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BRIEF IN SUPPORT OF

DEFENDANT MAKRIS’ FOR MOTION TO DISMISS UNDER FRCP 12(b)(6) PAGE 1

8434758_1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

BRIEF IN SUPPORT OF 

DEFENDANT MAKRIS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) 

Respectfully submitted, 

/s/ James S. Robertson, III 

James S. Robertson, III 

State Bar No. 17061075 

GLAST, PHILLIPS & MURRAY, P.C. 

14801 Quorum Drive, Suite 500 

Dallas, TX 75254-1449 

972-419-7136 

469-206-5048 – Telecopier 

jrobertson@gpm-law.com 

ATTORNEY FOR 

DEFENDANT ANTHONY MAKRIS 

 

NATIONAL RIFLE ASSOCIATION OF 

AMERICA, 

 Plaintiff, 

v. 

ACKERMAN McQUEEN, INC. and 

MERCURY GROUP, INC. 

 

 Defendants. 

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Civil Action No. 3:22-CV-1944-G 

The Honorable A. Joe Fish, presiding. 

FILED UNDER SEAL 

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TABLE OF CONTENTS 

TABLE OF CONTENTS .................................................................................................... 2

INDEX OF AUTHORITIES ............................................................................................... 3

I. FACTS .................................................................................................................. 4

II. ARGUMENT AND AUTHORITIES ........................................................................ 6

A. FRCP 12 (b)(6) ............................................................................................ 6

B. Claims Against Makris Are Moot ................................................................... 6

C. Plaintiff is Collaterally Estopped .................................................................... 7

D. Plaintiff’s Breach of Fiduciary Duty, Fraud and Related Claims Barred by 

Limitations .................................................................................................. 7

CONCLUSION AND PRAYER ......................................................................................... 8

CERTIFICATE OF SERVICE ............................................................................................ 9

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INDEX OF AUTHORITIES

Cases

Bell Atl. Corp v. Twombly, 

550 U.S. 44, 555-56 (2007) ........................................................................................... 6 

Cook, Inc. v. State Farm Mut. Auto Ins., 

869 F.3d 381, 385 (5th Cir. 2017) ................................................................................... 6 

FDIC v Nueces County, 

886 S.W.2d 766, 767 (Tex. 1994) .................................................................................. 6 

Funny Guy, LLC v. Lecego, LLC, 

295 S.E.2d 887, 889 - 891 (Va. 2017) ........................................................................... 7 

Hernandez – Perez v. State, 

No. 01-09-00801-CR, 2010 WL 2133935 at *1 (Tex. App. – Houston [1st Dist.] 

May 27, 2010, no pet.) (Mem. Op.) ................................................................................. 7 

Northstar Aviation, LLC v. Alberto, 

332 F. Supp. 3d 1007, 1015 (E.D. Va. 2018) ................................................................ 8 

Scanlan v. Texas A&M Univ., 

343 F.3d 533, 536 (5th Cir. 2003) ................................................................................... 6 

Singer v. Dungan, 

45 F.3d 823, 827 (4th Cir. 1995) ................................................................................... 8 

Valley Baptist Med. Ctr. v. Gonzalez, 

33 S.W.3d 823, 822 (Tex. 2000) .................................................................................... 6 

Statutes

VA. CODE ANN. § 8.01-243 ................................................................................................. 7 

VA. CODE ANN. § 8.01-248 ................................................................................................. 7 

Rules

FRCP 12(b)(6) ..................................................................................................................... 4 

FRCP 12(d) .......................................................................................................................... 6 

FRCP 15 .............................................................................................................................. 4 

 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

BRIEF IN SUPPORT OF 

DEFENDANT MAKRIS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) 

TO THE HONORABLE A. JOE FISH, SENIOR JUDGE: 

Comes now, Anthony “Tony” Makris (“Makris”), named as a Defendant herein, and files 

this his Brief in Support of the Motion to Dismiss for Failure to State a Claim under FRCP 12(b)(6), 

and in support thereof respectfully shows the following: 

I.

FACTS 

1.1 Plaintiff originally sued Ackerman McQueen, Inc. (“AMc”) and its subsidiary 

Mercury Group (“MG”). Without seeking leave of court under FRCP 15, Plaintiff has now filed 

its Second Amended Complaint (the “Amended Complaint”), urging claims against AMc and MG 

for alleged breach of that certain Confidential Settlement Agreement (“CSA”) entered into by the 

NRA, AMc, MG and others (not including Under Wild Skies Inc. (“UWS”) or Makris). Similar 

allegations have now been added against Makris, along with breach of fiduciary duty, fraud and 

related claims surrounding allegedly false and fraudulent “Supplement Invoices” submitted by 

UWS to NRA for services rendered under agreements between those two parties. 

