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waiilésu PS CAUSE NO. 2011-17504 {S:8 KY eZ HN 2102JORGE JAVIER LOPEZ § IN THE DISTRICT CQURT, OF. SKSys § sade)Vv. 8 HARRIS COUNTY, TEX SIYHD §NORMA GONZALEZ,GIANCARLO OELER, SARGENT §CHARLES LIMITED, LLC. §GAYLNN FOXX ANDBRADFORD MECHANICAL, INC. § 2815? JUDICIAL DISTRICT DEFENDANTS, BRADFORD MECHANICAL, INC. AND GAYLYNN FOXX’S REPLY TO MOTION FOR LEAVE TO DESIGNATE HARBOR FREIGHT TOOLS, HARBOR FREIGHT TOOLS TEXAS, LP, and HARBOR FREIGHT TOOLS USA, INC EACH AS A RESPONSIBLE THIRD PARTYTO THE HONORABLE JUDGE OF SAID COURT: COME NOW, BRADFORD MECHANICAL, INC. (“Bradford Mechanical”) andGAYLYNN FOXX (“Foxx”) (hereinafter referred to as “Defendants”), Defendants in theabove-styled and numbered cause, and files this their Reply to Plaintiff's Response to DefendantsMotion for Leave to Designate Harbor Freight Tools, Harbor Freight Tools Texas, LP, andHarbor Freight Tools USA, Inc.’ as a Responsible Third Party, and Defendants respectfully showthe following: Plaintiff Jose Lopez filed his Response to Defendant’s Motion for Leave to Designate theHarbor Freight Entities as Responsible Third Parties. Plaintiffs positions in such Response arewithout merit As noted in Defendants’ Motion for Leave to Designate the Harbor Freight Entities(referred to as Defendant’s Motion) “on or before the 60 day before trial” as provided by TexasCivil Practice and Remedies Code 33.004(a). As such Defendants’ Motion is timely. Plaintiff Lopez’s contention that only the Docket Control Order (“DCO”) applies, and FILED Sometimes referred to collectively as the “Harbor Freight Entities’ Chris Daniel District Clerk RECORDER'S MEMORANDUM JUN 22 2012 This Instrument is of poor quality Time: at the time of imaging “Rares County Texas BY Denythat Tex. Civ. Prac. & Rem. Code 33.004 is inapplicable is without merit. Both provisions areapplicable, and Defendants are not barred by the DCO deadlines. The DCO deadline thatPlaintiff Lopez refers to is the Joinder deadline, which states: JOINDER. All parties must be added and served, whether by amendment or third party practice, by this date. THE PARTY CAUSING THE JOINDER SHALL PROVIDE A COPY OF THIS DOCKET CONTROL ORDER AT THE TIME OF SERVICE.See DCO. The deadline referenced is 2/22/2012 for such actions. However, nothing in theabove provisions, or in the remainder of the DCO to Defendants’ knowledge, sets forth adeadline for filing a Motion to Designate a Responsible Third Party. Further, Defendantsurge that if Plaintiff's are concerned about joining any of the parties that may be designated asresponsible third parties, that Tex. Civ. Prac. Rem. Code § 33.004(e) (applicable to this suit),would have 60 days after any designation is granted to join the party or parties. In addition, a continuance of at least 120 days was just granted by this Court, andDefendants are anticipating a new DCO will be issued by the Court. Further, Plaintiff Lopez contends that Defendants have not plead sufficient facts, but hehas only directed the court to a small portion of allegations in Defendants’ Motion. Defendantshave plead sufficient facts. To summarize the facts that were plead, Plaintiff Lopez andGonzalez have alleged that Plaintiffs have alleged that Defendants Foxx and Bradford Mechanicalwere negligent in failing to secure a load, and such caused the Plaintiffs injuries. There have beenallegations that debris came out of the back of a vehicle that was driven by Defendant Foxx, andallegations that such debris may have caused or contributed to the auto accident at issue. As is theirright, Defendants still deny any and all allegations made against them, based on information andbelief it is Defendants’ belief that the tie-down that was used on the vehicle