Rosalie Conner Still Lives On, As Sam Conner Files Against PHH Mortgage Corporation in Fort Bend

Defendants PHH Mortgage Corporation (“PHH”), Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QS61 (“Deutsche Bank”) and Power Default Services (“Power Default”, collectively with PHH and Deutsche Bank, “Defendants”) files this Motion for Summary Judgment and Brief in Support, and shows this suit must be dismissed because Plaintiff’s claims are barred by res judicata.

I.   RELEVANT BACKGROUND

1.                   On or about September 1, 2023, Plaintiff Rosalie Conner Estate, Attorney in Fact, Sam Conner (“Plaintiff”) filed Plaintiff’s Complaint for Damages, Injunction, Temporary Restraining Order (the “Petition”), bearing Cause No. 23-DCV-308230 in the 400th Judicial

1 Plaintiff incorrectly named “Deutsche Bank Trust Company Americas, as Trustee for RALI Series 2006-QS6″ as the party-defendant in this case. Deutsche Bank Trust Company Americas, as Trustee for Residential Accredit Loans, Inc., Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QS6 is appearing herein in its correct capacity as stated above.

District Court of Fort Bend County, Texas (the “State Court Action”).

[ECF Doc. No. 1 at Exh. B-1].

Defendants removed the action to this Court on September 25, 2023.

[ECF Doc. No. 1]

2.                     The allegations in the Petition relate to a deed of trust and efforts to foreclose a lien on the real property and improvements located at 21006 James Long Court, Richmond, Texas 77406 (the “Property”).

[ECF Doc. No. 1 at Exh. B-1].

In the Petition, Plaintiff generally alleges the following causes of actions:

Defendants violated the Fair Debt Collections and Practices Act, reasonable reliance, detrimental reliance, willful blindness, fraud upon the court, breach of fiduciary duty, intentional deprivation of Civil Rights under 42 U.S.C. §1983. Id. Based upon these allegations, Plaintiff seeks injunctive relief, declaratory judgment, compensatory, special, general, and punitive damages. (See Id. at ¶6.)

3.                  This is Plaintiff’s third attempt to litigate the issues surrounding Plaintiff’s right to enforce the lien on the Property. On September 8, 2021, a Final Judgment ordering that Plaintiff take nothing was entered in this Court in Civil Action No. 4:20-cv-02128, Hon. Kenneth M. Hoyt, Presiding (the “First Suit).

On April 12, 2023, a Final Judgment and Order of Dismissal in Civil Action No. 4:22-cv-02289 in the United States District Court, Southern District of Texas, Houston Division, Hon. George C. Hanks Jr., Presiding. (the “Second Suit”).

Plaintiff’s effort to prevent foreclosure in this action is barred by res judicata.

II.  SUMMARY JUDGMENT STANDARD

4.                     Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed R. Civ. Proc. 56.

“When ruling on a motion for summary judgment, the court is required to view all facts and inferences in the light most favorable to the nonmoving party and resolve all disputed facts in favor of the nonmoving party.”

Puig v. Citibank, N.A., Civil Action No. 3:11-CV-0270-L, 2012 U.S. Dist. LEXIS 70398, at *5 (N.D. Tex. 2012) (citing Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005)); see also FDIC v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993).

If the non-moving party bears the burden of proof at trial, the moving party discharges its summary-judgment burden of proof by showing the absence evidence to support the non-moving party’s case or the absence of any fact issue in the record; the evidentiary burden then shifts to the non-moving party to show with “significant probative” evidence that there exists a triable issue of fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Stahl v. Novartis Pharms. Corp., 283 F.3d 254, 263 (5th Cir. 2002)

(“The moving party may meet its burden to demonstrate the absence of a genuine issue of material fact by pointing out that that record contains no support for the non-moving party’s claim.”).

“If the movant does not bear the burden of proof at trial, then the moving party must identify those portions of the record it believes demonstrate the absence of a genuine issue of material fact.”

