4855‐4296‐8837.2  

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

SAN ANTONIO DIVISION 

JONATHAN VILLAREAL, 

individually and derivatively on behalf of 

ZROBLACK LLC, 

Plaintiff, 

v. 

JOHN SAENZ; MIGUEL VILLAREAL, 

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

Defendants. 

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No. 5:20-CV-00571-OG

DEFENDANT JOHN SAENZ’S MOTION FOR JUDGMENT ON THE PLEADINGS OR, 

IN THE ALTERNATIVE, MOTION TO DISMISS THE CLAIMS ASSERTED BY 

JONATHAN VILLARREAL, INDIVIDUALLY 

Pursuant to Federal Rule of Civil Procedure 12(c), Defendant John Saenz (“Saenz”), through 

his undersigned counsel, hereby submits this Motion for Judgment on the Pleadings or, in the 

Alternative, Motion to Dismiss (the “Motion”) the Claims Asserted by Jonathan Villarreal, 

Individually (“Villarreal”). In support thereof, Saenz states as follows. 

INTRODUCTION 

Based on Plaintiffs’ live pleading, Villarreal purportedly filed suit in his individual capacity 

and derivatively on behalf of ZroBlack, LLC (“ZroBlack”). Pursuant to and following the Court’s 

August 4, 2021 Order (ECF No. 67), Plaintiffs’ only surviving claims against Saenz in this matter 

include alleged breach of fiduciary duty and alleged violations of the Computer Fraud and Abuse Act 

(“CFAA”) and the Anti-cybersquatting Consumer Protection Act (“ACPA”)—to the extent such 

claims are premised on Saenz’s purported conduct after the parties executed a Release. See ECF. No. 

67, at p. 7. 

On November 18, 2021, the Honorable United States Magistrate Judge Richard B. Farrer 

signed a Report and Recommendation recommending that each of these claims, to the extent asserted 

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on behalf of ZroBlack, be dismissed with prejudice. See ECF No. 74, at p. 4–5. Should the Court 

adopt Judge Farrer’s Report and Recommendation, then only claims by Villareal in his individual 

capacity, if any, would remain in this case (not including Saenz’s counterclaims). However, Saenz 

respectfully submits that the three surviving claims necessarily belong to, and have been asserted by, 

ZroBlack only as set forth in Plaintiffs’ live pleading. Accordingly, Saenz requests entry of judgment 

against Villarreal on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Alternatively, 

Saenz requests dismissal of any claims asserted by Villarreal, individually. 

BACKGROUND 

 On January 15, 2021, Plaintiffs filed their First Amended Verified Complaint (ECF No. 35). 

Saenz then filed a Motion to Dismiss (ECF No. 41). 

On May 18, 2021, United States Magistrate Judge Richard B. Farrer signed a Report and 

Recommendation (ECF No. 59) regarding Saenz’s Motion to Dismiss. The Court adopted the Report 

and Recommendation in full in the Court’s August 4, 2021 Order (the “Order”) (ECF No. 67). In 

pertinent part, the Order granted in part and denied in part Saenz’s Motion to Dismiss. “Only 

Plaintiffs’ claims against Defendant Saenz for breach of fiduciary duty and for violations of the CFAA 

and ACPA—insofar as these claims are premised on Saenz’s alleged conduct after the parties 

executed the Release”—survived the Motion to Dismiss. ECF No. 67, at p. 7. 

 On June 25, 2021, the Court granted the Motion to Withdraw filed by former counsel for 

Plaintiffs. See ECF No. 62. The Court also advised Plaintiffs that ZroBlack “can only be represented 

by licensed counsel” and “needs to obtain counsel and have them enter an appearance on the docket 

within 30 days ... in order to avoid dismissal of its claims.” Id. 

 Plaintiffs then sought additional time to obtain counsel (ECF No. 66), which Saenz did not 

oppose. On August 6, 2021, the Court entered a Text Order granting Plaintiffs’ Motion for Extension 

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of Time as unopposed. The Text Order provided that “Plaintiff is granted an extension and shall have 

up to and including September 20, 2021, to obtain a new attorney” and that “ZroBlack must have 

counsel enter an appearance on the docket in order to avoid dismissal of its claims.” 

