Motion to Amend in LA ENERGIA NORTENA, LLC, et al vs. MOISES CUEVAS| Trellis.Law

On February 16, 2021 a Motion-Secondary was filed involving a dispute between La Energia Nortena, Llc, Novoa, Humberto, Zamarripa, Adrian, and Cuevas, Moises, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
7/20/2022 2:30 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Dorothy Strogen DEPUTY

Cause No. DC-22-3103

HUMBERTO NOVOA IN THE DISTRICT COURT
ADRIAN ZAMARRIPA and
LA ENERGIA NORTENA LLC
DALLAS COUNTY, TEXAS
Vv.

MOISES CUEVAS 192nd JUDICIAL DISTRICT

PLAINTIFFS’ FIRST AMENDED RESPONSE TO
DEFENDANT’S AMENDED RULE 91A MOTION

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiffs HUMBERTO NOVOA, ADRIAN ZAMARRIPA, and LA

ENERGIA NORTENA LLC file this their RESPONSE TO DEFENDANT’S

AMENDED RULE 91A MOTION, and would respectfully show unto the Court as

follows:

I
PRELIMINARY STATEMENT

After Defendant appeared drunk and brandished, a firearm at numerous

musical events the other members of the band decided to kick out Defendant.

Consequently, the Plaintiffs filed this lawsuit to dissolve the entity and distribute the

band’s assets. Defendant has essentially engaged in a scorched earth policy to

rationalize a related federal court action by manufacturing a false copyright

controversy.

Defendant’s current Rule 91a Motion is part of his scorched earth policy. By

the interminable incessant litigation, Defendant seeks to coerce Plaintiffs to concede

that his false copyright controversy belongs in federal court. Plaintiffs do not concede.
Plaintiffs possess sufficient factual and legal justification for seeking a resolution by

this Honorable Court according to Texas law. Accordingly, Defendant’s motion

should be denied and the Plaintiffs should recover their attorney’s fees.

I.
UNDERLYING FACTS

“La Energia Nortefia” is a musical group that plays regional Latin American

(Nortefio) music. The band is owned by La Energia Nortefia, LLC (LEN), a Texas

limited liability company.

In 2014, Defendant, Cuevas, Plaintiffs, Humberto Novoa and Adrian

Zamarripa, formed La Energia Nortefia, LLC. Cuevas and Zamarripa are musicians

in the band. Novoa is the talent agent, talent manager, producer, and sole owner of

Azteca Records, LLC. La Energia Nortefia LLC has recorded several albums and

performed concerts around the United States and Northern Mexico. The band has

recorded at least 10 albums from 2012 to 2020.1 According to an agreement between

the parties, Azteca Records, LLC, the recording company that financed, produced,

and distributed the albums, owned the copyrights. Azteca Records, LLC’s ownership

of the copyrights constitutes standard practice in the music industry.

Unfortunately, performing music with Defendant became difficult. He

appeared drunk at concerts and other band events. He also brandished a gun at a

band event causing uncomfortable conversations with local law enforcement

authorities. Accordingly, Plaintiffs decided to cut ties with Defendant and dissolve

their business entity.

1Several of the band’s videos are available on You Tube and Amazon Music.

2
Plaintiffs attempted to negotiate a settlement with Defendant, intending to

pay him for his ownership percentage in the business’s net assets. Plaintiffs filed this

lawsuit to ensure a forum that would finalize the dissolution.

As word of his erratic behavior and inappropriate conduct spread through the

Latin music community, Defendant sought to devise ways to increase the value of his

interest in La Energia Nortefia, LLC. He implemented a plan to claim, falsely, that

the applicable albums and music copyrights belonged to La Energia Nortefia, LLC,

thus increasing the value of the assets that this Court must divide. As the first part

of this scheme, Cuevas surreptitiously filed applications with the US Copyright Office

on behalf of La Energia Nortefia, LLC. He did so without the authority of La Energia

Nortefia, LLC or the Plaintiffs. As part of the ongoing litigation, this Court will need

to determine Defendant’s authority to file such registrations and whether they are

fraudulent, both according to state law.

