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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

GIDDY HOLDINGS, INC. 

PLAINTIFF, 

VS. 

ERNEST KIM 

DEFENDANT/COUNTERPLAINTIFF 

VS. 

BRETT JACOBSON 

COUNTER-DEFENDANT. 

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Civil Action No. 1:20-cv-00434-DAEML 

COUNTER-DEFENDANT BRETT JACOBSON’S MOTION TO STRIKE COUNTERPLAINTIFF ERNEST KIM’S SECOND AMENDED COUNTERCLAIM AS UNTIMELY, 

OR IN THE ALTERNATIVE MOTION TO COMPEL ARBITRATION 

Counter-Defendant Brett Jacobson files this Motion to Strike Counter-Plaintiff’s Second 

Amended Counterclaim under Fed. R. Civ. P. 15(a), or in the alternative Motion to Compel 

Arbitration, and would respectfully show the court as follows: 

INTRODUCTION 

Defendant/Counter-Plaintiff Kim was granted leave to amend his counterclaims to assert a 

claim of fraud against Counter-Defendant Jacobson “to the extent it relates to the ‘details of [his] 

termination.’” Doc. 61, pg. 14. Kim’s Second Amended Counterclaim runs far afoul of this Order 

by instead asserting a fraud claim against Jacobson for alleged statements made prior to Kim’s 

employment (or not made by Jacobson at all). See generally, Doc. 65. Therefore, Kim’s Second 

Amended Counterclaim is made without leave of the Court and is thus in violation of Fed. R. Civ. 

P. 15(a), and should be struck. 

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But even if Kim’s Second Amended Counterclaim were proper, there is a valid, binding 

arbitration agreement that governs any disputes brought by Kim relating to his employment with 

Plaintiff Giddy Holdings. As Kim’s veil-piercing allegations make clear, Kim is seeking to impute 

liability onto Jacobson as Giddy’s alter-ego. Therefore, the arbitration agreement governs this 

counterclaim. 

ARGUMENTS AND AUTHORITIES 

A. Kim’s Second Amended Counterclaim Does Not Comply with Fed. R. Civ. P. 15(a) 

or Judge Ezra’s Order. 

Kim filed his First Amended Counterclaims on March 12, 2021, alleging among other 

things, fraud against Jacobson. See generally, Doc. 29. Giddy filed a motion to dismiss as Kim 

had not pleaded fraud with particularity. Doc. 53. In response to Judge Lane’s Report 

recommending dismissal of the fraud counterclaim (Doc. 59), Kim asserted that he had pleaded 

fraud with particularity, alleging that Jacobson made fraudulent statements 1) concerning 

submitting false payroll numbers in order to secure more PPPP loan funding, and 2) terminating 

Kim for objecting to such actions. Doc. 60 at ¶ 16. These two claims were the only basis for fraud 

alleged by Kim. Id. 

In his Order, Judge Ezra agreed that Kim’s counterclaim was not pleaded with particularity, 

but granted Kim leave to amend his fraud claim “to the extent it relates to the ‘details of [his] 

termination’...”. Doc. 61 at pg. 14. Leave was specifically denied as futile to amend on the PPP 

loan allegations. Id. 

On July 23, 2021, Kim filed his Second Amended Counterclaim. See generally, Doc. 65. 

While the specific alleged fraudulent statements that form the basis of Kim’s newly amended claim 

are hard to parse, none of them have to do with any purported representations relating to the 

“details of [Kim’s] termination. Id. More specifically, Kim complains of statements made by 

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Jacobson in emails sent during the time period of Feb. 17, 2020 to Feb. 20, 2020, during which 

Jacobson and Kim were negotiating the details of Kim’s employment. Id. At ¶ 9-12, 14-16, 40-

41. The remainder of Kim’s complaint goes into the PPP loan issue again. Id. at ¶¶ 22-27. The 

only possible interpretation of Kim’s Second Amended Counterclaim that could be construed as 

relating to the details of his termination include statements made by Giddy’s general counsel 

Christopher Clark (not Jacobson). Id. at ¶ 29. 

Fed. R. Civ. P. 15(a) only permits Kim to amend his counterclaims upon leave of court. 

