and i hope you have a nice experience in the court today we have procedures that you're probably aware of already but i repeat them because because we always do the first one is that our time signals are very precise when you have two minutes left yellow light comes on and you should begin winding up your argument when the red light comes on you should definitely wind up your argument unless you're answering a question from the court second point is that we have to read the briefs and record excerpts we have not necessarily have the opportunity to get into the entire record before or and the third is related to the disposition of the summary judgment we believe that if we're correct on the first two errors the court never needs to reach the issue on the summary judgment because the case should have been of after it was determined that there was not diversity jurisdiction in the court did not have subject matter jurisdiction well just humor me for a second sir and and tell me where you got where you or your client got the eleven you know pm i see collation this was the contractor with the contract to work the tank farm turner had the contract to work the tank farm and lost it in several years or some period of time before my client was working in the digester unit because because turner no longer had the contract to work the tank farm and was not allowed to work the tank farm that is why my client believed and were responsible for paint and water proofing weatherproofing and you know that kind of thing not for quote operational word though that they absolutely were an operational operator out there at this facility in an underbid turner to get the contract alcoa says they're the ones that can that they allege that they can they were sold response for maintaining these tanks the problem is the lastest was the party out there that we understood was actually the one that caused the spill we understand  ispanic yes he is your own ok there was something in the briefs about the fact that the fellow who was actually undoing the bowl was a spanish speaking yes that's true my  so so the second error is with respect to the improper jointer with relax with respect to pm i see the third is with respect to the the granting of a summary judgment with regard to citizenship when the pla issue came up to the district court the district court was obligated to look at the said look at the the citizens ship of the parties and make a determination in this case the district court equated residency with citizenship as this court knows residency does not equal citizenship so at that point the case should have been remained because alcoa failed to present or carry their burden of a den of fine mr cooper on as a that he was a citizen of the se of texas but on the record at the time there was no evidence that he was a state citizen of the state of texas just like it's also have it both ways really well i understand your honor and i mean that so hypertechnical that under the circle you're talking about citizenship removal the court isn't tied to a certainly we're entitled at our level to take notice of fact that when he was deposed there was smoke question that he was a citizen of texas but that may be true you are but it's just it's similar to when there's a removal by a corporation the corporation says we are not we do not have a principal place of business in texas and th is what the court did is it applied its own test for evaluating improper jointer the court said that the test is whether it cannot reasonably predict that campian will so what's happened here is the court has substitute its own test which is clearly not the correct test in evaluating the improper jointer then it incorrectly did the procedure in evaluating proper jointer with the district court are supposed to do is do a twelve b six type of analysis to determine whether or not upon a quick inspection the pleading meets a twelve b six requirement in this case the we do not know exactly what the court did presumably the court d could not be liable and had no duty in the court did that determination based on the affidavit of mainly who is an employee of alcoa in the notice of removal so it not only improper join or so it was almost a summary judgment standard without hoop beyond being given an opportunity to present evidence on that issue at that stage so we believe that was clear error both on the test and the procedure and that at that point the case should have been remanded i mean to be fair the but the language of reasonable predictions and small that in addition to its right after the no possibility language right well i think small would says no possibility reasonable prediction but it's not reasonable prediction will recover i think the error here is the will recover as opposed to might recover and so it's a it's a more exacting standard that the district court is imposing on mr coon beyond then what was set forth in small would and i also believe in smallwood that the court said that this was the test that courts were not supposed to create their own test or similar tests that they were supposed to follow this specific test and the court clearly did not do that in this case so more importantly when it even after it did apply the test when it did the procedure it didn't look at a twelve x and if it did it's not clear from the record i think the the next point which is discovery well i mean you're sort of but i'm just saying at this point you're sort of trying to take opposite you know two conflicting theories right but i don't think so you other evidence subsequently come out to suggest that that may in fact be the case but the significance here is that we weren't given the benefit of discovery with respect to this issue said maly says this is our procedure but there was no evidence as to who specifically did that and in the morales decision which is not obviously before the court but is a case that has similar facts that's in the state who work in that case more alice who was an employee of turner we sent a letter brief to the court on that decision and in that case in