Defendant has followed a blitzkrieg plan to inundate the federal courts with

multiple pleadings attempting to sidestep procedural deficiencies with newly created

controversies and manufactured facts to prolong the inevitable adjudication of the

business dissolution in this Court. First, Defendant filed an Answer in this lawsuit

when originally filed in Harris County. He then, merely by filing a civil cover sheet,

attempted to remove this case from Harris County directly to a Dallas Federal Court.

Such conduct violated the removal procedure statute, 28 U.S.C. § 1446. The

defendant was required to file a notice of removal in Federal Court. He never did.?

*Defendant’s claim that he filed a notice of removal is false.

3
Second, the case should have been removed to a Houston Federal Court, not directly

to a Dallas Federal Court.

The Dallas Federal Court immediately recognized Defendant’s repeated

violations of 28 U.S.C. § 1446 and sua sponte transferred his removal to Houston

Federal Court. Unwilling to accept “n as an answer, Defendant immediately filed

a Motion to Tansfer the matter back to the Dallas Federal Court, according to the

Federal Transfer Statute, 28 U.S.C. § 1404a.

Defendant attempted to justify his forum shopping by asserting copyright

claims as a counterclaim. Federal courts are courts of limited jurisdiction. Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d

391 (1994). Federal court jurisdiction cannot be invoked by filing a counterclaim.

Vaden v. Discover Bank, 556 U.S. 49, 60, 129 S.Ct. 1262, 1272, 173 L.Ed.2d 206

(2009). La Energia Nortefia LLC, Novoa, and Zamarripa possess full confidence in

the state court’s ability to fairly wind down the corporation, distribute its assets, and

determine whether Defendant is liable to the corporation for his misconduct.

Accordingly, the Plaintiffs sought to remand.

At the hearing on the Plaintiffs’ Motion to Remand, the federal court confirmed

that Defendant’s tactic of filing a counterclaim did not authorize the exercise of

federal jurisdiction. Nevertheless, Defendant continued to argue his copyright claims

invoked federal jurisdiction. The Federal Court denied the Motion to Transfer to

Dallas County and remanded this case.

Without researching the applicable jurisdictional issues (such as standing and
ripeness), Defendant filed his federal court lawsuit seeking to adjudicate the

U.S.C. § 2283, Defendant sought to have the federal court enjoin this Court from

adjudicating this matter. The true purpose of such a lawsuit is to force the federal

court to litigate the entire business dissolution. The Defendant is seeking to force all

of the Plaintiffs’ claims to be brought there because after the federal court renders its

judgment, this Court will likely be required to apply the federal rules according to res

judicata, Mohamed v. Exxon Corp., 796 S.W.2d 751, 755 (Tex. App.—Houston [14th

Dist.] 1990, writ denied). Further, the federal compulsory counterclaim rule will bar

further litigation. Tex. Pacific Wood Products, Inc. v. Allison, 1995 WL 571853, *3

(Tex. App.—Beaumont 1995, writ denied),

Plaintiff disagrees. Ownership of the copyrights should be adjudicated in a

Texas court. In light of Defendant’s ginned-up claims, Plaintiffs amended their

petition, continuing to seek the dissolution of the business, but also seeking a

declaratory judgment on the copyright ownership issue. As part of an eventual

declaratory judgment, Plaintiffs seek a bar on any subsequent efforts by Cuevas to

claim copyright after this Court’s judgment. Contrary to Defendant’s Rule 91a

Motion, Plaintiffs have never sought to enjoin Cuevas’ current forum shopping federal

action. The federal action will likely be dismissed according to pending motions to

dismiss.

The Plaintiffs’ Declaratory Judgment action presents a stumbling block to

3Defendant has yet to file a federal complaint which satisfies the requirements of Fed. R. Civ. P. 8.

5
Defendant’s business dissolution adjudication in his chosen forum.

To rationalize the federal court filings, Defendant filed his Rule 91a motion.

This motion violates Texas Rule Civil Procedure 91a’s express prohibition on the

presentation of evidence by including approximately 250 pages of evidence for the

trial court to consider. Furthermore, instead of focusing on whether the Plaintiffs

satisfied the low “fair notice” standard, Defendant rewrote the Plaintiffs’ pleadings

to inject issues not present.4

In addition to his Rule 91a motion, Defendant also sought to transfer the venue

from Harris County to Dallas County. The Harris County court ultimately granted

the Motion to Transfer venue and did not rule on Defendant’s 91a motion. The

deadline for a ruling was April 5. The deadline for the ruling has come and gone.

