Case: 20-50179 Document: 00515867156 Page: 1 Date Filed: 05/18/2021
`
`United States Court of Appeals
`Fifth Circuit
`
`United States Court of Appeals
`for the Fifth Circuit
`
`
`No. 20-50179
`
`
`Academy of Allergy & Asthma in Primary Care; United
`Biologics, L.L.C., doing business as United Allergy
`Services,
`
`
`FILED
`May 18, 2021
`
`Lyle W. Cayce
`Clerk
`
`
`
`versus
`
`
`Quest Diagnostics, Incorporated,
`
`
`Plaintiffs—Appellants,
`
`Defendant—Appellee.
`
`
`
`
`Appeal from the United States District Court
`for the Western District of Texas
`USDC No. 5:17-CV-1295
`
`
`
`Before Stewart, Higginson, and Wilson, Circuit Judges.
`
`Carl E. Stewart, Circuit Judge:
`
`Plaintiffs-Appellants Academy of Allergy & Asthma in Primary Care
`
`(“AAAPC”) and United Allergy Services (“UAS”) sued Quest Diagnostics
`
`(“Quest”) for conspiring to force them out of the market of providing allergy
`
`and asthma testing. The district court dismissed Plaintiffs’ claims under Rule
`
`12(b)(6). We AFFIRM in part and REVERSE and REMAND in part.
`
`
`
`
`
`

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`No. 20-50179
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`I. FACTUAL AND PROCEDURAL HISTORY
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`
`
`A. Factual Background
`
`
`
`In 2009, UAS began providing allergy testing and treatment services
`
`in Texas. UAS’s services allowed primary care physicians to treat allergies,
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`disrupting the standard practice that required doctors to refer patients to
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`allergists for treatment. Quest is one of the leading laboratories that receive
`
`patient referrals. Phadia is an allergy test producer and a defendant in
`Plaintiffs’ 2014 suit.1
`
`
`
`According to Plaintiffs’ complaint, Quest and Phadia began discussing
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`ways to curtail competition posed by UAS in 2011. The two businesses
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`created a “talking points letter” to be distributed by their employees to
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`discourage doctors from working with UAS. The letter fabricated warnings
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`about patient safety, medical and legal liability, and the risks of fraudulent
`
`billing associated with UAS’s testing products.
`
`
`
`Unaware that Quest and Phadia were working to push UAS out of the
`
`market, UAS began negotiating with Quest to provide alternative methods of
`
`allergy testing. Phadia instructed Quest not to work with UAS, and Quest
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`passed along confidential information about UAS to Phadia. Notably, Quest
`
`shared UAS’s customer list with Phadia in 2012. Phadia then targeted those
`
`customers and tried to convince them to cease their relationships with UAS.
`
`Quest and Phadia also used a misleading opinion from the Office of the
`
`Inspector General of Health and Human Services (“OIG”) that cautioned
`against businesses like UAS.2 Through 2014, Quest and Phadia trained their
`
`
`
`1 Plaintiffs’ 2014 suit will be discussed infra Section B.1.
`
`2 James Wallen, an associate and alleged co-conspirator of Phadia and Quest, put
`together a company called Universal Allergy Labs, LLC, not to be confused with Plaintiffs’
`United Allergy Labs (the predecessor to UAS). The Office of the Inspector General
`Opinion referred to UAL and expressed serious concerns about businesses providing
`
`2
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`No. 20-50179
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`employees to tell physicians and providers about the opinion and to spread
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`misinformation about UAS.
`
`
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`From 2014 to 2016, Quest and Phadia continued to disparage UAS
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`and to conspire to remove it from the market. In September 2014, Phadia and
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`Quest used a Superior Health Plan policy change (that was announced in June
`
`2014 and enacted in August 2014) to convince primary care physicians to
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`stop working with UAS.
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`As a result of Quest and Phadia’s actions, competition declined and
`
`the two entities now account for more than 70% of the local market share in
`
`allergy testing and immunotherapy.
