Preview
FILED
DALLAS COUNTY
7/8/2019 6:23 PM
FELICIA PITRE
DISTRICT CLERK
Terri Kilgore
CAUSE NO. DC-19-07231
ROBERT E. TORTI, M.D. P.A., dba IN THE DISTRICT COURT
RETINA SPECIALISTS,
Plaintiff,
v. DALLAS COUNTY, TEXAS
HEMANG K. PANDYA, M.D., COMBER
HOLDINGS, PLLC,
Defendants. 160th JUDICIAL DISTRICT
DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO
DEFENDANTS’ MOTION TO DISMISS
Defendants, Dr. Hemang K. Pandya, M.D. (“Dr. Pandya”) and Comber Holdings, PLLC
(“Comber Holdings”) (collectively, “Defendants”) file their Reply to Plaintiff Robert E. Torti, M.D.
P.A.’s (“Plaintiff” or “Retina Specialists”) Response to Defendants’ Motion to Dismiss and will
respectfully show this Honorable Court the following:
I. Summary
1. Plaintiff admits in the Response that its claims in this lawsuit arise out of a letter that
Dr. Pandya sent to his former patients notifying them he had left the practice (the “Letter”), 1 but
claims that the TCPA does not apply to this letter because it was commercial speech. See Response,
e.g., at p. 7. Because Dr. Pandya is not currently engaging in the practice of medicine,2 and because
the Texas Medical Board requires him to send a letter to his former patients notifying them of his
departure and addressing their continuity of care, the Letter is not commercial speech and TCPA
applies. The continuity of care if a matter of “public concern” under the TCPA because it relates to
1
Exhibit B to the Response.
2
Exhibit A to this Reply (Declaration of Dr. Hemang K. Pandya).
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 1
4850-0607-4780.1
“health,” a topic specifically identified in the statute.
2. Plaintiff fails to address in its Response the argument that its lawsuit is based on the
following communications that are an exercise of the right of free speech: (1) a patient review of Dr.
Pandya’s services at an unspecified time left on his Facebook page after had left Plaintiff’s
employment;3 (2) a website page showing that Comber Holdings is “associated” with two clinics
within the non-compete area;4 and (3) a website page www.dallasretina.com.5 These
communications relate to matters of “public concern” because they generally relate to a good,
product, or service in the marketplace. By failing to address this argument, Plaintiff concedes that
its lawsuit arises out of these three communications and the TCPA applies.
3. Plaintiff has not provided clear and specific evidence of each of its claims as required
by TCPA. Retina Specialists have not established that (1) they had an enforceable non-compete
agreement; (2) Dr. Pandya breached the non-compete agreement; and (3) Plaintiff suffered damages
from such breach. Plaintiff provided no evidence supporting the reasonableness of a 30-mile non-
compete radius (as opposed to a 2-mile or a 5-mile radius). Plaintiff provided zero evidence that Dr.
Pandya “performed medical services” in violation of the non-compete agreement. Finally, Plaintiff
provided no evidence that it suffered any damages due as the result of Dr. Pandya’s alleged violation
of the non-compete agreement.
4. Plaintiff has deliberately avoided conducting discovery in this case. Defendants have
twice offered to be deposed – in May and July – and to conduct limited discovery. Plaintiff rejected
both offers by not responding. Moreover, Plaintiff fails to identify specifically what discovery still
needs. The Court should see through Plaintiff’s pretextual reasons for delay and grant the Motion.
3
Exhibit E to the Response.
4
Exhibit F to the Response.
5
Exhibit J to the Response.
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 2
4850-0607-4780.1
II. Arguments and Authorities
A. Commercial Exemption Does Not Apply to the Letter.
5. Plaintiff argues that the Texas Citizens Participation Act (“TCPA”) does not apply in
this case because of the commercial speech exemption. See Response at 4. Specifically, Plaintiff
argues that its claims are based on Dr. Pandya’s communications, which qualify as commercial
speech. Id. Plaintiff admits that it has the burden of proving application of the commercial speech
exemption. Id. Yet, it fails to establish any of the four prongs of the exemption.
a. Dr. Pandya is not engaged in the business of selling or leasing goods or services.
