IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

PHILIP HUNTER JOCHEM, § 

 § 

 Plaintiff, § 

 § 

v. § 

 § 

CHARLES E. ORTEGA, JEFFREY § CIVIL ACTION No. 3:22-CV-01890 

MARK FRITZ, NEXTGEN § 

MANAGEMENT GROUP, LLC, § 

NEXTGEN WELLNESS GROUP, INC., § 

AND FOJ PROPERTY GROUP, LLC, § 

 § 

 Defendants. § 

DEFENDANTS’ BRIEF IN SUPPORT OF THEIR PARTIAL 

MOTION TO DISMISS AND FOR MORE DEFINITE STATEMENT 

 Defendants Charles E. Ortega, Jeffery Mark Fritz,1

 Nextgen Management Group, LLC, 

Nextgen Wellness Group, Inc., and FOJ Property Group, LLC (collectively, “Defendants”) move 

to dismiss the Plaintiff’s declaratory judgment claims contained in paragraphs 182, 183, 188, 189, 

190, and 191 of Plaintiff’s Complaint and Plaintiff’s claim for partition pursuant to Federal Rule 

of Civil Procedure 12(b)(6) for failure to state a claim. Defendants request that the Court dismiss 

the declaratory judgment and partition claims with prejudice. Further, Defendants request that the 

Court enter an order requiring Plaintiff to provide a more definite statement of his Complaint 

pursuant to Federal Rule of Civil Procedure 12(e). 

I. INTRODUCTION 

Plaintiff Philip Hunter Jochem (“Plaintiff”) has asserted, among other causes of action, 

claims for declaratory judgment and partition. (See Dkt. 1 at 41, 42, 48). However, each of these 

claims is defective because: (1) several of the Plaintiff’s requests for declaratory judgment are 

1

 Defendant Jeffery Mark Fritz is improperly named in this lawsuit as “Jeffrey Mark Fritz.” 

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improper; and (2) Plaintiff requests partition of real estate that he identifies in his Complaint is 

wholly owned by Defendant FOJ Property Group, LLC and not owned, even in part, by Plaintiff. 

Defendants therefore respectfully request that the Court dismiss these claims. 

Additionally, Plaintiff’s Complaint contains multiple vague and ambiguous claims that 

Defendants cannot adequately respond to. Plaintiff’s conspiracy claim alleges only that 

“Defendants [Charles] Ortega and [Jeffery] Fritz committed one or more of the tortious wrongful 

acts” and that “Ortega and Fritz have caused themselves and [Defendant Nextgen Management 

Group, LLC] to engage in one or more acts in furtherance of the conspiracy.” (Id. at 46 ¶ 213). 

Moreover, Plaintiff’s asserts his conspiracy claim against all Defendants but includes no 

allegations whatsoever pertaining to Wellness or FOJ. (Id. at 46 ¶¶ 212-216). As such, Plaintiff’s 

conspiracy claim “is so vague or ambiguous that [Defendants] cannot reasonably prepare a 

response” to Plaintiff’s claim. Fed. R. Civ. P. 12(e). Similarly, Plaintiff alleges in his breach of 

contract claim that “Ortega and Fritz breached the terms of . . . other agreements of which Plaintiff 

was a third-party beneficiary,” without identifying to which contracts he refers, rendering the 

allegation so vague that Defendants cannot prepare a response. (Dkt. 1 at 45 ¶ 206). As such, 

Defendants respectfully request that the Court order Plaintiff to make a more definite statement as 

to his conspiracy and breach of contract claims. 

II. BACKGROUND 

Plaintiff and Defendants Dr. Jeffery Fritz (“Fritz”) and Charles Ortega (“Ortega”) are coequal members of Nextgen Management Group, LLC (“Management”), which is itself the sole 

member Nextgen Wellness Group, Inc. (“Wellness”), a non-profit health organization that operates 

pain management, physical therapy, and injury clinics. Plaintiff, Fritz, and Ortega are also co-equal 

members of FOJ Property Group, LLC (“FOJ”). On April 25, 2022, by written consent, 

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Management removed Plaintiff as the sole Manager of Management and expelled him as a member 

pursuant to the terms of the company’s Operating Agreement. Each of Plaintiff’s claims in this 

action (with the arguable exception of the partition claim against FOJ) stem from Plaintiff’s 

removal and expulsion. 

