Preview
FILED
2/21/2023 5:41 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele 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 RESPONSE TO
PLAINTIFFS’ MOTION FOR RECONSIDERATION OF
THE COURT’S ORDER GRANTING DEFEDANT’S MOTION TO STAY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant Moises Cuevas, Jr. and files this response in opposition to
Plaintiffs’ Motion for Reconsideration of the Court’s Order Granting Defendants’ Motion to Stay,
styled Plaintiffs’ Motion for Reconsideration of Abatement.
I. PRELIMINARY STATEMENT
On August 18, 2022, this State Court properly ruled to grant Defendant Cuevas’ Motion to
Stay the proceedings to allow “...the Federal Court for the Northern District of Texas to rule 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.”!
Unhappy with this State Court’s decision, on November 28, 2023, Plaintiffs filed a Petition
for Writ of Mandamus with the Fifth State Court of Appeals. But Plaintiffs’ appeal is meritless.
Plaintiffs fail to appreciate the difference between a motion to abate and a motion to stay. The
State Court appropriately ruled to grant Cuevas’ Motion to Stay the proceedings.
| See This Court’s Order dated August 18, 2022 (Emphasis added.).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 1
I. BACKGROUND
On April 15, 2021, Plaintiffs La Energia Nortena, LLC, Adrian Zamarripa, and Humberto
Novoa filed their Original Petition in the 61 Judicial District of Harris County, Texas in Cause
No. 2021-22525 against Defendant Moises Cuevas, Jr. for claims based on an alleged breach of
fiduciary duty and further seeking the State Court’s intervention in the proposed winding down
and dissolution of La Energia Nortena, LLC (the “Company”, owned by Plaintiff Adrian
Zamarripa, Plaintiff Novoa, and Defendant Cuevas).
While Defendant Cuevas was never served with Plaintiffs’ lawsuit and was never notified
by any of the Plaintiffs that they had filed an action against in him in State Court, on September 2,
2021, after Defendant Cuevas became aware of Plaintiffs’ lawsuit, Defendant Cuevas:
1 voluntarily filed an original answer generally denying Plaintiffs’ Original
Petition,
filed a motion to transfer venue to Dallas County where all parties reside and
where the Company’s headquarters are located; and
filed a notice of removal to the Federal District Court for the Northern District
of Texas.
As stated in Defendant’s Notice of Removal on file with the State Court, Defendant Cuevas
removed Plaintiffs’ action to Federal Court, because:
With regards to Plaintiffs’ proposed wind down of the Company
brought in the State Court Suit, removal to this Federal Court is
proper because there is a general dispute between the parties as what
assets are owned by Company. Specifically, there is federal question
under copyright law as to who owns certain sound recordings of the
musical performances of the musical group known as La Energia
Nortena. On one hand, Defendant Cuevas claims that the [copyright]
in such sound recordings is owned by the Company, La Energia
Nortena, LLC. Yet, on the other hand, Plaintiff Novoa claims that
the copyright in such sound recordings is owed exclusively by
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 2
Novoa’s other company, Azteca Records, LLC. Without the Federal
Court’s immediate intervention to answer the federal question
related to the copyright ownership of sound recording in dispute, the
Company cannot properly account for such assets in dispute which
is necessary for any proposed wind down.
On September 3, 2021, the Federal Court for the Northern District of Texas found that
Cuevas’ removal of the Plaintiffs’ action to the Northern District procedurally improper under 28
U.S.C. 1441, explaining that Plaintiffs’ action should have first been removed to the Southern
District of Texas; accordingly, the Northern District of Texas sua sponte transferred the State
Lawsuit to the Southern District of Texas before Judge Keith Ellison.
After the case was transferred to the Southern District of Texas (Civil Case No. 4:21-CV-
02902), Cuevas filed a motion to transfer venue back to the Northern District, arguing that all
parties lived and resided in Dallas County, Texas inside the jurisdiction of the Northern District of
Texas. Additionally, Defendants La Energia Nortena, LLC, Humberto Novoa, and Adrian
Zamarripa filed a joint motion to remand arguing that Plaintiffs’ state court action did not identify
any federal law claims and therefore such removal was not proper.
Both motions were heard on December 21, 2021. All counsel of record in Plaintiffs’ action
before this State Court, where in attendance and present before Judge Ellison and the Southern
District of Texas during the December 21, 2021 hearing.
During oral argument on the motion to remand and with regards to the federal question as
to copyright ownership of the sound recordings, Attorney David Calvillo, stated on record:
With respect to the ownership of the copyrights in question, I
believe on a prima facie basis counsel has filed in the court’s
record as record number...Document No. 7, that establishes
prima facie that the owner is La Energia Nortena [LLC] and not
Mr. Cuevas individually. The plaintiff [in the State Lawsuit] is La
Energia Nortena [LLC].
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 3
So far as we stand here today, there is no question as to
ownership. It is established, at least an admission by the defendant,
that La Energia Nortena [LLC], of which Mr. Cuevas is
admittedly a member, that is the owner of the copyright in
question.”
Upon hearing such admission from Counsel Calvillo, counsel for Cuevas immediately
called attention to the admission of copyright ownership given by the Plaintiffs.? But the Southern
District of Texas did not consider the admission relevant for the purposes of deciding whether
Plaintiffs’ action should be remanded.*
Counsel for Cuevas then explained that if the Southern District of Texas remanded the
Plaintiffs’ lawsuit back to 61‘ District State Court, the parties would be left to wind down and
dissolve the Company in state court while Moises Cuevas, Jr. would have to bring a separate
lawsuit in federal court to address his questions and claims based on federal copyright law
regarding the sound recordings in dispute.>
Judge Ellison responded to Counsel for Cuevas, recommending that Cuevas file his
own federal lawsuit to address the issues and claims related to copyright, stating: “That’s what I
think you ought to do. I really do.”®
Judge Ellison went on to explain:
Well, I think actually what you [i-e. Counsel for Cuevas] described
as two cases makes perfect sense. The corporate formalities and the
wind-down are quintessentially state court, state law questions.
Copyright is a different kettle of fish. It’s definitely federal, and
I think the case on ownership of the copyright can be decided
? See Def.’s Mot to Stay at Exhibit A at pg. 11, In. 5-16 (Transcript of Hearing from December 21, 2021);
3 See Reed v. City of Arlington, 650 F.3d 571, 573-74 (5" Cir. 2011) (“The doctrine of judicial estoppel prevents a
party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous
proceeding.”).
4 See Def.’s Mot to Stay at Exhibit A at pg. 12, In. 1-8 (Transcript of Hearing from December 21, 2021).
5 See Def.’s Mot to Stay at Exhibit A at pg. 12, In. 9-11 (Transcript of Hearing from December 21, 2021).
© See Def.’s Mot to Stay at Exhibit A at pg. 12, In. 12-13 (Transcript of Hearing from December 21, 2021).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 4
without reference to whether corporate formalities were
complied with.’
Counsel Calvillo, immediately replied in concurrence to Judge Ellison’s explanation,
saying: “Agreed, Your Honor.”®
Thereafter, the Southern District of Texas granted the motion to remand the State Lawsuit
back to the 61% District State Court.
Accordingly, on December 30, 2021, Moises Cuevas, Jr. filed an original lawsuit before
the Northern District of Texas (Civil Action No. 3:21-CV-03243-C-BK) (the “Federal Lawsuit”)
requesting, among other things, declaratory relief on the federal question of copyright ownership
of the sound recordings that are grounded in a dispute of authorship due to the parties’ failure to
contract in writing.’ Specifically, Defendant Cuevas, who is plaintiff in the Federal Lawsuit, has
asked the Federal Court to find, first and foremost, that the sound recording copyrights are the sole
property of La Energia Nortena, LLC (the “Company”, who is the nominal defendant to the
derivative action brought by Moises Cuevas to the enforce the Company’s rights pursuant to Fed.
R. Civ. Pro. 23.1).!° Cuevas has named Humberto Novoa, Adrian Zamarripa, Azteca Records,
7 See Def.’s Mot to Stay at Exhibit A at pg. 12, In. 12 to pg. 13, In. 2 (Transcript of Hearing from December 21,
2021).
8 See Def.’s Mot to Stay at Exhibit A at pg. 13, In. 3 (Transcript of Hearing from December 21, 2021).
° See 28 U.S.C. § 1338(a) specifically states, “The district courts shall have original jurisdiction of any civil
action arising under any Act of Congress related to...copyrights. No State court shall have jurisdiction over
any claims for relief arising under any Act of Congress relating to. ‘opyrights.”; Di Angelo Publ'ns, Inc. v.
