4825-4999-2410.6 

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 RESPONSE IN OPPOSITION TO PLAINTIFF’S FIRST 

AMENDED APPLICATION FOR SEIZURE, TEMPORARY RESTRAINING ORDER, 

PRELIMINARY INJUNCTION, AND PERMANENT INJUNCTIVE RELIEF 

______________________________________________________________________________ 

Subject to and without waiver of Defendant John Saenz’s (“Saenz”) Motion to Dismiss 

Plaintiff’s First Amended Verified Complaint (the “Complaint”) and Plaintiff’s First Amended 

Application for Seizure, Temporary Restraining Order, Preliminary Injunction, and Permanent1

Injunctive Relief (the “Application” or “Appl.”) (ECF No. 41), Saenz files this Response in 

Opposition to the Application2 filed by Plaintiff Jonathan Villareal, individually and derivatively on 

behalf of ZroBlack LLC, (“Plaintiff”), and respectfully asks that this Court deny Plaintiff’s 

Application. Saenz files this Response pursuant to the Court’s Text Order dated January 25, 2021, in 

which the Court advised Defendants that: (1) responses to the Application must be filed separately 

from a Motion to Dismiss, and (2) to avoid unnecessary duplication, however, Defendants may 

incorporate other filings by reference. Accordingly, pursuant to the Court’s Order and Federal Rule 

1

 Permanent injunctive relief is premature and should only be granted, if at all, after a full trial on 

the merits. See Shanks v. Dallas, 752 F.2d 1092, 1097 (5th Cir. 1985). 

2

 Redacted copies of the Application were filed at ECF No. 35-1 and ECF No. 37, and a sealed 

copy of the Application was filed under seal at ECF No. 34. Saenz cites to ECF No. 35 when 

referencing certain exhibits filed by Plaintiff. 

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of Civil Procedure 10(c), Saenz hereby incorporates by reference Saenz’s Motion to Dismiss and all 

arguments and authorities referenced therein, which was filed prior to this Response. 

INTRODUCTION 

Plaintiff’s Application is based on the same allegations set forth in the Complaint, namely, 

that: (1) Saenz is in possession of a laptop computer (the “Computer”) allegedly containing ZroBlack, 

LLC’s (“ZroBlack”) “software code”; (2) Saenz is in possession of ZroBlack’s domain credentials, 

including the email “server” and webpage; and (3) Plaintiff is concerned that Saenz possesses and 

may use or disclose ZroBlack’s purported “trade secrets.” Appl. at ¶153. Accordingly, for the same 

reasons articulated in Saenz’s Motion to Dismiss, including in particular that Plaintiff’s claims are 

barred in their entirety by the parties’ Release (ECF No. 35-16), the Application should be denied in 

its entirety. 

Additionally, as established herein, the Application should be denied because Plaintiff’s 

claims are not likely to succeed on the merits, and because there is no substantial risk of irreparable 

harm to Plaintiff if the Application is not granted. Saenz purchased the Computer and has consistently 

used it since then as his personal laptop computer. Saenz also retained a third-party forensic analyst, 

who has independently verified that no proprietary code, hardware schematics, or hardware drawings 

of ZroBlack are located on the Computer. Likewise, Saenz was specifically told by Plaintiff that 

Plaintiff no longer required access to the zroblack.com email or website due at least in part to 

ZroBlack no longer needing to market its technology in light of the Foreign Customer’s rights to 

the same. Moreover, the argument that ZroBlack cannot do business and is now subject to imminent 

and irreparable harm because it lacks access to a simple website and email hosted on GoDaddy.com, 

which Plaintiff used for only a few months approximately eighteen months ago, is nonsensical. 

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In the alternative, to the extent the Court is inclined to grant the Application in whole or in 

part, then Saenz would simply request that reasonable accommodations be ordered as set forth herein 

to protect Saenz and to ensure that appropriate safeguards are put in place. 

BACKGROUND 

This dispute arises out of a business, ZroBlack, that was jointly founded by Saenz and 

Plaintiff, with each owning fifty percent of the company. Appl. at ¶¶12-15; ZroBlack Certificate of 

Formation (ECF No. 35-3); Affidavit of John Saenz, attached hereto as Ex. A, at ¶4. Plaintiff 

provided technical expertise, while Saenz, who has no experience in writing or interpreting 

computer code, served as Chief Executive Officer and strictly handled business marketing, 

negotiations, and financial matters. Appl. at ¶¶12, 14; Ex. A at ¶¶2-5, 9-10. 

