Preview
FILED
8/15/2022 11:34 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Dorothy Strogen DEPUTY
CAUSE NO. DC-22-03103
LA ENERGIA NORTENA, LLC, IN THE DISTRICT COURT
ADRIAN ZAMARRIPA, and
HUMBERTO NOVOA
VS. 192 JUDICIAL DISTRICT
MOISES CUEVAS, JR. DALLAS COUNTY, TEXAS
DEFENDANT’S REPLY IN SUPPORT OF
DEFENDANT’S MOTION TO STAY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant Moises Cuevas, Jr. and files this reply in support of his motion
to stay the proceedings pending before this State Court and to further address the
misrepresentations of facts and law mentioned in the Plaintiffs’ response.
I
Cuevas is NOT forum shopping a business divorce, and this State Court lacks jurisdiction
to hear copyright ownership claims grounded in disputes of authorship.
Plaintiffs falsely state in their response, “Defendant has...consistently sought to a federal
forum to adjudicate all the claims between the parties.”! While Defendant Cuevas initially sought
the removal of Plaintiffs’ action to federal court, as explained in Defendant’s present motion, at
the hearing on December 21, 2021 before the Southern District of Texas, Federal District Judge
Keith Ellison, in ruling to grant Plaintiffs’ motion to remand, explained to the issue of copyright
ownership is “...definitely federal, and I think the case on ownership of the copyright can be
' Pls’ Resp. to Def.’s Plea in Abatement and Mot. to Stay at 1.
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 1
decided without reference to whether corporate formalities were complied with.”? Accordingly,
Judge Ellison recommend that Defendant Cuevas file his own lawsuit in federal court to decide
the matters of copyright while the state court would be left to handle the dissolution of the Plaintiff
company.° Thus, as explained in Defendant’s present motion, Defendant Cuevas filed an original
action in the Federal District Court for Northern District of Texas, in Civil Action No. 3:21-CV-
03243-C-BK), to have the federal court decide the copyright ownership claim that is grounded in
a dispute of authorship with additional federal and state-based claims related to the exploitation of
such copyrights in dispute.
Defendant Cuevas’ federal action is not an attempt to have the Federal District Court for
the Northern District of Texas dissolve the Plaintiff company, nor is it an attempt to forum shop a
business divorce as Plaintiffs erroneously allege. Nowhere within the four corners of any version
of Defendant Cuevas’ federal complaint does Defendant Cuevas ever ask the Northern District of
Texas to dissolve the Plaintiff company. Defendant Cuevas is agreeable to having this State Court
adjudicate the dissolution of the Company, provided the Federal District Court can first rule on the
federal copyright claims and causes of action that Defendant Cuevas has first asserted in federal
court on behalf of the Company. As mentioned in Defendant’s present motion, only a federal
district court is empowered with the exclusive jurisdiction to decide matters of copyright that arise
under the Copyright Act. Federal courts, state courts, and legal scholar Nimmer on Copyrights are
all in agreement that claims of copyright ownership grounded in disputes of authorship arise under
the Copyright Act and exclusive jurisdiction of the federal district court.* Accordingly, the State
? See Def.’s Plea in Abatement and Motion to Stay at Exhibit A, pg. 12, In 9 - pg. 13, In. 2.
3 See id.
4 See 28 U.S.C. § 1338 (“The [U.S.] district courts shall have original jurisdiction of any civil action arising under
any Act of Congress relating to...copyrights....No State court shall have jurisdiction over any claim for relief arising
under any Act of Congress relating to...copyrights.”); see Di Angelo Publ'ns, Inc. v. Kelley, 9 F Ath 256, 260-61
(U.S. 5th Cir. 2021) (“[C]laims of copyright ownership grounded in authorship touch on federal concerns.”); see
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 2
Court lacks jurisdiction to decide matters of copyright that are grounded in disputes of authorship.
Il.
This State Court lacks jurisdiction to adjudicate Plaintiffs’ claim for declaratory judgment.
Plaintiffs have failed to allege the existence of or produce any copies of any written
instruments evidencing the grant or transfer of any copyrights to Azteca Records, LLC that would
allow this State Court to adjudicate and solely decide the issue of copyright ownership as presently
pled by Plaintiffs.
On July 25, 2022, Plaintiffs, after realizing that their claim for declaratory relief as pled in
Plaintiffs First Amended Petition was defective, Plaintiffs filed their Second Amended Petition,
which for the very first time in this state court action, specifically requested that the Court declare
“\..that all ownership and any copyrights to the ten albums were transferred by contractual
agreement to Azteca Records.”
Plaintiffs now further allege in their Response to Defendants’ present Motion that “Over
10 years ago, when La Energia Nortena (the “Band”) began, Intervenor Aztec Records funded its
music and recordings. In exchange, the Band agreed that the copyright to its portfolio of songs
also, Jones v. Glad Music Publ’g & Recording LP, 535 F. Supp. 723, 732 (M.D. Tenn. 2021) (“Claims premised
upon authorship of a copyright work arise under the Act...In addition, ownership claims grounded in disputes about
authorship are considered to arise under the Act.”); see also, Butler v. Cont’l Airlines, Inc., 31 S.W. 3d 642, 652
(Tex. App. — Houston [1% Dist.] 2000) (The copyright ownership in a work was grounded in a dispute of authorship
between the parties where there was no written contractual agreement between the parties granting the transfer of the
copyright from one to the other. Accordingly, the resolution of the copyright ownership requires “[t]he construction
of the work for hire provision of the Copyright Act....A case arises under federal law if rights claimed by one party
may be defeated by one construction of the statute and sustained by opposite construction. Therefore, we conclude
the [state] trial court and this [Texas Appellate] Court lack subject matter jurisdiction.”); see also, 3 Nimmer on
Copyrights § 12.01 (2021) (citing Butler v. Cont'l Airlines, Inc., 31 S.W. 3d 642, 652 (Tex. App. 2000)) (“Copyright
law’s work for hire doctrine raises myriad issues regarding the proper construction of federal law. State jurisdiction
has been denied when suit turned on such determination, meaning the case belonged in federal court.”).
5 See Pl.s’ 2™ Am. Pet at § 22 (Pl.s’ Claim for Declaratory Relief);.
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 3
belonged to Azteca Records. 396
The Copyright Act, under 17 U.S.C. § 201(a) states, “Copyright in a work protected under
this title vests initially in the author or authors of the work. The authors of a joint work are
coowners of copyright in the work.” It is undisputed that Moises Cuevas, Jr. played on each one
of the sound recordings in dispute. Therefore, Moises Cuevas is arguably an initial author and co-
owner of the copyright work in question.
The Copyright Act, under 17 U.S.C. § 204(a), further states, “A transfer of copyright
ownership...is not valid unless an instrument of conveyance, or a note or memorandum of the
transfer, is in writing and signed by the owner of the rights conveyed.” Thus, because the
Copyright Act requires that a grant or transfer of copyright ownership be in writing and signed by
the party conveying such interest, the issue of copyright ownership, standing alone, is generally
determined by the state courts.’
Yet, Plaintiffs fail to allege in Plaintiffs’ Second Amended Petition or their Response to
the Defendants’ present motion any specific facts that there is a written agreement signed by
Moises Cuevas, Jr. granting his initial ownership rights to Azteca Records.
Furthermore, on July 27, 2022, this State Court issued an order compelling the Plaintiffs to
provide “Defendant Cuevas with copies of documents, information, and things that Plaintiffs may
use to support their claims or defenses as required by Initial Disclosure 6” of Tex. R. Civ. Pro.
6 Pl.’s Resp. to Def.’s Plea in Abatement and Motion to Stay at 3.
7 See Di Angelo Publ'ns, Inc. y. Kelley, 9 F.Ath 256, 260-61 (U.S. 5th Cir. 2021) (“It is well established that where a
party holds copyright by virtue of an assignment or similar contractual arrangement, state law is determinative of
ownership. But claims of copyright ownership grounded in authorship touch on federal concerns.”); see also, Jones
vy. Glad Music Publ’g & Recording LP, 535 F. Supp. at 732 (M.D. Tenn. 2021) (“Claims premised upon authorship
of a copyright work arise under the Act...In addition, ownership claims grounded in disputes about authorship are
considered to arise under the Act.... However, a dispute about copyright ownership, standing alone, does not arise
under the Copyright Act.”)
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 4
194.8
Yet, after being compelled by this Court, Plaintiffs failed to produce any written
agreements, documents, or information to Defendant Cuevas in support of their newly-made
request for declaratory judgment “...that all ownership and any copyrights to the ten albums were
transferred by contractual agreement to Azteca Records. 9
Accordingly, Plaintiffs allegation in their Second Amended Petition and their Response to
the present motion that there is a contractual agreement between the parties transferring “all
ownership and any copyrights to the ten albums” in the works to Azteca Records is completely
unsupported.
Further, Plaintiffs continual failure and refusal to provide such compelled documents has
completely prejudiced Defendant Cuevas in his defense of Plaintiff's present state action and
hindered this State Court and the Northern District of Texas’ ability to timely adjudicate the claims
and causes of action before it.
Therefore, as matter of Copyright law, without a written agreement signed by Moises
Cuevas, Jr. and other members of the Band granting all ownership rights in the copyrights
to Azteca Records, this State Court lacks subject matter jurisdiction to grant declaratory
relief solely on the issue of copyright ownership as a matter of state contract law.