Kelley, 9 F Ath 256, 260-61 (U.S. 5th Cir. 2021) (“Claims of ownership in a copyright do not invariable arise under
copyright law. 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. Section 201(a) of the Copyright Act provides that "[c]opyright in a work
protected under this title vests initially in the author or authors of the work. An author gains ‘exclusive rights’ in her
work immediately upon the work's creation, including rights of reproduction, distribution, and display, and thus
registration is not a prerequisite to an author holding a copyright.”); see also, 17 U.S.C. § 204(a) (“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.”).
1 See Meyer v. Fleming, 327 U.S. 161, 167 (1946) (“The corporation is a necessary party. Hence, it is joined as a
defendant. But it is only nominally a defendant, since any judgment obtained against the real defendant run in its
favor.”).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 5
LLC, Azteca Publishing, Inc., Azteca Talent Agency, Inc., and UMG Recordings, Inc. as the real
defendant parties to Cuevas’ derivative copyright action in the Federal Lawsuit.
After Cuevas’ first filed his Original Complaint in the Federal Lawsuit to decide the federal
question of copyright ownership of the sound recordings along with other federal and state based
causes of action related to exploitation of such sound recording copyrights, the Plaintiffs in the
State Lawsuit, subsequently decided to amend their Original Petition in the State Lawsuit and file
their First Amended Petition on February 11, 2022, which requested for the first time that the State
Court issue a declaratory judgment and find that a third-party entity (Azteca Records, LLC) owns
such sound recording copyrights — thereby pinning the Federal Court against the State Court’s on
the question of copyright ownership of the sound recordings.
Plaintiffs, in their First Amended Petition, specifically acknowledged that the dispute of
authorship between the parties when the Plaintiffs specifically alleged that Defendant Cuevas
“...ma[de] claims of ownership and authorship of albums where he has no right to claim
copyrights.”!!
Additionally, “...Plaintiffs [in their First Amended Petition] request[ed] that the [State]
Court adjudicate and declare the rights and interest of the parties pursuant to the Declaratory
Judgment Act, including, but not limited to:
(i) declaring that all rights to copyrights in the ten albums belong solely with Azteca
Records; and
(ii) ordering Defendant [Cuevas] to cease any attempt to seek copyright or other legal
protection for any album produced by Azteca Record for the band, La Energia
Nortena. 12
1 See Pl.s’ First Am. Pet. at § 17.
12 See Pl.s’ First Am. Pet. at § 22 (Emphasis added.).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 6
On February 19, 2022, Defendant Cuevas filed a Rule 91a Motion to Dismiss Plaintiffs’
Request for Declaratory Relief as pled in Plaintiffs’ First Amended Petition. Such motion was
originally heard by submission by the 61‘ District Court of Harris County, Texas on March 14,
2022. But the 61% District Court did not rule on Defendant’s 91a motion before it granted
Defendant’s Motion to Transfer Plaintiffs’ action to this 192" District Court of Dallas County,
Texas on March 21, 2022.
On July 27, 2022, the 192™ District Court reheard Defendant Cuevas’ 91a Motion to
Dismiss and issued an order granting Defendant Cuevas’ 91a Motion to Dismiss Plaintiffs’
Request for Declaratory Relief as pled in Plaintiffs’ First Amended Petition and the State Court
dismissed Plaintiffs’ Request for Declaratory Relief without prejudice.
Nevertheless, Plaintiffs’ Second Amended Petition, filed July 25, 2022, repleads a cause
of action of declaratory relief in paragraph 22, to specifically allege the existence of a contractual
agreement, stating:
22. Plaintiffs brings [sic] this action for declaratory judgment
pursuant to Chapter 37 of the Texas Civil Practice and Remedies
Code because a real and justifiable controversy exists between
Plaintiffs and Defendant regarding the matters described above,
including ask [sic] this Court to determine and declare the
copyrights interest in the albums. Accordingly, Plaintiffs request the
[State] Court adjudicate and declare the rights and interest of the
parties pursuant to the Declaratory Judgment Act, including, but not
limited to:
(i) declaring that all ownership and any copyrights to the ten
albums were transferred by contractual agreement to Azteca
Records; and
(ii) ordering Defendant [Cuevas] to cease any attempt to seek
copyright or other legal protection for any album produced
by Azteca Record for the band, La Energia Nortena.”!
13 See Pl.s’ Second Am. Petition at 22 (Emphasis added.).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 7
Thus, Plaintiffs in their Second Amended Petition once again ask this State Court to
judicially determine ownership of a copyright when the Federal Court is already deciding the
copyright ownership claim of such sound recordings that is grounded in a dispute of authorship as
pled by Moises Cuevas, Jr. in the Federal Lawsuit.
Plaintiffs, who are the defendants in the Federal Lawsuit, have filed numerous motions to
dismiss Cuevas’ Federal Lawsuit based on allegations of lack of subject matter jurisdiction,
standing, ripeness, and failure to state a claim for which relief can be granted. But the Northern
District of Texas has still not issued any ruling on Plaintiffs’ outstanding motions to dismiss.
On August 8, 2022, Defendant Cuevas’ filed his Motion to Stay the State Court’s
proceedings in Plaintiffs’ present action to allow the Federal District Court for Northern District
of Texas to first rule on whether it has jurisdiction to decide the copyright ownership issue as pled
by Defendant Cuevas, and if so, allow the Northern District of Texas the opportunity to first rule
on Defendant Cuevas’ claims and causes of action asserted on behalf of the Company in Defendant
Cuevas’ derivative action, so that the State Court proceedings can continue forward based on the
finding and rulings of the Federal Court.
On August 12, 2022, Plaintiffs filed their response in opposition to Defendant Cuevas’
Motion to Stay. Attached to Plaintiff's response were copies of Cuevas’ Original and First
Amended Complaints filed with the Federal District Court for the Northern District of Texas.
On August 15, 2022, Defendant Cuevas filed a Reply in Support of his Motion to Stay.
On August 18, 2022, this State Court properly ruled to grant Defendant’s Motion to Stay
the proceedings to allow “...the Federal Court for the Northern District of Texas to rule on the
federal question of copyright ownership of the sound recordings in dispute and the related federal
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 8
and state claims and causes of action first raised by Defendant Cuevas on behalf of Plaintiff La
Energia Nortena, LLC as part ofa derivative action in Civil Case No. 3:21-CV-03243-C-BK.”!4
Unhappy with the State Court’s decision to stay the proceedings before it, on September 9,
2022, Plaintiffs filed their Motion to Correct the State Court’s Order granting Defendant’s Motion
to Stay.
On September 14, 2022, Cuevas filed his response in opposition to Plaintiff's Motion to
Correct. Thereafter, also, on September 14, 2022, Plaintiffs filed their Amended Motion to Correct
the State Court’s Order granting Defendant’s Motion to Stay.
On September 15, 2022, Senior Judge Marshall for the 14" Judicial District of Texas,
Sitting by Assignment on behalf of the 192™ Judicial District of Texas, ruled to deny Plaintiffs
Motion to Correct and further ordered as follows:
The Court further finds that Plaintiffs and Plaintiffs’ counsel
knowingly made misrepresentations of fact in support of their
Motion to Correct the Court’s August 18, 2022 Order on
Defendant’s Motion to Stay for the improper purpose of wasting this
Court’s time, harassing Defendant Cuevas, and needlessly
increasing the cost of litigation in violation of Tex. R. Civ. P. 13 and
Tex. Civ. Prac. & Rem. Code § 10.001.
Accordingly, pursuant to Tex. Civ. Prac. & Rem. Code §10.002, this
Court orders that once the proceedings in the above action are
resumed and the present stay of all proceeding is lifted in the above
state action in accordance with the Court’s August 18, 2022 Order
on Defendant’s Motion to Stay, the clerk is instructed to set a special
hearing for Plaintiffs and Plaintiff's counsel to show cause why
Plaintiff's and Plaintiffs’ counsel conduct does not violate Tex. R.
Civ. P. 13 and Tex. Civ. Prac. & Rem. Code § 10.001 in filing and
presenting their Motion to Correct.
On November 23, 2022, the Federal District Court for the Northern District of Texas,
issued an order which granted the filing of Cuevas’ Third Amended Complaint. The Federal Court
14 See This Court’s Order dated August 18, 2022. Emphasis added.
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 9
specifically noted the State Court’s decision to stay its proceedings “...to enable this [Federal]
Court to resolve ‘the federal question of copyright ownership. oo
On November 28, 2022, the Plaintiffs in the State Lawsuit, unhappy with the prior
decisions of the State Court and Federal Court, filed a Petition for Writ of Mandamus with the
Fifth District Court of Appeals at Dallas (Case No. 05-22-01272-CV), asking the State Appellate
Court to overturn this Court’s order and decision to stay its proceedings.
On January 11, 2023, the Dallas Court of Appeals, in accordance with Tex. R. App. P.