6. Dr. Pandya has not performed retina treatments or sold his medical services since he
was terminated by Plaintiff’s on January 31, 2019.6 In fact, he is currently receiving unemployment
benefits, for which he applied shortly after Plaintiff terminated his employment.7
7. Preparing to be in a business of selling or leasing goods or services, is not the same as
actually being in that business. While Dr. Pandya has a website and has formed an entity with the
Texas Secretary of State, he has not provided any retina services, invoiced any patients, received any
payments, or engaged in any other activity that establishes that he is “in the business of selling or
leasing good or services.”8 Thus, the fact that Dr. Pandya may offer medical service sin the future,
cannot satisfy the first prong of the exemption.
b. Dr. Pandya’s statements in the patient notification letter were not made in the capacity
as a seller.
8. Because Dr. Pandya is not engaged in the business of selling goods or services, none
of his statements could be made in the capacity as a seller of such goods or services.
6
See Exhibit A, Declaration of Dr. Pandya.
7
Id.
8
Id.
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 3
4850-0607-4780.1
9. The letter that Dr. Pandya sent to his former patients on April 9, 2019, which serves
as the basis for Plaintiff’s claim in this lawsuit was not made in Dr. Pandya’s “capacity as a seller.”
Plaintiff cobbles up snippets from the letter to make it appear as if Dr. Pandya sent the letter to
solicit patients to become their “primary physician/ophthalmologist.” See Response at 7. The letter
does not contain such a request. Plaintiff urges that such request “should be read” or “inferred”
based on Dr. Pandya’s invitation to his former patients to reconnect with him. But inferences are not
enough to carry Plaintiff’s burden.
10. The fact is that Plaintiff sued Defendants because Dr. Pandya wrote “You can re-
connect with me at www.DallasRetina.com.” This statement is not the type of a sales pitch that the
commercial exemption is supposed to cover. Nor is Dr. Pandya’s statement “I look forward to
taking care of you at my new office location” without a definite timeline is the type of a
communication related to goods or services that are covered by the commercial exemption.
c. Dr. Pandya’s Statements Did Not Arise out of a Commercial Transaction as He Has
not Sold Any Goods or Services or Attempted Such Goods or Services.
11. In the letter, Dr. Pandya did not ask patients to transfer their medical records
specifically to him, did not solicit them to become his patients, did not persuade them to leave
Retinas Specialists, and did not promise to provide medical services to them. In both of the cases
cited by Plaintiff – Berry v. ETX Successor Tyler and Tyler v. Pridgeon – the communications that
gave rise to plaintiff’s claims concerned payment for services. See Response at p. 6. This is simply
not the case with Dr. Pandya’s letter, which does not ask patients to hire Defendant or seeks
compensation from them.
B. Communications on Which Plaintiff’s Claims Are Predicated Concern Public
Health.
12. Dr. Pandya’s letter to his former patients does concern public health. More
specifically, it concerns the continuity of care for his former patients, many of whom are elderly and
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 4
4850-0607-4780.1
are change-adverse.
13. Under the Texas Administrative Code §165.5, a physician who departs a practice
must notify patients of his departure:
(a) Required Notification of Discontinuance of Practice. Except as
provided for in subsection (f) of this section, when a physician retires,
terminates employment, or otherwise leaves a medical practice, he or
she is responsible for:
(1) ensuring that patients receive reasonable notification and are
given the opportunity to obtain copies of their records or arrange
for the transfer of their medical records to another physician;
and
(2) notifying the board when they are terminating practice, retiring, or
relocating, and therefore no longer available to patients, specifying
who has custodianship of the records, and how the medical records
may be obtained.
(3) Employers of the departing physician as described in §165.1(b)(6)
of this chapter are not required to provide notification, however, the
departing physician remains responsible, for providing notification
consistent with this section.