`
`B. Procedural History
`
`1. The 2014 Lawsuit
`
`
`
`In January 2014, UAS began tracking which customers were targeted
`
`with disinformation about its testing products. Unaware that Phadia or Quest
`
`were involved in spreading the disinformation, UAS filed both state and
`
`federal antitrust claims against several physicians. Acad. of Allergy & Asthma
`
`in Primary Care v. Am. Acad. of Allergy, No. SA−14−CV−35−OLG, 2014 WL
`
`12497080, at *2 (W.D. Tex. Sep. 8, 2014). As the lawsuit progressed through
`
`discovery, Plaintiffs learned of Phadia’s role and amended their complaint to
`
`add Phadia as a defendant in 2015.
`
`
`
`Plaintiffs soon sought discovery from Phadia, and they began to
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`suspect that Quest might have knowledge of Phadia’s conduct. Plaintiffs
`
`subpoenaed Quest’s corporate representative and requested document
`
`
`
`allergy tests being run by a single person with no healthcare experience. Plaintiffs argue that
`Wallen intentionally “sandbagged” the review process to get an unfavorable decision so
`that it could be used to falsely equate Wallen’s company with Plaintiffs.
`
`3
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`production in December 2015. Quest responded in January 2016 with several
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`objections. Quest provided a representative in May 2016, and only then did
`
`Plaintiffs learn of Quest’s involvement.
`
`
`
`The physicians and Phadia settled Plaintiffs’ 2014 suit. The remaining
`
`defendants (Allergy Asthma Network/Mothers of Asthmatics, Inc.
`
`(“AANMA”) and Tonya Winders, Phadia’s former market development
`
`leader and new CEO of AANMA) went to trial, and a jury found them not
`
`liable.
`
`2. The Current Suit
`
`
`
`The deadline for Plaintiffs to add Quest to their 2014 suit occurred
`
`before Quest responded to Plaintiffs’ subpoenas. Once Plaintiffs learned of
`
`Quest’s involvement, they filed this suit against Quest on December 28,
`
`2017.
`
`
`
`Quest moved to dismiss on March 9, 2018. The district court granted
`
`Quest’s motion on February 22, 2019. The district court dismissed Plaintiffs’
`
`antitrust claims as time-barred, concluding that Plaintiffs had not alleged that
`
`Quest committed overt acts within the four-year statute of limitations. The
`
`court dismissed Plaintiffs’ state law tortious interference and civil conspiracy
`
`claims as time-barred by Texas’s two-year statute of limitations. The court
`
`also dismissed Plaintiffs’ misappropriation of trade secrets claim as time-
`
`barred because it was not filed within three years of when Plaintiffs
`
`discovered or could have discovered the misappropriation through ordinary
`
`diligence.
`
`Plaintiffs requested leave to amend, and the district court denied their
`
`request. Plaintiffs then submitted a Rule 59(e) motion, and the district court
`
`denied it because it failed to raise new arguments. This appeal followed.
`
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`No. 20-50179
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`II. STANDARD OF REVIEW
`
`
`
`This court reviews de novo a district court’s grant of a Rule 12(b)(6)
`
`motion to dismiss. Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir.
`
`2003). We construe all allegations in favor of the plaintiff. Id.
`
`
`
`“[D]ismissal for failure to state a claim based on the statute of
`
`limitations defense should be granted only when the plaintiff’s potential
`
`rejoinder to the affirmative defense was foreclosed by the allegations in the
`
`complaint.” Jaso v. The Coca Cola Co., 435 F. App’x 346, 352 (5th Cir. 2011)
`
`(internal quotation marks omitted).
`
`III. DISCUSSION
`
`
`
`Plaintiffs appeal the district court’s dismissal of the following seven
`
`claims against Quest: (1) Sherman Act § 1, (2) Sherman Act § 2, (3) Texas
`
`antitrust, (4) Texas misappropriation of trade secrets, (5) Texas tortious
`
`interference with contracts, (6) Texas tortious interference with existing and
`
`prospective business, and (7) Texas civil conspiracy.
