Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`MCALLEN DIVISION
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`DEFENDANTS’ NOTICE OF REMOVAL
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`Defendants Luis Silva, Individually and d/b/a Don Mariscos Restaurant, Ernesto Lozano,
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`Soberon Investments, L.L.C., d/b/a
`Restaurant La Costa Grill, and
`Restaurant Mariscos La Costa, L.L.C.,
`Restaurant Mariscos La Costa,
`Plaintiff’s
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`V.
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`Luis Silva, Individually and d/b/a
`Don Marisco Restaurant,
`Ernesto Lozano, Individually, and d/b/a
`Don Marisco Restaurant, and
`Don Marisco L.L.C., Individually and
`d/b/a Don Marisco Restaurant
`Defendants’
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`CIVIL ACTION NO.
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`Individually and d/b/a Don Mariscos Restaurant, and Don Marisco L.L.C., Individually and d/b/a
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`Don Marisco Restaurant file this Notice of Removal under 28 U.S.C. §§ 1331, 1441, and 1446,
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`respectfully stating:
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`INTRODUCTION
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`MCALLEN DIVISION
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`DEFENDANTS’ NOTICE OF REMOVAL
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`Defendants Luis Silva, Individually and d/b/a Don Mariscos Restaurant, Ernesto Lozano,
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`Soberon Investments, L.L.C., d/b/a
`Restaurant La Costa Grill, and
`Restaurant Mariscos La Costa, L.L.C.,
`Restaurant Mariscos La Costa,
`Plaintiff’s
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`V.
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`Luis Silva, Individually and d/b/a
`Don Marisco Restaurant,
`Ernesto Lozano, Individually, and d/b/a
`Don Marisco Restaurant, and
`Don Marisco L.L.C., Individually and
`d/b/a Don Marisco Restaurant
`Defendants’
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`CIVIL ACTION NO.
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`Individually and d/b/a Don Mariscos Restaurant, and Don Marisco L.L.C., Individually and d/b/a
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`Don Marisco Restaurant file this Notice of Removal under 28 U.S.C. §§ 1331, 1441, and 1446,
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`respectfully stating:
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`INTRODUCTION
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`Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 2 of 9
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`During his deposition, Plaintiff contended for the first time that their claims involved federal
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`copyright law, as he contended Defendants misappropriated their intellectual property and trade
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`secrets. Federal copyright law is governed by the Copyright Act of 1976 in chapters 1 through 8,
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`10 through 12, and 14 through 15 of Title 17 of the United States Code. The copyright claim
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`raised by Plaintiff through Edgar Soberon arises under federal law and this Court has original
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`jurisdiction over it.
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`BACKGROUND
`1. On December 28, 2018, Plaintiffs Soberon Investments, L.L.C. filed Plaintiff’s Original
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`Petition in the 93rd Judicial District Court of Hidalgo County, Texas, styled Soberon
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`Investments L.L.C. d/b/a Restaurant La Costa Grille and Restaurant Mariscos La Costa L.L.C.
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`Restaurant Mariscos La Costa v. Luis Silva, Individually and d/b/a Don Mariscos Restaurant,
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`Ernesto Lozano, Individually and d/b/a Don Mariscos Restaurant, and Don Marisco L.L.C.,
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`Individually and d/b/a Don Marisco Restaurant, Cause No.C-4809-18-B (the “State Court
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`Lawsuit”). See Exhibit A. Plaintiff’s Original Petition asserted claims for, inter alia, breach of
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`contract, misappropriation of trade secrets, breach of fiduciary duty, and tortious interference
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`with contract, against all Defendants.
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`2. Luis Silva, Individually and d/b/a Don Mariscos Restaurant, timely filed his Original Answer,
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`Verfied Answer, and Affirmative Defenses to Plaintiff’s Original Petition on March 11, 2019
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`denying Plaintiff’s allegations. See Exhibit B. Ernesto Lozano filed his Original Answer on May
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`3, 2019. See Exhibit C
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`3. Plaintiff, through its authorized agent Edgar Soberon, was deposed on May 27, 2022. Plaintiff,
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`for the first time, affirmed what his counsel, Katie Klein, had raised earlier at a May 24, 2022
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`Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 3 of 9
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`hearing, namely that his claim involved the Copyright Act of 1976. At his deposition, Edgar
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`Soberon testified as follows:
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`Q. I believe your counsel mentioned at –at a hearing that this may be subject to some type
`of copyright. Do you understand that there’s any type of copyright on these recipes or
`processes?
