United States District Court, N.D. Texas, Fort Worth Division
JOACHIM (JOHN) W. EXNER, ET AL., Plaintiffs,
FIRST COMMAND FINANCIAL SERVICES, INC., ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
for consideration the motion of defendants, First Command
Financial Services, Inc., First Command Financial Planning,
Inc., First Command Advisory Services, Inc., First Command
Insurance Services, Inc., and First Command Bank,
partially dismiss. The court, having considered the motion,
the response of plaintiffs, Joachim (John) W. Exner
("John"), Claudia Exner ("Claudia"),
Exner, Inc. ("El"), and Exner & Associates,
Inc. ("EAI"), the reply, the record, and applicable
authorities, finds that the motion should be granted in part.
March 27, 2019, plaintiffs filed their original complaint in
the United States District Court for the Eastern District of
Virginia, Alexandra Division. Doc. 1. On April 12, 2019, they
filed their first amended complaint. Doc. 6. In it,
and Claudia are married and reside in Virginia. Doc. 6,
¶ 11. John is a financial advisor and owner of El and
EAI. Id. Claudia is also a registered financial
advisor and owner of EAI. Id. & ¶ 12. El is
the registered owner of eight copyrights, one trademark, and
a collection of works entitled "The Consistent Client
Experience" ("CCE"), and other intellectual
property works. Id. ¶¶ 13, 19. Plaintiffs
are engaged in the business of financial planning for active
and retired military veterans and their families.
Id. ¶ 14. A fundamental aspect of their
business is the development and use of trade and business
secrets, including copyrighted materials. Id.
September 2 010, John entered into an agreement with
defendants to serve as an independent contractor.
Id. ¶ 15. As part of John's relationship
with defendants, he was required to submit to them
copyrighted works for review and approval. Id.
¶ 20. In July 2013, John submitted to plaintiffs part of
a copyrighted work and was advised that he would not be
permitted to use it unless the copyright notice was removed.
Id. ¶ 22. John refused to do so. Id.
Subsequently, defendants revised the agreement with
independent contractors as of December 1, 2014, to include a
provision on ownership of intellectual property. Id.
¶ 25, John refused to sign the agreement. Id.
¶ 26. On March 27, 2017, defendants terminated John and
Claudia, stating that their association would end April 26,
2017. Id. ¶¶ 28, 29.
March 27, 2017, defendants seized seven computers and related
equipment belonging to John and his team. They copied hard
drives and gained access to personal information, deleting
contacts and numbers from personal devices. Id.
¶ 33. Defendants refused to return confidential
information despite demand therefor. Id.
assert a number of causes of action as follows: federal
copyright infringement asserted by EAI and El (Count I),
trade secret misappropriation under the Defend Trade Secrets
Act, 18 U.S.C. § 1836 ("DTSA") asserted by EAI
and El (Count II), violation of federal computer crimes act,
18 U.S.C. § 1030, asserted by John, Claudia, and EAI
(Count III), breach of contract and implied covenant of good
faith and fair dealing by John and Claudia (Count IV),
tortious interference with contracts and business relations
by all plaintiffs (Count V), defamation by John and Claudia
(Count VI), declaratory relief by all plaintiffs (Count VII),
and unpaid wages by John and Claudia (Count VIII).
Grounds of the Motion
maintain that the claims for declaratory relief by all
plaintiffs and copyright infringement, DTSA, and breach of
covenant of good faith and fair dealing by EAI must be
dismissed. They allege that the declaratory relief claims are
moot; EAI does not own the copyrights or trade secrets at
issue; and, Texas does not recognize a covenant of good faith
and fair dealing in the independent contractor context.
Standards of Review
of a case is proper under Rule 12(b)(1) of the Federal Rules
of Civil Procedure when the court lacks the statutory or
constitutional power to adjudicate the case. Home
Builders Ass'n of Miss., Inc. v. City of Madison,
Miss., 143 F.3d 1006, 1010 (5th Cir. 1998). When
considering a motion to dismiss for lack of subject matter
jurisdiction, the court construes the allegations of the
complaint favorably to the pleader. Spector v. L Q Motor
Inns, Inc., 517 P.2d 278, 281 (5th Cir. 1975). However,
the court is not limited to a consideration of the
allegations of the complaint in deciding whether subject
matter jurisdiction exists. Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981). The court may consider
conflicting evidence and decide for itself the factual issues
that determine jurisdiction. Id. Because of the
limited nature of federal court jurisdiction, there is a
presumption against its existence. See Owen Equip. &
Erection Co. v. Kroger, 437 U.S. 365, 374 (1978);
McNutt v. General Motors ...