PLAINTIFF'S OPPOSITION TO INDIVIDUAL DEFENDANTS' MOTION TO DISMISS filed by Cara Wessels Wells re: 25 MOTION to Dismiss PLAINTIFF'S FIRST AMENDED COMPLAINT (Davis¶

Wells v. Texas Tech University, et al, No. 5:23-cv-00060 (N.D. Tex.) · Dkt. 34 · 2023-08-03 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
CARA WESSELS WELLS,
Plaintiff
v.
TEXAS TECH UNIVERSITY, SAMUEL
PRIEN, LINDSAY PENROSE,
Defendants.

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CAUSE NO. 5:23-CV-00060-H

PLAINTIFF’S OPPOSITION TO INDIVIDUAL DEFENDANTS’
MOTION TO DISMISS

Plaintiff Cara Wessels Wells submits this Opposition to the Motion to Dismiss the First
Amended Complaint of Defendants Samuel Prien (“Dr. Prien”) and Lindsay Penrose (“Dr. Penrose,”
and together, “Individual Defendants”) pursuant to Federal Rule of Civil Procedure 12(b)(1) and
12(b)(6):
I. PRELIMINARY STATEMENT
This dispute originates with the discriminatory and malicious behavior of two TTU professors,
Dr. Prien and Dr. Penrose, towards their former student and colleague Dr. Wells. Having made good
on their mission to effect lasting harm on Dr. Wells, these two professors now seek full dismissal
from this lawsuit based on a patchwork of applicable and inadequate defenses. Contrary to the
Individual Defendants’ assertions, Dr. Wells’ complaint adequately alleges her claims, none of which
are barred by election of remedies or state immunity. Their motion to dismiss should be denied.
II. FACTS
In 2009, Dr. Wells began her career in animal sciences at TTU. (Amended Compl. Dkt. 19
(“Compl.”) ¶ 32) Early on, Dr. Prien seemed to show an interest in Dr. Wells work. (Compl. ¶ 34)
However, as time went on, it became clear that Dr. Prien’s interest was far from scholastic and/or

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professional. (Compl.¶¶ 35, 39, 41, 44, 51) Indeed, with the assistance of his associate Dr. Penrose,
Dr. Prien repeatedly coerced Dr. Wells into demeaning and uncomfortable situations. (Compl. ¶¶ 37,
40, 45, 52, 55, 56, 58, 60) As Dr. Prien became increasingly jealous and possessive, Dr. Wells made
it clear that she was not interested—and was capable of succeeding on her own. (Compl. ¶¶ 46, 54,
57) In retaliation, Drs. Prien and Penrose made it their mission to harm Dr. Wells career in any way
they could, including, but not limited to, taking credit for Dr. Wells’ work, interfering in Dr. Wells’
career opportunities, and pursuing financial opportunities to which they were not entitled. (Compl. ¶¶
46, 60, 65-70, 96-104) During her involvement with the school, Dr. Wells reported this behavior to
TTU on numerous occasions. (Compl. ¶¶ 105-107) The University failed to investigate, offer any
protection, or honor commitments to patents she invented. (Compl. ¶ 107) More egregious still, in
June 2022, TTU fire Dr. Wells from her mentorship role and retaliated further by blacklisting Dr.
Wells from University and related endeavors. (Compl. ¶ 112). As recently as February 2023, Dr.
Prien, fully backed by TTU, has continued to spread false and defamatory lies about Dr. Wells, further
harming her reputation in a small community. (Compl. ¶ 117) Defendants actions resulted and
continue to result in real harm to Dr. Wells. (Compl. ¶¶ 45, 56, 67, 90, 101-104, 112, 114-115, 117)
On November 11, 2022, 300 days after January 15, 2022, Dr. Wells filed a Charge of
Discrimination with the EEOC. (Compl. ¶ 30) On December 22, 2022, the EEOC issued a Notice of
Right to Sue. (Compl. ¶ 31) ON March 22, 2023, Dr. Wells filed her original complaint, alleging
numerous causes of action against Defendants TTU, Dr. Prien, and Dr. Penrose. (Dkt. 1) On June 22,
2023, Dr. Wells filed her First Amended Complaint (Dkt. 19) On July 6, 2023, TTU moved to dismiss
Dr. Wells’ Amended Complaint pursuant to Rule 12(b)(6) (Dkt. 24), and Dr. Prien and Dr. Penrose
moved to dismiss pursuant to Rule 12(b)(1) and Rule(b)(6) (Dkt. 25). The Court stayed discovery on
July 19, 2023. (Dkt. 33)

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III. STANDARD OF REVIEW
Defendants seek dismissal pursuant to Rule 12(b)(1). A motion challenging subject matter
jurisdiction should only be granted “if it appears certain the plaintiff cannot prove any set of facts that
would entitle her to recovery.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001) (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998)).
Defendants also seek dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Such motions to dismiss are “viewed with disfavor” and “rarely granted.” 1 Facts alleged
must be accepted as true as well as viewed in the light most favorable to the plaintiff. 2 While a
complaint must state more than conclusions, it “need not contain detailed factual allegations.” 3
IV.
A.