Indeed, Defendant Cuevas never signed any written instruments granting his copyright
8 See Exhibit 1 of this Reply (Order Granting Cuevas’ Motion to Compel).
° See Pl.s’ 2™ Am. Pet at § 22 (Pl.s’ Claim for Declaratory Relief); See Exhibit 2 of this Reply - Pl.s’ First Am.
Resp. to Required Initial Disclosures at Disclosure 6 (Plaintiffs not only failed to produce any document to support
substantiate their claim that Azteca Records is the sole owner of the copyrights in question, Plaintiffs failed to
produce a single document to support any element of their claims or causes of action against Defendant Cuevas for
breach of fiduciary duty. Accordingly, Plaintiffs intentional failure to abide by the Court’s Order Compelling them
to produce such copies and information to Defendant Cuevas that was issued on July 27, 2022 has prejudiced
Defendant Cuevas in his defense and further delayed this State Court and the Federal Court’s adjudication of the
claims before it.).
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 5
ownership in the sound recordings to Azteca Records. Plaintiffs know that Defendant Cuevas
never signed any written instruments assigning his copyright rights to Azteca Records, and rather
than allow the Federal District Court for Northern District of Texas to properly decide the federal
question of copyright ownership that is grounded in a dispute of authorship, as first raised by
Defendant Cuevas in his federal action, Plaintiffs and Plaintiffs’ counsel have failed to show
candor to this State Court and the Federal District Court for the Northern District of Texas.
Plaintiffs have spent the last eight months in federal court and state court making blanket and
unsupported allegations that the subject matter jurisdiction of copyright ownership is proper only
in state court, without producing any evidence to support a single element of their claim for
declaratory relief or any other claim against Defendant Cuevas. This Court should sanction
Plaintiffs’ and Plaintiffs’ counsels’ egregious behavior and actions, which are clearly sought to
delay and prejudice Defendant Cuevas in his defense and further prevent and delay this State Court
from otherwise quickly determining that this State Court lacks subject matter jurisdiction to decide
the issue of copyright ownership, because Moises Cuevas never signed a contract granting his
rights in the copyrights to Azteca Records.
Hl.
TEXAS LAW DOES AUTHORIZE SUSPENSION OF THE PRESENT PROCEEDINGS
A. Defendant Cuevas’ Motion to Stay DOES NOT unduly delay litigation.
Plaintiffs’ erroneously claim that if the State Court suspends the proceedings, Cuevas will
thereafter demand dismissal of this state lawsuit.'° Plaintiffs allegation is completely false.
1 See Pl.s’ Resp. to Def.’s Plea in Abatement and Motion to Stay at 7 (“Cuevas seeks to stop the state court
litigation, either permanently or for years and years and years; after the federal court enters judgment. Then Cuevas
will demand dismissal of this lawsuit (in whole or in part) because of res judicata.”).
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 6
At present, there is dispute among the parties as to who owns the copyrights to the sound
recordings in question. This State Court and the parties have to know whether the copyrights are
assets of La Energia Nortena, LLC, as alleged by Moises Cuevas’ in his federal complaint, in order
to properly account for all of the assets of the La Energia Nortena, LLC before the proposed wind
down and dissolution of the La Energia Nortena, LLC.
Thus, Defendant Cuevas is requesting that this Court allow the Federal District Court for
the Northern District of Texas to first rule on the declaratory relief that Defendant Cuevas first
requested in his original federal action, brought in part as a derivative action on behalf of La
Energia Nortena, LLC, so that the Federal District Court can first decide whether the copyrights
in question belong to La Energia Nortena, LLC, and if so, further rule on Cuevas’ derivative claims
and causes of action brought against Humberto Novoa, Adrian Zamarripa, Azteca Talent Agency,
Inc., Azteca Records, LLC, Azteca Publishing, Inc., and UMG Recordings, Inc.
As mentioned above, only a federal district court is empowered and has the exclusive
jurisdiction to grant declaratory relief that is grounded in a dispute of authorship.
Thus, once the Northern District of Texas has ruled to decide the derivative claims and
causes of action that Defendant Cuevas has raised, on behalf of La Energia Nortena, LLC, in his
original federal action, this State Court can appropriately proceed to adjudicate the proposed wind
down and dissolution of La Energia Nortena, LLC, because La Energia Nortena, LLC will no
longer be a required nominal defendant party to Cuevas’ present derivative action in the Northern
District of Texas and the federal question of whether La Energia Nortena, LLC is the owner of
copyrights to the sound recordings will be answered so that this State Court and the parties will
know whether such assets need to be accounted for in the proposed wind down and dissolution
occurring in this State Court.
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 7
Furthermore, Plaintiffs’ allegation that Cuevas seeks to stop the state court litigation “for
years and years” is completely false and ridiculous.'! Cuevas’ federal action before the Northern
District of Texas is currently set for trial on July 5, 2023 at 9:00 a.m. — less than a year from now.!?
Indeed, if at any time before such federal trial date, the Federal District Court for the
Northern District of Texas determines that the copyrights in question are not owned by La Energia
Nortena, LLC, then the proceedings before this State Court may resume.
Indeed, Judge Keith Ellison of the Southern District of Texas, at Plaintiffs hearing on
December 21, 2022, already explained to the parties that the copyright claims as raised by Cuevas
were “definitely federal” and should be decided by a federal district court while this State Court
was empowered to handle the dissolution of La Energia Nortena, LLC."3
Thus, Defendant Cuevas’ motion to stay is not sought for undue delay, but so justice can
be done.
B. The State Court has discretion to grant Cuevas’ Motion to Stay as a matter of comity.
1. “First Filed” ruled IS APPLICABLE between state and federal courts.
As a matter of comity, this State Court has discretion to grant Defendant Cuevas’ Motion
to Stay, because the same matter was first filed in a federal district Court.'*
Plaintiffs completely misrepresent and misapply the Plaintiffs’ cited law given in their
Response in order to erroneously mislead this Court that “First Filed” rule is not applicable
between federal and state courts.'>
"Jd.
12 See Exhibit 3 of this Reply — Scheduling Order of Cuevas’ federal action in the Northern District of Texas at #6.
13 See Def.’s Plea in Abatement and Motion to Stay at Exhibit A pg. 12, In 9 - pg. 13, In. 2.
14 See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-1, §4.3 (“A defendant may file a motion to stay ina Texas
court requesting that the Court suspend the case because the same case was filed in a federal court.”)(citing Alpine
Gulf, Inc. v. Valentine, 563 S.W.2d 358, 359 (Tex. App.—Houston [14" Dist.] 1978, writ ref’d n.r.e.)(first suit filed
in federal court; the defendant in first suit was entitled to stay of Texas suit.)).
15 See Pl.’s Resp to Def.’s Plea in Abatement and Motion to Dismiss at 8-9.
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 8
The Texas Courts have held:
[W]hen a suit would be proper in more than one Texas county, the
court in which suit is first filed acquires dominant jurisdiction to the
exclusion of other courts and a plea in abatement is the proper form
of relief. Curtis v. Gibbs, 511 S.W.2d 263, 267, 17 Tex. Sup. Ct. J.
305 (Tex. 1974); Cleveland v. Ward, 116 Tex. 1, 19, 285 S.W. 1063,
1070 (1926), rev'd on other grounds, 827 S.W.2d 833, 35 Tex. Sup.
Ct. J. 468 (Tex. 1992). While this is true for competing Texas cases,
the mere pendency of an action in one state will not be a ground for
abating a suit in another state between the same parties and
involving the same subject matter. Space Master Int'l, Inc. v. Porta-
Kamp Mfg. Co., 794 S.W.2d 944, 946 (Tex. App.-Houston [Ist
Dist.] 1990, no writ). Courts of sister states are considered
foreign to each other, and a suit pending in another state may
not be pleaded in abatement of another suit involving the same
subject matter brought in another state. Evans v. Evans, 186
S.W.2d 277, 278-79 (Tex. Civ. App.-San Antonio 1945, no
writ). However, as a matter of comity, it is the custom for the
second court to stay its proceeding until the first suit has been
determined, or at least for a reasonable time. Space Master Int'l,
Inc., 794 S.W.2d at 946; see Evans, 186 S.W.2d at 279.!°
The Dallas Court of Appeals has similarly held:
It is well-established that the courts of sister states are considered
foreign to each other. However, when parallel suits are filed in
sister states, it is custom, as a matter of comity, for the second
court in which an action is filed to stay its proceeding until the
first suit has been determined, or at least for a reasonable
amount of time. See Crown Leasing Corp. v. Sims, 92 8.W.3d
924, 927 (Tex. App.—Texarkana 2002, no pet.).!7
Accordingly, O’Connors on Texas Rules of Civil Trials 2021, states, “A defendant may
file a motion to stay in a Texas court requesting that the Court suspend the case because the same
case was first filed in federal court.”!®
'6See Crown Leasing Corp. v. Sims, 92 $.W.3d 924, 926-27 (Tex. App —Texarkana 2002) (Emphasis added).
17 Rouse v. Tex. Capital Bank, N.A., 394 $.W.3d 1, 7 (Tex. App.—Dallas 201 1)(citing Crown Leasing Corp., 92
S.W.3d at 926-27.) (Emphasis added).
18 See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-1, $4.3 (“A defendant may file a motion to stay in a Texas
court requesting that the Court suspend the case because the same case was filed in a federal court.”)(citing Alpine
Gulf, Inc. v. Valentine, 563 S.W.2d 358, 359 (Tex. App.—Houston [14" Dist.] 1978, writ ref’d n.r.e.)(first suit filed
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 9
2. Cuevas PREVAILS under the “First Filed” rule.
Plaintiffs erroneously claim that “If the Court were to apply the first filed rule, the Band
wins because its lawsuit was filed nine months prior to Cuevas’ lawsuit.”!” Plaintiffs’ proposition
is nonsensical and factually incorrect. The Band has never filed a lawsuit. Plaintiffs’ Original
Petition was filed on April 15, 2021 by PlaintiffLa Energia Nortena, LLC (the “loan-out” company
for the Band — not the Band itself), Plaintiff Humberto Novoa, and Plaintiff Adrian Zamarripa.
Plaintiffs’ Original Petition requested the wind-down and dissolution of La Energia Noretna, LLC
and brought a single cause of action against Moises Cuevas for breach of fiduciary duty for
allegedly harming La Energia Nortena, LLC by allegedly becoming drunk, allegedly behaving
inappropriately, allegedly casting the La Energia Nortena, LLC in a bad light and reputation, and
allegedly posting cryptic messages on social media publicly that were allegedly visibly defaming
of La Energia Nortena, LLC and its members.”° But Plaintiffs’ Original Petition in state court never
alleged any claims based on copyright nor did it ever mention the sound recordings in question.
Accordingly, for this very reason, Judge Ellison of the Southern District of Texas granted
Plaintiffs’ motion to remand Plaintiffs’ original claims back to state court, because he explained
that the copyright claims as asserted by Cuevas in the removal should be heard in a separate federal
lawsuit. Thus, acting on the recommendation of Judge Ellison, Defendant Cuevas first filed a
lawsuit in federal court, requesting declaratory relief of the ownership of the sound recording in
question along with other federal and state claims related to the exploitation of such copyrights.
in federal court in New York; D in first suit entitled to stay of Texas suit.)).
19 Pls’ Resp. to Def.’s Plea in Abatement and Motion to Stay at 9-10.
20 See Pl.’s Original Petition.
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 10
3. The Doctrine of Dominate Jurisdiction DOES NOT apply to a Motion to Stay.
Plaintiffs misapply and misinterpret the case law discussing the doctrine of dominate
jurisdiction in support of Plaintiffs’ erroneous claim that “the Band wins 2 21
The doctrine of dominate jurisdiction does not apply to the present situation. As explained
in O’Connor’s Texas Rules Civil Procedure 2021 states:
“When a suit filed in a Texas court was first filed in a federal court
or in another state’s court, the defendant should file a motion to
stay—not a motion to abate—in the Texas suit, requesting that the
court suspend the Texas suit. A motion to abate contends that one
court has dominate jurisdiction over the other court; a motion to stay
recognizes that sister courts are foreign to each other, and the
concept of dominate jurisdiction does not apply. Crown Leasing
Corp. v. Sims, 92 $.W.3d 924, 927 (Tex. App—Texas 2002, no
pet.). 3922
Furthermore, while Defendant Cuevas’ styled his present pleading as Plea in Abatement
and Motion to Stay, Defendant Cuevas’ present pleading should have only been styled as a Motion
to Stay.?? In any event, and as explained above, Plaintiff's reliance on the doctrine of dominate
jurisdiction does not apply to present situation, and this State Court, as a matter of comity, should
exercise its discretion and stay its proceedings until the Northern District of Texas has first ruled
on the federal question of copyright ownership and related copyright claims and causes of action
raised by Defendant Cuevas on behalf of La Energia Nortena, LLC as part of his derivative action.
21 See Pl.s’ Resp. to Def.’s Plea in Abatement and Motion to Stay at 10 (citing In re J.B. Hunt Transp., Inc. 492
S.W.3d 287, 292-93 (Tex. 2016).
2 See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-1, §4.1.1 (Emphasis added).
?3 See id. (“Many parties and even the appellate courts make the mistake of referring to a motion to stay as a motion
to abate”) (citing VE Corp. v. Earnest & Young, 860 S.W.2d 83, 84 (Tex. 1993) (court’s mistake); Crown Leasing,
92 S.W.3d at 926-27 (party’s mistake).
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 11
4. The Federal Court DOES NOT lack jurisdiction to decide Cuevas’ action.
For the sake of brevity, Cuevas incorporates the explanation given in the above Section II
of this Reply.
5. Cuevas has NOT waived his right to motion to stay the present state proceedings.
Plaintiffs did not file their First Amended Petition, which made a subsequent claim for
declaratory relief in state court, until February 11, 2022. Defendant thereafter filed a 91a motion
to dismiss the claim for declaratory relief as plead in Plaintiffs’ First Amended Petition on
February 19, 2022. This State Court granted Defendant’s 91a motion to dismiss without prejudice
on July 27, 2022.
Plaintiffs, as of July 25, 2022, have only recently re-pled a cause of action for declaratory
relief in Plaintiffs’ Second Amended Petition, which again fails to allege the existence of written
contract necessary for this State Court to adjudicate the copyright ownership claim. Plaintiffs have
also failed to produce any documents in support of their new allegations that all copyrights were
transferred to Azteca Records by contractual agreement as required Initial Disclosure 6 of the Tex.
R. Civ. Pro 194 and this Court’s further Order Compelling Plaintiffs to fully answer Initial
Disclosure 6 issued July 27, 2022.
Accordingly, Cuevas has acted timely at each instant that Plaintiffs have asserted a claim
for declaratory relief
of copyright ownership.
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 12
C. Cuevas’ Motion to Stay DOES NOT violate the Band’s constitutional rights.
Plaintiffs allege that if this Court stays the present proceeding the Band’s state
constitutional rights would be violated, because “the federal trial has not been scheduled.”?4
Plaintiff's allegation and its representation made in support thereofis false. Cuevas’ federal action
is set for trial on July 5, 2023 at 9:00 a.m.?5 The fact that the Northern District of Texas has not
ruled on Plaintiffs’ (who are the Defendants in the Federal case) multiple motions to dismiss
Cuevas’ federal action DOES NOT change the situation either. As mentioned, if the Federal Court
grants Plaintiffs’ motions to dismiss Cuevas’ derivative action and copyright claims asserted on
behalf of the Plaintiff company, then the proceedings in this State Court can resume. Furthermore,
if the Federal Court denies Plaintiffs’ motions to dismiss Cuevas’ derivative action and copyright
claim asserted on behalf of the Plaintiff company, then the Federal District Court will continue to
hear Cuevas’ federal copyright action and issue its ruling at a final trial beginning on July 5, 2023.
Thereafter, the State Court can properly attend to the wind down and dissolution of the Company.
Ironically, Plaintiffs complain that discovery will be stalled by the proposed suspension,?°
but it is Plaintiffs who have intentionally stalled, failed, and refused to produce any documents or
answer any discovery related to the copyright ownership issue. As admitted by Plaintiffs in their
Response, Plaintiffs, on August 12, 2022, recently filed a motion for protective order asking that
the Federal Court to stay the exchange of discovery until their multiple motions to dismiss have
been ruled upon.?’ Thus, Plaintiffs and Plaintiffs’ counsel are causing the unjust delay!
24 See Pl.s’ Resp. to Def.’s Plea of Abatement and Motion to Stay at 12.
25 See Exhibit 3 of this Reply — Scheduling Order of Cuevas’ federal action in the Northern District of Texas at #6.
26 See Pl.s’ Resp. to Def.’s Plea of Abatement and Motion to Stay at 12-13 (“Granting Cuevas’ motion will stop this
case dead in its tracks, delaying the Band’s ability prepare its case”).
27 See Pl.s’ Resp. to Def.’s Plea of Abatement and Motion to Stay at fn. 4 (“La Energia and the individual defendants
have filed a Motion for Protection requesting the federal court stay the discovery until the motions to dismiss have
been ruled on.”)
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 13
Indeed, Plaintiffs and Plaintiffs’ counsel in this State Court proceeding also fail to produce
any contractual agreements or documents to substantiate their recent claim “that all ownership and
any copyrights to the ten albums were transferred by contractual agreement to Azteca Records”
required by Initial Disclosure 6 of Tex. R. Civ. Pro. 194 — even after this State Court issued an
order on July 27, 2022, compelling Plaintiffs to fully answer.2*
Accordingly, Defendant Cuevas is completely prejudiced by Plaintiffs intentionally
refusing to produce any documentation via discovery to Cuevas in either the federal or state lawsuit
that support their adverse claim that Azteca Records is the copyright owner or their claim that this
State Court has jurisdiction.
As mentioned in Section II of this Reply, without the allegation and production of the
written contract granting all rights to Azteca Records, this State Court lacks jurisdiction to decide
the issue of copyright. Indeed, Plaintiffs know that Defendant Cuevas never signed any contracts
granting ownership to Azteca Records, and therefore, Plaintiffs are intentionally causing the delay
of fair adjudication of the claims and causes of action before the state and federal courts.
PRAYER
For all the reasons stated in this Reply in Support of Cuevas’ Motion to Stay, Defendant
Cuevas prays that this Court grants his motion to stay the present state court proceedings and suit
until the Northern District of Texas has first ruled on the federal question of copyright ownership
of the sound recordings in dispute and the related federal and state claims and causes of action first
raised by Defendant Cuevas on behalf of Plaintiff La Energia Nortena, LLC as part of a derivative
action in Civil Case No. 3:21-CV-03243-C-BK.