driven by Gaylynn Foxxwas manufactured and/or sold by HARBOR FREIGHT TOOLS; HARBOR FREIGHT TOOLSTEXAS, LP; and/or HARBOR FREIGHT TOOLS USA, INC. The tie down broke, came apart, snapped, and/or otherwise did not perform as it wasintended to or properly on the date of the incident in question, and is believed to have caused and/orcontributed to any object that may have come out of vehicle driven by Defendant Gaylynn Foxx onthe date of incident in question. II. BASIS FOR DESIGNATION There is a very low threshold for responsible third party designations. "Responsible thirdparty" is defined to mean "any person who is alleged to have caused or contributed to causing inany way the harm for which recovery of damages is sought, whether by negligent act oromission, by any defective or unreasonably dangerous product, by other conduct or activity thatviolates an applicable legal standard, or by any combination of these §33.011 (6) TEX. CIV.PRAC. & REM. CODE. In the event that a timely objection is made to the motion the Court shall still grant leaveto designate the person as a responsible third party unless the objecting party establishes: a) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure; and (2) after having been granted leave to re-plead, 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. §33.004 (£) (1) and (2) TEX. CIV. PRAC. & REM. CODE. Even if the court finds that sufficient facts were not plead, Defendants should begranted the opportunity to replead. Section 33.004 (f) (1) clearly provides in order for adefendant to designate a responsible third party, the defendant is only required to plead sufficientfacts concerning the responsibility of the person(s) in line with the pleading requirements of theTexas Rules of Civil Procedure. The pleading requirement of the Texas Rules of Civil Procedurefollows the “fair notice” standard for pleadings, which look to whether an opposing party canascertain from the pleadings the nature and basic issues of the controversy and what testimonywill be relevant. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W. 3d 887, 896 (Tex.2000). WHEREFORE, PREMISES CONSIDERED, Defendants, BRADFORDMECHANICAL, INC. and GAYLYNN FOXX respectfully pray that this Honorable Courtenter its Order granting Defendants’ Motion for Leave to Designate HARBOR FREIGHTTOOLS; HARBOR FREIGHT TOOLS TEXAS, LP; and/or HARBOR FREIGHT TOOLS, USAINC. each as A Responsible Third Party and for such other and further relief, either legal orequitable, to which they may show themselves justly entitled. Respectfully submitted, J. DIAMOND AND ASSOCIATES, PLLC Jeffrey L. Diamon State Bar No. 05802500 Matthew D. Sharpe State Bar No. 24067160 1010 N. San Jacinto Street Houston, Texas 77002 Telephone (713) 227-6800 Facsimile (713) 227-6801 Attorney for Defendant BRADFORD MECHANICAL, INC. and GAYLYNN FOXXCERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was sent viafacsimile, hand-delivered, via electronic transmission, and/or deposited in an official depositoryof the United States Postal Service, in a postage-paid wrapper, certified mail, return receiptrequested, properly addressed to all known counsel of record on the 22nd day of June, 2012.Mark B. LevinNeal M. WizigOdom and Levin2813 West TC Jester BlvdHouston, TX 77018Norman StraubJonathan ZumwaltMestemaker & Straub3355 West Alabama, Suite 1100Houston, TX 77098David Hill BradleyWalters, Balido & Crain, L.L.P.2077 S. Gessner, Suite 230Houston, Texas 77018David E. Brothers, Jr.Brothers Sepulveda & Alvarado, P.C.Two Memorial City Plaza820 Gessner Rd #1075Houston, Texas 77024-4496Brian J. StansellAmold & Taylor420 Lockhaven Dr., Suite 100Houston, Texas 77073 Jeffrey . Diampfid/Matthew D. Sharpe
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