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

On February 16, 2021 a Motion,Ex Parte 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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3/7/2022 3:05 PM
Marilyn Burgess - District Clerk Harris County
Envelope No. 62366805
By: Brenda Espinoza
Filed: 3/7/2022 3:05 PM

Cause No. 2021-22525

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

MOISES CUEVAS 61st JUDICIAL DISTRICT

PLAINTIFFS’ RESPONSE TO
DEFENDANT’S RULE 91A MOTION

By: /s/ David N. Calvillo
david.calvillo@chamberlainlaw.com
Texas State Bar No. 03673000
CHAMBERLAIN, HRDLICKA,
WHITE, WILLIAMS & AUGHTRY,
P.C
1200 Smith Street, Suite 1400
Houston, Texas 77002
Telephone: (713) 658-1818
Facsimile: (713) 658-2553

Angel Mata
attorney@angelmatalaw.com
Texas State Bar No. 24063940
THE LAW OFFICE OF ANGEL
MATA, P.C.
512 S. Fitzhugh Ave.
Dallas, Texas 75223
Telephone: (972) 357-4956
Facsimile: (972) 534-1715

ATTORNEYS FOR PLAINTIFFS
TABLE OF CONTENTS
Page(s)

Table of Contents l

Il Preliminary Statement

TI Underlying Facts

IV The Incongruous Procedural History

Arguments and Authorities

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

Plaintiffs’ Declaratory Judgment Action Possesses
Reasonable Basis in Fact Defeating Dismissal

Plaintiff's Declaratory Judgment Action Posseses
Reasonable Basis in Law Defeating Dismissal 10

1 There is No Alleged Defect on Pleading’s Face 10

ii. This Court May Adjudicate the Copyright
Ownership Issue 11

Defendant’s Proffer of Purported “Evidence” Is
Procedurally Inappropriate and Must Be Ignored 14

e. Plaintiffs Should Receover Attorney’s Fees 19

VI Conclusion and Prayer 21

VII. Certificate of Service 23

ll
TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiffs HUMBERTO NOVOA, ADRIAN ZAMARRIPA and LA

ENERGIA NORTENA LLC file this their RESPONSE TO DEFENDANT’S

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

I
PRELIMINARY STATEMENT

Plaintiffs, Humberto Novoa and Adrian Zamarripa are the majority owners of

La Energia Nortena, LLC. The Plaintiffs share ownership with Defendant Cuevas.

The Plaintiffs filed this lawsuit because of the incompatibility between the members.

However, Defendant has attempted to circumvent this Court’s jurisdiction by filing a

lawsuit in the Dallas federal court. Specifically, Defendant unilaterally and without

authority filed a meritless copyright claim for La Energia Nortena, LLC with the U.S.

Defendant’s Rule 91a Motion is also another attempt to remove this case into

a Dallas federal court. The facts, rules of procedure and case law warrant a resolution

by this Court. Accordingly, Defendant’s motion should be denied.

Ii.
UNDERLYING FACTS

“La Energia Nortefia” is a band that plays regional Latin American (Nortefio)

music. The band is owned by La Energia Nortefia, LLC, a Texas limited liability

company.

La Energia Nortefia, LLC (Plaintiff) was formed in 2014 and has three

members who are also owners; Plaintiffs Humberto Novoa and Adrian Zamarripa,
and Defendant Cuevas. Zamarripa and Cuevas are musicians. Novoa is a talent

agent, talent manager, producer and the sole owner of Azteca Records, LLC. During

the last eight years, La Energia Nortefia has recorded ten albums and performed

several concerts throughout the United States and Northern Mexico.! Each band

member agreed that Azteca Records, LLC, the recording company that financed,

produced and distributed the albums, owned the copyrights. (See Ex. 1 6.) Azteca

Records, LLC’s ownership of the copyrights is standard practice in the music

industry. (See Ex. 1 § 6.)