ARGUMENT

Plaintiff’s Claims Are Not Barred By Section 101.106(E) Of The Texas Torts Claims Act.

The Individual Defendants assert that the tort claims against them should be dismissed based on
Section 101.106(e) of the Texas Torts Claims Act (“TTCA”). That argument is without merit. The
Individual Defendants fail to meet their burden, as they must, to establish that the conduct alleged
was within the scope of their employment.
Section 101.106 is an election of remedies provision. Section 101.106(e) provides: “If a suit is
filed under this chapter against both a governmental unit and any of its employees, the employees
shall immediately be dismissed on the filing of a motion by the government unit.” Section 101.106(f)
provides, “[i]f a suit is filed against an employee of a governmental unit based on conduct within the
general scope of that employee's employment and if it could have been brought under this chapter
against the governmental unit, the suit is considered to be against the employee in the employee's
official capacity only.” “§ 101.106 [of the Texas Tort Claims Act] expressly limits its scope to suits

1

See Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011).
2
Id.
3
Id.

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against ‘an employee of a governmental unit’ and requires dismissal only if it is ‘based on conduct
within the general scope of that employee’s employment.’” 4
In Texas, intentional torts “perpetrated by [an] employee...are not ordinarily within the course
and scope of an employee’s authority or employment.” 5 The TTCA defines “scope of employment”
as “the performance of a task lawfully assigned to an employee by a competent authority.” 6 Texas
courts analyzing the scope of employment issue often look to the Restatement (Third) of Agency. 7
The Restatement states “An employee’s act is not within the scope of employment when it occurs
within an independent course of conduct not intended by the employee to serve any purpose of the
employer.” Restatement (Third) of Agency § 7.07(2). The burden of proof that the complaint alleges
conduct objectively within the scope of defendants’ employment rests with the defendants. 8
In their motion, Individual Defendants put forth no evidence that they acted within the scope
of their employment in connection with the misconduct alleged by Plaintiff. Therefore, they fail to
meet their burden of proof and all tort claims against them should proceed. 9
Individual Defendants’ failure to even attempt to prove that their tortious misconduct was
outside the scope of their employment is unsurprising in light of the allegations:
-

Tortious Interference with Contractual Relations (Count 8): Dr. Wells alleges that Dr. Prien’s
interference with her contract with Simplot violated his contract with TTU and thus, he was
acting in his individual capacity. (Compl. ¶¶ 96-100)

4

Jackson v. Texas S. Univ., 997 F. Supp. 2d 613, 633 (S.D. Tex. 2014).
Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 494 (Tex. App. 2002) (granting summary
judgment on the issue of respondeat superior based on holding that intentional tort was not within
scope of employment).
6
Tex. Civ. Prac. & Rem. Code § 101.001(5).
7
Alief Indep. Sch. Dist. v. Velazquez, No. 01-22-00444-CV, 2023 WL 3555495, at *7 (Tex. App. May
18, 2023).
8
Cai v. Chen, No. 14-20-00588-CV, 2022 WL 2350049, at *2 (Tex. App. June 30, 2022). (stating
that in order to prove immunity, defendants must “present conclusive evidence that [Plaintiff’s] suit
(1) is based on conduct within the scope of [defendants’] employment with [a governmental unit] and
(2) could have been brought against the governmental unit under the Tort Claims Act.”).
9
Id. at *5.
5

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Trade Secret Misappropriation (Count 9): Dr. Wells alleges that Dr. Prien’s interference with
her contract with Simplot violated his contract with TTU and thus, he was acting in his
individual capacity. (Compl. ¶¶ 96-100)

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Unjust Enrichment (Count 11): Dr. Wells alleges that Individual Defendants personally
benefitted from, inter alia, patent inventions and reputational gains which belonged to Dr.
Wells. (Compl. ¶¶ 46, 61, 101-103, 115)

