Universal Plant Services, Inc. v. AdamsUniversal Plant Services, Inc. v. Adams
Pending before the court is Plaintiffs’ Motion for Leave to File Fourth Amended Complaint (“Plaintiffs’ Motion to Amend“) (Docket Entry No. 322). Also pending are Defendants’ Response to Plaintiffs’ Motion for Leave to File Fourth Amended Complaint (“Defendants’ Response“) (Docket Entry No. 326), and Plaintiffs’ Reply in Support of Motion for Leave to File Fourth Amended Complaint (“Plaintiffs’ Reply“) (Docket Entry No. 327). For the reasons explained below, Plaintiffs’ Motion to Amend will be denied.
Plaintiffs, Universal Plant Services, Inc. (“UPS“), now known as Universal Plant Services, LLC, and its former parent company, Jones Industrial Holdings, Inc. (“Jones“) (together, “Plaintiffs“), allege that Defendants, Alan Swindoll, Kelly Clark, ALS Associates, Inc. (“ALS“), Turnaround Services, LLC (“Turnaround“), Tiger Management Group, LLC (“Tiger“) Precision Machinery Contractors, LLC (“PMC“), Precision Investment Group, LLC (“Precision“), and former UPS employees Greg Adams, Melinda Barry, Marcus Keenan, David Meier, Eric Monroe, and Jeff Wester, conspired to misappropriate Plaintiffs’ confidential information, trade secrets, and property to form and operate PMC, a direct competitor offering similar services to the same customers in the same markets.
This action was initiated on July 15, 2022, against PMC and former UPS employees Adams, Barry, Keenan, Meier, Monroe, and Wester for their involvement in the creation of PMC and misappropriation of confidential information and trade secrets (Docket Entry No. 1). On November 3, 2023, the court entered a Memorandum Opinion and Order (Docket Entry No. 179) granting Plaintiffs’ Motion for Leave to File Third Amended Complaint and adding six defendants: Clark, Swindoll, ALS, Precision, Tiger, and Turnaround. Plaintiff‘s Third Amended Complaint (Docket Entry No. 180) asserted violations of the federal Defend Trade Secrets Act (“DTSA“), the Texas Uniform Trade Secrets Act (“TUTSA“), and the Texas Theft Liability Act, as well as common law claims under Texas law for breach of contract, breach of fiduciary duty, knowing
On February 2, 2026, Defendants submitted their Memorandum of Law for Jury Trial arguing, inter alia, that “TUTSA preempts most of [Plaintiffs‘] common-law tort theories.”1 At Docket Call held on February 11, 2026, the court ordered the parties to submit additional briefing on the TUTSA preemption issue.2 Thereafter, Plaintiffs agreed to dismiss claims premised on misappropriation of trade secrets,3 but argued that other tort claims were not preempted.4 Pursuant to the parties’ stipulations,5 the court dismissed (1) claims for breach of fiduciary duty premised on misappropriation of trade secrets asserted against Adams, Barry, Keenan, Meier, Monroe, and Wester; (2) claims for conversion asserted against Adams, Barry, Keenan, Meier, Monroe, Wester, and PMC; and (3) claims for civil conspiracy asserted against Adams, Barry, Keenan, Meier, Monroe, Wester, and PMC.6
In light of the court‘s May 27, 2026, Memorandum Opinion and Order dismissing the civil conspiracy claims asserted against defendants Clark, Swindoll, and Turnaround as preempted by TUTSA, Plaintiffs seek leave to file a fourth amended complaint to add a claim for knowing breach of fiduciary duty arising from diversion of customers against each of these three defendants and to remove the claim for permanent injunctive relief. Citing Trinseo Europe GmbH v. Kellogg Brown & Root, L.L.C., 165 F.4th 399 (5th Cir. 2026), pet. for cert. filed June 11, 2026, for holding that TUTSA preempts state-law claims — including state law claims for
II. Standard of Review
If a scheduling order has been entered establishing a deadline for amendments to pleadings,
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III. Plaintiffs Fail to Show Good Cause to Amend
The pending motion to amend was filed on June 26, 2026. Plaintiffs seek leave to
- conform[] the pleadings to this Court‘s orders dismissing portions of certain claims under Trinseo (Docket Entry Nos. 314, 318);
- withdraw[] the request for a permanent injunction to streamline the case for mediation and trial;
