MEMORANDUM ORDER

A. JOE FISH, Chief Judge, District

Before the court are (1) the motion of the plaintiff and counter-defendant Prime Lending, Inc. ("Prime Lending") and the third-party defendants Plains Capital Corporation, PNB Financial Bank, PNB Financial Group, Inc., and Roseanna McGill ("McGill") for summary judgment and (2) the motion of the defendant and third-party plaintiff Sandra Moyer ("Moyer") to dismiss for failure to state a claim upon which relief can be granted or, in the alternative, to dismiss for lack of personal jurisdiction. For the following reasons, the motion for summary judgment is granted, and the motion to dismiss is denied.

1. BACKGROUND

Prime Lending, a residential mortgage lender, is a Texas corporation with its principal place of business in Dallas, Texas. Plaintiff's Original Complaint for Declaratory Judgment ("Complaint") ¶¶ 1, 6.

Moyer, a Pennsylvania citizen, is a mortgage broker with offices in Lancaster, Pennsylvania and Cape Coral, Florida. Id. ¶¶ 2, 7.

In early 2002, Prime Lending and Moyer discussed the possibility of Moyer serving as a lending broker for Prime Lending in Pennsylvania and Florida. Id. ¶ 8. After "numerous discussions, meetings, and negotiations," Prime Lending and Moyer reached an agreement ("the Agreement"). Id. ¶ 9. Under the Agreement, Moyer would serve as a net branch manager/mortgage broker for Prime Lending in Lancaster, Pennsylvania and Cape Coral, Florida. Id. In return, Prime Lending would compensate Moyer for each loan she closed, less certain fees and expenses. Id.; Declaration of Roseanna McGill in Support of Prime Lending, Inc.'s Motion for Summary Judgment ("McGill Declaration") ¶ 4, attached to Appendix to Motion for Summary Judgment of Prime Lending, Inc., Plains Capital Corporation, Roseanna McGill, PNB Financial Bank, and PNB Financial Group, Inc. ("Appendix") as Tab B. The financial and payment terms of the Agreement were never reduced to writing. Complaint ¶ 9. Moyer maintains that the Agreement called for Prime Lending to pay her one hundred percent of the commission rate for in-house loans which Moyer originated and were funded. Defendant Sandra Moyer's Responses to Plaintiff Prime Lending, Inc.'s Interrogatories ("Interrogatories") at 1-2, attached to Appendix as Tab A2. For wholesale loans, Prime Lending would pay Moyer all origination fees and commissions payable to Prime Lending, less an administrative fee of .25 percent of the value of each loan plus $200. Id. at 2. Under the Agreement, Prime Lending's total fees were to be capped at $495 per loan transaction. Id.

By early September 2002, the relationship between Prime Lending and Moyer had deteriorated. Complaint ¶ 10. Prime Lending and Moyer have been unable to resolve various disputes. Id. Moyer claims that she has not been fully compensated under the terms of the Agreement. Id. ¶ 11. Prime Lending, on the other hand, contends that "Moyer has been paid all commissions and fees owing under the [A]greement." Id. ¶ 13.

On January 17, 2003, Prime Lending filed the instant case, in which it seeks declaratory relief. Specifically, Prime Lending asks for a judgment declaring that

a. Prime Lending has paid all commissions and fees owed to Moyer pursuant to the [A]greement;

b. Moyer is not entitled to collect from Prime Lending in the future any additional fees under the [A]greement (including the more than $100,000 that Moyer claims is presently owed under the [A]greement); and

c. Moyer can no longer use the Prime Lending name, attempt to close loans using Prime Lending's various approval numbers, or list Prime Lending's name on her business telephone listing.

On March 10, 2003, Moyer answered Prime Lending's complaint and asserted multiple counterclaims.

On March 28, 2003, Moyer filed a third-party complaint against McGill, Plains Capital Corporation, Plains National Bank, and PNB Financial Group, Inc. McGill, president and chief executive officer of Prime Lending, is a citizen of Texas. Third Party Complaint ¶ 2; McGill Declaration ¶ 2. Plains Capital Corporation, Plains National Bank, and PNB Financial Group, Inc. are all Texas corporations with their principal place of business in Lubbock, Texas. Third Party Complaint ¶ 2.

