MANER v. Reproductive Research Technologies, LP et al
Filing
15
MEMORANDUM OPINION AND ORDER granting in part and denying in part 9 MOTION to Dismiss Plaintiff's First Amended Complaint, granting in part and denying in part 10 MOTION to Dismiss (Partial) of First Amended Complaint and Motion for Additional Time to File an Answer. (Reproductive Research Technologies, LP's Answer due by 11/18/2015.) (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIAM MANER,
§
§
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
REPRODUCTIVE RESEARCH
TECHNOLOGIES, LP, JACK N.
McCRARY, DR. ROBERT E.
GARFIELD, and DR. RAINER FINK,
Defendants.
November 04, 2015
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-1567
MEMORANDUM OPINION AND ORDER
William
Maner
("Maner"
Research Technologies, L.P.
or
"Plaintiff")
sued
Reproductive
("RRT"), Jack N. McCrary ("McCrary"),
Dr. Robert E. Garfield ("Garfield"), and Dr. Rainer Fink ("Fink")
(collectively, "Defendants"), pleading causes of action for breach
of contract,
and fraud.
Fink's
1
quantum meruit,
conspiracy,
copyright infringement,
Pending before the court are Defendants, McCrary and
Motion
to
Dismiss
Plaintiff's
("McCrary and Fink's Motion to Dismiss")
First
Amended
Complaint
(Docket Entry No. 9) and
Defendant Reproductive Research Technologies,
L. P. 's Motion for
Partial Dismissal of Plaintiff's First Amended Complaint and Motion
for Additional Time to File an Answer ("RRT's Motion for Partial
Dismissal")
(Docket Entry No. 10).
For the reasons stated below,
McCrary and Fink's Motion to Dismiss will be granted in part and
1
See Plaintiff's Original Complaint
Docket Entry No. 1, pp. 5-8 ~~ 21-41.
("Original Complaint") ,
denied in part.
RRT's Motion for Partial Dismissal will be granted
in part and denied in part.
RRT will be granted fourteen days from
the date of this Memorandum Opinion and Order to file an answer.
I.
Factual Allegations
This action involves an alleged breached employment contract
and subsequent copyright infringement based on work Maner did for
RRT.
In Plaintiff's First Amended Complaint ("Amended Complaint")
(Docket Entry No.
6),
Maner alleges the facts set forth in the
following three paragraphs.
In December of 2010 Maner began working for RRT to draft the
grant proposal and underlying testing protocol "for the testing of
the Sure CALL® electromyographic ( "EMG") technology. " 2
RRT "by and
through McCrary and (sic) officer of RRT," promised that RRT would
employ Maner pursuant to the grant proposal's terms once grant
funding was received "(the 'Contract') ." 3
Maner had a financial
interest in RRT's project succeeding because he owned shares in
Reproductive Health Technologies,
ownership interest in RRT. 4
well,
Inc.
and RHT had an
Garfield was a part-owner of RHT as
and he allowed RHT to forfeit
August 1, 2014. 5
( "RHT") ,
its corporate existence on
Maner was not informed, and "it is believed that
2
See Amended Complaint, Docket Entry No. 6, p. 3 ~ 11.
3
Id. at 3 ~ 12.
4
Id. at 4 ~ 13; 5 ~ 20.
5
Id. at 5 ~ 20.
-2-
RHT' s
forfeiture
is the Defendants [']
Mr. Maner out [of] RRT altogether." 6
"being
a
named
co-inventor
on
continued attempt to cut
Maner also had an interest in
some
of
the
numerous
patent
applications of the underlying technologies." 7
RRT did not pay Maner for his work on the grant proposal, but
reimbursed
"Contract." 8
him
for
gas
expenses,
as
contemplated
the
The testing protocol and grant proposal were final-
ized and then submitted for review in August of 2011.
time, McCrary declined to hire Maner at RRT.
to disclose
under
to the National
Institute of
10
9
At that
Defendants failed
Health
("NIH")
Grant
Review Committee that Maner was no longer part of the RRT research
team,
which allowed NIH to "rely upon RRT's assertion that Mr.
Maner was an integral part of the team requesting the grant." 11
Although the "Contract" and grant proposal required it, no one told
Maner
when
the
grant
was
awarded
in
June
of
2012. 12
Maner
discovered via RRT's website in March of 2014 that the grant had
6
Id.
7
Id. at 4 ~ 13.
8
Id. at 4 ~ 14.
9
Id. at 4 ~ 15.
lOid. at 4 ~ 16.
Id. at 4 ~ 17. "Mr. Maner was one of the most prominent and
well-published Uterine EMG researchers. Defendants knew that they
would have a better chance of receiving the grant with Mr. Maner's
name and credentials behind the request."
Id.
11
12
Id. at 4-5
~
18.
-3-
been awarded, and attempted to contact RRT regarding its failure to
hire him or inform him that the grant had been awarded. 13
from RRT responded. 14
No one
Maner also inquired about RHT's failure to
send him a K-1 (tax form), and "[i]n or around October 28, 2013,
Mr. Maner called the CFO of RHT and was informed that 'RHT filed
K-1s
early
the
year
before
and
that
a
K-1
for
2013
money,
the
Amended
was
not
required. ' " 15
Regarding
the
awarded grant
Complaint
states the following:
21. Upon further research, Dr. Fink's own curriculum
vitae, under Major Funded Proposals on page 9, Exhibit B,
states that the $149,197 awarded for Phase I of the grant
was divided amongst Fink, McCrary and Williams in the
amounts of $53,168, $65,551, and $30,459, respectively.
However, the grants specified the [sic] McCrary would
receive $0, a TBD software Programmer would receive
$15, 000, John Williams would receive $33, 750, William
Maner would receive $29,687, Linda Chambliss would
receive $10,000, a TBD Nurse would receive $12,500, and
$44,260 would be used for equipment, supplies, and other
costs
(Exhibit C) .
Therefore,
Fink and McCrary
intentionally deviated from the submitted grant, failed
to purchase equipment, cut Mr. Maner out of his position,
and divided the majority of the grant monies among
themselves, individually.
22.
Further,
Exhibit B reports the allocation of
$1,148,472 in awarded funds for Phase II of the project.
Again Fink and McCrary received far more than originally
proposed, approximately 45% of the monies when the grant
proposal called for them to receive approximately 3%.