In a further attempt to shoehorn this plain-vanilla business dissolution matter

into federal court, Defendant requested a hearing on his Rule 91a motion. This Court

informed Defendant that he needed to refile to satisfy the 25-page document

limitation. Defendant did so. However, in amending his motion, Defendant failed to

review Plaintiffs’ initial Rule 91a response and address the deficiencies pointed out

by Plaintiffs to Defendant’s first 91a motion. Defendant continues to improperly

request this Court to consider evidence, ignores the “fair notice” standard, and

rewrites Plaintiffs’ pleadings to inject irrelevant issues.

4The motion also continued Defendant’s unfortunate practice of engaging in ad hominem attacks.

6
iil.
APPLICABLE LAW

A. Copyright Ownership Issue Not Going Away.

If this Court grants Defendant’s Rule 91a motion, the copyright ownership

issue will not be eliminated from this lawsuit. On March 7, 2022, Azteca Records,

LLC filed a plea in intervention in this matter. Such a plea specifically requests that

it be declared the owner of the copyrights in question. Defendant failed to address

this plea, instead wrongly claiming, “Azteca Records, LLC is not even a party to

Plaintiffs’ action before this Court. Plaintiffs.” (See Pl.’s First Am. Rule 91a Mot. to

Dismiss at 16.)> Defendant’s motion fails to address such claims, and the claims will

remain regardless of this Court’s ruling.®

B. Rule 91a Too Tardy For Ruling.

Defendant also admitted that his Rule 91a motion to dismiss is tardy.

Plaintiffs filed their First Amended Petition on February 11, 2022. Defendant filed

his initial Rule 91a motion on February 19, 2022. Under Texas Rule of Civil

Procedure 91a, the deadline for a ruling was 45 days after the motion was filed. See

Tex. R. Civ. P. 91a.3(c). This date was April 5, 2022. However, no ruling was made

on April 5, 2022. Accordingly, Defendant’s motion is moot. See Black v. Woodrick,

2021 WL 1113149, *3 (Tex. App.—Amarillo 2021, no pet.) (tardy ruling on Rule 91a

motion cannot serve basis as ruling).

5Furthermore, Defendant’s assertion concerning lack of facts and presentation of evidence ignore
established Texas law.
6The time for Defendant to file a Rule 91a motion, complaining of such plea in intervention, has passed.

7
Cc Defendant Ignores Harsh Nature of Texas Rule of Civil Procedure 91a.

Texas Rule of Civil Procedure 91a is a harsh remedy that must be strictly

construed. Gaskill v. VHS San Antonio Partners, L.L.C., 456 8.W.3d 234, 238 (Tex.

App.—San Antonio 2014, pet. denied). The focus on such a motion rests solely on the

plaintiff's petition, ie. whether such pleading satisfies the “fair notice” standard

under Texas law. Stonewater Roofing, Ltd. Co. v. Tex. Dep’t of Ins., 641 S.W.3d 794,

799 (Tex. App.—Amarillo 2022, pet. filed); Thomas v. 462 Thomas Family Properties,

LP, 559 8.W.3d 634, 639 (Tex. App.—Dallas 2018, pet. denied); Yeske v. Piazza Del

Arte, Inc., 513 S.W.3d 652, 661 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

Such exclusive reliance on the pleadings presents great difficulty for

Defendant. In his initial Rule 91a motion, he presented approximately 250 pages of

exhibits. In his amended Rule 91a motion, Defendant continues to present evidence

of an alleged judicial admission, which he claims, permits him to prevail. However,

Texas Rule of Civil Procedure 91a could not be clearer: “[T]he court may not consider

evidence in ruling on the motion and must decide the motion based solely on the

pleading of the cause of action.” Tex. R. Civ. P. 91a.6. Accordingly, in adjudicating

the motion, the trial court must wear blinders to all matters except the plaintiffs’

pleadings. Bedford Internet Office Space, LLC v. Tex. Ins. Grp., Inc., 587 S.W.3d

717, 720 (Tex. App.—Fort Worth 2017, pet. dism’d).7 For example, in Stedman v.