Moyer maintains that the Agreement was made not only with Prime Lending but also with the third-party defendants. Id. at 3. Prime Lending and the third-party defendants dispute this contention. Brief in Support of Motion for Summary Judgment of Prime Lending, Inc., Plains Capital Corporation, Roseanna McGill, PNB Financial Bank, and PNB Financial Group, Inc. ("Motion for Summary Judgment") at 11. Moyer contends that she performed all of the duties required of her by the Agreement until January 17, 2003. Third Party Complaint at 3. On that date, Moyer avers that Prime Lending and the third-party defendants breached the Agreement by wrongfully terminating her employment without cause. Id. Moyer maintains that prior to January 17, 2003 she was owed $25,000 under the terms of the Agreement, an amount that remains unpaid. Id. at 4. Moyer claims that this amount results from the fact that between May 2002 and October 2002 Prime Lending "shorted" her on commissions of one-half of one percent on twenty-one loans (collectively, "the Subject Loans") plus expenses. Interrogatories at 2.

According to McGill, a commission on a loan earned by a loan officer such as Moyer is calculated by multiplying the commission rate or "price" by the loan amount. McGill Declaration ¶ 7. This "price" fluctuates daily but prior to submitting a loan for closing, a loan officer may lock in the "price" by submitting the locked in price to Prime Lending in writing. Id. If a loan's price has not been locked in, the loan officer's commission is determined by the current market price at the time of closing. Id. When the Subject Loans were closed during October 2002, the "price" on those loans had not been locked in by Moyer. Id. ¶ 8. Thus, the "price" used to compute Moyer's commission was determined at the time of closing. Id. Moyer complained about the "price" she would receive on the Subject Loans. Id. ¶ 9. As a result, Prime Lending paid Moyer a "price" of 3.75 percent on the Subject Loans "although the market price on many of these loans was much lower." Id. On all of the Subject Loans, the parties agreed that Prime Lending would charge Moyer fees and expenses of $400, which were to be deducted from the gross commissions. Id. ¶¶ 10, 11. Additionally, Prime Lending deducted from the gross commissions closing costs paid by Prime Lending on behalf of the borrower. Id. ¶ 11. Throughout her employment with Prime Lending, Moyer instructed Prime Lending how to divide her commissions between herself and her employee, Robert Richmond ("Richmond"). Id. ¶¶ 12, 13. Prime Lending paid Moyer a total of $37,319.46 and Richmond a total of $9,786.93 in commissions on the Subject Loans. Id. ¶ 14; see also Commission Report [for Moyer], attached to Appendix as Tab 22; Commission Report [for Richmond], attached to Appendix as Tab 23. According to McGill, these amounts equal all of the commissions owed to Moyer on the Subject Loans. McGill Declaration ¶ 15.

Prior to the termination of her employment, Moyer had complained to the third-party defendants that Prime Lending and McGill were violating state and federal lending laws, but the third-party defendants had refused to act on Moyer's information. Third Party Complaint at 4; see also Interrogatories at 3-4. Moyer asserts that the termination of her employment and the filing of the instant suit were retaliatory acts. Third Party Complaint at 3, 4, and 6.

On April 14, 2003, Moyer filed an amended answer and counterclaims as well as an amended third-party complaint. Moyer asserted counterclaims against Prime Lending for breach of contract, fraud and misrepresentation, as well as violations of 41 U.S.C. § 265 and the Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. See generally Amended Answer and Counterclaim. Moyer also contends that Prime Lending is the alter ego of PNB Financial Group, Inc., Plains Capital Corporation, and PNB Financial Bank because the four entities operate as a single business enterprise. Id. at 5. Moyer's amended third-party complaint asserts these same causes of action against McGill, Plains Capital Corporation, PNB Financial Bank, and PNB Financial Group, Inc.