`
`
`
`
`
`A. Dismissal of Plaintiffs’ Federal and State Antitrust Claims
`
`Plaintiffs alleged that Quest violated §§ 1 & 2 of the Sherman Act and
`
`Texas antitrust law. The district court dismissed these claims under Rule
`
`12(b)(6), concluding that they were time-barred. We disagree.
`
`
`
`Section 1 of the Sherman Act prohibits “[e]very contract,
`
`combination in the form of trust or otherwise, or conspiracy, in restraint of
`
`trade or commerce among the several States.” 15 U.S.C. § 1. Texas law also
`
`prohibits restraints on trade. See TEX. BUS. & COM. CODE § 15.05(a) (“Every
`
`contract, combination, or conspiracy in restraint of trade or commerce is
`
`unlawful.”). Section 2 of the Sherman Act prohibits persons from
`
`“monopoliz[ing], attempt[ing]
`
`to monopolize, or combin[ing] or
`
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`No. 20-50179
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`conspir[ing] . . . to monopolize any part of the trade or commerce among the
`
`several States . . . .” 15 U.S.C. § 2.
`
`Both federal and Texas law have four-year statutes of limitations for
`
`antitrust claims. See 15 U.S.C. § 15(b); TEX. BUS. & COM. CODE § 15.25.
`
`“Generally, a cause of action accrues and the statute begins to run when a
`
`defendant commits an act that injures a plaintiff’s business.” Zenith Radio
`
`Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971).
`
`Under the general rule, Plaintiffs had four years to bring their claims
`
`against Quest from the date of Quest’s latest overt act. The district court
`
`determined that the last overt act was Quest’s August 2013 meeting with
`
`Phadia about UAS’s insurance reimbursement. Plaintiffs filed suit on
`
`December 28, 2017. Because Plaintiffs’ claims were not brought by August
`
`2017, the district court dismissed them as time barred.
`
`
`
`In concluding that Quest’s latest overt act occurred in August 2013,
`
`the district court disregarded several of Plaintiffs’ allegations that described
`
`later overt acts. The district court determined that these allegations were
`
`insufficient because they lacked specificity, described mere “aftershocks” of
`
`earlier overt acts, or only described Phadia’s actions as a potential co-
`
`conspirator (and not Quest’s actions). We agree that many of the allegations
`
`lacked specificity or described aftershocks of earlier acts, but we disagree as
`
`to the allegations of Phadia’s role as a potential co-conspirator.
`
`1. Lack of Specificity in Allegations of Later Acts
`
`
`
`Plaintiffs point to their allegations that Quest continued to injure their
`
`businesses in 2014 and 2015. They argue that those allegations sufficiently
`
`describe later overt acts and that the statute of limitations should reset based
`
`on those overt acts. We disagree.
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`No. 20-50179
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`
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`Plaintiffs alleged before the district court that “Phadia and Quest
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`continued to approach individual providers and payors in 2014 and 2015
`
`regarding the negative impact UAS was having on their ImmunoCAP sales.
`
`Quest and Phadia continued to work with other co-conspirators to minimize
`
`the competitive threat.” The district court discounted this allegation from
`
`Plaintiffs as insufficiently specific to restart the statute of limitations. The
`
`district court cited Poster Exchange Incorporated v. National Screen Service
`
`Corporation, 517 F.2d 117 (5th Cir. 1975). In Poster Exchange Inc., we
`
`remanded an antitrust case to determine whether there was a specific act or
`
`word of refusal contributing to the antitrust conspiracy during the limitations
`
`period. Id. at 128−29.
`
`Later, we decided Rx.com v. Medco Health Solutions, Inc., 322 F. App’x
`
`394 (5th Cir. 2009). In Rx.com, we did not allow the plaintiffs to toll the
`
`statute of limitations by merely alleging that the defendants continued their
`
`earlier violations of antitrust law. Id. at 397. We reiterated the Supreme
`
`Court’s rule that “each time a plaintiff is injured by an act of the defendants
`
`a cause of action accrues to him to recover the damages caused by that act
`
`and . . . the statute of limitations runs from the commission of the act.” Id.
