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. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

No. 5:20-CV-00571-OG

DEFENDANT JOHN SAENZ’S MOTION TO DISMISS 

PLAINTIFF’S FIRST AMENDED VERIFIED COMPLAINT AND APPLICATION FOR 

SEIZURE, TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, 

AND PERMANENT INJUNCTIVE RELIEF 

______________________________________________________________________________ 

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant John Saenz (“Saenz”) hereby 

submits this Motion to Dismiss Plaintiff’s First Amended Verified Complaint (the “Complaint”) filed 

at ECF No. 33 (sealed) and ECF No. 35 (redacted), and Plaintiff’s First Amended Application for 

Seizure, Temporary Restraining Order, Preliminary Injunction, and Permanent Injunctive Relief (the 

“Application”) filed at ECF No. 34 (sealed), ECF No. 35-1 (redacted), and ECF No. 37 (redacted). 

INTRODUCTION 

The Complaint alleges that ZroBlack is an entity formed between Plaintiff and Saenz to 

monetize Plaintiff’s expertise in accessing data remotely and the software code created to that effect. 

Compl. (ECF No. 35) at ¶¶1, 22. Saenz, in turn, successfully performed his business role by securing 

a lucrative contract with the Foreign Customer,1 which Plaintiff had previously pursued to no avail. 

1

 In the Original Complaint, Plaintiff referred to ZroBlack’s foreign customer as the “Foreign 

Customer.” In its redacted First Amended Complaint, Plaintiff redacted the name of the same 

Foreign Customer. For ease of reference and because of Plaintiff’s redactions, Saenz maintains the 

reference to “Foreign Customer” in this document. 

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Compl. at ¶¶18-19, 22, 29-30; Company Agreement (ECF No. 35-4) (ZroBlack was formed with 

Saenz as a 50% owner on January 14, 2019); PSA with Foreign Customer (ECF No. 35-8) (contract 

Saenz signed on behalf of ZroBlack effective April 15, 2019, with $1.5 million payment to ZroBlack 

up front and continuing earn-out payments thereafter). 

The basis for Plaintiff’s claims against Saenz now, however, is that Plaintiff and ZroBlack are 

allegedly unable to do any business because Saenz remains in possession of a singular laptop and 

continues to have access to a GoDaddy account that housed the zroblack.com website and email 

“server”2—each of which were known by Plaintiff to be in Saenz’s possession long before he and 

Saenz agreed to part ways via a comprehensive release agreement. Compl. at ¶¶2–5, 21–22, 27. At 

the same time, the Complaint alleges that ZroBlack continues to move forward with its Foreign 

Customer in pursuing (reasonably probable) contracts with other third parties related to the software 

code—code that apparently became the proprietary information of the Foreign Customer per the 

terms of the PSA—despite Plaintiff not having access to the subject laptop, website or email account 

for over 16 months. Compl. at ¶¶40, 118. These conflicting allegations make clear that Plaintiff has 

not been precluded from doing business and has not sustained any damages caused by Saenz. Rather, 

the reality is that, “soon after” securing the contract with the Foreign Customer with the result that 

the proprietary information no longer could be sold by ZroBlack, Plaintiff realized Saenz’s business 

marketing role was no longer necessary and informed Saenz that he wished to dissolve the company. 

Compl. at ¶¶43, 53. Now, long after Saenz agreed to Plaintiff’s demand to part ways and to settle their 

2

 For clarification purposes, the email “server” referenced throughout the Complaint and 

Application is more accurately described as an email subscription service (rather than a physical 

device) hosted by GoDaddy. Decl. of J. Villareal (ECF No. 35-2) at ¶10 (“GoDaddy hosted 

ZroBlack’s website and email server.”). 

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differences via a comprehensive release, Plaintiff inexplicably brings this lawsuit in an attempt to set 

aside the terms of their arms-length transaction. 

However, because the release broadly encompasses and precludes Plaintiff’s claims in their 

entirety, and additionally because the allegations in the Complaint fail to state a claim for which relief 

can be granted, the Complaint should be dismissed with prejudice pursuant to Federal Rule of Civil 

Procedure 12(b)(6). 

BACKGROUND 

The present dispute arises out of a business, ZroBlack, LLC (“ZroBlack”), that was jointly 

founded by Saenz and Plaintiff. Compl. at ¶¶20–23. Saenz and Plaintiff were the only two members 

of ZroBlack, each owning fifty percent. Compl. at ¶22. Plaintiff provided technical expertise, while 

Saenz served as Chief Executive Officer and handled business marketing, negotiations, and 

financial matters. Compl. at ¶¶20, 22. After successfully securing a large contract with the Foreign 

Customer, Saenz and Plaintiff began to disagree regarding ZroBlack. Compl. at ¶¶19, 20, 29-30, 

43. To resolve their disagreements, Saenz, Plaintiff, and ZroBlack entered into a written release 

(“Release”). Compl. at ¶72–75, 82; see also Release (ECF No. 35-16). 

Pursuant to the Release, Saenz and Plaintiff agreed to split certain future earn-out payments 

from the Foreign Customer at a rate of 12.5/14.5 going to Plaintiff, and 2/14.5 going to Saenz. 

Compl. at ¶72; Release at § 2. Most importantly, Saenz, Plaintiff, and ZroBlack fully released each 

other “from all claims and demands, known or unknown”: 

Each Party hereby fully releases the other Parties from all claims and demands, known 

or unknown. Each Party understands that, as to claims that are known to that Party 

when the release is signed, any statutory provisions that would otherwise apply to 

limit this general release are hereby waived. Each Party also understands that this 

release extends to claims and demands that are not known at the time this release is 

signed. This release additionally applies to each Party’s heirs, legal representatives, 

attorneys, assignees, owners, members, managers, directors, employees, spouses, and 

successors, and is binding on each Party’s heirs, legal representatives, attorneys, 

assignees, owners, members, managers, directors, employees, spouses, and 

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successors. Each Party represents that it has not assigned any such claims or demands 

against the other Parties. 

Release at § 7. Saenz and Plaintiff signed the Release on August 9, 2019, both on behalf of 

themselves individually and as members of ZroBlack. Release at p.6. 

Now, months after signing the Release, Plaintiff asserts nine claims against Saenz: (1) 

misappropriation of trade secrets, (2) computer fraud and abuse, (3) violation of the AntiCybersquatting Consumer Protection Act, (4) breach of contract, (5) breach of fiduciary duties, (6) 

tortious interference with prospective relations, (7) conversion, (8) theft, and (9) fraud. Compl. at 

¶¶137-199, 232-262. Plaintiff further seeks a declaration that the ZroBlack Operating Agreement and 

Release be set aside for fraud, illegality, and/or mutual mistake, as well as injunctive relief in the form 

of seizure of Saenz’s computer, a temporary restraining order, a preliminary injunction, and a 

permanent injunction. Compl. at ¶¶263-66; Application at ¶153 (ECF No. 35-1). 

In particular, Plaintiff alleges four actions by Saenz that form the factual basis for each of the 

claims asserted in the Complaint and the entirety of the Application: (1) Saenz maintains possession 

of a laptop that is allegedly the property of ZroBlack; (2) Saenz allegedly maintains access to 

and/or control of the zroblack.com webpage and email “server”; (3) Saenz received $740,000 from 

a shared ZroBlack account; and (4) prior to forming ZroBlack, Saenz allegedly misrepresented to 

Plaintiff his skills, experience and connections. Compl. at ¶¶2-5, 20, 67, 150, 261; Application at 

¶¶2-5, 12, 27, 73, 87, 89. As discussed further below, each of the complained-of actions and claims 

are subject to the Release, which bars each of Plaintiff’s claims. Release at § 7. Additionally, and 

in the alternative, even if the parties had not fully released each other from all claims and demands 

and even after obtaining leave to replead, Plaintiff fails to state claims upon which relief can be 

granted. Accordingly, the Complaint and Application should be dismissed with prejudice. 

