FILED
`7/25/2022 1:43 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Jenifer Trujillo DEPUTY
`
`CAUSE NO. DC-22-3103
`
`IN THE DISTRICT COURT
`
`1924 JUDICIAL DISTRICT
`
`DALLAS COUNTY, TEXAS
`
`§
`§
`
`§ §
`
`§
`§
`§
`
`LA ENERGIA NORTENA,LLC,
`ADRIAN ZAMARRIPA,and
`HUMBERTO NOVOA
`
`VS.
`
`MOISES CUEVAS, JR.
`
`DEFENDANT MOISES CUEVAS, JR.’S REPLY
`TO PLAINTIFF’S AMENDED RESPONSE TO
`DEFENDANT’S RULE 91a AMENDED
`
`MOTION TO DISMISS PLAINTIFFS’ CLAIM FOR DECLARATORY JUDGMENT
`
`TO THE HONORABLE JUDGE OF SAID COURT:
`
`COMES NOW Defendant MOISES CUEVAS, JR. and files this reply to Plaintiffs’
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`Amended Response to Defendants’ Amended Motion to DismissPlaintiffs’ claim for declaratory
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`judgment and would respectfully show this Court as follows:
`
`PRELIMINARY STATEMENT
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`After reviewing Plaintiff's Amended Response, Plaintiffs, apparently, misunderstand
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`copyright law entirely, or they have no respect for the subject matter jurisdictional boundaries of
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`federal and state courts and therefore wish to mislead this Court in their representations of the law.
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`While Defendant Cuevas provided a factual summary of the procedural history of the
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`Plaintiffs’ action before this Court and the Defendant’s separate federal action on the copyrights
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`in dispute in Defendant’s 91a Motion and Amended 91a Motion to Dismiss, such factual recital
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`was merely given to make the State Court fully aware of the circumstances surroundingthe dispute
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`as the Northern District of Texas is already deciding the federal question of whois the author and
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`owner of the sound recordings in dispute. The factual recital given by Defendant Cuevasin his
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`motion to dismiss was not an attempt to rewrite Plaintiffs’ First Amended Petition or interfere with
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`Def.’s 91a Am. Motion to Dismiss
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`PAGE1
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`

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`the appropriate standard of review that requires this Court to merely look at Plaintiff’s First
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`Amended Petition when deciding whether to grant Defendant Cuevas’ 91a motion as Plaintiffs
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`erroneouslyallege.!
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`This Court’s decision to decide whether to grant Defendant Cuevas’ 91a Motion to Dismiss
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`must be “...based solely on the pleading of the cause of action [i.e., Plaintiff's First Amended
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`Petition], together with any pleading exhibits permitted under Rule 59.” TEX. R. Civ. PRO. 91a.6.
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`Forthis very reason, Defendant, in his original reply to Plaintiffs’ original response to Defendant’s
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`original 91a motion to dismiss, and in Defendant’s Amended 91a Motion to Dismiss, specifically
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`called the State Court’s attention to the deficiencies in fact and law pled in Plaintiffs First
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`AmendedPetition that prevent this State Court from being able to provide the declaratory relief
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`sought by Plaintiffs.
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`Rather than acknowledge the actual arguments made by Defendant Cuevas for the
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`proposed dismissal of Plaintiffs’ claim for declaratory relief in Plaintiffs’ First AmendedPetition,
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`Plaintiffs, in their amended response, erroneously claim that “Defendantfailed to review Plaintiffs’
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`initial Rule 91a response and address the deficiencies pointed out by Plaintiffs to defendant’s first
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`91a motion.” See Pl.’s Am. Resp. to Def.’s 91a Am. Mot. to Dismissat 6. Plaintiffs then go on to
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`make numerous misrepresentations and misleading statements in fact and law in support of their
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`amended response. Accordingly, Defendant Cuevasfiles this Reply to Plaintiff's Amended Motion
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`to Dismiss to addressthe fallacies of Plaintiffs’ Amended Response and to further support his 91a
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`Motion to Dismiss Plaintiffs’ Claim for Declaratory Relief.
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`
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`1 See PL.’s Am. Resp. to Def.’s Am. 91a Mot. to Dismissat6.
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`Def.’s 91a Am. Motion to Dismiss
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`PAGE2
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`