Unfortunately, performing music with Defendant became very difficult. He

appeared drunk at concerts and other band events. (See Ex. 2 § 12.) Likewise, he

brandished a gun during a band event. (See Ex. 2 § 12.) Accordingly, Plaintiffs

decided to sever the business relationship with Defendant and dissolve their business

entity.

This lawsuit was filed after business solution negotiations between the parties

could not be reached.

Defendant surmised that his music career was over after word of his erratic

behavior and inappropriate conduct spread through the Latin music community.

Thereafter, Defendant devised ways to increase his interest in La Energia Nortefia,

LLC. Without the authority from Azteca Records, LLC or La Energia Nortena, LLC,

Cuevas registered copyrights in the name of the LLC. Plaintiff now wants those ill-

gotten assets to be considered as part of the business dissolution. As the first part of

1Some of their videos are available on You Tube and Amazon Music.

2
this scheme, Cuevas surreptitiously filed applications with the US Copyright Office

on behalf of La Energia Nortefia, LLC in May 2021. He did so without the authority

of La Energia Nortefia, LLC.? Azteca Records, LLC owns the master recordings; it

never granted La Energia Nortena, LLC nor Cuevas the authority to copyright the

albums. (See Ex. 2 { 6.)

The Incongruous Procedural History

The procedural history of this dispute engineered by Cuevas has unnecessarily

complicated the business divorce between these parties. This Court should not

countenance such machinations.

Cuevas wants to evade Harris County, where some of his misconduct occurred

and where witnesses reside (more easily providing testimony as to Defendant’s

behavior). Harris County is the largest market for Norteno music and provides the

best forum to value the entity’s assets. Rather, Cuevas wants the parties’ business

divorce adjudicated in a Dallas federal court, and is attempting bulldoze this way

there.

First, Defendant has already availed himself to Harris County by answering

the lawsuit file by Plaintiffs. He then improperly attempted to remove this case to

the Dallas federal district court by merely filing a civil cover sheet. (See Ex. 3.) This

maneuver violated 28 U.S.C. § 1446. First, in addition to a civil cover sheet,

Defendant was required to file a notice of removal in federal court. No such document

was filed. Second, the proper receiving federal court is the one located in both the

2Defendant admitted that he made the filings to obtain the business divorce in federal court. See Ex.
H to Def. Moises Cuevas, Jr.’s Rule 91a Mot. to Dismiss Pls.’ Claim for Declaratory Relief, p. 13.

3
district and division where the state court action is pending. Thus, for a Harris

County lawsuit, the proper receiving federal court for removal would be a court

located in the Southern District of Texas, Houston Division, not the Northern District

of Texas, Dallas Division.

The Dallas federal court immediately noticed Defendant’s repeated violations

of 28 U.S.C. § 1446 and sua sponte transferred his removal to the Southern District

of Texas, Houston Division. Unwilling to accept “no” as an answer, Defendant

immediately filed a motion to transfer the matter back to the Dallas federal court,

pursuant to the federal transfer statute, 28 U.S.C. § 1404(a).

Defendant attempted to rationalize his forum shopping by asserting his

unauthorized copyright claims as a counterclaim. But federal courts are courts of

limited jurisdiction, Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377,

1148S. Ct. 1673, 1675, 128 L.Ed.2d 391 (1994), and 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). Moreover, La Energia Nortefia LLC, Novoa,

and Zamarripa possess full confidence in this Court’s ability to fairly wind down the

corporation, distribute its assets, and determine whether Cuevas is liable to the

corporation for his misconduct and thus sought to remand the case.