14. Furthermore, the Board of Councilors, which serves as the ethical policy-making
body of the Texas Medical Association, specifically addresses the ethical and moral obligations of a
physician to make sure that the former patients are not abandoned without notice and are apprised of
their rights to have their records transferred to their physician:
PATIENT’S RIGHTS UPON PHYSICIAN’S DEPARTURE
FROM A GROUP. When a physician leaves a group practice, the
physician is responsible for complying with Texas Medical Board
rules regarding Transfer and Disposal of Medical Records. The
physician is responsible for ensuring that the patient receives
reasonable notification and is given the opportunity to obtain copies
of his or her records, or arrange for the transfer of the patient's
medical records to another physician. … If requested by the patient
of that physician, the group practice must inform that physician's
patient of the departing physician's new address, and that copies of
the patient's medical records may be forwarded to the departing
physician's new practice. It is unethical for any remaining
physician member of the group to withhold, or allow to be
withheld, such information upon request of a patient.
Additionally, the fact that a physician leaves a group practice
should not cause any patient to be neglected or abandoned. It is
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 5
4850-0607-4780.1
unethical to interfere with the relationship between the departing
physician and his or her patients by withholding information,
even when there are others physicians remaining in the group
who are qualified to render the necessary care. (Modified May
2011)9
15. Dr. Pandya’s notice to the patients, which relates to the requirements of the Texas
Medical Board and is meant to ensure that the patients receive proper continuity of care is a
communication that relates to the matter of public concern. See ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (“TCPA does not require that the statements specifically
"mention" health, safety, environmental, or economic concerns, nor does it require more than a
"tangential relationship" to the same”). In ExxonMobil, Texas Supreme Court found
communications within a company about an employee’s performance were a matter of “public
concern” because the employee’s alleged failure to gauge a certain valve as the reason for his
termination involved a matter of safety. Id. at 900.
16. Furthermore, a Facebook review of Dr. Pandya that gives him a glowing
recommendation and that serves as the basis for Plaintiff’s claims against Dr. Pandya qualifies as a
communication about a matter of public concern as it relates to Dr. Pandya’s competency as a
physician. See Staff Care Inc. v. Eskridge Enters., No. 05-18-00732-CV, 2019 Tex. App. LEXIS
3936, at *11 (Tex. App.—Dallas May 15, 2019) (“[T]he provision of medical services by a
healthcare professional and communications about a physician's competence are matters of public
concern).
C. Plaintiff Cannot Avoid the Hearing by Purposefully Delaying Discovery.
17. Under the TCPA, “on a showing of good cause, the court may allow specified and
9
https://www.texmed.org/CurrentOpinions/#RECORDS (last checked July 8, 2019).
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 6
4850-0607-4780.1
limited discovery relevant to the motion.” See Tex. Civ. Prac. & Rem. Code § 27.006(b). Plaintiff
argues in the Response that “the parties should have the opportunity to engage in limited discovery.”
See Response at p. 2. However, the parties have had ample opportunity to engage in discovery.
Plaintiff just chose not to engage in it. No good cause exists here to delay the hearing.
18. Defendants have twice offered to be deposed and engage in expedited discovery.10 In
May, Defendants offered to have mutual 3-hour depositions to prepare a temporary injunction
hearing. Id. In June, after this Court had moved the hearing to another date, Defendants again
offered to be deposed. Id. Plaintiff never responded to Defendants’ offer.
19. The statute does not allow a plaintiff to delay a motion to dismiss hearing simply
because plaintiff chose to delay discovery.
D. Plaintiff Has Not Met its “Clear and Specific Evidence” Burden.
20. “[B]are, baseless opinions" are not "a sufficient substitute for the clear and specific
evidence required to establish a prima facie case" under TCPA. See In re Lipsky, 460 S.W.3d at 592.
Yet, conclusory statements is all that Plaintiff offers.
21. Retina Specialists have not established that the non-compete agreement is enforceable
since Plaintiff has not established that a 30-mile radius non-compete radius is reasonable. See Tex.
Comm. & Bus. Code §15.50 (“a covenant not to compete is enforceable if it is ancillary to or part of
an otherwise enforceable agreement at the time the agreement is made to the extent that it contains
limitations as to time, geographical area, and scope of activity to be restrained that are reasonable
and do not impose a greater restraint than is necessary to protect the goodwill or other business
interest of the promise”). The burden is on Plaintiff to establish that a 30-mile radius – as opposed to
10
See Exhibit B and Exhibit C to the Reply.