7.2(b) and before even considering Plaintiff's Petition for Writ of Mandamus, issued an order
abating Plaintiffs’ appeal to first allow the newly elected Honorable Judge Maria Aceves the
opportunity to reconsider this State Court’s challenged stay order signed by the Honorable Kristina
Williams and inform the Dallas Court of Appeals if Judge Aceves is in agreement with the Court’s
prior decision to stay its proceedings.
On January 13, 2023, separate and apart from the Dallas Court of Appeals’ order
instructing this Court to reconsider the Court’s prior order granting Defendants’ Motion to Stay,
Plaintiffs filed a Motion for Reconsideration the Court’s Order granting Defendant’s Motion to
Stay, styled as Plaintiff's Motion for Reconsideration of Abatement, further requesting the Court
overturn the present stay.
On January 24, 2023, Plaintiffs set a hearing on Plaintiffs’ Motion for Reconsideration of
Abatement to be heard in person on Monday, February 27, 2023 at 10:30 a.m. before this 192™
Judicial District Court.
On February 20, 2023, the 192"! Court Administrator, Veronica Vaughn, sent an email to
all counsel of record informing counsel that Judge Jim Jordan, Senior Judge of the 160" District
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 10
Court, would be sitting by assignment for the 192"! District Court for the hearing on Plaintiffs’
Motion to Reconsider.
Accordingly, Defendant Cuevas files this response in opposition to Plaintiffs’ Motion to
Reconsider Abatement and in further support of State Court’s prior order granting Defendant’s
Motion to Stay all proceedings.
IH. ARGUMENT AND AUTHORITIES
A. There is a difference between a Motion to Stay and Motion to Abate.
Plaintiffs are erroneously treating Defendant Cuevas’ Motion to Stay as a motion to abate.
But there is fundamental distinction between a motion to stay and a motion to abate, and such
distinction limits the Dallas Court of Appeals’ ability to review or overturn this Court’s prior order
granting Defendant Cuevas’ Motion to Stay the present proceedings.
As O’Conner’s explains:
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 dominant 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 S.W. 924, 927 (Tex. App.—
Texarkana 2002, no pet.). As a matter of comity, it is customary
for the second court to stay its proceedings for a reasonable time
or until the first suit is resolved. /d. Many parties and even the
appellate courts make the mistake of referring to a motion to stay as
a motion to abate. See e.g., VE Corp. v. Ernst & Young, 860 S.W.2d
83, 84 (Tex. 1993) (court’s mistake); Crown Leasing, 92 S.W. 924,
926-27 (Tex. App.—Texarkana 2002, no pet.) (party’s mistake).
See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-I, §4.1 (Emphasis added).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 11
Accordingly, Defendant Cuevas’ Plea in Abatement and Motion to Stay should be treated
solely as a Motion to Stay (and not as a motion to abate) since dominate jurisdiction does not play
a part in the analysis. Defendant Cuevas previously explained such distinctions to the State Court
in Defendant Cuevas’ Reply in Support of his Motion to Stay.'> Indeed, as previously explained
by Defendant Cuevas, 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 S.W.3d
924, 927 (Tex. App.—Texarkana 2002, no pet.).!®
Thus, Defendant Cuevas appropriately filed a motion to stay “...requesting that the Court
suspend the case because the same case [regarding the copyrights in question] was first filed in
federal court. 17
B. The Court appropriately exercised discretion in granting Defendant’s Motion to Stay.
When a party makes a motion to stay in Texas court because the same suit was first filed
in federal court or another state’s court, the court’s ruling is within its discretion.'®
15 See Def.’s Reply in Support of Def.’s Motion to Stay at 8-11 (See Section III.B. entitled the State Court has
discretion to grant Cuevas’ Motion to Stay as a matter of comity.).
16 Rouse v. Tex. Capital Bank, N.A., 394 S.W.3d 1, 7 (Tex. App.—Dallas 201 1)(citing Crown Leasing Corp., 92
S.W.3d at 926-27.) (Emphasis added).
17 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 8.W.2d 358, 359 (Tex. App.—Houston [14"" Dist.] 1978, writ ref’d n.r.e.)(First suit filed
in federal court in New York; Defendant in first suit entitled to stay of Texas suit.)).
18 See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-1, §4.1.1.
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 12
The Dallas Court of Appeals has explained, “While abatement, in a proper case, is a matter
of right, a motion to stay is directed to the discretion of the Court and the granting or denying of
such motion will only be reviewed for an abuse of discretion. 2919
With regards to mandamus appeals on motions to stay, Texas courts have explained:
Mandamus will issue to correct a clear abuse of discretion by
the trial court where there is no adequate remedy by
appeal. Walker v. Packer, 827 S.W.2d 833, 839-40, 35 Tex. Sup.
Ct. J. 468 (Tex. 1992). A trial court clearly abuses its discretion if it
reaches a decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law. /d. at 839. A trial court has no
discretion in determining what the law is or applying the law to the
facts. Id. A clear failure by the trial court to analyze or apply the law
correctly will constitute an abuse of discretion. /d. A failure to
properly apply the principle of comity when requested to stay
the later of two actions pending in different states constitutes an
abuse of discretion. See, e.g., Evans v. Evans, 186 S.W.2d 277, 279
(Tex. App.-San Antonio 1945, no writ).
In addressing whether there is an adequate remedy by appeal, the
Texas Supreme Court has recently explained that the word
"adequate" has no comprehensive definition; it is simply a reference
to the careful balance of jurisprudential considerations that
determine when appellate courts will use original mandamus
proceedings to review the actions of lower courts. /n re Prudential
Ins. Co. of Am., 148 S.W.3d 124, 136, 47 Tex. Sup. Ct. J. 1104 (Tex.
2004) (orig. proceeding). These considerations implicate both
public and private interests. Jd. Mandamus review of incidental,
interlocutory rulings by the trial courts unduly interferes with
trial court proceedings, distracts appellate court attention to
issues that are unimportant both to the ultimate disposition of
the case at hand and to the uniform development of the law, and
adds unproductively to the expense and delay of civil
litigation. /d.
In re State Farm Mut. Auto. Ins. Co., 192 $.W.3d 897, 900 (Tex. App.—Tyler 2006, no pet.).
19 Williamson v. Tucker, 615 S.W.2d 881, 886 (Tex. App—Dallas 1981, writ ref'd n.r.e.)(“We conclude that no abuse
of discretion is present in this case because, first, the federal action involves numerous parties that are not parties to
this state court action and, additionally, the federal case was instituted by our defendant...before this suit was filed by
plaintiff. Both parties assert that the jurisdictional question in the federal courts is still pending on motion for rehearing
before the Court of Appeals for the Fifth Circuit and there are suggestions that once that decision becomes final,
review by writ of certiorari to the United States Supreme Court will be sought.”).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 13
The Dallas Court of Appeals has held that in order for a Court to grant a party’s motion to
stay, “...it is, as a general rule, necessary that the two suits involve the same cause of action,
concern the same subject matter, involve the same issues, and seek the same relief.”?°
Because the granting of a motion to stay is with the trial court’s discretion, this Court can
consider a number of factors before ruling on a motion to stay.?! Such factors include but are not
limited to:
(1) First suit. Which suit was filed first?
(2) Same parties. Are the parties the same in both suits???
(3) Same suit. Do the suits involve the same cause of action, concern, the same
subject matter, involve the same issues, and seek the same relief??*
(4) Effect of Judgment. What will be the effect of a judgment in the second suit on
any order or judgment in the first suit?”
Here, the Court appropriately exercised discretion by ruling to grant Defendant Cuevas’
Motion to Stay because:
(1) The Federal Lawsuit concerning the ownership of the copyrights in question was
filed first by Moises Cuevas on December 21, 2021; Plaintiffs did not amend their
State Lawsuit to request declaratory relief on the copyrights in question until
20 Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex. Civ. App.—Dallas 1966, writ dism’d w.o,j.); see also In re State
Farm, 192 S.W.3d at 901.
21 In re State Farm, 192 8.W.3d at 901 (See, e.g., Crown Leasing Corp. v. Sims, 92 8.W.3d 924, 927 (Tex. App.-
Texarkana 2002, no pet.) (trial court considered which suit filed first and effect order in later action would have on
order entered in prior action); Project Eng'g USA Corp. v. Gator Hawk, Inc., 833 S.W.2d 716, 725 (Tex. App.-
Houston [1st Dist.] 1992, no writ) (trial court considered which suit filed first, whether there was complete identity
of parties and issues in both suits, and time between filing plea in abatement and scheduled trial); Evans, 186
S.W.2d at 279 (trial court considered whether two suits involved same action and same parties and what effect order
in later action would have on order entered in prior action)).
?2 In re State Farm, 192 $.W.3d at 901.