 On November 18, 2021, following ZroBlack’s failure to obtain new counsel, Judge Farrer 

signed another Report and Recommendation (ECF No. 74) recommending that “all claims asserted 

by ZroBlack against the remaining Defendant John Saenz be DISMISSED” for failure to comply with 

the Court’s orders and reminders. Judge Farrer also ordered that Saenz address, within 21 days, 

“whether and to what extent Plaintiff Jonathan Villarreal has any remaining individual claims in this 

action.” ECF No. 74, at p. 1. Saenz now files this Motion respectfully requesting that the Court clarify 

the pending claims and either: (1) enter a judgement on the pleadings against Villarreal based on the 

fact that Villarreal has no remaining claims in his individual capacity, or (2) dismiss, with prejudice, 

any claims asserted by Villarreal in his individual capacity. 

ARGUMENT 

 At any time after the pleadings close and before the trial commences, a party may move for a 

judgment on the pleadings under Rule 12(c). See FED. R. CIV. P. 12(c). The pleadings close after the 

following pleadings in the case have been filed, as applicable: an answer to a complaint, counterclaim 

or crossclaim, and a third-party complaint and answer to same. See FED.R.CIV.P. 7(a). In determining 

the Motion, the Court may consider any of the pleadings, including the complaint, the answer, and 

any written instruments attached to them. See Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 

440-41 (5th Cir. 2015). A motion brought pursuant to Rule 12(c) is designed to dispose of cases where 

the material facts are not in dispute and a judgment on the merits can be rendered by looking at the 

substance of the pleadings and any judicially noticed facts. Hebert Abstract Co. v. Touchstone Props., 

Ltd., 914 F.2d 74, 76 (5th Cir. 1990). 

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 Here, the three surviving claims of Plaintiffs following the Court’s August 4, 2021 Order are 

for (1) breach of fiduciary duty, (2) violations of the CFAA, and (3) violations of the ACPA. Each of 

these causes of action, on their face, have been pleaded and asserted by ZroBlack alone—not by 

Villarreal in his individual capacity—and therefore necessarily belong to solely ZroBlack. 

Accordingly, the Court should enter a judgement on the pleadings against Villarreal. 

A. THE REMAINING CLAIMS IN PLAINTIFFS’ FIRST AMENDED VERIFIED COMPLAINT ARE 

ASSERTED SOLELY BY ZROBLACK, NOT BY VILLARREAL IN HIS INDIVIDUAL CAPACITY.

A review of Plaintiffs’ live pleading, the First Amended Verified Complaint (ECF No. 35), 

reveals that each of the three causes of action surviving the Court’s August 4, 2021 Order have been 

asserted solely by ZroBlack, LLC—the company—and not on behalf of Villarreal in his individual 

capacity. Therefore, based on Plaintiffs’ own pleading and allegations, Villarreal, individually, has 

not asserted any of the remaining claims in this action. 

Regarding the first surviving cause of action (purported violations of the CFAA), the First 

Amended Verified Complaint alleges, in pertinent part, the following: 

Count 2: Violations of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. 

§ 1030(g) 

... 

164. Saenz’s access and deletion of ZroBlack’s webpage and email server

interrupted GoDaddy’s service to ZroBlack, causing a loss of more than $5,000. 

Furthermore, Saenz’s access and deletion of the email server and webpage caused a 

loss of more than $5,000 in data. Finally, ZroBlack has spent in excess of $5,000 

trying to obtain return of the lap top [sic] computer and domain name and trying to 

resolve the loss of emails and documents resulting from the deletion. 

... 

166. After execution of the Release and Consent, Saenz was required to return 

ZroBlack’s property to it upon request as it was the property of ZroBlack. At this 

juncture, Saenz’s authorization to access the laptop was revoked as it was no longer 

his property but the property of ZroBlack in accordance with the Company 

Agreement. 

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... 

170. Saenz also intentionally accessed ZroBlack’s domain on GoDaddy and 

deleted ZroBlack’s webpage and email server. The domain, including the webpage 

and email server, were the property of ZroBlack. 

171. Saenz held the domain name as nominee or an agent of ZroBlack. Once 

ZroBlack and Saenz parted ways, Saenz’s authorization to hold the domain as 

ZroBlack’s nominee or agent was no longer authorized and he was required to hand 

over all access rights to ZroBlack. 

... 

173. Saenz’s actions have caused ZroBlack to lose major contracts because he 

holds the key to the domain name. The domain name contains the DUNS information 

that is still currently in Saenz’s name. Jonathan has been unable to update the DUNS 

information confirming ZroBlack’s ownership causing it to lose contracts. 

ECF No. 35, at pp. 30-33 (emphasis added). 

