Moore

IN THE UNITED STATES DISTRICT COURT April 27, 2026

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

§

BRIDGETT MOORE, §

§

Plaintiff, §

v. § CIVIL ACTION NO. H-25-5476

§

WIRELESS CCTV LLC, et al., §

§

Defendants. §

§

§

MEMORANDUM OPINION AND ORDER

This is a dispute over compensation and health benefits. Bridgett Moore sued Wireless

CCTV LLC, asserting more than a dozen causes of action under state and federal law and seeking

damages as well as declaratory and injunctive relief. (Docket Entry No. 6). Wireless moved to

dismiss. (Docket Entry No. 10). Based on the motion, the briefs, the pleadings, and the applicable

law, the court grants the motion to dismiss, without prejudice and with one last opportunity for

Moore to amend her complaint. Moore must file an amended complaint no later than May 15,

2026.1 The reasons for this ruling are below.

I. Background

In early October 2025, Moore filed this lawsuit in state court. (Docket Entry No. 6 ¶ 27).

Moore worked as a Wireless Regional Account Manager for the Houston region. (Id. ¶ 1). Moore

1 The court already granted Moore leave to amend her complaint by March 6, 2026. She did not, despite

her counsel indicating at the initial conference that she planned to amend. (Docket Entry Nos. 22, 23).

Failure to amend by May 15 will result in dismissal, with prejudice. Although Wireless argues that Moore

has filed two amended pleadings already and should not be allowed another chance, (Docket Entry No. 10

at 10), the court notes that this is the first ruling on a motion to dismiss. Moore may have one more

opportunity to amend to address the deficiencies in her complaint.

asserted claims against Wireless for breach of contract, violation of Chapter 61 of the Texas Labor

Code, unjust enrichment, and constructive fraud. (Docket Entry No. 1-2 at 5–6). Moore amended

her complaint for the first time in late October 2025 to add a claim under the Fair Labor Standards

Act. (Id. at 21). Moore alleged that a few weeks after filing suit, she also filed a formal written

wage complaint asserting that she was the procuring cause of accounts for which Wireless was

unlawfully withholding her commissions. (Docket Entry No. 6 ¶ 22). Wireless timely removed.

In December 2025, Moore filed her second amended complaint.2 (Docket Entry No. 6).

She alleged that she accepted the Wireless position based on “explicit representations” that her

compensation would be a $70,000 base salary plus up to $70,000 in commissions and bonuses.

(Id. ¶ 10). Moore alleges that she was told (it is unclear by whom at Wireless) that she would be

paid monthly and that a “detailed compensation plan” would follow. (Id. ¶ 11). Wireless did not

provide her with the FY2024 compensation plan until January 14, 2024. (Id. ¶ 13). Moore alleges

that Wireless then tried to apply this plan retroactively to her start date. (Id. ¶ 14). Moore asserts

that Wireless’s “delay” prevented her “from understanding or negotiating essential terms of her

compensation” and allowed Wireless “to manipulate the calculation and timing of commission

payments.” (Id. ¶ 16). Moore alleges that throughout 2024 and 2025, she repeatedly asked

Wireless for a FY2025 written compensation plan, which Wireless refused to provide. (Id. ¶ 17).

Moore states that she raised concerns about her unpaid commissions, inaccurate commission

calculations, and improper caps multiple times in 2024. (Id. ¶ 21).

2 Although the complaint filed on December 3, 2025, is entitled the “Amended Complaint,” Moore had

already filed an amended complaint in state court, adding the federal cause of action that allowed Wireless

to remove. (Docket Entry No. 1-2). The operative complaint is the second amended complaint and the

court will refer to this filing as such.

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In late 2025, Moore went on physician-approved medical leave. (Id. ¶ 24). Wireless did

not request a return-to-work release date from Moore’s physician. (Id. ¶ 25). Moore alleges that

Wireless interfered with her insurance coverage, returned her premium payment with no

explanation, and issued a COBRA notice “falsely” stating a reduction in hours as the qualifying

event. (Id. ¶ 25). Moore alleges that these actions occurred after she refused to sign the FY2026

compensation plan, which she had not been provided, while on medical leave. (Id. ¶ 30).

