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

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

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FILED
8/12/2022 4:29 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Dorothy Strogen DEPUTY

Cause No. DC-22-03103

HUMBERTO NOVOA § IN THE DISTRICT COURT
ADRIAN ZAMARRIPA and §
LA ENERGIA NORTEÑA LLC §
§ DALLAS COUNTY, TEXAS
v. §
§
MOISES CUEVAS § 192nd JUDICIAL DISTRICT

PLAINTIFFS’ RESPONSE TO
DEFENDANT’S REQUEST FOR ABATEMENT

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiffs HUMBERTO NOVOA, ADRIAN ZAMARRIPA and LA

ENERGIA NORTEÑA LLC file this their RESPONSE TO DEFENDANT’S

REQUEST FOR ABATEMENT, and would respectfully show unto the Court as

follows:

I.
THIS COURT POSSESSES JURISDICTION TO PROCEED WITH THIS
CASE

This honorable court is a court of general jurisdiction authorized to address

matters such as this one: a dispute among business owners and a resulting winding

down and dissolution. Defendant has nevertheless consistently sought a federal

forum to adjudicate all the claims between the parties. The federal court rejected

Cuevas’ initial effort, a removal to federal court, and the case remanded to state court.

Cuevas second effort to forum shop, requesting that the federal court issue an

injunction against this Court has also not borne fruit. Despite making the request in

December 2021 in Plaintiff’s Original Complaint, the federal court has not set an

injunction hearing. (See Pl.’s Original Compl. & Pl.’s First Am. Compl. & Application

1
for Prelim. Injunctive Relief attached as Exs. 1 & 2.) Accordingly, Cuevas now makes

his third request, seeking to abate this matter until the federal court, a court of

limited jurisdiction, completely adjudicates this matter. This Court should reject

Defendant’s effort. In addition to defeating public policy against forum shopping,

granting an abatement in this matter rejects established law, and would be contrary

to this Court’s desire for efficient adjudication and would violate Plaintiffs’ rights.

II.
CUEVAS’ PROCEDURAL HISTORY DEMONSTRATES
IMPROPER FORUM SHOPPING

“Texas courts have recognized an important public policy against forum

shopping.” In re Boehme, 256 S.W.3d 878, 882 (Tex. App.—Houston [14th Dist.] 2008,

no pet.). However, some litigants avoid this principle, and go to extraordinary lengths

to achieve a chosen forum. See e.g., In re Moore, 2021 WL 717613 (Tex. App.—Corpus

Christi 2021, mand. denied).

The underlying facts have been detailed in prior filings with this Court. La

Energia Norteña is a musical group that plays regional Latin American (Norteño)

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

company. Its members include Plaintiffs Novoa and Zamarripa, and Defendant

Cuevas. Each own a third of the LLC. Unfortunately, Defendant appeared drunk at

band events and brandished a firearm at one of them. Given such conduct, the other

two members of La Energia Norteña, LLC determined it would be best for the parties

to go their separate ways. Accordingly, Plaintiffs filed this lawsuit to finalize any

division the assets, if necessary. Further, the band, La Energia Norteña, has asserted

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that Cuevas had breached his fiduciary duty to it.

Cuevas has resisted the state court jurisdiction and instead undertaken a

strategy of filing multiple filings in federal court apparently hoping that the sheer

number of filings would overwhelm the federal system and result in something,

anything remaining within the federal system. (See Federal Docket Sheet, attached

as Ex. 3.)

Over 10 years ago, when La Energia Norteña (the “Band”) began, Intervenor

Azteca Records funded its music and recordings. In exchange, the Band agreed that

the copyright to its portfolio of songs belonged to Azteca Records. This customary

practice and agreed course of action continued with all of the Band’s subsequent

records. This is standard in the music industry. Rather than honestly admit the

existence of the deal, Cuevas surreptitiously registered the copyrights in the name of

La Energia Nortena, LLC while this lawsuit was pending. To accomplish this, he

fraudulently, and without corporate authority, filed these unapproved copyright

applications with the United States government, claiming the Band owned copyrights

actually owned by Azteca Records. .