`Mr. Mount: Objection, form
`A.No, I don’t understand your question---what your question.
`Q. (BY MR. PUENTE) Did these -- did this recipes are like a trade secret that are –
`A. Oh, yes –
`Q. -- copyright?
`A. -- of course. It's a trade secret. Yes.
`Q. And they're –
`A. Nobody has it, and no -- nobody used to have them in the Valley.
`Q. Okay. So they -- are they copyrighted? Do you -- do you think that this is violative of
`any type of copyright laws or anything like that?
`A. Did they –
`MR. MOUNT: Objection; form.
`A. -- violate?
`Q. (BY MR. PUENTE) Yeah.
`A. If you duplicate them, yes.
`Q. Yes? So they are violative of –
`A. They're secrets. Uh-huh.
`Q. Of copyright laws?
`A. They are secrets. Uh-huh.
`Exhibit D, Pl’s Deposition at p.39:23-p.40:23
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`GROUNDS FOR REMOVAL
`Federal Question Jurisdiction
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`Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 4 of 9
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`7. Plaintiff’s Original Petition includes a claim of misappropriation of trade secrets under Texas
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`Civil Practices and Civil Remedies Code. During his deposition he clarified that the
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`misappropriation was a violation of federal copyright law. See Copyright Act of 1976. The
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`United States district courts have original jurisdiction over the Copyright Act of 1976
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`claims. 28 U.S.C. § 1338(a) (“The district courts shall have original jurisdiction of any civil
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`action arising under any Act of Congress relating to patents, plant variety protection, copyrights
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`and trademarks. No State court shall have jurisdiction over any claim for relief arising under any
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`Act of Congress relating to patents, plant variety protection, or copyrights.”) See also 28 U.S.C.
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`§ 1338(b) (“The district courts shall have original jurisdiction of any civil action asserting a
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`claim of unfair competition when joined with a substantial and related claim under the copyright,
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`patent, plant variety protection or trademark laws.”) Therefore, this Court has original
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`jurisdiction over Plaintiff’s copyright claim.
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`REMOVAL IS TIMELY
`8. Under the Federal Rules, Defendant may remove a case under the following circumstance:
`“If the case stated by the initial pleading is not removable, a notice of
`removal may be filed within thirty days after receipt by the defendant,
`through service or otherwise, of a copy of an amended pleading, motion,
`order or other paper from which it may first be ascertained that the case is
`one which is or has become removable, . . .”
`See 28 U.S.C. § 1446(b) (2013). [A] transcript of the deposition testimony is “other
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`paper.’” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996). “[A]
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`defendant may rely on a plaintiff’s answers to deposition questions [as an other paper]
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`when the elicited responses . . . clarify insufficient factual allegations in the plaintiff’s
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`Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 5 of 9
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`complaint.” Herring v. Oxy Vinyls L.P., CIV.A. H-05-0719, 2005 WL 1653076, at *4
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`(S.D. Tex. July 8, 2005) (citing S.W.S. Erectors, 72 F.3d at 491).
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`9. Here, Plaintiff clarified for the first time during his deposition that his
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`misappropriation claim is rooted in federal copyright law. Having received this “other
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`paper” on, at the earliest, the first day of Plaintiff’s deposition—May 27, 2022—
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`Defendants timely removed by filing this Notice of Removal within thirty days. Luis Silva,
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`Individually and d/b/a Don Mariscos Restaurant, Ernesto Lozano, Individually and d/b/a Don
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`Mariscos Restaurant, and Don Marisco L.L.C., Individually and d/b/a Don Marisco Restaurant
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`all agree to this removal to federal district court.
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`SUPPLEMENTAL JURISDICTION
`10. To the extent Plaintiff’s remaining claims of breach of contract, breach of fiduciary duty, and
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`tortious interference with contract and existing business relations against Defendants are viable,
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`Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 6 of 9
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`the Court has supplemental jurisdiction over them under 28 U.S.C. §1367 because they are “so
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`related to claims in the action within such original jurisdiction that they form part of the same
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`case or controversy.” 28 U.S.C. §1367(a). “The question under section 1367(a) is
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`whether the supplemental claims are so related to the original claims that they form part
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`of the same case or controversy, or in other words, that they ‘derive from a common
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`nucleus of operative fact.’” Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008).