SEC v. Arcturus Corp., 171 F. Supp. 3d 512, 521 (N.D. Tex. 2016) (citing Celotex, 477 U.S. at 322–25); Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir. 2005).

5.                     The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 576, 106 S. Ct. 1348, 1350 (1986); see also Little v. Liquid Air Corp., 37 F3d 1069, 1075 (5th Cir. 1994) (en banc)

(non-movant cannot defeat a motion for summary judgment with “conclusory allegations,” “unsubstantiated assertions,” or a mere “scintilla” of evidence).

“Conclusory allegations, unsubstantiated assertions, or a mere scintilla of evidence cannot defeat a motion for summary judgment.”

SEC v. Arcturus Corp., 171 F. Supp. 3d 512, 521 (N.D. Tex. 2016).

“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”

Salazar-Limon v. City of Hous., 826 F.3d 272, 276 (5th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

“Courts have no duty, furthermore, to search the record for a material disputed fact.”

Thomason v. Metro. Life Ins. Co., 165 F. Supp. 3d 512, 516 (N.D. Tex. 2016) (citing RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010) and Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012)).

III.  EVIDENCE

6.                   Defendant relies on the following evidence in support of this Motion, true and correct copies of which are attached hereto and incorporated by reference herein and requests the court take notice of same:

Exhibit A        Notice of Removal, Civil Action No. 4:20-cv-021282;

Exhibit B        Final Judgment, Civil Action No. 4:20-cv-02128;

Exhibit C         First Amended Complaint, Civil Action No. 4:22-cv-02289;

Exhibit D         Order of Dismissal and Final Judgment, Civil Action No. 4:22-cv-02289.

IV.   ARGUMENT AND AUTHORITIES

A.              Plaintiff lacks standing to assert claims on behalf of estate.

7.                  It is unclear whether Plaintiff intends to bring this suit on behalf of his mother’s estate or on his own behalf.

Plaintiff refers to himself as the attorney in fact or “AIF,” but there is no indication that he is actually the executor of his mother’s estate.

The label “AIF,” it appears, simply refers to the fact that Plaintiff signed the Note and Deed of Trust as attorney-in-fact for his mother.

Generally, an estate’s personal representative has the exclusive right to bring suit on behalf of an estate.

Grissom v. CCOP Senior Living L.L.C., No. EP-06-CA-286-FM, 2007 WL 1231649, at *3 (W.D. Tex. Apr. 23, 2007) (citing Shepherd v. Ledford, 962 S.W.2d 28, 31-32 (Tex. 1998)); Pratho v. Zapata, 157 S.W.3d 832, 839 (Tex. App.-Fort Worth 2005, no pet.)

2 Plaintiff’s Emergency Motion for Temporary Restraining Order, or Ex-Parte Motion for Temporary Restraining Order, Cause No. 20-DCV-270030, in the 240th Judicial District Court for Fort Bend County, Texas is incorporated in the Notice of Removal as Exhibit D-1

(“Under the general rule applied in Shepherd v. Ledford, if an estate is pending, an heir does not have standing to sue on behalf of the estate because the estate’s personal representative generally has the exclusive right to bring such suits.”));

Reed v. Pigora Loan Servicing LLC, No. 1:20-CV- 1035-LY-SH, 2021 WL 84354, at *3 (W.D. Tex. Jan. 11, 2021)

(“Unless Plaintiff has been duly appointed as executor or administrator of Butler’s estate, she has no authority to challenge the foreclosure of her father’s property.”)

(citing Newton v. Bank of Am., N.A., No. CV-SA-19-CA- 797-FB, 2019 WL 6048000, at *1 (W.D. Tex. Aug. 29, 2019)).

8.                  Here, Plaintiff is not the executor of his mother’s estate.

He therefore lacks standing to assert claims on behalf of the estate.

The Original Petition, to the extent it purports to be filed on behalf of the estate, should be dismissed for that reason.