the evidence in that case it suggests that turner and that time frame was actually involved in that procedure actually inspecting bigger part if if the employer turner was responsible you'd be relegated to compensate he would actually become part but but we know turner could not have been really responsible here in the sense that turner did not have the tank farm contract and mr groupie i was working in the digest unit he's a boiler maker he worked the entire day there when this six catastrophic spill happened he was whole in an emergency situation off of that and thrown into this very dangerous situation i worker who undid the bo before he got out from under the pipe yes that's very unfortunate and on an aside it's very unfortunate it's a record what what what were the damages suffered you said he was flown to san antonio or he went to san antonio from baron treatment i take it moving ignoring the declaration it does not make a lot of sense to us let me just for the say let me just point out to you a few things that the court did say  says that the plaintiff could not express what additional discovery he needed number one and it said that there was turner's safety meaning that day and turner turner assigned  to work at on this matter and the safety meeting had to do with changing the blinds it also says that this plaintive had changed five blinds a day for two years yes he does change blinds in a different section of single tags and all that i mean i assume there's a lot of caustic material in this plant nothing nothing in comparison to what happens in the tank farm which is why that section is very restricted and so he worked in a digester unit where they dealt with the raw material which i do not believe is caustic it's like rock or gravel and the changing of lines was of no it had it was a totally different scenario is for safety and protocol the fact is the court knows he came over in eight paper tie that suit to do the work because that's what he wears in his job because it's not nearly as dangerous and we're not dealing with caustic liquor so they pull him off in his normal job working eight hours he's in a regular  paper suit they throw him into the this caustic liquor situation and that's why that's one of the reasons he gets burns he doesn't have a proper protective world and the characterization of this as a safety meeting is not accurate i don't believe it was a see i filed several motions where i specifically articulated exactly what discovery i wanted why it was important to have an affidavit from an expert explaining why that information was what was important and what's so significant about this is in the morales case we have seen some of the discovery and that's why the court of appeals help with respect to similar facts that they thought that there was evidence of control by alcoa because alcoa has a specific policy and procedure which dictates exactly how the work is going to be done and the court of appeals and corpus christi said that gives some evidence of control they also identify their wants non sense i don't agree with that at all i think that would completely undo the the point of the chapter ninety five to specify that alone i'm not saying the facts are not in accord with denying summary judgment here but that interpretation of chapter ninety five it's got to be wrong otherwise there would be no sub contractor or contractor insulation for any company that has to have safety procedures you are appreciative of run out of time  her first of all i think there's a there is a quote question here where the chapter ninety five even applies number one if you look at the case law cited by the defendants there is not a case where it's a city similar situation  mr hooper on was engaged and i do not believe activities which would be reasonably characterized as constructing repairing renovating or modify in approval so i'm not sure chapter ninety five applies but secondarily we didn't get the opportunity to get discovery to find out specifically what the control was here's what we do know we know that they control whether you could do a lockout and tag go ahead mr cooper and been able to do is own lock out tag out meaning inspect the tank before we did the work this would not have happened and they were adamant that they control that aspect of the job and i think that may have been thank you very much  please the court good morning i'm melissa t here on behalf of alcoa the issue of diversity jurisdiction boils down to one specific question for this court did mr companion come forward with some establish that a material fact had been omitted or was false in the petition and that's the instruction at this court gave him a small wood case the court can decide an improper jointer issue in one of two ways a kid can do the twelve b six analysis question is did mr campian come forward with facts to support that allegation and what did he come forward with he came forward with a declaration and his declaration says two things about pm i c number one  says pm i c caused the spill well first of all it doesn't say that in the petition and in any event it's a relevant mr campian wasn't injured during the spill he was injured later during the cleanup of the spill and so that the tank farm we don't dispute that they did work on the tank farm it does not establish that p m i seated the l t v work on the tank at issue and that's what he's got to come forward with he's got to come forward declaration about pm i see but he did not say the one thing he needed to say was that pm honesty did the l t v work on the tank that he was working on at the time he was injured he doesn't say that anywhere and he did not ask for discovery in connection with the the motion to remain and the first request for discovery came in connection with the summary judgment decision several months down the road so on that basis the court district court can correctly correctly concluded that mr failed to come forward with facts to support the conclusion that pm i see might only duty to him in his pm i see you as an do to him he's not going to be