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 7
4850-0607-4780.1
a 3-mile or a 5-mile radius – is reasonable. See id. at §15.51 (“If the primary purpose of the
agreement to which the covenant is ancillary is to obligate the promisor to render personal services,
for a term or at will, the promisee has the burden of establishing that the covenant meets the criteria
specified by Section 15.50 of this code”). Plaintiff has not established that beyond stating that the
radius is reasonable in a conclusory fashion. See Response at. P. 17.
22. Plaintiff has not established that Dr. Pandya has breached his non-compete agreement
by practicing medicine. At most, Plaintiff has shown that Dr. Pandya has been preparing to practice
medicine, but this does not constitute a breach of the non-compete agreement.
23. Finally, Plaintiff has failed to identify any damages that it suffered due to the alleged
breach of contract. See Price v. Buschemeyer, No. 12-17-00180-CV, 2018 Tex. App. LEXIS 2314, at
*40 (Tex. App.—Tyler Mar. 29, 2018) (Plaintiff must show “how [Defendant] caused his damages,
and that he in fact suffered damages”).
III. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Court: (1) set
Defendants’ Motion to Dismiss for a hearing; (2) stay discovery during the pendency of this Motion;
(3) dismiss Plaintiff’s claims; (4) award Defendants attorney’s fees and costs; and (5) award
Defendants any further relief in which they may show themselves justly entitled.
Respectfully Submitted,
By:
Elisaveta Dolghih
State Bar No. 24043355
Brent Sedge
State Bar No. 24082120
LEWIS BRISBOIS BISGAARD & SMITH LLP
2100 Ross Ave., Suite 2000
Dallas, Texas 75201
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 8
4850-0607-4780.1
Tel: (214) 722-7108
Fax: (214) 722-7111
Leiza.Dolghih@lewisbrisbois.com
Brent.Sedge@lewisbrisbois.com
ATTORNEYS FOR DEFENDANTS HEMANG
K. PANDYA, M.D., COMBER HOLDINGS,
PLLC,
CERTIFICATE OF SERVICE
This shall verify a true and correct copy of the above and foregoing document has been
provided to the following counsel of record on this the 8th of July, 2019.
Angella Myers
amyers@myerslawllp.com
Janice S. Parker
japarker@myerslawllp.com
Sharon Gilmore
Sgilmore@myerslawllp.com
Elisaveta Dolghih
DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 9
4850-0607-4780.1
Preview
FILED DALLAS COUNTY 7/8/2019 6:23 PM FELICIA PITRE DISTRICT CLERK Terri Kilgore CAUSE NO. DC-19-07231 ROBERT E. TORTI, M.D. P.A., dba IN THE DISTRICT COURT RETINA SPECIALISTS, Plaintiff, v. DALLAS COUNTY, TEXAS HEMANG K. PANDYA, M.D., COMBER HOLDINGS, PLLC, Defendants. 160th JUDICIAL DISTRICT DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS Defendants, Dr. Hemang K. Pandya, M.D. (“Dr. Pandya”) and Comber Holdings, PLLC (“Comber Holdings”) (collectively, “Defendants”) file their Reply to Plaintiff Robert E. Torti, M.D. P.A.’s (“Plaintiff” or “Retina Specialists”) Response to Defendants’ Motion to Dismiss and will respectfully show this Honorable Court the following: I. Summary 1. Plaintiff admits in the Response that its claims in this lawsuit arise out of a letter that Dr. Pandya sent to his former patients notifying them he had left the practice (the “Letter”), 1 but claims that the TCPA does not apply to this letter because it was commercial speech. See Response, e.g., at p. 7. Because Dr. Pandya is not currently engaging in the practice of medicine,2 and because the Texas Medical Board requires him to send a letter to his former patients notifying them of his departure and addressing their continuity of care, the Letter is not commercial speech and TCPA applies. The continuity of care if a matter of “public concern” under the TCPA because it relates to 1 Exhibit B to the Response. 2 Exhibit A to this Reply (Declaration of Dr. Hemang K. Pandya). DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 1 4850-0607-4780.1 “health,” a topic specifically identified in the statute. 2. Plaintiff fails to address in its Response the argument that its lawsuit is based on the following communications that are an exercise of the right of free speech: (1) a patient review of Dr. Pandya’s services at an unspecified time left on his Facebook page after had left Plaintiff’s employment;3 (2) a website page showing that Comber Holdings is “associated” with two clinics within the non-compete area;4 and (3) a website page www.dallasretina.com.5 These communications relate to matters of “public concern” because they generally relate to a good, product, or service in the marketplace. By failing to address this argument, Plaintiff concedes that its lawsuit arises out of these three communications and the TCPA applies. 