During the motion to remand hearing, Defendant incorrectly claimed that the

state court could not adjudicate the copyright ownership dispute. Despite being

unable to identify the actual legal doctrine or cite relevant case law, Defendant

repeatedly claims that Plaintiffs admitted that La Energia Nortefia LLC owned the
copyrights in question. Those assertions blatantly misrepresent the truth. Plaintiffs

merely informed the federal court of Defendant’s contentions, and that the

Defendant’s procedural posture creates a standing issue for Defendant. Because of

these facts, Defendant is unable to maintain a case in federal court.*

During the Plaintiffs’ motion to remand hearing, the federal court ruled that

Defendant’s counter-claim did not invoke federal jurisdiction. Defendant then

claimed that because of the copyright ownership dispute, the federal court should

adjudicate the entire business divorce. “The convoluted field of copyright jurisdiction

is perceived today as one of the knottiest dilemmas.” 3 Nimmer & Nimmer, NIMMER

ON COPYRIGHT § 12.01 (2002). Without studying the issue, the federal court, Judge

Keith Ellison, informally suggested that Defendant file another case in federal

court—this one based on the falsely registered copyrights.

Despite fundamental jurisdictional issues (such as standing and ripeness),

Defendant filed his federal court lawsuit.4 Furthermore, in blatant violation of the

federal anti-injunction statute, 28 U.S.C. § 2283, Defendant sought to have the

federal court enjoin this Court from adjudicating this matter. The purpose of such

lawsuit is to attempt force the federal court to litigate the entire business divorce.

Defendant seeks to bootstrap all of Plaintiffs’ claims into the federal action,

because after the federal court renders its judgment, this Court will be required to

apply the results in this case pursuant to issue preclusion or res judicata principles,

3 Plaintiffs Novoa and Zamarripa filed a Motion to Dismiss in the federal action on March 3, 2022
with multiple basis for the dismissal, including Cuevas’ lack of standing.
4 Plaintiffs Novoa and Zamarripa filed a Motion to Dismiss in the federal action on March 3, 2022
with multiple basis for the dismissal, including Cuevas’ lack of standing.

5
and the federal compulsory counter claim rule, barring further litigation. Mohamed

v. Exxon Corp., 796 S.W.2d 751, 755 (Tex. App.—Houston [14th Dist.] 1990, writ

denied); Tex. Pac. Wood Products, Inc. v. Allison, 1995 WL 571853, *3 (Tex. App.—

Beaumont 1995, writ denied).

Again, Plaintiffs never agreed that the copyright issue belonged in federal

court.> Instead, Plaintiffs filed a motion to dismiss Defendant’s forum shopping

federal lawsuit.6 The motion is currently pending.

Moreover, as explained in more detail infra, ownership of the copyrights

presents a state law claim, which should also be adjudicated in Texas court.’

Plaintiffs accordingly amended their pleadings in this case, continuing to seek a

business divorce, but also seeking a declaratory judgment on the copyright ownership

issue. Furthermore, because Defendant has demonstrated the inability to take

as an answer, as part of any eventual declaratory judgment, Plaintiffs sought a bar

on any subsequent efforts by Cuevas to further claim a copyright after this Court’s

judgment. Contrary to Defendant’s Rule 91a Motion, Plaintiffs never sought to enjoin

Cuevas’ current forum shopping federal action; indeed, the word “injunction” is not

mentioned there.

Defendant filed his Rule 91a motion herein, seeking dismissal “as a matter of

law and/or fact”. (See Def. Moises Cuevas, Jr.’s Rule 91a Mot. to Dismiss Pls.’ Claim

5Plaintiffs only agreed that remand was appropriate.
6Plaintiffs initially filed four such motions, premised on various legal authorities. Because Defendant
implicitly conceded the invalidity of his pleadings by filing an Amended Complaint, the federal court
requested one motion addressing such new pleadings be filed.
7Indeed, given a federal court’s limited jurisdiction, questions exist whether a federal court could even
adjudicate such claims.
for Declaratory Relief, p. 8.) He erroneously claims federal courts follow the “first

filed” rule. Cuevas rewrites Plaintiffs’ pleadings, claiming that Plaintiffs are seeking

an injunction against prosecution of the federal court lawsuit (even though

“injunction” is never mentioned). Despite Texas Rule of Civil Procedure 91a’s express

prohibition on the presentation of evidence, Defendant has attached approximately

250 pages for this Court to review and consider.’

