CAUSE NO CV. JAMES FREDRICK MILES, IN THE 87 th DISTRICT COURT DEFENDANT TEXAS CENTRAL RAILROAD & INFRASTRUCTURE, INC. S

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1 CAUSE NO CV JAMES FREDRICK MILES, IN THE 87 th DISTRICT COURT Plaintiff, v. TEXAS CENTRAL RAILROAD & INFRASTRUCTURE, INC., Defendant. LEON COUNTY, TEXAS MOTION TO QUASH AND FOR PROTECTIVE ORDER TO THE HONORABLE JUDGE OF SAID COURT: Pursuant to Rules 176.6(e), and of the Texas Rules of Civil Procedure, Texas Central Railroad & Infrastructure, Inc. ( TCRI ) files this Motion to Quash and for Protective Order in response to Plaintiff s Notice of Intent to Take Oral and Videotaped Deposition ( Notice ) for corporate representative on 24 areas of inquiry. TCRI respectfully shows the following: BACKGROUND TCRI will construct the first privately owned high-speed passenger railroad in the United States. TCRI s railroad will be capable of running at speeds up to 205 miles per hour, allowing passengers to travel between Dallas and Houston in only 90 minutes. In order to evaluate the routes for construction of the railroad, TCRI has asked landowners to grant voluntary access to their properties for various surveys, inspections and evaluations. TCRI made a request for voluntary access to Mr. James Fredrick Miles ( Plaintiff ) who declined that request and then filed this lawsuit. MOTION TO QUASH AND FOR PROTECTIVE ORDER Page 1

2 TCRI subsequently filed its Plea to the Jurisdiction because there is no justiciable controversy between the parties. Mr. Miles incorrectly alleges in his lawsuit that TCRI is attempting to enter Plaintiff s Property to conduct unauthorized, unlawful activities and that there is an actual and justiciable controversy as to whether TCRI has the right to enter, under the auspices of court authority, Plaintiff s [p]roperty to conduct the pre-condemnation surveys and procedures set forth in the Consent Form. Pl. s Pet. 15, 17. Mr. Miles seeks a declaration from this Court to the effect that the survey requests found in the Consent Form exceed the scope of survey activities allowed under Texas law. This is an invitation to issue an advisory opinion that the Court should not accept. TCRI s Plea to the Jurisdiction goes to the heart of the issue: there is no ripe, justiciable controversy between the parties and Mr. Miles s Petition fails to demonstrate one. Accordingly, the Petition should be dismissed, as a matter of law, for lack of subject matter jurisdiction. TCRI s counsel sought to confer with Mr. Miles counsel on a mutually convenient hearing date on TCRI s Plea. Instead of conferring, counsel for Mr. Miles served TCRI, through its counsel of record, with the Notice on April 18, A true and correct copy of the Notice is attached as Exhibit A. ARGUMENT The Notice should be quashed for two reasons. First, because of the pending plea to the jurisdiction, the Court may conclude that it has no jurisdiction over this lawsuit. There is no jurisdictional fact issue here that would render discovery of this type necessary. See Employees Ret. Sys. of Tex. v. Putnam, LLC, 294 S.W.3d 309, 323 (Tex.App. Austin 2009, no pet.) (holding discovery before ruling on plea to the jurisdiction is unnecessary where there is no fact issue to be resolved). The Notice is merely an attempt by Plaintiff to use this Court s discovery MOTION TO QUASH AND FOR PROTECTIVE ORDER Page 2

3 procedures to harass TCRI and seek information to which Plaintiff is not entitled before giving this Court to opportunity to decide whether it even has jurisdiction to hear his claims. Accordingly, requiring TCRI at this time to appear at and defend the deposition subjects it to undue and unnecessary burden and expense. For these reasons, TCRI requests the Court quash the Notice and enter an order that the deposition not be held. See TEX. R. CIV. P (b). If the deposition is to occur at all, a reasonable time would be sometime after this Court confirms the necessity of, and clarifies the proper scope of, the deposition by ruling on the plea to the jurisdiction and on this motion. See TEX. R. CIV. P (a). TCRI thus requests that the Notice be quashed and that the Court order the deposition be held, if at all, at some reasonable time after the Court rules on the plea to the jurisdiction and this motion. See TEX. R. CIV. P (b)(3). Secondly, and pursuant to TEX. R. CIV. P and 199.4, TCRI objects to the date of the deposition and moves to quash the Notice. Counsel for Mr. Miles did not bother to confer with the undersigned about a mutually convenient time for the deposition. This motion is filed on or before the third business day after service of the Notice, and thus it stays the deposition pending resolution of the motion. See TEX. R. CIV. P WHEREFORE, Texas Central Railroad & Infrastructure, Inc. prays that the Court grant this Motion to Quash and for Protective Order, and for such further relief, at law or in equity, to which TCRI may be justly entitled. MOTION TO QUASH AND FOR PROTECTIVE ORDER Page 3

4 Respectfully submitted, /S/ Robert Neblett JACKSON WALKER L.L.P. 100 Congress Avenue, Suite 1100 Austin, Texas Fax No Robert B. Neblett III W. Brad Anderson Susan Dillon Ayers ATTORNEYS FOR TEXAS CENTRAL RAILROAD & INFRASTRUCTURE, INC. CANNON AND WILSON, P.C. 215 West State Groesbeck, Texas Fax No Joe B. Cannon Scott Wilson ATTORNEYS FOR TEXAS CENTRAL RAILROAD & INFRASTRUCTURE, INC. MOTION TO QUASH AND FOR PROTECTIVE ORDER Page 4

5 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was delivered on this the 20 th day of April, 2016 to the following: VIA ELECTRONIC DELIVERY Blake L. Beckham THE BECKHAM GROUP, P.C Carlisle, Suite 550 Dallas, Texas blake@beckham-group.com Attorneys for Plaintiff VIA ELECTRONIC DELIVERY M. Patrick McShan THE BECKHAM GROUP, P.C Carlisle, Suite 550 Dallas, Texas patrick@beckham-group.com Attorneys for Plaintiff /S/ Robert Neblett Robert B. Neblett III v.1 MOTION TO QUASH AND FOR PROTECTIVE ORDER Page 5