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Case 3:21-cv-02636-B Document 1-17 Filed 10/25/21 Page 1 of 9 PageID 86
B-14
FILED
10/18/2021 9:00 AM
FELICIA PITRE
Case 3:21-cv-02636-B Document 1-17 Filed 10/25/21 Page 2 of 9 PageID 87DISTRICT CLERK
DALLAS CO., TEXAS
Kellie Juricek DEPUTY
CAUSE NO. DC-21-13097
OTO ANALYTICS, INC. D/B/A WOMPLY, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § DALLAS, COUNTY, TEXAS
§
CAPITAL PLUS FINANCIAL, LLC., §
CROSSROADS SYSTEMS, INC., AND §
ERIC DONNELLY, § 95TH JUDICIAL DISTRICT
§
Defendants. §
DEFENDANTS’ ORIGINAL ANSWER,
MOTION TO TRANSFER VENUE, AND PLEA IN ABATEMENT
MOTION TO TRANSFER VENUE
Defendants Capital Plus Financial, LLC (“CPF”), Crossroads Systems, Inc.
(“Crossroads”), and Eric Donnelly file this Motion to Transfer Venue under Texas Rule of Civil
Procedure 86 and Texas Civil Practice & Remedies Code § 15.063(1) before Defendants’ Original
Answer or any other pleading in this matter (Tex. R. Civ. P. 86(1)). Defendants request that the
Court transfer this case to Tarrant County, a county of proper venue, and in support thereof,
respectfully state as follows:
Defendants specifically object to and deny that venue is proper in Dallas County as alleged
by Plaintiff Oto Analytics, Inc. d/b/a Womply (“Womply”) in its Original Petition when it initiated
this action filed with this Court. In alleging that venue was proper in Dallas County, Womply
stated only that venue was proper “because Defendant Capital Plus’s principal office is located in
Dallas County, Texas.” Pl. Orig. Pet. ¶ 17.1 This statement is not true and is belied by other
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Womply also alleges that “[t]his Court has subject matter jurisdiction over this lawsuit because
a substantial part of the events giving rise to Womply’s claims occurred in Dallas County, Texas.”
Pl. Orig. Pet. ¶ 12. This sentence does not support venue in Dallas County either: Womply does
Case 3:21-cv-02636-B Document 1-17 Filed 10/25/21 Page 3 of 9 PageID 88
allegations in the Original Petition. As Womply alleges, CPF’s “principal place of business [is] in
Bedford, Texas.” Id. ¶ 9. Bedford is located in Tarrant County.
Venue is proper in Tarrant County because CPF’s principal office in this state is in Tarrant
County. TEX. CIV. PRAC. & REM. CODE § 15.002(3). Further, Crossroads’ principal office is also
in Tarrant County, and Donnelly is a natural person with his residence in Colorado. None of the
Defendants have the requisite tie to maintain venue in Dallas County. Id. But venue could be
maintainable in Tarrant County.
Prayer for Relief
For these reasons, Defendants move to transfer venue of this action to Tarrant County,
Texas. Venue in Dallas County is impermissible. Venue in Tarrant County is permitted under
TEX. CIV. PRAC. & REM. CODE § 15.002(3). Defendants respectfully request that the Court set this
motion for a hearing, and that, after the hearing, the Court grant this motion, that this case be
transferred to Tarrant County, that all costs be taxed against the Plaintiff Womply, that the Court
direct the Clerk to make a transcript as required by Texas Rule of Civil Procedure 89, and for such
other and further relief to which Defendants are entitled.
PLEA IN ABATEMENT SUBJECT TO
DEFENDANT’S MOTION TO TRANSFER VENUE
Subject to Defendants’ Motion to Transfer Venue and without waiving same, Defendants
hereby file this Plea in Abatement and respectfully request that the Court abate these proceedings
for two reasons:
not elaborate on this conclusory statement, and its allegations appear to allow for the inference
only that the alleged events took place at CPF’s or Crossroads’ offices. Therefore, if the principal
offices were not in Dallas County, then nor was “a substantial part of the events giving rise to
Womply’s claims.”
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First, upon information and belief, Plaintiff Womply is a foreign corporation without a
permit to do business in the State of Texas. “A foreign filing entity . . . may not maintain an action,
suit, or proceeding in a court of this state . . . on a cause of action that arises out of the transaction
of business in this state unless the foreign filing entity is registered in accordance with this
chapter.” Tex. Bus. Orgs. Code Ann. § 9.051. A plea in abatement is proper to challenge whether
a foreign entity is registered with the Secretary of State and can maintain an action for affirmative
relief. See, e.g., Jay-Lor Textiles, Inc. v. Pac. Compress Whs. Co., 547 S.W.2d 738, 740 (Tex.
App.—Corpus Christi 1977, writ ref’d n.r.e.).
Second, upon information and belief, despite its acknowledgement that it operates using
the d/b/a “Womply,” Plaintiff has not filed an assumed-name certificate. A “person may not
maintain in a court of this state an action or proceeding arising out of a contract or act in which an
assumed name was used until an original, new, or renewed certificate has been filed as required
by this chapter.” Tex. Bus. & Com. Code Ann. § 71.201. A plea in abatement is proper to
challenge the lack of an assumed-name certificate. See, e.g., Sixth RMA Partners v. Sibley, 111
S.W.3d 46, 55 (Tex. 2003).
Prayer for Relief
For these reasons, Defendants ask that the Court set this Plea in Abatement for a hearing
and that, after the hearing, the Court grant the Plea in Abatement and order Plaintiff Womply to
cure its pleading defects, and if Plaintiff does not, that the Court strike Plaintiff’s petition.
DEFENDANTS’ ORIGINAL ANSWER
Subject to the Court’s ruling on Defendants’ Motion to Transfer Venue and Plea in
Abatement set forth above and without waiving same, Defendants file this answer to Plaintiff
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Case 3:21-cv-02636-B Document 1-17 Filed 10/25/21 Page 5 of 9 PageID 90
Womply’s Original Petition. In support of this answer, Defendants respectfully show the Court as
follows:
GENERAL DENIAL
1. Under Texas Rule of Civil Procedure 92, Defendants generally deny each and every
allegation made against them in Plaintiff Womply’s Original Petition and demands strict proof
thereof.
CONDITIONS PRECEDENT
2. Contrary to Womply’s allegation in paragraph 90 of the Original Petition, the
conditions precedent for its above claims have not occurred, been performed, or been waived.
AFFIRMATIVE DEFENSES
3. Subject to and without waiving any of the foregoing, under Texas Rule of Civil
Procedure 94, Defendants assert that Plaintiff’s suit is barred in whole or part by the following
affirmative defenses.
4. Plaintiff’s Fault. Defendants are not liable to Womply because Womply’s own acts
or omissions proximately caused or contributed to Womply’s injury. Tortious interference with
an existing contract is an intentional tort. Southwestern Bell Tel. Co. v. John Carlo Tex., Inc., 813
S.W.2d 613, 619 (Tex. App.—Houston [14th Dist.] 1991), rev’d on other grounds, 843 S.W.2d
470 (Tex. 1992). Thus, Defendants can assert that Womply’s own acts or omissions caused or
contributed to Womply’s injury.
5. Inability to Perform. Defendants are not liable to Womply because Blueacorn was
unable to perform the contract—legally and practically—as contemplated by Womply and
Blueacorn.
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6. Estoppel. Defendants are not liable to Womply because Womply is estopped from
pursuing the claim.
7. Illegal Contract. Defendants are not liable to Womply because the underlying
contract is illegal. In this case, the illegal nature of the contract is apparent from Womply’s
pleadings. See Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex. 1991). A contract is illegal if the
parties undertake to do an act that is forbidden by law in the place where the act is to occur. See
Ralston Purina Co. v. McKendrick, 850 S.W.2d 629, 638–39 (Tex. App.—San Antonio 1993, writ
denied); see Adams v. McFadden, 296 S.W.3d 743, 751 (Tex. App.—El Paso 2009, pet. granted,
judgm’t vacated w.r.m.); Franklin v. Jackson, 847 S.W.2d 306, 309 (Tex. App.—El Paso 1992,
writ denied).