After Saenz successfully negotiated and secured a large contract on behalf of ZroBlack 

with a Foreign Customer, with whom Plaintiff had previously attempted to negotiate 

unsuccessfully, Saenz and Plaintiff began to disagree regarding ZroBlack. Appl. at ¶¶10-11, 20, 

25; Ex. A at ¶6. To resolve their disagreements, Saenz, Plaintiff, and ZroBlack entered into a 

written release (“Release”). Appl. at ¶¶38-41; see also Release (ECF No. 35-16). Pursuant to the 

Release, the parties 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. Appl. at ¶38; Release at §§ 2, 6. 

Most importantly, Saenz, Plaintiff, and ZroBlack fully released each other “from all claims and 

demands, known or unknown.” Release at § 7. In conjunction with and as part of the Release, Saenz 

assigned his entire interest in ZroBlack to Plaintiff. Appl. at ¶¶40, 42; Release at § 6; see also

Consent (ECF No. 35-17). 

Prior to this business separation, Saenz purchased the Computer and has consistently used 

it for his own personal use with Plaintiff’s full knowledge. Ex. A at ¶¶11, 12. Saenz has never 

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installed any code writing or other programming software on the Computer or downloaded any 

proprietary code or programming software of ZroBlack onto the Computer. Id. at ¶13. Saenz has 

never even attempted to utilize any factory-installed programming software, nor is he aware of 

Plaintiff or anyone else utilizing the same on the Computer. Id. Indeed, Plaintiff alone designed 

the software at issue in this case and has never possessed or used the Computer for ZroBlack’s 

business or otherwise. Id. at ¶12; Appl. at ¶1. 

In conjunction with this litigation, Saenz’s counsel retained Exhibit A Computer Forensics, 

LLC to perform a confidential forensic analysis of the Computer. After conducting a forensic 

investigation and analysis of the Computer, Steven S. Broderhausen, the President and Lead 

Examiner for Exhibit A Computer Forensics, concluded: (1) the Computer does not contain any 

proprietary code, hardware schematics, or hardware drawings; (2) the Computer does not contain 

any non-factory-installed programming software; (3) the Computer does not contain any computer 

code, data or other trade secrets capable of performing ZroBlack’s security services described in 

Plaintiff’s Complaint and Application; and (4) there is no evidence or indication to suggest that 

any such code, data or other trade secrets have been deleted from the Computer. See Affidavit of 

Steven S. Broderhausen, attached hereto as Ex. B, at ¶¶2-6. 

Additionally, prior to the time that ZroBlack was formed, Saenz registered the 

zroblack.com domain (as well as the zrodark.com domain) and added it to his pre-existing 

GoDaddy account that contains other domains and websites that predate ZroBlack and are not 

related to ZroBlack. Ex. A at ¶15. Moreover, before the Release, Plaintiff specifically told Saenz 

that Plaintiff no longer needed access to the zroblack.com website or email that Saenz had previously 

set up, as evidenced by the facts that: (1) the Release makes no reference to the same, and (2) 

ZroBlack no longer needed to market its technology in light of the Foreign Customer’s rights to 

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said technology. Id. at ¶16; see also Release generally; PSA (ECF No. 35-8), at § 8 (granting 

exclusive right of first offer to Foreign Customer). When Plaintiff subsequently changed his mind, 

Saenz informed Plaintiff that he or ZroBlack could create a separate GoDaddy account and then 

request a transfer of the zroblack.com email and website to that account from Saenz’s personal 

account. Id. Instead, Plaintiff insisted on Saenz turning over the entirety of his personal and preexisting GoDaddy account, which contains information and credentials for domains wholly irrelevant 

to ZroBlack and Plaintiff. Id. 

LEGAL STANDARD 

“Injunctive relief is ‘an extraordinary and drastic remedy,’ and should only be granted when 

the movant has clearly carried the burden of persuasion.” Anderson v. Jackson, 556 F.3d 351, 360 

(5th Cir. 2009) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 

1985)). In order to obtain injunctive relief, including a temporary restraining order, a plaintiff must 

establish, among other factors: (1) a substantial likelihood that the plaintiff will prevail on the merits, 

and (2) a substantial threat that the plaintiff will suffer irreparable harm if the injunction is not granted. 

Id. “If the party requesting the injunction cannot show that factual disputes exist regarding the required 

elements, and cannot introduce evidence sufficient to justify granting the motion, a hearing on the 

requested injunctive relief is unnecessary.” Id. (citing PCI Transp., Inc. v. Fort Worth & W. R.R. Co., 

418 F.3d 535, 546 (5th Cir. 2005)). 

ARGUMENT 

A. THE MOTION TO DISMISS SHOULD BE GRANTED AS TO PLAINTIFF’S COMPLAINT AND 

APPLICATION. 

Pursuant to Federal Rule of Civil Procedure 10(c), Saenz hereby incorporates by reference the 

arguments and premises set forth in the Motion to Dismiss (ECF No. 41) as if fully set forth herein 

and respectfully requests that Plaintiff’s Application be dismissed with prejudice for the reasons stated 

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therein. Specifically, the alleged facts and underlying claims supporting the Application are subject 

to the Release, which did not reference or require Saenz to turn over the Computer, any domain 

credentials (email “servers” or websites), or any other information or data that is the subject of this 

Lawsuit. See generally Release. Alternatively, the Application should be dismissed because the 

alleged facts and underlying claims supporting the Application fail under Federal Rule of Civil 

Procedure 12(b)(6). See Anderson v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009) (affirming denial of 

preliminary injunction based on dismissal of the underlying claims). 

B. ADDITIONALLY, AND IN THE ALTERNATIVE, THE APPLICATION SHOULD BE DENIED 

BECAUSE PLAINTIFF IS NOT SUBSTANTIALLY LIKELY TO PREVAIL ON THE MERITS AND 

THERE IS NO SUBSTANTIAL THREAT OF IRREPARABLE HARM IF THE INJUNCTION IS NOT 

GRANTED. 

In the event the Court does not deny the Application based on Saenz’s Motion to Dismiss, the 

Application should nevertheless be denied. As a threshold issue, Plaintiff asks the Court for 

injunctive relief in the form of seizure of Saenz’s computer. Application at ¶153. Plaintiff, however, 

fails to show that an order pursuant to Federal Rule 65 would be inadequate. Plaintiff claims that 

Saenz could “easily copy” ZroBlack’s alleged “trade secrets.” Id. at ¶68. But if ease of copying 

were all that is required for civil seizure, then any electronic data of any kind would be subject to 

seizure. Plaintiff’s conclusory allegations do not constitute “extraordinary circumstances” 

sufficient to warrant civil seizure. Id. at ¶68. 

Further, the Court may not grant a temporary restraining order or civil seizure without a 

showing of irreparable harm. Ctr. for Advancing Innovation, Inc. v. Bahreini, No. GJH-18-1119, 

2018 U.S. Dist. LEXIS 77214, at *13 (D. Md. May 4, 2018). Irreparable harm “must be ‘neither 

remote nor speculative, but actual and imminent.’” Id. (quoting Direx Israel, Ltd. v. Breakthrough 

Med. Corp., 952 F.2d 802, 812 (4th Cir.1991)). Plaintiff shows no imminent or actual harm that 

will result from failure to seize Saenz’s Computer, nor does Plaintiff explain why the Court must 

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now seize the Computer that has been in Saenz’s possession for over twenty months without any 

action by Plaintiff other than filing this lawsuit. 

With regard to the allegations supporting a temporary injunction, the Application should be 

denied because Plaintiff is not likely—much less substantially likely—to prevail on the merits of his 

claims, and because there is no substantial risk of irreparable harm to Plaintiff if the Application is 

not granted. Anderson, 556 F.3d at 360. In particular, Plaintiff’s claims are based on the false, 

unsupported premises that: (1) the Computer allegedly contains ZroBlack’s proprietary software 

code, (2) ZroBlack is unable to do business without its domain credentials, including its former email 

“server” and webpage, and (3) Saenz will somehow use or otherwise disclose ZroBlack’s purported 

“trade secrets.” Appl. at ¶153. Each of these bases is without credible evidentiary support and is 

readily controverted, and the Application should be denied accordingly. 