The second amended complaint asserts 14 causes of action against Wireless.3 These causes

of action are: (1) breach of contract, (2) breach of implied-in-fact contract/promissory estoppel;

(3) quantum meruit or unjust enrichment; (4) the procuring-cause doctrine; (5) violation of Chapter

61 of the Texas Labor Code; (6) retaliation under the FLSA; (7) retaliation under the Texas Labor

Code; (8) fraud and constructive fraud; (9) negligent misrepresentation; (10) interference with

protected rights under ERISA § 510; (11) COBRA notice violations; (12) intentional infliction of

emotional distress; (13) ERISA breach of fiduciary duty; and (14) declaratory judgment.

Wireless moved to dismiss the second amended complaint. (Docket Entry No. 10). Moore,

who had been proceeding pro se, obtained counsel just before the initial conference. (Docket Entry

No. 20). At the conference, the court granted Moore leave to amend her pleadings by March 6,

2026. (Docket Entry Nos. 22, 23). She did not do so.

II. The Legal Standard

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be

granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a),

3 The second amended complaint added Adam Haworth, Wireless’s President of U.S. Operations, as a

defendant; he was not named as a defendant until after the case was removed to federal court. The record

shows no return of service on Haworth, and he has not participated in this suit. The Rule 4(m) time for

service has expired.

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which requires “a short and plain statement of the claim showing that the pleader is entitled to

relief.” FED. R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require

‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard

is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

“A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be

enough to raise a right to relief above the speculative level.’” Cicalese v. Univ. Tex. Med. Branch,

924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the

allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic

deficiency should be exposed at the point of minimum expenditure of time and money by the

parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quotation marks

omitted, alterations adopted) (quoting Twombly, 550 U.S. at 558).

A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set

forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial

notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc. v.

Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).

III. Analysis

A. The Federal-Law Claims

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1. Retaliation under the FLSA

Moore alleges that Wireless violated the FLSA when it retaliated against her after she

engaged in protected activity under the FLSA by complaining about unpaid wages; opposing

unlawful compensation practices; asserting her right to be paid earned commissions; filing a wage

dispute; and filing this suit. (Id. ¶¶ 86-88). Wireless responds that the FLSA claim must be

dismissed because, among other issues, Moore’s complaints failed to allege her involvement in

FLSA-protected activity. (Docket Entry No. 10 at 7; Docket Entry No. 15 at 2).

An FLSA retaliation claim requires a plaintiff to “make a prima facie showing of (1)

participation in protected activity under the FLSA; (2) an adverse employment action; and (3) a

causal link between the activity and the adverse action. If a plaintiff meets this burden, the

defendant must then articulate a legitimate, non-discriminatory reason for its decisions. The

burden then shifts to the plaintiff to demonstrate that the proffered reason is a pretext for

discrimination.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008) (quoting

Hagan v. Echostar Satellite L.L.C., Civ. Action No. H-05-1365, 2007 WL 543441, at *4 (S.D. Tex.

Feb. 16, 2007)). The “ultimate question [is] whether a defendant took the adverse employment

action against a plaintiff because of . . . protected status.” Id. (quoting Kanida v. Gulf Coast Med.

Personnel LP, 363 F.3d 568, 576 (5th Cir. 2004)). An internal, informal complaint can constitute

a protected activity under the FLSA. Id. at 626.

“To demonstrate that she participated in an FLSA protected activity, [a plaintiff] must first

demonstrate that she filed a complaint. In order for an employee’s communication to constitute a

‘complaint,’ the ‘employer must have fair notice that an employee is making a complaint that could

subject the employer to a later claim of retaliation’ and the ‘complaint must be sufficiently clear

and detailed for a reasonable employer to understand it, in light of both content and context, as an

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assertion of rights protected by the [FLSA] and a call for their protection.’” Lasater v. Tex. A&M

Univ.-Commerce, 495 F. App’x 458, 462 (5th Cir. 2012) (quoting Kasten v. Saint-Gobain

Performance Plastics Corp., 563 U.S. 1, 13, 14 (2011)).

