Eurothreads LLC v. Medsthetics LLC, No. 4:2021cv00601 - Document 52 (S.D. Tex. 2022)
Court Description: MEMORANDUM OPINION AND ORDER - For the reasons explained, the court concludes that it has personal jurisdiction over Defendant in this case. Defendant also has not shown that a change of venue under § 1404 (a) is warranted. For the reasons stat ed above, the court concludes that Plaintiff's claims for trade secret misappropriation, tortious interference with a contract, violation of 15 U.S.C. § 1125(a), and civil conspiracy are not adequately pleaded. Defendant Medsthetics LLC 9;s 45 MOTION to Dismiss is therefore DENIED as to personal jurisdiction and change of venue and GRANTED as to failure to state a claim. Plaintiff's claims for breach of fiduciary duty and breach of contract were not challenged in Defendan t's Motion to Dismiss and are unaffected by this Memorandum Opinion and Order. Given the age of this case, no additional motions to dismiss will be allowed. The parties may file motions for summary judgment pursuant to the 44 Docket Control Order. (Signed by Judge Sim Lake) Parties notified.(sanderson, 4)
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Eurothreads LLC v. Medsthetics LLC Doc. 52 Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 1 of 17 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION EUROTHREADS LLC, Plaintiff, v. MEDSTHETICS LLC, Defendant. § § § § § § § § § November 22, 2022 Nathan Ochsner, Clerk CIVIL ACTION NO. H-21-0601 MEMORANDUM OPINION AND ORDER Plaintiff, EuroThreads LLC ("Plaintiff"), filed suit in the District Court of Harris County on January 27, 2021, against defendant Medsthetics LLC ("Defendant").1 Plaintiff asserts claims for trade secret misappropriation, tort ious interference with breach of fiduciary duty, contracts, unfair competition in violation of 15 u.s.c. § 1125(a), civil conspiracy, and breach of contract.2 Pending before the court is Defendant Medsthetics LLC's Motion to Dismiss for Lack of Personal Jurisdict ion, Venue, Improper and Failure to State a Claim ("Defendant's Motion to D ismiss" or "Defendant's MTD") (Docket Entry No. 45). For the Plaintiff's Original Petition and Rule 194 Request for Disclosure ( "Complaint 1'), Exhibit 2 to Defendant Medsthetics Notice of Removal of Action Under 28 U.S.C. §§ 1332, 1441, 1446 (Di versity Jurisdict ion) ("Notice of Removal"), Docket Entry No. 1-2, p. 1. For purposes of ident ification all page numbers reference the paginat ion imprinted at the top of the page by the court's Electronic Case Filing ("ECF") system. 1 2 Id. at 3-5. Dockets.Justia.com Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 2 of 17 reasons stated below, Defendant's Motion to Dismiss will be granted in part and denied in part. I. A. Factual and Procedural Background Procedural History Plaintiff filed its Complaint in Harris County District Court on January 27, 2021. 3 Defendant removed the case to this court on February 24, 2021. 4 Defendant filed its Motion to Dismiss on September 16, Medsthetics 2022. 5 LLC's Jurisdiction, Plaintiff filed Plaintiff's Response to Motion Improper ("Plaintiff's Response"} 2022. 6 to Venue Dismiss and for Lack Failure to (Docket Entry No. 48} of State Personal a Claim on October 14, Defendant filed Defendant Medsthetics LLC's Reply in Further Support of Its Motion to Dismiss for Lack of Personal Jurisdiction, Improper ("Defendant's Reply") B. Venue, and Failure to State a Claim (Docket Entry No. 49} on October 21, 2022. 7 Plaintiff's Allegations "Plaintiff, EuroThreads, LLC, is a Domestic Limited Liability Company whose principal place of business is located in 1621 3 Id. at 1. 4 Notice of Removal, Docket Entry No. 1. 5 Defendant's MTD, Docket Entry No. 45, p. 1. Plaintiff's Response, Docket Entry No. 48. 6 Defendant's Reply, Docket Entry No. 49. 7 -2- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 3 of 17 Central Avenue, Cheyenne, Wyoming 82001." 8 Defendant Medsthetics is a New York Limited Liability Company with its offices in New York. 9 "On September 6, 2018, [Plaintiff and Defendant] executed an Independent Sales Organization Agreement ( the "ISO") . " 10 "The ISO licensed [Defendant] and its representatives to order and place [Plaintiff]'s cosmetic threads in patients. " 11 "The ISO includes terms governing the relationship and obligates [Defendant] with non-competition and non-solicitation covenants." 12 Defendant "failed to comply with its management and training obligations. Moreover, [Defendant] took unauthorized orders in direct contradiction to [Plaintiff]'s authority and instruction not to do so. [Defendant] has also attempted to steal [Plaintiff]'s clients and representatives." 