3. Plaintiff has not provided clear and specific evidence of each of its claims as required by TCPA. Retina Specialists have not established that (1) they had an enforceable non-compete agreement; (2) Dr. Pandya breached the non-compete agreement; and (3) Plaintiff suffered damages from such breach. Plaintiff provided no evidence supporting the reasonableness of a 30-mile non- compete radius (as opposed to a 2-mile or a 5-mile radius). Plaintiff provided zero evidence that Dr. Pandya “performed medical services” in violation of the non-compete agreement. Finally, Plaintiff provided no evidence that it suffered any damages due as the result of Dr. Pandya’s alleged violation of the non-compete agreement. 4. Plaintiff has deliberately avoided conducting discovery in this case. Defendants have twice offered to be deposed – in May and July – and to conduct limited discovery. Plaintiff rejected both offers by not responding. Moreover, Plaintiff fails to identify specifically what discovery still needs. The Court should see through Plaintiff’s pretextual reasons for delay and grant the Motion. 3 Exhibit E to the Response. 4 Exhibit F to the Response. 5 Exhibit J to the Response. DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 2 4850-0607-4780.1 II. Arguments and Authorities A. Commercial Exemption Does Not Apply to the Letter. 5. Plaintiff argues that the Texas Citizens Participation Act (“TCPA”) does not apply in this case because of the commercial speech exemption. See Response at 4. Specifically, Plaintiff argues that its claims are based on Dr. Pandya’s communications, which qualify as commercial speech. Id. Plaintiff admits that it has the burden of proving application of the commercial speech exemption. Id. Yet, it fails to establish any of the four prongs of the exemption. a. Dr. Pandya is not engaged in the business of selling or leasing goods or services. 6. Dr. Pandya has not performed retina treatments or sold his medical services since he was terminated by Plaintiff’s on January 31, 2019.6 In fact, he is currently receiving unemployment benefits, for which he applied shortly after Plaintiff terminated his employment.7 7. Preparing to be in a business of selling or leasing goods or services, is not the same as actually being in that business. While Dr. Pandya has a website and has formed an entity with the Texas Secretary of State, he has not provided any retina services, invoiced any patients, received any payments, or engaged in any other activity that establishes that he is “in the business of selling or leasing good or services.”8 Thus, the fact that Dr. Pandya may offer medical service sin the future, cannot satisfy the first prong of the exemption. b. Dr. Pandya’s statements in the patient notification letter were not made in the capacity as a seller. 8. Because Dr. Pandya is not engaged in the business of selling goods or services, none of his statements could be made in the capacity as a seller of such goods or services. 6 See Exhibit A, Declaration of Dr. Pandya. 7 Id. 8 Id. DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 3 4850-0607-4780.1 9. The letter that Dr. Pandya sent to his former patients on April 9, 2019, which serves as the basis for Plaintiff’s claim in this lawsuit was not made in Dr. Pandya’s “capacity as a seller.” Plaintiff cobbles up snippets from the letter to make it appear as if Dr. Pandya sent the letter to solicit patients to become their “primary physician/ophthalmologist.” See Response at 7. The letter does not contain such a request. Plaintiff urges that such request “should be read” or “inferred” based on Dr. Pandya’s invitation to his former patients to reconnect with him. But inferences are not enough to carry Plaintiff’s burden. 10. The fact is that Plaintiff sued Defendants because Dr. Pandya wrote “You can re- connect with me at www.DallasRetina.com.” This statement is not the type of a sales pitch that the commercial exemption is supposed to cover. Nor is Dr. Pandya’s statement “I look forward to taking care of you at my new office location” without a definite timeline is the type of a communication related to goods or services that are covered by the commercial exemption. c. Dr. Pandya’s Statements Did Not Arise out of a Commercial Transaction as He Has not Sold Any Goods or Services or Attempted Such Goods or Services. 