Plaintiffs’ pleadings clear the low “fair notice” hurdle imposed by Texas law.

Likewise, this Court may resolve copyright issues in situations such as this dealing

with ownership. Given Defendant’s numerous misrepresentations, flagrant violation

of the Rules, and brazen forum shopping, his motion should be denied.

Ii.
ARGUMENT AND AUTHORITIES

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

Texas Rule of Civil Procedure 91a is a harsh remedy, which 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 any such motion rests solely with

the plaintiffs petition, i.e. whether such pleading satisfies the “fair notice” standard

under Texas law. Stonewater Roofing, Ltd. Co. v. Tex. Dep’t of Ins., 2022 WL 309437,

*3 (Tex. App.—Amarillo 2022, no pet.); Thomas v. 462 Thomas Family Properties, LP,

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

8 “Except as required by 91a.7, the 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, together with any pleading
exhibits permitted by Rule 59.” Tex. R. Civ. P. 91a.6. Rule 59 deals with promissory notes, bonds,
other financial instruments and written records.
Arte, Inc., 513 S.W.3d 652, 661 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

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

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 8.W.3d 887, 896 (Tex. 2000);

Davis v. Quality Pest Control, 641 8.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. Mktg. Inc., 686 S.W.2d 2138, 216 (Tex. App.—Dallas 1984, writ refd n.r.e.). As

the Texas Supreme Court has explained:

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 set forth in his pleadings the evidence upon which he

intends to rely. Paramount Pipe & Supply Co. v. Muhr, 749 8.W.2d 491, 494-95 (Tex.

1988). Indeed, “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.).
B. Plaintiffs’ Declaratory Judgment Action Possesses Reasonable Basis
in Fact Defeating Dismissal.

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

claims possess no basis in fact. While every defendant believes every lawsuit against

him possesses no basis in fact, the Supreme Court does not mirror such view. Rather,

to possess no basis in fact, the facts alleged in the petition must be such that no

reasonable person could believe them. Tex. R. Civ. P. 91a.1. As the United States

Supreme Court explained when discussing a Federal Rule 12(b)(6) motion, such

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.

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”. Plaintiffs include a band member,

his manager, and their LLC. In light of such alleged actions, it does not defy reality

that a dissolution may be desired or a dispute exists concerning the ownership of the

copyrights associated with albums created by a band. As a result, Plaintiffs’ claims

possess a sufficient basis in facts. Sanchez v. Striever, 614 8.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 Azteca
Records, LLC. Defendant in his motion proclaims, “Plaintiffs’ claim for declaratory

relief also fails because Plaintiffs have plead no facts and have submitted no evidence

to this Court to show how Azteca Records, LLC is the owner of the copyrights in sound

recording in question.” (See Def. Moises Cuevas, Jr.’s Rule 91a Mot. to Dismiss Pls.’

Claim for Declaratory Judgment, p. 14.) Plaintiffs were not required to plead any

evidence. Paramount Pipe & Supply Co. v. Muhr, supra. Plaintiffs were only

required to, under the declaratory judgment act, present the nature of the controversy

present (false claims of copyright ownership), which Plaintiffs’ did. Horizon/CMS

Healthcare Corp. v. Auld, supra; Davis v. Quality Pest Control, supra.

Cc. Plaintiff's Declaratory Judgment Action Possesses Reasonable Basis
in Law Defeating Dismissal.