`
`(quoting Zenith Radio Corp., 401 U.S. at 338).
`
`Plaintiffs’ allegations about Phadia and Quest’s continued meetings
`
`with providers and payors mirror the allegations we rejected in Rx.com. These
`
`allegations do not restart the statute of limitations because they did not
`
`describe a specific act or word contributing to the conspiracy. See Poster Exch.
`
`Inc., 517 F.2d at 128−29.
`
`2. Allegations of “Aftershocks” of Earlier Events
`
`
`
`Plaintiffs next argue that the district court erred by concluding that a
`
`policy change that took effect in June 2014 was not an overt act that would
`
`reset the statute of limitations. Plaintiffs alleged that a June 2014 policy
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`change that discouraged providers from working with UAS was a timely overt
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`act. The district court disagreed, concluding that the overt act associated
`
`with the policy change occurred in August 2013. We agree with the district
`
`court.
`
`“Aftershocks” are lingering effects of earlier overt acts in an antitrust
`
`conspiracy. They are not events that restart the statute of limitations because
`
`“a newly accruing claim for damages must be based on some injurious act
`
`actually occurring during the limitations period, not merely the abatable but
`
`unabated inertial consequences of some pre-limitations action.” Poster Exch.
`
`Inc., 517 F.2d at 128.
`
`Here, the district court determined that the overt act occurred in
`
`August 2013 when Quest and Phadia lobbied for the policy change. It follows
`
`that the policy’s implementation was an aftershock of Quest and Phadia’s
`
`earlier lobbying rather than an independent action. Phadia and Quest did not
`
`continue to act after they lobbied for the new policy, so the policy’s
`
`implementation was merely a delayed result of their earlier actions. This
`
`allegation does not suffice to restart the clock for Plaintiffs’ claims.
`
`Accordingly, the district court properly concluded that Plaintiffs’
`
`allegation regarding the June 2014 policy change does not suffice to restart
`
`the statute of limitations.
`
`3. Allegations of Phadia’s Involvement
`
`
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`Next, Plaintiffs argue that the district court erred by concluding that
`
`their allegations as to Phadia’s conduct could not restart the statute of
`
`limitations. We agree.
`
`The district court disregarded Plaintiffs’ allegations of Phadia’s post-
`
`2013 overt acts because they were “actions taken wholly by Phadia.”
`
`Plaintiffs alleged that in May 2014, Phadia’s Dallas district manager emailed
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`Quest’s directors about their collaboration to discourage providers from
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`working with UAS. The manager indicated that he had recently met with
`
`Timothy McDaniel (another Quest employee), and the manager sent out a
`
`list of several providers that they should further target.
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`Plaintiffs argue that Phadia’s manager’s meeting with McDaniel was
`
`an overt act by a co-conspirator that occurred within four years of Plaintiffs’
`
`suit. They rely on United States v. Therm-All, Inc., 373 F.3d 625 (5th Cir.
`
`2004). In Therm-All, Inc., various corporations and their presidents were
`
`indicted for conspiring to fix prices. Id. at 628. Though five companies were
`
`involved in the price fixing, only two of them were parties to the underlying
`
`dispute in Therm-All, Inc. Id. at 629−32. The defendants argued that the
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`government’s claims against them were barred because the government
`
`failed to introduce evidence that the illegal actions occurred within the
`
`statute of limitations. Id. at 631. However, testimony of non-party co-
`
`conspirators was introduced as evidence that the conspiracy continued into
`
`the limitations period. See id. at 636 (“Rhodes (of Mizell Co.) testified that
`
`the conspiracy continued through June 1995. The testimony is direct
`
`evidence that the participants were involved in conspiratorial acts . . . .”).