To begin, Plaintiff has not identified with particularity any trade secrets purportedly housed 

on the Computer in either the Complaint or the Application. Rather, Plaintiff makes vague and 

conclusory references to “proprietary code” on the Computer without: (1) defining or adequately 

describing the purported code, (2) explaining how or when the code ended up on the Computer, (3) 

explaining where the code is located or stored on the Computer or how it is being used, or (4) 

explaining what program(s) are required to use or run the code on the Computer. Appl. at ¶¶45, 

81, 118. Thus, with regard to the Computer, Plaintiff offers nothing but conclusory allegations 

with no support whatsoever. 

In reality, there is no code on the Computer capable of performing the functions described by 

Plaintiff. To be sure, the Computer was initially purchased by Saenz, who has consistently used it 

since then as his personal computer. Ex. A at ¶¶ 11, 12. There are no trade secrets of ZroBlack located 

thereon, nor have there ever been. Id. at ¶¶12, 13. Indeed, a third-party forensic analyst has 

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independently verified: (1) the Computer does not contain any proprietary code, hardware 

schematics or hardware drawings; (2) the Computer does not contain any non-factory-installed 

programming software; (3) the Computer does not contain any computer code, data or other trade 

secrets capable of performing ZroBlack’s security services described in Plaintiff’s Complaint and 

Application; and (4) there is no evidence or indication that any such code, data or other trade 

secrets have been deleted from the Computer. See Ex. B, at ¶¶ 2-6. In short, Saenz has no trade 

secrets of ZroBlack and, therefore, is not able (nor does he have the intent or desire) to disclose or 

otherwise use the same. The fact that Plaintiff cannot point to any particular use or disclosure of 

trade secrets or harm resulting therefrom is evidence in and of itself that there is no risk of 

imminent or irreparable harm to Plaintiff. 

Additionally, Saenz does not have access to any email “server” as alleged by Plaintiff. 

Rather, prior to the time ZroBlack was formed, Saenz purchased Microsoft 365 Email Essentials 

from GoDaddy and added this email subscription to the zroblack.com domain under his existing 

GoDaddy account. Ex. A at ¶15. Thus, GoDaddy, not Saenz, acts as the host or “server” for any and 

all zroblack.com emails and website. See id. In any event, there is no evidence that the zroblack.com 

website or email subscription even belongs to ZroBlack, much less that ZroBlack has been or will 

be irreparably damaged without them. To the contrary, prior to the time that ZroBlack was formed, 

Saenz created the zroblack.com domain (as well as the zrodark.com domain) and added it to his 

existing GoDaddy account that contains other domains and websites that predate ZroBlack and are 

not related to ZroBlack. Id. at ¶15; compare Plaintiff’s Ex. 41 (ECF No. 35-41), at p. 2 (establishing 

that the zroblack.com domain was registered on January 11, 2019) with Plaintiff’s Ex. 2 (ECF No. 

35-3) (establishing that ZroBlack was formed on January 14, 2019). Moreover, prior to the Release, 

Plaintiff specifically told Saenz that Plaintiff and ZroBlack no longer needed access to the 

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zroblack.com website or email because ZroBlack no longer needed to market its technology in light 

of the Foreign Customer’s rights to the same. Ex. A at ¶16; PSA (ECF No. 35-8), at § 8 (granting 

exclusive right of first offer to Foreign Customer). When Plaintiff subsequently changed his mind, 

Saenz informed him that he or ZroBlack could create a separate GoDaddy account and then request 

a transfer of the zroblack.com email and website to that account from Saenz’s personal account. Ex. 

A at ¶16. Instead, Plaintiff insisted on Saenz turning over the entirety of his personal and pre-existing 

GoDaddy account, which contains information wholly irrelevant to ZroBlack and Plaintiff. Id. 

In reality, the suggestion that ZroBlack—a company that is purportedly world-class in 

computer programming and remote device access—is now wholly unable to do business without a 

simple website and email subscription after approximately eighteen months without them is a 

complete fabrication. Appl. at ¶67 (noting that Plaintiff and ZroBlack have since “repair[ed]” their 

relationship with their primary customer following their alleged inability to access the prior website 

and emails). There is no risk of irreparable harm to Plaintiff,3 and to the extent Plaintiff has been or 

will be damaged in any way, Plaintiff’s own allegations make clear that monetary damages would be 

a sufficient remedy. Appl. at ¶¶58, 120, 132, 136, 138 (alleging damages). 