able to establish that he might be able to recover from p we think the district court reached the correct conclusion the district court did misting the appropriate standard three with that the standard is they might be able to recover not that he would recover but that's not reversible error it was a harmless error because it got to the right result with respect to chapter ninety five chapter ninety five is a statute that limits liability to premises owners for contractor injuries to situations where the owner had control over the operative details of the contractor's work and had actual knowledge of the hazardous condition that resulted in the contractor's injury that's a threshold question that the district court has to make as a matter of law with no discovery required in this situation mr completion was tasked with going into the tank farm going up to the point at issue unbo blind that was a solid blind it was preventing the flow of information of processed with liquor through the pipe it was diverting it to another section of pipe taking that out and putting in another blind that had a hole in it which would allow the material to continue to progress through that section of pipe he made a material physical change to the pipe that changed its functionality that's a modification of the pipe under any definition of the word and that's when chapter ninety five o  mechanism of that type involves these constant changes i mean but after ninety five years perhaps it's not the clearest way to deal with with this sort of distinction but discussed those particular provisions or that particular provision of chapter ninety five but even under the ordinary webster's dictionary definition of the word modification changing the functionality of something doesn't fact constitute a modification simming that chapter ninety five applies as judge shoes concluded that it did the plaintiff can only recover against the property owner if he can establish that the property owner had control over the operative details of his work and also had actual knowledge of the hazardous condition that resulted in his injury it's a contract of test you guys have evidence of both of those elements now with respect to the first element of control we took mr companion's deposition and we asked him every way to sunday who controlled his work who gave you the job assignment turner who told you how to do it turner who gave you your instructions turner who was there with you to turn her supervisors in my turn or coworker did anybody from alcoa give you any instructions that day no did anybody from alcoa tell you how to do your job no was anybody from even there not that i can recall the only person that mr company  testify that he came in contact to that day with there was from alcoa was at the safety meeting that took place before they were sent out to do their job and the outcome supervisor told them to be safe that's always said to be safe be careful in texas supreme court has been very clear about this and judge jones you pointed out a property owner can require heads contractors to to comply with its safety instructions without incurring liability under chapter ninety five otherwise it's a it's an absolutely perverse incentive to property owners to make sure it has safety instructions to protect people at its plants those admissions that mr company made on control in his deposition are fatal to his chapter ninety five and in this case mccoy judge hughes acted as a fact finder in that case he rejected the plainest opposition testimony he found to be not credible in this case mr clinton's that deposition testimony on control was taken as true in his own testimony was fatal to the chapter ninety five element of control that situation did not exist and mccoy mccoy plaintiffs did not have admissions that were fatal to his claim and he in additional make one point because as the petition alleges that last year as did the l t v work mr campian subsequently submitted a declaration in connection with a motion for summary judgment in which he testifies under oath that al and who put the pink tags on it is not an issue the question is was mr cooper unit able to establish some evidence that alcoa controlled the operative details of his work and his work was to swap out the blinds whether or not dealt controlled the l t v process for that tank at issue that's compatible to be control over its own work chapter ninety five requires that there is evidence that alcoa controlled the contractors work defense that's that is that would be a defense because that goes to the actual knowledge of firemen of chapter ninety five that the that the property owner has to have actual knowledge that there was material left in that place in order to be liable to the plaintiff errors the employees have committed if alcoa has that knowledge or if its employees have that knowledge alcoa may in fact be bound but there's no evidence that well obviously something went wrong that's correct something went wrong and alcoa says only alcoa was the one to do the l t v process so obviously something went wrong and according to mailings declaration it had to be alcoa that went wrong that's correct your honor but that sunder a straight negligence claim and the texas supreme court has made it clear that chapter ninety five if it applies becomes the plaintiff's exclusive remedy and the only recovery that can be had is upon a showing of control an actual knowledge and the plaintiff's admissions on control are fatal to that claim what about the argument that the play of the you know the plaintiff's perception was directed by turner in other words the he was two steps removed from whoever was giving instructions in an emergency situation i don't think that there can be any better evidence of who gave mr be an instruction and who control named mr navarro but it turns out that you may have noticed that there was a fourth defendant alleged in this case was added to this case steven alvarado he was in elko employee and mr cooper in allege that mr alvarado gave him instructions that day mr alvarado told him