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`1. The Copyright Ownership issue is not going away, but it can only be decided in Federal
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`Court becauseit is groundedin a dispute of authorship.
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`In section II.A. of Defendants’ Amended 91a Motion to Dismiss, Defendant explains,
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`“Pursuant to 28 U.S.C. § 1338(a), only a federal district court “...shall have original jurisdiction
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`of any civil action arising under any Act of Congressrelating to...copyrights.””
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`Defendant then cites the Federal Court of Appeals Fifth Circuit’s decision in Goodman v.
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`Lee, 815 F.2d 1030, 1031 (Sth Cir. 1987), which holds: “[A]n action ‘arises under’ the Copyright
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`Actif and only if the complaint...asserts a claim requiring construction of the Act.”?
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`In keeping with Rule 91a.6, Defendant then looks solely at facts and claim for declaratory
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`relief as pled in Plaintiffs’ First Amended Petition to determine whether Plaintiffs request for
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`declaratory relief arises under the Copyright Act and the exclusive jurisdiction ofthe federal court.*
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`Next, Defendant Cuevas points out that the Plaintiffs specifically allege within their First
`
`AmendedPetition that “... Azteca Records [LLC] is the rightful owner of the album copyrights”
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`and “Defendant Cuevas...ma[de] claims of ownership and authorship of the albums where he has
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`no right to claim copyrights.’”*
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`Thereafter, Defendant Cuevas, again, looked solely at Plaintiff's First AmendedPetition,
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`in accordance with Rule 91a.6, whereby Plaintiff make an open-endeddeclaratory relief claim for
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`this State Court to “...adjudicate and declare the rights interest of the parties’ pursuant to the
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`Declaratory Judgments Act,
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`including, but not limited to: (i) declaring that all rights to the
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`copyrights in the ten albums belong solely with Azteca Records; and (ii) ordering Defendantto
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`
`
`? See Def.’s Am. 91a Mot. to Dismissat 9.
`3 Id. at 10.
`4d.
`3 Id. (quoting and citing Pl.s’ First Am.Pet. at {{{ 16-17).
`
`Def.’s 91a Am. Motion to Dismiss
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`PAGE3
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`