28 pls’ 24 Am. Petition at {22 (Pl.s’ Claim for Declaratory Relief); See also, Exhibit 1 of this Reply.
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 14
Respectfully submitted,
David Chase LanCarte
Texas Bar No. 24082464
LanCarte Law, PLLC
2817 West End Ave., Suite 126-276
Nashville, Tennessee 37203
Tel: 214-935-2430
Fax: 214-934-2450
chase@lancartelaw.com
/s/ Marcus C. Marsden, Jr.
MARCUS C. MARSDEN, JR.
State Bar No. 13014200
marcus@colanerifirm.com
THE COLANERI FIRM, P.C.
524 E. Lamar Blvd, Suite 280
Arlington, Texas 76011
Phone: 817-640-1588
Fax: 817-640-1680
ATTORNEYS FOR DEFENDANT
MOISES CUEVAS, JR.
CERTIFICATE OF SERVICE
I do hereby certify that I have forwarded a true and correct copy of the above and foregoing
pleading in this cause to all counsel of record as listed below, on this 15" day of August, 2022.
David N. Calvillo
TX State Bar No. 03673000
1200 Smith Street, Suite 1400
Houston, TX 77002
OG
Angel V. Mata
TX State Bar No. 24063940
512 S. Fitzhugh Avenue
Dallas, TX 75223
David Chase LanCarte
Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 15
EXHIBIT 1
CAUSE NO. DC-22-03103
LA ENERGIA NORTENA, LLC, IN THE DISTRICT COURT
ADRIAN ZAMARRIPA, and
HUMBERTO NOVOA
Plaintiffs,
VS. OF DALLAS COUNTY, TEXAS
MOISES CUEVAS, JR.
Defendant. 192nd JUDICIAL DISTRICT
Order on
Defendant’s Motion to Compel Plaintiffs to Supplement and Fully
Respond to Required Initial Disclosures 4, 5, & 6
The Court having considered Defendant’s Motion to Compel Plaintiffs to Supplement and
Fully Respond to Required Initial Disclosures 4, 5, & 6, the responsive pleadings of the parties,
oral arguments, and evidence submitted, ‘the Court GRANTS Defendants’ said motion and
ORDERS Plaintiffs La Energia Nortena, LLC, Humberto Novoa, and Adrian Zamarripa to
‘supplement and fully respond to Required Initial Disclosures 4, 5, and 6 within 7 days of this Order
&
a. Providing Defendant Cuevas with the amount and calculation of economic damages
as required by Initial Disclosure 4; and
b. Providing Defendant Cuevas the contact information including addresses and
telephone numbers for each of the witnesses, persons, or entities that Plaintiffs
identify in response to Initial Disclosure 5; and
c. Providing Defendant Cuevas with copies of documents, information, and things
‘that Plaintiffs may use to support their claims or defenses as required by Disclosure
6 including but not limited to providing Defendant Cuevas with:
Order on Def.’s Motion to Compel Responses to Request for Disclosure 4, 5, and 6 PAGE 1
EXHIBIT1
copy of La Energia Nortena’s certificate of formation,
copy of La Energia Nortena’s valuation report,
any documents in support of Plaintiffs’ claim that Moises Cuevas, Jr. posted
cryptic messages on social media publicly and very visibly defaming the
entity and its members,
documents in support of your claims that Moises Cuevas caused problems
with law enforcement, and
documents in support of Plaintiffs allegation that La Energia Nortena, LLC
has been financially harmed.
Signed on 32
7/27/2022 9:55:37 AM
f / =
fb / ‘LA
us
Ld ha
JUDGE PRESIDING
Order on Def.’s Motion to Compel Responses to Request for Disclosure 4, 5, and 6 PAGE 2
EXHIBIT 2
Cause No. DC-22-03103
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 AND REQUIRED INITIAL DISCLOSURES
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiffs La
Energia Nortena, LLC, Adrian Zamarripa and Humberto Novoa serve these First
Amended Required Initial Disclosures in accordance with the Texas Rules of Civil
Procedure.
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, Texas 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
EXHIBIT 2
(B) Mr. Calvillo’s resume is available at
https://www.chamberlainlaw.com/people-david_calvillo.html.
(C) Mr. Calvillo’s opinions will be based generally on his education, training, and
experience, both in this and other cases, and the billing records of Plaintiffs’
counsel and Defendants’ counsel in this case.
(D) Not applicable.
(E) Mr. Calvillo’s hourly rate, including the hourly rate of his associates and
paralegals, are located in Plaintiffs’ attorney fee invoices, which will be
produced at the appropriate time.
Discovery is ongoing, and Plaintiff reserves the right to supplement this
response with additional information according to the Texas Rules of Civil
Procedure and applicable scheduling orders.
= ae
ee
= 11
EXHIBIT 2
a
7. Any indemnity and insuring agreements described in Rule 192.3(f).
RESPONSE: None.
8. Any settlement agreements described in Rule 192.3(g).
RESPONSE: None.
9. Any witness statements described in Rule 192.3(h).
RESPONSE: None.
10.In a suit alleging physical or mental injury and damages from the occurrence
that is the subject of the case, all medical records and bills that are reasonably
related to the injuries or damages asserted or, in lieu thereof, an authorization
permitting the disclosure of such medical records and bills.
RESPONSE: Not applicable.
11.In a suit alleging physical or mental injury and damages from the occurrence
that is the subject of the case, all medical records and bills obtained by the
responding party by virtue of an authorization furnished by the requesting
party.
RESPONSE: Not applicable.
12.The name, address, and telephone number of any person who may be
designated as a responsible third party.
RESPONSE: None at this time.
30243988.v1
Case 3:21-cv-03243-C-BK Document 26 Filed 02/15/22 Page1of3 PagelD 504
EXHIBIT 3
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MOISES CUEVAS, JR.,
Plaintiff,
Vv.
HUMBERTO NOVOA,
ADRIAN ZAMARRIPA,
AZTECA RECORDS, LLC, and
AZTECA TALENT AGENCY, INC.,
Defendants. ) Civil Action No. 3:21-CV-3243-C
SCHEDULING ORDER
Pursuant to Rule 16(b), Fed. R. Civ. P., the Court establishes the following schedule for
this case:
(a) Motions to join other parties and amend the pleadings must be filed by 3:00 p.m.
on June 15, 2022.
(b) Motions for summary judgment must be filed by 3:00 p.m. on February 15, 2023
(©) The parties must take this case to mediation which must be completed by
3:00 p.m. on February 15, 2023. The mediator must file a report to the Court
within seven (7) days from the completion of mediation.
(d) Motions in limine must be filed and discovery must be completed by 3:00 p.m. on
June 14, 2023.
Deadlines will “not be extended except upon good cause shown and by order of the
Court.” See Saavedra v. Murphy Oil U.S.A., Inc. v. Lou-Con, Inc., 930 F.2d 1104, 1107
(Sth Cir. 1991).
Unless further ordered by the Court, the parties are not required to make initial
disclosures under Rule 26(a)(1), Fed. R. Civ. P., and no conferences are required under
Rule 26(f), Fed. R. Civ. P.
Counsel are expected to cooperate with each other in conducting discovery, clarifying the
issues, and getting the case ready for trial. Specifically, counsel must strictly comply with
Case 3:21-cv-03243-C-BK Document 26 Filed 02/15/22 Page 2of3 PagelD 505
EXHIBIT 3
the mandates set forth in Dondi Properties Corporation v. Commerce Savings & Loan
Association, 121 F.R.D. 284 (N.D. Tex. 1988) (en banc) (per curiam).
Filing documents electronically is not mandatory. However, in all cases where electronic
case filing is done, counsel may serve and respond to written discovery requests through
electronic mail service. This discovery practice will be governed by the Northern District
of Texas Local Rules, this Court’s Local Rules/Judge Specific Requirements, and the
Clerk’s ECF Administrative Procedures Manual regarding electronic case filing
procedures.
Counsel are referred to the Local Rules of the Northern District of Texas, the Civil Justice
Cost and Delay Reduction Plan of the Northern District of Texas, and the Local Rules/
Judge Specific Requirements of this Court.
Courtroom, Earle Cabell Federal Building, Dallas, Texas.' Counsel shall comply with the
following:
(a) All counsel shall jointly prepare a proposed pretrial order for the Court to enter,
which shall contain the following:
(1) a summary of the claims and defenses of each party;
(2) a statement of stipulated facts;
(3) an estimate of the length of trial;
(4) a list of additional matters which would aid in the disposition of the case;
(5) the signature of each counsel; and
(6) a place for the date and signature of the Court.
Counsel are ordered to confer prior to the date of submission of the proposed
pretrial order, and a certificate shall be attached to the proposed order, signed by
counsel, stating that such a conference has been held, the stipulations are agreed
upon, and that the proposed pretrial order is submitted to the Court for entry.
Failure to agree upon the wording or terms of the proposed order will not be an
excuse for not filing same, but counsel may place in such order their respective
versions of the matters to be included.
(b) At least twenty-one (21) days before the scheduled date for trial, counsel shall file
with the Clerk and serve on opposing parties proposed instructions and questions
in jury cases and proposed findings of fact and conclusions of law in non-jury
‘If the parties agree that an earlier trial setting is appropriate, the Court will consider a
motion to reschedule trial.