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ARGUMENT

Federal Rule of Civil Procedure 12(b)(6) serves as a defense to pleadings that “fail[] to 

state a claim upon which relief may be granted.” To survive dismissal pursuant to Rule 12(b)(6), 

a complaint’s factual allegations must consist of more than mere speculation. Malik v. Cont’l 

Airlines, Inc., 305 F. App’x 165, 167 (5th Cir. 2008). Dismissal of a complaint “is appropriate 

when the plaintiff has not alleged enough facts to state a claim to relief that is plausible on its face 

and has failed to raise a right to relief above the speculative level.” Shakeri v. ADT Sec. Servs., 

816 F.3d 283, 290 (5th Cir. 2016). A court need not accept a plaintiff’s “conclusory allegations, 

unwarranted factual inferences, or legal conclusions.” Flying Crown Land Grp. v. Reed, No. 3:15-

CV-1225-M, 2015 U.S. Dist. LEXIS 104978, at *2 (N.D. Tex. Aug. 11, 2015). 

I. THE RELEASE IS A COMPLETE BAR TO PLAINTIFF’S CLAIMS. 

The Court should dismiss the Complaint and Application as to Saenz because the Release 

bars Plaintiff’s claims.3 Courts in the Fifth Circuit recognize “the strong policy favoring the 

resolution of disputes among opposing parties.” Martin v. Brown Sch. Educ. Corp., No. 3:02-CV0144-G, 2003 U.S. Dist. LEXIS 3942, at *18 (N.D. Tex. Mar. 14, 2003); see also Chaplin v. 

Nationscredit Corp., 307 F.3d 368, 373 (5th Cir. 2002) (“Public policy favors voluntary settlement 

of claims and enforcement of releases.”). To that end, the Fifth Circuit has explained that 

“settlement agreements and releases are a complete bar to any later action based on matters 

included therein.” White v. Grinfas, 809 F.2d 1157, 1160 (5th Cir. 1987). 

The rules of contract interpretation apply to releases, such as the Release at issue here. See 

URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763 (Tex. 2018). Courts must give effect to a contract’s 

3

 The one exception to the Release’s complete bar on all claims is a claim for breach of the Release 

itself. Though Plaintiff claims Saenz breached the Release, this claim fails for the reasons 

discussed in Section III.D herein. 

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clear terms as they are written. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994) 

(“When construing a contract, the court’s primary concern is to give effect to the written expression 

of the parties’ intent.”). Courts may not “interpolate or . . . eliminate terms of material legal 

consequence.” Dahlberg v. Holden, 238 S.W.2d 699, 701 (Tex. 1951). A party to a contract is 

presumed to know its terms. Perez v. Lemarroy, 592 F. Supp. 2d 924, 933 (S.D. Tex. 2008) 

(“Parties to a contract have an obligation to protect themselves by reading what they sign and, 

absent a showing of fraud, cannot excuse themselves from the consequences of failing to meet that 

obligation. Generally, a party who signs a contract is presumed to know its contents.”). 

Therefore, a release is enforceable even if it is “broadly worded.” Southmark Corp. v. 

FDIC, No. 96-11578, 1998 U.S. App. LEXIS 40474, at *9 (5th Cir. Apr. 20, 1998); see also 

Chaplin, 307 F.3d at 373 (“[A] general release of ‘any and all’ claims applies to all possible causes 

of action” unless a statute specifically and expressly requires a release to mention the statute for 

the release to bar a cause of action under the statute). Texas law “does not require particularized 

enumeration or detailed description” of released claims. Stinnett v. Colo. Interstate Gas Co., 227 

F.3d 247, 255 (5th Cir. 2000). A claim is subject to a release as long as the claim falls “within the 

express contemplation of the release provision when viewed in context of the contract in which 

the release provision is contained.” Id. Thus, “a general release that is not limited to a specific 

cause of action or occurrence, and broadly releases all claims and causes of action between two 

parties, is valid and enforceable.” Southmark, 1998 U.S. App. LEXIS 40474, at *11. 

Here, Plaintiff, Saenz, and ZroBlack each undisputedly executed the Release, which is not 

limited to any particular causes of action and, instead, fully and broadly releases each of them 

“from all claims and demands, known or unknown.” Release at §7. Though the Release broadly 

releases all claims and causes of action between Plaintiff, Saenz, and ZroBlack, it is nonetheless a 

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valid and enforceable agreement, as parties are not required to enumerate released claims with 

particularity or with a detailed description. See Chaplin, 307 F.3d at 373. 

Thus, the scope of the Release is sufficiently broad to encompass all claims in existence, 

whether or not then known by Plaintiff. To this point, the Complaint and Application are based on 

four general factual allegations: 

1) Saenz maintains possession of a laptop that is allegedly the property of ZroBlack. See

Compl. at ¶¶158–59 (Count I based on Saenz’s “continued possession” of the laptop); 

id. at ¶169 (Count II based in part on Saenz’s “withholding of the computer”); id. at 

¶181 (Count IV based in part on Saenz’s possession of laptop); id. at ¶244 (Count VIII 

based in part on possession of laptop); id. at ¶250 (Count IX based entirely on Saenz’s 

possession of laptop); id. at ¶255 (Count X based entirely on Saenz’s possession of 

laptop); id. at ¶262 (Count XI based in part on Saenz’s possession of software on 

laptop); Appl. at ¶¶45, 47, 52, 67, 68, 74, 81, 89, 93, 153 (request for seizure and other 

injunctive relief based on Saenz’s possession of laptop); 

2) Saenz allegedly maintains access to and/or control of the zroblack.com domain 

information, e.g., webpage and email “server.” See Compl. at ¶164 (Count II); id. at 

¶¶177–78 (Count III); id. at ¶181 (Count IV); id. at ¶194-95 (Count V); id. at ¶243 

(Count VIII); Appl. at ¶153; 

3) Saenz refuses to give $740,000 to ZroBlack. See Compl. at ¶183 (Count IV); id. at 

¶196-97 (Count V); and 

4) Saenz allegedly misrepresented his skills, experience, and connections to Plaintiff prior 

to forming ZroBlack. See Compl. at ¶¶257, 259, 261-62 (Count XI based on Saenz’s 

alleged misrepresentations). 

As set forth in more detail below, the Complaint makes clear that, long before the Release 

was negotiated and signed, Saenz had already: (1) purchased and assumed control over the subject 

laptop (Compl. at ¶27), (2) established and assumed control over the subject zroblack.com domain, 

inclusive of the webpage and email (Compl. at ¶21), (3) received his portion of the upfront payment 

($740,000.00) from the PSA with the Foreign Customer (Plaintiff also receiving his portion) 

(Compl. at ¶¶35, 46, 53), and (4) allegedly made false representations regarding his business 

experience and government contacts (Compl. at ¶¶20, 149, 257, 276-78). Even more telling is that 

the Complaint acknowledges that Plaintiff had actual knowledge of each of the foregoing at the 

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time of the Release by alleging that “[t]he Consent is part of the Release and [despite no such 

language existing] requires return of the money, the computer and trade secrets, and the domain 

name, webpage, and email server.” Compl. at ¶78. 

Accordingly, the Release is a complete bar to Plaintiff’s claims, the underlying bases for 

which already existed at the time of signature. Indeed, Plaintiff correctly points out that the 

Release, which was negotiated and entered into because of these precise disputes between Plaintiff 

and Saenz, “made no express provision for the return of the $740,000 to ZroBlack, . . . no express 

requirement that Saenz return property to ZroBlack, . . . [and] did not have an express provision 

requiring the return of ZroBlack’s domain name, webpage, and email server.” Decl. of J. Villareal 

(ECF No. 35-2) at ¶33. The reason for this is that the parties instead chose to resolve their 

differences by releasing each other from “all claims and demands, known or unknown.” Release 

at § 7 (emphasis added). 