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`cease any attempt to seek copyrights or other legal protection from any album produced by Azteca
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`Record for the band, La Energia Nortena.’”°
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`As mentioned in Defendant’s Amended 91a Motion to Dismiss, “[o]n the face of Plaintiff's
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`First Amended Petition, Plaintiffs are attempting to have this State Court resolve all ‘rights and
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`interests of the parties’ related to the copyright in dispute — and not just ownership rights, but also
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`authorship of the works!”
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`Defendant is not rewriting Plaintiffs’ First Amended Petition when Defendant identifies
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`the deficiencies of the alleged facts and Plaintiff's open-ended claim for declaratory relief that
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`prevents this State Court from ruling on such claim based on a lack of subject matter jurisdiction.
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`Accordingly, and as explained in Defendant’s Amended 91a Motion to Dismiss, Federal
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`Courts hold: “[C]laims premised upon authorship of a copyright work arise under the
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`[Copyright] Act. In addition, ownership claims grounded in disputes about authorship are
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`considered to arise under the Act.”®
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`Plaintiffs clearly within the four corners of their First AmendedPetition raise contest to
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`Defendant Cuevas’ claims of authorship and ownership of the copyrights in dispute, and Plaintiffs
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`ask this State Court for a blanket adjudication to decide all of the rights and interests of the parties
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`with regard to the copyrights in dispute.’ But the State Court cannot grant declaratory relief that
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`is grounded in a dispute of authorship!
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`The State Court only has authority to decide copyright ownership, standing alone (when
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`authorship is not disputed), because the transfer or grant of ownership of a copyright requires a
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`
`
`® See id. at 10-11 (citing and quoting Pl.s’ First Am.Petition at § 22).
`7 See id. at 11.
`8 See Def.’s Am. 91a Mot. to Dismiss at 12 (citing Jones v. Glad Music Publ.’g & Recording LP, 535 F. Supp. 3d
`723, 732 (M.D. Tenn. 2021).
`° See PL.’s First Am. Pet. at 9] 14-16 & 22.
`
`Def.’s 91a Am. Motion to Dismiss
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`PAGE4
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`written instrument signed by the ownerofthe rights conveyed. See 17 U.S.C. §204(a); See also Di
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`Angelo Publs, Inc. v. Kelley, 9 F.4th 256 (Sth Cir. 2021) (“It is well established that where a party
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`holds a copyright by virtue of an assignment or similar contractual arrangement, state law is
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`determinative of ownership. But claims of copyright ownership groundedin authorship touch on
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`federal concerns. Section 201(a) of the Copyright Act provides that ‘[c]opyright in a work
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`protected under this title vests initially in the author or authors of the work.’ ‘An author
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`gains ‘exclusive rights’ in her work immediately upon the work's creation, including rights
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`of reproduction,distribution, and display,’ and thusregistration is not a prerequisite to an
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`author holding a copyright.”).
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`Plaintiffs First AmendedPetition fails to plead any facts that explain how and why Azteca
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`Records is the owner of the copyrights in dispute. Instead, Plaintiffs merely assert that Azteca
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`Records is the owner, and Plaintiffs dispute that Cuevas has any right to make any claims of
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`ownership and authorship of the sound recordings. !°
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`But the factual allegations made in Plaintiff's First Amended Petition clearly shows that
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`Plaintiffs have absolutely no idea how copyright law works. To explain in Paragraph 15 of
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`Plaintiff's First Amended Petition, Plaintiffs allege:
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`15. In May 2021, Plaintiffs became aware that Defendant Cuevas
`registered all of the albums produced under Azteca Records under
`La Energia Nortefia, the band. However, La Energia Nortefia does
`not have the right to copyright such albumsas those rights are
`solely within Azteca Publishing and Azteca Records.!!
`
`Plaintiff's allegation that someone does not havethe “right to copyright” is evidence that
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`Plaintiffs do not understand copyright law and how authorship and ownership applies to works of
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`copyright. Under U.S. law and pursuant to 17 U.S.C. § 201, a copyright in a work exists at the
`
`
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`10 See Pl.’s First Am. Pet. 9] 15-17.
`1! See Pl.’s First Am. Pet. 49 15 (emphasis added).
`
`Def.’s 91a Am. Motion to Dismiss
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`PAGE5
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`momentof creation. Rodrigue v. Rodrigue, 218 F.3d 432, 435-36 (Sth Cir. 2000) (“[T]he author’s
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`copyright arises at the momentof creation....[T]he copyright ‘vests initially’ in the ‘author’, and
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`the ‘author’ is the ‘originator,’ the ‘maker,’ the person to whom a work ‘owesits origin.””). Thus,
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`copyright registration is not required for an author to hold or own a copyright. Therefore, Plaintiffs’
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`allegation that “La Energia Nortena doesnot havethe right to copyright” is erroneous, nonsensical,
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`and a complete legal fiction. The registration of a copyright does not create a copyright in the
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`work. The copyright in the work existed when the work wascreated!
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`Plaintiffs’ misunderstandings of U.S. copyright law are further exhibited in paragraph 17
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`as they allege that “Defendant Cuevas...ma[de] claims of ownership and authorship of albums
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`where he has no right to claim copyrights.” Again, such allegation is erroneous, nonsensical, and
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`a complete legal fiction. To explain in paragraph 8 of the Plaintiff's First Amended Complaint,
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`Plaintiffs allege that Defendant Cuevas is a member of the musical band - La Energia Nortena.
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`Then,
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`in paragraph 10 of Plaintiff's First Amended Complaint, Plaintiffs allege, “The band
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`released ten (10) albums from 2011 to 2020 with Azteca Records.” Thus, in accordance with U.S.
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`copyright law, based Plaintiffs’ allegations in paragraph 8 and 10 of Plaintiff's First Amended
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`Petition, Defendant Cuevas would be a co-author and co-ownerof the ten albumsthat were created,
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`because Defendant Cuevas is a member of the band, and the band performance (which includes
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`Defendant Cuevas’ performance) appears on the ten albums. Thus, Plaintiff's allegation that
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`“Defendant Cuevas ma[de] claims of ownership and authorship where he has no right to claim
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`copyrights” is completely nonsensical as it defies reality and basic tenants of U.S. copyright law
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`regarding ownership and authorship.
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`Additionally, for this State Court to decide a dispute of copyright ownership, standing
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`alone, there needs to a written instrument signed by granting author, whois the initial
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`Def.’s 91a Am. Motion to Dismiss
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`PAGE6
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`copyright ownerof the work. See 17 U.S.C. 204(a) (A written instrument signed by the owner
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`of the rights conveyed is required for the transfer of copyright ownership to be valid.). But
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`Plaintiffs have alleged no such facts. Specifically, Plaintiffs fail to allege any facts that Defendant
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`Cuevas granted or transferred his copyright rights in the albums’ sound recordings to Azteca
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`Records by a written instrument signed by Defendant Cuevas. Without the allegation of a written
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`instrument signed by Defendant Moises Cuevas granting the copyrights to Azteca Records, this
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`State Court lacks jurisdiction to decide ownership of a copyright based on state contract law. Thus,
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`Plaintiffs’ argument that the “[r]esolution of ownership of the copyright involves Texas contract
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`law, Texas promissory estoppel law, and Texasstatute of limitation law” is completely bogus. !*
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`Additionally, Plaintiffs explanation of the Houston Court of Appeals decision in Butlerv.
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`Cont 'l Airlines, Inc., 31 S.W.3d 642 (Tex. App.—Houston[1* Dist.] 2000, pet. denied) further
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`evidences Plaintiffs’ failure to recognize that the copyright author is the initial copyright owner
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`under U.S. Copyright law. The fact that Butler may have been an employee of Continental Airlines
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`does make the case not applicable. The decision in Butler is offered and explained by legal
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`copyright scholar Nimmer to show that when there is no written instrumenttransferring the grant
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`of copyright and there is a dispute of authorship, the question of copyright ownership becomes a
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`federal question that falls outside the jurisdiction of the State Court. As mentioned in Defendant’s
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`Motion, determining whois the author and ownerof the copyright work whenthere is no written
`
`
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`2 See Pl.s’ Am. Resp. to Def.’s 91a Mot. to Dismissat 14. Plaintiff's fail to allege the existence of any written
`contracts granting the copyright rights in dispute in Plaintiff's First Amended Petition, which is whatis required in
`order the State Court to decide copyright ownership as a matter of Texas contract law, pursuant to 17 U.S.C. 204(a).
`Furthermore, Texas promissory estoppel law and Texasstatute of limitation law are not determinative on who owns
`a copyright. The U.S. Copyright Act exclusively governs the rights to a copyright work, and it preempts any
`equivalent right to copyright under the commonlaw orstatues of any State. See 17 U.S.C. § 301 (“[N]o
`personis entitled to any such right or equivalent right in any such work under the common laworstatues of
`any State.”). Again, 17 U.S.C. § 204 requires a writing to transfer a grant of copyright, and Plaintiffs fail to allege
`the existence of any written documents. Therefore, Texas promissory estoppel law and Texasstatue oflimitation
`cannot be used to establish copyright ownership.
`
`Def.’s 91a Am. Motion to Dismiss
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`PAGE7
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`