11. In the letter, Dr. Pandya did not ask patients to transfer their medical records specifically to him, did not solicit them to become his patients, did not persuade them to leave Retinas Specialists, and did not promise to provide medical services to them. In both of the cases cited by Plaintiff – Berry v. ETX Successor Tyler and Tyler v. Pridgeon – the communications that gave rise to plaintiff’s claims concerned payment for services. See Response at p. 6. This is simply not the case with Dr. Pandya’s letter, which does not ask patients to hire Defendant or seeks compensation from them. B. Communications on Which Plaintiff’s Claims Are Predicated Concern Public Health. 12. Dr. Pandya’s letter to his former patients does concern public health. More specifically, it concerns the continuity of care for his former patients, many of whom are elderly and DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 4 4850-0607-4780.1 are change-adverse. 13. Under the Texas Administrative Code §165.5, a physician who departs a practice must notify patients of his departure: (a) Required Notification of Discontinuance of Practice. Except as provided for in subsection (f) of this section, when a physician retires, terminates employment, or otherwise leaves a medical practice, he or she is responsible for: (1) ensuring that patients receive reasonable notification and are given the opportunity to obtain copies of their records or arrange for the transfer of their medical records to another physician; and (2) notifying the board when they are terminating practice, retiring, or relocating, and therefore no longer available to patients, specifying who has custodianship of the records, and how the medical records may be obtained. (3) Employers of the departing physician as described in §165.1(b)(6) of this chapter are not required to provide notification, however, the departing physician remains responsible, for providing notification consistent with this section. 14. Furthermore, the Board of Councilors, which serves as the ethical policy-making body of the Texas Medical Association, specifically addresses the ethical and moral obligations of a physician to make sure that the former patients are not abandoned without notice and are apprised of their rights to have their records transferred to their physician: PATIENT’S RIGHTS UPON PHYSICIAN’S DEPARTURE FROM A GROUP. When a physician leaves a group practice, the physician is responsible for complying with Texas Medical Board rules regarding Transfer and Disposal of Medical Records. The physician is responsible for ensuring that the patient receives reasonable notification and is given the opportunity to obtain copies of his or her records, or arrange for the transfer of the patient's medical records to another physician. … If requested by the patient of that physician, the group practice must inform that physician's patient of the departing physician's new address, and that copies of the patient's medical records may be forwarded to the departing physician's new practice. It is unethical for any remaining physician member of the group to withhold, or allow to be withheld, such information upon request of a patient. Additionally, the fact that a physician leaves a group practice should not cause any patient to be neglected or abandoned. It is DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 5 4850-0607-4780.1 unethical to interfere with the relationship between the departing physician and his or her patients by withholding information, even when there are others physicians remaining in the group who are qualified to render the necessary care. (Modified May 2011)9 15. Dr. Pandya’s notice to the patients, which relates to the requirements of the Texas Medical Board and is meant to ensure that the patients receive proper continuity of care is a communication that relates to the matter of public concern. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (“TCPA does not require that the statements specifically "mention" health, safety, environmental, or economic concerns, nor does it require more than a "tangential relationship" to the same”). In ExxonMobil, Texas Supreme Court found communications within a company about an employee’s performance were a matter of “public concern” because the employee’s alleged failure to gauge a certain valve as the reason for his termination involved a matter of safety. Id. at 900. 