Saenz respectfully submits that the Court should recognize the public policy favoring 

finality in the “voluntary settlement of claims and enforcement of releases,” Chaplin, 307 F.3d at 

373, and enforce the Release’s comprehensive bar against all claims and demands, known or 

unknown, by Plaintiff and ZroBlack against Saenz. For these reasons, the Complaint and 

Application should be dismissed with prejudice as to Saenz in their entirety. 

A. Plaintiff released Saenz from all claims and demands based upon Saenz’s 

possession of the laptop. 

The Court may not grant relief based on Saenz’s possession of the laptop because Plaintiff 

knew Saenz possessed the laptop when Plaintiff signed the Release. Since at least May 2, 2019, 

Plaintiff has known that Saenz purchased the laptop and maintained its possession. See May 2, 

2019 email from J. Saenz (ECF No. 35-6) at pp. 1–6. Plaintiff further knew that the laptop allegedly 

contains “trade secrets.” Decl. of J. Villareal at ¶¶14-15, 45. Therefore, when Plaintiff released 

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Saenz from “all claims and demands, known or unknown,” he knew that Saenz purchased and 

possessed the laptop and that, according to Plaintiff, it allegedly contained “trade secrets.” Release 

at § 7. 

Plaintiff may not now obtain relief from this Court based on a known claim subject to the 

Release. See Chaplin, 307 F.3d at 373, 376 (affirming summary judgment based on broad release 

language). Even if Plaintiff had not known that Saenz possessed the laptop, the Release would still 

bar relief because the Release broadly encompasses “all claims and demands, known and 

unknown.” Release at §7 (“Each Party also understands that this release extends to claims and 

demands that are not known at the time this release is signed.”). Thus, Plaintiff is not entitled to 

any relief based on Saenz’s possession of the laptop for two independent reasons: (1) Plaintiff is 

seeking relief from this Court based on a known claim subject to the Release, and (2) the Release 

broadly bars all claims and demands, known and unknown. 

B. Plaintiff released Saenz from all claims and demands based upon Saenz’s alleged 

access to and/or control of the zroblack.com website and/or email. 

The Court may not grant relief based on Saenz’s alleged access to and/or control of the 

zroblack.com domain, inclusive of the website and email, because Plaintiff knew Saenz had access 

to and/or control of the same when Plaintiff signed the Release. Pursuant to Plaintiff’s own 

declaration, Plaintiff knew that Saenz had access to the zroblack.com website and email since 

January 2019. Decl. of J. Villareal at ¶10 (“Saenz agreed to purchase ZroBlack’s domain name, 

zroblack.com, from GoDaddy .... [O]n January 11, 2019, Saenz reserved ZroBlack’s domain 

name, www.zroblack.com, from GoDaddy on behalf of ZroBlack .... GoDaddy hosted ZroBlack’s 

website and email server.”). Thus, when Plaintiff signed the Release, he knew that Saenz 

purchased and held the zroblack.com website and email from GoDaddy yet did not think it was 

necessary to require the return of the same. See Compl. at ¶¶74–75. The Release therefore bars 

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Plaintiff’s claims based on Saenz’s access to or control of the zroblack.com website and/or email. 

See Chaplin, 307 F.3d at 373, 376. Moreover, even if Plaintiff had not known that Saenz held the 

zroblack.com website or email, the Release would still bar relief because its broadly encompasses 

“all claims and demands, known and unknown.” Release at § 7. 

Thus, Plaintiff is not entitled to any relief based on Saenz’s alleged control of or access to 

the zroblack.com website and/or email for two independent reasons: (1) Plaintiff is seeking relief 

from this Court based on a known claim subject to the Release, and (2) the Release broadly bars 

all claims and demands, known and unknown. 

C. Plaintiff released Saenz from all claims and demands based upon Saenz’s receipt 

and possession of $740,000. 

The Court may not grant relief based on Saenz’s alleged refusal to return money to 

ZroBlack because the dispute regarding money predates the Release. In April 2019, after the 

Foreign Customer paid ZroBlack $1.5 million, ZroBlack distributed $740,000 each to Plaintiff and 

Saenz. Compl. at ¶¶31-34; see also ECF No. 35-9. Plaintiff’s own declaration reveals that Plaintiff 

had “concerns” about Saenz’s receipt of these funds prior to July 2019. Decl. of J. Villareal at 

¶¶26-27. Plaintiff and Saenz discussed their dispute concerning Saenz’s receipt of $740,000 in 

June and July 2019. Id. at ¶¶30-31; see also text messages (ECF No. 35-28, ECF No. 35-12). Only 

after Plaintiff and Saenz disagreed on how to qualify the $740,000 payment to Saenz did “the two 

members decide[] it was time to part ways.” Compl. at ¶67. Therefore, Plaintiff’s claims 

concerning Saenz’s receipt of funds were indisputably “known” to Plaintiff when he signed the 

Release in August 2019, and the Release bars all claims based upon Saenz’s receipt and possession 

of $740,000. See Chaplin, 307 F.3d at 373, 376 (affirming summary judgment based on broad 

release language). 

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Thus, Plaintiff is not entitled to any relief based on Saenz’s alleged refusal to return money 

to ZroBlack for two independent reasons: (1) Plaintiff is seeking relief from this Court based on a 

known claim subject to the Release, and (2) the Release broadly bars all claims and demands, 

known and unknown. 

D. Plaintiff released Saenz from all claims and demands based upon Saenz’s alleged 

misrepresentation of his experience and/or business contacts. 

The Court may not grant relief based on Saenz’s alleged misrepresentations to Plaintiff 

regarding his business experience and/or contacts because such alleged communications predate 

the Release, and indeed Plaintiff’s business relationship with Saenz altogether. The Complaint and 

Plaintiff’s own declaration allege that Saenz represented “he had the business experience and 

government contacts to market the technology to the government” and that “he could use his 

‘contacts’ in the military and technology business sectors to bolster sales” prior to ZroBlack even 

being formed to market the subject software to the Foreign Customer. Compl. at ¶¶276-278; Decl. 

of J. Villareal at ¶9. Thereafter, in June and July 2019, Plaintiff expressed concerns about Saenz’s 

alleged lack of performance and alleged inability or refusal to work for ZroBlack, and the parties 

then decided to “part ways.” Decl. of J. Villareal at ¶¶ 26, 31-32; see also Coml. at ¶43. Plaintiff 

also contends that, in July 2019, Saenz was told that he had breached his fiduciary duty to 

ZroBlack. Compl. at ¶58. Accordingly, Plaintiff’s claims concerning Saenz’s alleged 

misrepresentations were indisputably “known” to Plaintiff when he signed the Release in August 

2019, and the Release bars all claims based upon such alleged representations. See Chaplin, 307 

F.3d at 373; Wright v. Sydow, 173 S.W.3d 534, 546 (Tex. App.—Houston [14th Dist.] 2004, pet. 

denied) (“[Plaintiffs] cannot establish their fraud claim because they knew about the alleged 

fraudulent acts before they executed the Settlement Agreement.”). 

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Thus, Plaintiff is not entitled to any relief based on Saenz’s alleged misrepresentations to 

Plaintiff for two independent reasons: (1) Plaintiff is seeking relief from this Court based on a 

known claim subject to the Release, and (2) the Release broadly bars all claims and demands, 

known and unknown. 

II. THE OPERATING AGREEMENT AND RELEASE ARE NOT VOID OR VOIDABLE AND SHOULD 

NOT BE SET ASIDE.

Plaintiff asks the Court to: (1) set aside an “Operating Agreement” on the basis that it was 

induced by fraud, thereby allegedly voiding Saenz’s prior interest in ZroBlack, and (2) also set 

aside the Release due to an alleged violation of the Texas Professional Rules of Disciplinary 

Conduct by Saenz’s co-defendants and/or because of an alleged mutual mistake. Compl. at ¶¶265-

66, 282, 300, 302. 