Stated more simply, the First Amended Verified Complaint alleges that Saenz deleted the 

webpage and email server that belonged to ZroBlack (not Villarreal) and as a result, caused damage 

to ZroBlack (not Villarreal) in the form of incurred expenses and lost contracts. This cause of action, 

on its face, belongs to and is asserted solely by ZroBlack, rather than Villarreal, individually. 

Therefore, this cause of action is already the subject of Judge Farrer’s dismissal recommendation in 

the August 4, 2021 Report and Recommendation. Accordingly, with respect to any claim for CFAA 

violations, Saenz requests that the Court enter a judgement on the pleadings against Villarreal because 

Villarreal has not asserted this claim in his individual capacity. 

 Regarding the next surviving cause of action (violations of the ACPA), the First Amended 

Verified Complaint alleges, in pertinent part, the following: 

Count 3: Violations of the Anti-cybersquatting Consumer Protection Act 

(“ACPA”), 15 U.S.C. § 1125(d). 

... 

177. ZroBlack has a common law interest in its name under section 43(a) of the 

Lanham Act. 15. U.S.C. § 1125. The “ZroBlack” name is a distinctive identifier for 

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the productions and services ZroBlack provides. The www.zroblack.com domain is 

identical or confusingly similar to ZroBlack’s mark. Saenz has no trademark or other 

intellectual property rights in the domain name. Saenz maintains control and use of 

the ZroBlack website with a bad faith intent. Saenz no longer has any intellectual 

property rights in the domain name after he was removed from the company. The 

domain name consists of the exact same legal name of ZroBlack as it was maintained 

prior to his removal from the Company. After his termination, Saenz intended to divert 

consumers from ZroBlack’s online location to a site accessible under the domain 

name that could harm the goodwill represented by the mark, either for commercial 

gain or with the intent to tarnish or disparage the mark, by creating a likelihood of 

confusion as to the source, sponsorship, affiliation, or endorsement of the site. Saenz 

continues to provide material and misleading false contact information and fails to 

maintain accurate contact information for the domain name. 

178. Saenz has not released the GoDaddy account to ZroBlack. Therefore 

ZroBlack cannot update its contact and ownership information for its Dun & 

Bradstreet number (known as a (DUNs number), its CAGE number (Commercial And 

Government Entity code), and its access to its SAM.gov account (System Award 

Management), a U.S. governmental portal for bidding on government contracts. Saenz 

blackmailed ZroBlack over the domain name, webpage, and email server, offering to 

sell it back to ZroBlack for $7,000. Saenz has taken the website down effectively 

terminating ZroBlack’s ability to gain new clients. Saenz also deleted the email 

server, thereby destroying hundreds of emails and documents supporting Jonathan’s 

claims, ZroBlack’s projects for [Foreign Client] and other matters. Saenz has even 

gone as far as attempting to shop the technology to others and threatens to continue to 

try to market the code. 

ECF No. 35, at pp. 33-35 (emphasis added). 

In other words, the First Amended Verified Petition alleges in support of this cause of action 

that Saenz maintains and has refused to return the domain, website, email server and GoDaddy 

account purportedly belonging to ZroBlack—not Villarreal—and has, therefore, damaged ZroBlack 

by preventing it from gaining new clients. Thus, Plaintiffs’ own pleading makes clear that this cause 

of action belongs to and is asserted solely by ZroBlack, rather than Villarreal, individually. Therefore, 

this claim is also subject, in its entirety, to Judge Farrer’s dismissal recommendation. Accordingly, 

with respect to any claim for ACPA violations, Saenz requests that the Court enter a judgement on 

the pleadings against Villarreal because Villarreal has not asserted this claim in his individual 

capacity. 

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 Regarding the final surviving cause of action (breach of formal fiduciary duties), the First 

Amended Verified Petition alleges, in pertinent part, the following: 

Count 5: Breach of Formal Fiduciary Duties Against Saenz 

... 

186. As a CEO and Managing Member of ZroBlack, Defendant Saenz was a 

fiduciary of ZroBlack at all times material to this action. 

187. Defendant Saenz breached his fiduciary duty to ZroBlack by engaging in 

transactions that benefited him, personally, at the expense of ZroBlack. 

... 

189. Corporate officers and directors owe fiduciary duties, including a duty of 

loyalty and a duty of care to the company .... 

190. Section 4.5 of the Company Operating Agreement states that the Chief 

Executive Member had primary responsibility for managing the operations of the 

ZroBlack [sic] and carrying out the decisions of the members. Saenz was the Chief 

Executive Member and styled himself as CEO of ZroBlack. 

191. And yet, Saenz continued to act in his own self-interest, withholding company

property and trade secrets; withholding monies from the company that were allocated 

for Saenz and Villarreal to work on projects for their customers; and refusing, due to 

spite, ignorance, and/or malfeasance, to allow ZroBlack’s managers to access 

confidential information the company could use to build its business. 

... 

194. And yet, [Saenz] continued to maintain dominion and control over ZroBlack’s 

domain (URL), email server, and other electronic access point [sic] that were an 

essential avenue of commerce. 

195. Although these requests were made of Saenz after Saenz departed the 

company, and he could not have any personal use of the domain or email server, he 

continues to deny access to IT access points of ZroBlack, which directly caused 

ZroBlack to lose valuable contracting opportunities. 

ECF No. 35, at pp. 37-38 (emphasis added). 

In short, the First Amended Verified Complaint alleges in support of this cause of action only 

that Saenz owed formal fiduciary duties to ZroBlack (not to Villarreal) and purportedly breached such 

duties, thereby allegedly causing damage to ZroBlack alone (not to Villarreal). This cause of action, 

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therefore, belongs to and is asserted solely by ZroBlack, rather than Villarreal, individually. 

Therefore, this claim is also subject, in its entirety, to Judge Farrer’s dismissal recommendation. 

Accordingly, with respect to any claim for breach of fiduciary duties, Saenz requests that the Court 

enter a judgement on the pleadings against Villarreal because Villarreal has not asserted this claim in 

his individual capacity. 

B. ADDITIONALLY, AND IN THE ALTERNATIVE, THE REMAINING CLAIMS IN PLAINTIFFS’

FIRST AMENDED VERIFIED COMPLAINT BELONG TO ZROBLACK, NOT VILLARREAL, AS A 

MATTER OF LAW AND SHOULD BE DISMISSED AS TO VILLARREAL.

In addition to the fact that Plaintiffs’ live pleading expressly asserts the three surviving causes 

of action on behalf of ZroBlack alone, the underlying factual allegations for such claims, coupled with 

clear legal authority governing such claims, also establish that the causes of action necessarily belong 

to ZroBlack—not Villarreal—as a matter of law. In this regard, and as explained more fully below, 

Villarreal, individually, does not have standing to assert any claims for violations of the CFAA and 

ACPA because: (1) Villarreal has not suffered damage or loss by reason of a violation of the CFAA, 

and (2) Villarreal is not the owner of the mark at issue. Similarly, the claim for breach of fiduciary 

duties is based upon Saenz’s prior role with ZroBlack, and under Texas law, such fiduciary duties 

flow solely to the company itself, not to the members. Accordingly, even if Plaintiffs’ alleged the 

remaining causes of action on behalf of Villarreal, individually (which they did not), such claims 

nevertheless fail as a matter of law and are subject to dismissal. 

1) The Causes of Action for CFAA and ACPA Violations Necessarily Belong to 

ZroBlack as the Purported Owner of the Subject Property. 

Under the CFAA, a civil action may be maintained by “any person who suffers damage or 

loss by reason of a violation” of the statute “to obtain compensatory damages and injunctive relief or 

other equitable relief.” 18 U.S.C. § 1030(g). Similarly, under the ACPA, the “owner of a mark” may 

bring a civil action against a person who commits a violation of the statute. 15 U.S.C. § 

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1125(d)(1)(A).1 Therefore, in order to assert claims for violations of these two statutes, Villarreal 

would need to have either suffered damage or loss in his individual capacity by reason of a purported 

violation of the CFAA and/or be the owner in his individual capacity of the ZroBlack mark. Neither 

of these prerequisites is true; indeed, Plaintiffs’ own pleadings confirm the opposite. 

According to Plaintiffs, the property and allegations made the basis of the CFAA and ACPA 

causes of action—namely, the subject laptop, webpage, and email server—are all purportedly 

company property owned by ZroBlack. Likewise, the damages alleged in support of such claims were 

all purportedly sustained by ZroBlack alone—not by Villarreal individually. See ECF No. 35, at ¶¶ 

163-173, 175-184 (Counts 2 and 3) (claiming that: (i) “Saenz’s access and deletion of ZroBlack’s 

webpage and email server interrupted GoDaddy’s service to ZroBlack,” (ii) “Saenz was required to 

return ZroBlack’s property to it upon request as it was the property of ZroBlack,” (iii) the laptop is 

“the property of ZroBlack in accordance with the Company Agreement,” (iv) “Saenz has not released 

the GoDaddy account to ZroBlack,” and (v) “Saenz’s actions have caused ZroBlack to lose major 

contracts....”); Id. at ¶¶ 175-178 (“ZroBlack has a common law interest in its name.... The 

www.zroblack.com domain is identical or confusingly similar to ZroBlack’s mark.”). 