The FLSA does not protect all complaints generally related to compensation. Rather, “[a]s

long as the complaints do not indicate to a reasonable employer that they implicate minimum wage

or overtime requirements of the FLSA, they are not protected activity for the purposes of FLSA

retaliation.” Lockhart v. Republic Services, Inc., No. CV SA-18-CA-766-XR, 2020 WL 2308438,

at *32 (W.D. Tex. May 8, 2020), aff’d, No. 20-50474, 2021 WL 4955241 (5th Cir. Oct. 25, 2021);

accord Keels v. Cont’l Tire Sumter, LLC, No. 3:20-cv-CMC-SVH, 2022 WL 1498275, at *7

(D.S.C. May 12, 2022) (dismissing an FLSA retaliation claim because “the Amended Complaint

is devoid of a single allegation Continental paid [the plaintiff] less than minimum wage or withheld

wages [the plaintiff] earned by working more than forty hours in a single workweek”); Bouchard

v. Summit Ridge Energy, LLC, No. 1:23-cv1573, 2024 WL 1468337, at *2 (E.D. Va. Apr. 3, 2024)

(“Complaints about compensation owed as a matter of contract or common law differ from

complaints about compensation owed as a matter of federal statute. The latter falls within the

FLSA’s scope; on its own, the former does not.”); McMillin v. Cpride Grp. LLC, No. 2:21-cv-549-

BJR, 2022 WL 1203741, at *5 (W.D. Wash. Apr. 22, 2022) (dismissing an FLSA retaliation claim

when the plaintiff’s claim was based on complaints she had made about unpaid bonuses); Stephens

v. One Nevada Credit Union, No. 2:13-cv-01712, 2016 WL 3360661, at *4 (D. Nev. June 8, 2016)

(the plaintiff could not state a retaliation claim under the FLSA because his complaints were based

on a failure to pay commissions, not minimum wage or overtime pay).

Moore does not allege that she made a complaint (informal or otherwise) about rights

protected by the FLSA. The compensation practices she complained about are the breach of an

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alleged promise to pay certain commission and bonus amounts. She did not complain about a

failure to pay a federally required minimum wage or overtime amount. Retaliation for complaining

about practices outside those protected by the FLSA cannot form the basis of an FLSA retaliation

suit. Moore’s FLSA retaliation claim is dismissed, without prejudice. Moore may amend her

complaint to attempt to address the deficiencies in her FLSA claim, consistent with Rule 11.

2. The COBRA Claims

Moore alleges that Wireless failed to comply with COBRA notice requirements, in

violation of 29 U.S.C. § 1166 et seq. (Docket Entry No. 6 ¶¶ 129–40). “Under COBRA, an

employer must provide notice to its plan administrator within thirty days of a qualifying event, and

the administrator must provide notice to the employee of his rights within fourteen days of

receiving notice.” Sterling v. City of New Roads, Civ. Action No. 08-424-JJB, 2010 WL 55333,

at *3 (M.D. La. Jan. 6, 2010) (citing 29 U.S.C. § 1166(a)(2), (c)). A “reduction in hours” is a

qualifying event. See 29 U.S.C. § 1163(2). Moore argues that she “did not voluntarily reduce her

hours, did not resign, and did not abandon her job,” but rather remained on active medical leave.

(Id. ¶ 132). As a result, according to Moore, COBRA was not triggered and Wireless’s COBRA

notice stating a “reduction in hours” as the qualifying event was “false[].” (Id. ¶¶ 131, 133). Moore

also alleges that Wireless violated COBRA by returning her premium payment. (Id. ¶ 137).

Wireless responds that Moore’s claim must be dismissed because the facts alleged show that

Wireless complied with its COBRA obligations. (Docket Entry No. 10 at 10–11).

The court agrees that the facts alleged show that Wireless complied with its COBRA

obligations. A reduction in hours is a “qualifying event” under COBRA. See 29 U.S.C. § 1163(2).

What Moore fails to acknowledge is that a change from full-time employment to unpaid, non-

FMLA medical leave counts as a “reduction in hours” under the statute. See Mehmen v. Collin

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County, 558 F. Supp. 2d 711, 717 (E.D. Tex. 2007) (reviewing the language and history of the

COBRA statute and concluding that the plaintiff’s “inability to return to work upon the expiration

of his FMLA leave was a ‘reduction of hours’ under the statute”); see also Solomon v. Fordham

Univ., 2021 WL 2292916, at *3 (S.D.N.Y. June 4, 2021) (citing 26 C.F.R. § 54.4980B-4(e) and

stating that the plain text of that regulation “encompasses unpaid leave”). That Moore’s leave was

“approved” does not mean that it was not a qualifying event; it was still unpaid, non-FMLA leave.

