One of the most common defenses to a misappropriation of trade secrets case under the Texas Uniform Trade Secrets Act (TUTSA) is to file a motion to dismiss under Texas’s anti-SLAAP statute the Texas Citizens Participation Act (TCPA). The defendants in Mancilla v. Taxfree Shopping, Ltd, No. 05-18-00136-CV, 2018 WL 6850951 (Tex. App.—Dallas Nov. 16, 2018, no pet.) employed the TCPA to defend against plaintiff’s TUTSA claim. Unfortunately, though, the defendants were too late in filing the motion.

Under the TCPA, a defendant must file a motion to dismiss within 60 days after the service of the legal action. Defendants’ motion was filed was filed well after that deadline but less than 60 days after plaintiff had filed its second amended petition. Defendants argued that the second amended petition “substantially reformulated” plaintiff’s TUTSA claim, and therefore, they should be allowed a new 60-day deadline.

The trial court and the Dallas Court of Appeals disagreed. Under the TCPA, “[a]n amended pleading that does not add new parties or claims does not restart the deadline for filing a motion to dismiss under the TCPA.” Here, plaintiff’s second amended petition only added more specificity to its original TUTSA claim. Therefore, the 60-day deadline ran from the filing of the original petition and not the second amended petition.

The lesson here is that plaintiffs may add more specificity to their TUTSA claims in amended petitions without worrying about restarting the TCPA motion to dismiss clock. However, plaintiffs who wish to add new causes of action or new parties to a lawsuit should think carefully about whether doing so will draw a TCPA motion.  (Of course, this issue likely becomes moot on September 1, 2019 when the revisions to the TCPA go into effect.)