120206.000001 4814-7329-4564.1

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

JONATHAN VILLAREAL, 

individually and derivatively on behalf of

ZROBLACK LLC, 

Plaintiff, 

v.

JOHN SAENZ; MIGUEL VILLAREAL, 

JR.; and GUNN, LEE & CAVE, P.C.; 

Defendants. 

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No. 5:20-CV-00571-OG

DEFENDANT JOHN SAENZ’S MOTION FOR LEAVE TO FILE SUR-REPLY 

IN SUPPORT OF HIS RESPONSE IN OPPOSITION TO 

PLAINTIFF’S FIRST AMENDED APPLICATION FOR SEIZURE, TEMPORARY 

RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND PERMANENT 

INJUNCTIVE RELIEF 

Defendant John Saenz (“Saenz”), through his undersigned counsel, hereby submits this 

Motion for Leave to File a Sur-Reply in Support of his Response in Opposition to Plaintiff’s First 

Amended Application for Seizure, Temporary Restraining Order, Preliminary Injunction, and 

Permanent Injunctive Relief. In support thereof, Saenz states as follows. 

In his Reply to Defendant John Saenz’s Response in Opposition to Plaintiff’s First 

Amended Application for Seizure, Temporary Restraining Order, Preliminary Injunction, and 

Permanent Injunctive Relief (“Reply”), Plaintiff—for the first time—alleges new facts in support 

of his Application. See Reply at ¶¶ 3–9 (ECF No. 44) (alleging that Plaintiff “remotely accessed 

[Saenz’s] computer and uploaded the text files containing ZroBlack’s proprietary code to the 

Evernote application”). Plaintiff also—for the first time—attaches new purported evidence and 

four new exhibits, including a new six-page unsworn declaration of Plaintiff. See ECF No. 44-1–

44-4. Where a party attempts to present new evidence at the reply stage, a sur-reply is warranted. 

See Nat'l Liab. & Fire Ins. Co. v. Young, No. 6:19-CV-031-H, 2020 U.S. Dist. LEXIS 199854, at 

Case 5:20-cv-00571-OLG Document 53 Filed 04/06/21 Page 1 of 3
Page 2

*3-6 (N.D. Tex. April 24, 2020) (noting that a sur-reply is appropriate when the movant raises new 

legal theories or attempts to present new evidence at the reply stage); Johnson Controls v. A.M. 

Goodson Co., No. SA-04-CA-473-FB, 2006 U.S. Dist. LEXIS 103560, at *5 (W.D. Tex. March 

9, 2006) (overruling objections to a sur-reply filed to address new evidence attached to a reply). 

Because Plaintiff alleges new facts and presents new evidence for the first time in his 

Reply, a brief sur-reply is warranted for the limited purpose of responding to the new facts and 

evidence. Counsel for Saenz has conferred with counsel for Plaintiff about the relief requested 

herein. Although counsel for Plaintiff has not provided a final decision regarding whether Plaintiff 

is opposed, Saenz is filing this motion as opposed so that the Court may consider this motion at 

the hearing on April 13, 2021. Saenz respectfully requests that the Court grant leave to file the SurReply in Support of his Response in Opposition to Plaintiff’s First Amended Application for Seizure, 

Temporary Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief attached 

hereto as Exhibit “A.” 

Respectfully submitted this 6th day of April 2021. 

By: /s/ Ryan J. Sullivan

David A. Vanderhider 

State Bar No. 24070787 

DVanderhider@dykema.com 

Ryan J. Sullivan 

State Bar No. 24102548 

RSullivan@dykema.com 

DYKEMA GOSSETT PLLC 

112 East Pecan St., Suite 1800 

San Antonio, Texas 78205 

(210) 554-5500 – Telephone 

(210) 226-8395 – Facsimile 

Attorneys for John Saenz

Case 5:20-cv-00571-OLG Document 53 Filed 04/06/21 Page 2 of 3
Page 3

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing was electronically filed with the Court on the 

6th day of April 2020, and electronically served on the date reflected in the ECF system upon all 

parties registered to receive notice pursuant to the Court’s CM/ECF system. 

By: /s/ Ryan J. Sullivan 

Ryan J. Sullivan 

Case 5:20-cv-00571-OLG Document 53 Filed 04/06/21 Page 3 of 3