`
`Here, the district court ruled that Phadia’s actions were insufficient
`
`to restart the statute of limitations, even if its actions were in furtherance of
`
`the conspiracy. The district court’s view is inconsistent with our precedent
`
`in Therm-All, Inc.
`
`Moreover, Quest’s argument that Phadia cannot be a co-conspirator
`
`here because it was a defendant in the 2014 lawsuit is incorrect. Phadia settled
`
`in the 2014 suit, but no court ever determined its liability as a co-conspirator.
`
`Collateral estoppel would bar Plaintiffs from arguing that Phadia is a co-
`
`conspirator only if Phadia’s liability was “actually litigated in the prior
`
`action” and was determined as “a necessary part of the judgment in that
`
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`action.” See Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 397 (5th Cir.
`
`2004).
`
`Phadia cites Discon Inc. v. Nynex Corp., where a district court held that
`
`a plaintiff was collaterally estopped from asserting a conspiracy claim against
`
`a second co-conspirator after a jury determined that the first co-conspirator
`
`was not liable. 86 F. Supp. 2d 154, 167 (W.D.N.Y. 2000). The alleged
`
`conspiracy involved only two co-conspirators. Id. An acquittal of one co-
`
`conspirator meant that there was no conspiracy as between the two of them,
`
`and the district court concluded that the second suit was barred. Id.
`
`Here, the conspiracy involved many actors, including allergists,
`
`Tonya Winders, AANMA, Phadia, and now Quest. The jury determined that
`
`Winders and AANMA were not liable, but it did not determine Phadia’s
`
`liability. Collateral estoppel does not bar Plaintiffs from asserting that Phadia
`
`is a co-conspirator. Plaintiffs may use the allegations of co-conspirators (and
`
`the timing of those actions) in future suits. See Therm-All, Inc., 373 F.3d at
`
`636.
`
`At this stage of litigation, Plaintiffs have sufficiently alleged that
`
`Phadia and Quest were involved in the alleged conspiracy and that the
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`allegation regarding Phadia’s May 2014 email reset the statute of limitations.
`
`We therefore disagree with the district court and reverse its dismissal of
`
`Plaintiffs’ state and federal antitrust claims.
`
`B. Dismissal of Plaintiffs’ Tort Claims
`
`The district
`
`court
`
`also dismissed Plaintiffs’
`
`claims
`
`for
`
`misappropriation of trade secrets, civil conspiracy, and tortious interference.
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`We reverse the dismissal of Plaintiffs’ misappropriation of trade secrets
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`claim. We affirm the dismissal of the civil conspiracy and tortious
`
`interference claims.
`
`10
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`1. Misappropriation of Trade Secrets Claim
`
`
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`Plaintiffs filed a misappropriation of trade secrets claim against Quest,
`
`arguing that Quest misappropriated UAS’s client list. UAS shared its client
`
`list with Quest when the two were discussing doing business together, and
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`Quest sent the list to Phadia in February 2012 (more than five years before
`
`Plaintiffs filed suit against Quest). Under Texas law, “[a] person must bring
`
`suit for misappropriation of trade secrets not later than three years after the
`
`misappropriation is discovered or by the exercise of reasonable diligence
`
`should have been discovered.” TEX. CIV. PRAC. & REM. CODE ANN. §
`
`16.010(a).
`
`The district court dismissed Plaintiffs’ trade secrets claim because
`
`“UAS and AAAPC fail[ed] to explain why they could not have discovered
`
`the misappropriation through ordinary diligence in the months following
`
`February 2012.”
`
`Plaintiffs argue that they did not know that Quest shared their
`
`customer list with Phadia in 2012. They only knew that Quest declined to
`
`move forward with Plaintiffs’ deal to provide allergy testing. They learned of
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`Quest’s involvement in May 2016 when Quest produced discovery during
`
`the 2014 lawsuit. Because they did not discover Quest’s involvement until
`
`May 2016, Plaintiffs argue that the statute of limitations should be tolled until
`
`that time.