Cuevas’ conduct since that time demonstrates the desire to continue to

manufacture a federal court forum. Immediately after he filed an answer in this

lawsuit, Cuevas filed a civil cover sheet in Dallas federal court, removing this case to

federal court. Such conduct disregarded federal removal procedure. First, a

defendant removes a case by filing a notice of removal, a document Cuevas failed to

file. Second, because Plaintiffs filed this lawsuit initially in Harris County, the

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Houston Division of the Southern District of Texas should have received this lawsuit,

not a federal court in the Northern District of Texas, Dallas Division. 28 U.S.C. §

1446.

The Dallas federal court recognized Cuevas’ failure to satisfy statutory removal

requirements. Rather than summarily remand the case, the Dallas federal court

transferred the case to a Houston federal court. Cuevas filed a motion under 28

U.S.C. § 1404(a), seeking transfer of the case again, from Houston to Dallas. The

Band filed a motion to remand.

At the motion for remand hearing, the Houston federal court recognized the

impropriety of removal. Removals cannot be predicated on alleged counterclaims or

claims not apparent in the pleadings. Vaden v. Discover Bank, 556 U.S. 49, 60, 129

S.Ct. 1262, 1272, 173 L.Ed.2d 206 (2009); Beiser v. Weyler, 284 F.3d 665, 671 (5th Cir.

2002). Accordingly, this case was remanded back to the Houston state court.

In each motion he files, Cuevas misinterprets or perhaps misrepresents the

statements of the Band’s counsel at the motion for remand. The Band’s counsel

never claimed that the Band actually and forever owned the copyrights because of

Cuevas’ surreptitious activities. The Band’s counsel simply admitted that as a result

of Cuevas’ unauthorized registration of the copyrights, prima facie, the Band owned

the copyright but that would subject to subsequent adjudication.

The Band’s counsel never claimed that filing a federal court proceeding on

Cuevas’ ginned up copyright claims was proper. The Band’s counsel merely agreed

with the federal court that federal copyright statutes need not be examined to

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determine compliance with Texas corporate formalities law. Cuevas fails to cite any

law to the contrary.

Unfortunately, the remand to state court did not cease Cuevas’ forum shopping

efforts. After the Houston federal court rejected them, Cuevas filed a federal court

complaint, reasserting his manufactured copyright claims. He also asserted breach of

fiduciary duty claims individually, asserting that the Band breached its fiduciary

duty to him for kicking him out of the band, even though such claims are not

recognized under Texas law. Matter of Estate of Poe, 2022 WL 2183306 (Tex. 2002);

Ritchie v. Rupe, 443 S.W.3d 856 (Tex. 2014). Furthermore, in clear violation of the

federal anti-injunction statute, 28 U.S.C. § 2283, Cuevas requested the federal court

enjoin this Court from adjudication of this matter. (See Pl.’s First Am. Compl. &

Application for Prelim. Injunctive Relief at § 101 attached as Ex. 2.)

Such tenuous claims are asserted for one purpose: Cuevas desires for the

federal court to adjudicate the entire business dissolution. By asserting breach of

fiduciary duty claims, Cuevas seeks to force the Band to file a counterclaim in federal

court. If the Band fails to do so, its claims before this Court will likely be barred by

res judicata and the compulsory counterclaim rule. Jeanes v. Henderson, 688 S.W.2d

100, 104–05 (Tex. 1985).

Unfortunately, litigation in federal court has not proved as easy as Cuevas

initially envisioned. He has filed four Complaints, three of which were purportedly

amended without seeking leaving of court. All four Complaints have demonstrated

fundamental defects, such as the constitutional defects of standing and ripeness,

5
along with repeated failures to satisfy federal pleading requirements as set forth by

the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929 (2007). Accordingly, the Band has

responded to such complaints with repeated motions to dismiss.