(Docket Entry No. 12 at 4). Notably, Moore does not argue that Wireless failed to provide timely

notice or otherwise failed to meet COBRA’s notice requirements; she argues only that the notice

itself was improper because her leave should not have been considered a qualifying event.

The claim for violation of COBRA notice requirements is dismissed, without prejudice.

Moore may have one more opportunity to plead facts demonstrating that Wireless failed to comply

with its COBRA requirements.

3. The ERISA Claims

Moore asserts claims under ERISA for interference with protected rights, in violation of

ERISA § 510, 29 U.S.C. § 1140, and breach of fiduciary duty, in violation of 29 U.S.C. § 1104,

1132(a)(3). (Docket Entry No. 6 ¶¶ 118–28, 148–55). These claims are largely premised on the

same facts as her COBRA claim—that Wireless allegedly interfered with her protected rights

because it terminated her health benefits while she was on medical leave and without proper notice,

and that it violated its fiduciary duty by failing to act in her best interests. Wireless responds that:

(1) the § 510 claim must be dismissed because Moore’s pleadings “demonstrate that her loss of

benefits was the mere consequence of the expiration of coverage due to a reduction of hours during

unpaid, non-FMLA leave”; and (2) the ERISA fiduciary duty claim fails because Moore alleged

“no facts” showing that Wireless had discretionary authority over the plans its provides to its

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employees, that it was not acting solely in an employer capacity in the conduct alleged, or how it

could have breached a duty when it met its COBRA notice obligations and returned a premium

payment from an expired plan. (Docket Entry No. 10 at 11).

“To make a prima facie showing of interference under § 510, an employee must show ‘(1)

prohibited (adverse) employer action, (2) taken for the purpose of interfering with the attainment

of (3) any right to which the employee is entitled’ or may become entitled.” Jurach v. Safety

Vision, LLC, 72 F. Supp. 3d 698, 715 (S.D. Tex. 2014) (quoting Bodine v. Emps. Cas. Co., 352

F.3d 245, 250 & n.3 (5th Cir. 2003)). “An essential element of a Section 510 claim is proof of

defendant’s specific discriminatory intent.” Id. (quoting Hines v. Mass. Mut. Life Ins. Co., 43 F.3d

207, 209 (5th Cir. 1995)). “The ‘incidental loss of benefits due to discharge’ is insufficient to

show intent.” Id. (quoting Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 260 (5th Cir. 2001)).

A claim for breach of fiduciary duty under ERISA requires a plaintiff to “establish three

elements: (1) the plan is governed by ERISA, (2) the defendant is a fiduciary of the plan, and (3)

the defendant breached its fiduciary duties under ERISA, resulting in losses to the plan’s

participants.” Spence v. Am. Airlines, Inc., 775 F. Supp. 3d 963, 994 (N.D. Tex. 2025). “The Fifth

Circuit has identified three general ways to assume fiduciary status under ERISA: (1) serving ‘as

a named fiduciary in the instrument establishing the employee benefit plan,’ (2) ‘becoming a

named fiduciary pursuant to a procedure specified in the plan instrument,’ and (3) acting ‘as a

“functional fiduciary” under the broad authority, control, or advise provisions of ERISA.’” Id. at

996 (quoting Perez v. Bruister, 823 F.3d 250, 259 (5th Cir. 2016)).

The facts Moore pleaded are that she lost her benefits (and received notice under COBRA)

because of a reduction in hours during unpaid, non-FMLA leave. Wireless argues that these facts

show that Moore’s loss of benefits “was not the consequence of an employer action—let alone a

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prohibited employer action taken for the purposes of interfering with the attainment of an

employee right.” (Docket Entry No. 10 at 11). The court agrees. Moore has pleaded no facts

plausibly showing interference under § 510; the alleged facts merely show that Moore lost benefits

during non-FMLA medical leave. The loss of benefits is, alone, insufficient to state a claim under

§ 510 anyway. Jurach, 72 F. Supp. 3d at 715. For similar reasons, Moore has not plausibly

pleaded an ERISA breach of fiduciary duty claim. Even setting aside Wireless’s argument that

Moore failed to plead that Wireless was a fiduciary, the facts do not show that Wireless breached

any fiduciary duty. Rather, the alleged facts show that Wireless properly sent Moore a notice

under COBRA and properly returned a payment for an expired plan.