7For example, Tex. R. Civ. P. 91a does not allow for a court to take judicial notice of evidence. Reynolds
v. Quantlab Trading Partners US, LP, 608 S.W.3d 549, 557 (Tex. App.—Houston [14th Dist.] 2020, no
pet.). Likewise, a court is barred from considering documents under the doctrine of optional
completeness. Raider Ranch, LP v. Lugano, Ltd., 579 S.W.3d 131, 134 (Tex. App.—Amarillo 2019, no
pet.).
Paz, 511 S.W.3d 635 (Tex. App.—Corpus Christi 2015, no pet), a judgment creditor

sought to extend the effective date of the judgment. In response, the judgment debtor

claimed that the judgment had been assigned (therefore the judgment creditor lacked

standing) and res judicata barred this suit because prior efforts to revive the

judgment had been rejected. The trial court accepted such statements and dismissed

this matter. On appeal, the Appellate Court reversed stating the factual evidence to

establish such claims must be ignored. Jd. The only issue was the sufficiency of the

pleading and because the pleading stated a recognized claim, dismissal was improper.

Id. at 638.

The Defendant is barred from relying on the transcript from the federal court

hearing on the motion for remand. By its inclusion and reference, Defendant seeks

to circumvent the limitation on pleadings and instead requests this Court erroneously

consider evidence to determine his Rule 91a motion. Defendant requests this of this

Court despite a bar on considering the evidence in a 91a Motion. Bedford Internet

Office Space, LLC v. Tex. Ins. Group, Inc., supra; Stedman v. Paz, supra.

In addition to erroneously attaching this evidence, Defendant further errs in

his interpretation of that evidence. Any alleged admission must be read in context.

See United Parcel Serv., Inc. v. Rankin, 468 S.W.3d 609, 626 (Tex. App.—San Antonio

2015, pet. denied). The alleged admission must be “deliberate, clear, and

unequivocal.” Mendoza v. Fidelity and Guaranty Ins. Underwriters, Inc., 606 S.W.2d

692, 694 (Tex. 1980). First, Defendant claims that Plaintiffs conceded that LEN owns

the copyrights in question. LEN is listed as the copyright owner as the result of
Defendant’s fraud, and the Plaintiffs’ only conceded that LEN was the owner “as we

stand here today.” (See Def. Am. 91a Mot. to Dismiss at Ex. A, 11.) Second, Defendant

claims that Plaintiffs conceded that two-track litigation was proper. Instead, the

Plaintiffs’ counsel only conceded that the copyright issue can be determined without

examining corporate formalities. (See Def.’s Am. 91a Mot. to Dismiss at Ex. A, 12—

13.)

D The Focus is on Plaintiffs’ Actual Pleadings.

The only issue presented in a Rule 91a motion is whether the pleading satisfies

the “fair notice” standard. Stonewater Roofing, Ltd. Co. v. Tex. Dep't of Ins., supra;

Thomas v. 462 Thomas Family Properties, LP, supra; Yeske v. Piazza Del Arte, Inc.,

supra. Plaintiffs’ pleadings satisfy the “fair notice” standard.

The fair notice standard sets a relatively low bar. Under this standard, “a

petition is sufficient if it gives fair and adequate notice of the facts upon which the

pleader bases his claim.” Kopplow Dev., Inc. v. City of San Antonio, 399 S.W.3d 532,

536 (Tex. 2013). More concretely, a petition provides fair notice if the opposing party

can ascertain from the pleading the nature and basic issues presented by the

controversy and what evidence might be relevant. Horizon/CMS Healthcare Corp. v.

Auld, 34 S.W.3d 887, 896 (Tex. 2000); Davis v. Quality Pest Control, 641 S.W.2d 324,

328 (Tex. App.—Houston [14th Dist.] 1982, writ refd n.r.e.).

Under this standard, pleadings are liberally construed. Taylor Publ’n Co. v.

Sys. Marketing Inc., 686 S.W.2d 213, 216 (Tex. App.—Dallas 1984, writ ref'd n.r.e.).