13 "On January 26, 2021, [Plaintiff] issued correspondence to [Defendant] instructing it to cease and desist from the aforementioned conduct and terminating the ISO for 8 Complaint, Exhibit 2 to Notice of Removal, No. 1-2, p. 1, 2. Docket Entry at 2, 3; Declaration of Giselle Karounis in Support of Medsthetics LLC's Motion to Dismiss for Lack of Personal Jurisdiction, Improper Venue, and Failure to State a Claim ( "Karounis Declaration") , Exhibit B to Defendant's MTD, Docket Entry No. 45-2, p. 1,, 2-3. 10Complaint, Exhibit 2 to Notice of Removal, No. 1-2, p. 2, 7. II at 3, 7. -3- Docket Entry Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 4 of 17 cause. "14 "Provisions prohibiting [Plaintiff]'s clients and [Defendant] from soliciting representatives survive the ISO's Plaintiff offers the Independent Sales Organization (ISO) termination. " 15 C. The ISO Agreement Agreement ("ISO Agreement") in opposition to Defendant's Motion to The Dismiss. ISO Agreement authorized Defendant to sell Plaintiff's products in exchange for a commission. 16 It states that Defendant "shall not carry additional competing product lines without the full knowledge and written consent of" Plaintiff and that it will not "engage in any business competitive with" Plaintiff. 17 term of this thereafter, agreement, and activity which is It also states that "[d]uring the for one (1) year immediately [Defendant] agrees not to solicit any employee or independent contractor of [Plaintiff] on behalf of any other business, enterprise, nor shall [Defendant] induce any employee or independent contractor" of Plaintiff to breach their contract with Plaintiff. 18 The ISO Agreement states that it is to be construed according to Texas law. 19 ISO Agreement, Exhibit A to Plaintiff's Response, Entry No. 48-1, p. 2 l-2(a). 16 17 Id. at 3 8 (a), (b). 18 Id. 9(a). 19 Id. 15. -4- Docket Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 5 of 17 D. Tamara Moore's Affidavit Plaintiff also offers the Affidavit of Tamara Moore ("Moore Affidavit") . 20 Moore states that she is Plaintiff's Director of Operations and has personal knowledge of Defendant's "contract with [Plaintiff], Defendant's Texas clients, Wendy Germond's scope of employment as a sales representative for [Defendant] in Texas, and [Plaintiff's] clients that [Defendant] solicited and signed in violation of the non-solicitation and non/compete clauses in [Defendant's [ISO]] Agreement with" Plaintiff. 21 Moore states that Defendant employed "Wendy Germond in Texas beginning in February 2019," and that Germond was responsible for "communicating with [Defendant's] clients for sales, [Defendant] by promoting soliciting new accounts for [Plaintiff's] treatments to potential customers, providing customer service support for [Defendant's] clients, arranging and providing Eurothread[s] training sessions for [Defendant's] new clients, [Defendant's] clients." 22 and filling thread orders for Moore states that Germond "was paid by [Defendant] on a commission basis for her work as a Medsthetics sales representative in Texas." 23 For example, Germond earned $20,042.10 in commissions in October 2020. 24 Moore Affidavit, Exhibit B to Plaintiff's Response, Docket Entry No. 48-2, p. 2. 20 21 Id. at 2. 22 Id. at 2-3. 23 Id. at 3. -5- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 6 of 17 Moore states that Defendant •solicited (Plaintiff's] clients, including Texas clients, for the purpose of selling them competing, non-Eurothreads products and services." Moore provides a list of ten of Plaintiff's clients in Texas that Defendant "solicited and signed as new accounts in competition with" Plaintiff. 25 E. Karounis Declaration Defendant offers the Karounis Declaration in support of its arguments that this court lacks personal jurisdiction and that it should transfer the case to the Southern District of New York. 26 Karounis states that she is the sole proprietor of Defendant. 27 Karounis states that neither she nor Defendant is a Texas resident, that she has never been to Texas, that Defendant has no real property and no office in Texas, that Defendant "does not have any bank accounts in Texas, property taxes in Texas, has never paid real or personal does not have a telephone listing in Texas, and does not advertise its services in Texas." 28 Karounis states that "[t]he only connections between this dispute and Texas are (i) the contract's choice of law provision and (ii) one Medsthetics independent contractor-Wendy Germond-who promotes and Defendant' s MTD, Docket Entry No. 45, p. 8. 26 27 Karounis Declaration, Exhibit B to Defendant's MTD, Docket Entry No. 45-2, p. 1 1 2. 28 Id. at 1-2 11 3-5. -6- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 7 of 17 She states that Germond sells [Plaintiff's] products in Texas." 