Revive Rx LLC v. Hoelscher

1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
REVIVE RX, LLC,
Plaintiff,
v.
REED HOELSCHER,
Defendant.
§
§
§
§
§
§
§
§
§
Civil Action No. 3:25-CV-798-K
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Reed Hoelscher’s Motion to Dismiss and Brief in
Support (the “Motion”) (Doc. No. 18), Plaintiff Revive RX, LLC’s Response in
Opposition 	to 	the 	Motion 	(the 	“Response”) 	(Doc. 	No. 	22), 	Defendant 	Reed
Hoelscher’s Reply in Support of the Motion (the “Reply”) (Doc. No. 28), and Plaintiff
Revive RX, LLC’s Verified Original Complaint and Application for Preliminary and
Permanent 	Injunctive 	Relief 	(the 	“Complaint”) 	(Doc. 	No. 	1). 	Having 	carefully
considered the Motion, the Response, the Reply, and the Complaint, as well as the
applicable law and the relevant portions of the record, the Court finds that Plaintiff
Revive RX, LLC has alleged sufficient facts to avoid dismissal under Federal Rule of
Civil Procedure 12(b)(6). Accordingly, the Court DENIES Defendant’s Motion in its
entirety.
I. 	Factual Background
Plaintiff Revive RX, LLC is a compounding pharmacy that provides “customized
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 1 of 11 PageID <pageID>

2
medications.” Compl. at 5, ¶14. Plaintiff focuses its business on compounding weight
loss medications, including semaglutide and tirzepatide. Id. at 5, ¶15. A key component
of Plaintiff’s business model is its sales team. Specifically, Plaintiff’s sales team markets
Plaintiff’s 	services 	to 	“specialized 	medical 	practices” 	that 	prescribe 	compounded
medicine. Id. at 6, ¶18. These specialized practices include, among others, hormone
therapy clinics, weight loss clinics, and institutional urology practices. Id. Plaintiff
partners with various clinics and fills prescriptions for compounded pharmaceuticals.
See id. at 7, ¶21. Some of these clinics provide virtual services, known as “telehealth.”
Id. at 6–7, ¶18.
At the time of the alleged misconduct, Defendant Reed Hoelscher was Plaintiff’s
Director of Commercial Strategy and Business Development, or “Sales Director.” Id.
at 7, ¶20. Defendant’s main objective as Sales Director “was to drive revenue through
prescriptions filled.” Id. at 7, ¶21. “Defendant worked to educate physicians and clinics
about 	the 	high-quality 	nature 	of 	[Plaintiff’s] 	operations, 	thereby 	increasing
clinic/physician adoption and driving patient prescription volume.” Id. Defendant’s
duties 	as 	Sales 	Director 	included, 	among 	others, 	“[i]mplementing 	strategies 	to
maximize 	[Plaintiff’s] 	growth 	potential 	in 	the 	industry,” 	“[c]ultivating 	strategic
partnerships to drive business development,” and “[g]rowing and maintaining strong
relationships with key [] clients, providers, and partners[.]” Id. Defendant received a
significant 	portion of his 	compensation through 	“commissions 	on revenue 	from
prescriptions written by those clinics/physicians assigned to him[.]” Id. at 8, ¶24.
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 2 of 11 PageID <pageID>

3
While working for Plaintiff, Defendant had access to information that Plaintiff
claims is confidential, including data regarding relationships with vendors, physicians,
and clinics, business partnerships, and Plaintiff’s costs for “active pharmaceutical
ingredients (“APIs”).” Id. at 8, ¶22; 6, ¶17. Plaintiff incurred these API costs by
“sourc[ing] raw pharmaceutical components from FDA-registered drug suppliers or
other compounding wholesalers that specialize in providing high-quality [APIs].” Id. at
6, ¶17. Plaintiff alleges that this information is “highly [] confidential.” Id.
Defendant was bound by an Employment Agreement (see Doc. No. 1-1 at 10–
19) that included non-compete and non-solicit restrictions. Id. at 10–11, ¶¶28–33.
However, 	Plaintiff 	alleges 	that 	Defendant 	“secretly 	created—and 	[ran]—an
interconnected web of competing business entities. These entities were operating in
direct competition with [Plaintiff] by diverting patient prescriptions and associated
revenue elsewhere.” Id. at 12, ¶35 (emphasis original). Plaintiff further alleges that
“Defendant—while employed by [Plaintiff], acted as an owner, operator, or agent of
multiple telehealth/wellness companies that directed patients to care providers who
wrote prescriptions filled by competing pharmacies.” Id. at 14, ¶40 (emphasis original).
Plaintiff alleges that Defendant conspired with Paul Hoelscher, Plaintiff’s former CEO
and Defendant’s father, to illicitly divert business away from Plaintiff. Id. at 20, ¶61.
Plaintiff asserts numerous claims against Defendant. See id. at 22–39, ¶¶70–160.
Defendant 	filed 	the 	present 	Motion, 	to 	which 	Plaintiff 	filed 	its 	Response 	and
Defendant filed his Reply. Therefore, the Motion is now ripe for determination.
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 3 of 11 PageID <pageID>