Leave of court was only granted as to the “termination” specific allegations of fraud. Doc. 61 at 

pg. 14. The amended counterclaims allege fraud for statements made during the pre-employment 

period (or statements made by an entirely different party altogether), not termination. Therefore, 

Kim’s Second Amended Counterclaim should be struck as Kim did not seek leave of court, nor 

was any granted, to allege fraud based on pre-employment statements or for statements made by 

third parties not named Jacobson. 

B. If Kim’s Counterclaim Survives, It Must Be Arbitrated. 

In the alternative, should Kim’s Second Amended Counterclaim survive dismissal, the 

Court should compel arbitration pursuant to a valid arbitration agreement. Judge Ezra’s Order has 

already established that the arbitration agreement applies to this type of claim (fraud) against 

Giddy. Doc. 61 at pg. 16; see generally Doc. 17, Ex. 2, pg. 11-12 for a true and correct copy of 

the Agreement. It likewise applies to Kim’s claim against Jacobson because Kim asserts veilpiercing and alter ego allegations. Doc. 65 at ¶¶ 52-74. 

A non-signatory to an arbitration agreement can compel arbitration when, as here, the 

parties relied on the terms of the contract, a signatory (Kim) alleges the non-signatory engaged in 

misconduct related to the contract, or if the corporate veil is pierced to hold an alter ego liable 

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when the alter ego exercised complete control over the corporation and such control was used to 

commit a fraud or wrongdoing1. Kramer v. Toyota Motor Corp., 705 F.3d 1122,1129 (9th Cir. 

2013); Board of Trs. Of Delray Beach Police & Firefighters’ Ret. Sys. V. Citigroup Global Mkts. 

Inc., 622 F.3d 1335, 1342 (11th Cir. 2010); Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 

347, 359 (5th Cir. 2003); ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1461 (10th Cir.1995); 

American Fuel Corp. v. Utah Energy Dev't Co., Inc., 122 F.3d 130, 134 (2d Cir.1997). Accord

First Nat'l City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 629–30, 103 

S.Ct. 2591, 77 L.Ed.2d 46 (1983); Gardemal v. Westin Hotel Co., 186 F.3d 588 (5th 

Cir.1999). Cf. Matter of Sims, 994 F.2d 210 (5th Cir.1993). 

Jacobson, as Kim asserts, was acting as the alter ego of Giddy at all relevant times when 

the allegedly fraudulent statements were made. Id. If such allegations are taken as true and the 

corporate veil is pierced, then Jacobson can enforce the arbitration provision in Kim’s employment 

contract. Therefore, the Court should refer Kim’s Second Amended Counterclaim to arbitration. 

CONCLUSION 

For these reasons, Counter-Defendant Brett Jacobson respectfully requests that the Court 

strike or dismiss Counter-Plaintiff Ernest Kim’s Second Amended Counterclaim, pursuant to Fed. 

R. Civ. P. 15(a), or in the alternative, compel arbitration pursuant to a valid and binding arbitration 

agreement, and that Jacobson be awarded all such other relief to which he is entitled in equity or 

law. 

 Respectfully submitted, 

 COKINOS│YOUNG

 /s/ M. Wilson Stoker 

 M. Wilson Stoker 

 State Bar No. 24076806 

1

 Giddy and Jacobson maintain that there was no fraud or wrongdoing at any point. 

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 Lauren S. Aldredge 

 State Bar No. 24079380 

 900 S. Capital of Texas Highway 

 Las Cimas IV, Suite 425 

 Austin, Texas 78746 

 Tel. (512) 615-8573 

 Fax: (512) 610-1184 

 wstoker@cokinoslaw.com 

 laldredge@cokinoslaw.com 

ATTORNEYS FOR COUNTERDEFENDANT BRETT JACOBSON. 

CERTIFICATE OF SERVICE 

 I certify that a copy of the foregoing document was served via ECF on the 13th day of 

August 2021, to the following counsel of record: 

 Casey S. Erick 

 COWLES & THOMPSON, P.C. 

 901 Main Street, Suite 3900 

 Dallas, Texas 75202 

cerick@cowlesthompson.com

Attorneys for Defendant 

 /s/ M. Wilson Stoker 

 M. Wilson Stoker 

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