On February 9, 2004, Prime Lending, Plains Capital Corporation, McGill, PNB Financial Bank, and PNB Financial Group, Inc. moved for summary judgment on Moyer's claims against them. Moyer did not respond to that motion.

On March 3, 2004, Moyer filed a motion to dismiss for failure to state a claim upon which relief can be granted or, in the alternative, to dismiss for lack of personal jurisdiction.

II. ANALYSIS A. Motion to Dismiss for Lack of Personal Jurisdiction

Federal Rule of Civil Procedure 12(h)(1) provides the following:

(h) Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Moyer had ample opportunity to assert the defense of lack of personal jurisdiction. Moyer did not, however, assert the defense in her first responsive pleading — her answer — in which she also asserted a counterclaim, nor did she assert the defense in her amended answer which also included a counterclaim. In fact, Moyer admitted — in both her original and amended answer — that this court had personal jurisdiction over her. See Complaint ¶ 4; Answer to Plaintiff's Original Complaint with Counterclaim ¶ II; Defendant's Amended Answer to Plaintiff's Original Complaint with Counterclaim ("Amended Answer and Counterclaim") ¶ II. Furthermore, in her third-party complaint, Moyer averred that "[t]his [c]ourt has personal jurisdiction over the Third Party Defendants, because the claims asserted in this action arose out of a contract negotiated, defaulted and performed, in part, in Texas." Amended Third Party Complaint ¶ 4. She also maintained that "[v]enue is proper in this district . . . because a substantial part of the events or omissions giving rise to the claims . . . occurred in this judicial district." Id. ¶ 5. Lastly, in response to a status report order issued on March 11, 2003 in which this court specifically asked for challenges to this court's jurisdiction, Moyer stated no objection to jurisdiction. See Joint Status Report ¶ 2. The court concludes that Moyer has waived her defense of lack of personal jurisdiction. See Broadcast Music, Inc. v. M.T.S. Enterprises, Inc., 811 F.2d 278, 281 (5th Cir. 1987); Golden v. Cox Furniture Manufacturing Company, Inc., 683 F.2d 115, 118 (5th Cir. 1982). Accordingly, her motion to dismiss for lack of personal jurisdiction is denied.

B. Motion to Dismiss for Failure to State a Claim

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." "However, a motion under Rule 12(b)(6) should be granted only if it appears beyond doubt that the plaintiff could prove no set of facts in support of its claim that would entitle it to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir. 1994); see also Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983) (citing CHARLES ALAN WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 at 598 (1969), for the proposition that "the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted."). In determining whether dismissal should be granted, the court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Capital Parks, Inc. v. Southeastern Advertising and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994); Norman v. Apache Corporation 19 F.3d 1017, 1021 (5th Cir. 1994); Chrissy F. by Medley v. Mississippi Department of Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991). Under the standard set by Rule 12(b)(6), the court must accept these allegations as true. Thus, Moyer, as the movant, has not met her burden of showing that there is no set of facts which would entitle the plaintiff to relief, and her motion to dismiss the complaint for failure to state a claim must be denied.

C. Motion for Summary Judgment 1. Evidentiary Burdens on Motion for Summary Judgment

Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56©). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movants make such a showing by informing the court of the basis of their motion and by identifying the portions of the record which reveal there are no genuine material fact issues. See Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). Once the movants make this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Id. at 323-24. To carry this burden, the opponent must do more than simply show some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586 (1986). Instead, she must show that the evidence is sufficient to support a resolution of the factual issue in her favor. Anderson, 477 U.S. at 249. All of the evidence must be viewed, however, in a light most favorable to the motion's opponent. Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Summary judgment is properly entered against a party if after adequate time for discovery, she fails to establish the existence of an element essential to her case and as to which she will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.