See Exhibit C, page[s] 20-22.
13
Id. at 4-5
~~
14
Id. a t 5
19 •
fl
ll
18, 19.
-4-
23. Additionally, Phase II was not awarded until 2013,
yet Exhibit B reports Mr. Maner as a recipient of grant
monies, when he had not worked with RRT since 2011. 16
Maner
also
underlying
asserts
a
testing
employees thereof,
Contract. " 17
registered
protocol
"which has
without license,
grant
and
been used by RRT,
and
in
the
due to RRT' s breach of the
Based on these allegations,
against each defendant for:
meruit;
copyright
Maner asserts
(1) breach of contract;
claims
(2) quantum
(3) conspiracy; (4) copyright infringement; and (5) fraud,
fraudulent inducement, and nondisclosure. 18
II.
McCrary
Procedural Background and Standards of Review
and
Fink
(together)
and
RRT
(individually)
filed
motions to dismiss Maner's Original Complaint on August 12, 2015,
after which Maner amended his complaint. 19
McCrary and Fink now
move to dismiss the Amended Complaint on two grounds.
First, they
Id. at 5-6 ~~ 21-23. See also Vita For Dr. Rainer J. Fink,
Ph.D., Exhibit B to Amended Complaint ("Fink C.V."), Docket Entry
No.
6-1;
Automated
Real-Time
Uterine
EMG
Diagnostic
by
William Lawrence Maner ("Grant Proposal") , Exhibit C to Amended
Complaint, Docket Entry No. 6-2. "A written document that is
attached to a complaint as an exhibit is considered part of the
complaint and may be considered in a
12(b) (6)
dismissal
proceeding." Ferrer v. Chevron Corp., 484 F.3d 776, 780 (5th Cir.
2007) .
16
~
17
Id. at 6
18
Id. at 6-10.
24.
19
See Defendants, McCrary and Fink's Motion to Dismiss
Plaintiff's Original Complaint, Docket Entry No. 3; Defendant
Reproductive Research Technologies, L. P. 's Motion for Partial
Dismissal and Motion for Additional Time in Which to File An
Answer, Docket Entry No. 4; Amended Complaint, Docket Entry No. 6.
-5-
argue that the court lacks subject-matter jurisdiction over the
claims against them, and move to dismiss pursuant to Fed. R. Civ.
P. 12(b) (1)
20
to Fed.
Civ.
R.
Second, McCrary and Fink move to dismiss pursuant
P.
12(b) (6)
on the basis
that Maner's Amended
Complaint fails to state a claim on which relief can be granted. 21
RRT moves for dismissal of the conspiracy and fraud claims for
failure to state a claim pursuant to Fed. R. Civ. P. 12(b) (6) . 22
A.
Rule 12{b) {1) Standard of Review
Federal courts are "courts of limited jurisdiction,
having
'only the authority endowed by the Constitution and that conferred
by Congress.'"
Halmekangas v. State Farm Fire and Cas. Co.,
F.3d
290,
(5th
Rule
12(b) (1),
292
a
Cir.
claim
2010)
is
(citations
'properly
omitted) .
dismissed
for
603
"Under
lack
of
subject-matter jurisdiction when the court lacks the statutory or
constitutional power to adjudicate' the claim."
In re FEMA Trailer
Formaldehyde Prods. Liability Litig., 668 F.3d 281, 286 (5th Cir.
2012)
(quoting Home Builders Ass'n,
F.3d 1006, 1010 (5th Cir. 1998)
Inc. v. City of Madison, 143
(internal citation omitted)).
The
party asserting federal subject-matter jurisdiction has the burden
of
showing
that
the
jurisdictional
requirement
has
been met.
20
See McCrary and Fink's Motion to Dismiss, Docket Entry No. 9,
pp. 2-3.
21Id.
22
See RRT's Motion for Partial Dismissal, Docket Entry No. 10,
pp. 1-2.
-6-
Alabama-Coushatta Tribe of Texas v. United States, 757 F.3d 484,
487
(5th Cir. 2014).
"When facing a challenge to subject-matter
jurisdiction and other challenges on the merits, we must consider
first
the
Rule
12 (b) ( 1)
jurisdictional
addressing the merits of the claim."
challenge
Id.
However,
prior
to
"' [s] ubj ect
matter jurisdiction is not defeated by the possibility that the
complaint ultimately fails to state a claim.'"
Energytec, Inc. v.
Proctor, 516 F. Supp. 2d 660, 671 (N.D. Tex. 2007)
v.
Allstate Ins.
Co.,
314 F. 3d 776,
782
(citing Louque
(5th Cir.
2002),
cert.
denied, 124 S. Ct. 54 (2003)).
B.
Rule 12(b) (6) Standard of Review
Under
Rule
8
of
the
Federal
Rules
of
Civil
Procedure
a
pleading must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
8(a) (2).
Fed. R. Civ. P.
A Rule 12(b) (6) motion tests the formal sufficiency of
the pleadings and is
"appropriate when a defendant attacks the
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).
The court must accept the factual allegations of the complaint as
true,
view them in a light most favorable to the plaintiff,
draw all reasonable inferences in the plaintiff's favor.
Id.
and
To
defeat a motion to dismiss pursuant to Rule 12(b) (6), a plaintiff
must
plead
"enough
facts
plausible on its face."
to
state
a
claim
to
relief
that
is
Bell Atlantic Corp. v. Twombly, 127 S. Ct.
-7-
1955,
1974
(2007).
"A claim has
facial
plausibility when
the
plaintiff pleads factual content that allows the court to draw the
reasonable
inference
the
defendant
is
liable
Iqbal,
129 S.
Ct.
Ashcroft v.
misconduct alleged."
(2009)
that
(citing Twombly,
127 S.
Ct. at 1965) .
for
the
1937,
1949
"The plausibility
standard is not akin to a 'probability requirement,' but it asks
for more
than a
unlawfully."
a
sheer possibility that
Id.
complaint pleads
defendant's
a
defendant
has
(quoting Twombly, 127 S. Ct. at 1965).
facts
liability,
it
that
are
'stops
'merely consistent
short
of
the
line
acted
"Where
with'
between
possibility and plausibility of "entitlement to relief."'"
(quoting Twombly, 127 S. Ct. at 1966).
to dismiss,
district courts are
a
Id.