III. ARGUMENTS AND AUTHORITIES 

A. Legal Standards. 

Under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain “enough facts 

to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 

544, 570 (2007). A plaintiff “does not need detailed factual allegations” but must provide “more 

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not 

do.” Twombly, 550 U.S. at 555. “[A] complaint must contain sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (quoting Twombly, 550 U.S. at 570). If factual allegations are not sufficient “to raise a right 

to relief above the speculative level,” the claim should be dismissed. Twombly, 550 U.S. at 555. 

“A party may move for a more definite statement of a pleading to which a responsive 

pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare 

a response.” Fed. R. Civ. P. 12(e). “If a complaint is ambiguous or does not contain sufficient 

information to allow a responsive pleading to be framed, the proper remedy is a motion for a more 

definite statement under Rule 12(e).” Sisk v. Tex. Parks and Wildlife Dep’t, 644 F.2d 1056, 1059 

(5th Cir. 1981). 

B. Plaintiff Has Asserted Improper Declaratory Judgment Claims. 

Plaintiff’s first cause of action requests that the Court make more than a dozen declarations 

concerning the parties. Under the Declaratory Judgments Act (DJA), a person may request that a 

court determine the rights or other legal relations of an interested party. See 28 U.S.C. § 2201(a). 

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However, to obtain a declaratory judgment, there must be a justiciable controversy as to the rights 

or other relations of parties that the declaration sought will resolve. See id. 

i. Plaintiff’s Requested Declarations as to Factual Issues Are Improper.

Plaintiff requests that the Court declare that: (1) Fritz breached the Management 

Membership Interest Purchase Agreement; (2) Fritz and Ortega breached the Management 

Operating Agreement; (3) cause did not exist to remove Plaintiff as a manager of Management; 

(4) Ortega and Fritz breached Section 6.13 of the Management Operating Agreement; (5) no 

grounds existed under Section 15.01 of the Management Operating Agreement to expel Plaintiff 

as a member; and (6) in the event such grounds for expulsion existed, none of such grounds fell 

under Section 15.01(i)-(v). (Dkt. 1 at 41-42 ¶¶ 182, 183, 188-191). 

Each of the foregoing items are purely factual disputes that may not be resolved by 

declaratory relief. See, e.g., Gibson v. Liberty Mut. Group, Inc., 778 F. Supp. 2d 75, 79 (D.D.C. 

2011) (holding that “purely factual” questions “are not appropriate for declaratory relief”). 

Although Plaintiff notes that he seeks entry of an order “declaring facts, rights, status, and legal 

obligations,” (Dkt. 1 at 41 ¶ 178 (emphasis added)), the DJA permits a court to “declare the rights 

and other legal relations of any interested party,” notably excluding the ability to seek a declaration 

as to facts. 28 U.S.C. § 2201(a). Whether Fritz and Ortega breached certain agreements and 

whether cause existed to remove Plaintiff as a manager or expel him as a member of Management 

are strictly factual matters, and the requested declarations would not “declare the rights or other 

legal relations” of any party, as required by the DJA. Id.; see also Pediatrix Med. Grp. of Florida, 

Inc. v. Aetna Inc., Case No. 18-60908-CIV, 2018 WL 4997092, at *6 (S.D. Fla. Aug. 27, 2018) 

(“[A] legal dispute over the correct interpretation of a contract is an appropriate subject for 

declaratory relief. A factual dispute over whether a party breached a contract is not.”). Because the 

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foregoing requests for declaratory relief are solely factual issues, they cannot be resolved by 

declaratory judgment, and the Court should dismiss them as a matter of law.

ii. Plaintiffs Requested Declarations that Are Duplicative of His Breach of 

Contract Claim Are Improper.

