Granting a writ of mandamus is a rare phenomenon in the U.S. Court of Appeals for the Fifth Circuit. Federal trial judges’ control of their own docket and schedules is nearly sacrosanct.
But lawyers for a Spanish company that makes marine chains for use in the oil and gas production business is asking the Fifth Circuit to force a federal judge in Houston to delay its $165 million civil trial now scheduled for July until next January.
U.S. District Judge David Hittner has set July 13 as the trial date for the eight-year-old commercial contract case pitting Brazilian-owned energy company Petrobras against Vicinay Cadenas.
Partners at Norton Rose Fulbright, which represents Vicinay, filed the mandamus petition last week asking the federal appeals court “to correct the district court’s clear errors of law on a matter of great importance caused by the current pandemic.”
Vicinay, which is a family-owned company based in Bilbao, Spain, argues that none of its company officials will be able to travel to the U.S. to testify in person in the trial, which puts the business at a tremendous disadvantage in court.
“A verdict for Petrobras America could very well condemn Vicinay Cadenas to insolvency, thereby destroying many generations’ worth of family wealth,” Norton Rose Fulbright partners Mark Baker and Kevin O’Gorman wrote in the mandamus petition. “Most of the witnesses – and all of the fact witnesses and party representative for Vicinay – are located abroad.”
Vicinay lawyers, including Norton Rose Fulbright senior associate Denton Nichols, argued that there is a “near certainty that none of the foreign witnesses … would be lawfully permitted to enter this country until 2021 at the earliest.” Even if participating by video, “all of Vicinay’s fact witnesses and principal experts will have to participate remotely at extreme hours.”
Lawyers for Vicinay and Petrobras filed a joint motion May 5 asking Judge Hittner to delay the trial six months because of the issue of European witnesses and because the lawyers for both sides have “multiple commitments that have been scheduled or rescheduled to occur during the remainder of 2020.”
Petrobras sued Vicinay in 2012 after a tether chain Petrobras used in one of its deepwater drilling sites in the Gulf of Mexico broke, forcing Petrobras to stop producing oil from the site. Petrobras originally sought $500 million in damages, but some of the company’s claims have been dropped or dismissed.
DLA Piper, including Houston senior associate Brett Solberg, is representing Petrobras.
Court documents point out that the Fifth Circuit has already reversed Judge Hittner twice in this very case – both times involved the appeals court overturning the trial judge’s decisions to grant summary judgment in favor of Vicinay.
In a 10-page order issued May 11, Judge Hittner rejected the request and said jury selection in the case will start July 13.
“This is an eight-year-old dispute over a broken chain,” Judge Hittner wrote. “In an exercise of discretion, the court determines it would be inappropriate to grant a continuance at this procedural stage of the case. The parties have actively litigation this case for over eight years, and no less than seven continuances and scheduling orders have been issued over the course of this litigation’s eight-year history.”
Judge Hittner said he understands that “COVID-19 may impact how the parties arrange, plan and prioritize which representatives and witnesses will appear in person at trial.
“Nevertheless, this court, along with federal courts nationwide, continues to be committed to fulfilling its role of adjudicating cases and controversies,” the judge wrote. “The court is therefore constantly taking measures – including physical distancing and utilizing technology – to ensure cases are timely and justly heard and resolved.”
In its 32-page mandamus petition, Norton Rose Fulbright lawyers said Judge Hittner’s trial date puts its client at a huge tactical disadvantage, “violates the plain terms of the Federal Rules of Procedure and infringes on Vicinay’s constitutional right to physically attend trial through its party representative.”
“The district court identified no ‘compelling circumstances’ or ‘overwhelming reason’ justifying a jury trial by video during a global pandemic or exclusion of Vicinay’s party representative,” the petition argues. “This is a commercial case presenting no pressing issues of time sensitivity or public importance, where both sides have agreed to a later date that remains open on the court’s schedule.”
The July 13 trial date, according to defense counsel, “would grievously prejudice Vicinay, expose participants to potential health risks and … undermine the court’s role as a servant of the public.”