When considering a motion
"limited to the complaint,
any
documents attached to the complaint, and any documents attached to
the motion to dismiss that are central to the claim and referenced
by the complaint."
Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010) . 23
McCrary and Fink and RRT did not attach anything to their
respective motions to dismiss.
See McCrary and Fink's Motion to
Dismiss, Docket Entry No. 9; RRT's Motion for Partial Dismissal,
Docket Entry No. 10.
Maner attached a three-page Memorandum to
Maner from McCrary dated December 14, 2010, with the subject
"Project Planning (Modified after discussion)"
(the "Project
Memorandum") to both his responses. See Exhibit D to Plaintiff's
Response to Defendants, McCrary and Fink's Motion to Dismiss
Plaintiff's First Amended Complaint ("Response to McCrary and
Fink's Motion to Dismiss"), Docket Entry No. 11-1; Exhibit D to
Plaintiff's
Response
to
Defendants
Reproductive
Research
Technologies, L.P.'s Motion for Partial Dismissal of Plaintiff's
First Amended Complaint ("Response to RRT' s Motion for Partial
Dismissal"), Docket Entry No. 12-1.
"When 'matters outside the
(continued ... )
23
-8-
III.
A.
Analysis
Defendants McCrary and Fink's Motion to Dismiss
1.
The Court Has Subject-Matter Jurisdiction
McCrary and Fink admit that the court has federal question
subject-matter jurisdiction over the copyright infringement claims
23
( • • • continued)
pleadings' are submitted in support of or in opposition to a
Rule 12(b) (6)
motion to dismiss,
Rule 12(b) grants courts
discretion to accept and consider those materials, but does not
require them to do so.
Ace American Ins. Co. v. Huntsman Corp. ,
255 F.R.D. 179, 188 (S.D. Tex. 2008) (citing Prager v. LaFaver, 180
F.3d 1185, 1188-89 (lOth Cir. 1999) and Isquith v. Middle S.
Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir. 1988)). If the court
chooses to do so, it must treat the Rule 12 (b) (6) motion as a
motion for summary judgment under Rule 56.
Id. (citing Fed. R.
Civ. P. 12(d)). "A court exercises this discretion by determining
whether the proffered material, and the resulting conversion from
the Rule 12(b) (6) to the Rule 56 procedure, is likely to facilitate
disposing of the action.
Id. (citing Isqui th, 84 7 F. 2d at 193
n.3).
"If the court refuses to consider those materials outside
the pleadings, then the Rule 12(b) (6) motion remains intact and may
be decided on its merits under the appropriate standard of review."
Id.
See also Gamel v. Grant Prideco, L.P., No. 15-20096, 2015
WL 5306554, at *2 (5th Cir. Sep. 11, 2015).
Maner cites the
Project Memorandum in both Responses in support of the same
sentence: "In summary, McCrary induced Maner to work on the grant
without pay by promising him a position once Phase I monies were
awarded, where he was to work under Dr. Garfield for RRT.
Response to McCrary and Fink's Motion to Dismiss, Docket Entry
No. 11, p. 4 ~ 6; Response to RRT's Motion for Partial Dismissal,
Docket Entry No. 12, p. 5 ~ 6. Maner also cites it in footnote 6
of his Response to RRT' s Motion to Dismiss:
"As directors or
senior management of RRT the individual would have known of Maner,
the grant contents, and according to Dr. Fink's own CV, were
beneficiaries of the change in the allocation of monies. Further,
these individuals worked alongside Plaintiff and were copied on
Exhibit D to Dkt #11, which set out the project."
Response to
RRT' s Motion to Dismiss, Docket Entry No. 12, p. 5 n. 6.
The
Project Memorandum discusses Maner's role in developing the grant
proposal, not a promise of future employment. The court will not
consider this attachment in its review of the 12(b) (6) motions to
dismiss because it is not relevant to the motions to dismiss and
considering it is not "likely to facilitate disposing of the
action." See Ace American Ins., 255 F.R.D. at 188.
11
11
11
-9-
against RRT. 24
They argue, however, that the Amended Complaint does
not allege that either of them is personally liable for copyright
infringement. 25
They also argue that the court "does not have, or
should not choose to exercise, its supplemental jurisdictionn over
the fraud and breach of contract state-law claims asserted against
McCrary and Fink individually. 26
Maner alleges jurisdiction under
federal copyright law because he pled that "Plaintiff is informed
and believes that Defendants, without the permission or consent of
Plaintiffs,
has used,
and continues to use,
the Copyright Work
and/or to make the Copyrighted Work available for distribution to
others.
n
27
Alternatively,
Maner argues that
the claims against
McCrary and Fink form part of the same case or controversy as the
copyright claims, and thus the court should exercise supplemental
jurisdiction over these defendants. 28
a.
Federal Question Jurisdiction
"Courts may dismiss for lack of subject matter jurisdiction on
any one of three different bases:
complaint
supplemented
by
(1) the complaint alone;
undisputed
facts
24
McCrary and Fink's Motion to Dismiss,
25
the
record;
or
Docket Entry No.
9,
See id. at 3-4.
26
in
(2) the
See id. at 2-3.
p. 2.
27
See Response to McCrary and Fink's Motion to Dismiss , Docket
Entry No. 11, p. 6 ~ 10 (citing Amended Complaint, Docket Entry
No. 6 , p. 3 ~ 9) .
28
See id. at 7
~
14.
-10-
(3) the complaint supplemented by undisputed facts plus the court's
resolution of disputed facts."
F. 2d
736,
741
(5th
Cir.
Clark v. Tarrant County, Texas, 798
1986) .
Rule
12 (b) ( 1)
subject-matter jurisdiction come in two forms:
and "factual" attacks.
523 (5th Cir. 1981).
challenges
to
"facial" attacks
See Paterson v. Weinberger, 644 F.2d 521,
A facial attack consists of a Rule 12 (b) (1)
motion unaccompanied by supporting evidence that challenges the
court's jurisdiction based solely on the pleadings.
Id.
A factual
attack challenges the existence of subject-matter jurisdiction in
fact,
and matters outside the pleadings -
affidavits -may be considered.
Id.
such as testimony and
Because McCrary and Fink have
not submitted evidence outside Maner's pleadings
in support of
their motion to dismiss, the motion is a facial attack, and review
is
limited
to
whether
the
complaint
sufficiently
alleges
jurisdiction.