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`agreement requires construction of different statutory definitions under the Copyright including
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`“Joint authorship” or “work made for hire.”!? Defendantis not rewriting Plaintiffs’ First Amended
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`Petition by mentioning the legal analysis that would be required of a court to grant the open-ended
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`claim for declaratory relief requested by Plaintiffs. Rather Defendant’s Motion seeks to explain
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`whythis State Court lacks jurisdiction to provide Plaintiffs’ request for declaratory relief that arises
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`under the Copyright Act and the exclusive jurisdiction of the federal district court. Furthermore,
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`Plaintiffs representation that the Southern District of Texas decided that Butler was wrongly
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`decided is a complete misrepresentation.'* The Southern District of Texas in M-J LLC v. Stelly
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`never ruled that the Houston Court of Appeals’ decision in Butler was decided wrongly.!> The
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`Southern District of Texas’ decision in M-/ LLC v. Stelly only mentions the Butler decision when
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`it criticizes the defendants’
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`“...fail[ure] to undertake the proper inquiry in their equivalency
`
`3
`
`Ge
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`analysis” regarding copyright preemption of state-based trade secret law.”!® But the Southern
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`District’s reference to Butler in its decision of M-7 LLC v. Stelly is not instructive on whether a
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`state court lacks jurisdiction to decide authorship and ownership of a copyright work, nor does the
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`Southern District of Texas’ decision in M-/ LLC vy. Stelly overturn or disagree with the Houston
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`Court of Appeals’ decision in Butler that requires a federal district court to determine ownership
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`of a copyright work whenauthorship is disputed.
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`Here, the State Court’s decision to grant Defendant’s 91a Motion to Dismiss Plaintiff's
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`Request for Declaratory Relief is simplified by the fact that Plaintiffs, on the face of their First
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`Amended Petition, admit that there is a dispute of authorship and ownership of the copyrights
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`
`
`13 See Def.’s Am. 91a Mot. to Dismiss at 14.
`14 Sec Pl.’s First Am. Resp. to Def.’s Am. 91a Mot. to Dismiss at 17 (Plaintiff’s state, “However, at least one federal
`court has determined that Butler was wrongly decided.”) (citing M-I LLC v. Stelly, 733 F.Supp.2d 759, 795 (S.D.
`Tex. 2010).
`13 M-I LLC v. Stelly, 733 F.Supp.2d 759 (S.D. Tex. 2010)
`16 Td. at 789.
`
`Def.’s 91a Am. Motion to Dismiss
`
`PAGE8
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`