The sole basis by which Plaintiff asks the Court to set aside the Operating Agreement due 

to fraud is the allegation that Saenz did not have the skill, experience, or contacts to act as the CEO 

of ZroBlack despite alleged representations to the contrary. Compl. at ¶¶268-69, 274, 276; 

Operating Agreement (ECF No. 35-4). Such representations, to the extent they could have been 

made, necessarily would have been made at or near the time ZroBlack was formed and before the 

Release, and are thus covered by the Release. Compl. at ¶¶276-278; Decl. of J. Villareal at ¶9 

(alleging that in December 2018, Saenz claimed he could fill “voids” and represented that he had 

the experience and contacts to market the technology to the government”); Id. at ¶¶ 26-28, 31-32 

(Plaintiff expressing concerns in June and July 2019 about Saenz’s alleged failures and alleged 

inability or refusal to work for ZroBlack); Release (executed on August 9, 2019). Accordingly, 

any complaints about the formation of, or inducement for, the Operating Agreement were released. 

Plaintiff’s argument is further without merit because, as is discussed in more detail in 

Section III.I, infra, Plaintiff has failed to state with particularly the alleged circumstances 

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constituting fraud. FED. R. CIV. P. 9(b). In fact, each of these conclusory and alleged 

misrepresentations are, on their face, mere opinions regarding Saenz’s ability to help grow 

ZroBlack’s business and are, therefore, not actionable. Clardy Mfg. Co. v. Marine Midland Bus. 

Loans, 88 F.3d 347, 359 (5th Cir. 1996); see also Compl. at ¶¶268-69, 273-76. 

Plaintiff next contends that the Release, which was mutual and not one-sided, should be 

set aside due to an alleged breach of fiduciary duty by Defendants Miguel Villareal and Gunn, Lee 

& Cave, P.C. (“Law Firm Defendants”) resulting from an alleged conflict of interest in 

representing both Saenz and Plaintiff. Compl. at ¶¶290-301. Even if the Court were to somehow 

find that the Law Firm Defendants violated the Texas Professional Rules of Disciplinary Conduct 

as Plaintiff alleges, however, such a violation would not void the otherwise valid Release. See 

Wright v. Sydow, 173 S.W.3d 534, 549 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (“A 

violation of the Disciplinary Rules does not necessarily establish a cause of action, nor does it void 

an otherwise valid contract executed outside of the attorney-client relationship.”). 

Additionally, Plaintiff’s conclusory allegations of fraudulent inducement on the part of the 

Law Firm Defendants are also not described with particularity, as is required under Federal Rule 

of Civil Procedure 9(b), nor is there any authority that would support of the argument that the 

Release should be set aside for such purported fraud or any related breach of fiduciary duty. Compl. 

at ¶¶286, 300. On the contrary, the Release itself: (1) clearly articulates the entirety of the 

compensation and obligations contemplated therein, with no mention of any return of the subject 

funds, computer, email accounts, or website domain, (2) additionally states that it applies to claims 

“known or unknown,” and (3) is “irrevocable as of the Effective Date.” Release at §§ 2, 6, 7, 8. 

Plaintiff’s conclusory allegations of fraudulent inducement as to “how the $740,000 would be 

treated, what Saenz would do, and how the parties to the Release would proceed after the 

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execution” are, therefore, “directly contradicted by the contract’s terms” and cannot support 

justifiable reliance as a matter of law. Compl. at ¶286; Mercedes-Benz USA, LLC v. Carduco, Inc., 

583 S.W.3d 553, 559 (Tex. 2019). 

Furthermore, Plaintiff has judicially admitted in his Original Complaint that any conflicts 

of interest on behalf of the Law Firm Defendants were previously addressed in a waiver of conflict 

letter, which Plaintiff himself notes would constitute an exception to Texas Disciplinary Rule of 

Professional Conduct 1.06. See Original Complaint (ECF No. 1) at ¶32 (“Mike represented both 

Jonathan and Saenz and issued a waiver of conflict letter”); Compl. at ¶293. Plaintiff cannot now 

avoid this admission simply by omitting it from his Amended Complaint. Andrews v. Metro N. C. 

R. Co., 882 F.2d 705, 707 (2nd Cir. 1989) (“The amendment of a pleading does not make it any 

the less an admission of the party.”); see Compl. at ¶68 (omitting “and issued a waiver of conflict 

letter” from paragraph 32 to Plaintiff’s Original Complaint). 

Plaintiff further asks the Court to set aside the Release on the basis of mutual mistake. 

Compl. at ¶¶302-05. Plaintiff alleges that that “the mutual mistake was disposition of the $740,000, 

with Saenz believing he could keep it, and Jonathan believing it would be returned to ZroBlack.” 

Compl. at ¶303. However, as Plaintiff admits, the Release “made no express provision for the 

return of the $740,000 to ZroBlack.” Compl. at ¶73. Rather, the plain language of the Release 

states that Plaintiff releases Saenz from “all claims and demands, known or unknown.” Release at 

§7. That Plaintiff subjectively believed Saenz would return the $740,000 to ZroBlack, even if true, 

would not render the Release void for mutual mistake. See White v. Grinfas, 809 F.2d 1157, 1160 

(5th Cir. 1987) (“The failure of the parties to understand the scope of the release when the language 

is unambiguous, as it is here, does not support a finding of mutual mistake.”). 

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III. ADDITIONALLY, AND IN THE ALTERNATIVE, PLAINTIFF FAILS TO STATE ADEQUATE BASES 

FOR THE RELIEF REQUESTED.

Even if the Court were to set aside the Release, Plaintiff’s Complaint and Application fail 

for failure to state claims upon which relief may be granted. Where a complaint fails to allege facts 

to support the essential elements of a claim, dismissal pursuant to Federal Rule of Civil Procedure 

12(b)(6) is proper. See Land & Bay Gauging, L.L.C. v. Shor, 623 F. App’x 674, 683 (5th Cir. 

2015). Here, even after an opportunity to amend, Plaintiff’s factual allegations fail to support 

Plaintiff’s causes of action. 

A. Plaintiff’s claim for violations of the DTSA and TUTSA fails. 

Plaintiff brings a cause of action for Saenz’s alleged violation of the Defend Trade Secrets 

Act, 18 U.S.C. § 1836 (“DTSA”) and the Texas Uniform Trade Secrets Act (“TUTSA”). Compl. 

at ¶¶137-161. A claim for violation of DTSA or TUTSA requires the plaintiff to prove that the 

defendant misappropriated a trade secret by acquiring it through “theft, bribery, misrepresentation, 

breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic 

or other means.” 18 U.S.C. §§ 1836, 1839(5), 1839(6); see also TEX. CIV. PRAC. & REM. CODE § 

134A.001 et seq. Lawful means of acquisition does not constitute misappropriation. 18 U.S.C. § 

1839(6)(B); TEX. CIV. PRAC. & REM. CODE § 134A.002(2). 

The only alleged trade secrets that Plaintiff identifies are: (1) the software code and 

hardware allegedly contained on the laptop, and (2) login and password information for accessing 

the GoDaddy account. Compl. at ¶144. In particular, Plaintiff alleges that Saenz misappropriated 

ZroBlack’s trade secrets by refusing “to return the ZroBlack laptop that contained the software 

code and schematics for the hardware.” Compl. at ¶¶158-159. However, Plaintiff does not allege 

that Saenz acquired the purported trade secrets by theft, bribery, misrepresentation, breach of a 

duty to maintain secrecy, or espionage. Plaintiff alleges just the opposite, i.e., that Saenz purchased 

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the laptop “[i]n connection with his duties as CEO” of ZroBlack. Compl. at ¶27.4 Likewise, 

Plaintiff alleges that, while Saenz was a member of ZroBlack, Saenz “agreed to purchase 

ZroBlack’s domain name, www.zroblack.com, from GoDaddy” and provided Plaintiff with access 

to the GoDaddy account. Compl. at ¶21. Thus, when Saenz acquired the laptop and the 

zroblack.com credentials, he did so through lawful means—and certainly with Plaintiff’s 

knowledge and consent. Because Plaintiff fails to plead facts supporting an essential element of 

the DTSA and TUTSA claims, the Court should dismiss them with prejudice. 