2. 41 U.S.C. § 265 Claim

3. Exhaustion of Remedies Under Title VII

Title VII prohibits retaliation against an employee "because [s]he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of unlawful retaliation under Title VII, Moyer must demonstrate that (1) she engaged in activity protected by Title VII; (2) an adverse employment action occurred; and (3) a causal link existed between the protected activity and the adverse employment action. See Collins v. Baptist Memorial Geriatric Center, 937 F.2d 190, 193 (5th Cir. 1991), cert. denied, 502 U.S. 1072 (1992); Webb v. Cardiothoracic Surgery Associates of North Texas, P.A., 139 F.3d 532, 540 (5th Cir. 1998); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 n. 8 (5th Cir. 1998); Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996). The causal connection required is cause-in-fact or "but for" causation. Jack v. Texaco Research Center, 743 F.2d 1129, 1131 (5th Cir. 1984).

Although Title VII affords a private right of action to an individual aggrieved by unlawful discrimination in the workplace, an employee — to preserve her statutory rights — must file a charge of discrimination ("charge") with the Equal Employment Opportunity Commission ("EEOC") "within one hundred and eighty days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). "Timely filing is a prerequisite to the maintenance of a Title VII action and the failure to file within the statutory period will ordinarily operate as a bar to suit." Abrams v. Baylor College of Medicine, 805 F.2d 528, 532 (5th Cir. 1986) (citing Alexander v. Gardner-Denver Company, 415 U.S. 36, 47 (1974), and United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4 (1977)). Filing a charge with the EEOC is a condition precedent to seeking judicial relief. See Oatis v. Crown Zellerbach Corporation, 398 F.2d 496, 497-98 (5th Cir. 1968). Prime Lending and the third-party defendants contend that the Title VII claims asserted by Moyer are barred due to her failure to exhaust administrative remedies. Motion for Summary Judgment at 7-8. The court agrees. Accordingly, Moyer's claims under Title VII are time-barred, and Prime Lending and the third-party defendants are entitled to summary judgment on those claims.

4. Fraud and Misrepresentation

A complaint need only recite a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a)(2). When, however, a defendant is charged with fraudulent activity, the plaintiff must state with particularity the circumstances constituting fraud. FED. R. CIV. P. 9(b). Rule 9(b) provides that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally." Id. The procedural requirements related to fraud apply to Moyer's misrepresentation claims.

Under Texas law, the elements of a fraud claim are: (1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001); Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983).

Rule 9(b) permits a plaintiff to allege generally the defendant's intent to commit fraud. A mere allegation that the defendant had the requisite intent, however, will not satisfy Rule 9(b). Melder v. Morris, 27 F.3d 1097, 1102 (5th Cir 1994); Tuchman v. DSC Communications Corporation, 14 F.3d 1061, 1068 (5th Cir. 1994). To adequately plead fraudulent intent, the plaintiff must set forth specific facts that support an inference of fraud. Tuchman, 14 F.3d at 1068. The pleading must include specific details of the time, place, contents, and nature of the activities which form the basis of the allegedly fraudulent conduct, as well as identifying what was obtained through the fraud. Tel-Phonic Services, Inc. v. TBS International, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992) (quoting 5 CHARLES A. WRIGHT ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE § 1297).

Moyer has enumerated representations made by McGill which Moyer deems as false. See Amended Third Party Complaint ¶ VI. A few of the alleged misrepresentations identify time but none alleges the place of the alleged fraudulent conduct. Most notably, Moyer fails to offer any facts to support an inference of McGill's alleged fraudulent intent, McGill's intention that Moyer act based on McGill's alleged misrepresentations, or that Moyer relied on these representations. The fraud and misrepresentation claims in Moyer's amended complaint lack sufficient particularity to comply with Rule 9(b), and the third-party defendants are entitled to summary judgment on those claims.