With regard to the alleged possession or use of “trade secrets,” the only “trade secrets” that 

Plaintiff identifies in the Application are: (1) the software, hardware schematics, and hardware 

drawings allegedly on the Computer, and (2) username and password to access the GoDaddy 

account. Application at ¶¶81-82. As demonstrated above: (1) the Computer does not contain any 

3

 Although the Application does not request any relief on this basis, Plaintiff alleges that Saenz’s 

failure to release the GoDaddy account information prevented Plaintiff from updating certain 

information, such as a DUNS number, for bidding on government contracts. Appl. at ¶¶4, 57. 

Saenz incorporates by reference footnote 7 to the Motion to Dismiss (ECF No. 41) and Plaintiff’s 

evidence cited therein, which establishes that Plaintiff could and should have taken the steps 

outlined therein to gain access to this information following Saenz’s separation from ZroBlack. 

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proprietary code, hardware schematics or hardware drawings, and (2) there is no evidence that the 

zroblack.com website or email subscription even belong to ZroBlack, much less that ZroBlack has 

been or will be irreparably damaged without them. Likewise, Plaintiff does not identify with 

specificity any other “confidential information” that Plaintiff believes Saenz possesses and that 

supports Plaintiff’s claims in this matter. 

C. IN THE ALTERNATIVE,CERTAIN SAFEGUARDS SHOULD BE IMPLEMENTED PRIOR TO SAENZ 

BEING ORDERED TO RELEASE THE COMPUTER OR OTHER INFORMATION REQUESTED.

Further in the alternative, and in the unlikely event that the Court determines that Plaintiff met 

his burden and is entitled to preliminary injunctive relief, then Saenz requests that the Court: (1) 

require a bond of $2,700 as Plaintiff suggests (Appl. at ¶152), and (2) place the following proper 

safeguards in place, as Saenz has suggested to Plaintiff, to protect the interests of Saenz and to ensure 

that all data is properly maintained pending a disposition on the merits: 

1. For releasing the Computer, notwithstanding the fact that the Computer has always been 

Saenz’s personal laptop: (A) Plaintiff be ordered to engage a forensic consultant who meets 

the approval of Saenz to log all files and applications on the Computer in the presence of 

counsel for Plaintiff and Saenz; (B) thereafter, Saenz be allowed to retrieve all of his personal 

information and files from the Computer and permanently delete such information and files 

from the Computer, including, but not limited to, personal photos and files and privileged or 

protected information, such as information subject to the attorney-client privilege and/or 

work-product doctrine; and (C) Plaintiff be ordered to preserve and not alter, add, use, or 

delete any files, programs, data, or information on the Computer during the pendency of 

this litigation. 

2. For the zroblack.com website and email subscription: Because Plaintiff could easily obtain an 

account for himself or ZroBlack to transfer the zroblack.com website and emails, and because 

the GoDaddy.com account that hosts the domain is Saenz’s pre-existing personal account with 

unrelated information, Plaintiff should only be allowed the credentials to the zroblack.com 

website and emails for transfer to another hosting account maintained by Plaintiff or ZroBlack 

and should not be allowed to access or use any other data or information associated with 

Saenz’s personal GoDaddy.com account. 

3. Regarding the use or possession of “trade secrets,” Saenz is unable to comply with any other 

relief requested in the Application for lack of possession of any proprietary code, hardware 

schematics, or hardware drawings of ZroBlack. Additionally, regarding any other alleged 

“confidential information,” Plaintiff has failed to describe with particularity the specific 

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information and data, show why it is a trade secret, and show why or how Saenz possesses 

and has used such information. 

CONCLUSION 

WHEREFORE, Defendant John Saenz respectfully requests that the Court: (1) dismiss 

Plaintiff’s Application for injunctive relief with prejudice, (2) deny Plaintiff’s Application for 

injunctive relief in all respects; and (3) grant to Saenz such other and further relief, including 

recovery of attorneys’ fees, to which he is entitled at law or in equity. 

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_________ 

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