1 There is No Alleged Defect on Pleading’s Face

With regard to his claims that the declaratory judgment possesses no

reasonable basis in law, Defendant was required to prove a jurisdictional defect exists

on the face of Plaintiffs’ petition. In other words, Defendant was required to quote

the allegations, and show how such allegations, when assumed true, actually bar

recovery. Reaves v. City of Corpus Christi, 518 8.W.3d 594, 608 (Tex. App.—Corpus

Christi 2017, no pet.). Here, Defendant Cuevas has completely failed to point out any

specific allegations, when considered true, which preclude this Court from

adjudicating this matter. This is especially true because of this Court’s authority to

adjudicate copyright claims. Spearman v. Exxon Coal USA, Inc., 16 F.3d 722, 725

°In claiming lack of standing likewise presents Defendant’s revision of Plaintiffs’ pleadings. Plaintiffs
seek a declaration that they do not own the copyrights; they seek to clarify ownership, which also
vindicates Azteca Record, LLC’s rights.

10
(7th Cir. 1994) (“[I]t is settled that a dispute about the ownership of a copyright

arises under state rather than federal law.”) (emphasis added); 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.”).!° Accordingly,

Defendant’s motion can be summarily denied.

2 This Court May Adjudicate the Copyright Ownership Issue.

Even if Defendant quoted Plaintiffs’ petition and explained how this Court

lacks jurisdiction to adjudicate, his complaints concerning the lack of subject matter

jurisdiction lack merit. As one federal court has remarked, “[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, a distillation of the existing

precedent leads one to conclude that state courts possess jurisdiction to adjudicate

question, such question constitutes an incidental or satellite issue, in view of the

enter matter being adjudicated.

Under such formulation, ownership of 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 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 Cal.

10In that case, the federal court decided that the claim of exclusive federal copyright jurisdiction
justified sanctions.

11
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 is

dependent on the contractual relationship between Azteca Records, LLC, La Energia

Nortefia, LLC, and the band, La Energia Nortena. Resolution of copyright ownership

involves Texas contract law, Texas promissory estoppel law, and Texas statute of

limitations law. Therefore, this Court possesses jurisdiction over this matter, and

Plaintiffs properly asserted such claims. West v. Roberts, 2014 WL 12585657, *4

(N.D. Tex. 2014); Ultraflo Corp. v. Pelican Tank Parts, Inc., 823 F. Supp.2d 578, 584

(S.D. Tex. 2011). Nothing on the face of Plaintiffs’ pleadings demonstrates any defect.

Given the nature of the controversy, a 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 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 if it is 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). For example, a probate court can determine

the ownership of alleged copyrights, in order to determine whether property belonged

to a decedent and this is property of his estate. See, e.g., Architectural Body Research

12
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, in order to

determine whether it and how it should be divided between spouses. See, e.g., Jones

v. Glad Music Publ’g & Recording LP, 535 F. Supp.3d 723 (M.D. Tenn. 2021); Jackson

v. Jackson, 2001 WL 1077852 (Wash. App. 2001).

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

the parties is a business divorce.!! Similar to the divorce case above, the LLC

members are disputing ownership and how the benefit from these musical recordings

will be divided between the members. As part of this Court’s ability to adjudicate

this business divorce, it can determine a satellite issue, i.e. whether the copyrights

are actually owned by La Energia Nortefia, LLC, and if so, which party should receive

it as part of the divorce. Thus, Cuevas’ 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).

Defendant has cited Goodman v. Lee, 815 F.2d 1030 (5th Cir. 1987) as

mandating federal jurisdiction. In that case, the sole purpose of the lawsuit involved

authorship and declaring plaintiff as a co-author under the copyright statute.

Because plaintiff invoked the statutory provision to determine authorship, federal

jurisdiction was warranted. Id. at 1031-32. Its holding has been limited to

authorship claims. Furthermore, Goodman v. Lee involved copyright as the main

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

13
issue not an ancillary issue. Most importantly, for the purposes of this motion,

nothing on the face of Plaintiffs’ pleadings (the sole touchstone for Defendant’s

motion) even mentions authorship.!2

Finally, Defendant asserts, again without authority, “this Court lacks any

subject matter jurisdiction to enjoin or prevent Defendant Cuevas from continuing

his lawsuit before the Northern District of Texas and having his federal claims

arising under the Copyright Act and related state law claims based on copyright

heard in federal court.” (See Def. Moises Cuevas, Jr.’s Rule 91a Mot. to Dismiss Pls.’

