United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court are the partial motion to dismiss for failure to
state a claim by Defendant Redgate Software, Inc., (Dkt. 42),
the partial motion to dismiss for failure to state a claim by
Defendant David Frignoca, (Dkt. 44), and the motion to
dismiss for lack of personal jurisdiction by Defendant
Redgate Software, Ltd., (Dkt. 43). After reviewing the
pleadings, briefs, and relevant law, the Court
GRANTS all three motions.
11, 2017, Plaintiffs brought an action in this Court against
four defendants, alleging eight claims. (Pls.' Orig.
Compl., Dkt. 1). The claims arose from the departure of four
employees of Embarcadero,  David Frignoca
(“Frignoca”), Dustin Abney (“Abney”)
and two others, each of whom left Embarcadero and joined the
same company. That company, Redgate, Ltd., is incorporated in
the United Kingdom and has a subsidiary called Redgate, Inc.,
(together, “the Redgate Defendants”), which is
incorporated in California. Plaintiffs brought suit against
Frignoca, Abney, Redgate Ltd., and Redgate Inc., alleging the
following claims: (1) breach of contract (Frignoca); (2)
breach of fiduciary duty (Frignoca); (3) aiding and abetting
breach of fiduciary duty (the Redgate Defendants); (4)
misappropriation of trade secrets in violation of the Federal
Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836,
et seq. (Frignoca and the Redgate Defendants); (5)
misappropriation of trade secrets in violation of the Texas
Uniform Trade Secrets Act (“TUTSA”), Tex. Civ.
Prac. & Rem. Code § 134A.001, et seq.
(Frignoca and the Redgate Defendants); (6) violation of the
federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030,
et seq. (Frignoca); (7) violation of the Texas
Harmful Access by Computer Act (“HACA”), Tex.
Civ. Prac & Rem. Code § 143.001, et seq.
(Frignoca); and (8) breach of contract (Abney). (Am. Compl.,
Dkt. 33, ¶¶ 32-69). Plaintiffs requested a
preliminary injunction, which the Court denied following a
two-day hearing. (Order, Dkt. 78). The Court deferred until a
later date a decision on the pending motions to
dismiss. These motions are now before the Court.
Rule of Civil Procedure 12(b)(6) provides for dismissal of an
action for “failure to state a claim upon which relief
can be granted.” When evaluating a motion to dismiss
under Rule 12(b)(6) the “district court must accept all
well-pleaded facts as true and view them in the light most
favorable to the plaintiff.” Baker v. Putnal,
75 F.3d 190, 196 (5th Cir. 1996). “To survive a motion
to dismiss, 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 Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556).
in deciding a motion to dismiss for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2),
the court must accept as true the plaintiff's
“uncontroverted allegations, and resolve in its favor
all conflicts between the facts contained in the parties'
affidavits and other documentation.” Alpine View
Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir.
2000). “[T]he plaintiff bears the burden of
establishing jurisdiction, but need only present prima
facie evidence.” Revell v. Lidov, 317
F.3d 467, 469 (5th Cir. 2002).
seeks to dismiss Plaintiffs' claims for breach of
fiduciary duty and violation of the Texas Harmful Access by
Computer Act; the Redgate Defendants seek dismissal of the
claim against them for aiding and abetting a breach of
fiduciary duty; Defendant Redgate, Ltd. also seeks to dismiss
all claims against it, contending that the Court lacks
personal jurisdiction to hear them. The Court addresses each
motion in turn.
TUTSA Preemption: Breach of Fiduciary Duty Claims
seeks dismissal of the claims against him for breach of
fiduciary duty and violation of HACA on the ground that both
claims are preempted by TUTSA. The Redgate Defendants contend,
along the same lines, that the aiding and abetting claim
against them derived from the breach of fiduciary duty claim
against Frignoca should be dismissed on preemption grounds,
as well. TUTSA contains a preemption provision.
(a) Except as provided by Subsection (b), this chapter
displaces conflicting tort, restitutionary, and other law of
this state providing civil remedies for misappropriation of a
(b) This chapter does not affect:
(1) contractual remedies, whether or not based upon
misappropriation of a trade secret;
(2) other civil remedies that are not based upon
misappropriation of a ...