The controversy between the parties should be resolved in one forum, this

Court, and that Cuevas’ complaints in federal constitute impermissible forum

shopping. Accordingly, Band has also sought a discretionary dismissal in federal

court on such grounds. Sherwin-Williams Co. v. Holmes Cnty., 343 F.3d 383, 388 n.

1 (5th Cir. 2003).

Given the numerous issues raised by Cuevas’ defective pleadings,

unrecognized causes of action and forum shopping, the federal magistrate assigned

to the case has been unable to resolve the motions to dismiss on a timely basis.

Recognizing that his forum shopping is not proceeding as fast as he would have

hoped, Cuevas has asserted the instant plea in abatement to accomplish what he will

not be entitled to obtain in federal court such relief. Such motion seeks the same

relief as his request for an injunction in federal court, i.e. stop the litigation dead in

its tracks so his federal court forum shopping will be rewarded. This Court should

not grant the relief the federal court has not granted to him.

III.
HERE, TEXAS LAW DOES NOT AUTHORIZE ABATEMENT

A. Plea in Abatement Cannot Unduly Delay Litigation

“A plea in abatement challenges a plaintiff’s pleading by asserting facts outside

of the record that prevent the suit from going forward until the problem can be cured.”

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Shutter v. Wells Fargo Bank, N.A., 318 S.W.3d 467, 470 (Tex. App.—Dallas 2010, pet.

dism’d w.o.j.). Such pleas “must set forth under oath the full circumstances relied

upon; must negative every reasonably supposable circumstance consistent with the

plaintiffs alleged theories of recovery which, if alleged by the plaintiff, might rebut

the plea; and must if the defect be one which can be cured, set forth the information

necessary to guide the plaintiff to a correct procedure.” Bluebonnet Farms, Inc. v.

Gibraltar Sav. Ass’n, 618 S.W.2d 81, 83 (Tex. Civ. App.—Houston [1st Dist.] 1980,

writ ref’d n.r.e.).1 “In granting abatement, the trial court gives the plaintiff the

opportunity to cure the defect.” Garcia-Marroquin v. Nueces Cnty. Bail Bond Bd., 1

S.W.3d 366, 374 (Tex. App.--Corpus Christi 1999, no pet.).

Nevertheless, “The Texas Rules of Civil Procedure, (including the special

purpose of a plea in abatement) are designed to aid the speedy disposition of litigation

on its merits.” Bluebonnet Farms, Inc. v. Gibraltar Sav. Ass’n, supra at 84. Cuevas

seeks to stop the state court litigation, either permanently or for years and years and

years; after the federal court enters a judgment. Then Cuevas will demand dismissal

of this lawsuit (in whole or in part) because of res judicata, Jeanes v. Henderson,

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

Dist.] 1990, writ denied) and/or the compulsory counterclaim rule. Tex. Pac. Wood

Products, Inc. v. Allison, 1995 WL 571853, *3 (Tex. App.—Beaumont 1995, writ

1A defendant seeking an abatement must “(1) identify any impediment to the continuation of the suit,
(2) identify an effective cure, and (3) ask the court to abate the suit until the defect is corrected.”
Truong v. City of Houston, 99 S.W.3d 204, 216 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Such
elements must be proved by clear and competent evidence. Bernal v. Garrison, 818 S.W.2d 79, 82 (Tex.
App.—Corpus Christi 1991, writ denied).

7
denied). Even if this Court refuses to apply these doctrines, resolution of such

matters would still be delayed for an extended period of time, contrary to rules’

mandates of obtaining a timely and efficient resolution.

B. Cuevas’ Dominant Jurisdiction Paradigm Fails

Cuevas appears to claim that abatement is proper because of dominant

jurisdiction. Specifically, he claims that because he first filed the copyright claims in

federal court, this matter must be abated on every essential issue until the federal

court meanders its way through a judgment several years from now. This does not

make sense. The main dispute is a business dissolution between the parties which

was first filed by Plaintiffs. Defendant then manufactured peripheral copyright

claims in an attempt to have this case heard by his chosen court. This is not enough

to estop this Court from hearing the essential business dissolution between the

parties.

1. “First Filed” Rule Inapplicable Between State and Federal
Court

Admittedly, the “first filed” rule presents a recognized doctrine. “[T]he court

in which suit is first filed acquires dominant jurisdiction to the exclusion of coordinate

courts.” Bailey v. Cherokee Cnty. Appraisal Dist., 862 S.W.2d 581, 586 (Tex. 1993).

However, federal courts and state courts are not “coordinate courts.” Therefore, the

“first filed” rule does not apply when one lawsuit is filed in federal court

and the other lawsuit is filed in state court. Rather, federal courts refuse to

apply the “first filed” rule, when the initial lawsuit is filed in state court. Am. Bankers

Life Assurance Co. of Fl. v. Overton, 128 Fed.Appx. 399, 403 (5th Cir. 2005). Likewise,

8
Texas courts refuse to apply the “first filed” rule, when the initial lawsuit is filed in

federal court. See e.g., Pub. Serv. Co. of N.M. v. Harrison, 1989 WL 136390, *1 (Tex.

App.—Houston [14th Dist.] 1989, no writ).

“The rule is well settled in Texas that the mere pendency of an action

in federal court involving the same parties and the same issues is not a

reason for abating a state court proceeding.” Byrnes v. Uni. of Houston, 507

S.W.2d 815 (Tex.Civ.App.—Houston (14th Dist.) 1974, writ ref’d n.r.e.); Aetna Cas. &

Surety Co. v. Brunken, 373 S.W.2d 811 (Tex.Civ.App. Eastland 1963, writ ref’d n.r.e.);

Trinity Universal Ins. Co. v. De Martini, 118 S.W.2d 901 (Tex.Civ.App. El Paso 1938,

writ ref’d).” Williamson v. Tucker, 615 S.W.2d 881, 885 (Tex. Civ. App.—Dallas 1981,

writ ref’d n.r.e.); accord, Sawyer v. Nueces Cnty. Sheriff's Dept., 1999 WL 34973349,

*2 (Tex. App.—Corpus Christi 1999, no writ); Columbia Cas. Co. v. Dean, 1990 WL

300, *1 (Tex. App.—Houston [14th Dist.] 1990, no writ); Green Oaks Apts., Ltd. v.

Cannan, 696 S.W.2d 415, 418 (Tex. App.—San Antonio 1985, no writ).2 As a result,

Cuevas’ request for an abatement should be denied.

2. Even If “First Filed” Rule Applied, the Band Wins

The Band filed its petition in this lawsuit on April 15, 2021. After failing to

convince the federal court to accept this case, Cuevas filed his federal court lawsuit

approximately nine months later on December 30, 2021. If this Court were to apply

the first filed rule, the Band wins because its lawsuit was filed nine months prior to

2Cuevas’ authority Taiwan Shrimp Farm Vill. Ass'n v. U.S.A. Shrimp Farm Dev., 915 S.W.2d 61, 68
(Tex. App.—Corpus Christi 1996, writ denied) provides an excellent example of an appellate court
talking out of both sides of its mouth; it simultaneously holds that an abatement is both required and
not required.

9
Cuevas’ lawsuit. 21 Intern. Holdings, Inc. v. Westinghouse Elec. Corp., 856 S.W.2d

479, 485 (Tex. App.—San Antonio 1993, no pet.).3

Cuevas claims that he prevails because his federal lawsuit was the first to

assert copyright claims. Dominant jurisdiction is not determined by who first

presents the cause of action; instead, it is determined by the inherent relationship of

the claims between the two lawsuits. If an inherent relationship exists between the

claims presented in both lawsuits, the first filed suit (not the first to plead the cause

of action) prevails. In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 292–93 (Tex. 2016).

An inherent relationship exists between the two lawsuits. The Band asserts

in its state court Petition that Cuevas breached his fiduciary duties to it. Before the

federal court, Cuevas claims that the Band breached its fiduciary duties to him by

kicking him out of the band and not adequately compensating him. These are

inherently state law causes of action. Cuevas concedes such interrelationship

between the two lawsuits when he initially removed this action, claiming that his

claims were implicit. Thus, Cuevas’ alleged initial assertion of a copyright claim in

the federal case is completely irrelevant to the analysis.

3. Cuevas Loses Because the Federal Court Lacks Jurisdiction

In order for a plea in abatement to be proper due to pendency of a prior action,

the court in the prior action must actually possess jurisdiction. Knops v. Knops, 763

S.W.2d 864, 868 (Tex. App.—San Antonio 1988, no writ). “[T]he word ‘copyright’ is

not so compelling as to invoke federal jurisdiction upon its mere mention.” Muse v.

3The forum non convenience holding contained in this decision was subsequently questioned by the
Supreme Court in In re Smith Barney, Inc., 975 S.W.2d 593, 597 (Tex. 1998).

10
Mellin, 212 F.Supp. 315, 316 (S.D.N.Y. 1962). Therefore, cases involving

copyrights which devolve upon the contractual relationship between the

parties 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.

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).

Ownership of the copyrights will turn on the contractual relationship between

Azteca Records and the Band. Resolution of ownership of the copyright involves

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

law will determine the outcome. Therefore, this Court possesses jurisdiction over this

matter and Plaintiffs properly asserted their claims in state court. 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).

4. Any Right to Abatement Has Been Waived

Lastly, Cuevas has waived any right to an abatement. It is well settled that

an abatement can be waived if not filed in a timely manner. Lopez v. Tex. Workers’

Comp. Ins. Fund, 11 S.W.3d 490, 493 (Tex. App.—Austin 2000, pet. denied). Thus, a

defendant should “request abatement with the filing of an answer or very soon

thereafter.” Hines v. Hash, 843 S.W.2d 464, 469 (Tex. 1992). Courts examine the

equities of the situation to determine whether the plea is timely filed. Howell v.

Mauzy, 899 S.W.2d 690, 698 (Tex. App.—Austin 1994, writ denied).

11
Cuevas’ plea in abatement constitutes another attempt at forum shopping.

Cuevas filed his answer on September 2, 2021. The Houston federal court remanded

the case on December 21, 2021. He filed his federal lawsuit on December 30, 2021. If

he truly believed that an abatement was warranted, Cuevas should have filed his

plea within days or even weeks after December 30, 2021. He did not. Instead, he

waited approximately seven (7) months, not requesting an abatement until August 2,

2022. The plea in abatement should be denied. Howell v. Mauzy, supra.

C. Abatement Violates the Band’s Constitutional Rights

An abatement entered by this Court would violate the Band’s constitutional

rights. An abatement for an indefinite period violates the Open Courts provision of

the Texas Constitution. In re Gore, 251 S.W.3d 696, 699 (Tex. App.—San Antonio

2007, no pet.). The propriety of an abatement is not determined on whether it can be

classified as “indefinite.” Rather, an abatement is improper, and violates the Open

Courts provision, if it completely curtails the prosecution of an entire case and denies

another party the right to proceed with full discovery in a reasonable time. In re

Shulman, 544 S.W.3d 861, 869 (Tex. App.—Houston [1st Dist.] 2017, no pet.); In re

Baldridge, 2016 WL 1128236, *3 (Tex. App.—San Antonio 2016, no pet.).

Here, the parties are unsure when the federal court will render a judgment.

The federal trial has not been scheduled. Further, the magistrate has not yet ruled

on the Band’s multiple motions to dismiss. Discovery has been stalled, because the

Band does not know which claims will survive the motions to dismiss.4 Granting

4
Although Cuevas exchanged discovery requests with La Energia Nortena in the federal case; La Energia and the
individual defendants have filed a Motion for Protection requesting the federal court stay the exchange of discovery

12
Cuevas’ motion will stop this case dead in its tracks, delaying the Band’s ability to

prepare its case. Accordingly, his abatement is improper. In re Benge, 2018 WL

3233867 (Tex. App.—Corpus Christi 2018, no pet.).