Furthermore, the damages alleged by Plaintiff as resulting from any misappropriation of 

trade secrets cannot support a cause of action because they are wholly conclusory and speculative. 

Compl. at ¶161 (alleging that “Saenz’s actions have caused ZroBlack to lose major contracts 

because he holds the key to the domain name” and “Jonathan has been unable to update the DUNS 

information confirming ZroBlack’s ownership causing it to lose contracts”); see also Principia 

Partners LLC v. Swap Fin. Grp., LLC, No. 18 Civ. 7998 (AT), 2019 WL 4688711, at *11 (S.D. 

N.Y. Sept. 26, 2019) (“The claim that Plaintiff has suffered damages due to misappropriation of 

trade secrets is wholly conclusory. The Court concludes, therefore, that Plaintiff has failed to state 

a claim under the DTSA.”). Moreover, these allegations are based on the false premise that Plaintiff 

could not unilaterally update ZroBlack’s DUNS account information, despite the fact that he was 

specifically advised otherwise by federal agencies on multiple occasions, as set forth in n.7, infra. 

4

 While Plaintiff alleges that Saenz made false promises and misrepresentations, these allegations 

relate solely to Saenz’s ability to obtain government contracts for ZroBlack. See Compl. at ¶¶149-

155. In addition to the fact that this alleged conduct clearly predates the Release and is subject to 

the Release, this alleged conduct does not relate, in any way, to Saenz acquiring the purported 

trade secrets (software code and hardware schematics on the laptop and the GoDaddy account 

credentials). To the contrary, Saenz’s ability to obtain government contracts is not alleged to be 

ZroBlack’s trade secret, and it has nothing to do with the acquisition of the laptop or the GoDaddy 

credentials at issue. 

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The Court should dismiss Plaintiffs’ claims under the DTSA and TUTSA for these additional 

reasons as well. 

B. Plaintiff’s claim for violation of the CFAA fails. 

Plaintiff brings a cause of action for Saenz’s alleged violation of the Computer Fraud and 

Abuse Act, 18 U.S.C. § 1030(g) (“CFAA”). Compl. at ¶¶162-173. To prevail on a CFAA claim, 

Plaintiff must prove that Saenz accessed a computer without authorization. 18 U.S.C. § 1030(a). 

Plaintiff’s factual allegations regarding the alleged access to and deletion of the zroblack.com 

webpage and email account are not actionable under the CFAA because they have nothing to do 

with unauthorized access to any particular computer. Plaintiff has not stated which computer Saenz 

allegedly used, when Saenz allegedly accessed that computer, and why Saenz was not authorized 

to access that particular computer. With regard to accessing the laptop at issue, Plaintiff alleges 

that, after the Release was signed and the parties parted ways, “Saenz’s authorization to access the 

laptop was revoked.” Compl. at ¶¶166, 169. However, Plaintiff does not allege how Saenz’s 

authorization allegedly was revoked, who allegedly revoked it, who, if anyone, then possessed 

authority to access the laptop, or even when and how Saenz has accessed the laptop. Plaintiff also 

does not allege that Saenz used the laptop—as opposed to any other authorized computer—to 

allegedly access and delete the zroblack.com webpage or email, which destroys any causal nexus 

between the facts alleged (deletion of the webpage and email account) and the statutory 

requirements (unauthorized access to a protected computer). Further, Plaintiff’s own verified 

documents show that Saenz purchased the laptop and consistently maintained possession. See May 

2, 2019 email from J. Saenz (ECF No. 35-6) at pp. 1–6 (Plaintiff does not allege that Saenz 

purchased the laptop illegally or inappropriately). Because Plaintiff must allege the elements of 

his claims “above the speculative level,” Shakeri, 816 F.3d at 290, Plaintiff’s failure to provide 

more than mere conclusory allegations as to Saenz’s authority or access is fatal to his CFAA claim. 

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Plaintiff’s claim under the CFAA additionally fails because the damages alleged are 

conclusory and speculative in nature and/or are not the type of investigative or service interruption 

damages contemplated by the CFAA. Compl. at ¶164 (making the conclusory statement that 

Plaintiff has lost over $5,000, the statutory threshold for a CFAA claim, without any factual 

support); id. at ¶173 (alleging non-CFAA damages in purported lost contracts for inability to 

update ZroBlack’s DUNS account information); Quantlab Techs. Ltd. (BVI) v. Godlevsky, 719 F. 

Supp. 2d 766, 776 (S.D. Tex. 2010) (“[T]he term ‘loss’ encompasses only two types of harm: costs 

to investigate and respond to a computer intrusion, and costs associated with a service 

interruption.”). Plaintiff’s CFAA claim should be dismissed with prejudice. 

C. Plaintiff’s claim for violation of the ACPA fails. 

Plaintiff brings a cause of action for violation of the Anti-cybersquatting Consumer 

Protection Act, 15 U.S.C. § 1125(d) (“ACPA”). Compl. at ¶¶174-178. The ACPA imposes civil 

liability where a person “has a bad faith intent to profit from” another’s domain name and registers, 

traffics in, or uses a domain name that “is identical or confusingly similar to” another’s domain 

name. 15 U.S.C. § 1125(d). Plaintiff, though, does not allege that Saenz registered, trafficked in, 

or used a domain “identical or confusingly similar to” ZroBlack’s. Rather, according to Plaintiff, 

“Saenz purchased ZroBlack’s [actual] domain name in his capacity as Chief Executive 

Member/CEO and thus purchased it as ZroBlack’s nominee” with Plaintiff’s full knowledge in 

anticipation of forming ZroBlack. See Compl. at ¶192; Decl. of J. Villareal at ¶10. Plaintiff also 

does not allege that Saenz had a bad faith intent to profit from the domain at the time he registered 

the website. For either or both of these reasons, Plaintiff’s claim for alleged violation of the ACPA 

should be dismissed with prejudice. 

Further, although Plaintiff does allege that Saenz presently has bad faith, he fails to state 

more than a conclusory speculation of bad faith and fails to allege that Saenz has actually used the 

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domain or website for profit. Compl. at ¶177. In fact, Plaintiff’s allegations that Saenz has “taken 

the website down,” “deleted the email server,” and allegedly destroyed documents completely 

undercuts Plaintiff’s ACPA claim that Saenz used ZroBlack’s domain with an intent to profit from 

it. Compl. at ¶178. Because conclusory speculation does not defeat a Rule 12(b)(6) motion to 

dismiss—see Shakeri, 816 F.3d at 290; Flying Crown Land Grp., 2015 U.S. Dist. LEXIS 104978, 

at *2—the Court should dismiss Plaintiff’s ACPA claim for this additional reason. 

D. Plaintiff’s claim for breach of contract fails. 

Plaintiff claims Saenz breached the Release and is therefore liable for breach of contract. 

Compl. at ¶¶179-184. Of course, this claim assumes that the Release is a valid and enforceable 

contract rather than an instrument that should be set aside, as Plaintiff also contends in his 

Complaint. Regardless, Plaintiff bases his claim on Saenz’s refusal to return the laptop, the domain 

name, and the $740,000 withdrawal to ZroBlack. Id. at ¶¶181, 183. As Plaintiff himself stated, 

however, the Release “made no express provision for the return of the $740,000 to ZroBlack, . . . 

no express requirement that Saenz return property to ZroBlack, which included . . . a laptop . . . 

[and] did not have an express provision requiring the return of ZroBlack’s domain name, webpage, 

and email server.” Decl. of J. Villareal at ¶33; see also Compl. at ¶¶73-75. Because Plaintiff bases 

his claim on Saenz’s refusal to perform actions that Plaintiff admits the Release did not require 

Saenz to perform, Plaintiff fails to state a claim for breach of the Release. 

