OCuSoft, Inc. v. Unicon Optical Co. Ltd.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
OCUSOFT, INC.,
Plaintiffs,
v.
UNICON OPTICAL CO. LTD.,
Defendants.
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CIVIL ACTION NO. H-25-3241
MEMORANDUM AND OPINION
This dispute arises out of an alleged breach of a contract to manufacture colored contact
lenses. 	OCuSOFT, a Texas corporation, alleges that Unicon Optical, a Taiwanese corporation,
produced contact lenses that violated the quality-assurance specifications that the parties agreed
to. (Docket Entry No. 1). Unicon has moved to dismiss the complaint for insufficient service of
process and for failure to state a claim. 	(Docket Entry No. 10). 	After a careful review of the
complaint, the motion to dismiss, the response, the reply, and the applicable law, the court denies
the motion to dismiss for insufficient service of process and grants the motion to dismiss for failure
to state a claim, in part with prejudice and in part without prejudice. The reasons for these rulings
are set forth in detail below.
I. 	Background
Unicon Optical Co. Ltd. is a Taiwanese limited company with its principal place of
business in Taiwan. (Docket Entry No. 1 ¶ 10). In September 2023, OCuSOFT, Inc. entered into
a Confidentiality, Supply, and License Agreement (“Supply Agreement”) with Unicon. (Docket
Entry No. 1 ¶ 6). 	Under the Supply Agreement, Unicon agreed to research, develop, design,
United States District Court
Southern District of Texas
ENTERED
June 05, 2026
Nathan Ochsner, Clerk
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manufacture, market, produce, and supply contact lenses, and OCuSOFT agreed to purchase the
contact lenses for resale in the United States. (Id.).
In October 2023, the parties agreed to a Private Label Quality Agreement (“Quality
Agreement”). 	(Id.). 	Under the Quality Agreement, the parties agreed to comply “with Current
Good Manufacturing Practices.” (Id.). OCuSOFT agreed “to retain the trademark for the contact
lenses, develop the marketing for the contact lenses, and maintain compliance with FDA
regulations.” 	(Id.). 	Unicon agreed to manufacture products that “conform to the United States
Federal Food, Drug and Cosmetic Act (the ‘FDCA’) and/or applicable Medical Device Quality
System Regulations (QSR).” 	(Id. ¶ 7).1 	After the parties entered into the Supply Agreement,
OCuSOFT “spent over $800,000 for its first purchase of contacts and began to market lenses
beginning in August of 2024.” (Id. ¶ 8).
In September 2024, OCuSOFT “was alerted to complaints regarding the use of the lenses.”
(Id.). “Wearers of the lenses complained of the fit of the lenses and noted that it was irritating to
the eye,” and “[o]ptometrists reported edge lifting of the lenses.” 	(Id.). 	“In response to such
complaints, OCuSOFT sent the lenses to an independent lab for testing to ensure that the lenses
met the specifications outlined in the Quality Agreement.” (Id.). “The laboratory tested the base
curve, diameter and pH of the lenses provided.” (Id.). “The independent testing revealed that 50%
of the plus (+) lenses tested were out of specification.” (Id. ¶ 9).
In September 2024, “after OCuSOFT shared these results with Unicon, Unicon conducted
its own independent testing that yielded results reflecting that the lenses were within the
specification set out in the contract.” 	(Id.). 	OCuSOFT doubted the integrity of Unicon’s
1 The product specifications were detailed in a consulting agreement, which was not attached to
OCuSOFT’s complaint. (Docket Entry No. 1-2 at Schedule A).
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representations about the results of the investigation. (Id.). OCuSOFT notified Unicon again of
its results, but Unicon did not take steps to cure the alleged defects or to change its manufacturing
processes. (Id. ¶ 10).
As a result, OCuSOFT sent a written demand to terminate the contract and for
reimbursement of damages and expenses. (Id.). Unicon rejected the demand and countered with
a demand of its own for OCuSOFT’s alleged breach. (Id.). The parties continued to negotiate and
exchange demands until February 2025, when OCuSOFT filed this lawsuit for breach of contract.
(Id.). 	Because Unicon is a foreign entity that is not registered to conduct business in Texas,
OCuSOFT served it through the Texas Secretary of State. 	(Docket Entry No. 7). 	Unicon
challenges this service and whether the complaint states a claim on which relief can be granted.
(Docket Entry No. 10).
II. 	The Legal Standards
A. 	Service of Process
Federal Rule of Civil Procedure 4(h) provides that service of process on a corporation,
partnership, or association, whether foreign or domestic, may be served in a judicial district of the
United States or in a foreign territory. 	Fed. R. Civ. P. 4(h). 	If service of process occurs in the
United States, it must be done either according to state law or by delivering a copy of the summons
and the complaint to an officer, managing or general agent, or other agent authorized by
appointment or by law to receive service of process. 	Fed. R. Civ. P. 4(h)(1)(A), 4(h)(1)(B). If
service of process takes place in a foreign country, Rule 4(h)(2) requires compliance with the
methods of service listed in Rule 4(f). Fed. R. Civ. P. 4(h)(2).