IV.
CONCLUSION AND PRAYER

Forum shopping has been classified as deplorable, if not evil, Bray v. U.S., 785

F.2d 989, 991 (Fed. Cir. 1986), and tactics employed to fulfill it have been met with

sanctions. In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997). If courts wish to prevent

forum shopping, they must reject efforts to achieve it. Cuevas’ plea in abatement

seeks to forum shop, and this Court should not reward him by granting such motion.

WHEREFORE PREMISES CONSIDERED, Plaintiffs HUMBERTO NOVOA,

ADRIAN ZAMARRIPA and LA ENERGIA NORTEÑA LLC request that

Defendant’s Plea in Abatement and Stay be denied, and for general relief.

(signature on following page)

until its multiple motions to dismiss have been ruled upon. Those motions to dismiss are based upon fundamental
defects in Cuevas’ federal court claims.

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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

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CERTIFICATE OF SERVICE

A true and correct copy of the foregoing pleading has been served on counsel of
record on August 12, 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

15
Case 3:21-cv-03243-C-BK Document 1 Filed 12/30/21 Page 1 of 27 PageID 1

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS,
DALLAS DIVISION

Moises Cuevas, Jr., §
Plaintiff, §
§
vs. § Civil Action No. ___________________
§
Humberto Novoa, §
Adrian Zamarripa, §
Azteca Records, LLC, and §
Azteca Talent Agency, Inc., §
Defendants. §

Plaintiff’s Original Complaint & Application for Preliminary Injunctive Relief

COMES NOW Moises Cuevas, Jr., Plaintiff and files original complaint against Humberto

Novoa, Adrian Zamarripa, Azteca Records, LLC and Azteca Talent Agency, Inc, and application

for preliminary injunctive relief, and would show this Court the following:

A. PARTIES

1. Plaintiff Moises Cuevas, Jr. is an individual residing at 3611 Borger St., Dallas Texas

75212, and is a member/partner of La Energia Nortena, LLC (the “Company”), an involuntarily

dissolved Texas limited liability company, now general partnership, whose business address is

10606 Shady Trail, Suite 21, Dallas, Texas 75220.1

1
On August 20, 2021, the Texas Secretary of State, pursuant to Section 171.309 of the Texas Tax Code, forfeited
the Company’s registrations with the state. As a result, at the time of this filing, the Company is currently a general
partnership.

__________________________________________________________________________________________________________________
Plaintiff’s Original Complaint and Application for Preliminary Injunctive Relief EXHIBIT PAGE 1

A
Case 3:21-cv-03243-C-BK Document 1 Filed 12/30/21 Page 2 of 27 PageID 2

2. Defendant Humberto Novoa (“Novoa”) is a member/partner of the Company and an

individual residing within the Northern District of Texas and works at 10606 Shady Trail, Suite

21, Dallas, Texas 75220.

3. Defendant Adrian Zamarripa (“Zamarripa”) is a member/partner of the Company and

an individual residing within the Northern District of Texas and works at 10606 Shady Trail, Suite

21, Dallas, Texas 75220.

4. Defendant Azteca Records, LLC is a Texas limited liability company, whose business

address is 10606 Shady Trail, Suite 21, Dallas, Texas 75220. Upon information and belief, this

entity is owned and controlled by Humberto Novoa, who is also the registered agent.

5. Defendant Azteca Talent Agency, Inc. is a Texas corporation, whose business address

is 10606 Shady Trail, Suite 21, Dallas, Texas 75220. Upon information and belief, this entity is

owned and controlled by Humberto Novoa, who is also the registered agent.

B. JURISDICTION

6. The Court has jurisdiction over the lawsuit under 28 U.S.C. §1338 because the suit arises

under applicable federal statutes relating to copyright law. This is a civil action seeking damages

and injunctive relief for copyright infringement under the Copyright Act, 17 U.S.C. § 101 et seq.,

and also seeks declaratory relief with regard to several legal issues that arise from the language

and interpretation of the Copyright Act.