Several of Plaintiff’s requests for declarations are duplicative of his breach of contract 

claim, and, as such, the declaratory relief he seeks is improper. Specifically, Plaintiff requests that 

the Court declare that: (1) Fritz breached the Management Membership Interest Purchase 

Agreement; (2) Fritz and Ortega breached the Management Operating Agreement; and (3) Ortega 

and Fritz breached Section 6.13 of the Management Operating Agreement. (See Dkt. 1 at 41 ¶ 182, 

183, 189). Not only are all of these purely factual issues, as addressed above, each are encompassed 

by Plaintiff’s breach of contract claim, which alleges that “Ortega and Fritz breached the terms of 

the Operating Agreement, Membership Interest Purchase Agreements, and other agreements of 

which Plaintiff was a third-party beneficiary.” (Dkt. 1 at ¶ 206). However, “[w]here declaratory 

relief is duplicative of a legal claim, a court can dismiss the declaratory relief claim from the suit 

as a matter of law.” Ladd v. Colonial Sav., F.A., No. 3:13-CV-1817-P, 2014 WL 1393038, at *5 

(N.D. Tex. Apr. 10, 2014) (dismissing declaratory judgment action where relief was duplicative 

of breach of contract claim). As the Fifth Circuit has made clear, “[t]he purpose of the Declaratory 

Judgment Act is to settle ‘actual controversies’ before they ripen into violations of law or a breach 

of some contractual duty,” not settle disputes that the party alleges have already ripened into 

breaches. Hardware Mut. Cas. Co. v. Schantz, 178 F.2d 779, 780 (5th Cir. 1949). As such, these 

declarations are improper and should be dismissed. 

iii. The Court Lacks Jurisdiction to Enter Plaintiff’s Requested Declaration 

Relating to FOJ.

Without identifying an actual justiciable controversy, Plaintiff seeks some nonspecific 

“declaration of his rights associated with his shared ownership of FOJ Property Group, LLC.” 

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(Dkt. 1 at 42 ¶ 192). “A declaratory judgment action is ripe for adjudication only where an ‘actual 

controversy’ exists,” meaning that there is “a substantial controversy of sufficient immediacy and 

reality between parties having adverse legal interests.” Orix Credit Alliance, Inc. v. Wolfe, 212 

F.3d 891, 896 (5th Cir. 2000) (first quote); Middle South Energy, Inc. v. City of New Orleans, 800 

F.2d 488, 490 (5th Cir. 1986) (second quote). Here, however, Plaintiff pleads no “actual 

controversy” between himself and Fritz, Ortega, or FOJ relating to “his rights associated with his 

shared ownership” of FOJ. Although Plaintiff notes that the requested declaration should include, 

but not be limited to, his rights as to “shared management and control thereof, entitlement to books 

and records of [FOJ], and any distributions of past and future revenue generated by [FOJ],” 

Plaintiff has pleaded no allegation that there is any dispute among himself and Fritz, Ortega, or 

FOJ relating to these rights. He does not allege, for example, that he has requested and been denied 

the books and records of FOJ or that Fritz, Ortega, or FOJ have denied his right to past or future 

distributions. Nothing in the Complaint indicates that there is any “actual controversy” concerning 

Plaintiff’s “rights associated” with his membership in FOJ, and the Court therefore lacks subjectmatter jurisdiction to make this declaration. 

C. Plaintiff Lacks Standing to Seek Partition of Property Owned by FOJ. 

Despite admitting that FOJ “owns [the] commercial building” at issue, Plaintiff improperly 

seeks partition of the building that he does not own. (Dkt. 1 at 48 ¶ 225). The Texas Property Code 

provides that “[a] joint owner . . . of real property or an interest in real property . . . may compel a 

partition of the interest or the property among the joint owners.” Tex. Prop. Code § 23.001. Further, 

Texas courts are clear that a party must be a joint owner and have equal right to possession of the 

property with other joint owners to bring an action for partition. See, e.g., Brelsford v. Scheltz, 564 

S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1978) (noting that, in a partition action, the 

plaintiff has “the burden of proving joint ownership and an equal right to possession with the other 

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joint owners”). But, according to Plaintiff’s Complaint, Plaintiff is not a joint owner of the building 

he seeks to partition. Rather, he owns a membership interest in FOJ, which is the sole owner of 

the building. (Dkt. 1 at 40 ¶ 174). Under Texas law, a member in a limited liability company has 

no ownership interest in the property owned by the entity. See Tex. Bus. Orgs. Code § 101.106(b). 

