Thompson v. Hitek Films LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
NICHOLAS THOMPSON,
Plaintiff,
V.
HITEK FILMS LLC, et. al.,
Defendants.
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§ 	Civil Action No. H-25-5596
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ORDER
Pending before the Court is Defendant Hitek Film's Motion to Dismiss
Pursuant to Fed. R. 	Civ. P. 	12(b)(6) (Document No. 2). Having considered the
Defendant's motion, submissions, and applicable law, the Court determines that the
motion should be granted in part and denied in part.
I. 	BACKGROUND
This matter involves an employment dispute. In early 2023, Plaintiff Nicholas
Thompson was recruited to work for Defendant Hitek Films LLC ("Hitek"). In June
2023, Plaintiff, while working for Hitek, suffered a serious spinal fracture. Plaintiff
alleges that, after requesting reasonable adjustments to perform his job following the
injury, he was retaliated against and ultimately was forced to leave his position with
Hitek. Plaintiff further alleges that, following the end of his employment, Hitek
refused to return his personal Facebook account and tools which had been used in
United States District Court
Southern District of Texas
ENTERED
July 02, 2026
Nathan Ochsner, Clerk
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the course of his employment at Hitek. Lastly, Plaintiff alleges that Hitek failed to
•pay the promised $25,000 severance.
Based on the foregoing, on October 25, 2025, Plaintiff filed suit in the 270th
District Court of Harris County, Texas, asserting claims against Hitek and Does 1-
25 for: (1) fraudulent inducement; (2) "retaliation (workers' compensation)"; (3)
"retaliation (Texas Labor Code§ 21.055)"; (4) disability discrimination under both
Texas Labor Code § 21.055 and the Americans with Disabilities Act ("ADA"); (5)
breach 	of 	contract; 	(6) 	promissory 	estoppel; 	(7) 	conversion; 	(8) 	"unjust
enrichment/quantum meruit"; 	(9) negligent misrepresentation; 	(10) "breach 	of
implied covenant of good faith and fair dealing"; (11) "tortious interference with
property 	rights"; 	(12) 	"intentional 	infliction 	of emotional 	distress"; 	and 	(13)
declaratory judgment. 1 On November 20, 2025, Hitek removed the matter to this
Court pursuant to federal question jurisdiction. 2 Also on November 20, 2025, Hitek
moved to dismiss Plaintiffs following claims: 	(1) ADA claim; (2) fraudulent
inducement; (3) "retaliation as to Workers' Compensation"; (4) "retaliation under
the Texas Labor Code"; (5) conversion; (6) "unjust enrichment/quantum meruit";
(7) negligent misrepresentation; (8) "breach of implied covenant of good faith and
fair dealing"; (9) "tortious interference with property rights"; 	( 10) "intentional
1 Notice of Removal, Document No. 1, Exhibit 1 at 8-19 (Plaintiff's Complaint).
2 See Notice of Removal, Document No. 1 at 1.
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infliction of emotional distress"; and (11) declaratory judgment. 3 On March 3, 2026,
Plaintiff responded in opposition. 4
IL 	STANDARD OF REVIEW
Rule l 2(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). Under Rule 8(a)(2), a pleading must
contain "a short and plain statement of the claim showing that the pleader is entitled
to relief." Fed. R. Civ. P. 8(a)(2). Although "the pleading standard Rule 8 announces
does not require 'detailed factual allegations,' ... it demands more than ... 'labels
and conclusions."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At/.
Corp. 	v. 	Twombly, 	550 U.S. 544, 555 (2007)). "[A] formulaic recitation of the
elements of a cause of action will not do." Id. (quoting Twombly, 550 U.S. at 555).
In deciding a Rule l 2(b)( 6) motion to dismiss for failure to state a claim, " [t]he
'court accepts all well-pleaded facts as true, viewing them in the light most favorable
to the plaintiff."' In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464,
467 (5th Cir. 2004)). To survive the motion, a plaintiff must plead "enough facts to
state a claim to relief that is plausible on its face." Twombly, 	550 U.S. at 570.
3 Defendant Hitek Film's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6),
Document No. 2 at 2-7.
4 See Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under
Fed. R. Civ. P. (12)(b)(6), Document No. 13 at 1; the Court notes Order Granting Motion
for Leave to File Response, Document No. 12 at 1.
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"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) (quoting Twombly, 550 U.S. at 558).