4
II. 	Legal Standard
In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), the court must determine whether the plaintiff has sufficiently stated a claim
upon which relief may be granted. F ED . R. CIV. P. 12(b)(6). A plaintiff must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). If a plaintiff pleads facts which allow the court to
reasonably infer that the defendant is liable for the alleged misconduct, the claim is
facially plausible. See id. The court must presume all well-pleaded facts in the complaint
to be true, and it must resolve any ambiguities or doubts regarding the sufficiency of
the claims in plaintiff’s favor. Kane Enters. v. MacGregor (USA), Inc., 322 F.3d 371, 374
(5th Cir. 2003); Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986).
III. 	Analysis
Defendant argues that dismissal is required because Plaintiff fails to state
plausible claims for relief. For the following reasons, the Court finds that Plaintiff
pleads enough factual allegations to meet the threshold of facial plausibility and avoid
dismissal. Accordingly, the Court DENIES Defendant’s Motion in its entirety.
A. 	Ratification Defense
Throughout the Motion, Defendant argues that Plaintiff cannot assert its claims
because it ratified Defendant’s alleged misconduct through its CEO and Defendant’s
father, Paul Hoelscher. See Mot. to Dismiss at 8. Defendant argues that “[Plaintiff’s]
pleadings concerning Paul Hoelscher confirm that he was fully aware of [Defendant’s]
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 4 of 11 PageID <pageID>

5
activities, fully approved of [Defendant’s] continuing to engage in those activities, and
as [Plaintiff’s] CEO, ratified [Plaintiff’s] approval of [Defendant’s] activities[.]” Id.
(emphasis added). Defendant also argues that Plaintiff’s Complaint “support[s] the
defense of quasi-estoppel.” Id.
Ratification is an affirmative defense upon which Defendant holds the burden
of proof. Karnes v. Fleming, Civ. Action No. H-07-0620, 2007 WL 4191894, at *3 (S.D.
Tex. Nov. 21, 2007). On this record and at this stage of the case, the Court does not
find that Defendant is entitled to dismissal on his ratification and quasi-estoppel
defenses. See Bell v. Eagle Mountain Saginaw Indep. Sch. Dist., 27 F.4th 313, 320 (5th
Cir. 2022) (quoting 5B Charles Alan Wright & Arthur R. Miller, F EDERAL PRACTICE
AND PROCEDURE § 1357 (3d. ed. 2021)) (for defendant to obtain Rule 12(b)(6)
dismissal on an affirmative defense, “it must be apparent from ‘the plaintiff’s own
allegations’ that a defense is fatal to the claim”).
B. 	Federal Rule of Civil Procedure 9(b)
Defendant argues that Plaintiff fails to sufficiently plead its breach of fiduciary
duty and civil conspiracy claims because those claims are based on fraudulent conduct
and Plaintiff did not plead sufficient factual allegations to satisfy the requirements of
Federal Rule of Civil Procedure 9(b). See Mot. to Dismiss at 9–11. In response, Plaintiff
argues that Rule 9(b)’s stringent pleading standard does not apply to these claims
because they are not based on fraud. See Resp. at 14–15.
To prove a fraud claim under Texas law, a plaintiff must prove multiple
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 5 of 11 PageID <pageID>