3 In re State Farm, 192 $.W.3d at 901; see, e.g., Williamson, 615 S.W.2d at 886 (no abuse of discretion to deny
motion to stay because federal suit involved numerous parties who were not parties to the state suit).
24 In re State Farm, 192 8.W.3d at 901.
25 Td.
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 14
February 13, 2022 — after Cuevas had first presented the issue to the Federal Court;
Indeed, if the Plaintiffs’ Original Petition had touched on federal matters of
copyright, then the Federal Court of the Southern District of Texas would have
never remanded the State Lawsuit back to the State Court.
(2) Federal Lawsuit involves all the same parties as the State Lawsuit plus some
additional defendant parties including Azteca Publishing, Inc., Azteca Talent
Agency, Inc., and UMG Recordings, Inc.;
(3) Both the Federal Lawsuit and State Lawsuit seek judicial determination as to the
copyright ownership of the sound recordings in question;
a. In the Federal Lawsuit, Defendant Cuevas (who is plaintiff) brings a
derivative claim on behalf of La Energia Nortena, LLC, asking the Federal
Court to first and foremost issue declaratory relief that La Energia Nortena,
LLC is the sole owner of the sound recording copyrights based on the
Federal Court’s exclusive jurisdiction to decide the federal question of
copyright ownership that is grounded in a dispute of authorship.
In the State Lawsuit, Plaintiffs subsequently assert a claim for declaratory
relief requesting the State Court judicially determine that Azteca Records,
LLC is the owner of the sound recordings in question based on an alleged
contract.?° But as Defendant Cuevas previously mentioned in his Reply in
Support of his Motion to Stay, Plaintiffs and Plaintiffs’ counsel in this State
Court proceeding have failed to produce any contractual agreements or
documents to substantiate their recent claim “that all ownership and any
26 Pl.s’ 2nd Am. Petition at §22 (Pl.s’ Claim for Declaratory Relief).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 15
copyrights to the ten albums were transferred by contractual agreement to
Azteca Records” as 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.?” As mentioned in Defendants’ Reply in Support
of Defendants’ Motion to Stay, “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. 128
(4) If the State Court did not stay the proceedings before it to allow the Federal Court
to first rule on the copyright issues and matters before it, then the State Court’s
proceedings would have concluded before the Federal Court would have ever been able
to hear Cuevas’ derivative action brought on behalf of La Energia Nortena, LLC (the
“Company”). This State Court had a trial date set for December 5, 2022 to hear all
matters before it, including Plaintiffs’ request for this Court to wind down and dissolve
the Company. The Federal Lawsuit’s trial date was originally set for July 5, 2023, but
was recently reset to December 11, 2023. As previously mentioned, the Company is a
necessary nominal defendant to Cuevas’ derivative copyright claims currently before
the Federal Court. Therefore, if the State Court were to wind down and dissolve the
Company before the Federal Court first ruled on Cuevas’ derivative claims, Cuevas
would no longer have the ability to assert such derivative copyright claims as the
Company would no longer exists and likewise the Federal Court would be completely
27 See also, Def.’s Reply in Support
of Def.’s Mot. to Stay at 14.
28 Id.
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 16
deprived of its ability to rule on Cuevas’ derivative copyright claims and related causes
of action that Cuevas has first asserted on behalf of the Company.
Therefore, for all reasons mentioned above, this Court appropriately exercised discretion
in ruling to grant Defendant Cuevas’ Motion to Stay. Thus, the Dallas Court of Appeals will not
overturn this Court’s order granting Defendant Cuevas’ Motion to Stay, because it would have
been an abuse of discretion for this Court to not have granted Defendant Cuevas’ Motion to Stay.
C. Cuevas requests for his Motion to Stay was timely filed.
As mentioned, on February 11, 2022, Plaintiff's subsequently amended their Original
Petition and filed their First Amended Petition, which subsequently requested that the State Court
issue declaratory judgment and find that a third-party entity (Azteca Records, LLC) owns such
sound recording copyrights.
Cuevas timely filed his Rule 91a motion to dismiss Plaintiffs’ subsequent claim for
declaratory relief
of the copyrights in question, which this Court granted on July 27, 2022.
Indeed, Plaintiffs, realizing that their claim for declaratory relief as originally pled in their
First Amended Petition was deficient, amended their petition and filed a Second Amended Petition
on July 25, 2022, which deleted Plaintiffs’ prior allegations of a dispute of authorship and further
alleged that a contractual agreement existed. But the State Court could not consider the Second
Amended Petition at the time of the hearing on Defendants’ 91a motion, because Texas law
requires that an amended pleadings must be filed at least three days before the hearing date for the
Court to consider the amendment in ruling on the motion.”?
2° See Tex. R. Civ. P. 91a.5(b),(c).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 17
Accordingly, on August 2, 2022, in response to Plaintiffs’ replead claim for declaratory
relief appearing in the Second Amended Petition, Defendant Cuevas filed his Motion to Stay the
State Court’s proceedings. There were only 7 days between the filing of Plaintiffs’ Second
Amended Petition and the filing of Defendant’s Motion to Stay. Therefore, Defendant Cuevas’
Motion to Stay was extremely timely.°°
D. Defendant Cuevas did introduce evidence in support of his Motion to Stay.
Cuevas introduced sufficient evidence in support his Motion to Stay. Cuevas offered into
evidence the verification of Plaintiffs attorney, who swore under oath and stated, “There is another
suit pending before the Federal District Court of the Northern District of Texas in Civil Case No.
3:21-CV-03243-C-BK (the “Federal Lawsuit) between the same parties and involving the same
copyright ownership and authorship dispute. I also represent Moises Cuevas, Jr., who is plaintiff,
in the Federal Lawsuit. The Federal Lawsuit was the first lawsuit filed, requesting declaratory
relief on the issue of copyright ownership and authorship of the sound recordings in question.”?!
Furthermore, to the extent Plaintiffs argue that such verification is not evidence, because a
verification cannot be used as evidence in support of plea of abatement, again, Defendant did not
file a motion to abate.*? Defendant Cuevas filed a motion to stay, which again is fundamentally
different from a motion to abate.
Additionally, attached as Exhibit A to Defendant’s Motion to Stay, Defendant Cuevas also
filed a copy ofthe transcript from the December 21, 2021 hearing before the Judge Keith Ellison
%° See Howell v. Mauzy, 899 S.W.2d 690, 698 (Tex. App.—Austin 1994, no writ) (“Courts may examine the equities
of the situation in deciding whether the plea is timely filed.”).
31 See Def.s’ Mot to Stay the State Lawsuit at 13 (the Verification).
32 See Pl.s’ Mot. to Reconsider Abatement at 12 (citing Bazos Electrict Power Cooperative, Inc. v. Weatherford
Indep. School Dist., 453 S.W.2d 185, 188 (Tex.App.—Fort Worth 1970, writ ref'd n.t.e.)(reversible error for
abatement to be sustained without any evidence)).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 18
of the Federal District Court for the Southern District Texas.*> Furthermore, Defendant Cuevas
further filed a copy of the Court’s Order Compelling Plaintiffs to fully respond to Required
Disclosure 6 and a copy of Plaintiffs’ First Amended Disclosures, attached as Exhibits 1 and 2
respectively to Defendants’ Reply in Support Defendant’s Motion to Stay. Plaintiffs’ argument
that “Documents attached to pleadings and motions are not considered ‘evidence’ unless admitted
into evidence” is misleading as such case law relied on by Plaintiffs refers to such documents being
used at trial — not a hearing on a motion to stay.**
Finally, even assuming for the sole purposes of arguendo that such exhibits would not be
evidence, the Texas case law cited by Plaintiffs holds that Defendant is excused from offering any
evidence “...where the allegations of plaintiff's petition establish the grounds urged in the plea of
abatement.”>> Thus, even assuming Defendant Cuevas had not offered any evidence, this State
Court could still rule in Defendant Cuevas’ favor by looking at Plaintiff's Second Amended
Petition and noting therein that Plaintiffs’ replead claim for declaratory relief establishes the
grounds to enable this Court to stay its proceedings as a matter of comity.
Indeed, the fact that Plaintiffs have requested a motion for reconsideration of the Court’s
order granting Defendant Cuevas’ Motion to Stay, provides an additional opportunity for
Defendant Cuevas to submit evidence to the Court in support of the Court’s prior ruling to grant
33 See Def.’s Motion to Stay at Exhibit A.
4 Contrast Pl.s’ Mot. to Reconsider Abatement at 12 (citing Nat'l Med. Fin. Services, Inc. v. Irving Indep. School
District, 150 $.W.3d 901,905 (Tex. App—Dallas 2004, no pet.) (“In its third issue, National complains of the court's
refusal to admit its "Order of the Bankruptcy Court" as evidence during trial. National relies solely on Texas Civil
Procedure Rule 59 to assert a party may admit a business record by affidavit attached to the pleadings and contends
the rule therefore allows such "to be introduced into evidence unless the other party files an objection within 14
days." Rule 59, however, addresses exhibits to be used in pleadings. See TEX. R. CIV. P. 59. For exhibits to be
considered at trial, they must be properly admitted as evidence, even if already attached to pleadings under rule
59.”).