III. LAW & ANALYSIS
Hitek moves to dismiss several of Plaintiffs claims, contending that Plaintiff
fails to state a claim upon which relief can be granted. 5 In response, Plaintiff
contends that his claims are sufficiently pled under Rule 8(a)(2). The Court will
consider, in tum, the claims that Hitek moves to dismiss. Lastly, the Court will
consider Plaintiffs pending claims against Does 1-25.
1. 	ADA Claim
Hitek contends that Plaintiffs ADA claim should be dismissed for failure to
state a claim upon which relief can be granted. In response, Plaintiff contends that
his ADA claim is sufficiently pled and that Hitek's contentions are "factually
incorrect and legally moot." 6 The ADA defines a disability, in relevant part, as "a
5 The Court notes that Hitek does not move to dismiss Plaintiffs claims for: ( 1)
disability discrimination under Texas Labor Code § 21.055; (2) promissory estoppel; and
(3) breach of contract. As such, those claims remain pending against Hitek and are not
addressed in the present Order.
6 Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under Fed.
R. Civ. P. (12)(b)(6), Document No. 13 at 3.
4
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physical or mental impairment that substantially limits one or more major life
a~tivities of such individual[.]" 42 U.S.C. § 12102(1 )(A).
Here, Hitek's sole ground for dismissal 	of Plaintiffs ADA claim 	is 	its
contention that "Plaintiff did not allege either a specific injury 	or a discrete
incident[.]" 7 In response, Plaintiff points to Hitek's own motion in which it admits
that "Plaintiff alleges he was 'injured in June 2023. "' 8 Plaintiff further contends that
his allegations of failure to accommodate are sufficient to allege a discrete incident.
The Court has reviewed Plaintiffs Complaint and notes that Plaintiff clearly pleads
that he "sustained a serious spinal fracture" and that he "requested reasonable
accommodations" which were met with Hitek restricting his access, stripping him
of meaningful responsibilities, and excluding him from normal operations. 9 Based
on the foregoing, and the clear language of the ADA, the Court finds that Plaintiff
has sufficiently pied both a specific injury and a discrete incident. As such, the Court
finds that Hitek's motion should be denied with respect to Plaintiffs ADA claim.
The Court will now consider Hitek's motion with respect to Plaintiffs claim for
fraudulent inducement.
7 Defendant Hitek Film's Motion to Dismiss Pursuant to Fed. R. Civ. P. J2(b)(6),
Document No. 2 at 3.
8 Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under Fed.
R. Civ. P. (12)(b)(6), Document No. 13 at 3 (citation omitted).
9 Plaintiff's Complaint, supra note 1 at 12.
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2. 	Fraudulent Inducement Claim
Hitek contends that "Plaintiffs Cause of Action for Fraudulent Inducement .
. . fails to plead fraud with any specificity as is required by Fed. R. Civ. P. 9(6)[.]" 10
In response, Plaintiff contends that his fraudulent inducement claim is sufficient
under Rule 9(6 ). 11 Federal Rule of Civil Procedure Rule 9(6) states "[i]n alleging
fraud or mistake, a party must state with particularity the circumstances constituting
fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind
may be alleged generally." Fed. R. Civ. P. 9(6). In Texas, "[a] promise of future
performance constitutes an actionable misrepresentation if the promise was made
with no intention of performing at the time it was made." Schindler v. Austwell
Farmers Coop., 841 S.W.2d 853, 854 (Tex. 1992).
Here, Hitek contends that "Plaintiff lists terms of employment that do not
indicate fraud[.]" 12 In response, Plaintiff contends that he has sufficiently pl~d the
'"who, what, when, where, and how"' of the fraud. 13 The Court notes that Hitek
10 Defendant Hitek Film's Motion to Dismiss Pursuant to Fed. R. Civ. P. l 2(b)(6),
Document No. 2 at 3.
11 See Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under
Fed. R. Civ. P. (l 2)(b)(6), Document No. 13 at 4.
12 Defendant Hitek Film's Motion to Dismiss Pursuant to Fed. R. Civ. P. l 2(b)(6),
Document No. 2 at 3.
13 Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under Fed.