6
elements, including that the speaker who made the alleged misrepresentation made it
“with the intention to induce the plaintiff’s reliance[.]” McKinney/Pearl Rest. Partners, L.P.
v. Metro. Life Ins. Co., 241 F. Supp. 3d 737, 764 (N.D. Tex. 2017) (Boyle, J.) (quoting
Rio Grande Royalty Co., Inc. v. Energy Transfer Partners, L.P., 620 F.3d 465, 468 (5th Cir.
2010) (emphasis added). In some cases, a breach of fiduciary duty claim can be subject
to Rule 9(b)’s heightened standard if the alleged breach includes allegations of
fraudulent conduct. See Tigue Inv. Co., Ltd. v. Chase Bank of Texas, N.A., Civ. Action No.
3:03-CV-2490-N, 2004 WL 3170789, at *2 (N.D. Tex. Nov. 15, 2004) (Godbey, J.).
The Court finds that, for purposes of determining the Motion, Plaintiff’s breach
of fiduciary duty and civil conspiracy claims are not subject to Rule 9(b)’s heightened
pleading standard. Plaintiff does not allege that Defendant induced Plaintiff to rely on
fraudulent conduct. Rather, the Court agrees with Plaintiff that it “is not claiming that
Defendant defrauded [Plaintiff]. Instead, [Plaintiff] is claiming that Defendant hid
[his] scheme altogether.” Resp. at 14. As such, these claims are subject to the standard
set forth in Twombly, not Rule 9(b). See Twombly, 550 U.S. at 570.
The Court finds that Plaintiff has alleged sufficient facts to state plausible claims
for 	breach 	of 	fiduciary 	duty 	and 	civil 	conspiracy 	under 	Rule 	12(b)(6). 	See 	id.
Accordingly, the Court DENIES the Motion as to these claims.
C. 	Non-Compete and Non-Solicit Provisions
Defendant further argues that Plaintiff’s claims for breach of contract related to
the (1) non-compete provision and the (2) non-solicit provision contained in the
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 6 of 11 PageID <pageID>

7
Employment Agreement must be dismissed because the provisions are overbroad and
unreasonable. See Mot. to Dismiss at 14–16, 18–19; see also Doc. No. 1-1 at 15–17
(Defendant’s Employment Agreement).
The 	Court 	first 	addresses 	the 	non-compete 	provision 	contained 	in 	the
Employment Agreement. See Doc. No. 1-1 at 16. “Reasonable covenants not to
compete serve the legitimate business interest of preventing departing employees from
‘using the business contacts and rapport established’ during their employment to take
the employer’s clients with them when they leave.” D’Onofrio v. Vacation Publ’ns. Inc.,
888 F.3d 197, 211 (5th Cir. 2018) (quoting Peat Marwick Main & Co. v. Haass, 818
S.W.2d 381, 387 (Tex. 1991)). “To be enforceable under Texas law, a non-compete
covenant must include ‘limitations as to time, geographical area, and scope of activity
to be restrained that are reasonable and do not impose a greater restraint than is
necessary to protect the good will or other business interest’ of the employer.” DeWolff,
Boberg & Assocs., Inc. v. Clark, Civ. Action No. 3:22-CV-2489-K, 2023 WL 5437665, at
*3 (N.D. Tex. Aug. 23, 2023) (Kinkeade, J.) (quoting T EX. B US. & COM . CODE §
15.50(a)). Courts in this circuit have found non-compete provisions that “amount to
industry-wide exclusions” unreasonable. D’Onofrio, 888 F.3d at 211 (quoting Gallagher
Healthcare Ins. Servs. v. Vogelsang, 312 S.W.3d 640, 654 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied)); see also Accruent, LLC v. Short, Civ. Action No. 1:17-CV-858-
RP, 2018 WL 297614, at *6 (W.D. Tex. Jan. 4, 2018) (non-compete provisions
“barring an employee from working for a competitor in any capacity are invalid”).
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 7 of 11 PageID <pageID>

8
Here, the non-compete provision states that, for a year after termination from
employment with Plaintiff, Defendant could not “work or provide services, in any
capacity, anywhere in the Restricted Area, whether as an employee, independent
contractor or otherwise, with or without compensation, to any . . . competitor of
[Plaintiff] regarding all or any portion of the business of [Plaintiff].” Doc. No. 1-1 at
16 (emphasis added). This covenant contains time and geographical limitations but
does not contain any scope of activity limitation that specifies the type of work
Defendant could or could not do. See T EX . B US. & COM . CODE § 15.50(a). The Court
finds that, under well-established law, this “in any capacity” language “amounts to [an]
industry-wide exclusion[]” such that the non-compete provision is “overbroad and
unreasonable” as written. D’Onofrio, 888 F.3d at 211. While the Court takes issue with
other aspects of the non-compete provision, the Court rests on the foregoing analysis
in finding the provision unreasonable as written.
A similar analysis applies to non-solicit provisions. See Peat Marwick, 818 S.W.2d
at 387–88 (provision restricting solicitation of any client, regardless of prior contact or
whether client came before or after termination, found unreasonable); see also DeWolff,
Boberg & Associates, Inc. v. Clark, Civ. Action No. 3:20-CV-3649-L, 2022 WL 4589161,
at *9 (N.D. Tex. Sept. 29, 2022) (Lindsay, J.) (finding non-solicitation provision that
applied to all clients, regardless of former employee’s contact with said clients,
overbroad and unenforceable); Marquis Software Sols., Inc. v. Robb, Civ. Action No. 3:20-
CV-0372-B, 2020 WL 955901, at *8 (N.D. Tex. Feb. 27, 2020) (Boyle, J.) (non-solicit
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 8 of 11 PageID <pageID>