incorporate[] the spoliation facts that are addressed in Judge Bray‘s Memorandum and Recommendation (Docket Entry No. 284) and adopted by the Court (Docket Entry No. 289); and - add[] Clark, Swindoll, and Turnaround to the existing knowing participation claim based entirely on facts already developed in discovery and addressed in the Court‘s spoliation findings.8
Plaintiffs argue that good cause exists to grant their motion because the Fifth Circuit‘s Trinseo opinion changed controlling law, Defendants spoliation and discovery misconduct prolonged the litigation, the proposed amendments are minimal and cause no prejudice, and strong facts support adding the knowing participation claim against Clark, Swindoll, and Turnaround.9
Defendants do not oppose the first two proposed amendments, but oppose the third proposed amendment to incorporate spoliation facts as unnecessary, and oppose the fourth proposed amendment as lacking good cause.10 Focusing on the attempt to add new claims against Clark, Swindoll, and Turnaround, Defendants argue that
[t]here is no good cause for Plaintiff[s] . . . to expand [their] claim for knowing participation in breach of fiduciary duty to three Defendants — Clark, Swindoll, and Turnaround — that it previously sued only for conspiracy. The facts have not changed since the discovery period expired over 20 months ago. The only thing that has changed is the dismissal of the conspiracy claim. That is not good cause, and allowing the amendment would unduly prejudice the Defendants.11
Asserting that Defendants’ spoliation and discovery misconduct “extended this litigation long enough for Trinseo to be decided,”12 Plaintiffs argue that “[i]t would be fundamentally inequitable to allow defendants to benefit from their own wrongful conduct by preventing [them] from pursuing relief against Clark, Swindoll, and Turnaround under current law.”13 Defendants respond that there is no reasonable explanation for Plaintiffs’ delay in seeking to amend because Plaintiffs’ “own pleading shows that [they were] aware of the alleged factual basis for the knowing participation claim against Clark, Swindoll, and Turnaround years ago.”14 Defendants argue — and the court agrees — that Plaintiffs
chose to assert [their knowing participation] claim against ALS and Tiger Management — based on actions Clark and Swindoll allegedly took on behalf of those entities — but not to assert it against Clark and Swindoll themselves, or against Turnaround, another company affiliated with Clark and Swindoll. Instead, [Plaintiffs] chose to plead only one cause of action [for civil conspiracy] against Clark, Swindoll, and Turnaround.15
Plaintiffs reply that Defendants’ own obstruction — not their delay — shaped the discovery record, and that the Trinseo opinion changed Texas law on TUTSA preemption.16
Moreover, Defendants argue — and the court agrees — that the Fifth Circuit‘s Trinseo opinion clarified but did not change Texas law on TUTSA preemption.21 Citing inter alia Super Starr International LLC v. Fresh Tex Produce, LLC, 531 S.W.3d 829, 843 (Tex. App. — Corpus Christi-Edinburg 2017, no pet.), which was decided years before this action was filed, the Trinseo court observed that “Texas intermediary courts have consistently held that ‘a common law claim is preempted by TUTSA when the gravamen of the claim duplicates a TUTSA claim.‘” 165 F.4th at 421-22. The
Because Plaintiffs fail to identify any facts that they did not know when they filed their Third Amended Complaint, and because the court is not persuaded that the Fifth Circuit‘s Trinseo opinion changed Texas law on TUTSA preemption, the court concludes that Plaintiffs have no reasonable explanation for their delay in seeking to add claims for knowing participation in breach of fiduciary duty against Clark, Swindoll, and Turnaround. This factor therefore weighs against granting Plaintiffs’ motion.
Plaintiffs do not expressly argue that their proposed amendments are important but argue that adding Clark, Swindoll, and Turnaround to “the knowing participation claim ensures that [they] can obtain complete relief against all individuals and entities responsible for the scheme without expanding the scope of trial or requiring any new discovery.”23 Defendants do not dispute the importance of these claims, therefore the court concludes that this factor weighs in favor of granting Plaintiffs’ motion.