The rules for serving process are intended to give sufficient notice to defendants of any
actions filed against them. 	See, e.g., 3d CHARLES A. W RIGHT & ARTHUR R. M ILLER, FEDERAL
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PRACTICE AND P ROCEDURE § 1061, at 311–12 (2002) (”[Federal Rule 4] was designed to provide
maximum freedom and flexibility in the procedures for giving all defendants . . . no matter where
they might be located, notice of the commencement of the action.”); see also Goetz v. Synthesys
Techs., Inc., 415 F.3d 481, 484 (5th Cir. 2005) (noting that the primary purpose of service
requirements is to ensure defendants receive actual notice of the pendency of litigation against
them).
A party may raise insufficient process or insufficient service of process by moving to
dismiss under Rules 12(b)(4) or 12(b)(5). The plaintiff bears the burden of establishing the validity
of the service of process. See Aetna Business Credit Inc. v. Universal Decor & Interior Design,
635 F.2d 434, 435 (5th Cir. 1981) (citing Familia de Boom v. Arosa Mercantil, S.A., 629 F.2d
1134, 1139 (5th Cir. 1980)). Another court in this district has outlined the proper procedure for a
Rule 12(b)(5) motion:
Plaintiffs normally meet the burden of establishing that the defendant was properly
served by producing the process server’s return of service, which is generally
accepted as prima facie evidence of the manner in which service was effected.
Unless some defect is shown on the face of the return, a motion to dismiss under
Rule 12(b)(5) requires the defendant to produce admissible evidence establishing
the lack of proper service. 	Plaintiffs must produce admissible evidence showing
that the service was proper, or creating a fact issue requiring an evidentiary hearing.
Fyfee v. Bumbo Ltd., No. CIV.A. H-09-0301, 2009 WL 2996885, at *2 (S.D. Tex. Sept. 16, 2009)
(quoting Nabulsi v. Nahyan, No. CIV A H-06-2683, 2009 WL 1658017, at *4 (S.D. Tex. June 12,
2009), aff’d sub nom. Nabulsi v. Bin Zayed Al Nahyan, 383 F. App’x 380 (5th Cir. 2010)).
A court that grants a Rule 12(b)(5) motion has the discretion to retain the case and quash
the service “where there is a reasonable prospect that plaintiff ultimately will be able to serve
defendant properly.” Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 (2nd Cir. 1985)
(cleaned up).
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B. 	Failure to State a Claim
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),
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. (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).
“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.” Eli Lilly & Co. v. Revive Rx, LLC, No. CV H-
23-3521, 2025 WL 3640703, at *5 (S.D. Tex. Dec. 15, 2025) (quoting Cuvillier v. Taylor, 503
F.3d 397, 401 (5th Cir. 2007)).
III. 	Analysis
A. 	Service of Process
Section 17.044(b) of the Texas Civil Practice and Remedies Code permits substitute service
on the Secretary of State for a nonresident defendant doing business in Texas who does not
maintain a regular place of business in Texas, provided that the relevant proceeding arises from
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business done in Texas and the nonresident is a party to the suit. Texas Civil Practice & Remedies
Code Section 17.042 explains that “[i]n addition to other acts that may constitute doing business,
a nonresident does business in this state if the nonresident: (1) contracts by mail or otherwise with
a Texas resident and either party is to perform the contract in whole or in part in this state; (2)
commits a tort in whole or in part in this state; or (3) recruits Texas residents, directly or through
an intermediary located in this state, for employment inside or outside this state.”
“Absent fraud or mistake, the Secretary of State’s certificate is conclusive evidence that
the Secretary of State, as agent of [the defendant], received service of process for [the defendant]
and forwarded the service as required by the statute.” Capitol Brick, Inc. v. Fleming Mfg. Co., 722
S.W.2d 399, 401 (Tex. 1986). The record includes a proper certificate from the Texas Secretary
of State. (Docket Entry No. 7).
OCuSOFT’s service of process on Unicon satisfies the Texas statutory requirements.
OCuSOFT is a Texas company. 	Unicon, a foreign company, contracted with OCuSOFT. 	And
part of the contract is to be performed in Texas. 	See TEX. CIV. PRAC. & REM . § 17.042(1).