Case 3:21-cv-03243-C-BK Document 26 Filed 02/15/22 Page 3of3 PagelD 506
EXHIBIT 3
cases, any trial briefs that counsel may desire to present to the Court, and the
proposed pretrial order.
() At least twenty-one (21) days before the scheduled date for trial, counsel shall file
with the Clerk and serve on opposing parties the information described under Rule
26(a)(3)(A), Fed. R. Civ. P. At the same time, exhibits shall be exchanged
between the parties. Because the court finds it more practical to make evidentiary
rulings at time of trial, counsel are not required to file objections to exhibits
pursuant to Rule 26(a)(3)(B), Fed. R. Civ. P.
(d) If a pretrial conference is deemed necessary, counsel shall notify the Court at the
time of filing the proposed pretrial order, or sooner, and the Court will, at the
Court’s discretion, schedule such a confer
Preview
FILED 8/15/2022 11:34 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Dorothy Strogen DEPUTY CAUSE NO. DC-22-03103 LA ENERGIA NORTENA, LLC, IN THE DISTRICT COURT ADRIAN ZAMARRIPA, and HUMBERTO NOVOA VS. 192 JUDICIAL DISTRICT MOISES CUEVAS, JR. DALLAS COUNTY, TEXAS DEFENDANT’S REPLY IN SUPPORT OF DEFENDANT’S MOTION TO STAY TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant Moises Cuevas, Jr. and files this reply in support of his motion to stay the proceedings pending before this State Court and to further address the misrepresentations of facts and law mentioned in the Plaintiffs’ response. I Cuevas is NOT forum shopping a business divorce, and this State Court lacks jurisdiction to hear copyright ownership claims grounded in disputes of authorship. Plaintiffs falsely state in their response, “Defendant has...consistently sought to a federal forum to adjudicate all the claims between the parties.”! While Defendant Cuevas initially sought the removal of Plaintiffs’ action to federal court, as explained in Defendant’s present motion, at the hearing on December 21, 2021 before the Southern District of Texas, Federal District Judge Keith Ellison, in ruling to grant Plaintiffs’ motion to remand, explained to the issue of copyright ownership is “...definitely federal, and I think the case on ownership of the copyright can be ' Pls’ Resp. to Def.’s Plea in Abatement and Mot. to Stay at 1. Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 1 decided without reference to whether corporate formalities were complied with.”? Accordingly, Judge Ellison recommend that Defendant Cuevas file his own lawsuit in federal court to decide the matters of copyright while the state court would be left to handle the dissolution of the Plaintiff company.° Thus, as explained in Defendant’s present motion, Defendant Cuevas filed an original action in the Federal District Court for Northern District of Texas, in Civil Action No. 3:21-CV- 03243-C-BK), to have the federal court decide the copyright ownership claim that is grounded in a dispute of authorship with additional federal and state-based claims related to the exploitation of such copyrights in dispute. Defendant Cuevas’ federal action is not an attempt to have the Federal District Court for the Northern District of Texas dissolve the Plaintiff company, nor is it an attempt to forum shop a business divorce as Plaintiffs erroneously allege. Nowhere within the four corners of any version of Defendant Cuevas’ federal complaint does Defendant Cuevas ever ask the Northern District of Texas to dissolve the Plaintiff company. Defendant Cuevas is agreeable to having this State Court adjudicate the dissolution of the Company, provided the Federal District Court can first rule on the federal copyright claims and causes of action that Defendant Cuevas has first asserted in federal court on behalf of the Company. As mentioned in Defendant’s present motion, only a federal district court is empowered with the exclusive jurisdiction to decide matters of copyright that arise under the Copyright Act. Federal courts, state courts, and legal scholar Nimmer on Copyrights are all in agreement that claims of copyright ownership grounded in disputes of authorship arise under the Copyright Act and exclusive jurisdiction of the federal district court.* Accordingly, the State ? See Def.’s Plea in Abatement and Motion to Stay at Exhibit A, pg. 12, In 9 - pg. 13, In. 2. 3 See id. 4 See 28 U.S.C. § 1338 (“The [U.S.] district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to...copyrights....No State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to...copyrights.”); see Di Angelo Publ'ns, Inc. v. Kelley, 9 F Ath 256, 260-61 (U.S. 5th Cir. 2021) (“[C]laims of copyright ownership grounded in authorship touch on federal concerns.”); see Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 2 Court lacks jurisdiction to decide matters of copyright that are grounded in disputes of authorship. Il. This State Court lacks jurisdiction to adjudicate Plaintiffs’ claim for declaratory judgment. Plaintiffs have failed to allege the existence of or produce any copies of any written instruments evidencing the grant or transfer of any copyrights to Azteca Records, LLC that would allow this State Court to adjudicate and solely decide the issue of copyright ownership as presently pled by Plaintiffs. On July 25, 2022, Plaintiffs, after realizing that their claim for declaratory relief as pled in Plaintiffs First Amended Petition was defective, Plaintiffs filed their Second Amended Petition, which for the very first time in this state court action, specifically requested that the Court declare “\..that all ownership and any copyrights to the ten albums were transferred by contractual agreement to Azteca Records.” Plaintiffs now further allege in their Response to Defendants’ present Motion that “Over 10 years ago, when La Energia Nortena (the “Band”) began, Intervenor Aztec Records funded its music and recordings. In exchange, the Band agreed that the copyright to its portfolio of songs also, Jones v. Glad Music Publ’g & Recording LP, 535 F. Supp. 723, 732 (M.D. Tenn. 2021) (“Claims premised upon authorship of a copyright work arise under the Act...In addition, ownership claims grounded in disputes about authorship are considered to arise under the Act.”); see also, Butler v. Cont’l Airlines, Inc., 31 S.W. 3d 642, 652 (Tex. App. — Houston [1% Dist.] 2000) (The copyright ownership in a work was grounded in a dispute of authorship between the parties where there was no written contractual agreement between the parties granting the transfer of the copyright from one to the other. Accordingly, the resolution of the copyright ownership requires “[t]he construction of the work for hire provision of the Copyright Act....A case arises under federal law if rights claimed by one party may be defeated by one construction of the statute and sustained by opposite construction. Therefore, we conclude the [state] trial court and this [Texas Appellate] Court lack subject matter jurisdiction.”); see also, 3 Nimmer on Copyrights § 12.01 (2021) (citing Butler v. Cont'l Airlines, Inc., 31 S.W. 3d 642, 652 (Tex. App. 2000)) (“Copyright law’s work for hire doctrine raises myriad issues regarding the proper construction of federal law. State jurisdiction has been denied when suit turned on such determination, meaning the case belonged in federal court.”). 5 See Pl.s’ 2™ Am. Pet at § 22 (Pl.s’ Claim for Declaratory Relief);. Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 3 belonged to Azteca Records. 396 The Copyright Act, under 17 U.S.C. § 201(a) states, “Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.” It is undisputed that Moises Cuevas, Jr. played on each one of the sound recordings in dispute. Therefore, Moises Cuevas is arguably an initial author and co- owner of the copyright work in question. The Copyright Act, under 17 U.S.C. § 204(a), further states, “A transfer of copyright ownership...is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed.” Thus, because the Copyright Act requires that a grant or transfer of copyright ownership be in writing and signed by the party conveying such interest, the issue of copyright ownership, standing alone, is generally determined by the state courts.’ Yet, Plaintiffs fail to allege in Plaintiffs’ Second Amended Petition or their Response to the Defendants’ present motion any specific facts that there is a written agreement signed by Moises Cuevas, Jr. granting his initial ownership rights to Azteca Records. Furthermore, on July 27, 2022, this State Court issued an order compelling the Plaintiffs to provide “Defendant Cuevas with copies of documents, information, and things that Plaintiffs may use to support their claims or defenses as required by Initial Disclosure 6” of Tex. R. Civ. Pro. 6 Pl.’s Resp. to Def.’s Plea in Abatement and Motion to Stay at 3. 7 See Di Angelo Publ'ns, Inc. y. Kelley, 9 F.Ath 256, 260-61 (U.S. 5th Cir. 2021) (“It is well established that where a party holds copyright by virtue of an assignment or similar contractual arrangement, state law is determinative of ownership. But claims of copyright ownership grounded in authorship touch on federal concerns.”); see also, Jones vy. Glad Music Publ’g & Recording LP, 535 F. Supp. at 732 (M.D. Tenn. 2021) (“Claims premised upon authorship of a copyright work arise under the Act...In addition, ownership claims grounded in disputes about authorship are considered to arise under the Act.... However, a dispute about copyright ownership, standing alone, does not arise under the Copyright Act.”) Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 4 194.8 Yet, after being compelled by this Court, Plaintiffs failed to produce any written agreements, documents, or information to Defendant Cuevas in support of their newly-made request for declaratory judgment “...that all ownership and any copyrights to the ten albums were transferred by contractual agreement to Azteca Records. 