The ERISA claims are dismissed, without prejudice. Moore may have one final

opportunity to amend to allege violations of ERISA.

4. Declaratory Judgment

Moore’s final “count” based on federal law is for a declaratory judgment under 28 U.S.C.

§§ 2201–2202. (Docket Entry No. 6 ¶¶ 156–162). A declaratory judgment “is not an independent

cause of action, but merely a remedy.” Johnson v. Bloom Retirement Holdings, Inc., No. 4:23-cv-

2086, 2024 WL 4932724, at *2 (S.D. Tex. Nov. 26, 2024); see also Aetna Life Ins. Co. v. Haworth,

300 U.S. 227, 240 (1937). Moore cannot assert a “count” for declaratory judgment, and for the

reasons explained both above (for federal-law claims) and below (for state-law claims), Moore has

not plausibly pleaded any substantive claims at this time for which she could obtain this remedy.

B. The State-Law Claims

Moore also asserts a panoply of state-law claims against Wireless. In response, Wireless

argues that because Moore filed a wage complaint with the Texas Workforce Commission (TWC)

but did not exhaust her administrative remedies, her state-law claims must be dismissed. (Docket

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Entry No. 10 at 12). Wireless argues that “once a claimant elects to file an administrative claim,

they forego their common law claims.” (Docket Entry No. 10 at 12) (citing Abatement Inc. v.

Williams, 324 S.W.3d 858, 864 (Tex. App.—Houston [14th Dist. 2010], pet. denied) and Hull v.

Davis, 211 S.W.3d. 461, 465 (Tex. App.—Houston [14th Dist.] 2006, no pet.)). Wireless also

argues that, in any event, Moore fails to sufficiently plead her state-law claims. (Id. at 13). In

response, Moore argues—in a single short paragraph with no citations—that “[w]hether an

administrative filing constitutes an election barring all judicial remedies is a mixed question of law

and fact inappropriate for dismissal at the pleading stage.” (Docket Entry No. 12 at 6).

The court dismisses Moore’s breach of contract/implied contract,4 quantum meruit,5 and

“Chapter 61”6 claims because she cannot pursue both an active TWC action and common law

claims based on breach of contract. As the Texas Court of Appeals held in Hull, when plaintiffs

4 Moore also brings a “count” for violation of the procuring cause doctrine. (Docket Entry No. 6 ¶¶ 73–

79). As Wireless argues, (Docket Entry No. 10 at 15), that is not a separate cause of action, but merely a

doctrine within a claim for breach of contract. See Perthuis v. Baylor Miraca Genetics Labs., LLC, 645

S.W.3d 228, 233–34 (Tex. 2022) (explaining the procuring cause doctrine in the context of a breach of

contract claim based on alleged unpaid commissions); see also Petro Marine Underwriters, Inc. v. Cox

Oper. Co., L.L.C., No. 21-20100, 2022 WL 1793026, at *2–3 (5th Cir. June 2, 2022) (per curiam).

5 While Moore “cannot recover for both breach of contract and quasi-contract theories, ‘Texas law clearly

permits a party to plead both a claim for breach of contract and, in the alternative, equitable claims.’” Int’l

Pecans, LLC v. Ultra Trading Int’l Corp., 764 F. Supp. 3d 527, 537 (W.D. Tex. 2025) (quoting SCIVIC

Eng’g Am., Inc. v. Spark Power Corp., No. 5:21-cv-572-XR, 2022 WL 36011, at *4 (W.D. Tex. Jan. 4,

2022)).

6 Moore brings a claim for violation of Chapter 61, (Docket Entry No. 6 ¶¶ 80–85), but Chapter 61 does

not provide a private cause of action. To the extent that Moore is trying to assert a stand-alone claim under

Chapter 61 (rather than a challenge to a final administrative decision), such a claim is dismissed, with

prejudice. See, e.g., Abatement Inc., 324 S.W. 3d at 864 (“Chapter 61 provides a detailed administrative

enforcement scheme and allows the possibility for enforcement by the attorney general, and nothing in

language of chapter 61 shows any intent to also allow a private right of action.”); Brown v. Joseph Cory

Holdings, LLC, No. 4:13-CV-044-Y, 2014 WL 12585674, at *2 (N.D. Tex. July 30, 2014) (“Because the

Texas Payday Act does not provide for a private right of action, and because Brown did not pursue available

administrative remedies, Cory is entitled to summary judgment with respect to Brown’s claims under

Chapter 61”); Vargas v. Salazar, No. 4:23-CV-4267, 2024 WL 4804091, at *2 (S.D. Tex. Nov. 1, 2024),

report and recommendation adopted, 2024 WL 4804065 (S.D. Tex. Nov. 15, 2024).

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choose to proceed with an administrative remedy under Chapter 61, they “forego” their common

law causes of action. 211 S.W. 3d at 465. Plaintiffs “cannot have it both ways”; if they want to

pursue common-law remedies, they must “withdraw [their] claim with the TWC before the

commission’s decision became final.” 211 S.W. 3d at 465; accord Tricon Tool & Supply, Inc. v.

Thumann, 226 S.W.3d 494, 511 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“When a

claimant files a claim under the Payday Law, he is required to abide by the statute’s provisions.

To pursue common-law remedies after filing a claim under the Payday Law, a claimant must

withdraw his claim before its decision becomes final.” (citation omitted)). As pleaded in the

amended complaint, the TWC claim is still active; there is no allegation that Moore withdrew the

claim or that she is challenging a final administrative decision. (Docket Entry No. 6 ¶¶ 83, 92).

Because Moore cannot proceed on both an active TWC claim and common-law claims

based on breach of contract, these claims are dismissed. Desir v. Walmart, Inc., No. 4:23-CV-

00700, 2024 WL 1200350 (S.D. Tex. Feb. 8, 2024), report and recommendation adopted sub

nom. Desir v. Walmart Inc, 2024 WL 1201625 (S.D. Tex. Mar. 20, 2024). Moore does not allege

facts showing that she is challenging a final administrative decision or that she has met the statutory

requirements for doing so, which include naming the TWC as a defendant. See TEX. LAB. CODE

§ 61.062(c). Moore may amend her complaint, consistent with Rule 11, to allege that the TWC

claim was withdrawn or that she is properly challenging a final administrative decision. If she has

withdrawn her TWC claim, Moore must also allege sufficient facts to state her contract-based

claims, rather than vague allegations that she simply was not paid as much as she wanted to be

paid.

It is not clear whether the filing of a TWC claim bars a plaintiff from asserting all common

-law claims, or just common-law claims based on breach of contract. See, e.g., Byun v. Hong, 641

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S.W.3d 821, 826 (Tex. App.—Tyler 2022, no pet.) (“An employee asserting a claim pursuant to

the Payday Law may choose to either file an administrative claim with the TWC under the Payday

Law or a common law breach of contract claim in court.”). To the extent that any of Moore’s tort

or other non-contract common-law claims are not blocked by her filing of a claim with the TWC,

however, the court agrees with Wireless that those claims are insufficiently pleaded.

First, Moore has failed to plausibly plead intentional infliction of emotional distress. This

tort is “first, and foremost, a ‘gap-filler’ tort, judicially created for the limited purpose of allowing

recovery in those rare instances in which a defendant intentionally inflicts severe emotional

distress in a manner so unusual that the victim has no other theory of redress.” Hoffman-La Roche,

Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004) (discussing Standard Fruit & Vegetable Co.

v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)). Intentional infliction of emotional distress claims are

limited to circumstances in which the defendant’s conduct was “extreme and outrageous.”

Johnson v. Merrell Dow Pharms., Inc., 965 F.3d 31, 33 (5th Cir. 1992) (per curiam). Nothing in

Moore’s amended complaint comes close to showing that Wireless’s conduct meets that standard.