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`“[T]his does not mean that all of the facts applicable to the federal claim must also apply
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`to the state claim. Section 1367(a) is generally satisfied by a ‘loose factual connection’
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`between the two claims.” Lucarino v. Con-Dive, LLC, CIVA H-09-2548, 2010 WL
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`786546 (S.D. Tex. Mar. 5, 2010) (Rosenthal, J.) (citing Mendoza, 532 F.3d at 346).
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`11. Here, Plaintiffs claim that Defendants misappropriated recipes, vendor lists, and business
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`practices in opening another seafood restaurant. Exhibit A. Plaintiffs appear to be basing many
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`of their claims on the same operative facts and even to the extent they are not, the allegations all
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`bear at least a “loose factual connection” to each other particularly because their complaints
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`against Defendants are solely directed at the alleged actions of Luis Silva and Ernesto Lozano Id.
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`Given these factual connections, the Court has supplemental jurisdiction over Plaintiff’s
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`remaining state law claims against all Defendants.
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`VENUE
`12. Venue of this action is proper in the McAllen Division of the Southern District of Texas
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`given this is the district and division in which the State Court Lawsuit is pending. 28 U.S.C. §
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`1446(a).
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`ATTACHMENT OF STATE COURT PLEADINGS
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`Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 7 of 9
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`13. A copy of the state court file’s orders, including the docket sheet, is
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`submitted behind Exhibit F.
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`NOTICE OF REMOVAL GIVEN TO STATE COURT
`14. A Notice of Removal to Federal Court is being filed in the 93rd Judicial
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`District Court of Hidalgo County, Texas as of this filing with the U.S. District Court for
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`the Southern District of Texas, McAllen Division. A copy of the Notice provided to the
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`state court is attached behind Exhibit G.
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`JURY DEMAND
`15. Plaintiffs have made a jury demand in State Court Lawsuit.
`INDEX OF EXHIBITS
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`A. Plaintiff’s Original Petition
`B. Defendant Luis Silva’s Original Verified Answer and Affirmative Defenses to Plaintiff’s
`Original Petition
`C. Ernesto Lozano’s Amended Verified Answer to Plaintiffs’ Original Petition
`D. Plaintiff’s Deposition Excerpts
`F. State Court Pleadings
`G. Notice of Filing Notice of Removal to Federal Court
`CONCLUSION
`The Court has original jurisdiction over this matter under 28 U.S.C. § 1331
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`because the Copyright Act of 1976 Sarbanes-Oxley Act of 2002 is a “law . . . of the United States”
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`and further under 28 U.S.C. § 1338(a), the Copyright Act of 1976 is under the jurisdiction of U.S.
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`Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 8 of 9
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`District Courts. This action may be removed to this court under 28 U.S.C. § 1441(a). The Court
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`has supplemental jurisdiction over Plaintiff’s remaining claims.
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`WHEREFORE, under and in accordance with 28 U.S.C. § 1446, Defendant
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`removes this action from the 93rd Judicial District Court of Hidalgo County, Texas to this
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`court on this the 21th day of June, 2022.
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`Respectfully submitted, this 21th day of June, 2022.
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`Respectfully submitted,
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`By: /S/ Cesar Omar Aguilar _____
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`CESAR OMAR AGUILAR
`Texas Bar No. 24079975
`Email: coalaw956@yahoo.com
`2112 S. Shary Rd., Suite 34
`Mission, TX 78572
`Tel. (956) 688-8822
`Fax. (956) 284-0114
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`Respectfully submitted,
`ROBERT PUENTE LAW OFFICE
`214 N. 16th St, Suite 300
`McAllen, Texas 78572
`Tel: (956) 502-5258
`Fax: (956) 685-1144
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`By:/s/Robert Puente
`Robert D. Puente
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`Case 7:22-cv-00194 Document 1 Filed on 06/21/22 in TXSD Page 9 of 9
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`State Bar No. 24013359
`robpuente@msn.com
`Attorneys for Defendants
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`CERTIFICATE OF SERVICE
`I, Robert D. Puente, hereby certify that this Notice of Deposition was forwarded to Mr. William
`Mount on June 21, 2022
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`__RobertPuente____________
`Robert Puente
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