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Fraudulent concealment (Count 13): Dr. Wells alleges that Individual Defendants
intentionally concealed information with respect to patents on which they are individually part
inventors. (Compl. ¶¶ 101-103)

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Defamation per se (Count 14): Dr. Wells alleges that Individual Defendants made false
statements regarding intellectual property theft and academic misconduct. 10 (Compl. ¶¶ 56,
91, 102, 104, 112, 117)

A. Sovereign Immunity Does Not Bar Dr. Wells’ Claims For Violation Of Section 1983 Equal
Protection, Correction Of Inventorship, Or Patent Invalidity.
Individual Defendants argue that sovereign immunity bars Plaintiff’s claims for violations of
Section 1983 equal protection, as well as for correction of patent inventorship and invalidity.
Individual Defendants are incorrect, because (1) the Ex Parte Young doctrine applies to the Section
1983 claims and correction of inventorship and invalidity claims.
In the context of suits against government employees, sovereign immunity has several
important limitations. As an initial matter, it does not apply with respect to suit against government
employees in their individual capacities. In addition, sovereign immunity is limited by important
exceptions. One exception, as noted by Individual Defendants, is the Ex Parte Young doctrine. This

10

Id. (holding that Defendant failed to meet its burden of proof to show that defamatory statements
were made inside the scope of employment); Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573,
579 (Tex. 2002) (finding that there was no evidence to support jury’s finding that defamatory
statement was made in the scope of employment).

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doctrine provides that “the Eleventh Amendment is not a bar to suits for prospective relief against a
state employee acting in his official capacity.” 11 “This doctrine has existed alongside ... sovereign
immunity jurisprudence for more than a century, accepted as necessary to permit the federal courts to
vindicate federal rights.” 12 Courts conduct a “straightforward inquiry” to determine whether Ex Parte
Young applies, asking whether the complaint (1) alleges “an ongoing violation of federal law”; and
(2) “seeks relief properly characterized as prospective.” Id. at 255.
Plaintiff’s Section 1983 claim is not barred, because she alleges ongoing violations of federal
law and seeks prospective relief in satisfaction of the Ex Parte Younger exception. First, Dr. Wells
alleges that Individual Defendants continue to violate her rights by, inter alia, harming her career
opportunities and retaliating against her based on her gender. (Compl. ¶¶ 46, 57-60, 65-70, 100-104,
109, 112-117) Second, Dr. Wells seeks declaratory relief finding that Dr. Prien and Dr. Penrose
violated Dr. Wells rights as well as injunctive relief enjoining Dr. Prien and Dr. Penrose from
harassing or otherwise discriminating on the basis of her gender. (Compl. ¶ 159)
Plaintiff’s patent inventorship and invalidity claims are also not barred, because she alleges
ongoing violations of federal patent law and seeks prospective relief. Dr. Wells alleges that Individual
Defendants continue to violate her intellectual property rights because she has been removed or
excluded from patents on which she is an inventor. (Compl. ¶¶ 50, 76, 102-103) Dr. Wells seeks
prospective equitable relief in the form of either the correction of inventorship on the patent at issue
or declaration that the patent is invalid because of her omission as an inventor. (Compl. ¶¶ 160-168)
As such, Individual Defendants’ argument based on sovereign immunity fails.
B.

Plaintiff’s State Law Claims Are Not Barred By Official Immunity.
The Individual Defendants assert that Plaintiff’s claims are barred by the official immunity

doctrine. In support, Individual Defendants argue that Plaintiff’s own allegations establish that

11

Nelson v. Univ. of Tex. at Dallas, 535 F.3d 318, 321-22 (5th Cir. 2008); see Ex Parte Young, 209
U.S. 123 (1908).
12
Va. Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 254-55 (2011) (citation and internal
quotation marks omitted).

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Individual Defendants were acting within their discretionary duties as professors at TTU. Their
argument fails.
“Government employees are entitled to official immunity from suit arising from the
performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the
scope of their authority.” 13 It is the state employees’ burden to prove these elements. 14 “Good faith”
is a standard of objective reasonableness, which requires that the employee could have believe that
his conduct was lawful. 15 If defendant meets that burden, nonmovant must show that no reasonable
employee could have thoughts the conduct was reasonable. 16
Individual Defendants are not entitled to official immunity. As an initial matter, Individual
Defendants fail to offer any evidence or even allegations in favor of their own affirmative defense
that their conduct fulfills any of the three elements of official immunity. Importantly, Individual
Defendants do not even state—no doubt because it would be laughable to do so—that they acted in
good faith in carrying out their misconduct. Because they fail to offer anything to the Court in support
of their bid of official immunity, the defense fails. Moreover, Dr. Wells’ allegations make clear that
Individual Defendants’ conduct in support of her state law claims was not in good faith. (Compl. ¶¶
96 17, 46, 61, 76, 101-103 18). Because Individual Defendants fail to meet the good faith requirement
of official immunity, the state law claims against them are not barred.
C. Plaintiff Adequately Pleads A Claim For Misappropriation Of Trade Secrets.
To show that a defendant misappropriated a trade secret, Plaintiff must establish: “(a) the existence
of a trade secret; (b) a breach of a confidential relationship or improper discovery of the trade secret;
13