Second, Moore’s claim for fraud fails to meet Rule 9’s heightened pleading requirements,

which requires “the who, what, when, where, and how” to be laid out. Williams v. WMX v. Techs.,

Inc., 112 F.3d 175, 179 (5th Cir. 1997). Despite its length, Moore’s amended complaint does not

allege a factual basis for most of these elements. Who at Wireless (outside of, seemingly, Haworth,

whose actions are not identified with any specificity) was responsible for making any false

statements? When exactly did these false statements occur? Moore’s conclusory allegations are

insufficient to meet the Rule 9 standard. See, e.g., Ford v. Pangea Int’l Trading Co., Civ. Action

No. H-25-916, 2025 WL 2977978, at *4 (S.D. Tex. Oct. 21, 2025). Moore’s claim for negligent

misrepresentation fails for similar reasons, both because none of the necessary facts to meet the

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elements of this claim are sufficiently alleged and also because, as Wireless points out, this claim

as pleaded is based on promises of future conduct only. See Stolts v. Wells Fargo Bank, NA, 31 F.

Supp. 3d 876, 882 n.5 (S.D. Tex. Jan. 16, 2014) (“[A] promise of future action . . . cannot form

the basis of a negligent-representation tort as a matter of law. Negligent misrepresentation must

relate to a ‘statement of existing fact rather than a promise of future conduct.’” (quoting Scherer

v. Angell, 253 S.W.3d 777, 781 (Tex. App.—Amarillo 2007, no pet.))).

Finally, Moore brings a statutory claim for “Retaliation under Texas Labor Code.” (Docket

Entry No. 6 ¶¶ 91–98). She cites no specific provision of the Labor Code, and to the extent that

she is trying to state a claim under Chapter 21, she has plainly failed to allege any facts supporting

such a claim; there is no assertion that she engaged in “protected activity” under Chapter 21, among

other issues.7 Moore does not directly respond to Wireless’s arguments about the deficiencies in

this claim. “Generally, the failure to respond to arguments constitutes abandonment or waiver of

the issue.” All About Prop., LLC v. Midland Mortg., No. 4:22-cv-1684, 2024 WL 1079226, at *5

(S.D. Tex. Feb. 8, 2024) (quoting Kellam Servs., No. 3:12-cv-352-O, 2012 WL 12093735, at *3

(N.D. Tex. May 21, 2013), aff’d sub nom., Kellam v. Metrocare Servs., 560 F. App’x 360 (5th Cir.

2014)). Moore may amend her “retaliation” claim if she can properly state a claim for retaliation

under Texas law.

IV. Conclusion

The court grants the motion to dismiss. (Docket Entry No. 10). Moore’s claims are

dismissed, without prejudice, except to the extent that she is treating Chapter 61 as creating a

7 The court notes that Chapter 21 also contains an exhaustion requirement. See, e.g., Tapley v. Simplifile,

LC, Civ. Action No. 3:19-cv-00227-E, 2020 WL 208817, at *2 (N.D. Tex. Jan. 14, 2020).

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private cause of action; that claim is dismissed, with prejudice, because amendment would be

futile. Moore has one final opportunity to amend and must do so no later than May 15, 2026.*

SIGNED on April 27, 2026, at Houston, Texas.

LW Cnt

Lee H. Rosenthal

Senior United States District Judge

* Wireless also asserts that Moore’s pleadings indicate the use of generative AI and point out cases she cites

that do not exist. (Docket Entry No. 10 at 20). The court has checked those citations (see, e.g., Docket

Entry No. 7 at 2 (citing “Thomas v. City of San Marcos (W.D. Tex.)” and “Cole v. Sandler, 2014 WL

266501 (E.D. La.)”)) and agrees they do not exist and are likely an indication of AI use (for example, the

Westlaw number for the “Cole v. Sandler” citation leads to a Northern District of Texas case entitled Cole

v. Hunter, which does not stand for the proposition that Moore cites “Cole v. Sandler” for). The court

warns Moore that “briefing ‘built on Al-generated cases that stand for legal propositions in direct

contravention of actual case law’ ‘is the epitome of baseless’ and that, ‘[w]hile courts afford pro se litigants

considerable leeway, that leeway does not relieve pro se litigants of their obligation under Rule 11 to

confirm the validity of any cited legal authority.’” Willis v. U.S. Bank Nat’l Ass’n as Tr., Igloo Series Tr.,

No. 3:25-CV-516-BN, 2025 WL 1224273 (N.D. Tex. Apr. 28, 2025) (citing Sanders v. United States, 176

Fed. Cl. 163 (2025)).

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