As the Texas Supreme Court has explained:

10
It is a general rule, so well established as to need no
citation of authority, that the petition will be construed as
favorably as possible for the pleader. The court will look to
the pleader's intendment and the pleading will be upheld
even if some element of a cause of action has not been
specifically alleged. Every fact will be supplied that can
reasonably be inferred from what is specifically stated.

Gulf, C. & S.F. Ry. Co. v. Bliss, 368 S.W.2d 594, 599 (Tex. 1963). Consequently, a

plaintiff is not required to outline in his pleadings the evidence upon which he intends

to rely. Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494-95 (Tex. 1988).

“It is not a valid objection to generally complain that the pleading does not set out

enough factual details if fair notice of the claim is given.” Aldous v. Bruss, 405 S.W.3d

847, 857 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Defendant completely fails

to mention the “fair notice” standard and consequently fails to explain how and why

the Plaintiffs’ allegations are insufficient in this regard.

1 First Amended Petition Possesses Reasonable Basis in Fact.

Dismissal under Texas Rule of Civil Procedure 91a is appropriate if the

allegations contained in the petition possess no basis. While every defendant believes

every lawsuit against him possesses no basis in fact, the Texas Supreme Court does

not mirror such a view. Rather, to possess no basis, in fact, the facts alleged in the

petition must be such that no reasonable person could believe them. See Tex. R. Civ.

P. 91a.1. As explained when considering a Federal Rule 12(b)(6) motion, such a

standard essentially requires “allegations that are sufficiently fantastic to defy

reality as we know it: claims about little green men, or the plaintiff's recent trip to

Pluto, or experiences in time travel.” Ashcroft v. Iqbal, 556 U.S. 662, 695, 129 S.Ct.

11
1937, 1959, 173 L.Ed.2d 868 (2009).

In their First Amended Petition, Plaintiffs have not made allegations “that are

sufficiently fantastic to defy reality as we know it.” The Plaintiffs and Defendant are

members of a band that make music and recorded albums. In light of such alleged

actions, it does not defy reality that a dispute exists concerning the owner of the

sufficient basis in facts. Sanchez v. Striever, 614 S.W.3d 233, 240-41 (Tex. App.—

Houston [14th Dist.] 2020, no pet.) (“Sanchez’s claim has a basis in fact because the

facts alleged are not such that no reasonable person could believe them. It is quite

plausible that a person could pour water on a speaker’s head during a press

conference.”).

Such principles also eliminate Defendant’s complaints concerning the

Plaintiffs’ failure to present evidence in response to this motion. Rule 91a motions

are not adjudicated by reviewing evidence. But more importantly, Plaintiffs are not

required to plead any evidence. Paramount Pipe & Supply Co. v. Muhr, supra. “The

rules do not require a party to set out in the pleadings all the evidence upon which

the party relies to establish a claim.” In re NCS Multistage, LLC, 2021 WL 4785743,

*4 (Tex. App.—El Paso 2021, no pet.).8 Plaintiffs were required to, under the fair

notice standard, present the nature of the controversy present (false claims of

®Thus, by demanding Plaintiffs plead evidence, Defendant is demanding this Court ignore established
Texas law.

12
copyright ownership), which they did.® Horizon/CMS Healthcare Corp. v. Auld,

supra; Davis v. Quality Pest Control, supra.

2. Plaintiffs’ First Amended Petition Possesses Reasonable
Basis in Law.

To rationalize a federal forum, Defendant essentially claims the mere mention

of the word “copyright” irradiates state court jurisdiction and therefore relief is proper

under Rule 91a. The Defendant is incorrect. “(T]he word ‘copyright’ is not so

compelling as to invoke federal jurisdiction upon its mere mention.” Muse v. Mellin,

212 F.Supp. 315, 316 (S.D.N.Y. 1962). Rather, state courts possess jurisdiction to

adjudicate copyright ownership claims if 1) the litigation does not contain a

substantial copyright question; or 2) even if the litigation involves a substantial

matter being adjudicated. See Spearman v. Exxon Coal USA, Inc., 16 F.3d 722, 725

(7th Cir. 1994) (“[I]t is settled that a dispute about the ownership of a copyright arises

under state rather than federal law.”); Dead Kennedys v. Biafra, 37 F.Supp.2d 1151,