9 Accordingly, Plaintiffs allegation in their Second Amended Petition and their Response to the present motion that there is a contractual agreement between the parties transferring “all ownership and any copyrights to the ten albums” in the works to Azteca Records is completely unsupported. Further, Plaintiffs continual failure and refusal to provide such compelled documents has completely prejudiced Defendant Cuevas in his defense of Plaintiff's present state action and hindered this State Court and the Northern District of Texas’ ability to timely adjudicate the claims and causes of action before it. Therefore, as matter of Copyright law, without a written agreement signed by Moises Cuevas, Jr. and other members of the Band granting all ownership rights in the copyrights to Azteca Records, this State Court lacks subject matter jurisdiction to grant declaratory relief solely on the issue of copyright ownership as a matter of state contract law. Indeed, Defendant Cuevas never signed any written instruments granting his copyright 8 See Exhibit 1 of this Reply (Order Granting Cuevas’ Motion to Compel). ° See Pl.s’ 2™ Am. Pet at § 22 (Pl.s’ Claim for Declaratory Relief); See Exhibit 2 of this Reply - Pl.s’ First Am. Resp. to Required Initial Disclosures at Disclosure 6 (Plaintiffs not only failed to produce any document to support substantiate their claim that Azteca Records is the sole owner of the copyrights in question, Plaintiffs failed to produce a single document to support any element of their claims or causes of action against Defendant Cuevas for breach of fiduciary duty. Accordingly, Plaintiffs intentional failure to abide by the Court’s Order Compelling them to produce such copies and information to Defendant Cuevas that was issued on July 27, 2022 has prejudiced Defendant Cuevas in his defense and further delayed this State Court and the Federal Court’s adjudication of the claims before it.). Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 5 ownership in the sound recordings to Azteca Records. Plaintiffs know that Defendant Cuevas never signed any written instruments assigning his copyright rights to Azteca Records, and rather than allow the Federal District Court for Northern District of Texas to properly decide the federal question of copyright ownership that is grounded in a dispute of authorship, as first raised by Defendant Cuevas in his federal action, Plaintiffs and Plaintiffs’ counsel have failed to show candor to this State Court and the Federal District Court for the Northern District of Texas. Plaintiffs have spent the last eight months in federal court and state court making blanket and unsupported allegations that the subject matter jurisdiction of copyright ownership is proper only in state court, without producing any evidence to support a single element of their claim for declaratory relief or any other claim against Defendant Cuevas. This Court should sanction Plaintiffs’ and Plaintiffs’ counsels’ egregious behavior and actions, which are clearly sought to delay and prejudice Defendant Cuevas in his defense and further prevent and delay this State Court from otherwise quickly determining that this State Court lacks subject matter jurisdiction to decide the issue of copyright ownership, because Moises Cuevas never signed a contract granting his rights in the copyrights to Azteca Records. Hl. TEXAS LAW DOES AUTHORIZE SUSPENSION OF THE PRESENT PROCEEDINGS A. Defendant Cuevas’ Motion to Stay DOES NOT unduly delay litigation. Plaintiffs’ erroneously claim that if the State Court suspends the proceedings, Cuevas will thereafter demand dismissal of this state lawsuit.'° Plaintiffs allegation is completely false. 1 See Pl.s’ Resp. to Def.’s Plea in Abatement and Motion to Stay at 7 (“Cuevas seeks to stop the state court litigation, either permanently or for years and years and years; after the federal court enters judgment. Then Cuevas will demand dismissal of this lawsuit (in whole or in part) because of res judicata.”). Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 6 At present, there is dispute among the parties as to who owns the copyrights to the sound recordings in question. This State Court and the parties have to know whether the copyrights are assets of La Energia Nortena, LLC, as alleged by Moises Cuevas’ in his federal complaint, in order to properly account for all of the assets of the La Energia Nortena, LLC before the proposed wind down and dissolution of the La Energia Nortena, LLC. Thus, Defendant Cuevas is requesting that this Court allow the Federal District Court for the Northern District of Texas to first rule on the declaratory relief that Defendant Cuevas first requested in his original federal action, brought in part as a derivative action on behalf of La Energia Nortena, LLC, so that the Federal District Court can first decide whether the copyrights in question belong to La Energia Nortena, LLC, and if so, further rule on Cuevas’ derivative claims and causes of action brought against Humberto Novoa, Adrian Zamarripa, Azteca Talent Agency, Inc., Azteca Records, LLC, Azteca Publishing, Inc., and UMG Recordings, Inc. As mentioned above, only a federal district court is empowered and has the exclusive jurisdiction to grant declaratory relief that is grounded in a dispute of authorship. Thus, once the Northern District of Texas has ruled to decide the derivative claims and causes of action that Defendant Cuevas has raised, on behalf of La Energia Nortena, LLC, in his original federal action, this State Court can appropriately proceed to adjudicate the proposed wind down and dissolution of La Energia Nortena, LLC, because La Energia Nortena, LLC will no longer be a required nominal defendant party to Cuevas’ present derivative action in the Northern District of Texas and the federal question of whether La Energia Nortena, LLC is the owner of copyrights to the sound recordings will be answered so that this State Court and the parties will know whether such assets need to be accounted for in the proposed wind down and dissolution occurring in this State Court. Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 7 Furthermore, Plaintiffs’ allegation that Cuevas seeks to stop the state court litigation “for years and years” is completely false and ridiculous.'! Cuevas’ federal action before the Northern District of Texas is currently set for trial on July 5, 2023 at 9:00 a.m. — less than a year from now.!? Indeed, if at any time before such federal trial date, the Federal District Court for the Northern District of Texas determines that the copyrights in question are not owned by La Energia Nortena, LLC, then the proceedings before this State Court may resume. Indeed, Judge Keith Ellison of the Southern District of Texas, at Plaintiffs hearing on December 21, 2022, already explained to the parties that the copyright claims as raised by Cuevas were “definitely federal” and should be decided by a federal district court while this State Court was empowered to handle the dissolution of La Energia Nortena, LLC."3 Thus, Defendant Cuevas’ motion to stay is not sought for undue delay, but so justice can be done. B. The State Court has discretion to grant Cuevas’ Motion to Stay as a matter of comity. 1. “First Filed” ruled IS APPLICABLE between state and federal courts. As a matter of comity, this State Court has discretion to grant Defendant Cuevas’ Motion to Stay, because the same matter was first filed in a federal district Court.'* Plaintiffs completely misrepresent and misapply the Plaintiffs’ cited law given in their Response in order to erroneously mislead this Court that “First Filed” rule is not applicable between federal and state courts.'> "Jd. 12 See Exhibit 3 of this Reply — Scheduling Order of Cuevas’ federal action in the Northern District of Texas at #6. 13 See Def.’s Plea in Abatement and Motion to Stay at Exhibit A pg. 12, In 9 - pg. 13, In. 2. 14 See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-1, §4.3 (“A defendant may file a motion to stay ina Texas court requesting that the Court suspend the case because the same case was filed in a federal court.”)(citing Alpine Gulf, Inc. v. Valentine, 563 S.W.2d 358, 359 (Tex. App.—Houston [14" Dist.] 1978, writ ref’d n.r.e.)(first suit filed in federal court; the defendant in first suit was entitled to stay of Texas suit.)). 15 See Pl.’s Resp to Def.’s Plea in Abatement and Motion to Dismiss at 8-9. Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 8 The Texas Courts have held: [W]hen a suit would be proper in more than one Texas county, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other courts and a plea in abatement is the proper form of relief. Curtis v. Gibbs, 511 S.W.2d 263, 267, 17 Tex. Sup. Ct. J. 305 (Tex. 1974); Cleveland v. Ward, 116 Tex. 1, 19, 285 S.W. 1063, 1070 (1926), rev'd on other grounds, 827 S.W.2d 833, 35 Tex. Sup. Ct. J. 468 (Tex. 1992). While this is true for competing Texas cases, the mere pendency of an action in one state will not be a ground for abating a suit in another state between the same parties and involving the same subject matter. Space Master Int'l, Inc. v. Porta- Kamp Mfg. Co., 794 S.W.2d 944, 946 (Tex. App.-Houston [Ist Dist.] 1990, no writ). Courts of sister states are considered foreign to each other, and a suit pending in another state may not be pleaded in abatement of another suit involving the same subject matter brought in another state. Evans v. Evans, 186 S.W.2d 277, 278-79 (Tex. Civ. App.-San Antonio 1945, no writ). However, as a matter of comity, it is the custom for the second court to stay its proceeding until the first suit has been determined, or at least for a reasonable time. Space Master Int'l, Inc., 794 S.W.2d at 946; see Evans, 186 S.W.2d at 279.!° The Dallas Court of Appeals has similarly held: It is well-established that the courts of sister states are considered foreign to each other. However, when parallel suits are filed in sister states, it is custom, as a matter of comity, for the second court in which an action is filed to stay its proceeding until the first suit has been determined, or at least for a reasonable amount of time. See Crown Leasing Corp. v. Sims, 92 8.W.3d 924, 927 (Tex. App.—Texarkana 2002, no pet.).!7 Accordingly, O’Connors on Texas Rules of Civil Trials 2021, states, “A defendant may file a motion to stay in a Texas court requesting that the Court suspend the case because the same case was first filed in federal court.”!® '6See Crown Leasing Corp. v. Sims, 92 $.W.3d 924, 926-27 (Tex. App —Texarkana 2002) (Emphasis added). 17 Rouse v. Tex. Capital Bank, N.A., 394 $.W.3d 1, 7 (Tex. App.—Dallas 201 1)(citing Crown Leasing Corp., 92 S.W.3d at 926-27.) (Emphasis added). 18 See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-1, $4.3 (“A defendant may file a motion to stay in a Texas court requesting that the Court suspend the case because the same case was filed in a federal court.”)(citing Alpine Gulf, Inc. v. Valentine, 563 S.W.2d 358, 359 (Tex. App.—Houston [14" Dist.] 1978, writ ref’d n.r.e.)(first suit filed Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 9 2. Cuevas PREVAILS under the “First Filed” rule. Plaintiffs erroneously claim that “If the Court were to apply the first filed rule, the Band wins because its lawsuit was filed nine months prior to Cuevas’ lawsuit.”!” Plaintiffs’ proposition is nonsensical and factually incorrect. The Band has never filed a lawsuit. Plaintiffs’ Original Petition was filed on April 15, 2021 by PlaintiffLa Energia Nortena, LLC (the “loan-out” company for the Band — not the Band itself), Plaintiff Humberto Novoa, and Plaintiff Adrian Zamarripa. Plaintiffs’ Original Petition requested the wind-down and dissolution of La Energia Noretna, LLC and brought a single cause of action against Moises Cuevas for breach of fiduciary duty for allegedly harming La Energia Nortena, LLC by allegedly becoming drunk, allegedly behaving inappropriately, allegedly casting the La Energia Nortena, LLC in a bad light and reputation, and allegedly posting cryptic messages on social media publicly that were allegedly visibly defaming of La Energia Nortena, LLC and its members.”° But Plaintiffs’ Original Petition in state court never alleged any claims based on copyright nor did it ever mention the sound recordings in question. Accordingly, for this very reason, Judge Ellison of the Southern District of Texas granted Plaintiffs’ motion to remand Plaintiffs’ original claims back to state court, because he explained that the copyright claims as asserted by Cuevas in the removal should be heard in a separate federal lawsuit. Thus, acting on the recommendation of Judge Ellison, Defendant Cuevas first filed a lawsuit in federal court, requesting declaratory relief of the ownership of the sound recording in question along with other federal and state claims related to the exploitation of such copyrights. in federal court in New York; D in first suit entitled to stay of Texas suit.)). 19 Pls’ Resp. to Def.’s Plea in Abatement and Motion to Stay at 9-10. 20 See Pl.’s Original Petition. Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 10 3. The Doctrine of Dominate Jurisdiction DOES NOT apply to a Motion to Stay. Plaintiffs misapply and misinterpret the case law discussing the doctrine of dominate jurisdiction in support of Plaintiffs’ erroneous claim that “the Band wins 2 21 The doctrine of dominate jurisdiction does not apply to the present situation. As explained in O’Connor’s Texas Rules Civil Procedure 2021 states: “When a suit filed in a Texas court was first filed in a federal court or in another state’s court, the defendant should file a motion to stay—not a motion to abate—in the Texas suit, requesting that the court suspend the Texas suit. A motion to abate contends that one court has dominate jurisdiction over the other court; a motion to stay recognizes that sister courts are foreign to each other, and the concept of dominate jurisdiction does not apply. Crown Leasing Corp. v. Sims, 92 $.W.3d 924, 927 (Tex. App—Texas 2002, no pet.). 3922 Furthermore, while Defendant Cuevas’ styled his present pleading as Plea in Abatement and Motion to Stay, Defendant Cuevas’ present pleading should have only been styled as a Motion to Stay.?? In any event, and as explained above, Plaintiff's reliance on the doctrine of dominate jurisdiction does not apply to present situation, and this State Court, as a matter of comity, should exercise its discretion and stay its proceedings until the Northern District of Texas has first ruled on the federal question of copyright ownership and related copyright claims and causes of action raised by Defendant Cuevas on behalf of La Energia Nortena, LLC as part of his derivative action. 21 See Pl.s’ Resp. to Def.’s Plea in Abatement and Motion to Stay at 10 (citing In re J.B. Hunt Transp., Inc. 492 S.W.3d 287, 292-93 (Tex. 2016). 2 See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-1, §4.1.1 (Emphasis added). ?3 See id. (“Many parties and even the appellate courts make the mistake of referring to a motion to stay as a motion to abate”) (citing VE Corp. v. Earnest & Young, 860 S.W.2d 83, 84 (Tex. 1993) (court’s mistake); Crown Leasing, 92 S.W.3d at 926-27 (party’s mistake). Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 11 4. The Federal Court DOES NOT lack jurisdiction to decide Cuevas’ action. For the sake of brevity, Cuevas incorporates the explanation given in the above Section II of this Reply. 5. Cuevas has NOT waived his right to motion to stay the present state proceedings. Plaintiffs did not file their First Amended Petition, which made a subsequent claim for declaratory relief in state court, until February 11, 2022. Defendant thereafter filed a 91a motion to dismiss the claim for declaratory relief as plead in Plaintiffs’ First Amended Petition on February 19, 2022. This State Court granted Defendant’s 91a motion to dismiss without prejudice on July 27, 2022. Plaintiffs, as of July 25, 2022, have only recently re-pled a cause of action for declaratory relief in Plaintiffs’ Second Amended Petition, which again fails to allege the existence of written contract necessary for this State Court to adjudicate the copyright ownership claim. Plaintiffs have also failed to produce any documents in support of their new allegations that all copyrights were transferred to Azteca Records by contractual agreement as required Initial Disclosure 6 of the Tex. R. Civ. Pro 194 and this Court’s further Order Compelling Plaintiffs to fully answer Initial Disclosure 6 issued July 27, 2022. Accordingly, Cuevas has acted timely at each instant that Plaintiffs have asserted a claim for declaratory relief of copyright ownership. Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 12 C. Cuevas’ Motion to Stay DOES NOT violate the Band’s constitutional rights. Plaintiffs allege that if this Court stays the present proceeding the Band’s state constitutional rights would be violated, because “the federal trial has not been scheduled.”?4 Plaintiff's allegation and its representation made in support thereofis false. Cuevas’ federal action is set for trial on July 5, 2023 at 9:00 a.m.?5 The fact that the Northern District of Texas has not ruled on Plaintiffs’ (who are the Defendants in the Federal case) multiple motions to dismiss Cuevas’ federal action DOES NOT change the situation either. As mentioned, if the Federal Court grants Plaintiffs’ motions to dismiss Cuevas’ derivative action and copyright claims asserted on behalf of the Plaintiff company, then the proceedings in this State Court can resume. Furthermore, if the Federal Court denies Plaintiffs’ motions to dismiss Cuevas’ derivative action and copyright claim asserted on behalf of the Plaintiff company, then the Federal District Court will continue to hear Cuevas’ federal copyright action and issue its ruling at a final trial beginning on July 5, 2023. Thereafter, the State Court can properly attend to the wind down and dissolution of the Company. Ironically, Plaintiffs complain that discovery will be stalled by the proposed suspension,?° but it is Plaintiffs who have intentionally stalled, failed, and refused to produce any documents or answer any discovery related to the copyright ownership issue. As admitted by Plaintiffs in their Response, Plaintiffs, on August 12, 2022, recently filed a motion for protective order asking that the Federal Court to stay the exchange of discovery until their multiple motions to dismiss have been ruled upon.?’ Thus, Plaintiffs and Plaintiffs’ counsel are causing the unjust delay! 24 See Pl.s’ Resp. to Def.’s Plea of Abatement and Motion to Stay at 12. 25 See Exhibit 3 of this Reply — Scheduling Order of Cuevas’ federal action in the Northern District of Texas at #6. 26 See Pl.s’ Resp. to Def.’s Plea of Abatement and Motion to Stay at 12-13 (“Granting Cuevas’ motion will stop this case dead in its tracks, delaying the Band’s ability prepare its case”). 27 See Pl.s’ Resp. to Def.’s Plea of Abatement and Motion to Stay at fn. 4 (“La Energia and the individual defendants have filed a Motion for Protection requesting the federal court stay the discovery until the motions to dismiss have been ruled on.”) Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 13 Indeed, Plaintiffs and Plaintiffs’ counsel in this State Court proceeding also fail to produce any contractual agreements or documents to substantiate their recent claim “that all ownership and any copyrights to the ten albums were transferred by contractual agreement to Azteca Records” required by Initial Disclosure 6 of Tex. R. Civ. Pro. 194 — even after this State Court issued an order on July 27, 2022, compelling Plaintiffs to fully answer.2* Accordingly, Defendant Cuevas is completely prejudiced by Plaintiffs intentionally refusing to produce any documentation via discovery to Cuevas in either the federal or state lawsuit that support their adverse claim that Azteca Records is the copyright owner or their claim that this State Court has jurisdiction. As mentioned in Section II of this Reply, without the allegation and production of the written contract granting all rights to Azteca Records, this State Court lacks jurisdiction to decide the issue of copyright. Indeed, Plaintiffs know that Defendant Cuevas never signed any contracts granting ownership to Azteca Records, and therefore, Plaintiffs are intentionally causing the delay of fair adjudication of the claims and causes of action before the state and federal courts. PRAYER For all the reasons stated in this Reply in Support of Cuevas’ Motion to Stay, Defendant Cuevas prays that this Court grants his motion to stay the present state court proceedings and suit until the Northern District of Texas has first ruled on the federal question of copyright ownership of the sound recordings in dispute and the related federal and state claims and causes of action first raised by Defendant Cuevas on behalf of Plaintiff La Energia Nortena, LLC as part of a derivative action in Civil Case No. 3:21-CV-03243-C-BK. 28 pls’ 24 Am. Petition at {22 (Pl.s’ Claim for Declaratory Relief); See also, Exhibit 1 of this Reply. Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 14 Respectfully submitted, David Chase LanCarte Texas Bar No. 24082464 LanCarte Law, PLLC 2817 West End Ave., Suite 126-276 Nashville, Tennessee 37203 Tel: 214-935-2430 Fax: 214-934-2450 chase@lancartelaw.com /s/ Marcus C. Marsden, Jr. MARCUS C. MARSDEN, JR. State Bar No. 13014200 marcus@colanerifirm.com THE COLANERI FIRM, P.C. 524 E. Lamar Blvd, Suite 280 Arlington, Texas 76011 Phone: 817-640-1588 Fax: 817-640-1680 ATTORNEYS FOR DEFENDANT MOISES CUEVAS, JR. CERTIFICATE OF SERVICE I do hereby certify that I have forwarded a true and correct copy of the above and foregoing pleading in this cause to all counsel of record as listed below, on this 15" day of August, 2022. David N. Calvillo TX State Bar No. 03673000 1200 Smith Street, Suite 1400 Houston, TX 77002 OG Angel V. Mata TX State Bar No. 24063940 512 S. Fitzhugh Avenue Dallas, TX 75223 David Chase LanCarte Def.’s Reply in Support of Def.’s Mot. to Stay PAGE 15 EXHIBIT 1 CAUSE NO. DC-22-03103 LA ENERGIA NORTENA, LLC, IN THE DISTRICT COURT ADRIAN ZAMARRIPA, and HUMBERTO NOVOA Plaintiffs, VS. OF DALLAS COUNTY, TEXAS MOISES CUEVAS, JR. Defendant. 192nd JUDICIAL DISTRICT Order on Defendant’s Motion to Compel Plaintiffs to Supplement and Fully Respond to Required Initial Disclosures 4, 5, & 6 The Court having considered Defendant’s Motion to Compel Plaintiffs to Supplement and Fully Respond to Required Initial Disclosures 4, 5, & 6, the responsive pleadings of the parties, oral arguments, and evidence submitted, ‘the Court GRANTS Defendants’ said motion and ORDERS Plaintiffs La Energia Nortena, LLC, Humberto Novoa, and Adrian Zamarripa to ‘supplement and fully respond to Required Initial Disclosures 4, 5, and 6 within 7 days of this Order & a. Providing Defendant Cuevas with the amount and calculation of economic damages as required by Initial Disclosure 4; and b. Providing Defendant Cuevas the contact information including addresses and telephone numbers for each of the witnesses, persons, or entities that Plaintiffs identify in response to Initial Disclosure 5; and c. Providing Defendant Cuevas with copies of documents, information, and things ‘that Plaintiffs may use to support their claims or defenses as required by Disclosure 6 including but not limited to providing Defendant Cuevas with: Order on Def.’s Motion to Compel Responses to Request for Disclosure 4, 5, and 6 PAGE 1 EXHIBIT1 copy of La Energia Nortena’s certificate of formation, copy of La Energia Nortena’s valuation report, any documents in support of Plaintiffs’ claim that Moises Cuevas, Jr. posted cryptic messages on social media publicly and very visibly defaming the entity and its members, documents in support of your claims that Moises Cuevas caused problems with law enforcement, and documents in support of Plaintiffs allegation that La Energia Nortena, LLC has been financially harmed. Signed on 32 7/27/2022 9:55:37 AM f / = fb / ‘LA us Ld ha JUDGE PRESIDING Order on Def.’s Motion to Compel Responses to Request for Disclosure 4, 5, and 6 PAGE 2 EXHIBIT 2 Cause No. DC-22-03103 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 AND REQUIRED INITIAL DISCLOSURES Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiffs La Energia Nortena, LLC, Adrian Zamarripa and Humberto Novoa serve these First Amended Required Initial Disclosures in accordance with the Texas Rules of Civil Procedure. 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, Texas 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 EXHIBIT 2 (B) Mr. Calvillo’s resume is available at https://www.chamberlainlaw.com/people-david_calvillo.html. (C) Mr. Calvillo’s opinions will be based generally on his education, training, and experience, both in this and other cases, and the billing records of Plaintiffs’ counsel and Defendants’ counsel in this case. (D) Not applicable. (E) Mr. Calvillo’s hourly rate, including the hourly rate of his associates and paralegals, are located in Plaintiffs’ attorney fee invoices, which will be produced at the appropriate time. Discovery is ongoing, and Plaintiff reserves the right to supplement this response with additional information according to the Texas Rules of Civil Procedure and applicable scheduling orders. = ae ee = 11 EXHIBIT 2 a 7. Any indemnity and insuring agreements described in Rule 192.3(f). RESPONSE: None. 8. Any settlement agreements described in Rule 192.3(g). RESPONSE: None. 9. Any witness statements described in Rule 192.3(h). RESPONSE: None. 10.In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. RESPONSE: Not applicable. 11.In a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party. RESPONSE: Not applicable. 12.The name, address, and telephone number of any person who may be designated as a responsible third party. RESPONSE: None at this time. 30243988.v1 Case 3:21-cv-03243-C-BK Document 26 Filed 02/15/22 Page1of3 PagelD 504 EXHIBIT 3 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MOISES CUEVAS, JR., Plaintiff, Vv. HUMBERTO NOVOA, ADRIAN ZAMARRIPA, AZTECA RECORDS, LLC, and AZTECA TALENT AGENCY, INC., Defendants. ) Civil Action No. 3:21-CV-3243-C SCHEDULING ORDER Pursuant to Rule 16(b), Fed. R. Civ. P., the Court establishes the following schedule for this case: (a) Motions to join other parties and amend the pleadings must be filed by 3:00 p.m. on June 15, 2022. (b) Motions for summary judgment must be filed by 3:00 p.m. on February 15, 2023 (©) The parties must take this case to mediation which must be completed by 3:00 p.m. on February 15, 2023. The mediator must file a report to the Court within seven (7) days from the completion of mediation. (d) Motions in limine must be filed and discovery must be completed by 3:00 p.m. on June 14, 2023. Deadlines will “not be extended except upon good cause shown and by order of the Court.” See Saavedra v. Murphy Oil U.S.A., Inc. v. Lou-Con, Inc., 930 F.2d 1104, 1107 (Sth Cir. 1991). Unless further ordered by the Court, the parties are not required to make initial disclosures under Rule 26(a)(1), Fed. R. Civ. P., and no conferences are required under Rule 26(f), Fed. R. Civ. P. Counsel are expected to cooperate with each other in conducting discovery, clarifying the issues, and getting the case ready for trial. Specifically, counsel must strictly comply with Case 3:21-cv-03243-C-BK Document 26 Filed 02/15/22 Page 2of3 PagelD 505 EXHIBIT 3 the mandates set forth in Dondi Properties Corporation v. Commerce Savings & Loan Association, 121 F.R.D. 284 (N.D. Tex. 1988) (en banc) (per curiam). Filing documents electronically is not mandatory. However, in all cases where electronic case filing is done, counsel may serve and respond to written discovery requests through electronic mail service. This discovery practice will be governed by the Northern District of Texas Local Rules, this Court’s Local Rules/Judge Specific Requirements, and the Clerk’s ECF Administrative Procedures Manual regarding electronic case filing procedures. Counsel are referred to the Local Rules of the Northern District of Texas, the Civil Justice Cost and Delay Reduction Plan of the Northern District of Texas, and the Local Rules/ Judge Specific Requirements of this Court. Courtroom, Earle Cabell Federal Building, Dallas, Texas.' Counsel shall comply with the following: (a) All counsel shall jointly prepare a proposed pretrial order for the Court to enter, which shall contain the following: (1) a summary of the claims and defenses of each party; (2) a statement of stipulated facts; (3) an estimate of the length of trial; (4) a list of additional matters which would aid in the disposition of the case; (5) the signature of each counsel; and (6) a place for the date and signature of the Court. Counsel are ordered to confer prior to the date of submission of the proposed pretrial order, and a certificate shall be attached to the proposed order, signed by counsel, stating that such a conference has been held, the stipulations are agreed upon, and that the proposed pretrial order is submitted to the Court for entry. Failure to agree upon the wording or terms of the proposed order will not be an excuse for not filing same, but counsel may place in such order their respective versions of the matters to be included. (b) At least twenty-one (21) days before the scheduled date for trial, counsel shall file with the Clerk and serve on opposing parties proposed instructions and questions in jury cases and proposed findings of fact and conclusions of law in non-jury ‘If the parties agree that an earlier trial setting is appropriate, the Court will consider a motion to reschedule trial. Case 3:21-cv-03243-C-BK Document 26 Filed 02/15/22 Page 3of3 PagelD 506 EXHIBIT 3 cases, any trial briefs that counsel may desire to present to the Court, and the proposed pretrial order. () At least twenty-one (21) days before the scheduled date for trial, counsel shall file with the Clerk and serve on opposing parties the information described under Rule 26(a)(3)(A), Fed. R. Civ. P. At the same time, exhibits shall be exchanged between the parties. Because the court finds it more practical to make evidentiary rulings at time of trial, counsel are not required to file objections to exhibits pursuant to Rule 26(a)(3)(B), Fed. R. Civ. P. (d) If a pretrial conference is deemed necessary, counsel shall notify the Court at the time of filing the proposed pretrial order, or sooner, and the Court will, at the Court’s discretion, schedule such a confer