Additionally, Plaintiff now alleges, for the first time, that Saenz breached the Operating 

Agreement by refusing to return unspecified ZroBlack assets. Compl. at ¶182. As a threshold issue, 

the Operating Agreement does not contain any obligation on the part of Saenz to return anything, 

so there can be no breach by Saenz under the facts asserted by Plaintiff. See generally Operating 

Agreement (ECF No. 35-4). Additionally, Plaintiff fails to plead facts supporting the following 

required elements: (1) performance by Plaintiff, (2) breach by Saenz, and (3) damages sustained 

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by Plaintiff as a result of the breach.5Sport Supply Group, Inc. v. Columbia Casualty Co., 335 

F.3d 453, 465 (5th Cir. 2003); Mendoza v. Franklin Credit Mgmt. Corp., Civ. No. 4:16-cv-276-O, 

2016 U.S. Dist. LEXIS 155981, at *8-9 (N.D. Tex. May 27, 2016) (dismissing breach of contract 

claim because the plaintiff did not plead performance). 

Additionally, even assuming that the Company Agreement is a contract subject to breach 

by Saenz, Plaintiff’s Complaint should be dismissed for failure to state a claim upon which relief 

can be granted because Plaintiff’s generalized allegations of breach failed to identify any specific 

contractual provision that Saenz allegedly breached. Sivertson v. Citibank, N.A., 390 F. Supp. 3d 

769, 787 (E.D. Tex. Feb. 14, 2019) (“[A]s a general rule, a plaintiff suing for breach of 

contract must point to a specific provision in the contract that was breached by the defendant.”); 

Morse v. Commonwealth Land Title Ins. Co., Case No. 4:12CV375, 2013 U.S. Dist. LEXIS 

137555, at *27 (E.D. Tex. Sept. 25, 2013) (“Without identification of the contract(s) at issue, the 

provisions breached, Defendants’ specific actions constituting breach, or the damages that 

resulted, a breach of contract claim has not been stated and it should be dismissed”). 

Rather than identify any specific provision of the Operating Agreement that Saenz 

allegedly breached, Plaintiff summarily states that “the [Operating] Agreement expressly states 

that title to the Company’s assets will be held in the Company’s name or in the name of any 

nominee designated by the Members.” Compl. at ¶182. Plaintiff, however, does not make any 

supporting allegation about title to the Company’s assets. Such conclusory statements simply do 

5

 Plaintiff’s blanket statements about performance and damages clearly relate to the Release and 

not the Company Agreement. See Compl. at ¶¶183-184. Regardless, Plaintiff’s bare allegation 

that he “suffered damages as a result of Saenz’s breach” is conclusory and is not tied to any specific 

fact or any specific breach of contract. 

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not go beyond mere “labels and conclusions” in pleading a breach of contract claim, and therefore 

Plaintiff’s Complaint must be dismissed. See Morse, 2013 U.S. Dist. LEXIS 137555, at *26-28. 

E. Plaintiff’s claim for breach of fiduciary duties fails. 

Plaintiff alleges that Saenz breached fiduciary duties owed to ZroBlack by engaging in 

unnamed and unspecified transactions that benefited Saenz, withholding unspecified company 

property or funds, and refusing to allow access to unspecified information. Compl. at ¶¶187, 191, 

194-95, 197. These conclusory allegations, without any support, do not raise a right to relief above 

the speculative level that is necessary to support a claim. See Shakeri v. ADT Sec. Servs., 816 F.3d 

283, 290 (5th Cir. 2016). Additionally, to the extent that such claims are based on actions Saenz 

allegedly performed prior to the Release, Plaintiff implicitly concedes that they are subject to the 

Release. Compl. at ¶195 (noting that “these requests were made of Saenz after Saenz departed the 

company”); id. at ¶196 (noting that Plaintiff’s arguments are subject to a declaratory claim setting 

aside the Release); see also Release at § 7; Decl. of J. Villareal at ¶27 (Plaintiff alleges that 

Defendant Miguel Villareal told Saenz in July 2019—prior to execution of the Release—that 

Saenz “breached his fiduciary duty to the company”). To the extent that such claims somehow 

could be based on actions Saenz allegedly performed after the Release, Saenz had assigned his 

interest in ZroBlack and no longer owed a fiduciary duty. See Decl. of J. Villareal at ¶36; 

Unanimous Written Consent (ECF No. 35-17); see also Kilpatrick v. Kilpatrick, No. 02-12-00206-

CV, 2013 Tex. App. LEXIS 9189, *11, 16 (Tex. App.—Fort Worth July 25, 2013) (pet. denied) 

(confirming that partners owe no fiduciary duties to one another after their relationship ends, aside 

from duties related to winding up the partnership). Either way, the Complaint fails to allege facts 

upon which the Court may grant relief for Saenz’s alleged breach of fiduciary duties.6

6

 To the extent Plaintiff’s claim is based on Saenz allegedly “not performing any work associated 

with ZroBlack,” Compl. at ¶196, the claim fails. On August 1, 2019, prior to execution of the 

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Plaintiff’s claim for breach of fiduciary duty must also be dismissed because the only 

damages alleged are conclusory and speculative in nature. Compl. at ¶¶188, 195, 198 (alleging, 

without any factual support, damages for lost revenue, lost contract opportunities, and valuable 

resources expended); Little v. KPMG LLP, No. SA-07-CA-621-FB, 2008 WL 576226, at *15 

(W.D. Tex. Jan. 22, 2008) (“Texas and federal law require plaintiffs to demonstrate nonspeculative damages to pursue a claim. Damages which are conjectural will not survive a motion 

to dismiss.”). 

F. Plaintiff’s claim for tortious interference with prospective business relations fails. 

Plaintiff brings a cause of action against Saenz for tortious interference with prospective 

business relations. Compl. at ¶¶232–246. To survive a motion to dismiss on such claims, a plaintiff 

must allege facts supporting “a reasonable probability that the plaintiff would have entered into a 

business relationship” but for the defendant’s conduct. Flying Crown Land Grp., 2015 U.S. Dist. 

LEXIS 104978, at *5 (N.D. Tex. Aug. 11, 2015). 

The United States District Court for the Northern District of Texas has explained the 

threshold pleading requirements for this essential element: 

Plaintiff has failed to allege facts on which the Court can conclude that there was a 

reasonable probability that Plaintiff would have entered into a business 

relationship, ... with which the Defendants allegedly interfered. Although Plaintiff 

alleges in a conclusory form that, “[t]here was a reasonable probability that 

[Plaintiff] would have entered into a relationship with a third person,” Plaintiff 

pleads no facts to support the conclusion that there was a “reasonable probability” 

such a relationship would be consummated. In response to Defendants’ Motion to 

Dismiss, Plaintiff argues that it “could have utilized its time, expertise, and 

resources in other joint ventures and/or partnerships with other third parties in 

business endeavors that may or may not have related to redevelopment of property 

....” Such speculation cannot constitute a reasonable probability that Plaintiff 

Release, Plaintiff and Saenz amended their contract with the Foreign Customer. Decl. of J. 

Villareal at ¶37. Pursuant to the amended contract, Saenz was released from his obligations to 

perform any further work. Id.; First Am. PSA (ECF No. 35-18) at ¶ 2 (requiring only that Saenz 

continue to adhere to the confidentiality clause and restrictive covenant). 

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would have entered into a business relationship, and thus cannot support a claim 

for tortious interference. 

Id. at *5–6 (internal citations omitted). Likewise, a plaintiff must further demonstrate that 

something “more than mere negotiations took place.” Richardson-Eagle, Inc. v. William M. 

Mercer, Inc., 213 S.W.3d 469, 475 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Though it 

is not necessary to prove that the contract would have certainly been made but for the interference, 

that result must have been reasonably probable, considering all of the facts and circumstances 

attendant to the transaction. Id. at 475-76. 