C. The Potential Prejudice to the Defendants Cannot Be Cured By a Continuance
Plaintiffs argue that defendants will not be prejudiced if their motion to amend is granted because “[t]he [a]mendment [i]s [m]inimal.”24 Plaintiffs argue that
no additional discovery [is] required. Clark, Swindoll, and Turnaround have been defendants since November 2023. All evidence supporting the knowing participation allegations has been in defendants’ possession since at least 2023. Defendants have had full notice of the underlying facts for years. There is no undue delay, bad faith, or dilatory motive on [Plaintiffs‘] part — the motion is filed only one month after the Court‘s May 27, 2026, ruling.25
against Clark, Swindoll, and Turnaround, those Defendants probably would have moved to dismiss the claim. They would have sought discovery specifically targeting the claim, and they almost certainly would have filed a motion for summary judgment against it (as they did against the conspiracy claim). The problem is that it is now too late for them to do so, unless the Court delays the case even further. The discovery deadline passed long ago. The deadline for dispositive motions passed over 18 months ago. See Order extending motions deadline to December 12, 2024 (ECF No. 241). [Plaintiffs] should not be allowed to avoid summary judgment on a claim by waiting until after the dispositive motions deadline to assert it. This would cause clear undue prejudice to the affected Defendants.28
Plaintiffs reply that
Defendants’ prejudice argument reduces to timing: the dispositive motions deadline passed in December 2024, and defendants ‘finally defeated’ the conspiracy claim in May 2026. But timing that results from this Court‘s own rulings is not prejudice — it is the natural consequence of a case proceeding through dispositive motion practice and an intervening change in controlling law.29
This action has been pending for more than four years. The original deadline for filing amended pleadings was September 12, 2022.31 Plaintiff has filed an original and three amended complaints. Moreover, the discovery period ended on October 25, 2024,32 the period for filing motions expired on December 12, 2024,33 the first Joint Pre-Trial Order was filed on February 2, 2026,34 an Amended Joint Pre-Trial Order was filed on July 10, 2026,35 and the parties have been ordered to mediate before August 17, 2026.36 Because Plaintiffs have no reasonable explanation for their delay in asserting the claims that they seek to add to a Fourth Amended complaint, the court is not persuaded that the time for filing pleadings should be reopened to accommodate their request.
Defendants argue — and the court agrees — that Plaintiffs’ argument that their proposed amendments would not prejudice defendants is similar to the argument rejected in Petrobras America, Inc. v. Vicinay Cadenas, S.A., No. 4:12-cv-888, 2014 WL 12651168 (S.D. Tex. November 24, 2014).37 In that case the plaintiffs pled tort claims that the district court held were barred by the economic loss doctrine. Id. at *1. When ten months after the deadline for amending pleadings, one of the plaintiffs sought leave to amend to add inter alia a new claim unsupported by new facts, and the only reason for amending was the court‘s dismissal of their tort claims, the court held that “[t]he time here has well passed for [plaintiff] to add a whole new theory that, in retrospect, plaintiff[] should have pleaded initially.” Id. at 2. Quoting Freeman v. Continental Gin Co., 381 F.2d 459, 469-70 (5th Cir. 1967), the court reasoned that “while liberality in amendment is a virtue, no court need permit ‘the presentation of theories seriatim,’ which undermines summary judgment‘s validity and burdens the court.” Id.
D. Conclusions
Plaintiffs’ request to file a Fourth Amended Complaint to conform the pleadings to this court‘s orders dismissing portions of certain claims and adopting spoliation facts lacks good cause because the additions sought are matters of record that do not need to be included in an amended pleading.
Although the court is persuaded that the claims for knowing participation in breach of fiduciary duty that Plaintiffs seek to add against Clark, Swindoll, and Turnaround are important, because Plaintiffs have failed to present a reasonable explanation for their delay in adding those claims, and have failed to show either that adding those claims will not unduly prejudice the defendants or that a continuance would cure the prejudice to the defendants, the court concludes that Plaintiffs have failed to establish good cause as required by
IV. Conclusions and Order
Plaintiffs’ request to withdraw their prayer for a permanent injunction is GRANTED. But for the reasons stated in § III, above, Plaintiffs’ Motion for Leave to File Fourth Amended Complaint (Docket Entry No. 322) is DENIED.
SIGNED at Houston, Texas, this 13th day of August, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE