and IV.E.1 (b) shows that PEP was well aware that Mexican condensate was being stolen in Mexico and converted in the United States more than two years before PEP filed suit against Superior Crude Gathering and Jeff Kirby. impli The critical inquiry accrual when the discovery rule is is when the claimant discovered or using reasonable diligence should have discovered the wrongfully caused injury. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp./ 988 S.W.2d 746, 749 (Tex. 1999). For the reasons explained above, the court concludes that PEP has failed either to allege any facts or to cite any evidence capable of establishing that PEP did not know or with 158Deposition of John L. Wilkinson, Exhibit A to Superior's and Kirby's MSJ, Docket Entry No. 486, pp. 517-18. -150- the exercise of reasonable diligence could not have known about the for inj which is being sought this action. Accordingly, the court concludes that Superior Crude Gathering and Jeff Kirby are entitled to summary judgment because the claims alleged against them are I barred by Texas' two-year statute of limitations. G. Third-Party Defendant Donald Schroeder's Motion for Partial Summary Judgment Third-party defendant Donald Schroeder partial summary judgment on cross-claims asserted against him by Murphy Energy and BFLP for indemnity, contribution, and breach of warranty. PEP alleged claims against Schroeder in the Original Complaint fi in the BASF action. guilty to condensate. its knowingly On May 29, conspiring to 2009, receive Schroeder pleaded and sell stolen In September of 2010 PEP voluntarily dismissed all of aims against Schroeder. 159 Shortly thereafter, PEP agreed to dismiss all of its claims against Schroeder's employer, Trammo."6Q Murphy Energy and BFLP asserted cross-claims inst Schroeder. PEP's Not of Voluntary Dismissal of Defendant Donald P. Schroeder, Jr. Pursuant to Rule 41(a) (1) (A) (i) ("PEP's Notice of Voluntary Dismissal"), Docket Entry No. 54; Order, Docket Entry No. 60. Schroeder is not named as a defendant in PEP's Third Amended Complaint, Docket Entry No. 220. 16°Joint Motion to Dismiss Defendant Trammo Petroleum, Inc. With Prejudice ("Joint Motion to Dismiss"), Docket Entry No. 87; Order Dismissing Defendant Trammo Petroleum, Inc. With Prejudice, Docket Entry No. 95. -151- Murphy Energy's Cross-Claims 1. Schroeder: Murphy Energy asserts four cross-claims "contribution and/or indemnitYi" (1) a claim (2) "knowing participation in breach of fiduciary dutYi" a claim for (3) a claim for "fraud by nondisclosurejll and (4) a claim civil conspiracy and leged breach of three for contribution arising from fiduciary duty, fraud, and conspiracy. 161 an The t three claims all have subheadings that state "Against Schroeder Schroeder Contribution") . that he is entitled to summary judgment on Murphy Energy's indemnity claim because Murphy Energy has no statutory, contractual, or common-law right to indemnity and that he is entitled to summary judgment on Murphy Energy's claims for breach of fiduciary duty, because they are fraud by nondisclosure, substantive claims and and civil conspiracy are not contribution claims. 162 (a) Indemnity Schroeder argues that he is entit Murphy to summary judgment on 's claim for indemnity because neither common law nor statutory indemnity apply under the s of this case. 161Defendant/Cross-Claimant Murphy Energy Corporation's Amended Cross Claims, Docket Entry No. 313. Citing rd rd-Party Defendant Donald Schroeder's Motion for Part Summary Judgment on BASF FINA Petrochemicals Limited Partnership's and Murphy Energy Corporation's Cross-Claims ("Schroeder's MPSJ") , Docket Entry No. 481, p. 1. -152 Astra Oil, Inc. v. Diamond Shamrock Refining Co., L.P., 89 S.W.3d 702, (Tex.App.-Houston 706 [1st Dist.] pet. 2002, denied), Schroeder argues that he cannot be held liable under a common law theory of indemnity because "[a]n ordinary business or contractual relationship does not suffice to create common-law indemnity based on vicarious liability." Schroeder explains that [i] n such cases, the indemnitor is 1 iable "through no act of his own" but "solely upon the relationship between the two defendants." If Murphy and BFLP are found to be liable to PEP it would be because of their own wrongful acts-not because of a business relationship with Schroeder's former company. 163 Asserting that statutory indemnity is rare, Schroeder argues that no such statute applies to the undisputed facts of this case. Finally, Schroeder argues that there are no contractual indemnity provisions pursuant to which he could be held liable to indemnify Murphy Energy. Murphy Energy responds that there were two Murphy-Trammo contracts and that both contain an indemnification provision that runs in favor of a performing party when the other party fails to perform. Because Schroeder signed each of the Murphy-Trammo contracts, Murphy Energy argues that Schroeder could be required to indemnify Murphy. signed the Murphy Energy explains that "[t]hough Schroeder contracts as president of Trammo, and not in his individual capacity, there are a host of legal theories that make 163Id. at 7. -153- ions. 11164 individuals liable for corporate obI 2009, pet. denied) Morgan, 277 S.W.3d 549, 557 (Tex.App. (citing Mapco, Inc. v. Carter, 817 S.W.2d 686, Schroeder replies that Murphy Energy's that would Citing Seidler v. 688 (Tex. 1991)), iance on any theories low it to pierce the corporate veil to reach him are misplaced because \\ [t] hese theories must be specifically pleaded or they are waived, unless they are by consent. 11165 Because Murphy Energy's complaint against Schroeder does not contain allegations of fact in support because such a any veil-piercing theory, theory cannot be asserted for the first and time response to a motion for summary judgment, Schroeder is entitl to summary judgment on Murphy Energy's claim for indemnification. Cutrera v. Board of Supervisors of Louisiana State University, 429 F.3d 108, 113 (5th Cir. 2005) ("A claim which is not raised in the complaint but, rather, is raised only in response to a motion summary judgment is not properly (b) the court. ") . Contribution Schroeder argues that he is entitled to summary judgment on Murphy Energy's cross-claims for contribution because they are, in fendant Murphy Energy Corporation's Response to Donald Schroeder's Motion for Partial Summary Judgment, Docket Entry No. 539, at p. 4. Party Defendant Donald Schroeder's Reply in Support of His Motion for Partial Summary Judgment on BASF FINA Petrochemicals Limited Partnership's and Murphy Energy Corporation's Cross-Cl Docket Entry No. 582, p. 4. 