Pemex ExploracióN Y ProduccióN v. Murphy Energy Corp.

923 F.Supp.2d 961

PEMEX EXPLORACIÓN Y PRODUCCIÓN, individually and as assignee of Age Refining, Inc., Flint Hills Resources, L.P., and Valero Marketing and Supply Company, Plaintiffs,

v.MURPHY ENERGY CORPORATION; High Sierra Crude Oil & Marketing, LLC, successor to Petro Source Partners, L.P.; Big Star Gathering Ltd, L.L.P.; St. James Energy Operating, Inc.; F & M Transportation, Inc.; Plains Marketing L.P.; Superior Crude Gathering, Inc.; Conocophillips Co.; Fr Midstream Transport L.P. f/k/a Texstar Midstream Transport, LLC; Marathon Petroleum Co., L.P. f/k/a Marathon Petroleum Co., LLC; Shell Chemical L.P. d/b/a Shell Chemical Co.; Shell Trading U.S. Co. (“Stusco”); and Sunoco Partners Marketing & Terminals, L.P., Defendants.

Civil Action No. H–12–1081.

United States District Court,

S.D. Texas,

Houston Division.

Feb. 11, 2013.

Mark Edward Maney, Maney & Gonzalez, Houston, TX, for Plaintiff.

Joel M. Androphy, Kevin Michael Clark, Berg & Androphy, Stephanie Anne Hamm, Dow Golub et al., Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

SIM LAKE, District Judge.

Plaintiff, PEMEX Exploracion y Produccion (“PEP”), has brought suit against multiple defendants for claims arising from sales in the United States of natural gas condensate allegedly stolen from PEP in Mexico. On June 8, 2012, the court held a scheduling conference and issued a Memorandum Opinion and Order (Docket Entry No. 106) granting three motions to dismiss to the extent that they sought dismissal of claims that PEP had asserted under Mexican law for illegal possession and use of Mexican sovereign property: (1) Defendant Sunoco Partners Marketing & Terminals, L.P.'s (“Sunoco”) Motion to Dismiss in Lieu of Answer or Alternatively to Sever (Docket Entry No. 17), (2) Defendants Shell Trading U.S. Company (“STUSCO”) and Shell Chemical LP's (“Shell Chemical”) Motion to Dismiss (Docket Entry No. 31), and (3) Defendant FR Midstream Transport, LP's (“FR Midstream”) Fed.R.Civ.P. 12 Motions to Dismiss, Joinder in All Other Defendants' Fed.R.Civ.P. 12 Motions to Dismiss, and, in the Alternative, Fed.R.Civ.P. 12(e) Motion for a More Definite Statement (Docket Entry No. 43).

For reasons stated on the record at the June 8, 2012, scheduling conference, defendants waived all Rule 12(b) arguments except standing asserted in the following motions to dismiss: ¹ Plains Marketing, L.P.'s (“Plains”) Motion to Dismiss (Docket Entry No. 12); Defendants Shell Trading U.S. Company and Shell Chemical LP's Motion to Dismiss (Docket Entry No. 31); Defendant Murphy Energy Corporation's (“Murphy Energy”) Motion to Dismiss Original Complaint (Docket Entry No. 36); Defendants Big Star Gathering Ltd L.L.P. (“Big Star”) and Saint James Energy Operating, Inc.'s (“St. James”) Motion to Dismiss or, in the Alternative, Motion for More Definite Statement (Docket Entry No. 44); Defendant F & M Transportation, Inc.'s Motion to Dismiss (Docket Entry No. 66); Defendant High Sierra Crude Oil & Marketing, LLC's (“High Sierra”) Motion to Dismiss (Docket Entry No. 76); and Defendant Superior Crude Gathering, Inc.'s Motion to Dismiss (Docket Entry No. 77). Thus, to the extent that these motions seek dismissal for lack of standing, they remain pending.

Also pending are the following motions seeking leave to designate responsible third parties: Defendant FR Midstream Transport, LP's Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 120); Plains Marketing, L.P.'s Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 121); Defendants Shell Chemical LP and Shell Trading U.S. Company's Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 123); Defendant Superior Crude Gathering, Inc.'s Motion to Join in Defendants Shell Chemical LP and Shell Trading U.S. Company's Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 124); High Sierra Crude Oil & Marketing, LLC's Motion to Join Defendants Shell Chemical LP and Shell Trading U.S. Company's Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 125); Joint Motion for Leave to Designate Responsible Third Parties filed by Sunoco Partners Marketing & Terminals L.P., ConocoPhillips Co., and Marathon Petroleum Company, L.P. (“Marathon”) (Docket Entry No. 127); Defendant Murphy Energy Corporation'sMotion to Join the Shell Defendants' Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 129); Defendant F & M Transportation, Inc.'s Motion for Leave to Designate Responsible Third Parties and Motion to Join in Defendants Shell Chemical LP and Shell Trading U.S. Company's Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 130); and Defendants Big Star Gathering Ltd., LLP and Saint James Operating, Inc.'s Motion to Join in Plains Marketing, L.P.'s Motion for Leave to Designate Responsible Third Parties (Docket Entry No. 132).

For the reasons explained below, the motions to dismiss for lack of standing will be granted; the motions to designate responsible third-parties for PEP's indirect, assigned claims will be declared moot; and the motions to designate responsible third parties for PEP's direct claims for conversion, equitable relief, constructive trust, unjust enrichment, and money had and received will be granted.

I. Background

This is the third action that PEP has filed in this court based on allegations of “trade in the United States of natural gas condensate stolen in Mexico.” ² PEP filed the first of the two previous actions in June of 2010 (the so-called BASF-action, 4:10–cv–1997), and the second in May of 2011 (the so-called Big Star action, 4:11–cv–2019). On October 4, 2011, the court consolidated the two previously filed actions for all purposes.³ By Memorandum Order and Opinion dated April 12, 2012, the court denied PEP's motion for leave to file a fourth amended complaint in the BASF action, but granted PEP's motion for leave to file a first amended complaint in the Big Star action for the purpose of adding three new defendants (Plains Marketing, L.P., St. James Energy Operating, and RGV Energy Partners, L.L.C.).⁴ On the same day, i.e., April 10, 2012, PEP filed this third action.

II. Motions to Dismiss for Lack of Standing

Defendants Plains, STUSCO, Murphy Energy, F & M Transportation, Big Star, St. James, High Sierra, and Superior Crude argue that the indirect claims that PEP has asserted as assignee of AGE Refining, Inc. (“AGE”), Flint Hills Resources, Inc. (“Flint Hills”), and/or Valero Marketing and Supply Company (“Valero”) for fraud, breach of warranty, and breach of contract are subject to dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction because PEP lacks standing to assert these claims.

A. Standard of Review

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction tests the court's statutory or constitutional power to adjudicate the case. Home Builders Association of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir.1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom. Cloud v. United States, 536 U.S. 960, 122 S.Ct. 2665, 153 L.Ed.2d 839 (2002). In examining a Rule 12(b)(1) motion, the district court can consider matters of fact that may be in dispute.

Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.

Id. (citing Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996)). Dismissal on jurisdictional grounds alone is not a dismissal on the merits. Id. (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.1977) (per curiam)).

B. Applicable Law

Standing questions “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). “[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). “Standing requires, at a minimum, three elements: injury in fact, a ‘fairly traceable’ causal link between that injury and the defendant's conduct, and the likelihood that the injury will be ‘redressed by a favorable decision.’ ” Cadle Co. v. Neubauer, 562 F.3d 369, 371 (5th Cir.2009) (quoting Lujan, 112 S.Ct. at 2136). “A defect in Article III standing is a defect in subject-matter jurisdiction.” Id. at 374.See also Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n. 2 (5th Cir.2011) (“dismissal for lack of constitutional standing ... should be granted under Rule 12(b)(1)”). “Standing is a question of law” for the court to decide. Friends of St. Frances Xavier Cabrini Church v. Federal Emergency Management Agency, 658 F.3d 460, 466 (5th Cir.2011). In deciding questions of law, including standing, involving claims based on state law, applicable state law governs. See Crocker v. Federal Deposit Insurance Corp., 826 F.2d 347, 349 (5th Cir.1987), cert. denied,485 U.S. 905, 108 S.Ct. 1075, 99 L.Ed.2d 235 (1988).

“In Texas, the standing doctrine requires a concrete injury to the plaintiff and a real controversy between the parties that will be resolved by the court.” Heckman v. Williamson County, 369 S.W.3d 137, 154 (Tex.2012). Because the Texas test for standing parallels the federal test for Article III standing, Texas courts “turn for guidance to precedent from the U.S. Supreme Court, which has elaborated on standing's three elements.” Id. “The standing inquiry ‘requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is...