R. Civ. P. (l 2)(b)(6), Document No. 13 at 4 (citation omitted).
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provides 	no 	supporting 	authority 	to 	support 	its 	contention that 	promises 	of
employment terms cannot indicate fraud if they are knowingly false when made. The
Court has reviewed Plaintiffs 	Complaint 	in 	this 	matter and notes Plaintiffs
allegations that Hitek "made specific, material representations to Plaintiff' and that
Hitek knew the representations "were false when made." 14 The Court further notes
that Plaintiff lists four specific representations that he alleges were fraudulently
made. 15 Based on the foregoing, and the clear guidance of the Texas Supreme Court
that a promise of future performance can be actionable for the purposes of fraud, the
Court finds that Plaintiffs fraudulent inducement claim is sufficiently pled under
Rule 9(b ). As such, the Court finds that Hitek' s motion should be denied with respect
to Plaintiffs fraudulent inducement claim. The Court will now consider Hitek's
motion with respect to Plaintiffs breach of the implied covenant of good faith and
fair dealing claim.
3. 	Breach of Implied Covenant of Good Faith and Fair Dealing Claim
Hitek contends that Plaintiffs claim for breach of implied covenant of good
faith and fair dealing should be dismissed for failure to state a claim upon which
relief can be granted. Plaintiff offers no rebuttal with respect to this claim. The Texas
14 Plaintiff's Complaint, supra note 1 at 8-9.
15 See Plaintiff's Complaint, supra note 1 at 8 (particularly npting Hitek's alleged
representation 	that 	"Plaintiff 	would 	be 	considered 	for 	partnership 	or 	ownership
opportunities if he joined[.]").
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Supreme Court has long held that "there is no duty of good faith and fair dealing in
the employment context[.]" City of Midland v. 0 'Bryant, 18 S.W.3d 209, 216 (Tex.
2000).
Here, Hitek contends that "[i]t can be reasonably inferred from Plaintiffs state
court petition that his causes of action arise as a result of his employment with
Defendant" and thus that "Plaintiff has failed to state a claim upon which relief can
be granted for his claim for breach of implied covenant of good faith and fair
dealing." 16 Plaintiff offers no rebuttal as to this point. Based on the foregoing, and
the clear guidance of the Texas Supreme Court that no duty of good faith and fair
dealing exists within the employment context, the Court finds that Plaintiffs claim
for breach of implied covenant of good faith and fair dealing fails to state a claim
upon which relief can be granted. As such, the Court finds that Hitek' s motion should
be granted with respect to Plaintiffs claim for breach of implied covenant of good
faith and fair dealing. The Court will now consider Hitek's motion with respect to
Plaintiffs retaliation claims.
4. 	Retaliation Claims
Plaintiff brings claims for retaliation under workers' compensation and Texas
Labor Code § 21.055. Hitek contends that both claims should be dismissed for
16 Defendant Hitek Film's Motion to Dismiss Pursuant to Fed. R. Civ. P. l 2(b)(6),
Document No. 2 at 6.
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failure to state a claim upon which relief can be granted. In response, Plaintiff
contends that both claims are sufficiently pled. The Texas Labor Code states, in
relevant part, that " [a] person may not discharge or in any other manner discriminate
against an employee because the employee has . . . instituted or caused to be
instituted in good faith a proceeding under Subtitle A[.]" Tex. Lab. Code§ 451.001.
The Texas courts have interpreted "instituted" broadly to include when an employee
"informs his employer of his on-the-job injury." Salas v. Fluor Daniel Services
Corporation, 616 S.W.3d 137, 148 (Tex. App.-Houston [14th Dist.] 2020, pet.
denied). Furthermore, § 21.055 of the Texas Labor Code makes it unlawful for an
employer to retaliate against a person who "(l) opposed a discriminatory practice;
(2) makes or files 	a charge; (3) files 	a complaint; or (4) testifies, assists, or
participates in any manner in an investigation, proceeding, or hearing." Tex. Lab.
Code§ 21.055.
Here, Hitek contends that both claims should be dismissed because Plaintiff
"does not plead that he performed the protected activities identified[.]" 17 In response,
Plaintiff contends that "Plaintiff's allegation that he 	was 	injured and that his
employment ended shortly thereafter creates a reasonable inference that he reported
17 Defendant Hitek Film's Motion to Dismiss Pursuant to Fed. R. Civ. P. l 2(b)(6),
Document No. 2 at 6.
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the injury and was terminated in anticipation of his claim." 18 With respect to
Plaintiffs retaliation claim under workers' compensation and the Texas Labor Code
§ 451.001, the Court finds that, based on the foregoing, and the clear guidance of the
Texas courts, Plaintiff instituted or caused to be instituted a proceeding when he
reported his on-the-job injury. As such, the Court finds that Plaintiffs retaliation
claim under workers' 	compensation and the Texas Labor Code 	§ 451.001 	is
sufficiently pled, and thus, that ·Hitek' s motion should be denied with respect to this
claim. The Court now turns to Plaintiffs retaliation claim under the Texas Labor
Code§ 21.055.
The Court notes Plaintiffs complaint in which Plaintiff contends that he
"engaged in a protected activity under the Texas Commission on Human Rights Act
(TCHRA), Texas Labor Code § 21.055, when he: a. Reported his workplace injury
and 	requested 	accommodations[.]" 	Hitek 	contends 	that this 	claim 	should 	be
dismissed because Plaintiff has not pled that he performed the required protected
activity. 19 The Court notes the aforementioned language of Texas Labor Code §
21.055 and notes that reporting a workplace injury is not protected by § 21.055 as
Plaintiff represents in his Complaint. See Tex. Lab. Code § 21.055. Based on the
18 Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under Fed.
R. Civ. P. (12)(b)(6), Document No. 13 at 5.
19 See Defendant Hitek Film's Motion to Dismiss Pursuant to Fed. R. 	Civ. P.
12(b)(6), Document No. 2 at 6.
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foregoing, the Court finds that the proper retaliation claim in this matter is one
brought under workers' compensation and Texas Labor Code§ 451.001, not under
§ 21.055. As such, the Court finds that Hitek's motion should be granted with respect
to Plaintiffs§ 21.055 retaliation claim. The Court will now consider Hitek's motion
with respect to Plaintiffs intentional infliction of emotional distress ("IIED") claim.
5. 	!JED Claim
Hitek contends that Plaintiffs claim for IIED should be dismissed because it
fails to state a claim upon which relief can be granted. In response, Plaintiff contends
that this claim is sufficiently pled. To recover for IIED, a plaintiff must prove that:
(1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and
outrageous; (3) the actions of the defendant caused the plaintiff emotional distress;
and (4) the 	resulting emotional distress 	was 	severe. 	See Standard Fruit and
Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). For conduct to be
extreme and outrageous, conduct must be "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized community." Natividad
v. Alexis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). Lastly, the Court notes that "It is
for the court to determine, in the first instance, whether the defendant's conduct may
reasonably be regarded as so extreme and outrageous as to permit recovery[.]"
Warnick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993) (citation omitted).
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Plaintiff contends that "Defendant's conduct-including retaliating against
Plaintiff after his spinal injury, stripping him of responsibilities, denying severance,
seizing his 	personal account, .and withholding his 	property-was 	extreme and
outrageous[. ]" 20 Hitek contends that this claim should be dismissed because Plaintiff
fails 	to 	specify "how 	[Hitek's conduct] 	was 	extreme 	and outrageous[.]" 21 In
response, Plaintiff contends that "[w]hile it is for the Court to determine in the first
instance whether conduct may be regarded as 	extreme and outrageous, where
reasonable minds may differ, it is for the jury to determine whether the conduct has
been sufficiently extreme and outrageous to result in liability[.]" 22 The Court has
reviewed Plaintiffs Complaint, in detail, and notes the aforementioned conduct that
Plaintiff contends was extreme and outrageous. The Court finds that the conclusory
references to retaliation, loss of responsibility, and withholding of property are
insufficient to raise to the level of extreme and outrageous, 23 Based on the foregoing,
and the Texas Supreme Court's clear guidance that extreme and outrageous conduct
20 Plaintiff's Complaint, supra note 1 at 19.
21 Defendant Hitek Film's Motion to Dismiss Pursuant to Fed. R. Civ. P. J2(b)(6),
Document No. 2 at 6.
22 Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under Fed.
R. Civ. P. (12)(b)(6), Document No. 13 at 7.
23 The Court notes that this is an employment dispute involving what appears to be
a contentious separation between an employee and employer. The Court declines to find
that such contentious separation rises to the level of extreme and outrageous.
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is required to recover for IIED, the Court finds that Plaintiff has failed to state a
claim with respect to his IIED claim. As such, the Court finds that Hitek's motion
should be granted with respect to Plaintiffs IIED claim. The Court will now consider
Hitek's motion as it relates to Plaintiffs remaining claims.