(“A member of a limited liability company . . . does not have an interest in any specific property 

of the company.”). Because Plaintiff’s Complaint makes clear that he does not own an interest in 

the building, as required by the Texas Property Code, he does not have standing to seek partition 

of the building, and the claim should be dismissed. 

D. Plaintiff’s Conspiracy and Breach of Contract Claims Require a More Definite 

Statement. 

Plaintiff’s conspiracy claim against all Defendants “is so vague or ambiguous that 

[Defendants] cannot reasonably prepare a response” to it. Fed. R. Civ. P. 12(e). Plaintiff asserts 

only that “Defendants Ortega and Fritz have formed and acted in furtherance and engaged in a 

civil conspiracy with each other to commit one or more of the tortious wrongful acts alleged 

herein” and that “Ortega and Fritz have caused themselves and [Management] to engage in one or 

more acts in furtherance of the conspiracy.” (Id. at 46 ¶ 213). The Complaint fails to identify any 

tort or other wrongful act that Defendants are alleged to have conspired to commit or any actions 

taken by Defendants in furtherance of such conspiracy. Additionally, although brought against all 

Defendants, Plaintiff includes no conspiracy allegations relating to Wellness or FOJ. Without 

identifying any such acts or any allegations at all pertaining to two of the five defendants, 

Plaintiff’s conspiracy claim “does not contain sufficient information to allow a responsive pleading 

to be framed,” and the Court should order Plaintiff to make a more definite statement of his 

conspiracy claim. Sisk, 644 F.2d at 1059. 

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Similarly, Plaintiff’s breach of contract claim is missing crucial information that renders it 

“so vague or ambiguous that [Defendants] cannot reasonably prepare a response.” Fed. R. Civ. P. 

12(e). Plaintiff’s Complaint alleges that “Ortega and Fritz breached the terms of . . . other 

agreements of which Plaintiff was a third-party beneficiary,” without identifying to what “other 

agreements” he refers. (Dkt. 1 at 45 ¶ 206). Plaintiff has brought a claim for breaches of various 

contracts but has entirely obscured the nature of the contracts, withholding identification of the 

parties to the contract(s), the title of the contract(s), and the provision(s) allegedly violated. 

Defendants cannot respond to an allegation of breach when they have no knowledge of which 

contract(s) Plaintiff is suing on. The Court should therefore order Plaintiff to make a more definite 

statement as to his breach of contract claim to expressly identify the contract(s) he alleges 

Defendants have breached.

IV. CONCLUSION 

For the foregoing reasons, Defendants respectfully request that the Court dismiss with 

prejudice Plaintiff’s claims for declaratory judgment identified herein and partition, order Plaintiff 

to make a more definition statement of his Complaint as outlined herein, and grant Defendants all 

such further relief to which they may be justly entitled. 

 

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Respectfully submitted, 

 By: /s/ Michael C. Kelsheimer 

 MICHAEL C. KELSHEIMER

Texas Bar No. 15109200 

mkelsheimer@graygreed.com 

JACOB A. LEWIS

Texas Bar No. 24087924 

jlewis@grayreed.com 

GRAY REED & MCGRAW LLP 

4600 Thanksgiving Tower 

1601 Elm Street 

Dallas, Texas 75201 

(214) 954-4135 – Telephone 

(214) 953-1332 – Facsimile 

ATTORNEYS FOR DEFENDANTS 

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on November 7, 2022, a true and correct copy of the 

foregoing document was served upon Plaintiff’s counsel of record via the Court’s ECF system as 

follows: 

Jules P. Slim 

P.O. Box 140307 

Irving, TX 75014 

jslim@slimlawfirm.com 

/s/ Michael C. Kelsheimer 

 Michael C. Kelsheimer 

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