`
`The discovery rule “defers accrual . . . until the plaintiff knew, or
`
`exercising reasonable diligence, should have known of the wrongful act
`
`causing injury.” N. Tex. Opportunity Fund v. Hammerman & Gainer Int’l.,
`
`Inc., 107 F. Supp. 3d 620, 635−36 (N.D. Tex. 2015) (quoting Jackson v. W.
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`Telemarketing Corp. Outbound, 245 F.3d 518, 523–24 (5th Cir. 2001)). The
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`fact that Plaintiffs did not actually know of Quest’s involvement until 2016
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`will not preserve their claim unless they also could not have discovered their
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`No. 20-50179
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`misappropriation injury using ordinary diligence. The discovery rule does not
`
`apply “simply because a claimant does not know ‘the specific cause of the
`
`injury,’ ‘the party responsible for it,’ ‘the full extent of it,’ or ‘the chances
`
`of avoiding it.’” USPPS, Ltd. v. Avery Dennison Corp., 326 F. App’x 842, 847
`
`(5th Cir. 2009) (quoting PPG Indus. Inc. v. JMB/Hous. Ctrs. Partners Ltd.,
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`146 S.W.3d 79, 93−94 (Tex. 2004)).
`
`The discovery rule is a limited exception to statutes of limitation and
`
`will only be applied “when the nature of the plaintiff’s injury is both
`
`inherently undiscoverable and objectively verifiable.” Wagner & Brown, Ltd.
`
`v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001). “Texas courts have set the
`
`inherently undiscoverable bar high, to the extent that the discovery rule will
`
`apply only where it is nearly impossible for the plaintiff to be aware of his
`
`injury at the time he is injured.” Sisoian v. Int’l Bus. Machs. Corp., No. A-14-
`
`CA-565-SS, 2014 WL 4161577, at *4 (W.D. Tex. Aug. 18, 2014) (quoting
`
`Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 675 (5th Cir. 2013)).
`
`In considering the applicability of the discovery rule at the motion to
`
`dismiss stage, our inquiry is whether, accepting all well-pleaded facts as true,
`
`Plaintiffs’ alleged injury, “by its nature, is unlikely to be discovered within
`
`the prescribed limitations period despite due diligence.” Beavers v. Metro.
`
`Life Ins. Co., 566 F.3d 436, 440 (5th Cir. 2009) (quoting Wagner, 58 S.W.3d
`
`at 734–35). Defendants bear the burden of proof on the statute of limitations
`
`defense. Jaso, 435 F.App’x at 351. “With respect to the statute of limitations
`
`defense, dismissal at the 12(b)(6) stage is proper only ‘where it is evident
`
`from the [complaint] that the action is barred and the [complaint] fail[s] to
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`raise some basis for tolling.’” Id. (quoting Jones v. Alcoa Inc., 339 F.3d 359,
`
`366 (5th Cir. 2003) (alterations in original)).
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`The district court rejected Plaintiffs’ allegations and suggested that
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`Plaintiffs could have learned that Quest misappropriated their client list.
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`No. 20-50179
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`Reasonable diligence requires parties to make general
`
`inquiries to
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`knowledgeable parties. See Target Strike, Inc. v. Marston & Marston Inc., 524
`
`F. App’x 939, 945 (5th Cir. 2013). On appeal, Plaintiffs assert that even if
`
`they learned which customers stopped working with UAS, they would not
`
`have learned that Quest shared their customer list with Phadia.
`
`We agree that even if Plaintiffs had exercised due diligence by
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`inquiring with their customers, it is unlikely that they would have learned that
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`Quest shared UAS’s proprietary billing information and business records.
`
`Plaintiffs’ trade secret injury was unlikely to be discovered given the nature
`of Plaintiffs’ trade secret3—a client list. While the misappropriation of other
`proprietary information like computer codes4 or product designs5 may be
`readily discoverable once the information appears in the marketplace,
`
`Plaintiffs could not have discovered their misappropriation injury as easily.
