FILED
`4/21/2022 4:54 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Cassandra Walker DEPUTY
`
`CAUSE NO. DC-19-09573
`
`SHANKAR PRASADDAS,
`
`Plaintiff,
`
`V.
`
`PEPPERSTONE GROUP LIMITED,
`
`Defendants.
`
`CORUGCGPWONUDCOPCO?UO>SN
`
`IN THE DISTRICT COURT OF
`
`DALLAS COUNTY, TEXAS
`
`101ST JUDICIAL DISTRICT
`
`PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION TO DESIGNATE
`RESPONSIBLE THIRD PARTIES
`
`A defendant may seek to designate a person as a responsible third party by
`filing a motion for leave to designate that person as a responsible third party.
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`3 og ok
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`A court shall grant leave to designate the person as a responsible third party
`unless another party files an objection on or before the 15th day after the
`date the motion is served.
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`tie og ok
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`If an objection to the motion for leave is timely filed, the court shall grant
`leave to designate the person as a responsible third party unless the
`objecting party establishes: (1) the defendant did not plead sufficient facts
`concerning the alleged responsibility of the person to satisfy the pleading
`requirement of the Texas Rules of Civil Procedure; and (2) after having
`been granted leave to replead, the defendant failed to plead sufficient facts
`concerning the alleged responsibility of the person to satisfy the pleading
`requirements of the Texas Rules of Civil Procedure.
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`TEX. Civ. PRAC. & REM. CODE § 33.004(a), (f), (g) (emphasis added).
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`1.
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`In its Motion to Designate Responsible Third Parties, Defendant Pepperstone
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`Group Limited has failed to “plead sufficient facts concerning the alleged responsibility” of
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`Nashith Wadud and CITT Services for the claims asserted by Plaintiff Shankar Das.
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`2.
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`Das has asserted six causes of action: (1)a violation of the Texas Sales
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`Representative Act
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`(“TSRA”);
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`(2) breach of contract;
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`(3) quantum meruit;
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`(4) promissory
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`PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION TO DESIGNATE RESPONSIBLE THIRD PARTIES
`
`PaGE 1
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`

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`estoppel; (5) unjust enrichment; and (6) fraud. Pepperstone has failed to state which of these
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`causes of action Wadud and CITTare allegedly responsible for. That said, the statute governing
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`the designation of responsible third parties allows Pepperstone to designate Wadud and CITT for
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`only one of these claims: the fraud claim. Thestatute states: “This chapter applies to... any cause
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`of action based on tort... or... any action brought under the Deceptive Trade Practices-Consumer
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`Protection Act... .” TEX. CIv. PRAC. & REM. CODE § 33.002(a). The only claim based on tort
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`law is the fraud claim. The other claimsare all statutory (but not DTPA), contractual, or quasi-
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`contractual, equitable claims basedinrestitution.
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`3.
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`Also, Pepperstone is not permitted to designate Wadud and CITT as responsible
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`third parties for the exemplary damages sought by Dasin his fraud claim. The statute continues:
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`“This chapter does not apply to... a claim for exemplary damages includedin an action to which
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`this chapter otherwise applies ....” Jd. § 33.002(c)(2). Thus, at the very least, Pepperstone must
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`replead its motion to clarify that it seeks to designate Wadud and CITT only for Das’s fraud claim
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`and only for the actual damages sought underthat claim.
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`4.
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`But even if Pepperstone clarifies which claimsit is designating Wadud and CITT
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`for, Pepperstone’s pleading wouldstill be deficient. This is because nowhere in its motion does
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`Pepperstone assert that Wadud was not acting as an agent of Pepperstone when he and other
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`Pepperstone employees fraudulently induced Das to work for Pepperstone for free. Das has made
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`explicit in his live petition that Wadud was Pepperstone’s Director of U.S. Operations and a
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`financial advisor registered with the Australian Securities and Investments Commission, making
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`him both an employee and an authorized agent of Pepperstone.
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`5.
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`Claims based on an employer-employee relationship, such as that between Wadud
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`and Pepperstone, are not subject to the third-party-designation statute. See, e.g., Battaglia v.
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`PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION TO DESIGNATE RESPONSIBLE THIRD PARTIES
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`PAGE 2
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`