1154 (N.D. Cal. 1999) (“Ownership and title rights are matters of common-law and

do not arise under the Copyright Act.”).!°

Ownership of a copyright, especially when state law rights are involved, does

not involve substantial copyright questions. Therefore, such cases must be

brought in state court, as opposed to federal court. Borden v. Katzman, 881

Tn claiming lack of standing likewise presents Defendant's revision of Plaintiffs’ pleadings. Plaintiffs
are seeking a declaration that they do not own the copyrights; they are not seeking to vindicate Aztec
Record’s rights.
10Furthermore, “The convoluted field of copyright jurisdiction is perceived today as one of the knottiest
dilemmas.” 3 Nimmer & Nimmer, NIMMER ON COPYRIGHT §12.01 (2002).

13
F.2d 1035, 1038 (11th Cir. 1989); Saturday Evening Post Co. v. Rumbleseat Press,

Inc., 816 F.2d 1191, 1194 (7th Cir. 1987); Dolch v. United California Bank, 702 F.2d

178, 180 (9th Cir. 1983); Briarpatch Ltd., L.P. v. Geisler Roberdeau, Inc., 194

F.Supp.2d 246, 255 (S.D.N.Y. 2002). Here, ownership of the copyrights will turn on

the contractual relationship between Azteca Records, LLC and La Energia Nortefia,

LLC. Resolution of ownership of the copyright involves Texas contract law, Texas

promissory estoppel law, and Texas statute of limitations law. Therefore, this Court

possesses jurisdiction over this matter and the Plaintiffs properly asserted such

claims herein. West v. Roberts, 2014 WL 12585657, *4 (N.D. Tex. 2014) (business

divorce); Ultraflo Corp. v. Pelican Tank Parts, Inc., 823 F.Supp.2d 578, 584 (8.D. Tex.

2011).

Given the nature of the controversy, a business dissolution, or a so-called

“business divorce”, federal courts would not possess exclusive jurisdiction over this

litigation. Even when Congress has specifically mandated a federal forum, state

courts still retain the right to resolve federal issues if the resolution of the federal

issue is incidental to a complete and full adjudication. Hathorn v. Lovorn, 457 U.S.

255, 266, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982). In the context of copyrights, state

courts can determine the ownership or validity of copyrights as an incidental or

satellite matter to overarching litigation. Knickerbocker Toy Co., Inc. v. Faultless

Starch Co., 467 F.2d 501, 509 (Cust. & Pat. App. 1972); Peay v. Morton, 571 F.Supp.

108, 113 (M.D. Tenn. 1983); Long v. Cordain, 343 P.3d 1061, 1066 (Colo. App. 2014);

Minor Miracle Productions, LLC v. Starkey, 2012 WL 112593, *5 (Tenn. App. 2012).

14
For example, a probate court can determine the ownership of alleged copyrights, to

determine whether property belonged to a decedent (and this is property of his

estate). See e.g., Architectural Body Rsch. Found. v. Reversible Destiny Found., 335

F.Supp.3d 621 (S.D.N.Y. 2018); Venegas Hernandez v. Peer Intern. Corp., 270

F.Supp.2d 207, 214 (D.P.R. 2003). Likewise, a divorce court can determine the

ownership or validity of copyrights, to determine whether and how they should be

divided between spouses. See e.g., Jackson v. Jackson, 2001 WL 1077852 (Wash. App.

2001).

As reflected by the Plaintiffs’ petition, the overarching controversy between the

parties is a business dissolution.!! As part of this Court’s authority to adjudicate this

business divorce, it can determine whether La Energia Nortefia, LLC owns the

copyrights, and if so, which party should receive the copyrights as part of the business

dissolution and distribution of assets. Thus, Defendant’s claim of exclusive federal

jurisdiction lacks merit. Instead, this Court should proceed to adjudicate this claim.

Golden v. Nadler, Pritikin & Mirabelli, LLC, 2005 WL 2897397, *2 (N.D. Ill. 2005).