29 "was not a contractor when [the parties] executed the contract in 2018. " 30 Karounis asks "that if the Court does not dismiss this case for lack of jurisdiction, that it be transferred to the United States District Court for the Southern District of New York. I have always maintained [Defendant's] offices in Nanuet, New York; all business decisions have been made in New York; all of [Defendant's] records are maintained in New York; and any conduct - to the extent it can be ascertained at all from [Plaintiff's] complaint - was undertaken in New York. " 31 II. A. Legal Standard Rule 12{b) (2) Personal Jurisdiction "A federal court may exercise personal jurisdiction over a nonresident defendant if (1) the forum state's long-arm statute confers personal jurisdiction over that defendant; and (2) the exercise of personal jurisdiction comports with the Due Process Clause of the Fourteenth Amendment." 753, 759 (5th Cir. McFadin v. Gerber, 587 F.3d 2009), cert. denied, 131 S. Ct. 68 (2010). Since the Texas long-arm statute extends as far as constitutional 30 31 Id. at 2 1 9. at 1 12. 1 10. 3 -7- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 8 of 17 due process allows, the court considers only the second step of the inquiry. Id. Exercise of personal jurisdiction over a nonresident defendant comports with federal due process when (1) the nonresident defendant has established minimum contacts with the forum state, and (2) the exercise of jurisdiction "does not offend 'traditional notions of fair play and substantial justice.'" International Shoe Co. v. State of Washington, Office of Unemployment Compensation and Placement, 66 S. Ct. 154, 158 (1945) (quoting Milliken v. Meyer, 61 S. Ct. 339, 343 (1940)). "There are two types of 'minimum contacts': those that give rise to specific personal jurisdiction and those that give rise to general personal jurisdiction." (5th Cir. 2001). Lewis v. Fresne, 252 F.3d 352, 358 "For specific jurisdiction to be proper, Due Process requires (1) minimum contacts by the defendant purposefully directed at the forum state, (2) a nexus between the defendant's contacts and the plaintiff's claims, and (3) that the exercise of jurisdiction over the defendant be fair and reasonable." In re Chinese-Manufactured Drywall Products Liability Litigation, 753 F.3d 521, 539-40 (5th Cir. 2014). Federal Rule of Civil Procedure 12(b) {2) permits a party to assert by motion the absence of personal jurisdiction. personal jurisdiction is challenged, the plaintiff "When 'bears the burden of establishing the district court's jurisdiction over the defendant.'" Quick Technologies, Inc. v. Sage Group PLC, 313 F.3d -8- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 9 of 17 338, 343 (5th Cir. 2002), cert. denied, 124 S. Ct. 66 (2003) (quoting Mink v. AAAA Development LLC, 190 F.3d 333, 335 (5th Cir. 1999)). "Once a plaintiff establishes minimum contacts between the defendant and the forum state, the burden of proof shifts to the defendant to show that the assertion of jurisdiction is unfair and unreasonable." Sangha v. Navig8ShipManagement Private Ltd., 882 F.3d 96, 102 (5th Cir. 2018). 'compelling case."' "The defendant must make a Id. (quoting Burger King Corp. v. Rudzewicz, 105S. Ct. 2174, 2185 (1985)). "When the district court rules on a motion to dismiss for lack of personal jurisdiction 'without an evidentiary hearing, the plaintiff may bear his burden by presenting a prima facie case that personal jurisdiction is proper.'" Quick Technologies, 313 F.3d at 343-344 (quoting Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.), cert. denied, 115S. Ct. 322 (1994)). "In making its determination, the district court may consider the contents of the record before the court at the time of the motion, including 'affidavits, interrogatories, depositions, oral testimony, or any combination of the recognized methods of discovery.'" Id. at 344 (quoting Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985)). The court must accept the plaintiff's "uncontroverted, nonconclu sional factual allegations as true and resolve all controverted allegations in the plaintiff's favor." Panda Brandywine Corp. v. Potomac Electric Power Co., 253 F.3d 865, 868 (5th Cir. 2001). -9- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 10 of 17 B. 28 o.s.c. § l404(a) Change of Venue 28 U.S.C. 1404(a) states that "[f]or the convenience of § parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division In determining whether transfer where it might have been brought." under§ 1404(a) is warranted, the Fifth Circuit looks to the public and private interest factors identified in Gulf Oil Corp. v. Gilbert, 67 S. Ct. 839 (1947). See In re Volkswagen of America. Inc., 545 F.3d 304, 315 (5th Cir. 2008). factors are: "The private interest '(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.'" are: Id. "The public interest factors '(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law.'" Id. "[W]hen the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiff's choice should be respected. 11 show "good cause. C. The burden is on the party seeking transfer to Id. 1 ' Id. Rule l2(b) (6) Failure to State a Claim A Rule 12(b)(6) motion tests the formal sufficiency of the pleadings and is "appropriate when 10- a defendant attacks the Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 11 of 17 complaint because it fails to state a legally cognizable claim." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied sub nom. Cloud v. United States, 122 S. Ct. 2665 (2002). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Igbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. III. A. Analysis Rule 12(b) (2) Personal Jurisdiction The claims in this case arise out of Defendant's alleged Moore solicitation of Plaintiff's clients and representatives. stated that Defendant solicited at least ten of Plaintiff's clients in Texas. By soliciting a substantial number of Plaintiff's Texas clients and hiring Germond to market products in Texas, Plaintiff established minimum contacts with Texas. It is unclear what role Germond played in the conduct alleged in the Complaint. Plaintiff's adequately pled claims arise primarily out But of Defendant's alleged solicitation of Plaintiff's clients, including Plaintiff's Texas clients. Based on Plaintiff's affidavit evidence of Defendant's contacts with Texas and because Plaintiff's claims arise out of -11- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 12 of 17 those contacts, Plaintiff has made a prima facie showing that this court has specific jurisdiction over Defendant in this case. This is reinforced by the fact that the ISO Agreement included a Texas choice of law clause. GmbH & See Pervasive Software Inc. v. Lexware Co. KG, 688 F.3d 214, 223 (5th Cir. 2012). shifts to Defendant to "make a The burden then 'compelling case'" "that the assertion of jurisdiction is unfair and unreasonable." Sangha, 882 F.3d at 102. Defendant has not made this showing, offering only the bare assertion that Plaintiff "has not shown it is fair and reasonable for a Texas court to exercise jurisdiction over a New York LLC being sued by a Wyoming LLC." 32 The lack of a party incorporated or based in the forum is not enough to show that personal jurisdiction is unfair or unreasonable. Because Plaintiff has shown that its claims arise out of Defendant's minimum contacts with Texas and because Defendant has failed to show how the exercise of personal jurisdiction over Defendant would be unreasonable, Defendant's Motion to Dismiss will be denied as to personal jurisdiction. B. 28 u.s.c. § 1404(a) Change of Venue Defendant asks the court in the alternative to transfer the case to the Southern District § 1404(a). of New York under 28 U.S.C. Defendant does not address the public and private interest factors governing transfer under § 1404(a). Defendant' s Reply, Docket Entry No. 4 9, p. 3. 32 -12- Defendant Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 13 of 17 states that she and her records are located in New York, and that she "would therefore be inconvenienced by having to travel to this Court for hearings and trial in this matter." 33 Th.at is not enough to show that the Southern District of New York is "clearly more convenient" than this court. See In re Volkswagen, 545 F.3d at Defendant's Motion to Dismiss will therefore be denied as to 315. the requested change of venue. c. Rule 12(b) (6) Failure to State a Claim Defendant asks in the alternative that the court dismiss four of Plaintiff's claims - trade secret misappropriation, tortious interference with a contract, "unfair competition," and civil conspiracy - for failure to state a claim under Rule 12 (b) (6). Plaintiff fails to cite the elements of these claims and to explain what facts support those elements. Regarding misappropriation of trade secrets, Plaintiff has not identified any trade secret, breach of a confidential relationship, unauthorized use of a trade secret by Defendant, or damages. See Universal Plant Services, Inc. v. Dresser-Rand Group, Inc., 571 S.W.3d 346, 360 (Tex. App.-Houston [1st Dist.] 2018). Regarding tortious interference, Plaintiff merely states that Defendant "has, intentionally on information interfered [Plaintiff] and its clients. 33 with and belief, existing willfully contracts and between Such conduct and loss of contractual Defendant's MTD, Docket Entry No. 45, p. 11. -13- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 14 of 17 relationships is the proximate cause of damages to" Plaintiff. 34 Plaintiff fails to identify and plead the elements of tortious "(l) an existing contract subject to interference, interference: (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiff's injury, and (4) caused actual damages or loss." Prudential Insurance Co. of America v. Financial Review Services, Inc., 29 S.W.3d 74, 77 (Tex. 2000) Regarding Plaintiff's claim under 15 U.S.C. § 1125(a) (which Plaintiff titles Defendant "has commercial "Unfair made Competition") false advertising and or Plaintiff misleading promotion of states that representations its services in that misrepresent the nature, characteristics, qualities and geographic origin of its services" and that Defendant has "made misrepresentations to others concerning [Plaintiff's] services."35 Plaintiff has failed to identify and plead the elements of a § 1125{a) claim: "(l) that the defendant made a false statement of fact about its product in a commercial advertisement; (2) that the statement actually deceived or has a tendency to deceive a substantial segment of its audience; (3) the deception is likely to influence the purchasing decision; (4) the defendant caused the false statement to enter interstate commerce; Complaint, Exhibit 2 to Notice of Removal, No. 1-2, p. 4 12. 