OCuSOFT is required to “devote its best sales and promotional efforts to distribute, market and
sell the Contact Lens Products in the Territory,” (Docket Entry No. 1-1 § 3.2), which includes
Texas, (see Docket Entry No. 1-1 at 12 (“The United States of America and its Territories (Others
by mutual agreement).”)). 	Meeting these rudimentary conditions is sufficient to bring Unicon
within the Texas Long-Arm Statute. See, e.g., McLean v. Paradigm SRP LLC, No. 04-22-00449-
CV, 2023 WL 7133438, at *4 (Tex. App.—San Antonio Oct. 31, 2023, no pet.); Max Protetch,
Inc. v. Herrin, 340 S.W.3d 878, 885 (Tex. App.—Houston [14th Dist.] 2011, no pet.). The Long-
Arm Statute provides a “minimal pleading requirement” that “is satisfied by an allegation that the
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nonresident defendant is doing business in Texas.” Dole v. LSREF2 APEX 2, LLC, 425 S.W.3d
617, 624 (Tex. App. —Dallas 2014, no pet.).
Unicon responds that a single contract cannot establish personal jurisdiction over it in a
Texas court under the Long-Arm Statute. (Docket Entry No. 12 at 7–9). Unicon’s jurisdictional
argument conflates service of process with a minimum-contacts analysis. 	Service of process is
necessary to establish personal jurisdiction because proper service provides notice. Child. of the
Kingdom v. Cent. Appraisal Dist. of Taylor Cnty., 674 S.W.3d 407, 416 (Tex. App.—Eastland
2023, pet. denied) (“An important purpose of requiring service of process is to give citizens the
opportunity to receive fair notice of pending legal proceedings . . . .”); Rose v. Rose, 117 S.W.3d
84, 87 (Tex. App.—Waco 2003, no pet.) (“Without actual service on a defendant or an effective
substitute for service, a trial court generally lacks the power to render judgment against the
defendant. The purpose of service of citation is to ensure that the defendant has notice of the suit.”
(citation omitted)). 	By contrast, the minimum-contacts analysis ensures that defendants are not
unfairly subjected to litigation in a distant forum. See Cirrus Design Corp. v. Berra, 633 S.W.3d
640, 647 (Tex. App.—San Antonio 2021, no pet.); Luv N’ care, Ltd. v. Insta-Mix, Inc., 438 F.3d
465, 469 (5th Cir. 2006). Unicon’s argument that a single contract is insufficient for this Texas
court to exercise jurisdiction over it raises the minimum-contacts issue, not the service-of-process
issue.
Because OCuSOFT’s complaint allegations satisfy Sections 17.044(b) and 17.042(1) of
the Texas Civil Practice and Remedies Code, service of process is proper under Texas law. Unicon
raises no challenge to service under Federal Rule 4(h)(2). The court declines to rule on Unicon’s
personal jurisdiction argument, which did not address sufficiently the relevant doctrine. Even a
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single contract can be sufficient to confer jurisdiction in the appropriate case. See Michiana Easy
Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 787 (Tex. 2005).
B. 	The Motion to Dismiss the Breach of Contract Claim
The essential elements in a breach of contract claim are (1) the existence of a valid contract;
(2) performance or tendered performance by the plaintiff; (3) breach of the contract by the
defendant; and (4) damages sustained as a result of the breach. B & W Supply, Inc. v. Beckham,
305 S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). “A breach occurs when a
party fails or refuses to do something he has promised to do.” Mays v. Pierce, 203 S.W.3d 564,
575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
OCuSOFT argues that Unicon was responsible for designing, manufacturing, labeling, and
packaging the contact lenses in compliance with applicable laws and quality standards, including
the Federal Food, Drug, and Cosmetic Act (FDCA) and current “Good Manufacturing Practices.”
(See Docket Entry No. 1 ¶¶ 6–7). 	OCuSOFT alleges that Unicon breached that obligation by
failing to adhere to certain quality standards, based on independent laboratory testing that revealed
that approximately 50% of the plus (+) lenses did not meet the standards. 	(See ¶¶ 9–14).
OCuSOFT also alleges that Unicon breached the indemnification provision of the Supply
Agreement, (Docket Entry No. 1-1 § 12.1), by failing to indemnify and hold it harmless for losses
arising from the breach of the labelling and packing obligations. (Docket Entry No. 1 ¶ 14).
Unicon responds that OCuSOFT is attempting to avoid the contractual limit on liability
and damages. The contract provides that replacement is the only remedy for breaches of the agreed
quality standards. 	(See Docket Entry No. 1-1 § 11.1). 	Unicon argues that by focusing on the
packaging issues, OCuSOFT is trying to avoid the warranty limits. OCuSOFT’s claim for breach
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of contract is deficient, Unicon argues, because OCuSOFT does not explain how the product
packaging deviated from contractual requirements.