7. This Court has original subject matter jurisdiction of this action pursuant to 28 U.S.C. §

1331 and 1338(a).

8. This Court is empowered to issue a declaratory judgment and further necessary or proper

relief pursuant to 28 U.S.C. § 2201 and 2202. This Court also has supplemental jurisdiction over

all other claims that are so related to the claims in the action within such original jurisdiction

pursuant to 28 U.S.C. § 1367(a).

C. VENUE

9. Venue is proper in this district under 28 U.S.C. §1400(a) because all parties reside or

may be found in this district.

D. CONDITIONS PRECEDENT

10. All conditions precedent have been performed or have occurred. Pursuant to 17 U.S.C.

§ 411 and in order to properly bring this copyright matter before the Federal District Court, Moises

Cuevas, Jr. has filed and obtained copyright registrations with the U.S. Copyright Office on behalf

La Energia Nortena, LLC, who is identified on such registrations as the owner and author of the

subject sound recordings in dispute. A copy of such applicable registrations on file with the U.S.

if fully set forth.

E. FACTS

The Formation of La Energia Nortena

11. In 2008, Adrian Zamarripa (“Zamarripa”) and Moises Cuevas, Jr. (“Cuevas”)

founded a musical group professionally known as La Energia Nortena (“LEN”). Zamarripa is the

lead singer for LEN. Cuevas is the bass player and musical director for LEN. All other musicians

who perform in LEN are contracted talent and have no ownership or interest in LEN.

12. In 2011, after seeing a LEN live performance show, Novoa contacted Zamarripa and

Cuevas to propose that he (Novoa) start acting as LEN’s talent agent. Zamarripa and Cuevas agreed

to allow Novoa to act as LEN’s talent agent. Thereafter, Novoa, by and through his company

Azteca Talent Agency, Inc. started securing bookings for LEN in exchange for a 33 1/3%

commission fee of gross monies received from engagements booked.

13. Subsequent thereto, Novoa proposes to Zamarripa and Cuevas a business proposition

wherein the three of them would form a Texas limited liability company, called La Energia

Nortena, LLC (the “Company”) to act as a “loan-out” company for the professional services of

the musical group LEN. Novoa advises Zamarripa and Cuevas that by forming the Company, the

Company could exploit LEN’s music and talents through Novoa’s other entertainment companies

(Azteca Talent Agency, Inc., Azteca Publishing, Inc., and Azteca Records, LLC). No written

agreements were ever executed between the Company and any of Novoa’s companies (Azteca

Talent Agency, Inc., Azteca Publishing, Inc., and Azteca Records, LLC).

The Company – La Energia Nortena, LLC

14. On September 3, 2013, the Company is formed in the State of Texas.

15. The Company is a member-managed LLC and is comprised of 3 members/partners:

1. Humberto Novoa;
2. Adrian Zamarripa; and
3. Moises Cuevas, Jr.

16. The Company does not have an operating agreement, and therefore, the Texas Business

Organization Code governs the Company’s essential operation. The Company’s current address

on file with the Texas Secretary of State is 10606 Shady Trail, Ste 21, Dallas, Texas 75220, which

is also the address of record for all other entitles owned or controlled by Humberto Novoa. The

Company’s Registered Agent is Humberto Novoa.

17. On August 20, 2021, the Texas Secretary of State, pursuant to Section 171.309 of the

Texas Tax Code, forfeited the Company’s registrations with the state. As a result, at the time of

this filing, the Company is currently a general partnership.

Other Companies owned and controlled Humberto Novoa

18. Separate and

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ACEVES, MARIA Track Judge’s New Case

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Document Filed Date

August 12, 2022

Case Filing Date

February 16, 2021

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Request,Application: LA ENERGIA NORTENA, LLC, et al vs. MOISES CUEVAS

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