35 See Bazos Electrict Power Cooperative, Inc., 453 8.W.2d at 188 (“The law is settled in Texas that a party who
urges a plea in abatement has the burden of proving by a preponderance of the evidence at the hearing on such plea
the facts that are alleged in the plea as grounds for abating and dismissing the plaintiff's case. The one exception to
this rule is in instances where the allegations of plaintiff's petition establish the grounds urged in the plea in
abatement.”).
Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 19
such stay. Accordingly, Defendant Cuevas is prepared to prove-up any e
Preview
FILED 2/21/2023 5:41 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Treva Parker-Ayodele 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 RESPONSE TO PLAINTIFFS’ MOTION FOR RECONSIDERATION OF THE COURT’S ORDER GRANTING DEFEDANT’S MOTION TO STAY TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant Moises Cuevas, Jr. and files this response in opposition to Plaintiffs’ Motion for Reconsideration of the Court’s Order Granting Defendants’ Motion to Stay, styled Plaintiffs’ Motion for Reconsideration of Abatement. I. PRELIMINARY STATEMENT On August 18, 2022, this State Court properly ruled to grant Defendant Cuevas’ Motion to Stay the proceedings to allow “...the Federal Court for the Northern District of Texas to rule 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.”! Unhappy with this State Court’s decision, on November 28, 2023, Plaintiffs filed a Petition for Writ of Mandamus with the Fifth State Court of Appeals. But Plaintiffs’ appeal is meritless. Plaintiffs fail to appreciate the difference between a motion to abate and a motion to stay. The State Court appropriately ruled to grant Cuevas’ Motion to Stay the proceedings. | See This Court’s Order dated August 18, 2022 (Emphasis added.). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 1 I. BACKGROUND On April 15, 2021, Plaintiffs La Energia Nortena, LLC, Adrian Zamarripa, and Humberto Novoa filed their Original Petition in the 61 Judicial District of Harris County, Texas in Cause No. 2021-22525 against Defendant Moises Cuevas, Jr. for claims based on an alleged breach of fiduciary duty and further seeking the State Court’s intervention in the proposed winding down and dissolution of La Energia Nortena, LLC (the “Company”, owned by Plaintiff Adrian Zamarripa, Plaintiff Novoa, and Defendant Cuevas). While Defendant Cuevas was never served with Plaintiffs’ lawsuit and was never notified by any of the Plaintiffs that they had filed an action against in him in State Court, on September 2, 2021, after Defendant Cuevas became aware of Plaintiffs’ lawsuit, Defendant Cuevas: 1 voluntarily filed an original answer generally denying Plaintiffs’ Original Petition, filed a motion to transfer venue to Dallas County where all parties reside and where the Company’s headquarters are located; and filed a notice of removal to the Federal District Court for the Northern District of Texas. As stated in Defendant’s Notice of Removal on file with the State Court, Defendant Cuevas removed Plaintiffs’ action to Federal Court, because: With regards to Plaintiffs’ proposed wind down of the Company brought in the State Court Suit, removal to this Federal Court is proper because there is a general dispute between the parties as what assets are owned by Company. Specifically, there is federal question under copyright law as to who owns certain sound recordings of the musical performances of the musical group known as La Energia Nortena. On one hand, Defendant Cuevas claims that the [copyright] in such sound recordings is owned by the Company, La Energia Nortena, LLC. Yet, on the other hand, Plaintiff Novoa claims that the copyright in such sound recordings is owed exclusively by Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 2 Novoa’s other company, Azteca Records, LLC. Without the Federal Court’s immediate intervention to answer the federal question related to the copyright ownership of sound recording in dispute, the Company cannot properly account for such assets in dispute which is necessary for any proposed wind down. On September 3, 2021, the Federal Court for the Northern District of Texas found that Cuevas’ removal of the Plaintiffs’ action to the Northern District procedurally improper under 28 U.S.C. 1441, explaining that Plaintiffs’ action should have first been removed to the Southern District of Texas; accordingly, the Northern District of Texas sua sponte transferred the State Lawsuit to the Southern District of Texas before Judge Keith Ellison. After the case was transferred to the Southern District of Texas (Civil Case No. 4:21-CV- 02902), Cuevas filed a motion to transfer venue back to the Northern District, arguing that all parties lived and resided in Dallas County, Texas inside the jurisdiction of the Northern District of Texas. Additionally, Defendants La Energia Nortena, LLC, Humberto Novoa, and Adrian Zamarripa filed a joint motion to remand arguing that Plaintiffs’ state court action did not identify any federal law claims and therefore such removal was not proper. Both motions were heard on December 21, 2021. All counsel of record in Plaintiffs’ action before this State Court, where in attendance and present before Judge Ellison and the Southern District of Texas during the December 21, 2021 hearing. During oral argument on the motion to remand and with regards to the federal question as to copyright ownership of the sound recordings, Attorney David Calvillo, stated on record: With respect to the ownership of the copyrights in question, I believe on a prima facie basis counsel has filed in the court’s record as record number...Document No. 7, that establishes prima facie that the owner is La Energia Nortena [LLC] and not Mr. Cuevas individually. The plaintiff [in the State Lawsuit] is La Energia Nortena [LLC]. Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 3 So far as we stand here today, there is no question as to ownership. It is established, at least an admission by the defendant, that La Energia Nortena [LLC], of which Mr. Cuevas is admittedly a member, that is the owner of the copyright in question.” Upon hearing such admission from Counsel Calvillo, counsel for Cuevas immediately called attention to the admission of copyright ownership given by the Plaintiffs.? But the Southern District of Texas did not consider the admission relevant for the purposes of deciding whether Plaintiffs’ action should be remanded.* Counsel for Cuevas then explained that if the Southern District of Texas remanded the Plaintiffs’ lawsuit back to 61‘ District State Court, the parties would be left to wind down and dissolve the Company in state court while Moises Cuevas, Jr. would have to bring a separate lawsuit in federal court to address his questions and claims based on federal copyright law regarding the sound recordings in dispute.> Judge Ellison responded to Counsel for Cuevas, recommending that Cuevas file his own federal lawsuit to address the issues and claims related to copyright, stating: “That’s what I think you ought to do. I really do.”® Judge Ellison went on to explain: Well, I think actually what you [i-e. Counsel for Cuevas] described as two cases makes perfect sense. The corporate formalities and the wind-down are quintessentially state court, state law questions. Copyright is a different kettle of fish. It’s definitely federal, and I think the case on ownership of the copyright can be decided ? See Def.’s Mot to Stay at Exhibit A at pg. 11, In. 5-16 (Transcript of Hearing from December 21, 2021); 3 See Reed v. City of Arlington, 650 F.3d 571, 573-74 (5" Cir. 2011) (“The doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.”). 4 See Def.’s Mot to Stay at Exhibit A at pg. 12, In. 1-8 (Transcript of Hearing from December 21, 2021). 5 See Def.’s Mot to Stay at Exhibit A at pg. 12, In. 9-11 (Transcript of Hearing from December 21, 2021). © See Def.’s Mot to Stay at Exhibit A at pg. 12, In. 12-13 (Transcript of Hearing from December 21, 2021). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 4 without reference to whether corporate formalities were complied with.’ Counsel Calvillo, immediately replied in concurrence to Judge Ellison’s explanation, saying: “Agreed, Your Honor.”® Thereafter, the Southern District of Texas granted the motion to remand the State Lawsuit back to the 61% District State Court. Accordingly, on December 30, 2021, Moises Cuevas, Jr. filed an original lawsuit before the Northern District of Texas (Civil Action No. 3:21-CV-03243-C-BK) (the “Federal Lawsuit”) requesting, among other things, declaratory relief on the federal question of copyright ownership of the sound recordings that are grounded in a dispute of authorship due to the parties’ failure to contract in writing.’ Specifically, Defendant Cuevas, who is plaintiff in the Federal Lawsuit, has asked the Federal Court to find, first and foremost, that the sound recording copyrights are the sole property of La Energia Nortena, LLC (the “Company”, who is the nominal defendant to the derivative action brought by Moises Cuevas to the enforce the Company’s rights pursuant to Fed. R. Civ. Pro. 23.1).!° Cuevas has named Humberto Novoa, Adrian Zamarripa, Azteca Records, 7 See Def.’s Mot to Stay at Exhibit A at pg. 12, In. 12 to pg. 13, In. 2 (Transcript of Hearing from December 21, 2021). 8 See Def.’s Mot to Stay at Exhibit A at pg. 13, In. 3 (Transcript of Hearing from December 21, 2021). ° See 28 U.S.C. § 1338(a) specifically states, “The district courts shall have original jurisdiction of any civil action arising under any Act of Congress related to...copyrights. No State court shall have jurisdiction over any claims for relief arising under any Act of Congress relating to. ‘opyrights.”; Di Angelo Publ'ns, Inc. v. Kelley, 9 F Ath 256, 260-61 (U.S. 5th Cir. 2021) (“Claims of ownership in a copyright do not invariable arise under copyright law. 