5. Breach of Contract

Moyer maintains that Prime Lending and the third-party defendants breached the Agreement by failing to pay her over $25,000 in commissions and expenses. Amended Answer and Counterclaim at 8; Amended Third Party Complaint at 3. Under Texas law, a breach of contract claim requires: (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 to the plaintiff resulting from the defendant's breach. Kay v. North Texas Rod Custom, 109 S.W.3d 924, 927 (Tex.App.-Dallas 2003, no writ). To meet the first requirement (the existence of a valid contract), five elements must be present: (1) an offer; (2) an acceptance in strict compliance with the terms of that offer; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) execution and delivery of the contract with intent that it be mutual and binding. Coffel v. Stryker Corporation, 284 F.3d 625, 640 n. 17 (5th Cir. 2002); Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-Houston [1st Dist.] 2002, writ denied); see also Oakrock Exploration Company v. Killam, 87 S.W.3d 685, 689 (Tex.App.-San Antonio 2002, writ denied). The dispositive issue in determining whether a contract exists in this case is the last requirement — the intent of the parties to be bound. Without this intent, there cannot be a valid contract upon which to base a breach of contract action. Even if it is assumed that Moyer can establish a valid contract between herself, Prime Lending, and the third-party defendants, Moyer must still allege facts showing that the other parties breached that contract. Furthermore, to survive summary judgment on her breach of contract claims, Moyer must produce some evidence of causation and damages. See, e.g., Pehnke v. City of Galveston, 977 F. Supp. 827, 832 (S.D. Tex. 1997) (to establish a breach of contract claim in Texas, a plaintiff must show that damage resulted from the breach).

Moyer and Prime Lending agree that a valid contract existed between them. However, Moyer has not controverted evidence that no contract existed between the third-party defendants and Moyer. Thus, the motion of the third-party defendants for summary judgment of Moyer's breach of contract claims against them is granted.

A valid contract existed between Moyer and Prime Lending. Prime Lending has presented evidence that Moyer and Richmond were paid commissions on the Subject Loans. The parties disagree as to whether Moyer was "shorted" on these commissions. Moyer did not file a response to the Prime Lending's motion for summary judgment on her breach of contract claim; thus, she has not refuted Prime Lending's assertion that Moyer cannot establish a breach of contract or that she suffered any resulting damages. Accordingly, Prime Lending's motion for summary judgment of Moyer's breach of contract claim against it is granted.

6. Alter Ego and Single Business Enterprise

Moyer claims that Prime Lending is the alter ego of PNB Financial Group, Inc., Plains Capital Corporation, and PNB Financial Bank. Amended Third Party Complaint at 5-6.

In determining whether a corporation is the alter ego of a defendant, the court will consider whether the corporation (1) is undercapitalized, (2) keeps separate books, (3) commingles its finances with individual finances, (4) is used to promote fraud or illegality, (5) fails to observe corporate formalities, and (6) is merely a sham. Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985) (citing Lakota Girl Scout Council, Inc. v. Havey Fund-Raising Management, Inc., 519 F.2d 634, 638 (8th Cir. 1975)).

Under the single enterprise theory, "when corporations are not operated as separate entities, but integrate their resources to achieve a common business purpose, each constituent corporation may be held liable for the debts incurred in pursuit of that business purpose." Gardemal v. Westin Hotel Company, 186 F.3d 588, 594 (5th Cir. 1999) (citing Old Republic Insurance Company v. Ex-Im Services Corporation, 920 S.W.2d 393, 395-96 (Tex.App. — Houston [1st Dist.] 1996, no writ)).

Reviewing the evidence in the light most favorable to Moyer, the court concludes that there is insufficient evidence that PNB Financial Group, Inc., Plains Capital Corporation, and Plains National Bank were Prime Lending's alter ego. As discussed above, Moyer has failed to carry her summary judgment burden on her claims against Prime Lending. Hence, even if the court assumes that Prime Lending is the alter ego of PNB Financial Group, Inc., Plains Capital Corporation, and PNB Financial Bank, Moyer's derivative claims against PNB Financial Group, Inc., Plains Capital Corporation, and PNB Financial Bank (or Plains National Bank) fail as a matter of law. Similarly, there is insufficient evidence that the resources of PNB Financial Group, Inc., Plains Capital Corporation, Plains National Bank, and Prime Lending are so integrated as to constitute a single business enterprise.

III. CONCLUSION

Within ten days of this date, counsel for Prime Lending and the third-party defendants shall submit a proposed form of judgment in conformity with this memorandum order.

SO ORDERED.