"The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties of
the United States."
28
u.s.c.
§
1331.
See also id.
§
1338 (a)
("The district courts shall have original jurisdiction of any civil
action
arising
copyrights
under
any
Act
of
Congress
relating
to
No State court shall have jurisdiction over any
claim for relief arising under any Act of Congress relating to
copyrights.")
Complaint
does
not
McCrary and Fink argue that the Amended
suggest
that
-11-
these
individual
defendants
committed copyright infringement. 29
They argue that McCrary's only
dealings with Maner were in the "course and scope" of McCrary's
employment
at
RRT,
and
"[the
Amended
Complaint]
says
nothing
whatsoever about any personal liability or culpability of [Fink] . " 30
Maner argues
that
" [t] he
individual
defendants
are
all
either
senior management, in charge of implementing the grant protocol, or
corporate officers which would be contributory and/or vicarious
liable
infringement. " 31
for
Maner argues
that he pleaded that
"Defendants, without the permission or consent of Plaintiffs, has
used, and continues to use, the Copyrighted Work and/or to make the
Copyrighted Work available for distribution to others." 32
"Cases
have
held
that
all
participants
in
copyright
infringement are jointly and severally liable as tortfeasors.
A
corporate officer may be held vicariously liable (1) if the officer
has a financial stake in the activity and (2) if the officer has the
ability and right to supervise the activity causing infringement."
Fermata Int' l
Melodies,
Inc.
v.
Champions Golf
Club,
Inc.,
712
F. Supp. 1257, 1262 (S.D. Tex. 1989), aff'd, 915 F.2d 1567 (5th Cir.
1990)
(internal citations omitted).
See also Broadcast Music, Inc.
29
See McCrary and Fink's Motion to Dismiss, Docket Entry No. 9,
pp. 3-4.
30
See id. at 4.
31
Response to McCrary and Fink's Motion to Dismiss,
Entry No. 11, p. 6 ~ 11.
32
~
Id.
~
10
(citing Amended Complaint,
[3]9).
-12-
Docket
Docket Entry No.
6,
v. Tex Border Management,
Inc.,
11 F. Supp.
3d 689,
693-94
(N.D.
Tex. 2014); Sanchez v. Hacienda Records and Recording Studio, Inc.,
No.
H-11-3855,
2013
WL
529950,
at
*8
(S.D.
Tex.
2013)
("A
controlling corporate officer or shareholder may be vicariously
liable for infringement along with his or her corporation, despite
any immunity provided by state corporation law.").
The
Amended
Complaint
alleges
that
"RRT,
and
employees
thereof" are using and distributing Maner's copyrighted work. 33
It also alleges that McCrary is the CEO of RRT, and Fink is part of
senior management there. 34
Both of them were allegedly involved in
developing the grant proposal,
that
"Plaintiff
is
and the Amended Complaint states
informed and believes
that
Defendants
have
reproduced the Copyrighted Work and filed the Copyrighted Work with
the National Institute of Health for the purpose of obtaining a
grant
and
financial
have
stake
subsequently
in
the
supervise the activity. 35
received
activity and
such
the
grant,"
ability and
showing
a
right
to
Because Maner has alleged facts capable
See Amended Complaint, Docket Entry No. 6, p. 6 ~
("Mr. Maner asserts a copyright, which has been duly registered,
the grant and underlying testing protocol, which has been used
RRT, and employees thereof, without license, due to RRT's breach
the Contract.").
33
24
in
by
of
See id. at 1-2 ~~ 2, 4; 10 ~ 52.
See also Fink C. V.,
Exhibit B to Amended Complaint, Docket Entry No. 6-1, p. 1 (naming
Fink "Chief Technology Officer, Reproductive Research Technologies,
LP 2006-present").
34
See Amended Complaint, Docket Entry No. 6, p. 8 ~ 40.
See
also id. at 5-6 ~~ 21-22; 9 ~ 44. See also Grant Proposal, Docket
Entry No. 6-2, pp. 18-19.
35
-13-
of establishing a claim for copyright infringement, this action is
not subject to dismissal for lack of subject-matter jurisdiction. 36
b.
Supplemental Jurisdiction
28 U.S.C.
§
1367(a) states that "in any civil action of which
the district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that are
so
related
to
claims
in
the
action
within
such
original
jurisdiction that they form part of the same case or controversy
II
of
the
McCrary and Fink argue that even if the claims form part
same
case
or
controversy,
the
court
should
use
its
discretion to decline to exercise supplemental jurisdiction because
"the only real basis for asserting individual claims is that these
two gentlemen have a
argue
that
"[t] his
'financial stake in the activity.'" 37
is
hardly
a
sound basis
for
the
They
Court
to
36
Maner also alleges that the court has subject matter
jurisdiction "pursuant to 28 U.S.C. § 1332 as the amount in
controversy exceeds $75,000, exclusive of interest and costs, and
Defendant, Dr. Garfield is a citizen of Arizona, while Plaintiff
and the other defendants are citizens of Texas."
Amended
Complaint, Docket Entry No. 6, p. 3 ~ B.c.
Complete diversity is
required for cases relying on diversity jurisdiction under 28
U.S.C. § 1332.
Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077,
1079 (5th Cir. 2008)
(citing Strawbridge v. Curtiss, 7 U.S.
(3 Cranch) 267 (1806)).
"Complete diversity 'requires that all
persons on one side of the controversy be citizens of different
states than all persons on the other side.'"
Id.
Because Maner,
the plaintiff, and McCrary and Fink, two of the defendants, are
citizens of Texas, there is no complete diversity in this case.
37
McCrary and Fink's Motion to Dismiss,
p. 4.
-14-
Docket Entry No.
9,
exercise its supplemental jurisdiction as the same could be said
for any shareholder of any corporation in America. " 38
As discussed above, the court has original jurisdiction over
the copyright infringement claims against McCrary and Fink.
The
breach of contract and fraud claims stem from the same alleged acts
and circumstances that led to the alleged copyright infringement.
Thus, they derive from a "common nucleus of operative fact," and it
is appropriate for the court to exercise supplemental jurisdiction
over the state-law claims against these defendants.
See Chicago v.
Int'l College of Surgeons,
(1997)
118 S.
United Mine Workers of America v.