`
`We therefore find it unlikely that they could have discovered the
`
`distinct injury to their trade secret caused by Quest. We conclude that
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`Plaintiffs’ trade secret injury, by its nature, was unlikely to have been
`
`discovered within the limitations period even if Plaintiffs had exercised due
`
`diligence. See Beavers, 566 F.3d at 440.
`
`Plaintiffs have sufficiently pled they could not have discovered their
`
`misappropriation injury using reasonable diligence. Moreover, nothing in the
`
`complaint forecloses Plaintiffs’ potential rejoinder to the statute of
`
`limitations defense. See Jaso, 435 F. App’x at 351. We thus disagree with the
`
`
`
`3 “A trade secret is any formula, pattern, device or compilation of information
`which is used in one’s business and presents an opportunity to obtain an advantage over
`competitors who do not know or use it.” Computer Assoc. Int’l, Inc. v. Altai, Inc., 918 S.W.2d
`453, 455 (Tex. 1996).
`
`4 See Altai, Inc., 918 S.W.2d at 457.
`
`5 See Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 365–66 (5th Cir. 2000).
`
`13
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`Case: 20-50179 Document: 00515867156 Page: 14 Date Filed: 05/18/2021
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`No. 20-50179
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`district court’s dismissal of Plaintiffs’ misappropriation of trade secrets claim
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`and reverse.
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`2. Civil Conspiracy Claim
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`The district court dismissed Plaintiffs’ civil conspiracy claim as time-
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`barred. Plaintiffs argue that their civil conspiracy claim is also subject to the
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`discovery rule and therefore timely. Here, we disagree.
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`Plaintiffs’ conspiracy claim is based on Quest and Phadia’s actions
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`dissuading providers from using UAS’s services. Civil conspiracy claims are
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`generally subject to a two-year statute of limitations. Navarro v. Grant
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`Thornton, LLP, 316 S.W. 3d 715, 719 (Tex. App.—Houston [14th Dist.] 2010,
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`no pet.). Like their misappropriation of trade secrets argument, Plaintiffs
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`argue that this information could not have been discovered within the initial
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`statute of limitations. See Sisoian, 2014 WL 416157, at *4.
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`We are unpersuaded by Plaintiffs’ argument that they could not
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`discover the injuries caused by Quest and Phadia’s alleged civil conspiracy.
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`Unlike their trade secrets injury, the only injuries Plaintiffs alleged here relate
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`to their businesses and ability to compete in the marketplace. We fail to see
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`how those injuries are inherently undiscoverable, particularly since these
`injuries were litigated in Plaintiffs’ 2014 suit against Phadia.6
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`Our analysis is unaltered by the argument that Quest’s role in the
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`conspiracy might have been inherently undiscoverable during the limitations
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`period. The discovery rule analysis turns on whether an injury is inherently
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`undiscoverable, not on whether particular actions or causes are
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`undiscoverable. See Beavers, 566 F.3d at 440. Unlike Plaintiffs’
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`
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`6 Plaintiffs’ misappropriation of trade secrets claim was not litigated in the 2014
`suit, probably because Plaintiffs did not yet know of Quest’s involvement or that Quest
`shared the customer list with Phadia.
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`Case: 20-50179 Document: 00515867156 Page: 15 Date Filed: 05/18/2021
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`No. 20-50179
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`misappropriation claim, there is no inherently undiscoverable injury that
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`stems from the civil conspiracy.
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`
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`Plaintiffs also argue that Quest’s fraudulent concealment of its alleged
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`wrongdoing may toll the statute of limitations. We disagree.
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`
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`Fraudulent concealment tolls the statute of limitations only until “the
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`fraud is discovered or could have been discovered with reasonable
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`diligence.” Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex. 2011) (quoting
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`BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011)). As we
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`previously discussed, Plaintiffs failed to plead that they used diligence in
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`trying to discover Quest and Phadia’s civil conspiracy. We thus affirm the
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`district court’s dismissal of Plaintiffs’ civil conspiracy claim.