NATIONAL RIFLE ASSOCIATION OF 

AMERICA, 

 Plaintiff, 

v. 

ACKERMAN McQUEEN, INC. and 

MERCURY GROUP, INC. 

 

 Defendants. 

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Civil Action No. 3:22-CV-1944-G 

The Honorable A. Joe Fish, presiding. 

FILED UNDER SEAL 

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1.2 All claims asserted against Makris – as well as the other defendants – have been 

litigated to conclusion in Virginia and are the subject of final orders entered in Case No. CL-2019-

12530, styled Under Wild Skies, Inc. v. National Rifle Association of America, in the Circuit Court 

of Fairfax County, Virginia (the “UWS Litigation”). That case, tried to a jury September 12-20, 

2022, resulted in a verdict favorable to UWS. 

1.3 Makris is the owner of and principal in UWS, a non-affiliate of and not related to 

either AMc or MG. 

1.4 The NRA now seeks to re-litigate issues against Makris (and the other Defendants) 

that were fully aired, litigated and ruled on in the UWS Litigation. As to each Defendant, the 

“controversy” between them and the NRA has been fully resolved in the UWS Litigation, as 

rulings, orders and the verdict issued in that case have rendered moot all claims urged in this case. 

1.5 Furthermore, the NRA is collaterally estopped from urging breach of fiduciary duty 

and fraud and related claims against Makris, as all issues relating to or arising from UWS/Makris’ 

submission of purportedly fraudulent “Supplemental Invoices” were tried and submitted to the 

jury in the UWS Litigation. Please see Declaration of T. Wayne Biggs (“Biggs” Decl.”) included 

in the Appendix (cited as “App.”) filed contemporaneously with this Brief, pp. 3 – 6, especially p. 

4. 

1.6 NRA’s breach of fiduciary duty and fraud claims (Counts Two and Three, 

respectively, in the Amended Complaint) are barred by limitations as are its causes of action based 

on the breach of fiduciary duty and fraud claims (Counts Four, Five and Six in the Amended 

Complaint). 

1.7 Thus, the claims asserted against Makris do not state claims that entitle Plaintiff to 

relief. 

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II.

ARGUMENT AND AUTHORITIES 

A. FRCP 12 (b)(6). 

2.1 The Court in considering a dismissal motion under the cited rule looks to a party’s 

pleading to determine the sufficiency of its statement of claims for relief. Body by Cook, Inc. v. 

State Farm Mut. Auto Ins., 869 F.3d 381, 385 (5th Cir. 2017). Stated differently, the test is whether 

the pleadings meet the “standard” of plausibility, Bell Atl. Corp v. Twombly, 550 U.S. 44, 555-56 

(2007). 

2.2 Generally, the Court limits its inquiry to facts stated in the complaint, but if a 

document is central to the claim or is attached to or incorporated by reference into the complaint, 

it is not considered “outside the pleadings” and can be considered by the Court. See, e.g., Scanlan 

v. Texas A&M Univ., 343 F.3d 533, 536 (5th Cir. 2003). Plaintiff not only cites to a document 

central to its case (the CSA) but also attached a copy and related documents to the Amended 

Complaint. Of course, the Court also has the option of converting the motion to a summary 

judgment, should it deem that action appropriate and should it conclude that the extrinsic evidence 

is “outside the pleadings”. FRCP 12(d). 

B. Claims Against Makris Are Moot. 

2.3 The doctrine of mootness, well-recognized in this jurisdiction, limits courts to 

deciding cases in which an actual controversy exists, and prevents courts from rendering advisory 

decisions. See, FDIC v Nueces County, 886 S.W.2d 766, 767 (Tex. 1994); Valley Baptist Med. 

Ctr. v. Gonzalez, 33 S.W.3d 823, 822 (Tex. 2000). 

2.4 Here, the controversy which existed between the NRA and Makris has been 

resolved by a verdict rendered after a full trial, and by orders that are final and subsisting. See, 

Biggs Decl. 

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2.5 This doctrine also implicates subject matter jurisdiction. Hernandez – Perez v. 

State, No. 01-09-00801-CR, 2010 WL 2133935 at *1 (Tex. App. – Houston [1st Dist.] May 27, 

2010, no pet.) (Mem. Op.). When a case becomes moot, the parties lose standing to maintain their 

claims. Id.