(1966))
i
Ct.
523,
Gibbs,
Donahue v. Tokyo Electron America,
529
86 S.
Inc.,
Ct.
(citing
1130,
1138
42 F. Supp. 3d
829, 839-41 (W.D. Tex. 2014).
2.
Failure to State a Claim for Which Relief May Be Granted
McCrary and Fink next argue that the Amended Complaint "still
fails to state a plausible basis for claiming personal liability on
the part of either of McCrary or Fink within the meaning of Iqbal,
supra, and their progeny." 39
They argue that even if RRT failed to
offer Maner a promised position, there are no specific allegations
38
Id. (citing 28 U.S.C. § 1367(c) (3) ("The district courts may
decline to exercise supplemental jurisdiction over a claim under
subsection (a) if . . . the district court has dismissed all claims
over which it has original jurisdiction.")).
39
McCrary and Fink's Motion to Dismiss,
p. 5.
-15-
Docket Entry No.
9,
of wrongdoing by McCrary or Fink in their individual capacities. 40
Maner responds that when McCrary contracted with him McCrary did
not have the intent to hire him. 41
individual defendants,
knowledge of the fraud,
Maner also argues that the
"as beneficiaries of the fraud,
and with
can be held vicariously liable for the
fraudulent acts of another." 42
a.
Maner's Breach of Contract, Quantum Meruit, and
Fraud Claims Against McCrary Are Not Subject to
Dismissal.
"A Rule 12(b) (6) motion to dismiss argues that, irrespective
of jurisdiction, the complaint fails to assert facts that give rise
to legal liability of the defendant."
Willrich v.
US Marshal's
Office, No. 4:14-cv-561, 2015 WL 4776436, at *4 (E.D. Tex. Aug. 13,
2015).
McCrary and Fink argue that the Amended Complaint contains
no plausible basis for a claim against either defendant. 43
McCrary
and Fink cite Haskett v. Continental Land Resources, LLC, No. G-140281, 2015 WL 1419731 (S.D. Tex. March 27, 2015), but that case is
distinguishable. 44 There, the court held that "Plaintiff's speculations and opinions about a position he did not attain based on his
40
See id.
41
See Response to McCrary and Fink's Motion to Dismiss, Docket
Entry No. 11, pp. 3-4.
~
42
Id.
43
See McCrary and Fink's Motion to Dismiss, Docket Entry No. 9,
at 5
8.
p. 5.
44Id.
-16-
prior job experiences are not sufficient to sustain a plausible
claim under the [Age Discrimination in Employment Act] that meets
the
Twombly
and
Iqbal
WL 1419731, at *2.
pleading
standards."
Haskett,
2015
In Haskett the issue was whether the position
the plaintiff was allegedly not selected for was an independent
contractor
position
or
an
employee
position.
See
id.
The
plaintiff "[could not] point to any specific job for which he was
an unsuccessful applicant."
facts
that support a
Id.
In contrast, Maner has provided
claim that McCrary promised Maner future
employment at RRT and did not honor that promise. 45
stated plausible claims
for relief
Maner has
for breach of contract and
quantum meruit against McCrary.
While "failure to perform, standing alone, cannot establish
fraudulent intent,
slight circumstantial evidence of fraud,
when
considered with the breach of a promise to perform, is sufficient
to
support
a
finding
Healthcare Corp.
no pet.)
2002,
S.W.2d
432
v.
of
Cottey,
fraudulent
72 S.W.3d 735,
(citing Spoljaric v.
(Tex.
1986));
intent."
see
also
745
Columbia/HCA
(Tex.
App.-Waco
Percival Tours,
Arete
Partners,
Gunnerman, 594 F.3d 390, 394-95 (5th Cir. 2010)
law on fraud and acknowledging this rule) .
Inc.,
L.P.
708
v.
(discussing Texas
The Amended Complaint
alleges that McCrary's representations were knowingly false and
"used to induce Plaintiff to expend his time,
45
toil,
and effort
See Amended Complaint, Docket Entry No. 6, pp. 3, 9-10.
-17-
without compensation. " 46
Maner argues that the subsequent acts
pleaded in the Amended Complaint are slight circumstantial evidence
sufficient to support a
fraud finding.
47
The Amended Complaint
alleges that McCrary, as CEO of RRT, promised Maner an employment
position if the grant proposal was successful, did not honor that
contractual promise,
and never intended to honor it. 48
It also
alleges that McCrary failed to inform Maner when the grant was
received and divided the grant monies differently than agreed to,
and misrepresented Maner's association with RRT to the NIH when
submitting
McCrary
the
is
plausible
grant
not
proposal. 49
subject
claim
for
to
relief.
Maner's
dismissal
See
for
Iqbal,
fraud
claim against
failure
129
S.
to
Ct.
state
at
a
1950.
Accordingly, the motion to dismiss the breach of contract, quantum
meruit, and fraud claims against McCrary will be denied. 50
b.
Maner's Breach of Contract, Quantum Meruit, and
Fraud Claims Against Fink Are Subject to Dismissal.
In considering a Rule 12(b) (6) motion to dismiss,
the court
first identifies mere conclusory allegations and disregards them
because they are not entitled to the assumption of truth.
46
Id. at 9
~
Iqbal,
4 9.
47
See Response to McCrary and Fink's Motion to Dismiss, Docket
Entry No. 11, pp. 3-5, 6-10.
48
See Amended Complaint, Docket Entry No. 6, pp. 3, 9-10.
49
See id. at 3-6.
50
See infra § III.B.2 for the discussion
conspiracy claim against all Defendants.
-18-
regarding
the
129 S.
Ct.
at 1940.
The court then considers the well-pleaded
factual allegations, assuming their veracity, and then determines
"whether they plausibly give rise to an entitlement to relief."
Id. at 1940-41.
The Amended Complaint does not contain well-pleaded factual
allegations of misconduct by Fink individually.
Maner alleges that
Fink received more money than he was entitled to under the original
grant
proposal
terms;
and,
"[t]herefore,
Fink
and
McCrary
intentionally deviated from the submitted grant, failed to purchase
equipment,
cut Mr.
Maner out of his position,
and divided the
majority of the grant monies among themselves, individually." 51
The
rest of the Amended Complaint alleges generally that "Defendants"
engaged in certain activities, but does not purport to show that
Fink was personally involved. 52
Nothing pleaded indicates Fink made
any promises to Maner, with or without intent to perform or for a
purpose of deceiving.