154- reality, not claims for contribution but, instead, substantive claims that have already been raised and disposed of in state court actions. Murphy Energy responds that Schroeder has failed to articulate a valid basis for dismissing its contribution claims because the claims are not only styled as contribution claims but the prayer for relief makes all of the claims asserted against Schroeder expressly contingent on Murphy being found liable to PEP. Because Schroeder does not dispute that he could be held liable for contribution if Murphy is found liable to PEP, the court is not persuaded that Schroeder is entitled to summary judgment on any of the claims for contribution asserted against him by Murphy Energy. 2. BFLP's Cross-Claims BFLP asserts two cross-claims against Schroeder: "breach of express and implied warranty of title" "contribution and/or indemnity. 11166 one for and one for Schroeder argues that he is entitled to summary judgment on BFLP's claim for indemnity. the reasons stated in § For IV.G.1(a), above, the court concludes that Schroeder is entitled to summary judgment on BFLP's claims for indemnity. Schroeder argues that he is entitled to summary judgment on BFLP's claims for breach of warranty claim because he was not a 166Defendant BASF FINA Petrochemicals Limited Partnership's Answer to PEP's Third Amended Complaint and Cross Claims, Docket Entry No. 240. -155- party to the contract between BASF and Trammo and because there are no allegations that he ever held title to the condensate. BFLP responds that corporate officers can be held personally liable for breaching express or implied warranties, but the cases that BFLP cites in support of this argument all involved claims for violations of the Texas Deceptive Trade Practices Act ("TDTPA"). Because BFLP did not assert its breach of warranty claim under the TDTPA, and is not seeking relief under the TDTPA, BFLP's reliance on it is misplaced. Accordingly, the court concludes that Schroeder is entitled to summary judgment on BFLP's cross-claims for indemnity and breach of warranty, but is not entitled to summary judgment on BFLP's cross-claims for contribution. v. PEP's Dispositive Motion PEP seeks summary judgment on claims related to the condensate that passed through Continental Fuels, "which was run by Timothy Brink who pleaded guilty to trafficking in stolen goods, and Josh Crescenzi, the conversations with government Brink and informant other who taped defendants. "167 numerous PEP seeks partial summary judgment as follows: 168 167PEP's Dispositive Motion, Docket Entry No. 492, p. 23. 168Id. at 31. -156- Full Amount Two Year Amount BASF $17,084,134 $2,531,704 Murphy $ 2,531,704 $2,531,704 Plains $ 590,098 $0 F&M $ 539,479 $0 High Sierra $ 554,279 $0 Continental $30,749,892 $3,071,183 PEP also asks the court to strike "defenses raising PEP's alleged contributory negligence and other comparative . as set forth in PEP's proposed order, 1/ 169 liability issues and judgment on the pleadings against Murphy Energy's counterclaims. 170 A. PEP is Not Entitled to Partial Summary Judgment For the reasons above, in §§ IV.B.3, IV.C.5, and IV.E.2, the court has already concluded that genuine issues of material fact exist as to whether PEP can trace to the defendants stolen condensate and, if so, whether PEP can establish with reasonable certainty the amount of stolen condensate that traces to each defendant. For these reasons the court concludes that PEP is not entitled to summary judgment on any of the claims for which it seeks summary judgment. B. PEP Is Not Entitled to Have Affir.mative Defenses Stricken PEP also asks the court to strike "defenses raising PEP's alleged contributory negligence and other comparative liability 169Id. at 18. l70Id. at 32-40. 157- as issues set forth in PEP's proposed order. ,,171 The proposed order attached to PEP's dispositive motion contains a long list of affirmative defenses. PEP, however, has not properly identified or briefed the specific "defenses raising PEP's alleged contributory negligence and other comparative liability issues" that PEP contends the court should strike. See United States v. Scroggins, will not consider this request. 599 F.3d 433, 446 (5th Cir. Therefore, the court 2010) ("It is not enough to merely mention or allude to a legal theory.") . C. PEP Is Entitled to Judgment on Murphy Energy's Counterclaims Defendant Murphy Energy has counterclaimed against PEP for violation of RICO §§ 1962(c) and (d), civil conspiracy, business disparagement, negligence, gross negligence, and various violations of Mexican law. PEP seeks judgment as a matter of law pursuant to Federal Rule of Civil Procedure 12(c) on all of Murphy Energy's counterclaims. 1. Standard of Review "A motion for judgment on the pleadings under Rule 12(c) is subject to the Rule 12 (b) (6) ." same standard Doe v. as MySpace, a motion Inc., Cir.), cert. denied, 129 S.Ct. 600 (2008) to dismiss 528 F. 3d 413, 418 under (5th "To avoid dismissal, a plaintiff must plead sufficient facts to state a claim for relief that is plausible on its face," accepting as true all well-pleaded 171Id. at 18. -158- facts. Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010). Courts "do not accept as true conclusory allegations, unwarranted factual inferences, or legal conclusions." 2. Id. RICO Claims Murphy Energy alleges that PEP, PEMEX, and organized criminal cartels (such as Los Zetas) created an association-in-fact enterprise,172 and that "[t] he enterprise had a distinct purpose-to steal, smuggle, fraudulently market, and illicitly sell condensate to good faith purchasers in the United Sates, and then to launder the proceeds of those illegal sales. ,,173 Murphy Energy alleges that PEP conducted or participated, directly and indirectly, conduct affairs of the enterprise's racketeering activity. through a ln the pattern of Murphy Energy alleges that PEP, in conjunction with its co-conspirators, committed numerous predicate acts under 18 U.S.C. § 1961 (1) in furtherance of its illegal scheme, including (a) repeated acts or threats involving kidnapping; (b) repeated acts or threats involving bribery; (c) repeated acts or threats involving robbery; (d) violations of the Foreign Corrupt Practices Act as incorporated in the Travel Act, 18 U.S.C. § 1952; (e) transporting stolen condensate across the U.S.