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`between the parties. Plaintiffs allege in paragraph 17 that “Defendant Cuevas...ma[de] claims of
`
`ownership and authorship of albums where he has noright to claim copyrights”, and then in
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`paragraph 22 of their claim for declaratory judgment, Plaintiffs asks this Court to “adjudicate and
`
`declare the rights and interests of the parties” with regards to the copyrights in dispute “including,
`
`but not limited to: (4) declaring that all rights to copyrights in the ten albums belong with Azteca.”
`
`Accordingly, because copyright ownership claims grounded in disputes of authorship arise under
`
`the Copyright Act, the federal district court is the only court that can decide the copyright
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`ownership dispute of the parties.
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`2. Defendant’s 91a Motion is NOT tardy or moot.
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`Defendant never admitted that his 9la Motion to Dismiss was tardy as Plaintiffs
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`misrepresent in their amended response.!’ It is undisputed that Defendant Cuevastimelyfiled his
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`Rule 91a motion to dismiss on February 19, 2022 — eight daysafter Plaintiff's first filed their First
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`AmendedPetition. As the parties cite, Tex. R. Civ. Pro. 91a.3(c), states the Court “must” grant or
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`deny the motion within 45 days after the motion is filed. Defendant’s 91a Motion to Dismiss was
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`heard by submission on March 14, 2022 at 8:00 a.m. Accordingly, the State Court should have
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`issued a ruling on Plaintiff's 91a motion to dismiss on or before April 5, 2022. But the fact the
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`State Court failed to adhere to the 45-day timeframe to issue a ruling DOES NOT make
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`Defendant’s 91a motion to dismiss mootas Plaintiffs erroneously allege.
`
`Texas Appellate Courts have held:
`
`. granted
`.
`Rule 91a.3 requires that "[a] motion to dismiss must be .
`or denied within 45 days after the motion is filed." TEX. R. CIv.
`P. 91a.3. "The word 'must' is generally construed as mandatory,
`and, therefore, as creating a duty or obligation.” Walker v.
`Owens, 492 8.W.3d 787, 790 (Tex. App.—Houston[1st Dist.] 2016,
`
`17 Compare Pls’ Am. Resp. to Def.’s Am. 91a Mot. to Dismissat 7 with Def.’s Am. 91a Motion to Dismiss.
`
`Def.’s 91a Am. Motion to Dismiss
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`PAGE9
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`

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`no pet.) (citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493
`(Tex. 2001)). "While it is true that Rule 91a.3 provides that a
`motion to dismiss 'must be... granted or denied within 45 days
`after the motion is filed,’
`the Rule does not provide any
`consequencesif a court takes no action on the motion within the
`prescribed period." Koenig v. Blaylock, 497 S.W.3d 595, 598 (Tex.
`App.—Austin
`2016,
`pet.
`denied) (quoting TEX.
`R.
`CIV.
`P. 91a.3(c)). "If a provision requires that an act be performed
`within a certain time without any words restraining the act's
`performance after that time, the timing provision is usually
`directory." Helena Chem., 47 8.W.3d at 495; accord AC Interests,
`L.P. v. Tex. Comm'n on Envil. Quality, 543 S.W.3d 703, 707-08
`(Tex. 2018).
`
`Here, Rule 91a.3 expressly states the trial court must grant or deny
`the motion "within 45 days after the motionis filed." TEX. R. Civ.
`P. 91a.3. But the Rule's plain language does not impose a penalty
`for
`the
`trial
`court's
`failure
`to rule within the
`forty-five
`days. Cf Helena Chem., 47 S.W.3d at 495; San Jacinto River Auth.
`v. Lewis, 572 $.W.3d 838, 840 (Tex. App.—Houston [14th Dist.]
`2019, no pet.).
`
`If the legislature had wanted thetrial court's failure to timely
`rule to cause an automatic denial of the motion, it could have
`included that provision in the statute, but it did not. See TEX.
`Gov'T CODE ANN.22.004(g) (empowering statute); Reaves v. City
`ofCorpus Christi, 518 S.W.3d 594, 602 (Tex. App.CorpusChristi
`2017, no pet.) (construing Rule 91a); cf TEX. Civ. PRAC. & REM.
`CODE ANN. § 27.008(a) (including language that expressly denies
`by operation of law a motion not timely decided by thetrial court).
`
`Similarly, if the Texas Supreme Court wanted an automatic
`denial for the trial court's failure to timely decide, it could have
`included that provision in the Rule, but it did not. See TEX. R.
`Civ. P. 91a.3; Reaves, 518 S.W.3d at 602.
`
`Thus, like our sister courts, we conclude that a trial court's
`failure to grant or deny the motion within forty-five days is
`error,
`but
`the Rule's
`deadline
`is
`directory,
`not
`jurisdictional. See San Jacinto River Auth., 572 S.W.3d_ at
`840; Reaves,
`518 S.W.3d at
`602; Koenig,
`497
`S.W.3d_
`at
`598; Walker, 492 S.W.3d at 790. Therefore, although thetrial
`court erred whenit failed to grant or deny the motion within the
`forty-five-day period, it did not lose its jurisdiction to decide
`Stone's motion to dismiss. See Helena Chem., 47 S.W.3d at
`495; Koenig, 497 8.W.3d at 598.
`
`Def.’s 91a Am. Motion to Dismiss
`
`PAGE10
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`