The court finds Unicon’s argument persuasive. 	There is no allegation that the product
packaging misrepresented the product quality. 	For example, the complaint alleges that the
“laboratory tested the base curve, diameter and pH of the lenses provided.” (Docket Entry No. 1
¶ 8). But it does not allege that the packaging listed those attributes; had it done so, the product
quality deviations could have made the labels misleading. Without an allegation that the product-
quality issues created misleading packaging or advertisements, there is no allegation that Unicon
breached the Supply Agreement’s requirement that Unicon properly and accurately label the
packaged products.
Although Rule 15(a)(2) directs that leave to amend “shall be freely given when justice so
requires,” courts retain discretion to deny leave to amend for undue delay, repeated failure to cure
deficiencies, prejudice, or futility. Fed. R. Civ. P. 15(a)(2); see Foman v. Davis, 371 U.S. 178,
182 (1962). 	This claim is not futile, because the court cannot find that OCuSOFT is unable to
plead additional information about how the product packaging, representations about the product,
and the alleged deviations make the packaging and the representations misleading. OCuSOFT’s
breach-of-contract claim is dismissed, without prejudice and with leave to amend.
B. 	The Motion to Dismiss the Promissory Estoppel Claim
To plead promissory estoppel, a plaintiff must allege facts showing: (1) a promise; (2)
foreseeability of reliance by the promisor; (3) substantial and reasonable reliance by the promisee
to its detriment; and (4) enforcement of the promise is necessary to avoid injustice. 	English v.
Fischer, 660 S.W.2d 521, 524 (Tex. 1983); Fretz Constr. Co. v. S. Nat’l Bank of Houston, 626
S.W.2d 478, 480 (Tex. 1981). OCuSOFT argues that Unicon promised that the packaging for the
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contact lenses would accurately describe the lenses’ quality and specifications and that the
packaging and products would conform to applicable U.S. regulatory and labeling requirements.
(Docket Entry No. 1 ¶ 16). When, as here, the complaint pleads that an alleged promise is also set
out under an enforceable written agreement, promissory estoppel fails as a matter of law. 	See
Motten v. Chase Home Fin., 831 F. Supp. 2d 988, 995–96 (S.D. Tex. 2011); Doctors Hosp. 1997,
L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 639–40 (Tex. App.—Houston [14th Dist.] 2004,
pet. denied).
OCuSOFT responds that Rule 8(d)(3) allows a party to plead “as many separate claims or
defenses as it has, regardless of consistency.” 	Fed. R. Civ. P. 8(d)(3). 	It argues that courts
routinely permit plaintiffs to maintain both breach-of-contract and promissory-estoppel claims
until the existence and scope of the contract are resolved. (Docket Entry No. 11 at 11–12). But
the existence and scope of the contract is not in dispute. The contract is in writing and is attached
to the complaint. No party is arguing that the contract is invalid. 	No party is arguing that there
are additional terms outside the contract. The question is whether Unicon’s conduct breached the
promises made in the contract. Because the complaint does not allege the contract is invalid or
that any promise exists outside that contract, OCuSOFT’s promissory-estoppel theory fails even if
pleaded in the alternative. See C&K Trucking, LLC v. Ardent Mills LLC, No. 3:20-CV-1104-K,
2021 WL 2895866, at *4 (N.D. Tex. July 9, 2021); (explaining that a promissory-estoppel claim
only “becomes available in the absence of a valid and enforceable contract” (quoting Williams v.
Colonial Bank, N.A., 199 F. App’x 399, 403 (5th Cir. 2006) (per curiam))).
OCuSOFT argues that it should have leave to amend its complaint to save its promissory-
estoppel claim. That argument is precluded by the written contract that OCuSOFT is seeking to
enforce. 	OCuSOFT’s surreply makes a conclusory reference to “pre- and post-contractual
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assurances that packaging and labeling would match FDA registered product information and that
any discrepancies would be corrected before shipment.” (Docket Entry No. 14 at 9). But the mere
fact that a contractual promise was also made before and after the contract was entered does not
give rise to a separate estoppel claim if there is no “additional obligation” created. Fretz Const.
Co. v. S. Nat. Bank of Houston, 626 S.W.2d 478, 481 (Tex. 1981). There is no such additional
obligation alleged here. The court denies OCuSOFT’s request for leave to amend.
OCuSOFT’s promissory-estoppel claim is dismissed, with prejudice, because amendment
would be futile.
IV. 	Conclusion
The court denies the motion to dismiss for insufficient service of process and grants the
motion to dismiss for failure to state a claim, in part with prejudice and in part without prejudice.
(Docket Entry No. 10). 	OCuSOFT’s contract claim is dismissed without prejudice, but its
promissory-estoppel claim is dismissed with prejudice. OCuSOFT must amend its complaint by
June 26, 2026.
SIGNED on June 4, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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