-Mexico border in violation of 18 U.S.C. § 2314; (f) receiving and/or selling stolen property in the United States in violation of 18 U.S.C. § 2315; (g) conducting financial transactions with the proceeds of its unlawful scheme in violation of 18 U. S. C. § 1956(a) (1); and (H) transmitting or transferring from 172Defendant Murphy Energy Corporation's Third Amended Counterclaim ("Murphy Energy's Third Amended Counterclaim") , Docket Entry No. 235, p. 10, ~ 31. 173Id. ~ 34. -159- the United States into Mexico the proceeds of its unlawful scheme in violation of 18 U.S.C. § 1956 (a) (2) .174 Murphy Energy alleges PEP's conduct violates 18 U.S.C. 1962{c) §§ and (d). Sections 1962(c) and (d) state: (c) It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activit of which fect, interstate or foreign commerce, to conduct or participate t directly or indirectlYt in conduct of such enterprise's affairs through a pattern of racketeering activity or collection unlawful debt. (d) It shall be unlawful any person to conspire to violate any of provisions of subsection . . . (c) of this section. 18 U. S . C . 1962 (c) §§ and ( d) . To state a prima facie claim pursuant to any RICO subsection t PEP must allege facts capable of establishing "(1) racketeering a acti who ty (3) engages connected in to (2) a the establishment t conduct, or control of an enterprise. pattern of acquisition t 1I St. Paul Mercury Insurance Co. v. Williamson t 224 F.3d 425, 439 (5th Cir. (quoting Delta Truck & Tractor, 2000) F.2d 241 t 242 (5th 1988) t Inc. v. J.I. Case CO. cert. denied, (1989) ) . Cir. ) 1 109 S. Ct. t 855 1531 556 F.3d 261 1 263 (5th ====~======I 129 S.Ct. 2835 (2009). PEP argues that Murphy Energyts RICO claims are implausible because they are on the untenable factual premise that PEP conspired with drug IBId. at 11 ~ s to steal PEP's own property and 37. 160- it to good fai th purchasers. ,,175 Asserting that it "cannot steal its own property as a matter of law,,,176 PEP argues that since Murphy's predicate acts are premised on illegal activity related to e ing PEP's property or smuggling illegal goods into the United States, the predicate acts are unsustainable. How, for example, does PEP knowingly engage transactions involving stolen goods, when it moves sown property?177 PEP argues that Murphy Energy's RICO allegations, that individual scheme, but that Murphy Energy's allege that PEP participated the RICO legations are not sufficient to or benefitted from the alleged In response Murphy Energy concedes that PEP is a victim scheme. of show may have participated in a PEP at best, cartels, but participation in the scheme. s that PEP benefitted from its Murphy Energy explains: Allowing the drug cart s to take the condensate served as protection payments. In lieu of cash protection payments to the cart s, PEP allowed them to take product. Far from harming PEP, it was benefitted by this activity because it avoided other, more damaging reprisals by the carte . . . PEP will likely argue that this . . . shows that is the victim of the scheme, not a perpetrator, but that argument. . is not alone a valid basis for dismissing a RICO claim. Moreover, Murphy has done more than merely allege that PEP was a victim of the s protection racket. As extensively alleged in Murphy's counterclaim, PEP and its employees were willing part ipants in the scheme, which benefitted all involved. 17B 175Plaintiff's 176 spositive Motion, Docket Entry No. 492, p. 32. at 33. 177Id. 178Defendant Murphy Energy Corporation's Response to PEP's Dispositive Motion ("Murphy Energy's Response to PEP's Disposit Motion"), Docket No. 541, pp. 31-32. 161- In support of its contention that "[c]ase law . establishes that a corporation may be held liable as a RICO defendant based on actions of its employees, ,,179 Murphy Energy cites Mylan Laboratories, Inc. v. Akzo. N.V., 770 F.Supp. 1053, 1070 (D. Md. 1991). Murphy Energy's reliance on Mylan is misplaced, however, because that court expressly acknowledged that corporations that have been held liable for RICO violations were anot alleged to have ng activity." the victim or unwitting conduit of (citing F.Supp. 165, Gruber 181 v. Prudential-Bache (D. Conn. Securities, (corporation 1987) vicariously liable where it is the central f Inc., may be 679 found or aggressor in leged scheme) ; Busby v. Crown Supply, Inc., 896 F. 2d 833, 839 n.5 (4th Cir. 1990) ("The formulation of the statute is designed to impose liability upon a il activity but corporation which is a perpetrator of not upon employees' RICO violations."). cont any facts that, finder to part conclude an unwitting Murphy Energy's conduit of its legations do not if true, would allow a reasonable fact- that the PEP employees who allegedly ipated in the scheme were acting either within the scope of their employment or to benefit PEP. Absent such 1 ions, the court concludes that PEP is entitled to judgment as a matter of law on Murphy Energy's substantive RICO claim because it is not ible that the scheme's corporate victim was a person who in a pattern of racketeering activity connected to the at 31 n.15. -162- acquisition, establishment, conduct, or control of an enterprise. St. Paul Mercury, 224 F.3d at 439. Alternatively, the court concludes that PEP is entitled to judgment on the pleadings on Murphy Energy's substantive RICO claim because Murphy Energy has fai to allege ts capable of establishing that PEP's conduct was the cause of Murphy Energy's injuries under RICO. The RICO causation analysis focuses on "the directness of the relationship between the conduct and the harm./I Hemi Group, (2010). LLC v. City of New York, Murphy Energy has N.Y., led to al 130 S.Ct. 983, 990 any facts that, if true, would allow a