Here, Plaintiff offers no more than conclusory speculation that, “[b]ut for Saenz’s actions, 

there was a reasonable probability [a U.S. agency] would have entered into a contract with 

[Plaintiff], ZroBlack, and [the Foreign Customer]” and that “ZroBlack would have entered a 

business relationship with prospective businesses to sell its services.” Compl. at ¶¶241, 242. While 

the Complaint does allege that Plaintiff, ZroBlack and the Foreign Customer “pursued a contract 

with the [U.S. agency],” Plaintiff wholly fails to demonstrate that any negotiations took place or 

that it even submitted a response to an agency solicitation, much less that “more than mere 

negotiations took place.” Compl. at ¶234; Richardson-Eagle, 213 S.W.3d at 475. In this regard, 

Saenz respectfully requests that the Court take judicial notice of the open and competitive nature 

of the federal procurement process, which is set forth in the Federal Acquisition Regulation 

Program, and through which there can be no reasonable probability that any contract(s) would 

have been awarded to Plaintiff. See 48 C.F.R. § 1.100, et seq.; id. at § 6.101(b) (“Contracting 

officers shall provide for full and open competition through use of the competitive procedure(s) 

contained in this subpart that are best suited to the circumstances of the contract action and 

consistent with the need to fulfill the Government’s requirements efficiently.”). Because the 

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Complaint does not allege any facts supporting a reasonable probability that Plaintiff would have 

entered into a business relationship but for Saenz’s conduct, the Complaint fails. 

In addition, the entire basis for Plaintiff’s tortious interference claim is that: (1) Saenz has 

simply not take any affirmative action to assist Plaintiff in resetting ZroBlack’s DUNS account, 

despite the Release imposing no duty upon Saenz to do so,7 and (2) Saenz allegedly has refused to 

return the website and email “server” from ZroBlack, despite the Release imposing no duty upon 

Saenz to do so. In particular, the Complaint alleges that Saenz has tortiously interfered by: (1) 

“refus[ing] all requests to confirm with Dun & Bradstreet that he is no longer a member of 

ZroBlack or to update the contact information for ZroBlack on its DUNS account,” (2) “refus[ing] 

[Plaintiff’s] requests to release the ZroBlack domain name to him so that he could update 

ZroBlack’s information for Apple and Dun & Bradstreet,” and (3) refusing to return the website 

and email “server.” Compl. at ¶¶236, 238, 243. However, it is well settled that “[n]either silence, 

hostility, nor a failure to respond is sufficient to support the claim made by [Plaintiff].” Am. 

Medical Int’l, Inc. v. Giurintano, 821 S.W.2d 331, 338 (Tex. App.—Houston [14th Dist.] 1991, 

no writ); see also Olabarrieta v. Compass Bank, No. 13-11-00748-CV, 2013 WL 7864080, at *9 

(Tex. App.—Corpus Christi Aug. 1, 2013, pet. denied) (“But mere silence alone is insufficient to 

constitute intentional interference.”). Plaintiff’s Complaint thus fails on this basis as well. 

Plaintiff’s tortious interference claim further fails because there is no evidence, nor even 

an allegation, of the requisite intent on behalf of Saenz. The third element of a claim for tortious 

7

 Plaintiff’s own communications with various agencies confirm that he was specifically informed 

he could unilaterally update ZroBlack’s DUNS account information. ECF No. 35-37 at p. 4 (“If 

you ever need access you can do a notarized letter that we offer to gain access. The tier 3 team will 

advise how to proceed with getting access.”); ECF No. 35-38 at p. 1 (suggesting that Plaintiff 

should “contact GSA and have them give you steps on how to prevent Mr. Saenz from having 

continued access to the registration and data contained within”). Any inaction on the part of Saenz 

cannot be the cause of any alleged damages. 

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interference is that the defendant either acted with a conscious desire to prevent the relationship 

from occurring or knew the interference was certain or substantially certain to occur as a result of 

the conduct. See Richardson-Eagle, 213 S.W.3d at 475. In this regard, the Complaint does not 

allege that Saenz even knew of any third parties with whom ZroBlack and its Foreign Customer 

were pursuing contracts, much less any actual intent to prevent such a relationship from occurring. 

Indeed, there is no reasonable basis for such an allegation, as the Complaint makes clear that such 

contracts, if any, were not pursued until long after Plaintiff and Saenz went their separate ways. 

See Compl. at ¶113 (“After the Release was executed and Saenz and ZroBlack and [Plaintiff] 

parted ways, [Plaintiff], ZroBlack and [its Foreign Customer] pursued a contract with [a 

governmental agency].”). Instead, without any factual basis or support, the Complaint vaguely 

alleges that “Saenz knew that his withholding of the website and email server would interfere with 

ZroBlack’s prospective clients or knew that his actions were certain or substantially certain to 

cause interference.” Compl. at ¶243. This conclusory allegation, without any support, does not 

raise a right to relief above the speculative level that is necessary to support a claim. See Shakeri 

v. ADT Sec. Servs., 816 F.3d 283, 290 (5th Cir. 2016). 

Plaintiff’s claim for tortious interference with prospective business relations must further 

be dismissed because the only damages alleged are conclusory and speculative in nature. Compl. 

at ¶¶240, 241, 245, 246 (alleging, without any factual support, damages for lost contract 

opportunities and potential loss of profits); Sting Soccer Operations Grp. LP v. JP Morgan Chase 

Bank, N.A., No. 4:15-CV-127, 2016 WL 3917640, at *21 (E.D. Tex. July 20, 2016) (“A plaintiff 

seeking to recover for tortious interference with prospective business relationships must establish 

proximate causation and damages with evidence rising above mere suspicion or speculation.”); 

Little, 2008 WL 576226, at *15. 

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G. Plaintiff’s claim for conversion fails. 

Plaintiff brings a cause of action against Saenz for conversion of a laptop. Compl. at ¶¶247-

250. A plaintiff in a conversion action must allege facts supporting damages. See WRR Indus. v. 

Aerodyne Corp., Civil Action No. 3:04-CV-2544-L, 2006 U.S. Dist. LEXIS 46210, at *30–31 

(N.D. Tex. June 30, 2006) (“Damages are an ‘essential element of a conversion claim’ under Texas 

law.”) (quoting 50-OFF Stores, Inc. v. Banques Paribas (Suisse, S.A.), 180 F.3d 247, 254 (5th Cir. 

1999), cert. denied, 528 U.S. 1078 (2000)). A plaintiff’s mere “inability to access and utilize [its] 

property” is insufficient to establish damages. Id. at *32. 

Here, the Complaint fails to identify any specific damages stemming from Saenz’s alleged 

conversion of the laptop. Rather, in conclusory fashion, Plaintiff simply states that “ZroBlack has 

suffered injury due to Saenz’s conversion of the laptop and trade secrets in at least an amount equal 

to the value of the laptop and trade secrets.” Compl. at ¶250. Plaintiff, however, fails to identify 

the current value of the laptop, the identity of any alleged trade secrets, or the value of any alleged 

trade secrets to support any allegation of damages. Plaintiff also makes a speculative and 

conclusory allegation that the “access and deletion of the email server and webpage caused a loss 

of more than $5,000 in data,” but Plaintiff does not identify what specific data was deleted, when 

it was deleted, or the value of the data at the time it was deleted. Id. Because Plaintiff alleges no 

facts to support the essential element of damages, the claim for conversion fails. Little, 2008 WL 

576226, at *15 (“Damages which are conjectural will not survive a motion to dismiss.”). 

Furthermore, to the extent Plaintiff’s conversion claim is based on intangible “trade 

secrets,” the claim fails to state a claim for which relief may be granted. See Carson v. Dynegy, 

Inc., 344 F.3d 446, 456 (5th Cir. 2003) (allegation of conversion of intellectual property was 

“outside the scope of Texas conversion law, which concerns only physical property”). 

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H. Plaintiff’s claim for violation of the Texas Theft Liability Act fails. 

