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Neurodiagnostic Consultants, LLC v. Nallia

Court of Appeals of Texas, Third District, Austin

September 6, 2019

Neurodiagnostic Consultants, LLC d/b/a Synaptic Resources of Austin, LLC, a Texas Limited Liability Company, Appellant
v.
Melody Nallia, an individual; Corey Villalobos, an individual; Bryan Bouillion, an individual; Lee Cobb, an individual; Traxx Medical Holdings, LLC, a Delaware Limited Liability Company; Traxx Blue, LLC, a Delaware Limited Liability Company; Traxx Connected, LLC, a Delaware Limited Liability Company; and Traxx Federated, LLC, a Delaware Limited Liability Company, Appellees

          FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-18-004422, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Kelly and Smith

          MEMORANDUM OPINION

          CHARI L. KELLY, JUSTICE

         Neurodiagnostic Consultants, LLC d/b/a Synaptic Resources of Austin, LLC (Synaptic) appeals from the trial court's order granting the appellees' motion to dismiss pursuant to the Texas Citizens Participation Act. See Tex. Civ. Prac. & Rem. Code § 27.003. Because we conclude that Synaptic met its burden under the Act to demonstrate by clear and specific evidence a prima facie case for each essential element of its claims, we reverse the trial court's judgment and remand the cause for further proceedings.

         BACKGROUND

         Factual and Procedural History

         Synaptic is a business that provides intraoperative neurophysiological monitoring (IONM) services to hospitals, clinics, and surgeons in and around Waco, Austin, San Marcos, and San Antonio.[1] To provide these services, Synaptic employs IONM technologists. All technologists hired by Synaptic are trained to use Synaptic's monitoring equipment and are required to complete six to eight weeks of in-house training using a course program developed by Synaptic. Synaptic also requires that its technologists work toward obtaining their Certification for Neurophysiological Monitoring (CNIM), which requires the completion of additional coursework and the passing of an examination. The duties of Synaptic technologists include setting up and operating Synaptic's monitoring equipment, interviewing patients prior to surgery, connecting patients to Synaptic's monitoring equipment, consulting with surgeons, and monitoring the neurophysiological status of patients throughout surgery.

         In September 2008, Synaptic hired Melody Nallia as a technologist and in 2012 promoted her to Area Manager. According to Synaptic, in her role as manager, Nallia was "one of Synaptic's primary operatives in all of Texas for retaining current clients and obtaining new ones." In January 2015, Synaptic hired Corey Villalobos as a technologist and, in January 2016, promoted him to Field Manager. During his tenure at Synaptic, Villalobos's direct supervisor was Nallia. Villalobos left Synaptic in September 2016, and Nallia left Synaptic in April 2017. Upon leaving, both Nallia and Villalobos immediately began working for Traxx, a competitor of Synaptic.

         Synaptic later filed suit against Nallia and Villalobos, along with Traxx[2] and Traxx officers Bryan Bouillion and Lee Cobb (collectively, the Defendants) for a variety of claims arising from Nallia's and Villalobos's former employment with Synaptic and from their relationship and subsequent employment with Traxx. In general, Synaptic alleges that Bouillion and Cobb formed Traxx to compete with Synaptic in the Austin IONM market and solicited Nallia and Villalobos to help Traxx launch its business. Beginning in June 2016, while still employed with Synaptic, both Nallia and Villalobos began communicating with Bouillon and Cobb and, in Synaptic's view, actively engaging in efforts that benefitted Traxx and caused harm to Synaptic.

         On June 7, 2018, the Defendants filed a motion to dismiss pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code, also known at the Texas Citizens Participation Act (the TCP A). See id. §§ 27.001-.011. In their motion, the Defendants argued that all of Synaptic's claims fell within the scope of the TCPA and that Synaptic could not meet its burden under the TCPA of establishing a prima facie case for each essential element of its claims. See id. §§ 27.003, .005. In its response to the motion, Synaptic asserted that the TCPA motion should be denied because it had established a prima facie case for each of its claims with clear and specific evidence. In support of its response, Synaptic provided the trial court with:

• an affidavit from Steve Thomas, the Manager of Synaptic Resources of Austin;
• a copy of Nallia's employment agreement with Synaptic;
• a copy of Villalobos's employment agreement with Synaptic;
• a reporter's record, including exhibits, from a temporary-injunction hearing conducted earlier in the case;
• a copy of Synaptic's original petition and application for injunctive relief;
• a copy of Synaptic's first amended petition and application for injunctive relief;
• a text string between Bouillion and Nallia;
• an e-mail, dated February 22, 2018, from the Defendants' counsel's paralegal, stating that documents responsive to Synaptic's discovery request were attached and were bates-labeled D0001-0104;
• a text string between Villalobos and Nallia;
• an e-mail exchange between Bouillon and Nallia, from August 2016;
• an e-mail from Nallia to Bouillion, dated August 19, 2016;
• an e-mail from Nallia to Bouillion, dated August 19, 2016, with attached resume and employment application from Lauren Baker;
• an e-mail from Lauren Baker to Synaptic, dated August 19, 2016;
• a text string between Nallia and Cobb;
• an e-mail exchange between Nallia and Cobb, dated September 12, 2016;
• a portion of a transcript of Villalobos's testimony from a hearing in a suit filed by Synaptic in Bexar County against ...

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