6. 	Remaining Claims
Hitek moves to dismiss Plaintiffs claims for conversion, unjust enrichment,
negligent misrepresentation, and tortious interference, contending that the two-year
statute of limitations bars recovery for these claims. In response, Plaintiff contends
that 	Hitek's 	motion 	ignores 	the 	"Discovery 	Rule 	and 	the 	Continuing 	Tort
Doctrine[.]" 24 The discovery rule can defer the time that the statute of limitations
begins to run under limited circumstances. S. V v. R. V, S.W.2d 1, 4 (finding that
sometimes "an action does not accrue until the plaintiff knew ... of the wrongful act
and resulting injury.") (citation omitted). The continuing tort doctrine states that, in
some cases, " [a] cause of action for a continuing tort does not accrue until the
defendant's tortious act ceases." Upjohn v. Freeman, 885 S.W.2d 538, 542 (Tex.
App.-Dallas 1994, writ denied).
Here, Hitek contends that the statute of limitations for the aforementioned
claims began to run on or about June 2023, and thus, that recovery is barred. In
24 Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under Fed.
R. Civ. P. (12)(b)(6), Document No. 13 at 5.
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response, Plaintiff simply states that Hitek' s motion ignores the discovery rule and
continuing tort doctrine. 25 Given that this matter is currently at the pleadings stage,
the Court finds that it is unable to determine when the statute of limitations began to
run with respect to the aforementioned claims. 26 Based on the foregoing, and the
clear guidance of the Texas courts allowing for exceptions to the standard rule that
the statute of limitations begins to run at the time the claim accrues, the Court finds
that Plaintiffs claims are sufficiently pled for the purposes of Rule 8(a)(2). As such,
the Court finds that Hitek's motion to dismiss should be denied with respect to the
remaining claims. 27
7. 	Plaintiff's Claims Against Does 1-25
The Court notes Plaintiffs Complaint stating, in relevant part, that "Plaintiff
is presently unaware of the true names and capacities of additional individual
decision-makers and entities who participated in or ratified the wrongful acts
25 Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Under Fed.
R. Civ. P. (12)(b)(6), Document No. 13 at 5-6.
26 The Court finds that, considering that the claims in this matter are all related to
the same employment dispute and that Plaintiff alleges some of his personal property has
still not been returned, it is unable to determine, at this stage, if the discovery rule and/or
the continuing tort doctrine are applicable in this matter.
27 The Court further finds that, considering the Court's finding that the motion to
dismiss should be denied with respect to the aforementioned tort claims, Hitek's motion to
dismiss Plaintiffs claim for declaratory judgment should be denied.
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described herein." 28 As such, the Court further notes Defendants Does 	1-25's
presence in this matter.
This matter was originally filed on October 25, 2025. 29 Nothing in the record
indicates that Defendants Does 1-25 have been served in compliance with the
Federal Rules of Civil Procedure. If a defendant is not served within ninety days
after the complaint is filed, the Court must: ( 1) dismiss the action without prejudice;
or (2) order service be made within a specified time. Fed. R. Civ. P. 4(m). It has been
well over ninety days since the complaint was filed. Therefore, the Court finds that
Plaintiff has failed to serve Defendants Does 1-25 in accordance with the Federal
Rules of Civil Procedure, and thus, that Plaintiffs claims against Defendants Does
1-25, to the extent he brings any, should be dismissed.
IV. CONCLUSION
Based on the foregoing, the Court hereby
ORDERS that Defendant Hitek Film's Motion to Dismiss Pursuant to Fed.
R. Civ. P. 12(b)(6) (Document No. 2) is GRANTED IN PART with respect to
Plaintiffs claims for: ( 1) breach of imp lied covenant of good faith and fair dealing;
(2) retaliation under the Texas Labor Code § 21.055; and (3) intentional infliction of
emotional distress. The Court further
28 Plaintiff's Complaint, supra note 1 at 2.
29 Plaintiff's Complaint, supra note 1 at 1.
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ORDERS that Defendant Hitek Film's Motion to Dismiss Pursuant to Fed.
R. Civ. P. 12(b)(6) (Document No. 2) is DENIED IN PART with respect to all other
•claims not noted immediately above. The Court further
ORDERS that Plaintiffs claims against Defendant Hitek Films LLC for
breach of implied covenant of good faith and fair dealing, retaliation under the Texas
Labor Code § 21.055, and intentional infliction of emotional distress are hereby
DISMISSED. The Court further
ORDERS that Plaintiffs claims against Does 1-25, to the extent any are
brought, are hereby DISMISSED.
s·IGNED at Houston, Texas, on this --1_ day of July, 2026.
DA DHITTNER
United States District Judge
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