See Arete Partners,
(citing Spoljaric, 708 S.W.2d at 432).
594
F.3d at 394-95
Maner has not pleaded facts
specific to Fink's involvement in a breach of contract,
meruit, or fraud.
51
53
quantum
The Amended Complaint alleges facts that are
See Amended Complaint, Docket Entry No. 6, pp. 5-6
~~
21-22.
52
The Amended Complaint only mentions Fink by name twice in the
14 paragraphs of facts.
See id. at 3-6 ~~ 11-25.
Both mentions
are in conjunction with money received and divided in Phase I and
Phase II of the project.
Id.
53
See infra § III.B.2 for the discussion
conspiracy claim against all Defendants.
-19-
regarding
the
"merely consistent with" Fink's liability, but "stop[] short of the
line
between
possibility
relief.'"
See
Iqbal,
8(a)(2).
Accordingly,
contract,
quantum meruit,
and
plausibility
129 S.
Ct.
the
motion
of
'entitlement
at 1949-SOi
to
Fed.
dismiss
R.
the
to
Civ.
P.
breach
of
and fraud claims against Fink will be
granted.
c.
Maner's Copyright Infringement Claim Against McCrary
and Fink Is Not Subject to Dismissal.
The only other claim asserted against McCrary and Fink is for
copyright
infringement. 54
The
Amended
Complaint
Defendants "has used, and continues to use,
alleges
that
the Copyrighted Work
and/or to make the Copyrighted Work available for distribution to
others" without Maner's permission or consent. 55
Specifically, the
Amended Complaint alleges that the Defendants reproduced and filed
the copyrighted work with the NIH. 56
Maner attached the Certificate
of Registration for his copyrighted work, effective date April 13,
2014, to his Original Complaint. 57
54
He argues that McCrary and Fink
See Amended Complaint, Docket Entry No. 6, pp. 7-9
~~
36-44.
See id. at 8 ~ 39. See also discussion at§ III.A.l.a supra.
Of course, the question of subject-matter jurisdiction is separate
from the determination of whether a plaintiff has stated a valid
claim for relief.
See Smith v. Regional Transit Authority, 756
F.3d 340, 344 (5th Cir. 2014).
55
56
See Amended Complaint, Docket Entry No. 6, pp. 7-9
57
~~
36-44.
See Certificate of Registration for Automated Real-Time
Uterine EMG Diagnostic, Exhibit 1 to Original Complaint, Docket
(continued ... )
-20-
are vicariously liable for copyright infringement, as pleaded in
the Amended Complaint. 58
McCrary and Fink's Motion to Dismiss does
not specifically address the copyright claim. 59
"Subject to sections 107 through 122, the owner of copyright
under this title has the exclusive rights to do and to authorize
any of the following:
( 1)
to reproduce the copyrighted work in
copies or phonorecords; [and]
(2) to prepare derivative works based
upon the copyrighted work."
17 U.S.C.
infringement,
a
plaintiff
must
§
106.
To prove copyright
establish ownership of
a
valid
copyright and establish that the defendant copied that material.
Baisden v. I'm Ready Productions, Inc., 693 F.3d 491, 499 (5th Cir.
2012) .
"A corporate officer may be held vicariously liable [for
copyright infringement]
the activity and (2)
supervise
the
(1) if the officer has a financial stake in
if the officer has the ability and right to
activity
causing
infringement."
Fermata
Int' l
Melodies, 712 F. Supp. at 1262; see also Broadcast Music, Inc., 11
F.
Supp.
3d
at
693-94;
Sanchez,
2013
WL
529950,
at
*8
("A
controlling corporate officer or shareholder may be vicariously
57
( • • • continued)
Entry No. 1-1, p. 1. Registration with the copyright office is not
a prerequisite to copyright protection, but it is a prerequisite to
maintaining an infringement lawsuit. See 17 U.S.C. § 411; see also
Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir.
1997) .
58
See Response to McCrary and Fink's Motion to Dismiss, Docket
Entry No. 11, p. 6.
59
See McCrary and Fink's Motion to Dismiss, Docket Entry No. 9,
p. 5.
-21-
liable for infringement along with his or her corporation, despite
any immunity provided by state corporation law.").
All partici-
pants in copyright infringement are jointly and severally liable as
tortfeasors.
Maner
Fermata Int'l Melodies, 712 F. Supp. at 1262.
has
pleaded
that
he
owns
a
valid
copyright,
that
Defendants copied his copyrighted work without his permission in
order to obtain the grant, and that Defendants continue to use the
copyrighted work. 60
See Baisden, 693 F.3d at 499.
of RRT, and Fink is senior management at RRT. 61
a
financial
stake
in
the
activity;
for
McCrary is CEO
Both allegedly have
instance,
the
Amended
Complaint alleges that they both received part of the grant money
when it was awarded. 62
See Fermata Int'l Melodies, 712 F. Supp. at
1262.
Accepting these
stated
a
plausible
speculative level."
factual
claim
for
allegations as
relief
that
true,
rises
See Twombly, 127 S. Ct. at 1965.
Maner has
"above
the
Accordingly,
the copyright infringement claim is not subject to dismissal.
B.
Reproductive
Dismissal
RRT
argues
Research
that
the
Technologies'
court
should
Motion
dismiss
for
the
Partial
fraud
and
conspiracy claims against it because the Amended Complaint fails to
60
See Amended Complaint, Docket Entry No. 6, p. 8.
See id. at 2 ~ 4; Fink C.V., Exhibit B to Amended Complaint,
Docket Entry No. 6-1, p. 1.
61
62
See Amended Complaint, Docket Entry No. 6, pp.
-22-
5-6~~
21-24.
state plausible claims
for relief on those
causes of action. 63
Maner responds that he has pled sufficient facts to identify fraud
on RRT's part and to identify the conspiracy. 64
1.
Maner's Fraud
Dismissal.
RRT
argues
that
Claim
Maner
Against
has
not
RRT
is
met
Not
the
Subject
to
particularity
requirements for pleading fraud required by Fed. R. Civ. P. 9(b),
and thus his fraud claim is subject to dismissal under Fed. R. Civ.