`

`MedFin Manager, LLC v. Stone, 613 S.W.3d 624, 628-29 (Tex. App.—San
`Antonio 2020) (Emphasis added); See also, Black v. Woodrick, 2021 WL
`1113149,
`fn.5 (Tex. App.—Amarillo 2021, no pet.)
`(citing MedFin
`Manager, LLC, 613 S.W.3d at 628-29.).
`
`Thus,this State Court is still required and empoweredto rule because the Defendant’s 91a
`
`Motion to Dismiss was timely heard by submission within the 45-day window.
`
`Furthermore, Plaintiffs completely misrepresent the Amarillo Court of Appeal’s decision
`
`in Black v. Woodwrick, which does not stand for the erroneous proposition that the Court’s failure
`
`to timely rule on a 91a motion to dismiss makes the motion moot.'® In Black v. Woodrick, Black
`
`sued Woodrick for defamation on February 20, 2019.'° On April 29, 2019, Woodrick filed a
`
`Motion to Dismiss on two grounds: 1) pursuant to Rule 91a of the Texas Rules of Civil Procedure
`
`that the suit was baseless, and 2) pursuant to Texas Citizens Participation Act that Black’s suit was
`
`intended to chill Woodrick’s right to free speech andhis right to petition.”° Thetrial court heard
`
`Woodrick’s motion to dismiss on July 5, 2019.*! Eight months passed without a ruling on
`
`Woodrick’s Motion to Dismiss.”* Then, on January 16, 2020,thetrial court granted the motion to
`
`dismiss.” “Thetrial court did not specify whether dismissal was granted pursuant to Rule 91a or
`
`under TCPA.”* On appeal, “...Black presented a single global issue challenging thetrial court’s
`
`ordersolely on the basis of the TCPA.”** During the appeal, Woodrick contendedthat “...thetrial
`
`court properly dismissed the suit pursuant to Rule 91a... [and]...maintain[ed] that Black waived
`
`
`
`18 Pls’ Am. Resp. to Def.’s Am. 91a Mot. to Dismiss at 7 (citing Black v. Woodrick, 2021 WL 1113149, *3 (Tex.
`App.—Amarillo 2021, no pet.) (Plaintiffs’ erroneously state “tardy ruling on Rule 91a motion cannotserve basis as
`tuling.”’).
`'9 Black v. Woodrick, 2021 WL 1113149 at *2.
`20 Id.
`21 Td. at *4,
`22 Td. at *2.
`23 Td. at *3.
`24 Id.
`23 Id.
`
`Def.’s 91a Am. Motion to Dismiss
`
`PAGE11
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`