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. Section 201(a) of the Copyright Act provides that "[c]opyright in a work protected under this title vests initially in the author or authors of the work. An author gains ‘exclusive rights’ in her work immediately upon the work's creation, including rights of reproduction, distribution, and display, and thus registration is not a prerequisite to an author holding a copyright.”); see also, 17 U.S.C. § 204(a) (“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.”). 1 See Meyer v. Fleming, 327 U.S. 161, 167 (1946) (“The corporation is a necessary party. Hence, it is joined as a defendant. But it is only nominally a defendant, since any judgment obtained against the real defendant run in its favor.”). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 5 LLC, Azteca Publishing, Inc., Azteca Talent Agency, Inc., and UMG Recordings, Inc. as the real defendant parties to Cuevas’ derivative copyright action in the Federal Lawsuit. After Cuevas’ first filed his Original Complaint in the Federal Lawsuit to decide the federal question of copyright ownership of the sound recordings along with other federal and state based causes of action related to exploitation of such sound recording copyrights, the Plaintiffs in the State Lawsuit, subsequently decided to amend their Original Petition in the State Lawsuit and file their First Amended Petition on February 11, 2022, which requested for the first time that the State Court issue a declaratory judgment and find that a third-party entity (Azteca Records, LLC) owns such sound recording copyrights — thereby pinning the Federal Court against the State Court’s on the question of copyright ownership of the sound recordings. Plaintiffs, in their First Amended Petition, specifically acknowledged that the dispute of authorship between the parties when the Plaintiffs specifically alleged that Defendant Cuevas “...ma[de] claims of ownership and authorship of albums where he has no right to claim copyrights.”!! Additionally, “...Plaintiffs [in their First Amended Petition] request[ed] that the [State] Court adjudicate and declare the rights and interest of the parties pursuant to the Declaratory Judgment Act, including, but not limited to: (i) declaring that all rights to copyrights in the ten albums belong solely with Azteca Records; and (ii) ordering Defendant [Cuevas] to cease any attempt to seek copyright or other legal protection for any album produced by Azteca Record for the band, La Energia Nortena. 12 1 See Pl.s’ First Am. Pet. at § 17. 12 See Pl.s’ First Am. Pet. at § 22 (Emphasis added.). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 6 On February 19, 2022, Defendant Cuevas filed a Rule 91a Motion to Dismiss Plaintiffs’ Request for Declaratory Relief as pled in Plaintiffs’ First Amended Petition. Such motion was originally heard by submission by the 61‘ District Court of Harris County, Texas on March 14, 2022. But the 61% District Court did not rule on Defendant’s 91a motion before it granted Defendant’s Motion to Transfer Plaintiffs’ action to this 192" District Court of Dallas County, Texas on March 21, 2022. On July 27, 2022, the 192™ District Court reheard Defendant Cuevas’ 91a Motion to Dismiss and issued an order granting Defendant Cuevas’ 91a Motion to Dismiss Plaintiffs’ Request for Declaratory Relief as pled in Plaintiffs’ First Amended Petition and the State Court dismissed Plaintiffs’ Request for Declaratory Relief without prejudice. Nevertheless, Plaintiffs’ Second Amended Petition, filed July 25, 2022, repleads a cause of action of declaratory relief in paragraph 22, to specifically allege the existence of a contractual agreement, stating: 22. Plaintiffs brings [sic] this action for declaratory judgment pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code because a real and justifiable controversy exists between Plaintiffs and Defendant regarding the matters described above, including ask [sic] this Court to determine and declare the copyrights interest in the albums. Accordingly, Plaintiffs request the [State] Court adjudicate and declare the rights and interest of the parties pursuant to the Declaratory Judgment Act, including, but not limited to: (i) declaring that all ownership and any copyrights to the ten albums were transferred by contractual agreement to Azteca Records; and (ii) ordering Defendant [Cuevas] to cease any attempt to seek copyright or other legal protection for any album produced by Azteca Record for the band, La Energia Nortena.”! 13 See Pl.s’ Second Am. Petition at 22 (Emphasis added.). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 7 Thus, Plaintiffs in their Second Amended Petition once again ask this State Court to judicially determine ownership of a copyright when the Federal Court is already deciding the copyright ownership claim of such sound recordings that is grounded in a dispute of authorship as pled by Moises Cuevas, Jr. in the Federal Lawsuit. Plaintiffs, who are the defendants in the Federal Lawsuit, have filed numerous motions to dismiss Cuevas’ Federal Lawsuit based on allegations of lack of subject matter jurisdiction, standing, ripeness, and failure to state a claim for which relief can be granted. But the Northern District of Texas has still not issued any ruling on Plaintiffs’ outstanding motions to dismiss. On August 8, 2022, Defendant Cuevas’ filed his Motion to Stay the State Court’s proceedings in Plaintiffs’ present action to allow the Federal District Court for Northern District of Texas to first rule on whether it has jurisdiction to decide the copyright ownership issue as pled by Defendant Cuevas, and if so, allow the Northern District of Texas the opportunity to first rule on Defendant Cuevas’ claims and causes of action asserted on behalf of the Company in Defendant Cuevas’ derivative action, so that the State Court proceedings can continue forward based on the finding and rulings of the Federal Court. On August 12, 2022, Plaintiffs filed their response in opposition to Defendant Cuevas’ Motion to Stay. Attached to Plaintiff's response were copies of Cuevas’ Original and First Amended Complaints filed with the Federal District Court for the Northern District of Texas. On August 15, 2022, Defendant Cuevas filed a Reply in Support of his Motion to Stay. On August 18, 2022, this State Court properly ruled to grant Defendant’s Motion to Stay the proceedings to allow “...the Federal Court for the Northern District of Texas to rule on the federal question of copyright ownership of the sound recordings in dispute and the related federal Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 8 and state claims and causes of action first raised by Defendant Cuevas on behalf of Plaintiff La Energia Nortena, LLC as part ofa derivative action in Civil Case No. 3:21-CV-03243-C-BK.”!4 Unhappy with the State Court’s decision to stay the proceedings before it, on September 9, 2022, Plaintiffs filed their Motion to Correct the State Court’s Order granting Defendant’s Motion to Stay. On September 14, 2022, Cuevas filed his response in opposition to Plaintiff's Motion to Correct. Thereafter, also, on September 14, 2022, Plaintiffs filed their Amended Motion to Correct the State Court’s Order granting Defendant’s Motion to Stay. On September 15, 2022, Senior Judge Marshall for the 14" Judicial District of Texas, Sitting by Assignment on behalf of the 192™ Judicial District of Texas, ruled to deny Plaintiffs Motion to Correct and further ordered as follows: The Court further finds that Plaintiffs and Plaintiffs’ counsel knowingly made misrepresentations of fact in support of their Motion to Correct the Court’s August 18, 2022 Order on Defendant’s Motion to Stay for the improper purpose of wasting this Court’s time, harassing Defendant Cuevas, and needlessly increasing the cost of litigation in violation of Tex. R. Civ. P. 13 and Tex. Civ. Prac. & Rem. Code § 10.001. Accordingly, pursuant to Tex. Civ. Prac. & Rem. Code §10.002, this Court orders that once the proceedings in the above action are resumed and the present stay of all proceeding is lifted in the above state action in accordance with the Court’s August 18, 2022 Order on Defendant’s Motion to Stay, the clerk is instructed to set a special hearing for Plaintiffs and Plaintiff's counsel to show cause why Plaintiff's and Plaintiffs’ counsel conduct does not violate Tex. R. Civ. P. 13 and Tex. Civ. Prac. & Rem. Code § 10.001 in filing and presenting their Motion to Correct. On November 23, 2022, the Federal District Court for the Northern District of Texas, issued an order which granted the filing of Cuevas’ Third Amended Complaint. The Federal Court 14 See This Court’s Order dated August 18, 2022. Emphasis added. Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 9 specifically noted the State Court’s decision to stay its proceedings “...to enable this [Federal] Court to resolve ‘the federal question of copyright ownership. oo On November 28, 2022, the Plaintiffs in the State Lawsuit, unhappy with the prior decisions of the State Court and Federal Court, filed a Petition for Writ of Mandamus with the Fifth District Court of Appeals at Dallas (Case No. 05-22-01272-CV), asking the State Appellate Court to overturn this Court’s order and decision to stay its proceedings. On January 11, 2023, the Dallas Court of Appeals, in accordance with Tex. R. App. P. 7.2(b) and before even considering Plaintiff's Petition for Writ of Mandamus, issued an order abating Plaintiffs’ appeal to first allow the newly elected Honorable Judge Maria Aceves the opportunity to reconsider this State Court’s challenged stay order signed by the Honorable Kristina Williams and inform the Dallas Court of Appeals if Judge Aceves is in agreement with the Court’s prior decision to stay its proceedings. On January 13, 2023, separate and apart from the Dallas Court of Appeals’ order instructing this Court to reconsider the Court’s prior order granting Defendants’ Motion to Stay, Plaintiffs filed a Motion for Reconsideration the Court’s Order granting Defendant’s Motion to Stay, styled as Plaintiff's Motion for Reconsideration of Abatement, further requesting the Court overturn the present stay. On January 24, 2023, Plaintiffs set a hearing on Plaintiffs’ Motion for Reconsideration of Abatement to be heard in person on Monday, February 27, 2023 at 10:30 a.m. before this 192™ Judicial District Court. On February 20, 2023, the 192"! Court Administrator, Veronica Vaughn, sent an email to all counsel of record informing counsel that Judge Jim Jordan, Senior Judge of the 160" District Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 10 Court, would be sitting by assignment for the 192"! District Court for the hearing on Plaintiffs’ Motion to Reconsider. Accordingly, Defendant Cuevas files this response in opposition to Plaintiffs’ Motion to Reconsider Abatement and in further support of State Court’s prior order granting Defendant’s Motion to Stay all proceedings. IH. ARGUMENT AND AUTHORITIES A. There is a difference between a Motion to Stay and Motion to Abate. Plaintiffs are erroneously treating Defendant Cuevas’ Motion to Stay as a motion to abate. But there is fundamental distinction between a motion to stay and a motion to abate, and such distinction limits the Dallas Court of Appeals’ ability to review or overturn this Court’s prior order granting Defendant Cuevas’ Motion to Stay the present proceedings. As O’Conner’s explains: 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 dominant 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 S.W. 924, 927 (Tex. App.— Texarkana 2002, no pet.). As a matter of comity, it is customary for the second court to stay its proceedings for a reasonable time or until the first suit is resolved. /d. Many parties and even the appellate courts make the mistake of referring to a motion to stay as a motion to abate. See e.g., VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (court’s mistake); Crown Leasing, 92 S.W. 924, 926-27 (Tex. App.—Texarkana 2002, no pet.) (party’s mistake). See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-I, §4.1 (Emphasis added). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 11 Accordingly, Defendant Cuevas’ Plea in Abatement and Motion to Stay should be treated solely as a Motion to Stay (and not as a motion to abate) since dominate jurisdiction does not play a part in the analysis. Defendant Cuevas previously explained such distinctions to the State Court in Defendant Cuevas’ Reply in Support of his Motion to Stay.'> Indeed, as previously explained by Defendant Cuevas, 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 S.W.3d 924, 927 (Tex. App.—Texarkana 2002, no pet.).!® Thus, Defendant Cuevas appropriately filed a motion to stay “...requesting that the Court suspend the case because the same case [regarding the copyrights in question] was first filed in federal court. 17 B. The Court appropriately exercised discretion in granting Defendant’s Motion to Stay. When a party makes a motion to stay in Texas court because the same suit was first filed in federal court or another state’s court, the court’s ruling is within its discretion.'® 15 See Def.’s Reply in Support of Def.’s Motion to Stay at 8-11 (See Section III.B. entitled the State Court has discretion to grant Cuevas’ Motion to Stay as a matter of comity.). 16 Rouse v. Tex. Capital Bank, N.A., 394 S.W.3d 1, 7 (Tex. App.—Dallas 201 1)(citing Crown Leasing Corp., 92 S.W.3d at 926-27.) (Emphasis added). 17 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 8.W.2d 358, 359 (Tex. App.—Houston [14"" Dist.] 1978, writ ref’d n.r.e.)(First suit filed in federal court in New York; Defendant in first suit entitled to stay of Texas suit.)). 18 See O’Connor’s Texas Rules Civil Trials 2021 at Ch.3-1, §4.1.1. Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 12 The Dallas Court of Appeals has explained, “While abatement, in a proper case, is a matter of right, a motion to stay is directed to the discretion of the Court and the granting or denying of such motion will only be reviewed for an abuse of discretion. 2919 With regards to mandamus appeals on motions to stay, Texas courts have explained: Mandamus will issue to correct a clear abuse of discretion by the trial court where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40, 35 Tex. Sup. Ct. J. 468 (Tex. 1992). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. /d. at 839. A trial court has no discretion in determining what the law is or applying the law to the facts. Id. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. /d. A failure to properly apply the principle of comity when requested to stay the later of two actions pending in different states constitutes an abuse of discretion. See, e.g., Evans v. Evans, 186 S.W.2d 277, 279 (Tex. App.-San Antonio 1945, no writ). In addressing whether there is an adequate remedy by appeal, the Texas Supreme Court has recently explained that the word "adequate" has no comprehensive definition; it is simply a reference to the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts. /n re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136, 47 Tex. Sup. Ct. J. 1104 (Tex. 2004) (orig. proceeding). These considerations implicate both public and private interests. Jd. Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation. /d. In re State Farm Mut. Auto. Ins. Co., 192 $.W.3d 897, 900 (Tex. App.—Tyler 2006, no pet.). 19 Williamson v. Tucker, 615 S.W.2d 881, 886 (Tex. App—Dallas 1981, writ ref'd n.r.e.)(“We conclude that no abuse of discretion is present in this case because, first, the federal action involves numerous parties that are not parties to this state court action and, additionally, the federal case was instituted by our defendant...before this suit was filed by plaintiff. Both parties assert that the jurisdictional question in the federal courts is still pending on motion for rehearing before the Court of Appeals for the Fifth Circuit and there are suggestions that once that decision becomes final, review by writ of certiorari to the United States Supreme Court will be sought.”). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 13 The Dallas Court of Appeals has held that in order for a Court to grant a party’s motion to stay, “...it is, as a general rule, necessary that the two suits involve the same cause of action, concern the same subject matter, involve the same issues, and seek the same relief.”?° Because the granting of a motion to stay is with the trial court’s discretion, this Court can consider a number of factors before ruling on a motion to stay.?! Such factors include but are not limited to: (1) First suit. Which suit was filed first? (2) Same parties. Are the parties the same in both suits??? (3) Same suit. Do the suits involve the same cause of action, concern, the same subject matter, involve the same issues, and seek the same relief??* (4) Effect of Judgment. What will be the effect of a judgment in the second suit on any order or judgment in the first suit?” Here, the Court appropriately exercised discretion by ruling to grant Defendant Cuevas’ Motion to Stay because: (1) The Federal Lawsuit concerning the ownership of the copyrights in question was filed first by Moises Cuevas on December 21, 2021; Plaintiffs did not amend their State Lawsuit to request declaratory relief on the copyrights in question until 20 Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex. Civ. App.—Dallas 1966, writ dism’d w.o,j.); see also In re State Farm, 192 S.W.3d at 901. 21 In re State Farm, 192 8.W.3d at 901 (See, e.g., Crown Leasing Corp. v. Sims, 92 8.W.3d 924, 927 (Tex. App.- Texarkana 2002, no pet.) (trial court considered which suit filed first and effect order in later action would have on order entered in prior action); Project Eng'g USA Corp. v. Gator Hawk, Inc., 833 S.W.2d 716, 725 (Tex. App.- Houston [1st Dist.] 1992, no writ) (trial court considered which suit filed first, whether there was complete identity of parties and issues in both suits, and time between filing plea in abatement and scheduled trial); Evans, 186 S.W.2d at 279 (trial court considered whether two suits involved same action and same parties and what effect order in later action would have on order entered in prior action)). ?2 In re State Farm, 192 $.W.3d at 901. 3 In re State Farm, 192 $.W.3d at 901; see, e.g., Williamson, 615 S.W.2d at 886 (no abuse of discretion to deny motion to stay because federal suit involved numerous parties who were not parties to the state suit). 24 In re State Farm, 192 8.W.3d at 901. 25 Td. Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 14 February 13, 2022 — after Cuevas had first presented the issue to the Federal Court; Indeed, if the Plaintiffs’ Original Petition had touched on federal matters of copyright, then the Federal Court of the Southern District of Texas would have never remanded the State Lawsuit back to the State Court. (2) Federal Lawsuit involves all the same parties as the State Lawsuit plus some additional defendant parties including Azteca Publishing, Inc., Azteca Talent Agency, Inc., and UMG Recordings, Inc.; (3) Both the Federal Lawsuit and State Lawsuit seek judicial determination as to the copyright ownership of the sound recordings in question; a. In the Federal Lawsuit, Defendant Cuevas (who is plaintiff) brings a derivative claim on behalf of La Energia Nortena, LLC, asking the Federal Court to first and foremost issue declaratory relief that La Energia Nortena, LLC is the sole owner of the sound recording copyrights based on the Federal Court’s exclusive jurisdiction to decide the federal question of copyright ownership that is grounded in a dispute of authorship. In the State Lawsuit, Plaintiffs subsequently assert a claim for declaratory relief requesting the State Court judicially determine that Azteca Records, LLC is the owner of the sound recordings in question based on an alleged contract.?° But as Defendant Cuevas previously mentioned in his Reply in Support of his Motion to Stay, Plaintiffs and Plaintiffs’ counsel in this State Court proceeding have failed to produce any contractual agreements or documents to substantiate their recent claim “that all ownership and any 26 Pl.s’ 2nd Am. Petition at §22 (Pl.s’ Claim for Declaratory Relief). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 15 copyrights to the ten albums were transferred by contractual agreement to Azteca Records” as 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.?” As mentioned in Defendants’ Reply in Support of Defendants’ Motion to Stay, “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. 128 (4) If the State Court did not stay the proceedings before it to allow the Federal Court to first rule on the copyright issues and matters before it, then the State Court’s proceedings would have concluded before the Federal Court would have ever been able to hear Cuevas’ derivative action brought on behalf of La Energia Nortena, LLC (the “Company”). This State Court had a trial date set for December 5, 2022 to hear all matters before it, including Plaintiffs’ request for this Court to wind down and dissolve the Company. The Federal Lawsuit’s trial date was originally set for July 5, 2023, but was recently reset to December 11, 2023. As previously mentioned, the Company is a necessary nominal defendant to Cuevas’ derivative copyright claims currently before the Federal Court. Therefore, if the State Court were to wind down and dissolve the Company before the Federal Court first ruled on Cuevas’ derivative claims, Cuevas would no longer have the ability to assert such derivative copyright claims as the Company would no longer exists and likewise the Federal Court would be completely 27 See also, Def.’s Reply in Support of Def.’s Mot. to Stay at 14. 28 Id. Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 16 deprived of its ability to rule on Cuevas’ derivative copyright claims and related causes of action that Cuevas has first asserted on behalf of the Company. Therefore, for all reasons mentioned above, this Court appropriately exercised discretion in ruling to grant Defendant Cuevas’ Motion to Stay. Thus, the Dallas Court of Appeals will not overturn this Court’s order granting Defendant Cuevas’ Motion to Stay, because it would have been an abuse of discretion for this Court to not have granted Defendant Cuevas’ Motion to Stay. C. Cuevas requests for his Motion to Stay was timely filed. As mentioned, on February 11, 2022, Plaintiff's subsequently amended their Original Petition and filed their First Amended Petition, which subsequently requested that the State Court issue declaratory judgment and find that a third-party entity (Azteca Records, LLC) owns such sound recording copyrights. Cuevas timely filed his Rule 91a motion to dismiss Plaintiffs’ subsequent claim for declaratory relief of the copyrights in question, which this Court granted on July 27, 2022. Indeed, Plaintiffs, realizing that their claim for declaratory relief as originally pled in their First Amended Petition was deficient, amended their petition and filed a Second Amended Petition on July 25, 2022, which deleted Plaintiffs’ prior allegations of a dispute of authorship and further alleged that a contractual agreement existed. But the State Court could not consider the Second Amended Petition at the time of the hearing on Defendants’ 91a motion, because Texas law requires that an amended pleadings must be filed at least three days before the hearing date for the Court to consider the amendment in ruling on the motion.”? 2° See Tex. R. Civ. P. 91a.5(b),(c). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 17 Accordingly, on August 2, 2022, in response to Plaintiffs’ replead claim for declaratory relief appearing in the Second Amended Petition, Defendant Cuevas filed his Motion to Stay the State Court’s proceedings. There were only 7 days between the filing of Plaintiffs’ Second Amended Petition and the filing of Defendant’s Motion to Stay. Therefore, Defendant Cuevas’ Motion to Stay was extremely timely.°° D. Defendant Cuevas did introduce evidence in support of his Motion to Stay. Cuevas introduced sufficient evidence in support his Motion to Stay. Cuevas offered into evidence the verification of Plaintiffs attorney, who swore under oath and stated, “There is another suit pending before the Federal District Court of the Northern District of Texas in Civil Case No. 3:21-CV-03243-C-BK (the “Federal Lawsuit) between the same parties and involving the same copyright ownership and authorship dispute. I also represent Moises Cuevas, Jr., who is plaintiff, in the Federal Lawsuit. The Federal Lawsuit was the first lawsuit filed, requesting declaratory relief on the issue of copyright ownership and authorship of the sound recordings in question.”?! Furthermore, to the extent Plaintiffs argue that such verification is not evidence, because a verification cannot be used as evidence in support of plea of abatement, again, Defendant did not file a motion to abate.*? Defendant Cuevas filed a motion to stay, which again is fundamentally different from a motion to abate. Additionally, attached as Exhibit A to Defendant’s Motion to Stay, Defendant Cuevas also filed a copy ofthe transcript from the December 21, 2021 hearing before the Judge Keith Ellison %° See Howell v. Mauzy, 899 S.W.2d 690, 698 (Tex. App.—Austin 1994, no writ) (“Courts may examine the equities of the situation in deciding whether the plea is timely filed.”). 31 See Def.s’ Mot to Stay the State Lawsuit at 13 (the Verification). 32 See Pl.s’ Mot. to Reconsider Abatement at 12 (citing Bazos Electrict Power Cooperative, Inc. v. Weatherford Indep. School Dist., 453 S.W.2d 185, 188 (Tex.App.—Fort Worth 1970, writ ref'd n.t.e.)(reversible error for abatement to be sustained without any evidence)). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 18 of the Federal District Court for the Southern District Texas.*> Furthermore, Defendant Cuevas further filed a copy of the Court’s Order Compelling Plaintiffs to fully respond to Required Disclosure 6 and a copy of Plaintiffs’ First Amended Disclosures, attached as Exhibits 1 and 2 respectively to Defendants’ Reply in Support Defendant’s Motion to Stay. Plaintiffs’ argument that “Documents attached to pleadings and motions are not considered ‘evidence’ unless admitted into evidence” is misleading as such case law relied on by Plaintiffs refers to such documents being used at trial — not a hearing on a motion to stay.** Finally, even assuming for the sole purposes of arguendo that such exhibits would not be evidence, the Texas case law cited by Plaintiffs holds that Defendant is excused from offering any evidence “...where the allegations of plaintiff's petition establish the grounds urged in the plea of abatement.”>> Thus, even assuming Defendant Cuevas had not offered any evidence, this State Court could still rule in Defendant Cuevas’ favor by looking at Plaintiff's Second Amended Petition and noting therein that Plaintiffs’ replead claim for declaratory relief establishes the grounds to enable this Court to stay its proceedings as a matter of comity. Indeed, the fact that Plaintiffs have requested a motion for reconsideration of the Court’s order granting Defendant Cuevas’ Motion to Stay, provides an additional opportunity for Defendant Cuevas to submit evidence to the Court in support of the Court’s prior ruling to grant 33 See Def.’s Motion to Stay at Exhibit A. 4 Contrast Pl.s’ Mot. to Reconsider Abatement at 12 (citing Nat'l Med. Fin. Services, Inc. v. Irving Indep. School District, 150 $.W.3d 901,905 (Tex. App—Dallas 2004, no pet.) (“In its third issue, National complains of the court's refusal to admit its "Order of the Bankruptcy Court" as evidence during trial. National relies solely on Texas Civil Procedure Rule 59 to assert a party may admit a business record by affidavit attached to the pleadings and contends the rule therefore allows such "to be introduced into evidence unless the other party files an objection within 14 days." Rule 59, however, addresses exhibits to be used in pleadings. See TEX. R. CIV. P. 59. For exhibits to be considered at trial, they must be properly admitted as evidence, even if already attached to pleadings under rule 59.”). 35 See Bazos Electrict Power Cooperative, Inc., 453 8.W.2d at 188 (“The law is settled in Texas that a party who urges a plea in abatement has the burden of proving by a preponderance of the evidence at the hearing on such plea the facts that are alleged in the plea as grounds for abating and dismissing the plaintiff's case. The one exception to this rule is in instances where the allegations of plaintiff's petition establish the grounds urged in the plea in abatement.”). Def.’s Resp. to Pl.s’ Mot. to Reconsider the Court’s Order Granting Def.’s Mot. to Stay PAGE 19 such stay. Accordingly, Defendant Cuevas is prepared to prove-up any e