9.                  Moreover, even if Plaintiff purported to bring suit on his own behalf, he, as a non- borrower under the Note and Deed of Trust, would also lack standing to sue.

See, e.g., Ashby v. Wells Fargo Bank, N.A., No. H-12-0803, 2012 WL 1833932, at *2 (S.D. Tex. May 18, 2012)

(no contractual relationship between lender and non-borrower who inherited property when parents died, was not a party to note or deed of trust, and did not allege or prove the lender consented to him assuming the loan);

Darlington v. Specialized Loan Servicing, LLC, No. 1:18-cv-674-LY- ML, 2019 WL 4999006, at *5 (W.D. Tex. July 30, 2019)

(plaintiff, who was not a borrower or debtor, could not bring suit for defendant’s failure to provide notice of default, intent to accelerate, right to cure, or foreclosure), report and recommendation adopted, 2019 WL 11541361 (W.D. Tex. Aug. 22, 2019);

Kiper v. BAC Home Loans Servicing, 884 F. Supp. 2d 561, 570 (S.D. Tex. 2012)

(a nonborrower, even one with an ownership interest in the subject property, lacks standing to bring claims related to the subject note).

Either way, the Petition should be dismissed on lack-of-standing grounds.

B.              Plaintiff’s claims are barred by the doctrine of res judicata.

10.              Plaintiff’s previous petitions in the first two lawsuits are nearly identical to his current petition pending before the court.

Compare Exhibit A, Exhibit C with [ECF No. 1. Ex. B-1].

In fact, paragraphs 1-23 of Plaintiff’s Petition are verbatim copied and pasted from Plaintiff’s First Amended Complaint in the Second Suit.

Plaintiff’s Second Suit was dismissed under the doctrine of res judicata.

See Exhibit D. Plaintiff’s suit pending before the Court should be dismissed under the same grounds.

11.              The doctrine of res judicata operates as a means of claim preclusion in federal court and “forecloses relitigation of claims that were or could have been raised in a prior action.”

Davis v. Dall. Area Rapid Transit, 383 F.3d 309, 312–13 (5th Cir. 2004) (citing Allen v. McCurry, 449 U.S. 90, 94 (1980)).

Under res judicata principles, once a judgment is rendered by a court of competent jurisdiction, that judgment is thereafter considered the full measure of relief to be accorded between the same parties on the same “claim” or “cause of action.”

Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 535 (5th Cir. 1978) (citing Angel v. Bullington, 330 U.S. 183. 186 (1947))

(holding that a judgment rendered for defendant “extinguishes” plaintiff’s claims and acts as a “bar” to further relief on them).

12.              The underlying purpose of res judicata is to avoid multiple suits on “identical entitlements or obligations between the same parties,” accompanied by a redetermination of identical issues. Id.

As applied in federal courts, the concept of res judicata “bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication… not merely those that were adjudicated.”

Howe v. Vaughan (In re Howe), 913 F.2d 1138, 1144 (5th Cir. 1989) (quoting Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 560 (5th Cir. 1983) (en banc) (emphasis in original)).

Therefore, a final judgment in favor of a defendant operates as a complete bar to a plaintiff seeking to bring a second suit based upon the same event or series of events, because “res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether he were asserted or determined in the prior proceeding.”

Southmark Props. v. Charles House Corp., 742 F.2d 862, 872 (5th Cir. 1984) (quoting Brown v. Felsen, 442 U.S. 127, 131 (1979)).

13.              The test for res judicata has four elements:

(1) the parties are identical or in privity;

(2) the judgment in the prior action was rendered by a court of competent jurisdiction;

(3) the prior action was concluded by a final judgment on the merits;

and

(4) the same claim or cause of action was involved in both actions.

Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005) (citation omitted).

“If these four conditions are satisfied, res judicata prohibits either party from raising any claim or defense in the later action that was or could have been raised in support of or in opposition to the cause of action asserted in the prior action.”

Ayati-Ghaffari v. JP Morgan Chase Bank, N.A., No. 4:18-CV-483-ALM-CAN, 2019 U.S. Dist. LEXIS 46003, at *14 (E.D. Tex. 2019) (internal citations omitted); In re Howe, 913 F.2d 1138, 1144 (5th Cir. 1990).

This action is Plaintiff’s third attempt to assert the same identical claims related to the subject mortgage loan agreement.

(1)  The Parties are Identical or in Privity

14.              As to the first element, the parties are identical.

Rosalie Conner Estate, Attorney in Fact, Sam Conner is the Plaintiff and PHH, Deutsche Bank, and Power Default are the Defendants in this suit.

The First Suit included Rosalie Conner as plaintiff and PHH, Deutsche Bank, and Power Default as defendants. (Compare Exhibit A and ECF Doc. No. 1, Exh.. B-1).

“The identity of parties test is met not only as to parties to the earlier litigation . . . but also to those in privity with them.”

Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 188 (5th Cir. 1990).

“A non-party is in privity with a party for res judicata purposes . . . if he is a successor in interest to the party’s interest in the property[.]” Id.

Sam is a successor in interest to Rosalie’s interest in the subject property and is, as a result, in privity with her for res judicata purposes.

See Taylor v. Sturgell, 553 U.S. 880,894 (2008)

15.              The Second Suit included Rosalie Conner Estate, Attorney in Fact, Sam Conner as plaintiff and PHH, Deustche Bank, and Power Default as defendants, the identical parties to the current suit.

(Compare Exhibit C and ECF Doc. No. 1, Exh. B-1).

Accordingly, the first requirement of res judicata has been met.

Rivas v. U.S. Bank Nat’l Ass’n, No. H-14-3246, 2015

U.S. Dist. LEXIS 164501, at *4-5 (S.D. Tex. 2015) (citing Maxwell v. U.S. Bank, N.A., 544 Fed. App’x 470, 473 (5th Cir. 2013))

(2)  The Final Judgment entered in the prior cases were rendered by a court of competent jurisdiction.

16.              The Final Judgments in both the First Suit and Second Suit were rendered against Plaintiff on its claims, ordering denial of same on the merits.

See Exhibit B and Exhibit D.

The Final Judgments were entered in the United States District Court for the Southern District of Texas, Houston Division. Id.

Both matters had jurisdiction to enter the Final Judgment under 28 U.S.C. §1332 because the parties were diverse and the amount in controversy exceeded $75,000.00.

Therefore, there is no doubt that the Final Judgments entered in the prior cases were rendered by courts of competent jurisdiction. (See Id.)

Accordingly, the second requirement of res judicata has been met.

(3)  The Prior Case concluded by a final judgment on the merits.

17.              A prior judgment is considered “on the merits” only if rendered after the parties have been given a reasonable opportunity to litigate a claim before a court of competent jurisdiction, and the final judgment completely disposes of the underlying cause of action or determines that the plaintiff has no cause of action.

Kaspar Wire Works, Inc., 575 F.2d at 537–

18.              A dismissal which is designated “with prejudice” is normally an adjudication on the merits for purpose of res judicata.

Fernandez–Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 n. 8 (5th Cir.1993).

A summary judgment is a final judgment on the merits for res judicata purposes.

Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348 (5th Cir. 1985).

The Final Judgment in the First Suit granted defendants’ motion for summary judgment and right to proceed in foreclosure.

(See Exhibit B).

The Order of Dismissal and Final Judgment in the Second Suit dismissed Plaintiff’s claims with prejudice, due to res judicata:

Here, the Estate’s claims against Defendants are barred by res judicata because of the dismissal on the merits, with prejudice of nearly identical claims brought by Rosalie Conner in a prior action.

Conner v. PHH Mortgage Corporation, Southern District of Texas cause number 4:20-cv-2128, which was presided over by Judge Hoyt.

(Dkt. 13-6).

The record reflects that Defendants were named parties in both lawsuits and the judgment in the prior action was rendered by a court of competent jurisdiction—the United StatesDistrict Court for the Southern District of Texas.

See Ho-Huynh, 2014 WL 12599510 at *3.

The prior action was concluded by the entry of final judgment on the merits by Judge Hoyt.

(Dkt. 13- 6).

See Exhibit D

19.              Given the language contained in the final judgments in both the First and Second suits there is no doubt that they were both final orders. See Exhibits B and D.

Thus, the third requirement for res judicata is satisfied.

(4)  The current action is based on the same claims that were raised in the Prior Case

20.              Finally, the fourth requirement in the res judicata analysis requires the Court to determine if the same cause of action was presented in both cases.

To determine whether the same claim or cause of action is involved, the Fifth Circuit utilizes the Restatement (Second) of Judgment’s transactional test.

Petro-Hunt, L.L.C. v. U.S., 365 F.3d 385, 395 (5th Cir. 2004).

“Under that test, the preclusive effect of a prior judgment extends to all rights the original plaintiff had “with respect to all or any part of the transaction, or series of connected transactions, out of which the [original] action arose.”

Id. at 395-96 (citation omitted).

21.              The critical issue is not the relief requested or the theory asserted by the plaintiff, but whether the plaintiff bases the two actions on the “same nucleus of operative facts.”

In re Ark–La–Tex Timber Co., Inc., 482 F.3d 319, 330 (5th Cir. 2007).

Making a determination of whether the same nucleus of operative facts is present requires that the Court analyze “the factual predicate of the claims asserted, not the legal theories upon which the plaintiff relies.” Id.

A judgment on the merits operates as a bar to the later suit, even though a different legal theory of recovery is advanced in the second suit.

Hall v. U.S., No. 6:06-CV-528, 2007 U.S. Dist. LEXIS 104091 at *12-13 (E.D. Tex. Dec. 17, 2007), report and recommendation adopted, 2008 U.S. Dist. LEXIS 6631 (E.D. Tex. Jan. 30, 2008).

22.              Res judicata operates as a complete bar to a plaintiff seeking to bring a second (or later) suit based upon the same event or series of events and “bars all claims that were or could have been advanced in support of the cause of action on the occasion of its former adjudication… not merely those that were adjudicated.” Id.

23.              Plaintiff’s claims in this lawsuit arise from the same loan and deed of trust as the claims in both the First Suit and Second Suit.

(Compare Exhibit A and Exhibit B with ECF Doc. 1-1).

This falls squarely within the meaning of connected transactions.

See Mahlin v. GMAC Mortgage LLC, Civil No. 3:13-CV-906-M-BK, 2013 WL 6153289, at *3 (N.D. Tex. Nov. 22, 2013)

(finding the transaction test was met where a new cause of action was brought against foreclosure of the same property in a subsequent suit).

24.              Additionally, the majority of Plaintiff’s petition in the instant suit is verbatim copied and pasted from the Second Suit. Compare Exhibit C ¶¶ 1-23 with ECF No. 1, Exh. B-1  1-23.

Plaintiff tacks on two additional claims violation of procedural due process and intentional deprivation of civil rights under 42 U/S.C. §1983 which fail as a matter of law as outlined below.

C.              Plaintiff’s claim for intentional deprivation of civil rights under 42 U.S.C. §1983 fails as a matter of law.

25.              Section 1983 “provides a federal cause of action for the deprivation, under color of law, of a citizen’s ‘rights, privileges, or immunities secured by the Constitution and laws’ of the United States” and “afford[s] redress for violations of federal statutes, as well as of constitutional norms.”

Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S. Ct. 2068, 129 L. Ed. 2d 93 (1994).

To state a claim under § 1983, Plaintiff must allege facts that show

(1) he has been deprived of a right secured by the Constitution and the laws of the United States; and

(2) the deprivation occurred under color of state law.

See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978); Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549 (5th Cir. 2005).

Plaintiff sues Defendants based on the foreclosure of the Property.

See ECF Doc 1, Exh. B-1.

26.            Plaintiff must allege that he has been deprived of a right secured by the Constitution and laws of the United States and that the alleged deprivation was committed by a person acting under color of state law to state a viable claim for relief in a § 1983 action.

See American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999), West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988).

“Under color of state law” excludes from its reach purely private conduct, no matter how discriminatory or wrongful.

Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982).

27.            Private action may be deemed state action for purposes of § 1983 only where the challenged conduct “may be fairly attributable to the State.”

Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982).

Plaintiff has not alleged that Defendants are state actors or any facts to support a claim that their involvement in the foreclosure proceedings may be attributable to the State.

He therefore fails to state a plausible claim under § 1983.

D.              Plaintiff’s procedural due process claim fails as a matter of law.

28.              To establish a procedural due process violation, “a plaintiff must prove that (1) he was  deprived  of  a  life,  liberty,  or  property  interest  (2)  without  the process that was due.”

Saucedo-Falls v. Kunkle, 299 F. App’x 315, 319 (5th Cir. 2008) (unpub.) (citing Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 84 L. Ed. 2d 494& n.3 (1985)).

29.              However, it is well established in both Texas and the Fifth Circuit that nonjudicial foreclosures do not violate a mortgagor’s right to due process where the entity foreclosing is not a federal or state actor.

Barrera v. Sec. Bldg. & Inv. Corp., 519 F.2d 1166, 1169-74 (5th Cir. 1975)

(holding that nonjudicial foreclosures by private parties under Article 3810 of the Texas Revised Civil Statutes — subsequently recodified as section 51.002 of the Texas Property Code — do not deprive individuals of their property in violation of the Fourteenth Amendment);

Williams v. Cheyenne Crossing Residential Ass’n, Inc., 2010 U.S. Dist. LEXIS 133769, 2010 WL 5287509, at *2 (E.D. Tex. 2010)

(collecting Fifth Circuit and Texas authorities);

see also, e.g., Ramsey v. Neindorff, 177 F.3d 977, at *1-2 [published in full- text format at 1999 U.S. App. LEXIS 41147] (5th Cir. 1999) (unpub.)

(explaining that Barrera’s holding applies with equal force under section 51.002 of the Texas Property Code);

Coleman v. JPMorgan Chase Bank, N.A., 2007 U.S. Dist. LEXIS 14064, 2007 WL 656170, at *1 (S.D. Tex. 2007).

Plaintiff has not alleged — nor could it allege — that Defendants are federal or state actors.

E.              Plaintiff has no valid underlying cause of action to support its request for injunctive relief.

30.              “[A]n  injunction  is  a  remedy  that  must  be  supported  by  an underlying cause of action . . .”

Crook v. Galaviz, 616 F. App’x 747, 753 (5th Cir. 2015) (per curiam).

As outlined above, Defendants are entitled to summary judgment on each of the Plaintiff’s claims.

Consequently, no underlying cause of action remains to support Plaintiff’s claim for injunctive relief.

Therefore, Plaintiff’s claims for injunctive relief should be dismissed with prejudice.

WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that the Court dismiss Plaintiff’s claims with prejudice and grant Defendants all other relief to which it may be entitled.

Respectfully submitted,

By:  /s/ Nicholas M. Frame

MARK D. CRONENWETT
Attorney in Charge Texas Bar No. 00787303
Southern District Bar No. 21340
mcronenwett@mwzmlaw.com

NICHOLAS M. FRAME
Of Counsel
Texas Bar No. 24093448
Southern District Bar No. 3121681
nframe@mwzmlaw.com

MACKIE, WOLF, ZIENTZ & MANN, PC
14160 N. Dallas Parkway, Suite 900
Dallas, Texas 75254
Telephone: (214) 635-2650
Facsimile: (214) 635-2686

ATTORNEYS FOR DEFENDANTS