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`3. Tortious Interference Claims
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`
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`The district court also dismissed Plaintiffs’ tortious interference claim
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`as time barred. Plaintiffs argue that this claim is subject to the discovery rule.
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`We disagree.
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`Tortious interference claims are subject to a two-year statute of
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`limitations under Texas law. See First Nat’l Bank of Eagle Pass v. Levine, 721
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`S.W.2d 287, 289 (Tex. 1986). Plaintiffs allege that Quest and Phadia’s work
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`convincing UAS’s customers to stop using UAS interfered with its existing
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`and future business.
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`
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`Plaintiffs alleged
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`injuries of
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`lost revenue and
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`lost business
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`relationships. The lost revenue injury is not inherently undiscoverable as
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`discussed above. While the loss of prospective business relationships might
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`be the kind of injury that is inherently undiscoverable, Plaintiffs fail to
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`adequately plead tortious
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`interference with a prospective business
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`relationship. Their complaint does not adequately allege that there was a
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`reasonable probability that UAS and third parties would enter into future
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`Case: 20-50179 Document: 00515867156 Page: 16 Date Filed: 05/18/2021
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`No. 20-50179
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`relationships. See Apani Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 634
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`(5th Cir. 2002). Though the complaint says that there was a reasonable
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`probability that AAPC would have entered into additional relationships with
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`third parties, the statement is conclusory. Plaintiffs did not plead adequate
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`factual support for their claim, so we dismiss the claim under Rule 12(b)(6).
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`Accordingly, we affirm the district court’s dismissal of Plaintiffs’
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`tortious interference claim.
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`C. Leave to Amend Complaint
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`
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`After the district court dismissed their first complaint, Plaintiffs filed
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`a motion for leave to amend their complaint. The district court denied
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`Plaintiffs’ request, and they now argue that the district court erred. We
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`disagree.
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`Rule 15(a)(2) constrains the district court’s discretion in deciding
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`whether to allow parties leave to amend. See Dussouy v. Gulf Coast Inv. Corp.,
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`660 F.2d 594, 597–98 (5th Cir. 1981). Rule 15 favors granting leave to amend,
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`but denying leave is justified when the movant unduly delays or acts with bad
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`faith or dilatory motive. Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th
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`Cir. 2003).
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`
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`Here, Quest filed its Rule 12(b)(6) motion to dismiss on March 9,
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`2018. The district court granted Quest’s motion on February 22, 2019. In the
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`eleven months that Quest’s motion was pending, Plaintiffs did not seek leave
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`to amend their complaint. However, Plaintiffs did timely move for leave to
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`file an amended complaint after the district court issued its order granting
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`dismissal. Their motion did not attach an amended complaint but attached
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`additional evidence instead.
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`
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`The facts of this case resemble Whitaker v. City of Houston, 963 F.2d
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`831 (5th Cir. 1992). When parties delay seeking leave to amend for several
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`Case: 20-50179 Document: 00515867156 Page: 17 Date Filed: 05/18/2021
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`No. 20-50179
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`months after a motion to dismiss is filed, we have held that district courts do
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`not abuse their discretion in denying the request for leave. See id. at 837
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`(affirming district court’s denial of Rule 15(a) request to amend for undue
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`delay when the plaintiff did not seek leave to amend for eleven months while
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`motion to dismiss was pending).
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`
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`Plaintiffs rely on Dussouy, where we held that a court can abuse its
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`discretion by denying a request for leave that occurs within a reasonable time
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`after the entry of dismissal. Dussouy, 660 F.2d at 599. Though Plaintiffs’
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`request was within thirty days of the district court’s entry of dismissal, we
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`cannot conclude that the court abused its discretion because Plaintiffs did not
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`seek to amend during the eleven months that Quest’s motion was pending or
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`provide an amended complaint once they did move for leave to amend.
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`
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`We thus affirm the district court’s denial of Plaintiffs’ request for
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`leave to amend their complaint.
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`IV. CONCLUSION
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`For the aforementioned reasons, we AFFIRM in part and
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`REVERSE and REMAND in part.
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`17
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