To invoke a federal forum, Defendant ignores the actual allegations contained

in Plaintiffs’ pleadings. Instead, he injects the doctrines of “work made for hire” and

‘joint authorship,” words and doctrines which are not even mentioned in Plaintiffs’

First Amended Petition. (See Def.’s Am. 91a Mot. to Dismiss at 12.) A defendant

cannot rewrite a plaintiffs pleadings to obtain dismissal on allegations never made.

See e.g., Tony’s Barbeque and Steakhouse, Inc. v. Three Points Investments, Ltd., 527

1lLa Energia Nortefia’s complaints concerning Defendant’s breach of fiduciary duty were also asserted
because of Texas’ compulsory counterclaim rule.

15
$.W.3d 686, 696-97 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also In re

TPCO Am. Corp., 2018 WL 1737075, *6 (Tex. App.—Corpus Christi 2018, mand.

denied). Yet, by injecting “work made for hire” and “joint authorship,” Defendant is

seeking to do exactly this.

Defendant proceeds by stating, “Determining authorship of a copyright is a

complex analysis that requires a federal district court to review the relevant facts

surrounding the creation of the copyright works in dispute and then interpret the

(See Def.’s Am. 91a Mot. to Dismiss at 13.) For purposes of his Rule 91a motion,

Defendant must specifically identify where “work made for hire” and “joint

authorship” are mentioned, or quote the facts from the petition that allegedly support

Defendant’s version of the “complex analysis.” Since Defendant cannot point to these

terms in Plaintiffs’ Amended Petition, Defendant’s motion fails. See Tex. R. Civ. P.

91a.2 (‘A motion to dismiss must state that it is made pursuant to this rule, must

identify each cause of action to which it is addressed, and must state specifically the

reasons the cause of action has no basis in law, no basis in fact, or both.”).

Finally, Rule 91a is not appropriate for adjudicating every type of defense

regardless of how phrased. For example, in AC Interests, LP v. Tex. Comm’n on Envtl

Quality, 543 S.W.3d 703 (Tex. 2018), the Texas Supreme Court held that lack of

required service of process could not be adjudicated through Rule 91a motion. Jd. at

706. Similarly, preemption is not appropriate for adjudicating this matter especially

since Defendant is repeatedly referring to matters outside the pleadings.

16
Defendant’s reliance on Butler v. Cont’l Airlines, Inc., 31 S.W.38d 642 (Tex.

App.—Houston [1st Dist.] 2000, pet. denied) is misplaced; this case involves a claim

of alleged theft by an employee of computer macros by his employer. Rule 91a, “work

made for hire” and “joint authorship” were not involved. Likewise, a business divorce

was not involved. The appellate court adjudicated the matter premised on traditional

preemption principles. However, at least one federal court has determined that

Butler was wrongly denied. M-I LLC v. Stelly, 733 F.Supp.2d 759, 795 (S.D. Tex.

2010).

E Plaintiffs Are Entitled to Attorney’s Fees.

The purpose of Defendant’s Texas Rule of Civil Procedure 91a is to justify or

rationalize his attempt to bring the parties’ pure business divorce into federal court.

In his journey, Defendant ignores fundamental principles, such as pleadings in state

court are measured by the “fair notice” standard and that evidence cannot be utilized

to adjudicate the merits of such motions. Furthermore, Defendant’s demand claims

of preemption, being premised on allegations injected into Plaintiffs’ pleadings, are

not well taken. Perry v. Broadcast Music, Inc., 23 Fed. Appx. 210, 211-12 (6th Cir.

2001) (federal district court lacked jurisdiction when the case only involved “a dispute

as to the ownership of the compositions at issue”); Noble v. Great Brands of Europe,

Inc., 949 F.Supp. 183, 185 (S.D.N.Y. 1996) (“[F]ederal jurisdiction does not attach to

a claim involving only the breach of a copyright agreement or the ownership of a

of this failure to consider the clear standards of Texas Rule of Civil Procedure 91a,

17
Plaintiffs have been required to respond to Defendant’s Motion. Time and effort were

needlessly incurred in considering and responding - twice- once before the Harris

County Court and now before this Honorable Court. Such a casual approach to state

court practice should not be countenanced by this court, especially at the infancy of

this matter. Plaintiffs’ attorney’s fees in addressing Defendant’s motion(s) should be

awarded in a separate proceeding- to encourage prudent adherence to the letter and

spirit of the rules of court.