Murillo v. Garza, 904 S.W.2d 688, 690 (Tex. App. 1995), writ denied (Nov. 16, 1995)
Id.
15
Id. at 690.
16
Id.
17
Dr. Prien maliciously interfered with a contract to which he was not a party and Dr. Prien
intentionally absconded with data from Wells’ research in connection with her own companies in
violation of a non-disclosure agreement.
18
Individual Defendants profited personally from cutting Dr. Wells out of profitable royalties and
misuse of her research and other labor and Individual Defendants purposefully concealed information
in order to profit at Dr. Wells expense.
14

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(c) use of the trade secret; and (d) damages.” 19 Under the Texas Uniform Trade Secrets Act
(TUTSA) 20, a trade secret is defined as:
information, including a formula, pattern, compilation, program, device, method,
technique, process, financial data, or list of actual or potential customers or suppliers,
that: (A) derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use; and (B) is the
subject of efforts that are reasonable under the circumstances to maintain its secrecy.21
Plaintiff clearly and adequately alleges that the information subject to her agreement with Simplot
was a trade secret because it derived independent economic value and was protected by efforts to
keep the information secret. (Compl. ¶¶ 81, 96-98) Dr. Prien improperly acquired the trade secret in
breach of his confidential relationship. (Compl. ¶¶ 96-99) Dr. Prien’s submission of the data as
support for his abstract qualifies as use of the trade secret, and this use resulted in harm to Dr. Wells.
(Compl. ¶¶ 96-100)
D.

To The Extent Any Claims Are Dismissed, Plaintiff Requests Dismissal Without

Prejudice And Seeks Leave To Amend.
If the Court grants any part of Defendants’ motion (it should not), Dr. Wells requests dismissal
without prejudice and seeks leave to amend. Leave to amend is granted freely and courts are biased
in favor of granting leave. 22 Courts only deny leave where the amendment is a product of undue delay,
bad faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice, or futility. 23 None
of those factors is met here. Rather, Dr. Wells seeks precautionary leave to amend at the earliest
19

Taco Cabana Int'l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1123 (5th Cir. 1991), aff'd sub nom. Two
Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S. Ct. 2753, 120 L. Ed. 2d 615 (1992).
20
The Defend Trade Secrets Act (DTSA) definition of a “trade secret” is largely identical to the
definition under the TUTSA.
21
Tex. Civ. Prac. & Rem. Code Ann. § 134A.002(6) (West Supp. 2013).
22
Thomas v. Chevron USA, Inc., 832 F.3d 586, 590 (5th Cir. 2016) (noting that a formal motion for
leave to amend is not required).
23
Id.

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opportunity—her opposition to the court’s first-considered motion to dismiss. Wells has only
amended her complaint once as of right, and no discovery or other process has yet taken place to
arguably prejudice Defendants. As argued herein, Dr. Wells’ claims have merit. However, to the
extent any claims are ruled insufficiently pleaded, the opportunity to amend at this early stage is
appropriate. For these reasons, if the Court dismisses any of Dr. Wells’ claims, leave to amend should
be granted.
I. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendants’
motion to dismiss. To the extent the court grants dismissal of any claim, Plaintiff respectfully requests,
for the reasons specified herein, that the Court grant such dismissal without prejudice and with leave
to amend.

Dated: August 3, 2023

Respectfully submitted,
BREWER, ATTORNEYS &
COUNSELORS
/s/ William A. Brewer IV
William A. Brewer IV (admitted pro hac vice)
wbb@brewerattorneys.com
750 Lexington Avenue, Floor 14
New York, NY 10022
Telephone: (212)489-1400
Facsimile: (212)751-2849
COUNSEL FOR PLAINTIFF

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was served on all counsel of record on August 3,
2023, via the court’s electronic filing system.
/s/ William A. Brewer, IV
WILLIAM A. BREWER IV