what to do and then in connection with our removal notice we filed an affidavit from mr alvarado who said i wasn't even in the building that day i didn't do this i didn't tell  anything and the plaintiff subsequently agreed any they'd basically dropped mr alvarado from the suit and so that goes to the same point about plastic yes which is really you know as you see i'm  inclined to be a very strong defender of chapter ninety five but al for a bit the alcoa position is hear no evil see no evil and the other side can't see no evil either not our position your honor well it isn't so i mean you admit that it's a very unconventional discovery order it is an unconventional discovery order but it's not harmless error because no the plaintiff would not have  benefited from any additional discovery no additional discovery would have availed plaintiff of any facts that would be sufficient to defeat alcoa's motion for summary judgment under chapter ninety five because of his admissions under control basically you're saying are you saying that alcoa had delegated the entire operation of the plant to contractors no absolutely not saying that but that they do have a clear delineation to who was in charge of responding argument but my goodness you don't have a single fact except that quote he didn't prove any he he he the little guy on the the little guy at the bottom of the totem pole doesn't know or he contradicted what was the actual set up and it's very hard for me to see how the guy at the bottom of the maintenance total totem pole can tell characterization that all were going on here is mr campian saying he doesn't know or a lack of evidence he testified in his deposition that alcoa did not ever give him any instructions that day that his turner supervisors told him what to do and the case was very clear that you have to have evidence that the property owner controlled the operative details of the contractor's work had to have told him how to do the job such that he was unable he wasn't free to do the work in the way that he wanted to do so you're saying if alcoa told intermediaries and turner passed that message on to coupon and coupon only heard from turner that it was no i'm building if alcoa had told turner there which discovery might have determined and that's the problem with your position is there's no news coverage going to judge use that amounts to anything relevant to what we're talking about and yet you're saying because you didn't know well i would like to remind the court that this is not the first time that mr company has changed lines at the plant as he testified to change blinds five times a day for months maybe years at the plant and not withstanding what mr boyle said this this is the same type system it is the same caustic liquor material flowing through these pipes is nothing different other than it's one building versus a different building when modification it seems to me it's the same system the same blinds operating in the same way that's a different point though keep going on the point you're making but so the point there is that mr campian had worked there for some period of time doing the same exact job over and over again if if if he did not believe that turner wasn't giving him his instructions or if he thought that alcoa was giving him and instructions and he wouldn't testify the way he did in his deposition i just have a few rebuttal points i'd like to refocus the court's attention back on the improper jointer issue and there's a significant factor that has made it which is that we did not ask for discovery related to the improper join or will we did not know before the decision tame out that there was going to be an evidentiary analysis as to the jointer issue obviously had we known that we would have requested it now we know what the outcome of that would have been to as we did request and multiple times in connection with the summary judgment were denied but the point was they filed a removal they have an affidavit not from pm i c but from alcoa and we were not given the benefit of having that opportunity before the decision came out and mentioned was why we sued p m i c to begin with and judge what judge the district court did order was that p m i see provide a list of the employees that were out there at the time and what they were doing kind of job so job duties like maintenance or supervisor it's not it's not it doesn't give any detailed description behind it and so we can't it was not interpreted what's out to discovery to understand that yes we would we need to find out what these people did based on these shop titles that sort of thing but so going back to this improper drawing or issue it's it's they weren't did not collection p m r c was not denying that there were out there they fact produce documents showing who was out there but we don't know what they were doing and this significance is what we don't know meaning that the pink tags are red herring here because we don't know what that means ok we haven't gotten your specific response to her statement that the only fact you have to connect pm i c to the accident is that when he was first pulled over there to work in this area and there was the talk among all the workers of what had happened what caused it the talk was that this was all caused by pm i see so that's how he because he new pm i see  contrast of the discussion among the co workers as they were getting ready was that he did it but that's about the change as i understand it this caustic liquor isn't some kind of taint can it overflow right  now had taken the place of turners so it was operating a lot of these things and they allowed the spill that says nothing about the cause of the plaintiff's injury with wind when they you're exactly right when they caused it w his deposition but i think he said that that was his understanding of what caused the spill to begin with was that instead of having the hole so to flow it hit it hit a blind and then it backed up and it was gurgling over the top of the tank which was then spraying all over the celtics thank you ron i'm out of time