Claim for Declaratory Judgment, p. 8.) In making this assertion, Defendant is

attempting to rewrite Plaintiffs pleadings. Plaintiffs never specifically requested an

injunction against proceeding in federal court, but merely a future prevention of

anticipated actions by Defendant. A defendant cannot rewrite a plaintiff's pleadings

to obtain dismissal on allegations never made. See, e.g., Tony's Barbeque and

Steakhouse, Inc. v. Three Points Investments, Ltd., 527 S.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 April 11, 2018, no pet.).

D. Defendant’s_Proffer_of Purported “Evidence” Is Procedurally
Inappropriate and Must Be Ignored.

In support of Defendant’s requested dismissal, Defendant attached

approximately 250 pages of exhibits revealing the extent of his forum shopping.

Furthermore, he quotes liberally from the hearing on Plaintiffs’ motion to remand,

12Jn light of the foregoing, Defendant’s statement, “[Plaintiffs’ counsel] are trying to get this State
Court to overstep is {sic} jurisdictional boundaries by requesting that this State Court provide the
declaratory relief that Plaintiffs know this State Court cannot make” is baseless.

14
wherein Plaintiffs’ counsel discussed the parties’ relative positions and noted the

standing issue overhanging Defendant’s claims. By filing his motion and attaching

evidence, Defendant violates the prohibition of Texas Rule of Civil Procedure 91a.

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

Plaintiffs pleadings. Bedford Internet Office Space, LLC v. Tex. Ins. Grp., Inc., 537

S.W.3d 717, 720 (Tex. App.—Fort Worth 2017, pet. dism’d). The Rules do not allow

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.). The

Rules also do not allow documents to be considered under the doctrine of optional

completeness. Raider Ranch, LP v. Lugano, Ltd., 579 8.W.3d 131, 134 (Tex. App.—

Amarillo 2019, no pet.). For example, in Stedman v. Paz, 511 8.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 resulting in the creditor losing standing. Res judicata barred this suit

because prior efforts to revive the judgment were rejected. The trial court accepted

such statements and dismissed the matter. On appeal, the Corpus Christi Court of

Appeals reversed stating the factual evidence to establish such claims must be

ignored. Id. at 638. The only issue was the sufficiency of the pleading and because

the pleading stated a recognized claim, dismissal was improper. Jd. at 638.

15
The prohibition easily dispenses with Defendants’ “first filed” contention.

When discussing “preemption,” Defendant claims that Plaintiffs’ declaratory

judgment claims are barred because his federal lawsuit was filed prior to Plaintiffs’

amended petition herein. As a substantive matter, the “first filed” rule does not apply

to filings made in state and federal courts. Am. Bankers Life Assurance Co. of Fl. v.

Overton, 128 Fed. Appx. 399, 403 (5th Cir. 2005); Ohio Nat. Life Assur. Corp. v. Riley-

Hagan, 2008 WL 5158089, *8 (S.D. Tex. 2008). Even if the “first filed” rule applied,

Defendant could only establish it through extrinsic evidence. Yet, this Court is barred

from considering such extrinsic evidence and therefore such defense cannot be

established through a Rule 91a motion. Bedford Internet Office Space, LLC v. Tex.

Ins. Grp., Inc., supra; Stedman v. Paz, supra. The Texas Supreme Court has noted

this type of defense cannot be adjudicate by a Rule 91a motion. AC Interests, LP v.

Tex. Comm'n on Envt'l Quality, 543 S.W.3d 703, 706 (Tex. 2018) (lack of required

service of process could not be adjudicated through Rule 91a motion).

