Bachman et al v. Serratos et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
CHASE BACHMAN, et al.,
Plaintiffs.
V.
MARIO SERRATOS, et al.,
Defendants.
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CIVIL ACTION NO. 3:25-cv-00284
OPINION AND ORDER
Pending before me is Defendant Mario Serratos’s motion to dismiss. See
Dkt. 30. Having reviewed the briefing, the record, and the applicable law, I grant
the motion.
BACKGROUND1
Plaintiffs Chase Bachman and Andrew Niles are the owners of a single-
family residence in Galveston County, Texas. Plaintiffs allege that Defendants Dora
Martinez and Serratos “jointly operated a flooring business under the trade name
‘K & J Flooring.’” Dkt. 24 at 2. Plaintiffs also claim that “‘K & J Flooring’ is a trade
name duly registered in Harris County, Texas, under which Defendant Dora
Martinez does business.” Id.
According to the operative complaint, “Plaintiffs entered into a valid and
enforceable agreement with K & J Flooring . . . in early February 2024 for the
installation and refinishing of wood and tile flooring in their Galveston home.” Id.
at 3. Plaintiffs further allege that “[t]he parties agreed the scope of work would
include removal of portions of the existing historic Heart Pine flooring, installation
1 The background section is taken from the live pleading, the Second Amended Complaint,
and is accepted as true for purposes of ruling on Serratos’s motion to dismiss. See Martin
K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (in
reviewing a Rule 12(b)(6) motion to dismiss, a court “accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.”).
United States District Court
Southern District of Texas
ENTERED
February 20, 2026
Nathan Ochsner, Clerk
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of new matching Heart Pine planks, tiling, and refinishing of the entire area to
match.” Id. After problems emerged with the flooring, Plaintiffs learned that K & J
Flooring had installed a different type of hardwood flooring—Southern Yellow
Pine—instead of the Heart Pine that had been promised. Southern Yellow Pine is
softer, less expensive, and less durable than Heart Pine.
In the Second Amended Complaint, Plaintiffs bring causes of action against
Martinez and Serratos for: (1) breach of contract; and (2) Texas Deceptive Trade
Practices Act (“DTPA”) violations. Serratos moves to dismiss all claims against
him, asserting that Plaintiffs have failed to state a claim that would entitle them to
relief.
LEGAL STANDARD
A defendant may move to dismiss a complaint when a plaintiff fails “to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a
motion to dismiss, 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)). “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.” Iqbal, 556 U.S. at 678. “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.” Twombly, 550 U.S. at 558 (cleaned up).
When evaluating a Rule 12(b)(6) motion, I accept “all well-pleaded facts as
true and view[] those facts in the light most favorable to the plaintiff.” Cummings
v. Premier Rehab Keller, P.L.L.C., 948 F.3d 673, 675 (5th Cir. 2020) (quotation
omitted). 	I 	“do 	not, 	however, 	accept 	as 	true 	legal 	conclusions, 	conclusory
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statements, or naked assertions devoid of further factual enhancement.” Benfield
v. Magee, 945 F.3d 333, 336–37 (5th Cir. 2019) (cleaned up). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
ANALYSIS
A. 	DTPA CLAIM
I will start with the DTPA claim. Serratos argues that Plaintiffs’ “DTPA claim
fails 	as 	to 	Serratos 	because 	Plaintiffs 	allege 	no 	personal 	participation 	or
misrepresentation by him.” Dkt. 30 at 4 (cleaned up). Plaintiffs retort that K & J
Flooring is a de facto partnership, and “as a partner in K&J Flooring, Serratos can
be held liable under the DTPA, whether he personally performed the work or not.”
Dkt. 33 at 9 (cleaned up).
1. 	Personal Involvement
The DTPA permits a consumer to sue any person whose “false, misleading,
or deceptive act or practice” is the producing cause of the consumer’s harm. Tex.
Bus. & Com. Code § 17.50(a)(1). A defendant’s personal involvement is required
for liability to attach under the DTPA. See Miller v. Keyser, 90 S.W.3d 712, 717
(Tex. 2002) (holding that an individual can be held personally liable under the
DTPA 	only 	“if 	there 	is 	evidence 	that 	the 	agent 	personally 	made
misrepresentations.”).
In 	their 	operative 	complaint, 	Plaintiffs 	fail 	to 	allege 	any 	personal
involvement by Serratos in a misrepresentation or deceptive act. Rather, Plaintiffs
allege that “Martinez represented that K & J would install R.L. Colston 5.25[-inch]
Heart Pine flooring but instead intentionally purchased and installed a different
product—a significantly cheaper and materially inferior 5[-inch] Pine Character
Missouri 	flooring 	milled 	from 	Southern 	Yellow 	Pine—without 	Plaintiffs’
knowledge or approval.” Dkt. 24 at 7 (emphasis added). Although Plaintiffs
cursorily allege that they “paid for premium Heart Pine flooring based on
Defendants’ representations,” id. at 4 (emphasis added), there are no specific
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misrepresentations or deceptive acts attributed to Serratos. The substantive
allegations in the Second Amended Complaint tie Martinez—not Serratos—to
representations about the type of hardwood being installed. See id. at 12–13
(providing copies of text messages from Martinez stating that “the wood that
[Plaintiffs] got is pine” and confirming installation of specific wood in downstairs
area).2 Because Plaintiffs fail to plead personal participation by Serratos, their
DTPA claim against him must be dismissed.