34 35 Id. 13. -14- and (5) the Docket Entry Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 15 of 17 plaintiff[] ha[s] been or [is] likely to be injured as a result." Logan v. Burgers Ozark Country Cured Hams Inc., 263 F.3d 447, 462 (5th Cir. 2001). Plaintiff does not even identify what representa tions by Defendant are false statements of fact about its product. Regarding Plaintiff's civil conspiracy claim, Plaintiff states "[o] n information and belief, [Defendant] and certain of its representatives conspired to breach their fiduciary obligations and contractual covenants through solicitation of [Plaintiff's] served as [Plaintiff's] the improper competition and employees and clients while they agent. On information and belief [Plaintiff's] principals and representatives had a meeting of the minds in this regard which resulted in the unlawful breach of [Defendant's] fiduciary obligations. " 36 Plaintiff has failed to identify and plead the elements of a civil conspiracy: more persons; (1) two or (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and Henkel, 480 S.W.3d at 7. (5) damages as a proximate result." Although Plaintiff's above explanation explains some of the elements, Plaintiff must identify another party that conspired with Defendant, cite factual allegations showing a meeting of the minds and damages, and explain what act was unlawful and why. For these reasons, Plaintiff has failed to state a claim for misappropriation of trade secrets, tortious interference with a 36 Id . at 4 -5 1 14. -15- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 16 of 17 contract, unfair competition in violation of 15 U.S.C. § 1125(a}, or civil conspiracy. Defendant's Motion to Dismiss will therefore be granted as to the pleading adequacy of these claims. Defendant does not challenge the pleading adequacy of Plaintiff's claims for breach of fiduciary duty and breach of contract. Plaintiff asks to be allowed to amend its Complaint to fix any pleading deficiencies. 37 dismissing a complaint "Generally, for failure a district court errs in to state a claim under Rule 12(b}( 6) without giving the plaintiff an opportunity to amend." Naglich v. Applied Optoelectronics, 436 F. Supp. 3d 954, 980 (S.D. Tex. 2020). Dismissing the Complaint is only appropriate when it already "alleges the plaintiff's best case." Id. Given the brief factual allegations in the Complaint and the additional details offered in the Moore Affidavit, the court is not confident that Plaintiff has alleged its best case. And although substantial time has passed since Defendant first pointed out the Complaint's deficiencies, the issue was never resolved because of settlement negotiations and disputes. Moreover, Plaintiff has yet to file an amended complaint. The court will allow Plaintiff until December 9, 2022, to file an amended complaint. It should cite the elements for each claim, include supporting factual allegations, and explain how those allegations satisfy each element. 37 Plaintiff's Response, Docket Entry No. 48, p. 10 ,, 17-18. -16- Case 4:21-cv-00601 Document 52 Filed on 11/22/22 in TXSD Page 17 of 17 IV. Conclusion and Order For the reasons explained above, the court concludes that it has personal jurisdiction over Defendant in this case. also has not shown that a change of venue under warranted. § Defendant 1404(a) is For the reasons stated above, the court concludes that Plaintiff's claims for trade secret misappropriation, tortious interference with a contract, violation of 15 U.S.C. § 1125(a), and civil conspiracy are not adequately pleaded. Defendant Medsthetics LLC's Motion to Dismiss for Lack of Personal Jurisdiction, Improper Venue, and Failure to State a Claim (Docket Entry No. 45) is therefore DENIED as to personal jurisdiction and change of venue and GRANTED as to failure to state a claim. Plaintiff's claims for breach of fiduciary duty and breach of contract were not challenged in Defendant's Motion to Dismiss and are unaffected by this Memorandum Opinion and Order. Given the age of this case, no additional motions to dismiss will be allowed. The parties may file motions for summary judgment pursuant to the Docket Control Order (Docket Entry No. 44). SIGNED at Houston, Texas, on this 22nd day of November, 2022. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE 17-
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