The same principle applies to the statements made by Plaintiffs’ counsel

during the motion for remand hearing. Without identifying the applicable legal

doctrine, Defendant claims that statements made during the motion to remand

hearing warrants dismissal herein. As previously mentioned, such “evidence” cannot

be considered by this Court in adjudicating a Rule 9la motion and must be

disregarded. Bedford Internet Office Space, LLC v. Tex. Ins. Grp., Inc., supra;

Stedman v. Paz, supra. Even if this Court disagrees in this regard, it will find

Defendant’s position without merit.

16
Defendant seeks to apply the “judicial admission” doctrine to Plaintiffs’ counsel

statements during the remand hearing. Judicial admissions are conclusively binding

factual assertions, which withdraw the admitted fact from contention. Blankenship

v. Buenger, 653 Fed. Appx. 330, 335 (5th Cir. 2016). Such statements must constitute

an intentional act of waiver relating to the opponent’s proof of the fact, and not merely

a statement of assertion or concession made for some independent purpose (such as

explanation of positions and issues). U.S. Fid. & Guar. Co. v. Carr, 242 8.W.2d 224,

228 (Tex. Civ. App.—San Antonio 1951, writ ref'd). The judicial admission doctrine

“must be applied with caution because the effect is that the declarant swears himself

out of court.” Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 8.W.2d 730, 740

(Tex. App.—Houston [14th Dist.] 1998, no writ).

To justify application of the judicial admission doctrine, Defendant must

establish:

1) The statement was made in the course of a judicial
proceeding;

2) The statement is contrary to an essential fact for the
party’s recovery;

3) The statement is deliberate, clear and unequivocal;

4) The statement related to a fact upon which
judgment for the opposing party could be based; and

5) Enforcing the doctrine of admission would be
consistent with public policy.

Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 720 (Tex. App.—

Corpus Christi 1983, writ ref’d n.r.e.). Defendant has failed to establish such

17
elements. He completely fails to identify the legal doctrine in his motion.

Defendant will never be able to apply the doctrine of judicial admissions to

Plaintiffs’ statements at the motion for remand. In order to possess binding effect,

the alleged judicial admissions must be “deliberate, clear, and unequivocal. The

hypothesis of mere mistake or slip of the tongue must be eliminated.” Mendoza v.

Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). Furthermore,

the alleged judicial admission must be read in context. See United Parcel Serv., Inc.

v. Rankin, 468 8.W.3d 609, 626 (Tex. App.—San Antonio 2015, pet. denied); Nat?

Sav. Ins. Co. v. Gaskins, 572 8.W.2d 573, 576 (Tex. Civ. App.—Fort Worth 1978, no

writ). Merely reporting another party’s position does not constitute a judicial

admission. See Duffey v. Duffey, 2017 WL 6045569, *3 (Tex. App.—Houston [14th

Dist.] 2017, pet. denied).

Defendant misrepresents Plaintiffs’ counsel’s statements by asserting that

Plaintiffs conceded La Energia Nortefia, LLC’s ownership of the copyrights. Standing

constitutes one of the issues at the forefront of the federal litigation. Plaintiffs’

counsel’s remarks regarding alleged ownership of the copyright concerned

Defendant’s position as it existed at the time of the motion for remand, and issues

with standing:

With respect to the ownership of the copyrights in question,
I believe on a prima facie basis . . that establishes prima
facie that the owner is La Energia Nortefia and not Mr.
Cuevas individually. The plaintiff is La Energia Nortefia.
So as far as we stand here today, there is no question as to
ownership. It is established, at least an admission by the
defendant, that La Energia Nortefia, of which Mr. Cuevas
is admittedly a member, that is the owner of the copyright

18
in question.

(See Ex. H to Def. Moises Cuevas, Jr.’s Rule 91a Mot. to Dismiss Pls.’ Claim for

Declaratory Relief, p. 11 (emphasis added).) Later in the hearing, Plaintiffs’ counsel

expressly reminded the federal court of the standing issue:

[D]efendant is going to have standing issues with respect
to the ownership because, again, the ownership, per what
has been set forth by the defendant, shows that La Energia
Nortefia is the owner. Now, whether or not that’s
ultimately adjudicated differently, that’s a different
question; but as we stand here today, the defendant has
standing questions that they've got to address before they
even get to first base.