reasonable fact-finder to conclude that there is a direct relationship between PEP's conduct and Murphy Energy's purchases of (dismissing legedly RICO claims plaintiff's "theory of 1 stolen on condensate. causation See grounds at 992 because lity rests on the independent actions of third and even fourth parties") i Proctor & Gamble Co. v. Amway Corp., 242 F.3d 539, 565 (5th Cir.), cert. denied, (2001) id. 122 S.Ct. 329 (injury to plaintiff did not flow directly from defendant's conduct, and thus "there [were] proximate causation to too many intervening factors for proven"). Absent allegations sufficient to allege a substantive RICO offense, Murphy Energy's claim against PEP for RICO conspiracy fails as a matter of law. See F.3d at 930 ("failure to plead the requisite elements of § 1962(c) violation implicitly means that . a [Murphy Energy] cannot plead a conspiracy to violate [that] section"). -163- , 293 Accordingly, PEP is entitled to judgment on the pleadings on Murphy Energy's RICO claims for violation of both 3. §§ 1962(c) and (d). Civil Conspiracy Claim Murphy Energy's civil conspiracy claim against PEP fails for essentially same reason as Murphy Energy's RICO conspiracy claim r i. e., Murphy Energy has failed to allege an underlying tort. See Carroll v. Timmers Chevrolet. Inc' r 592 S.W.2d 922, 925 (Tex. 1979) (cause of action for civil conspiracy arises from injury to plaintiff caused by an underlying tort) . 4. Business Disparagement Claim The elements of a claim for business disparagement under Texas law are: (2) (1) falsity; damages. (5th Cir. (3) publication by defendant malice; (4) of lack of privil disparaging words; i and (5) special Johnson v. Hospital Corp. of America r 95 F.3d 383 r 391 1996). Murphy Energyrs bus disparagement counterclaim is based upon a press release announcing the filing of this action that PEP posted on its website. that the ease disparaged it. Murphy Energy alleges The court concludes that Murphy Energy has not adequately pled fals malice r lack of privilege r or special damages. The court concludes that Murphy has not pled facts that if true would demonstrate that the statements in falser that they were made with malice, -164- press release are or that they were not privileged. ~[n]owhere Instead, Murphy Energy has merely alleged that in its complaint or press releases, however, does PEP admit that it knew Murphy Energy was purchasing condensate in good faith yet failed to inform Murphy Energy that the condensate was illegitimate. 11180 Murphy Energy has also failed to allege facts sufficient to ~To satisfy the special damages element. prove special damages, the plaintiff must prove 'that the disparaging communication played a substantial part in inducing third parties not to deal with the plaintiff, resulting in a direct pecuniary loss that has been realized or liquidated, such as specific lost sales, loss of trade, or loss of other dealings." SNF, Inc., denied). 223 S. W. 3d 616, Astoria Industries of Iowa, 628 Inc. v. (Tex.App .-Fort Worth 2007, Murphy Energy's counterclaim merely alleges that pet. ~PEP's disparaging remarks have resulted in direct pecuniary losses to Murphy Energy and Murphy Energy has suffered special damages as a direct result of however, PEP's disparagement. 11181 Murphy Energy fails, to identify any specific sources of economic loss. Encompass Office Solutions, Inc. v. 938, 959 (E.D. Tex. 2011) upon finding similar Ingenix, Inc., ~ 775 F.Supp.2d (dismissing business disparagement claim ~conclusory statement, void of any supporting 18°Murphy Energy's Third Amended Counterclaim, No. 235, p. 8 ~ 25. 181Id. at 15 See 61. -165- Docket Entry insufficient to support a for c business disparagement); Nationwide Bi-Weekly Administration, Inc. v. Belo ==-=-, 512 F.3d 137, 147 (5th Cir. 2007) firming dismissal of disparagement claim that "failed to all any specific economic S ") ¢ 5. Negligence and Gross Negligence Claims PEP argues that it is entitled to judgment on the pleadings as to Murphy Energy's claims for negligence and gross negligence Murphy Energy's contention that "PEP owed a legal duty to protect Murphy Energy and other similarly situated companies from conduct of the organized criminals who stole PEP's condensate" has no basis in law. 1B2 Texas repeatedly held that "[a]s a rule, protect another from the criminal The Texas Supreme Court has 'a person has no legal duty to acts of a person. '" Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) 1996». 197 (quoting Walker v. Harris, 924 S.W.2d 375, 377 (Tex. Centeg Realty, Inc. v. Siegler, 899 S.W.2d 195, (Tex. 1995) (same). The exception to this rule recognized in these cases is that "one who controls premises does have a duty to use ordinary care to protect invitees from criminal acts of third and ies if he knows or has reason to know of an unreasonable e risk of harm to the invitee." Because the 's Dispositive Motion, Docket Entry No. 492, p. 34. -166- s case, the court concludes that Murphy Energy's claims for negligence and gross negligence based on a s of not applicable under the to invitees exception appl duty to protect legations that PEP had Murphy Energy from the acts of third-party criminals are subject to judgment on the pleadings because such claims are not actionable under Texas law. 6. Mexican Law Claims The court has already concluded that Mexican law does not s and claims alleged in this action. ::'83 apply to the Moreover, Civil Procedure 44.1 requires a party that intends Federal Rule written to raise an issue about a foreign country's law (1) to notice of its intent and (2) to furnish the court with See Northrop Grumman of the relevant foreign legal principles. Ship Systems t Inc. v. ear proof Ministry of Defense of Venezuela, 575 F.3d 491, 496-97 (5th Cir. 2009). the Republic of Murphy Energy has failed to satisfy these requirements for raising issues based on Mexican law. The court concludes that Murphy Energy has failed to state a Mexican law claim that is plaus D. e on its Conclusions For the reasons stated above, PEP's summary judgment against defendants BASF, Marketing, F&M Transportation, motions for Murphy Energy, partial Plains and Continental will be denied; 183See Memorandum Opinion and Order, pp. 3 -19. -167- Docket Entry No. 292, defenses will be denied; and firmat PEP's motion to strike pleadings as to Murphy Energy's PEP's motion for judgment on counterclaims will be granted. VI. Motions to Exc1ude and Strike Experts' Reports and Test~ony Various parties have filed a number of motions to exclude and/ or to strike experts' reports and experts' testimony frequently modify establish more Moreover, the during the their extensive context course opinions, in of and trial the because at s' testimony necessary to effectively rule on such issues. experts counsel predicates which The to exclude or to strike court's practice is to rule on mot expert testimony. is often testimony. offered is Thus, the motions to exclude and strike expert testimony of Joseph Wilkinson, Bersin, Allejandro Valle Corona, Ana Maria Brent Slack, K. Scott Van Meter, David G. Ownby, and Frank Holder will be denied. The motions to exclude and/or strike filed by or on behalf of Plains All-American Pipeline, L.P. and High S LLC will be declared moot pursuant Oil & Marketing, to stipulations of dismissal filed by PEP and entered by the court ,184 184'See PEP's Agreed Stipulation and Order of smissal of Claims Against Plains All-American Pipel L. p, (Docket Entry No. 533) signed by the court on March 15, 2013, and PEP's Agreed Stipulation and order of Dismissal of Claims Against High Sierra Crude Oil & Marketing, LLC (Docket Entry No, 527) signed by the court on March 14, 2013. 168- ------------------ - ---------- VII. Motions to Designate Responsible Third Parties Pending before the court are responsible third parties pursuant to three §§ motions to designate 33.004(a) and (j) of the Texas Civil Pract ices and Remedies Code: :85 (1) Defendants BASF Corporation and BASF FINA Petrochemicals Limited Partnership's Amended Mot for Leave to Designate Responsible Third Parties (Docket Entry No. 426) and (2) Defendant Superior Crude Gathering, 185Sect 33.004 (a) and (j) of the Texas Civil Practices and Remedies Code provide: (a) A defendant may seek to designate a person as a respons e third party by filing a motion for to designate that person as a responsible third party. The motion must be filed on or before the 60th day be the trial date unless the court finds good cause to motion to be filed at a later date. (j) Notwithstanding any other provision of this section, if, not than 60 days after the filing the defendant's original answer, the defendant al an answer fi with the court that an unknown person committed a criminal act that was a cause of the or inj ury that is the subj ect of the lawsui t , the court shall grant a motion for leave to designate the unknown person as a responsible third party if: (1) court determines that the pleaded facts sufficient for the court to that there is a reasonable probability that the act of the unknown person was criminal; (2) the defendant has stated in the answer all identifying characteristics of the unknown person, known at time of the answer; and (3) the legation satisfies the pleading requirements of the Texas Rules of Civil Procedure. -169 Inc.'s Motion for Leave to Join Defendant High Sierra Crude Oil & Leave to Designate Responsible Marketing, LLC's Second Motion Third Parties (Docket Entry No. 442). For the reasons explained below, the motion to designate responsible third parties filed by BASF Corp. and BASF FINA will be granted. The motion to join High Sierra's motion to designate responsible third parties filed by Superior Crude Gathering, Inc. is moot because in § IV.F, above, the court has concluded that Superior Crude Gathering is entitled to summary judgment because claims asserted against it are all time barred. A. Standard of Review Pursuant to § 33.004(a) of the Texas Civil Practice & Remedies Code, at least sixty days be trial a defendant may "designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party." Prac. & Rem. Code § 33.004(a).lB6 Section 33.011 Tex. Civ. defines a responsible third party as: any person who is leged to have caused or contributed to causing in any way the harm for which recovery of 186Section 33.004(a) of the Texas Civil Practices and Remedies Code provides: (a) A defendant may seek to designate a person as a responsible rd party by filing a motion for leave to designate that person as a responsible third party. The motion must filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to fi at a later date. -170 damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combinat these. Tex. Civ. Prac. & Rem. Code are not 1 § 33.011(6). Responsible third parties limited to those who can be joined as parties to the igation. Pursuant to § 33.004(j) of the Texas Civil Practice & Remedies Code, responsible third parties may be persons or entities outside the plaintiff, court's jurisdiction, or even unknown. unable to be sued by the See In re Unitec Elevator Services , 178 S.W.3d 53, 58 n.5 (Tex.App.-Houston [1st Dist.] 2005, no .). However, such parties must be joined "not later than 60 days after the filing of the defendant's Ci v. Prac. & Rem. Code § answer. II Tex. 33. 004 (j) . 187 1B7Section 33.004 (j) of the Texas Civil Practices and Remedies Code provides: Notwithstanding any other provision of s section, if, not later than 60 days after the ling of the defendant's original answer, the defendant alleges in an answer filed with the court that an unknown person committed a criminal act that was a cause of the loss or injury that is the subject of the lawsuit, the court shall grant a motion for leave to designate the unknown person as a responsible third party if: (1) the court determines that the defendant has pleaded facts sufficient for the court to determine that there is a reasonable probability that the act of the unknown person was criminal; (2) the defendant has stated in the answer all identifying characteristics of the unknown person, known at the time of the answer; and (3) the allegation satisfies pleading requirements of the Texas Rules of Civil Procedure. -171- If a court gives leave to designate a responsible third party, and there is evidence sufficient to submit a question to the jury regarding the conduct of the party, the trier of fact determines the percentage of responsibility of the