WHEREFORE PREMISES CONSIDERED, Plaintiffs HUMBERTO NOVOA,

ADRIAN ZAMARRIPA, and LA ENERGIA NORTENA LLC request that

Defendant’s Motion to Dismiss pursuant to Texas Rule of Civil Procedure 91a be

denied, that a hearing is set to determine the amount of attorney’s fees to be awarded

to Plaintiffs, and for general relief.

18
Respectfully submitted,

CHAMBERLAIN, HRDLICKA, WHITE,
WILLIAMS &AUGHTRY, P.C.

By: _/s/ David N. Calvillo
David N. Calvillo
State Bar No.: 03673000
david.calvillo@chamberlainlaw.com
Lauren N. Herrera
State Bar No.: 24092720
lauren.herrera@chamberlainLaw.com
1200 Smith Street, Suite 1400
Houston, TX 77002
Telephone: (713) 658-1818
Facsimile: (713) 658-2553

THE LAW OFFICE OF ANGEL MATA

By: _/s/ Angel V. Mata
Angel V. Mata
State Bar No. 24063940
attorney@angelmatalaw.com
512 S. Fitzhugh Avenue
Dallas, Texas 7223-2120
Telephone: 972.357.4956

19
CERTIFICATE OF SERVICE

A true and correct copy of the foregoing pleading has been served on counsel of
record on July 20, 2022, in accordance with Rule 21a of the Texas Rules of Civil
Procedure.

David Chase LanCarte
LANCARTE LAw, PLLC
2817 West End Ave., Suite 126-276
Nashville, Tennessee 37203
chase@lancartelaw.com

Marcus C. Marsden, Jr.
THE COLANERI FIRM, P.C.
524 E. Lamar Blvd., Suite 280
Arlington, Texas 76011
marcus@colanerifirm.com

/s/ David N. Calvillo
David N. Calvillo

20
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.

Judy Rochna on behalf of David Calvillo
Bar No. 3673000
judy.rochna@chamberlainlaw.com
Envelope ID: 66507197
Status as of 7/20/2022 2:37 PM CST
Associated Case Party: MOISES CUEVAS
Name BarNumber Email TimestampSubmitted Status
David LanCarte 24082464 chase@lancartelaw.com 7/20/2022 2:30:22 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.

Judy Rochna on behalf of David Calvillo
Bar No. 3673000
judy.rochna@chamberlainlaw.com
Envelope ID: 66507197
Status as of 7/20/2022 2:37 PM CST
Associated Case Party: HUMBERTO NOVOA
Name BarNumber Email TimestampSubmitted Status
Debbie Kennedy debbie.kennedy@chamberlainlaw.com 7/20/2022 2:30:22 PM SENT
David N.Calvillo david.calvillo@chamberlainlaw.com 7/20/2022 22 PM SENT
Judy Rochna judy.rochna@chamberlainlaw.com 7/20/2022 2:30:22 PM SENT
Lauren Herrera lauren.herrera@chamberlainlaw.com 7/20/2022 2:30:22 PM SENT
Armando Huereca armando.huereca@chamberlainlaw.com 7/20/2022 2:30:22 PM SENT
Angel V.Mata attorney@angelmatalaw.com 7/20/2022 2:30:22 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system. The filer served this
document via email generated by the efiling system on the date and to the persons listed below.
The rules governing certificates of service have not changed. Filers must still provide a certificate
of service that complies with all applicable rules.

Judy Rochna on behalf of David Calvillo
Bar No. 3673000
judy.rochna@chamberlainlaw.com
Envelope ID: 66507197
Status as of 7/20/2022 2:37 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Marcus C. Marsden 13014200 marcus@colanerifirm.com 7/20/2022 2:30:22 PM SENT
Estefany Martinez martinez@angelmatalaw.com 7/20/2022 2:30:22 PM SENT

Case Info

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ACEVES, MARIA Track Judge’s New Case

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Document Filed Date

July 20, 2022

Case Filing Date

February 16, 2021

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Motion-Secondary: LA ENERGIA NORTENA, LLC, et al vs. MOISES CUEVAS

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