(See Ex. H to Def. Moises Cuevas, Jr.’s Rule 91a Mot. to Dismiss Pls’ Claim for

Declaratory Relief, p. 13 (emphasis added).) Plaintiffs’ counsel was merely

highlighting Defendant’s standing issue. During the hearing, Defendant took the

position that ownership rested with La Energia Nortena, LLC. Plaintiff's counsel

simply stated the standing issue that even if Defendant’s position was accepted:

Cuevas lacks standing. Such statements are far too ambiguous to constitute a judicial

admission. See Maldonado v. Maldonado, 556 8.W.3d 407, 416 (Tex. App.—Houston

[1st Dist.] 2018, no pet.).

E Plaintiffs Should Recover Attorney’s Fees.

Texas Rule of Civil Procedure 91a permits this Court to award attorney’s fees.

In this case, Defendant’s motion warrants the award of attorney’s fees for the

following reasons:

First, Defendant blatantly distorts the nature and effect of the statements

made by Plaintiffs’ counsel at the motion to remand hearing. Defendant cannot

19
identify the applicable legal doctrine for his position.

Second, Defendant’s motion is predicated on purported evidence, 250 pages of

it. However, Texas Rule of Civil Procedure 91a expressly prohibits the consideration

of evidence.

Third, Rule 9la motions are governed by the “fair notice” standard to

determine the sufficiency of pleading. Defendant failed to mention the fair notice

standard, much less apply it. Instead, Defendant demands that Plaintiffs plead their

evidence, which they are not required to do.

Fourth, nothing on the face of Plaintiffs’ pleadings demonstrates a lack of

jurisdiction. Rather, the federal court lacks jurisdiction over this matter. 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 Eur., 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 copyright, because such a

claim does not ‘arise under’ the Copyright Act.”).

Fifth, Defendant rewrites Plaintiffs’ pleading, asserting allegations never

made in order to obtain a dismissal.

Sixth, Defendant relies on the “first filed” rule, which does not apply in the

context of state and federal courts.

This conduct warrants the imposition of attorney’s fees.

20
IV.
CONCLUSION AND PRAYER
Defendant makes every effort to discredit this Court’s jurisdiction to force

adjudication of this case in his desired court in Dallas. Defendant’s Rule 91a

constitutes a trivial portion of such efforts. He fails to show Plaintiffs’ causes of action

have no basis in law or fact. Texas Rule of Civil Procedure 91a does not warrant

defendant’s procedural machinations and therefore Plaintiffs should recover their

attorney’s fees.

WHEREFORE PREMISES CONSIDERED, HUMBERTO NOVOA,

ADRIAN ZAMARRIPA and LA ENERGIA NORTENA LLC, Plaintiffs in the

above styled and numbered cause, pray that Defendant’s Motion to Dismiss pursuant

to Texas Rule of Civil Procedure 91a be denied, that a hearing be set to determine

attorney’s fees, and for general relief.

(signature on following page)

21
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

ATTORNEYS FOR PLAINTIFFS

22
CERTIFICATE OF SERVICE

A true and correct copy of the foregoing pleading has been served on counsel of
record on March 7, 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

44199431

23
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.

Debbie Kennedy on behalf of David Calvillo
Bar No. 3673000
debbie.kennedy@chamberlainlaw.com
Envelope ID: 62366805
Status as of 3/7/2022 3:25 PM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Marcus C. Marsden 13014200 marcus@colanerifirm.com 3/7/2022 3:05:54 PM SENT

David LanCarte

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July 27, 2022

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February 16, 2021

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Motion,Ex Parte: LA ENERGIA NORTENA, LLC, et al vs. MOISES CUEVAS

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