IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

BEHAVIOR ANALYST CERTIFICATION 

BOARD, INC., 

 Plaintiff, 

v. 

MICHAEL MOATES, an individual; 

MISTY KIESCHNICK, an individual; and 

THE GLOBAL INSTITUTE OF BEHAVIORAL 

PRACTITIONERS AND EXAMINERS, 

 Defendants. 

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Civil Action No. 4:23-cv-00194-ALM 

PLAINTIFF’S RESPONSE TO DEFENDANT MICHAEL MOATES’ 

AMENDED MOTION TO DISMISS 

Plaintiff, the Behavior Analyst Certification Board, Inc. (“the BACB”), by and through its 

attorneys, submits its Response to Defendant Moates’ Amended Motion to Dismiss (the “Amended 

Motion”) and, in support thereof, states the following: 

A. Defendant Moates’ Amended Motion Is Untimely. 

At the outset, the BACB notes that Defendant Moates’ Amended Motion is untimely 

because he filed it without seeking leave of court. Fed. R. Civ. P. 15 provides that “[a] party may 

amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the 

pleading is one to which a responsive pleading is required, 21 days after service of a responsive 

pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” 

(emphasis added). Moates’ original Motion to Dismiss was filed on August 3, 2023. August 24, 

2023, was therefore the “earlier” deadline for Moates to file the Amended Motion without seeking 

leave of court. He failed to meet this deadline when he filed the Amended Motion on August 28, 

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2023, and he also failed to seek leave of court. The Court should therefore strike the Amended 

Motion. 

B. Moates Has Been Served In Numerous Ways. 

Plaintiff has already exhaustively briefed the numerous ways in which it has served 

Defendant Moates in this case. So as to save time and expense, Plaintiff points the Court to its 

Response and Motion to Strike Defendant Michael Moates’ Motion to Dismiss for Failure to Serve 

and Defendant Moates’ Reply to the Motion for Default Judgment (Dkt. 42), which is hereby 

incorporated in its entirety as if fully set forth herein. 

C. Plaintiff Has Already Stipulated To A Change In Venue. 

Plaintiff has already made its position clear that it is willing to stipulate to a change in 

venue in this case. Plaintiff’s Response to Defendant Kieschnick’s Motion to Dismiss – which has 

now been pending for over three months – states that “Plaintiff is not opposed to the Court 

transferring this case to the Northern District of Texas, where both Defendant Kieschnick and 

Defendant Moates reside.” (Dkt. 27). Accordingly, this issue is already fully briefed for the Court. 

D. Plaintiff’s Complaint Is Sufficiently Specific To Meet Rule 8’s Pleading 

Requirements. 

Fed. R. Civ. P. 8 only requires “a short and plain statement of the claim showing that the 

pleader is entitled to relief.” According to the Fifth Circuit, “[a] plaintiff's complaint ordinarily 

need only be a short and plain statement that gives the defendant notice of what the claim is and 

the grounds upon which it rests. In most cases, challenges to ‘barebones pleadings’ are doomed 

with respect to an attack based on a failure to state a claim.” Colle v. Brazos Cnty, 981 F.2d 237, 

243 (5th Cir. 1993). See also Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting 

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Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009))( “[A] motion to 

dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.’”). 

Plaintiff’s Complaint exceeds the pleading standards set forth in Rule 8. In fact, it would 

be impossible for Plaintiff to be more specific in its Complaint in that Plaintiff clearly references 

(1) the various publication locations in which the Defendants published the various defamatory 

statements; (2) the substance of the Defendants’ various defamatory statements; and (3) which 

Defendant made or published the statements. See, e.g., Complaint at ¶¶ 24-25, 27. Additionally, 

the Complaint sets forth the specific marks the Defendants are using to infringe upon Plaintiff’s 

Federally Registered trademarks, which are also thoroughly described in the Complaint. 

Finally, lack of specificity does not justify dismissal with prejudice. According to Fed. R. 

Civ. P. 15, “[t]he court should freely give leave [to amend] when justice so requires.” 

E. Moates Has Never Conferred with Plaintiff Nor Requested An Extension Of Time 

To File A Responsive Pleading. 

Moates has yet to confer with Plaintiff about any of the pleadings he has filed in this case. 

Additionally, he has never requested an extension of time from Plaintiff as a result of the difficult 

personal circumstances he is facing. Plaintiff would not have opposed a reasonable extension of 

time for the emergencies set forth in Moates’ Amended Motion. Be that as it may, if Moates has 

the time to file other documents in another case he has brought and to persist in harassing Plaintiff, 

then he certainly has the time to participate in this litigation in a timely fashion. See, e.g., Moates 

v. State of North Carolina, 4:23-cv-00772 (N.D. Tex.) filed July 25, 2023 (a pro se action brought 

by Moates against the states of North Carolina, Texas, Virginia, and Nevada, challenging the 

BACB’s certification process in those states and including numerous filings by Moates in July, 

August, and September 2023). 

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F. The Global Institute of Behavioral Practitioners and Examiners (GIBPE) Has 

Utterly Failed To Participate In This Lawsuit. 

As set forth in Plaintiff’s Motion to Strike Defendant Michael Moates’ Motion to Dismiss 

for Failure to Serve and Defendant Moates’ Reply to the Motion for Default Judgment (Dkt. 42), 

the GIBPE has not hired counsel in order to participate in this case. Moreover, Defendant Moates’ 

personal emergencies do not excuse the GIBPE from its lack of participation and Moates makes 

no mention of the GIBPE in the Amended Motion. At minimum, entry of default should be entered 

against the GIBPE in this case. 

 WHEREFORE, Plaintiff respectfully requests that this Court enter an Order 1) striking 

Moates’ Amended Motion to Dismiss (Dkt. 43) as untimely; 2) granting Plaintiff’s Request for 

Clerk’s Entry of Default (Dkt. 36) against Defendants Moates and GIBPE; 3) awarding attorney 

fees and costs; and 4) for such further relief this Court deems just and proper. 

 Respectfully submitted this 11th day of September, 2023. 

HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. 

s/ Mark L. Sabey 

Mark L. Sabey, pro hac vice 

Lindsay K. McManus, pro hac vice

999 17th Street, Suite 800, Denver, CO 80202 

303-801-3538 / marksabey@hallrender.com 

303-802-1293 / lmcmanus@hallrender.com 

and 

Brandon S. Kulwicki 

HALL, RENDER, KILLIAN, HEATH & LYMAN, P.C. 

603 Munger Avenue, Suite 350, Dallas, TX 75202 

P: 214-615-2025 / F: 214-615-2001 

bkulwicki@hallrender.com 

ATTORNEYS FOR PLAINTIFF 

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CERTIFICATE OF SERVICE 

 The undersigned certifies that on September 11, 2023, a true and correct copy of the 

foregoing was served upon the following: 

Misty Kieschnick

9448 Castlewood Dr. 

Fort Worth, TX 76131 

m.kieschnick@att.net 

Defendant – pro se 

Michael Moates 

4501 Nautilus Circle, Apt. 710 

Fort Worth, TX 76106 

mike@cpmht.com

Defendant – pro se 

The Global Institute of Behavioral Practitioners and Examiners 

4501 Nautilus Circle, Apt. 710 

Fort Worth, TX 76106 

mike@cpmht.com

Defendant – pro se 

s/ Mark L. Sabey 

Mark L. Sabey, pro hac vice 

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