P. 12(b) (6) for failure to state a claim. 65
Maner argues that RRT
is vicariously liable for McCrary's actions and that the Amended
Complaint
provides
specific
facts
that
permit
a
reasonable
inference that McCrary never intended to award Maner the
job,
therefore defrauding him. 66
Fed. R. Civ. P. 9(b) imposes a heightened pleading standard on
fraud claims.
See Williams v. Bell Helicopter Textron, Inc., 417
F.3d 450, 453
(5th Cir. 2005).
Under this standard a party must
state with particularity circumstances alleged to constitute fraud.
See Campbell v.
Bravo Credit,
No.
H-14-2794,
2015 WL 502234, at
63
See RRT's Motion for Partial Dismissal, Docket Entry No. 10,
pp. 1-4.
64
See Response to RRT's Motion for Partial Dismissal, Docket
Entry No. 12, pp. 2-6.
65
See RRT's Motion for Partial Dismissal, Docket Entry No. 10,
p. 3.
66
See Response to RRT's Motion for Partial Dismissal, Docket
Entry No. 12, pp. 3-5.
-23-
*5-*6
(S.D.
Tex.
Feb.
5,
2015).
"This
Circuit's
precedent
interprets Rule 9(b) strictly, requiring the plaintiff to specify
the statements contended to be fraudulent,
identify the speaker,
state when and where the statements were made, and explain why the
statements were fraudulent."
Fund,
Inc.
(internal
v.
TXU
Corp.,
quotation marks
Flaherty & Crumrine Preferred Income
565
and
F.3d
200,
citations
207
(5th
omitted) .
requires that plaintiffs plead enough facts
Cir.
2009)
"Rule
9 (b)
to illustrate
"the
'who, what, when, where, and how' of the alleged fraud.'"
Carroll
v. Fort James Corp., 470 F.3d 1171, 1174
(citing
Bell Helicopter, 417 F.3d at 453).
(5th Cir. 2006)
A principal may be held liable
for the fraudulent misrepresentations of its agent "'so long as the
third person reasonably believed the agent was acting within the
scope of his authority.'"
950, 953 (Tex. 1996)
Scurlock Oil Co.,
NationsBank, N.A. v. Dilling, 922 S.W.2d
(citing Bankers Life Ins. Co. of Nebraska v.
447 F.2d 997,
1004 n.12
(5th Cir. 1971)); see
also Bohnsack v. Varco, L.P., 668 F.3d 262, 272-73 (5th Cir. 2012).
The Amended Complaint alleges that McCrary,
promised to give Maner a
successful. 67
as CEO of RRT,
job at RRT if the grant proposal was
As discussed above,
Maner argues that this,
along
with Defendant's alleged subsequent acts show a plausible claim for
fraud.
67
68
The subsequent acts include McCrary failing to inform
See Amended Complaint, Docket Entry No. 6, p. 3
68
~
12.
See Response to RRT's Motion for Partial Dismissal, Docket
Entry No. 12, pp. 3-5 ~~ 5-6. See also discussion at § III.A.2.a
supra.
-24-
Maner when the grant was received while continuing to use his name
in conjunction with
the
grant
submission
to
NIH,
the
lack of
response by RRT and RHT when Maner attempted to communicate with
the
the
companies,
fact
that
the
grant
money
was
divided
differently than originally set out in the grant proposal, and the
fact that Maner never received any grant money, despite being named
as a recipient. 69
708 S.W.2d 432)
See Cottey, 72 S.W.3d at 745 (citing Spoljaric,
("Although failure
to perform,
standing alone,
cannot establish fraudulent intent, slight circumstantial evidence
of fraud, when considered with the breach of a promise to perform,
is
sufficient
to
support
a
finding
of
fraudulent
intent.").
McCrary allegedly made promises in his capacity as CEO of RRT while
acting within the scope of his authority there. 70
922 S.W.2d at 953.
See NationsBank,
These allegations demonstrate the "who, what,
when, where, and how" of the alleged fraud, and Maner has satisfied
the heightened pleading requirement of Rule 9(b).
Fort James Corp., 470 F.3d at 1174.
See Carroll v.
Accordingly, RRT's motion to
dismiss the fraud claim against it will be denied.
2.
Maner's Conspiracy Claim
Subject to Dismissal
Against
All
Defendants
is
RRT argues that conspiracy is an intentional tort that must be
based on an underlying intentional tort, and that "a conspiracy to
69
See Amended Complaint, Docket Entry No. 6, pp. 4-6
70
See id. at 10
~
53.
-25-
~~
17-23.
breach a
contract
Texas law. 71
is neither intentional nor actionable"
under
Maner responds that "the facts that [each defendant]
knew of the failure of compensation and that each of the individual
defendants deviated from the grant proposal's payments to take the
share indicated for plaintiff highly suggest that they conspired to
exclude
plaintiff
from
his
share
of
the
grant
funding." 72
Additionally, RHT, Maner's only financial link to the project, was
"rendered defunct," while its officers failed to communicate with
Maner regarding his K-1s, and RRT failed to contact Maner regarding
the
grant
proposal's
success. 73
Maner
argues
that
although a
corporation may not conspire with itself, these alleged facts show
that
the
"individual
defendants
conspired
among
themselves
to
deprive plaintiff of his justly earned moneys and then divided the
monies amongst themselves"
and "used the limited partnership to
further their individual goals." 74
Amended Complaint,
which states:
Maner cites paragraph 4 7 of the
"Plaintiff relied upon these
representations, which were material to Plaintiff in expending his
71
See RRT's Motion for Partial Dismissal, Docket Entry No. 10,
p. 4 (citing Arthur W. Tifford, PA v. Tandem Energy Corp., 562 F.3d
699, 709-10 (5th Cir. 2009); Firestone Steel Products Co. v.
Barajas, 927 S.W.2d 608, 614 (Tex. 1996); and Leasehold Expense
Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 463 (5th Cir.
2003)) .
72
See Response to RRT's Motion for Partial Dismissal, Docket
Entry No. 12, p. 6 ~ 10.
73
See id.
74Id.
-26-
time,
toil,
and effort, without compensation, on the business of
RRT. "75
"A
pleading
that
offers
'labels
and
conclusions'
or
'a
formulaic recitation of the elements of a cause of action will not
do.'"
Iqbal, 129 S. Ct. at 1949
1964-65) .