2. 	De Facto Partnership
Next, Plaintiffs argue that K & J Flooring is likely a de facto partnership, and
that Serratos is liable under the DTPA by virtue of his position as a general partner
in K & J Flooring. See Dkt. 33 at 3, 9. This argument is unavailing.
First, Plaintiffs acknowledge in the operative complaint that K & J Flooring
is nothing more than a trade name. See Dkt. 24 at 2 (“Defendants jointly operated
a flooring business under the trade name ‘K & J Flooring.’”). “A trade name is a
designation that is adopted and used by a person either to designate a good he
markets, a service he renders, or a business he conducts.” Comm’n for Law.
Discipline v. C.R., 54 S.W.3d 506, 515 (Tex. App.—Fort Worth 2001, pet. denied).
“[I]t is well-settled that a trade name has no legal existence.” Kahn v. Imperial
Airport, L.P., 308 S.W.3d 432, 438 (Tex. App.—Dallas 2010, no pet.); see also
Davis v. Raney Auto Co., 249 S.W. 878, 878 (Tex. Civ. App.—Texarkana 1923, no
writ) (trade name “has no actual or legal existence”). In their response to the
motion to dismiss, Plaintiffs expressly recognize that K & J Flooring is not a legally
distinct entity. See Dkt. 33 at 4 (“A DBA is not an entity at all; a DBA is a trade
name and has nothing to do with the structure or ownership of the associated
2 Plaintiffs attach additional text messages to their response to Serratos’s motion to
dismiss that were not included in the live pleading. See Dkt. 33 at 12–15. “A district court
is limited to considering the contents of the pleadings and the attachments thereto when
deciding a motion to dismiss under Rule 12(b)(6).” Villarreal v. Wells Fargo Bank, N.A.,
814 F.3d 763, 766 (5th Cir. 2016). Accordingly, I cannot consider these text messages.
Even if I could consider these text messages, however, the result would be the same, as
the messages do not show any misrepresentations by Serratos.
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business entity.”). Thus, according to the express allegations in the Second
Amended Complaint, K & J Flooring is nothing more than a business name for
Martinez in her personal capacity; it is not a de facto general partnership.
Second, the allegation Plaintiffs make in their response to the motion to
dismiss—that K & J Flooring is a general partnership or a de facto partnership—is
nowhere to be found in Plaintiffs’ complaint. Under the Texas Revised Partnership
Act (“TRPA”), a partnership is “an association of two or more persons to carry on
a business for profit as owners.” Tex. Bus. Org. Code § 152.051(b). To determine
whether a partnership exists, courts consider five factors: (1) the right to receive a
share 	of 	profits; 	(2) 	expression 	of 	an 	intent 	to 	be 	business 	partners; 	(3)
participation or the right to participate in control of the business; (4) agreement to
share, or actual sharing of, losses or liability for third-party claims against the
business; and (5) agreement to contribute, or actual contribution of, money or
property to the business. Id. § 152.052(a).
In 	describing 	the 	Defendants’ 	flooring 	business, 	Plaintiffs 	allege 	on
“information and belief” that “Defendants held themselves out as the business’s
owners 	and 	decision-makers, 	jointly 	controlled 	its 	operations, 	benefitted
financially from the transaction, and were involved in negotiating, supervising, and
performing the flooring work at issue.” Dkt. 24 at 2. Plaintiffs do not, however,
provide any factual support for these conclusory allegations. The Fifth Circuit has
held that allegations that “do little more than repeat the partnership formation
factors . . . are insufficient” to survive a motion to dismiss. Peykoff v. Cawley, No.
24-10186, 2025 WL 1380070, at *3 (5th Cir. May 13, 2025).
Addressing some of the partnership factors in their response to Serratos’s
motion 	to 	dismiss, 	Plaintiffs 	inject 	a 	series 	of 	text 	messages 	and 	website
screenshots—not attached to or referenced in their complaint—to support their
assertions. See Dkt. 33 at 5–6. As mentioned above, this is improper. See Villarreal
v. Wells Fargo Bank, N.A., 814 F.3d 763, 766 (5th Cir. 2016). In determining
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whether Plaintiffs have stated a claim, I may consider only the live complaint and
the evidence attached to it or referenced within it.