16. Furthermore, a Facebook review of Dr. Pandya that gives him a glowing recommendation and that serves as the basis for Plaintiff’s claims against Dr. Pandya qualifies as a communication about a matter of public concern as it relates to Dr. Pandya’s competency as a physician. See Staff Care Inc. v. Eskridge Enters., No. 05-18-00732-CV, 2019 Tex. App. LEXIS 3936, at *11 (Tex. App.—Dallas May 15, 2019) (“[T]he provision of medical services by a healthcare professional and communications about a physician's competence are matters of public concern). C. Plaintiff Cannot Avoid the Hearing by Purposefully Delaying Discovery. 17. Under the TCPA, “on a showing of good cause, the court may allow specified and 9 https://www.texmed.org/CurrentOpinions/#RECORDS (last checked July 8, 2019). DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 6 4850-0607-4780.1 limited discovery relevant to the motion.” See Tex. Civ. Prac. & Rem. Code § 27.006(b). Plaintiff argues in the Response that “the parties should have the opportunity to engage in limited discovery.” See Response at p. 2. However, the parties have had ample opportunity to engage in discovery. Plaintiff just chose not to engage in it. No good cause exists here to delay the hearing. 18. Defendants have twice offered to be deposed and engage in expedited discovery.10 In May, Defendants offered to have mutual 3-hour depositions to prepare a temporary injunction hearing. Id. In June, after this Court had moved the hearing to another date, Defendants again offered to be deposed. Id. Plaintiff never responded to Defendants’ offer. 19. The statute does not allow a plaintiff to delay a motion to dismiss hearing simply because plaintiff chose to delay discovery. D. Plaintiff Has Not Met its “Clear and Specific Evidence” Burden. 20. “[B]are, baseless opinions" are not "a sufficient substitute for the clear and specific evidence required to establish a prima facie case" under TCPA. See In re Lipsky, 460 S.W.3d at 592. Yet, conclusory statements is all that Plaintiff offers. 21. Retina Specialists have not established that the non-compete agreement is enforceable since Plaintiff has not established that a 30-mile radius non-compete radius is reasonable. See Tex. Comm. & Bus. Code §15.50 (“a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promise”). The burden is on Plaintiff to establish that a 30-mile radius – as opposed to 10 See Exhibit B and Exhibit C to the Reply. DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 7 4850-0607-4780.1 a 3-mile or a 5-mile radius – is reasonable. See id. at §15.51 (“If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, for a term or at will, the promisee has the burden of establishing that the covenant meets the criteria specified by Section 15.50 of this code”). Plaintiff has not established that beyond stating that the radius is reasonable in a conclusory fashion. See Response at. P. 17. 22. Plaintiff has not established that Dr. Pandya has breached his non-compete agreement by practicing medicine. At most, Plaintiff has shown that Dr. Pandya has been preparing to practice medicine, but this does not constitute a breach of the non-compete agreement. 23. Finally, Plaintiff has failed to identify any damages that it suffered due to the alleged breach of contract. See Price v. Buschemeyer, No. 12-17-00180-CV, 2018 Tex. App. LEXIS 2314, at *40 (Tex. App.—Tyler Mar. 29, 2018) (Plaintiff must show “how [Defendant] caused his damages, and that he in fact suffered damages”). III. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Court: (1) set Defendants’ Motion to Dismiss for a hearing; (2) stay discovery during the pendency of this Motion; (3) dismiss Plaintiff’s claims; (4) award Defendants attorney’s fees and costs; and (5) award Defendants any further relief in which they may show themselves justly entitled. Respectfully Submitted, By: Elisaveta Dolghih State Bar No. 24043355 Brent Sedge State Bar No. 24082120 LEWIS BRISBOIS BISGAARD & SMITH LLP 2100 Ross Ave., Suite 2000 Dallas, Texas 75201 DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 8 4850-0607-4780.1 Tel: (214) 722-7108 Fax: (214) 722-7111 Leiza.Dolghih@lewisbrisbois.com Brent.Sedge@lewisbrisbois.com ATTORNEYS FOR DEFENDANTS HEMANG K. PANDYA, M.D., COMBER HOLDINGS, PLLC, CERTIFICATE OF SERVICE This shall verify a true and correct copy of the above and foregoing document has been provided to the following counsel of record on this the 8th of July, 2019. Angella Myers amyers@myerslawllp.com Janice S. Parker japarker@myerslawllp.com Sharon Gilmore Sgilmore@myerslawllp.com Elisaveta Dolghih DEFENDANTS’ REPLY IN SUPORT OF MOTION TO DISMISS PAGE 9 4850-0607-4780.1