claimants, defendants, settling persons, if any, and any responsible third parties. Civ. Prac. & Rem. Code § Tex. 33.003(a) (4). Once a defendant has moved for leave to designate responsible Tex. Civ. Prac. & Rem. Code third parties plaintiffs may object. § 33.004(f). To successfully prevent designation of a responsible third party the burden is on the plaintiffs to establish that (1) the defendant did not plead sufficient facts concerning the alleged responsibility of the [third party] to satisfy the pleading requirement of the Texas Rules of Civil Procedure; and ~ (2) after having been granted leave to replead, the defendant failed to plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirements of the Texas Rules of Civil Procedure. Tex. Civ. Prac. & Rem. Code A court's responsible grant of third party § 33.004(g) (1) and (2). a motion does not challenging the designation. for leave preclude a to party designate from a later After adequate time for discovery "a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage." Tex. Civ. Prac. & Rem. Code § 33.004(1). "The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the -172- designated person's responsibility for the claimant's injury or The damage." on burden the regarding Prac. & the actual the at party's 33.003 (b) § the outset the requirement submission of a designated third part B. submission of a designated Rem. Code requirements closer, whether there The court must support produce the claimant's inj ury or designated party's responsibil evidence to to issue of fact regarding the sufficient evidence to raise a damage. defendants question to the jury Tex. responsibility. Civ. Therefore, while the pleading .188 are is sufficient not stringent, as trial moves sufficient evidence to support the question on the responsibility of the becomes more demanding. Analysis BASF Corp. and BASF FINA responsible third part s ially sought leave to designate to motions filed on August 4, 2011 (Docket Entry No. 253), and August 11, 2011 (Docket Entry No. 261), respectively. leave to In those mot designate as BASF Corp. and BASF FINA sought responsible third parties Petro Salum, Importadora Exportadora, Y Oil and Gas, as well as the known and unknown criminals the answers f in PEP's Third Amended Complaint and ed by BASF Corp. and by BASF FINA. On October 20, lB8Section 33.003 (b) of the Texas Civil Practices and Remedies Code provides: "This section does not allow a submission to the jury of a quest regarding conduct by any person without sufficient evidence to support the submission." -173 2011, the motions court granted BASF Corp.'s ignate to responsible and BASF FINA's third parties and initial held that Chapter 33's proportionate liability scheme applied to the tort claims assert BASF Corp. by PEP .189 to and BASF FINA now seek and/ or individual s responsible third parties 115 different entit identified on Traffickers pp. 4-15 of their designate as pending motion, ified in Exhibit A to the 147 Known pending motion, Known Detainees identified in Exhibit B to 48 r pending motion, and 26 Accused Parties identified in Exhibit C to their pending motion. In support of their motion BASF and BASF FINA cite PEP's Complaints in this case and in the related case, Civil Action No. 4:12 1081, documents produced by PEP and other Pemex documents produced by defendants and third part s, reports and documents from the Mexican government, as the witnesses and other as well witnesses. Asserting testimony of that discovery PEP is ongoing, BASF Corp. and BASF FINA "reserve their right to designate additional responsible third parties. 11190 PEP argues that the motions to designate responsible third parties should be denied because (1) Chapter 33 of the Texas Civil 189Memorandum Opinion and Order, Docket Entry No. 292, pp. 25 28 and 33 35. 90 Defendants BASF Corporation and BASF FINA Petrochemi s Limited Partnership's Amended Motion for Leave to Designate Respons e Third Parties ("BASF and BASF FINA's Amended Motion Leave to Designate Responsible Third Parties"), Docket Ent No. 426, p. 3. : -174 Practice and Remedies Code does not apply to any of PEP's claims; and (2) defendants have improperly requested that defendants, cross-defendants, and settling persons be designated as responsible third parties. 191 PEP argues that [f] or the reasons explained in PEP's prior ext ens briefing on this issue, Chapter 33 of the Texas Civil Practice and Remedies Code does not apply to any of the claims at issue here. In the interest of brevity, PEP will re from repeating its prior arguments in detail. It must point out, however, that Defendants' Motion and s proposed designation of 115 individuals and categories of allegedly responsible third part highlights the absurdity of their third-party The UCC rule is clear and simple. One who buys stolen goods receives no title and is liable to the true owner-period. For that reason and the reasons discussed in the briefing at Docket Numbers 249, 263, 266, 267, and 279, PEP that [High S 's] Motion be denied. 192 PEP further argues that [a]ssuming only for the sake of argument that Chapter 33 appl s , it does not permit defendants to designate other defendants or settling persons as responsible third parties. See Tex. Civ. Prac. & Rem. Code Ann. §§ 33.011 (defining "defendant, "responsible third party," and "settling person" differently), 33.003 (submitting liabili ty "each claimant, "each defendant," "each settling person, II and "each responsible third party") . 193 II II In addition PEP argues that the [d] efendants have improperly requested that the following entit s or individuals who are already defendants, 191pEP's Opposition to BASF and BASF-FINA's Amended Motion to Designate, Docket Entry No. 435, pp. 1-2. See also PEP's Opposition to High Sierra's Second Motion to Designate, Docket Entry No. 436, pp. 1-2. 192 Id. 193Id. at 2. -175- cross-defendants, or settling persons in this case be designated: 11. Arnoldo Maldonado; 12. Bio-NU Southwest d/b/a Valley Fuels; 17. Continental Fuels; 22. Donald Schroeder; 47. JAG Energy USA, Inc.; 51. Jonathan Dappen; 53. Joplin Energy, LLCi 83. RGV Energy Partners, LLCi 96. Stephen Pechenik; 100. Timothy Brink; and 101. Trammo Petroleum, Inc. Because Chapter 33 does not t these ies to be designated as responsible third parties, Defendants' Motion should be denied, at a minimum, as to parties. 