Accordingly, it is clear that Villarreal, individually, has not suffered any damage or loss by 

reason of any purported violation of the CFAA and is not the owner of the ZroBlack mark made the 

subject of the purported ACPA violations. Because ZroBlack alone has purportedly sustained 

damages or losses as a result of Saenz’s purported violations of the CFAA, and because ZroBlack 

alone is the purported owner of the ZroBlack mark made the basis of the purported violations of the 

ACPA, both such causes of action necessarily belong to ZroBlack alone—not to Villarreal. Therefore, 

1

 These are the same two subsections of the respective statutes cited in Plaintiffs’ First Amended 

Verified Complaint. See ECF No. 35, at ¶¶ 163, 175. 

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to the extent that Villarreal could have asserted these claims in his individual capacity (which he did 

not), such claims should be dismissed as a matter of law. 

2) The Breach of Fiduciary Duties Cause of Action Necessarily Belongs to ZroBlack 

as the Entity to Which Any Purported Fiduciary Duties Would Flow under Texas 

Law. 

Under Texas law, members in a limited liability company do not owe a formal fiduciary duty 

to one another as a matter of law. See Chase v. Hodge, No. 1:20-cv-0175-RP, 2021 WL 1948470, at 

*23-24 (W.D. Tex. May 14, 2021) (citing Gill v. Grewal, 2020 WL 3171360, at *20 (S.D. Tex. June 

15, 2020); Higher Perpetual Energy LLC v. Higher Power Energy, LLC, 2018 WL 3020328, at *9 

(E.D. Tex. June 18, 2018)). Accordingly, any purported formal fiduciary duties of Saenz run solely 

to ZroBlack (as opposed to Villarreal) as a matter of law in Texas. 

Additionally, the First Amended Verified Complaint also specifically alleges that Saenz owed 

and breached fiduciary duties to ZroBlack alone—not to Villarreal individually. See ECF No. 35, at 

¶¶ 186-199 (Count 5) (“As a CEO and Managing Member of ZroBlack, Defendant Saenz was a 

fiduciary of ZroBlack at all times material to this action. Defendant Saenz breached his fiduciary duty 

to ZroBlack by engaging in transactions that benefitted him, personally, at the expense of ZroBlack.”). 

Because Saenz does not owe any formal fiduciary duties to Villarreal in his individual 

capacity as a matter of law, and based on the allegations in First Amended Verified Complaint, any 

claim for breach of fiduciary duties against Saenz necessarily belongs to and is asserted by ZroBlack 

alone—not Villarreal, individually. Therefore, to the extent that Villarreal could have asserted such 

claim in his individual capacity (which he did not), such claim should be dismissed as a matter of law. 

CONCLUSION 

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

Saenz’s Motion for Judgment on the Pleadings or, in the Alternative, Motion to Dismiss the Claims 

Asserted by Villarreal, Individually; (2) enter a judgement on the pleadings against Villarreal based 

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on the fact that Villarreal, individually, has no remaining claims against Saenz; (3) alternatively, 

dismiss, with prejudice, any claims asserted by Villarreal in his individual capacity or otherwise enter 

an order confirming that all claims and causes of action that Villarreal, individually, has asserted 

in this case against Saenz have been dismissed with prejudice; (4) award Saenz recovery of his 

costs, expenses and attorneys’ fees in connection with this Motion and the lawsuit, and (5) grant 

to Saenz such other and further relief to which he is entitled at law or in equity. 

Respectfully submitted this 9th day of December 

2021.

By: /s/ David A. Vanderhider

 David A. Vanderhider 

State Bar No. 24070787 

DVanderhider@dykema.com 

Daniel A. Ray 

State Bar No. 24098306 

DRay@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 

9th day of December 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. I further certify 

that a copy of the foregoing was served on Jonathan Villarreal on the 9th day of December 2021 

via certified mail, return receipt requested, at the last known address of Jonathan Villarreal on file 

with the Court. 

 By: /s/ David A. Vanderhider 

 David A. Vanderhider 

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