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`Alexander, 93 8.W.3d 132, 144 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (““Common-law
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`joint-and-several liability rules for partnership, agency, joint venture, and piercing the corporate
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`veil situations survived the enactment of § 33.013... .” (emphasis added)) rev’d in part on other
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`grounds 177 S.W.3d 893 (Tex. 2005); N. Am. Van Lines, Inc. v. Emmons, 505.W.3d 103, 122
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`(Tex. App.—Beaumont 2001, pet denied) (“The proportionate responsibility statute did not do
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`away with the application of partnership and agency theories .
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`.
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`. .” (emphasis added)). This is
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`because regardless of any allegation or fault on the part of the employer,if the employee wasacting
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`in the course of his employment, the employer will be held vicariously liable for the actionsofits
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`employee. See, e.g., Bedford v. Moore, 166 S.W.3d 454, 461 (Tex. App.—Fort Worth 2005, no
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`pet.).
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`6.
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`Thus, unless Pepperstone sufficiently alleges in its motion that Wadud wasnotthe
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`employee or agent of Pepperstone, the law prohibits Pepperstone from designating Wadud as a
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`responsible third party because Das has claimed that Wadud acted as the agent for Pepperstone.
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`In other words, Das has claimed that Wadud’s actions = Pepperstone’s actions. If Pepperstone is
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`claiming that Wadud was not a Pepperstone agent—and thus that Wadud may be separately
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`apportioned some percentage of responsibility—Pepperstone must specifically state so in its
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`motion.
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`7.
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`For all these reasons, Das asks that the Court deny Pepperstone’s Motion to
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`Designate Responsible Third Parties and require Pepperstone to replead.
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`If Pepperstone’s
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`repleaded motionis likewise insufficient, Das will object again at that time and ask that the Court
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`deny Pepperstone’s motion without further opportunities to replead, according to Texas Civil
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`Practices and Remedies Code § 33.004(g).
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`PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION TO DESIGNATE RESPONSIBLE THIRD PARTIES
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`PAGE3
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`

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`Respectfully submitted,
`
`
`/s/ Kush Patel
`
`Kush Patel
`
`State Bar No. 24110869
`patel@kush.law
`Kush.Law
`
`P.O. Box 631247
`Irving, Texas 75063
`Phone: 972.974.5094
`
`
`/s/ Michael A. Holmes
`Michael A. Holmes
`
`State Bar No. 24083191
`Michael@HolmesLG.com
`Holmes Law Group, PLLC
`P.O. Box 38282
`Dallas, Texas 75238
`Phone: 214.444.9533
`
`ATTORNEYSFOR PLAINTIFF
`SHANKAR PRASAD DAS
`
`CERTIFICATE OF SERVICE
`
`I certify that on April 21, 2022 a true and correct copy of the above-described document
`wasserved via eFile on all counsel of record for this case.
`
`
`/s/ Kush Patel
`Kush Patel
`
`PLAINTIFF’S OBJECTION TO DEFENDANT’S MOTION TO DESIGNATE RESPONSIBLE THIRD PARTIES
`
`PaGrE4
`
`

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`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 personslisted below. The rules governing
`certificates of service have not changed. Filers muststill provide a
`certificate of service that complies with all applicable rules.
`
`Trevor Martin on behalf of Trevor Martin
`Bar No. 24109512
`Trevor@HolmesLG.com
`Envelope ID: 63795179
`Status as of 4/22/2022 11:34 AM CST
`
`Associated Case Party: SHANKARPRASADDAS
`
`Shankar PrasadDas S|SENT
`
`Kush Patel [ean[amare[sr
`[ee|[esscon__|AEVEREPT[ET
`ererin|[rrrom|BRET[SET
`
`eweceok[eeriesonaaa[ET
`
`Associated Case Party: PEPPERSTONE GROUP LIMITED
`
`
`
`eschneider@meginnislaw.com|4/21/2022 4:54:16 PM|SENT fMarialsiasoT mislas@pamlaw.com
`
`Ashley Parrish P| aparrish@meginnislaw.com|4/21/2022 4:54:16 PM|SENT
`JamesPhillips po jphillips@mcginnislaw.com|4/21/2022 4:54:16 PM|SENT
`Ikirner@mcginnislaw.com|4/21/2022 4:54:16 PM|SENT
`
`Case Contacts
`
`JEFFREY RSANDBERG 4/21/2022 4:54:16 PM|SENTjsandberg@pamlaw.com
`
`
`4/21/2022 4:54:16 PM|SENT
`
`Rosalinda Hernandez
`rhernandez@mcginnislaw.com|4/21/2022 4:54:16 PM|SENT
`
`Charmaine Schneider
`
`inni
`
`