194 PEP's argument that the pending motions are ficient because Chapter 33 of the Texas Civil Practice and Remedies Code does not apply to any of PEP's claims against these defendants and PEP's citation to the U. C. C. in support of this argument lack merit because PEP has not asserted any claims based on violations of the U.C.C.; the claims asserted in this consol action are all based on alleged violations of the common law The Liability Act, or RICO, 18 U.S.C. § Texas, the Texas 1962(c)-(d). As the court has already explained in the Memorandum Opinion and Order signed on October 20, 2011, \\ [t] he proportionate responsibility scheme contained in Chapter 33 of the Texas Civil Practices and Remedies Code applies to any cause of action 'based in tort.' Civ. Prac. & Rem. Code § 33.002 (a) (1) ."195 Tex. Because certain causes of action are expressly exempted from Chapter 33 1 s proportionate responsibility scheme, and because under certain circumstances defendants may be held jointly and severally liable - as opposed to proportionately responsible courts deferentially apply 194Id. 195Memorandum Opinion and Order, Docket Entry No. 292, p. 30. -176- Chapter 33 1 s proportionate responsibility scheme to all other tortbased causes of action. 196 As the court explained In the October 20, 2011, Memorandum Opinion and Order: PEP concedes that its claims for conversion and conspiracy sound in tort. 197 Moreover, neither claims for conversion nor claims for conspiracy are expressly exempted from Chapter 33 1 s proportionate responsibility framework, and there is no other comprehensive fault scheme that addresses either of these claims. PEP's claims for violation of the TTLA are statutory tort claims that provide plaintiffs a civil remedy for theft. See Tex. Civ. Prac. & Rem. Code § 134.001. The TTLA does not provide for joint and several liability, and TTLA claims are neither expressly exempted from Chapter 33 1 s proportionate responsibility framework, nor subject to another comprehensive fault scheme. 198 PEP's assertion designation of that 115 "Defendants' individuals and Motion and categories its proposed of allegedly responsible third parties highlights the absurdity of their thirdparty defense, ,,199 does not provide the court a rat ional basis on which to conclude that Chapter 33 1 s proportionate responsibility scheme does not apply to the tort claims asserted in this action. PEP's argument that Chapter 33 does not permit defendants to designate other "defendants" or "settling persons" as "responsible 196Id. 197Id. at 32 (citing PEP's Opposition to Murphy Energy Corporations' Motion for Leave to Designate Responsible Third Parties, Docket Entry No. 249, p. 3 (conspiracy) and p. 7 (conversion) ) 199PEP's Opposition to BASF and BASF FINA's Amended Motion to Designate, Docket Entry No. 435, p. 1. See also PEP's Opposition to High Sierra's Second Motion to Designate, Docket Entry No. 436, p. 1. -177- third parties" because § 33.011 of the Texas Civil Pract Remedies Code defines each of terms differently provides no basis on which to deny the pending motions. § 33.003 requires that the 1 defendant, Ii ty of As PEP acknowledges, "each claimant , I I "each "each settling person," and "each responsible third II submitted to the jury. party" and But PEP cites no requirement that each individual or entity must be definitively identif as a "defendant,1I "settling party," or "responsible third party" before the case is submitted to the jury. part Indeed, since the ident ies of who are today "defendants" could easily change the case is submitted to a jury, even assuming that PEP's contention is correct, PEP's attempt to definitely classify each individual and entity identified in the pending motions is premature. Defendants only need to plead facts capable of showing how the individuals and entit that they seek to designate as responsible third-parties caused or contributed to PEP's that the sources on which leged injury. the defendants PEP does not deny rely ify the individuals and entities that they seek to designate as responsible third parties inj al as The ions are parties court who there sufficient caused or concludes to satisfy contributed that the the to PEP's defendants' requirements for designating responsible third parties, and that PEP has failed to carry its burden of showing that the defendants' pleadings as to responsible third parties are inadequate. -178- C. Conclusions Because the court concludes that PEP's arguments that the motions to designate responsible third parties urged by BASF Corp., BASF FINA, and Superior Crude Gathering, Inc. should be denied lack merit, the live motions to designate responsible third parties urged by these defendants will be granted. VIII. Conclusions and Order 20o For the reasons stated in Section IV, above, for is (1 ) Defendant Plains Marketing, L.P.'s Motion (Docket Entry No. 475) Summary Judgment GRANTED; (2) Defendant Murphy Energy Corporation's Motion for Final Summary Judgment (Docket Entry No. 479) is GRANTED in PART and DENIED in PART; (3) Third-Party Defendant Donald Schroeder's Motion for Partial Summary Judgment on BASF FINA Petrochemicals Limited Partnership's and Murphy Energy Corporation's Cross-Claims (Docket Entry No. 481) is GRANTED in PART and DENIED in PART; 200The court has allowed the parties extraordinary leeway in submitting lengthy briefs and other written materials in connection with the pending motions. As the length of this Memorandum Opinion and Order indicates, the court has expended considerable time reading these papers and performing a significant amount of independent research to be as fully informed as possible when addressing the parties' arguments. While, because of the sheer volume of information presented, it is not impossible that some arguments were overlooked, the parties should assume that failure to expressly address a particular argument in this Memorandum Opinion and Order reflects the court's judgment that the argument lacked sufficient merit to warrant discussion. Accordingly, the court strongly discourages the parties from seeking reconsideration based on arguments they have previously raised or that they could have raised. -179- (4) Defendants Superior Crude Gathering Inc. and Jeff Kirby/s Motion for Summary Judgment (Docket Entry No. 486) is GRANTED; (5) BASF Corporation and BASF FINA Petrochemicals Limited Partnership/s Motion for Summary Judgment (Docket Entry No. 489) is GRANTED in PART and DENIED in PART; and (6) Defendants RGV Energy Partners LLC and F&M Transportation Inc. s Motion for Summary Judgment (Docket Entry No. 517) is GRANTED. l I I l For the reasons stated in Section VI above Producci6n / s Exploraci6n y spositive No. 492) is I Plaintiff PEMEX Motion (Docket Entry GRANTED in PART and DENIED in PART. For the reasons stated in Section VII above, (1) Defendants Plains All-American Pipeline L.P. and Plains Marketing L. P. 