9
provision prohibiting contact with all customers “likely unreasonable”).
Here, the non-solicit provision states that Defendant could not “solicit . . . any
client, customer, prospective customer, vendor, contractor, supplier or other business
partner 	of 	[Plaintiff][.]” Doc. No. 1-1 	at 	16 	(emphasis added). This unlimited
restriction on solicitation is the type of restriction found unreasonable in this circuit.
See Marquis Software, 2020 WL 955901, at *8. Accordingly, the Court finds that the
non-solicit provision is unreasonable as written. Therefore, both the non-compete and
non-solicit provisions in the Employment Agreement are unreasonable as written.
However, the Court also finds that dismissal of Plaintiff’s breach of contract
claims as to the non-compete and non-solicit provisions is not appropriate at this stage.
See Clark, 2023 WL 5437665, at *3 (citing Pethick, 2022 WL 4589161, at *9) (“despite
finding the covenant[s] ‘overly broad and unenforceable,’ the court determined that
dismissal was ‘premature’”). Defendant’s Motion briefly mentions reformation. See
Mot. to Dismiss at 16. Plaintiff’s Response mentions reformation insofar as it argues
that dismissal at this stage is unwarranted regardless of enforceability. See Resp. at 15–
16. The briefing on the reformation issue is insufficient and Defendant did not
otherwise show that Plaintiff cannot recover as a matter of law “even under a
noncompete [or non-solicit] covenant that has been reformed.” Orthoflex, Inc. v.
Thermotek, Inc., Civ. Action No. 3:11-CV-0870-D, 2011 WL 5879330, at *1 (N.D. Tex.
Nov. 23, 2011) (Fitzwater, C.J.). At the dismissal stage of this case, the Court does not
decide whether Plaintiff could still recover on its breach of contract claims if the
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 9 of 11 PageID <pageID>

10
provisions were reformed or if reformation is even appropriate at all.
For the foregoing reasons, the Court DENIES the Motion as to Plaintiff’s claims
for breach of the non-compete and non-solicit provisions.
D. 	Unjust Enrichment
Defendant also argues that Plaintiff’s claim for unjust enrichment should be
dismissed because unjust enrichment is not an independent claim under Texas law.
Mot. to Dismiss at 25. However, courts in Texas are split as to whether unjust
enrichment can serve as an independent cause of action. See Elias v. Pilo, 781 Fed. Appx.
336, 338 at n. 3 (5th Cir. 2019) (documenting disagreement among Texas appellate
courts). The Court does not decide this issue today but instead will treat it as a claim
for purposes of determining the Motion. See Prime Hydration LLC v. Garcia, Civ. Action
No. 3:24-CV-1260-L, 2025 WL 963361, at *11 (N.D. Tex. Mar. 31, 2025) (Lindsay,
J.) (treating unjust enrichment as independent claim for purposes of determining
motion to dismiss).
The Court finds that Plaintiff has pleaded sufficient factual allegations to state
a plausible claim for unjust enrichment. See Twombly, 550 U.S. at 570. Accordingly, the
Court DENIES the Motion as to Plaintiff’s unjust enrichment claim.
E. 	Remaining Claims
Defendant moves to dismiss three other claims: breach of the Employment
Agreement’s “exclusivity” provision, violation of the DTSA, and violation of the
TUTSA. See Mot. to Dismiss at 11–12, 19–24. The Court finds that Plaintiff has stated
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 10 of 11 PageID <pageID>

11
a plausible claim for relief on these claims. See Twombly, 550 U.S. at 570. Accordingly,
the Court likewise DENIES the Motion as to these claims.
IV. 	Conclusion
For the foregoing reasons, and having taken Plaintiff’s well-pleaded facts as true
and viewing such facts in the light most favorable to Plaintiff, as the Court must do at
this stage, the Court finds that Plaintiff has pleaded enough factual allegations to avoid
dismissal under Rule 12(b)(6). Accordingly, the Court DENIES Defendant’s Motion
in its entirety.
SO ORDERED.
Signed March 10th , 2026.
____________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE
Case 3:25-cv-00798-K Document 133 Filed 03/10/26 Page 11 of 11 PageID <pageID>