(quoting Twombly, 127 S. Ct. at
Under the heading "Count 3:
Conspiracy,"
the Amended
Complaint states:
34. The Defendant(s) were members of a combination of
two or more people, with, upon information and belief,
the specific intent and/or "meeting of the minds" to
accomplish monetary gain through unlawfully breaching the
Contract, and/or committing fraud as herein described.
35.
The Defendant(s) committed the overt acts of breach
of contract and/ or fraud in perpetuating their objective,
and these wrongful acts have caused injury to the
Plaintiff for which Plaintiff herein sues.
The elements of conspiracy in Texas are:
persons; (2) an end to be accomplished;
the end or course of action;
"' (1)
two or more
(3) meeting of the minds on
(4) one or more overt, unlawful acts;
and (5) proximately resulting in injury.'
A defendant's liability
is derivative of an underlying tort; without independent tortious
conduct, there is no actionable civil conspiracy claim."
Arthur W.
Tifford, PA v. Tandem Energy Corp., 562 F.3d 699, 709-10 (5th Cir.
2009)
(citing Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 381
(Tex. App.-Houston [1st Dist.] 2007, no pet.))
(internal citation
omitted); Van Duzer v. U.S. Bank Nat. Ass'n, 995 F. Supp. 2d 673,
693
(S.D. Tex. 2014).
"Thus, conspiracy to breach a contract is
75Id.
-27-
not
actionable under Texas
law."
Monclat Hospitality,
LLC v.
Landmark American Ins. Co., No. 4:15-cv-632-A, 2015 WL 5920757, at
*5 (N.D. Tex. Oct. 8, 2015)
(citing Grizzle v. Texas Commerce Bank,
38 S.W.3d 265, 285 (Tex. App.-Dallas 2001), rev'd on other grounds,
Maner cannot rely on the breach of
9 6 S . W. 3d 2 4 0 ( Tex . 2 0 0 3 ) ) .
contract claim to support a conspiracy claim.
Even with fraud as alleged underlying intentionally tortious
conduct for
Texas
itself,
law,
the conspiracy,
has
held
that
"[t] he Fifth Circuit,
'a
corporation cannot
no matter how many of
wrongful action.'"
Id.
its
H-112973,
2014),
aff'd
2014 WL 4649885,
sub
conspire
nom.,
United
611 F.
Ligai v.
at *14-*15
States
App'x 219
Tex.
rel.
Ligai
(5th Cir.
2015).
Technologies,
Inc.,
actions of a
corporate agent on behalf of
deemed the corporation's acts."
331
ETS-Lindgren Inc.,
(S.D.
ex
with
participated in the
(quoting Leasehold Expense Recovery,
F.3d at 463); United States ex rel.
No.
agents
interpreting
Sept.
16,
v.
ESCO
"[T]he
the corporation are
Orthoflex.
Inc.
v.
ThermoTek,
Inc., Nos. 3:11-CV-0870-D, 3:10-CV-2618-D, 2012 WL 2864510, at *6
(N.D. Tex. July 12, 2012)
793, 795 (Tex. 1995)).
(quoting Holloway v. Skinner, 898 S.W.2d
"[T] herefore [,] employees and agents cannot
conspire with each other unless they act outside the scope of their
employment or for their own personal benefit."
Mortgage III Sub,
July 8, 2013)
I, LLC,
See Mathis v. DCR
952 F. Supp. 2d 828, 836-37
(W.D. Tex.
(quoting Crouch v. Trinque, 262 S.W.3d 417, 427 (Tex.
App.-Eastland 2008, no pet.)).
-28-
Maner has not alleged any facts that would plausibly lead to
the conclusion that the individual defendants were acting outside
the scope of their agency for RRT when they submitted the grant
proposal.
The Amended Complaint does not provide any facts as to
how RRT participated
Recovery,
331
in a
F. 3d at
conspiracy.
463
(finding
conspired with its counsel,
See
LER' s
Graham Miles,
Leasehold
claim
that
Expense
"Mothers
to enter secret
'side
deals' with its landlords in an attempt to avoid compensating LER
under the Contract" failed because "LER has not alleged that Miles
has any independent interest that would make it possible for him,
under Texas law, to conspire with Mothers"); Mastronardi v. Wells
Fargo Bank,
N.A.,
No.
4:15-cv-452-A,
(N.D. Tex. Sept. 17, 2015).
allegation
of
allegations,"
legal
and
at *6-*7
This conspiracy claim "is a bare-bones
conclusions
does
2015 WL 5472924,
not
meet
without
the
supporting
pleading
factual
and
specificity
requirements of the Federal Rules of Civil Procedure.
See DiNoto
v. USAA Cas. Ins. Co., No. H-13-2877, 2014 WL 4923975, at *11 (S.D.
Tex.
Sept.
30,
2014);
2015 WL 5794021,
Amended Complaint
King v.
at *11-*12
fails
Jarrett,
(W.D.
to state a
Tex.
No.
A-15-cv-00491-LY-ML,
October 1,
2015).
The
conspiracy claim for which
relief can be granted against any defendant.
Accordingly, RRT's
motion to dismiss and McCrary and Fink's motion to dismiss will be
granted as to the conspiracy claim.
-29-
IV.
Conclusion and Order
For the reasons stated above,
McCrary
will
not
jurisdiction under
be
Fed.
dismissed
R.
Civ.
the claims against Fink and
for
P.
lack
of
12 (b) (1).
subject-matter
The
breach
of
contract, quantum meruit, and fraud claims will be dismissed as to
Fink but not as to McCrary.
The copyright infringement claim will
not be dismissed against either Fink or McCrary.
The conspiracy
claim against all defendants will be dismissed pursuant to Fed. R.
Civ. P. 12(b) (6).
Additionally, RRT will have fourteen days from
the date of this Memorandum Opinion and Order to file an answer.
Accordingly, Defendants, McCrary and Fink's Motion to Dismiss
Plaintiff's First Amended Complaint (Docket Entry No. 9) is GRANTED
in PART and DENIED in PART,
Technologies,
and Defendant Reproductive Research
L.P.'s Motion for Partial Dismissal of Plaintiff's
First Amended Complaint and Motion for Additional Time to File an
Answer (Docket Entry No. 10) is GRANTED in PART and DENIED in PART.
SIGNED at Houston, Texas, on this 4th day of November, 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
-30-
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