But Plaintiffs’ arguments as to partnership formation fail even if I consider
the new arguments and evidence raised in their response. Plaintiffs argue that
Serratos received a share of the profits because Martinez requested payment from
Plaintiffs on Serratos’s behalf. See Dkt. 33 at 5. There is one problem with that
argument: requesting payment does not demonstrate that Serratos had a right to
receive a share of K & J Flooring’s profits. At most, the text messages suggest that
Serratos may have received some of the business’s “gross revenue,” which is not
indicative of profit sharing. Ingram v. Deere, 288 S.W.3d 886, 898 (Tex. 2009)
(holding that receipt of gross revenues was not indicative of a right to receive a
share 	of 	profits). 	Plaintiffs 	vaguely 	allege 	that 	both 	Defendants 	“benefitted
financially 	from 	the 	transaction,” 	without 	explaining 	how 	each 	Defendant
benefitted financially. Dkt. 24 at 2. Simply put, there are no facts alleged to support
the assertion that Serratos had a right to share in K & J Flooring’s profits.
Plaintiffs further maintain that “Serratos had significant control in the
business and made key business decisions, such as purchasing and billing.” Dkt. 33
at 6. But purchasing and billing do not indicate control over a business. Rather,
control over a business is shown by the “right to make executive decisions,” such
as “writ[ing] checks on a business’s checking account, control over and access to a
business’s books, and receiving and managing all of a business’s assets and
monies.” Sewing v. Bowman, 371 S.W.3d 321, 334 (Tex. App.—Houston [1st Dist.]
2012, pet. dism’d); see also Big Easy Cajun Corp. v. Dall. Galleria Ltd., 293 S.W.3d
345, 349 (Tex. App.—Dallas 2009, pet. denied) (holding that administrative tasks
are not evidence of controlling a business). Plaintiffs do not offer any well-pleaded
facts to support that Serratos was an owner of K & J Flooring as opposed to an
employee. Thus, Plaintiffs fail to allege that Serratos had significant control
indicative of a partner.
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Finally, Plaintiffs argue that because Defendants “were married and had
three children together,” Defendants must have shared in the losses and liabilities
of K & J Flooring. Id. Setting aside that Plaintiffs do not allege in the Second
Amended Complaint that Defendants share in the losses and liabilities of the
business, Defendants’ marriage, standing alone, is irrelevant to establishing
whether they share in K & J Flooring’s losses and liabilities. Nor does Defendants’
marriage 	shed 	light 	on 	whether 	Defendants 	intended 	to 	form 	a 	business
partnership. “Referring to a . . . spouse . . . as a ‘partner’ in a colloquial sense is not
legally sufficient evidence of expression of intent to form a business partnership.”
Ingram, 288 S.W.3d at 900.
In sum, Plaintiffs have not offered well-pleaded factual allegations to
support any of the five statutory partnership factors. “[A]n absence of any evidence
of the factors will preclude the recognition of a partnership under Texas law.” Id.
at 898. Accordingly, I grant Serratos’s motion to dismiss the DTPA claim.
B. 	BREACH OF CONTRACT CLAIM
Serratos argues that Plaintiffs’ breach of contract claim against him fails
because Plaintiffs’ Second Amended Complaint “contains no allegation that
Serratos signed an agreement, had contracting authority, or otherwise entered into
a contract with Plaintiffs in his personal capacity.” Dkt. 30 at 3–4. I agree.
Plaintiffs claim they entered into a valid and enforceable agreement with
K & J Flooring in early February 2024. See Dkt. 24 at 3. Plaintiffs also state that
K & J Flooring is a trade name duly registered in Harris County under which
Martinez does business. See id. at 2. But Plaintiffs advance no allegations to
support that they had a contract with Serratos.
Plaintiffs contend that “[b]y directing, authorizing, and participating in the
communications that formed the initial contract and its later modifications,
Serratos played a direct and integral role in contract formation” and that “both
Defendants 	were 	parties 	to 	the 	agreement 	and 	jointly 	responsible 	for 	the
obligations and misrepresentations arising from it.” Dkt. 33 at 8. These are nothing
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more than naked assertions unsupported by factual allegations. Plaintiffs do not
attach 	any 	written 	communication 	or 	text 	messages 	with 	Serratos 	to 	their
complaint, nor do they offer any factual allegations describing Serratos’s conduct
in orally negotiating, forming, or modifying the contract. Conclusory assertions
and threadbare recitals are simply not enough. See Iqbal, 556 U.S. at 678.
Further, by improperly “lumping [Martinez and Serratos] together and
failing to identify specific actions of [Serratos]” in their complaint, Plaintiffs fail
“to raise an inference of plausible liability” against Serratos. Callier v. Nat’l United
Grp., LLC, No. EP-21-cv-71, 2021 WL 5393829, at *4 (W.D. Tex. Nov. 17, 2021);
see also Owens v. Jastrow, 789 F.3d 529, 537 (5th Cir. 2015) (The Fifth Circuit
“has rejected the group pleading doctrine.”).
For all these reasons, I grant Serratos’s motion to dismiss Plaintiffs’ breach
of contract claim.
CONCLUSION
Serratos’s motion to dismiss (Dkt. 30) is granted. Plaintiffs’ claims against
Serratos are dismissed without prejudice.3
SIGNED this 	day of February 2026.
______________________________
ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
3 The deadline to amend pleadings has passed. See Dkt. 29 at 1. If Plaintiffs wish to amend
their complaint, they must file a motion for leave and demonstrate good cause under Rule
16(b)(4).
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