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`any argument under Rule 91a by failing to brief the issue [on appeal].’”*° The Amarillo Court of
`
`Appeals held that the trial court erred in granting Woodrick’s Motion to Dismiss under TCPA and
`
`further found “the issue of waiver to be moot because the only basis on which thetrial court could
`
`have granted the motion to dismiss was the TCPA.” The Amarillo Court of Appeals explained that
`
`the reason whythetrial court could not have been granted the Rule 91a motion to dismiss was
`
`becausethetrial court did not conduct a hearing on the Motion to Dismissuntil July 5, 2019, which
`
`waslong after the 45-day deadline to Rule pursuant to Rule 91a.3(c).7’
`
`In contrast to the underlying facts of Black v. Woodrick, Defendant Cuevas’ 91a Motion
`
`wasalready heard by submission on March 14, 2022 at 8:00 a.m. by the State Court within the 45-
`
`day deadline, and it was therefore procedural improper for the State Court to not to issue a ruling
`
`on Defendant Cuevas’ 91a motion when Rule 9la.3(c) requires the State Court to grant or deny
`
`the motion by April 5, 2022. Rule 91a.3(c) does not allow for the State Court to decide to not issue
`
`a ruling after timely hearing Defendant’s 91a motion to dismiss, nor does the State Court’s failure
`
`to timely rule make Defendant’s 91a motion to dismiss denied by operation of law.”* Rather, the
`
`State Court is required to issue a ruling on Defendant’s 91a Motion to Dismiss under the Rule
`
`
`
`26 Td.
`27 Td. at *5-6.
`8 Note: In Black v. Woodwrick, the Amarillo Court of Appeals found that the Court’s failure to timely rule on the
`dismissal pursuant to TCPA wasdenied by operation of law, because Tex. Civ. Prac. & Rem. Code § 27.008states,
`“Ifa court does not rule on motion to dismiss under Section 27.003 in the prescribed time by Section 27.005, the
`motion is considered to have been denied by operation of law and the moving party may appeal.”’) 2021 WL
`1113149, *3 (Tex. App.—Amarillo 2021, no pet.) (citing Tex. Civ. Prac. Rem. Code § 27.008); Tex. Civ. Prac. &
`Rem. Code § 27.003 pertains to motions to dismiss that deal with constitute rights such asright to free speech. In
`contrast, Tex. R. Civ. Pro. 91a does not have a related statute or rule that states a Rule 91a motion is denied by
`operation of law if the Courtfails to timely rule within the proscribed 45-day period to rule after hearing. As noted
`in Black, “[Rule 91a] does not impose a consequencefor [the Court] failing to timely rule on a motion to
`dismiss.” See Black, 2021 WL 1113149at fn.5.
`
`Def.’s 91a Am. Motion to Dismiss
`
`PAGE12
`
`

`

`91a.3, because Defendant’s 91a Motion to Dismiss was timely heard on March 14, 2022, even if
`
`the State Court’s ruling on such motion is late.”
`
`Moreover, the fact that this transferring State Court subsequently required Defendant
`
`Cuevasto set an oral hearing on Defendant’s Motion to Dismiss after Defendant’s motion was
`
`already timely heard by submission on March 14, 2022 or the fact that this transferring State Court
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`thereafter required Defendant Cuevasto refile an 91a Amended Motion to Dismiss to conform to
`
`the page limits of this State Court DOES NOT make Defendant Cuevas’ 91a Motion to Dismiss
`
`untimely or moot, because again Defendant’s 91a Motion wasalready heard by submission.
`
`Additionally, this State Court, procedurally, should not have required Defendant to have to
`
`set an oral hearing on his 91a motion to dismiss, because Defendant’s motion to dismiss was
`
`already heard on March 14, 2022. Instead, this State Court should have issued a ruling based on
`
`the hearing on submission of the Defendant’s Original Motion to Dismiss, Plaintiffs’ Original
`
`Response to Defendant’s Original 91a Motion to Dismiss, and Defendant’s Original 91a Motion
`
`to Dismiss. Furthermore, it was procedurally improper for this State Court to additionally request
`
`that Defendant amend his Motion to Dismiss to conform with page limits of this transferee state
`
`court, because pursuant to TEX. R. Civ. PRO. 91a.5, the State Court is not allowed to consider an
`
`amended pleading that is not filed as permitted by paragraphs (a) or (b) of the Rule 91a.5.
`
`Subsection (a) of Rule 91a.5 allows for amendment “...if at least 3 days before the date of the
`
`hearing, the respondentfiles a nonsuit of the challenged cause of action, or the movant files a
`
`withdrawal of the motion.” Subsection (b) of Rule 91la.5 allows for amendment “...if the
`
`respondent amendsthe challenged cause of action at least 3 days before the date of hearing.” But
`
`
`
`2° See MedFin Manager, LLC v. Stone, 613 S.W.3d 624 (Tex. App.—San Antonio 2020); See also, Black v.
`Woodrick, 2021 WL 1113149, fn.5 (Tex. App.—Amarillo 2021, no pet.) (citing MedFin Manager, LLC, 613
`S.W.3d at 628-29.).
`
`Def.’s 91a Am. Motion to Dismiss
`
`PAGE13
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`