8. Public Policy. Defendants are not liable to Womply because the contract violates
public policy. A contract with provisions that are against public policy cannot be enforced. Sacks
v. Dallas Gold & Silver Exch., Inc., 720 S.W.2d 177, 180 (Tex. App.—Dallas 1986, no writ).
9. Proportionate Responsibility. If Defendants are found liable for damages,
Defendants intend to seek a reduction of damages under the proportionate-responsibility statute.
10. Knowledge of Falsity. Defendants are not liable to Womply because Womply had
knowledge of the falsity of the alleged misrepresentations when Womply entered into the
agreement with Blueacorn.
11. Qualified Good-Faith Refusal. Defendants are not liable to Womply because
’Defendants’ qualified refusal to release the Technology Fees and Referral Fees to Blueacorn
and/or Womply was reasonable and made in good faith.
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12. Mutual Mistake. Defendants are not liable to Womply because the alleged contract
underlying Womply’s tortious interference claim suffers from mutual mistake of Womply and
Blueacorn.
PRAYER FOR RELIEF
FOR THESE REASONS, Defendants respectfully pray that the Court:
1. Set for hearing Defendants’ Motion to Transfer Venue, and upon hearing, grant
Defendants’ motion and transfer this case to Tarrant County, Texas.
2. Subject to the Court’s ruling on Defendants’ Motion to Transfer Venue, set for
hearing Defendants’ Plea in Abatement, and upon hearing, dismiss Womply’s claims with
prejudice or hold Womply’s plea in abatement.
3. Find for the Defendants on their affirmative defenses.
4. Order that Plaintiff take nothing against Defendants in this suit.
5. Dismiss all claims against Defendants with prejudice.
6. Order that Defendants recover all costs and reasonable attorneys’ fees incurred in
defense of Plaintiff’s claims.
7. Grant Defendants such other and further relief, general and special, at law or in
equity, to which Defendants may be justly entitled.
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Respectfully submitted,
SUSMAN GODFREY L.L.P.
By: /s/ Harry P. Susman
Harry P. Susman
State Bar No. 24008875
Megan Elise Griffith
State Bar No. 24122748
1000 Louisiana Street, Suite 5100
Houston, Texas 77002-5096
Telephone: (713) 651-9366
Fax: (713) 654-6666
hsusman@susmangodfrey.com
mgriffith@susmangodfrey.com
Attorneys for Defendants
CERTIFICATE OF SERVICE
I certify that on October 18, 2021 a true and correct copy of this document properly was
served on counsel of record in accordance with the TRCP via electronic efiling and email.
/s/ Harry P. Susman________________
Harry P. Susman
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Case 3:21-cv-02636-B Document 1-17 Filed 10/25/21 Page 9 of 9 PageID 94
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Maria Romo on behalf of Harry Susman
Bar No. 24008875
mromo@susmangodfrey.com
Envelope ID: 58261121
Status as of 10/18/2021 2:53 PM CST
Associated Case Party: OTO ANALYTICS, INC.
Name BarNumber Email TimestampSubmitted Status
Alistair B. Dawson adawson@beckredden.com 10/18/2021 9:00:44 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Harry Susman hsusman@susmangodfrey.com 10/18/2021 9:00:44 AM SENT
Meg Griffith mgriffith@susmangodfrey.com 10/18/2021 9:00:44 AM SENT
Jill McCrary jmccrary@susmangodfrey.com 10/18/2021 9:00:44 AM SENT
Alexander L.Cheney acheney@willkie.com 10/18/2021 9:00:44 AM SENT
Jennifer S.Maybee jmaybee@willkie.com 10/18/2021 9:00:44 AM SENT
Casie M.Orellana corellana@willkie.com 10/18/2021 9:00:44 AM SENT