's Motion to Exclude Expert Testimony Joseph Wilkinson and Brent Bersin (Docket Entry No. 473) is MOOT as to Plains All-American Pipel L. P. and DENIED without prejudice as to PI Marketing L.P.i (2) Defendants BASF Corporation, BASF FINA Petrochemicals Limited Partnership, Murphy Energy Corporation, Plains All-American Pipeline, L.P., Plains Marketing, L,P' I Superior Crude Gathering, Inc., and Jeff Kirby's Motion to Strike andro Valle Corona's New Expert Report and Exclude His Expert Testimony (Docket Entry No. 476) is MOOT as to Plains All-American Pipeline, L. P. Superior Crude Gathering Inc., and Jeff Kirby, and DENIED without prejudice as to all other movantsi l I I (3) Defendants High Crude Oil & Marketing, LLC, Jeff Kirby and Superior Crude Gathering, Inc.' s Motion to Exclude Expert Testimony of Brent Bersin and Joseph Wilkinson (Docket Entry No. 477) is MOOT; (4 ) Defendants BASF Corporation, Petrochemicals Limited Partnership, 180- BASF FINA and Murphy Energy Corporation's Motion to Exclude Expert Testimony of Brent Bersin and Joseph Wilkinson (Docket Entry No. 478) is DENIED without prejudice; (5) Defendants BASF Corporation, BASF FINA Petrochemicals Limited Partnership, High Sierra Crude Oil & Marketing, LLC, Jeff KirbYt Murphy Energy Corporation t Plains All-American Pipeline, L.P. Plains Marketing L.P., and Superior Crude Gathering, Inc. s Motion to Exclude Expert Testimony of Ana Maria Salazar Slack (Docket Entry No. 482) is MOOT as to High Sierra Crude Oil & Marketing, LLC, Plains All-American Pipeline, L.P., Jeff Kirby, and Superior Crude Gathering, Inc. and DENIED without prejudice as to all other movants; t t (6) Plaintiff's Motion to Exclude the Expert Testimony of K. Scott Van Meter t CPA (Docket Entry No. 483) is DENIED without prejudice; (7) Defendants RGV Energy Partners t LLC and F&M Transportation, Inc.'s Motion to Join in All Defendants' Motions to Strike Expert Reports and Motions to Exclude Expert Testimony (Docket Entry No. 485) is MOOT; (8) Plaintiff PEMEX Exploraci6n y Producci6n t s Motion to Exclude Defendants' Expert David G. Ownby (Docket Entry No. 495) is DENIED without prejudice; and (9) Plaintiff PEMEX Exploraci6n y Producci6n's Motion to Exclude Defendants' Expert Frank L. Holder (Docket Entry No. 496) is DENIED wi thout prejudice. For the reasons stated in Section VII, above, (1) Defendants BASF Corporation and BASF FINA Petrochemicals Limited Partnership's Amended Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 426) is GRANTED; and (2) Defendant Superior Crude Gathering, Inc.'s Motion for Leave to Join Defendant High Sierra Crude -181- Oil & Marketing, LLC's Second Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 442) is MOOT. The court believes that it has resolved the motions addressed herein without relying on evidence to which objections have been made. Therefore: (1) Defendants Plains Marketing L.P., Superior Crude Gathering, Jeff Kirby, Murphy Energy Corporation, BASF Corporation, and BASF FINA Petrochemicals Limited Partnership's Objections to Plaintiff PEP's Summary Judgment Evidence (Docket Entry No. 537) are MOOT; (2) The Obj ections of PEP to the Summary Judgment Evidence of Plains Marketing, L.P. (Dkt. 475), Murphy Energy Corporation (Dkt. 479), Superior Crude Gathering, Inc. and Jeff Kirby (Dkt. 486), BASF Corporation and BASF FINA Petrochemicals, LP (Dkt. 489), and RGV Energy Partners, LLC and F&M Transportation, Inc. (Dkt. 517) (Docket Entry No. 548) are MOOT; (3) Defendant Plains Marketing L. P. 's Obj ections to Evidence Submitted in Support of Plaintiff PEP's Opposition to Defendants' Dispositive Motions (Docket Entry No. 565) are MOOT; (4) Superior Crude Gathering, Inc. and Jeff Kirby's Objections to Evidence Submitted in Support of PEP's Opposition to Defendants' Dispositive Motions (Docket Entry No. 566) are MOOT; (5) Superior Crude Gathering, Inc. and Jeff Kirby's Obj ect ions to Evidence Submi t ted in Support of [Docket Entry No. 545] PEP's Opposition to Defendants' Dispositive Motions (Docket Entry No. 566); The Objections of Plaintiff PEP to the Summary Judgment Evidence Submitted by Superior Crude Gathering, Jeff Kirby, BASF Corporation, and BASF FINA Petrochemicals Limited Partnership With Their Joint Response to Plaintiff's Dispositive Motion (Dkt. 542) and Plains Marketing, Inc. With Its Response to Plaintiff's Dispositive Motion (Dkt. 536) and Murphy Energy Corporation With Its -182- to Plaintiff's Disposi Motion Response (Dkt. 541) (Docket Entry No. 575) are MOOT; (6) (7) If, De s BASF Corporation and BASF FINA Petrochemicals Limited Partnership's Objections to Evi Submitted in Support of aintiff PEP's Opposition to Defendants' Disposit Motions (Docket Entry No. 583) are MOOT; and Defendant Murphy Energy Corporation's Obj ections to Evidence Submitted in Support of aintiff PEP' s Opposition to Defendants' Disposi ti ve Mot (Docket Entry No. 585) are MOOT. however, number of obj to the large amount of and the large the court has overlooked an objection to evidence on which it has relied in this Memorandum Opinion and Order, any such objection is OVERRULED. The Joint Pretrial Order will be filed by November 1, 2013. Docket Call will be November 8, 2013, at 3:00 p.m., in Courtroom 9-B, United States Courthouse, 515 Rusk Avenue, Houston, Texas 77002. SIGNED at Houston, Texas, on this 30th day September, 2013. 7 SIM LAKE UNITED STATES DISTRICT JUDGE -183-