`

`neither subsection (a) or (b) of Rule 91a.5 apply to the present situation or allow a transferee state
`
`court to require an additional oral hearing on a movant’s motion that has already been timely heard
`
`or further require that the movant amend his motion after it was already timely heard. Texas
`
`Appellate Courts have held that trial courts cannot consider and rule on amended pleadings that
`
`are filed outside of the 45-day deadline.*° Accordingly, this transferee state court should not have
`
`required Defendant to set an oral hearing on his 91a Motion to Dismiss that was already heard on
`
`March 14, 2022, nor should this Court have subsequently required Defendantto file an Amended
`
`91a Motion to Dismiss to conform with the page limit requirements of this transferee state court
`
`when such amendmentis not allowed under Rule 91a.5.
`
`In any event, the same legal arguments upon which Defendant relies in Defendant’s
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`Amended Motion to Dismiss are also found in Defendant’s Original 91a Motion to Dismiss
`
`and Defendant’s Original Reply in Support of Defendant’s Original 91a Motion to Dismiss
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`Plaintiffs’ Claim for Declaratory Judgment.
`
`Thus,
`
`this State Court,
`
`in accordance with Rule 9la, should considered the original
`
`pleadings on file with the Court and not the amendedpleadings in deciding to rule on Defendant’s
`
`91a Motion to Dismiss, and thereafter issue an order granting Defendant’s 91a Motion to Dismiss
`
`Plaintiffs’ Claim for Declaratory Judgment.
`
`CONCLUSION
`
`In summary, Plaintiffs clearly misunderstand federal copyright law and the state court’s
`
`lack ofjurisdiction to determine copyright ownership that 1s grounded in a dispute of authorship.
`
`Indeed, Plaintiffs’ absurd factual allegations and claims for declaratory relief as presented in
`
`
`
`3° See MedFin Manager, LLC v. Stone, 613 S.W.3d 624 (Tex. App.—San Antonio 2020).
`
`Def.’s 91a Am. Motion to Dismiss
`
`PAGE14
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`

`

`Plaintiff's First AmendedPetition, in the words of the United States Supreme Court’s decision in
`
`Ashcroft v. Iqbol, “def[ies] reality as we know it...[with the like of] claims about little green men,
`
`or the plaintiffs recent trip to Pluto, or experiencesin timetravel.
`
`9931
`
`“Ground control to Major Tom” - please ask the Plaintiffs to return to Earth where claims
`
`of copyright ownership grounded in disputes of authorship can only be heard in a federal district
`
`court.
`
`PRAYER
`
`Forall of the above reasons, Defendant Cuevas prays that the Court grants Defendant's
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`91a motion to dismiss Plaintiff's claim for declaratory relief.
`
`Respectfully submitted,
`ZL
`
`Clan
`
`
`
`David Chase LanCarte
`Texas Bar No. 24082464
`LanCarte Law, PLLC
`2817 West End Ave., Suite 126-276
`Nashville, Tennessee 37203
`Tel: 214-935-2430
`
`Fax: 214-934-2450
`chase@lancartelaw.com
`
`/s/ Marcus C. Marsden, Jr.
`
`
`MARCUS C. MARSDEN, JR.
`State Bar No. 13014200
`
`marcus@colanerifirm.com
`THE COLANERI FIRM,P.C.
`524 E, Lamar Blvd, Suite 280
`Arlington, Texas 76011
`Phone: 817-640-1588
`
`Fax: 817-640-1680
`ATTORNEYS FOR DEFENDANT
`MOISES CUEVAS, JR.
`
`
`
`31 See Ashcroft v. Iqbal, 556 U.S. 662,695 (2009).
`
`Def.’s 91a Am. Motion to Dismiss
`
`PAGE15
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`

`

`CERTIFICATE OF SERVICE
`
`I do hereby certify that I have forwardeda true and correct copy of the above and foregoing
`pleading in this cause to all counsel of record aslisted below, on this 25" day of July, 2022.
`
`David N. Calvillo
`TX State Bar No. 03673000
`1200 Smith Street, Suite 1400
`Houston, TX 77002
`
`Angel V. Mata
`TX State Bar No. 24063940
`512 S. Fitzhugh Avenue
`
`Dallas,TX75223
`
`CeeF
`
`
`
`David Chase LanCarte
`
`Def.’s 91a Am. Motion to Dismiss
`
`PAGE16
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`

`

`Automated Certificate of eService
`This automatedcertificate of service was created bythe efiling system. The filer served this
`document via email generated by the efiling system on the date and to the personslisted below.
`The rules governing certificates of service have not changed. Filers muststill provide a certificate
`of service that complies with all applicable rules.
`
`David LanCarte
`
`Bar No. 24082464
`chase@lancartelaw.com
`Envelope ID: 66632492
`Status as of 7/25/2022 2:11 PM CST
`
`Associated Case Party: MOISES CUEVAS
`Name
`BarNumber
`Email
`
`David LanCarte
`
`24082464
`
`chase@lancartelaw.com
`
`TimestampSubmitted
`7/25/2022 1:43:05 PM
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`SENT
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