Plaintiff brings a cause of action against Saenz for violation of the Texas Theft Liability 

Act. Compl. at ¶¶251-255. Like conversion, the Texas Theft Liability Act requires a plaintiff to 

plead and prove damages. Transverse, L.L.C. v. Iowa Wireless Servs., L.L.C., 753 F. App’x 184, 

190 (5th Cir. 2018) (“Proof of damages is an essential—and in this case missing—element of each 

of Transverse’s three causes of action,” including the Texas Theft Liability Act). Just as Plaintiff 

fails to identify any damages stemming from Saenz’s alleged conversion of the laptop, Plaintiff 

similarly fails to identify damages resulting from Saenz’s alleged theft. Compl. at ¶255. Again, 

Plaintiff simply states that “ZroBlack has suffered damages due to Saenz’[s] conversion of the 

laptop and trade secrets in at least an amount equal to the value of the laptop and trade secrets.” 

Id. Plaintiff, however, fails to identify the current value of the laptop, the identity of any alleged 

trade secrets, or the value of any alleged trade secrets to support any allegation of damages. 

Plaintiff again makes a speculative and conclusory allegation that the “access and deletion of the 

email server and webpage caused a loss of more than $5,000 in data,” but Plaintiff does not identify 

what specific data was deleted, when it was deleted, or the value of the data at the time it was 

deleted. Id. Because Plaintiff alleges no facts to support the essential element of damages, the 

claim for violation of the Texas Theft Liability Act fails. Little, 2008 WL 576226, at *15. 

Moreover, as with claims for conversion, Texas law also bars a claim for civil theft of 

intangible intellectual property. See Saragusti v. Hermes Trading Co., No. 7:14-CV-45, 2014 U.S. 

Dist. LEXIS 194122, at n.21 (S.D. Tex. July 29, 2014). Plaintiff’s claim fails for this additional 

reason. 

I. Plaintiff’s claim for fraud fails. 

Plaintiff brings a cause of action against Saenz for fraud. Compl. at ¶¶256-262. To state a 

claim for fraud, a plaintiff must allege the following elements: “(1) that a material representation 

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was made; (2) the representation was false; (3) when the representation was made, the speaker 

knew it was false or made it recklessly without any knowledge of the truth and as a positive 

assertion; (4) the speaker made the representation with the intent that the other party should act 

upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered 

injury.” United States ex rel. Grubbs v. Ravikumar Kanneganti, 565 F.3d 180, 188 (5th Cir. 2009). 

“In alleging fraud or mistake, a party must state with particularity the circumstances 

constituting fraud or mistake.” FED. R. CIV. P. 9(b). “The frequently stated, judicially-created 

standard for a sufficient fraud complaint ... instructs a plaintiff to plead the time, place and 

contents of the false representation, as well as the identity of the person making the 

misrepresentation and what that person obtained thereby.” Grubbs, 565 F.3d at 186. “Given the 

elements of reliance and damages, pleading common law fraud with particularity demands the 

specifics of the false representation – without the precise contents of the misrepresentation the 

plaintiff cannot show he relied on the misrepresentation to his detriment.” Id. at 188-89. “In other 

words, common law fraud’s elements of reliance and damages are intertwined with the 

misrepresentation and heighten the need for attention to the misrepresentation itself.” Id. at 189. 

Moreover, “[t]o be actionable, the misrepresentation must be one concerning a material 

fact; a pure expression of opinion will not support an action for fraud.” Clardy Mfg. Co. v. Marine 

Midland Bus. Loans, 88 F.3d 347, 359 (5th Cir. 1996). Although an opinion may constitute fraud 

if the speaker knows that it is false or if the speaker purports to have special knowledge of facts 

that will occur in the future, “[a] promise to do an act in the future ... is fraud only when made 

with the intention, design and purpose of deceiving, and with no intention of performing the act at 

the time the promise was made.” Id. at 359-60. 

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Here, Plaintiff’s fraud claim is based entirely on allegations that, “[p]rior to the formation 

of ZroBlack, Saenz represented to [Plaintiff] that he had the business acumen and government 

contacts to market the technology to the government” and that “he could use his ‘contacts’ in the 

military and technology business sectors to bolster sales.” Compl. at ¶¶257, 261. “In reliance on 

this representation,” Plaintiff alleges that he “trusted Saenz and formed ZroBlack, gave Saenz 

access to ZroBlack’s software and allowed him to control the marketing and business operations 

of ZroBlack.” Id. at ¶262. As a result of such reliance, Plaintiff alleges that Saenz “still maintains 

control over the software and operations of ZroBlack which has caused ZroBlack to lose 

contracts.” Id. 

These allegations do not satisfy the heightened pleading requirements of Rule 9(b). Not 

only do they not plead the time, place or contents of these purported representations, but they also 

do not allege any causal nexus or link between the purported misrepresentations, Plaintiff’s alleged 

reliance thereon, and the allegedly resulting damages. Indeed, there is no theoretical connection 

that could tie (1) Saenz’s alleged misrepresentations prior to ZroBlack’s formation regarding his 

belief that he could help the company secure additional work, to (2) ZroBlack now failing to close 

deals without him after he was forced out of the company by Plaintiff. Further, Plaintiff does not 

even allege that it suffered any quantifiable damages; rather, Plaintiff includes an unsupported, 

conclusory allegation that Saenz’s conduct caused ZroBlack to “lose” unspecified contracts of 

unspecified value. Compl. at ¶256. Accordingly, Plaintiff’s claim for fraud fails. 

In addition, the alleged misrepresentations are, on their face, mere opinions regarding 

Saenz’s ability to help ZroBlack’s business and are, therefore, not actionable. Compl. at ¶¶257, 

259, 261; Clardy Mfg. Co., 88 F.3d at 359. Furthermore, the Complaint does not allege that Saenz 

knew such alleged misrepresentations to be false at the time they were made, that Saenz purported 

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to have special knowledge of facts that would occur or exist in the future, that Saenz promised to 

do anything in the future with the intention, design and purpose of deceiving, or that Saenz had no 

intention of performing the act at the time the promise was made. Clardy Mfg. Co., 88 F.3d at 359-

60. For these additional and independent reasons as well, Plaintiff’s claim for fraud fails. 

J. Plaintiff’s application for injunctive relief fails. 

Plaintiff acknowledges that injunctive relief is appropriate only where the movant 

demonstrates “the likelihood of success on the merits.” Application at ¶105. For the reasons 

discussed at length above—including the parties’ mutual release and Plaintiff’s failure to allege 

facts supporting the essential elements of each claim—Plaintiff has failed to show a likelihood of 

success on the merits. Therefore, dismissal of Plaintiff’s request for injunctive relief is proper. 

CONCLUSION 

Plaintiff and Saenz broadly agreed to release each other from “all claims and demands, 

known or unknown.” Public policy favors voluntary settlement of claims and enforcement of 

releases, including broadly worded releases such as the Release here. Because the Release bars 

Plaintiff’s claims and is consistent with public policy, the Court must dismiss Plaintiff’s Complaint 

and Application. 

In the alternative, and even after obtaining leave to replead, the Complaint and Application 

nevertheless fail to state a claim upon which relief may be granted and must be dismissed pursuant 

to Federal Rule of Civil Procedure 12(b)(6). 

WHEREFORE, because further repleading would be futile, Defendant John Saenz 

respectfully requests that the Court: (1) dismiss Plaintiff’s Complaint as to Saenz with prejudice, 

(2) dismiss Plaintiff’s Application for injunctive relief with prejudice, (3) award Saenz his 

attorneys’ fees and costs pursuant to Section 11 of the Release and TEX. CIV. PRAC. & REM. CODE

§ 134.005(b), and (4) grant to Saenz such other relief to which he is entitled at law or in equity. 

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Respectfully submitted this 4th day of February 

2021.

By: /s/ David A. Vanderhider

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

CERTIFICATE OF SERVICE 

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

4th day of February 2021, 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/ David A. Vanderhider 

Case 5:20-cv-00571-OLG Document 41 Filed 02/04/21 Page 31 of 31