C. Plaintiff is Collaterally Estopped. 

2.6 Although Makris was not a named party in the UWS Litigation, the very activity of 

which he is now accused was the crux of that case. See, Biggs Decl. at ¶6 (App., p. 4), respecting 

claims surrounding the same allegedly fraudulent “Supplemental Invoices” now featured in the 

Amended Complaint. Even without complete identity of parties, issue preclusion bars re-litigation 

of matters which were tried previously, or which could have been raised. Funny Guy, LLC v. 

Lecego, LLC, 295 S.E.2d 887, 889 - 891 (Va. 2017). 

D. Plaintiff’s Breach of Fiduciary Duty, Fraud and Related Claims Barred by Limitations. 

2.7 As was evident from the scope of the UWS Litigation, Virginia law applies to the 

fraud claim. Moreover, NRA does not allege any facts in the Amended Complaint fixing Texas 

as the place where Makris allegedly committed fraud or breached any fiduciary duties. Rather, 

NRS alleges that Makris submitted fraudulent “Supplemental Invoices” to NRA and provides no 

place to which those invoices might have been submitted other than NRS’s Virginia place of 

business (See ¶15 of the Amended Complaint). As such, Virginia law would govern any alleged 

tortious activity and same would be subject to two-year statutes of limitations under Virginia law. 

VA. CODE ANN. § 8.01-243 (“every action for damages resulting from fraud, shall be brought 

within two years after the cause of action accrues” [emphasis added]); VA. CODE ANN. § 8.01-248 

(“Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise 

prescribed, shall be brought within two years after the right to bring such action has accrued.”); 

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Singer v. Dungan, 45 F.3d 823, 827 (4th Cir. 1995)(Va. Code Ann. § 8.01-248 governs breach of 

fiduciary duty claims); Northstar Aviation, LLC v. Alberto, 332 F. Supp. 3d 1007, 1015 (E.D. Va. 

2018)(“it is well-settled (i) that the applicable limitations period for claims of breach of fiduciary 

duty is two years, (ii) that the applicable limitations period for claims of fraud is two years”). 

2.8 Plaintiff’s breach of fiduciary duty and fraud claims are predicated upon allegedly 

fraudulent invoices sent and paid between 2009 and 2019, well more than two years before this 

case was filed (See the Amended Complaint, ¶¶ 60 – 63) and thus are barred by the applicable 

statutes of limitation. 

2.9 In Counts Four and Five of Plaintiff’s Second Amended Complaint, NRS seeks 

“declaratory judgment” concerning positions Makris could and/or might take in this case. These 

counts are not claims for relief beyond this case. Accordingly, if the Court grants Makris’ motion 

to dismiss the breach of fiduciary duty and fraud, claims Counts Four and Five fail by definition. 

2.10 In Count Six of Plaintiff’s Second Amended Complaint, NRS seeks “an order, inter 

alia, requiring an accurate accounting of any of Makris’ accounts in which any NRA funds relating 

to the Supplemental Invoices were deposited, transferred, disbursed or withdrawn from, removed 

or altered in any manner.” This count explicitly relates to the “Supplemental Invoices” at issue in, 

and on which NRS’s breach of fiduciary duty and fraud claims are predicated, and as such, like 

Counts Four and Five, fails by definition if grants Makris’ motion to dismiss NRA’s breach of 

fiduciary duty and fraud claims. 

III. 

CONCLUSION AND PRAYER 

FOR THESE REASONS, Makris prays that, upon hearing, this Honorable Court GRANT 

Makris’ Motion to Dismiss, and for such other and further relief to which he may show himself 

entitled. 

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Respectfully submitted, 

/s/ James S. Robertson, III 

James S. Robertson, III 

State Bar No. 17061075 

GLAST, PHILLIPS & MURRAY, P.C. 

14801 Quorum Drive, Suite 500 

Dallas, TX 75254-1449 

972-419-7136 

469-206-5048 – Telecopier 

jrobertson@gpm-law.com 

ATTORNEYS FOR DEFENDANT 

ANTHONY MAKRIS 

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on February 1, 2023, a true and correct copy of the 

foregoing instrument was electronically filed under seal with Court Clerk through the Court’s 

electronic case filing system and a copy served on all other counsel/parties of record in accordance 

with FED. R. CIV. P. 5. 

/s/ James S. Robertson, III 

James S. Robertson, III 

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