Labaty v. UWT, Inc. (121 F. Supp. 3d 721, 2015)

ORDER

XAVIER RODRIGUEZ, District Judge.

On this day the Court considered Defendants Jeffrey Kelley and Paul Maxwell’s Motion for Partial Summary Judgment Based on Lack of Causation (docket no. 137), Motion for Partial Summary Judgment Based on Limitations (docket no. 138), No Evidence Motion for Summary Judgment (docket no. 139), and motion to strike certain evidence (docket no. 171). The Court also considered Defendants Michael Dea, Jeffrey Desich, Richard Desich, Equity Trust Company (“Equity Trust”), and Sterling Administrative Services, LLC’s Motion for Summary Judgment (docket no. 143). For the following reasons, the Court GRANTS Michael Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services’s motion; GRANTS Kelley and Maxwell’s motion for summary judgment based on limitations; and GRANTS in part and DENIES in part each of Kelley and Maxwell’s motions. As a result, all of Plaintiff Deborah Labaty’s claims against Jeffrey Kelley, Paul Maxwell, Michael Dea, Jeffrey Desich, and Richard Desich are dismissed. The claims against Equity Trust and Sterling Administrative Services are dismissed except in their potential capacity as successor in interest to Sterling Trust Company’s liabilities.

I. BACKGROUND

Plaintiff Deborah Labaty brought this action on February 22, 2013, against several defendants after she lost much of her life savings when she attempted to invest in earth metals and the earth metals were never delivered. She claims violations of civil Racketeer Influenced and Corrupt Organizations Act (“RICO”) 18 U.S.C. §§ 1962(c) and (d) based upon predicate acts of mail and wire fraud, 18 U.S.O. §§ 1341 and 1343, as well as a Texas causes of action for fraud, conversion, negligence, negligent misrepresentation, violations of the Texas Deceptive Trade Practices Act, and violations of Texas Penal Code § 32.46. The Defendants moving for summary judgment are companies that act as individual retirement account (IRA) custodians and them officers.

A. Factual Background

i. Facts

a. Failed Investment

In 2007, Defendant Superior Gold Group (“Superior”), a Nevada LLC with its principal place of business in' California, began running radio advertisements around the country encouraging individuals to reinvest their retirement accounts in gold and other precious metals. In April 2009, Deborah Labaty heard one of many radio advertisements by Superior and discussion of it on a talk radio show. Labaty was employed, had multiple college' degrees, and was nearing retirement age with a 401(k) and an IRA suffering losses during the country’s most recent financial crisis. See Labaty’s Deposition Transcript from March 6, 2014, at 11, 31-35,144-45. She is one of hundreds of individuals who suffered losses caused by Superior and its President, Defendant Bruce Sands. Sands was indicted in California for fraud and is awaiting trial. See docket no. 137-7.

Labaty contacted Superior about investing in precious metals and signed an investment contract with the company on April 15, 2009. See docket nos. 137-1 and 2. At that time, she' had never heard of Sterling Trust Company (“Sterling” or “Sterling Trust”), Equity Trust, or any individual defendant associated with Sterling or Equity. Also, Sterling’s assets had not yet been purchased by Equity from Defendant United Western Trust Company (“UWT”). Labaty Dep. Tr. at 42. The contract between. Superior and Labaty provided, in part:

Upon receipt and confirmation of good funds ,.. Superior Gold Group, LLC shall cause Customers [sic] order to be shipped within thirty one [sic] (31) business days after receipt of funds.

Customer acknowledges that the decision to purchase coins, and which coins to purchase is ultimately the Customer’s alone.

It may take several months for delivery of [a coin] purchase to reach the depository.

In her communications with Superior, Leticia Acosta, a Superior employee, sent Labaty an application for a self-directed individual retirement account (SDIRA) with Sterling Trust Company (“Sterling Trust”). . See docket no. 137-1 (Labaty Dep. Ex. 1 — Email from Acosta). At the time, Maxwell was Chief Executive Officer of Sterling and Kelley was Sterling’s. Chief Operating Officer. Labaty returned the Sterling application to Acosta, along with a Wire Transfer letter, on the same day she signed the. contract with Superior, April 15. See id (Labaty Dep, Ex. 2 — Superior Contract). After opening her account with Sterling, Labaty instructed Vanguard, the bank that held her other retirement accounts, to transfer $150,248.76 to. Sterling Trust. See docket no. 137-1 (Labaty Dep. Ex. 7 — Wire Transfer Letter); docket no. 160-22 (Labaty Dep. Ex. 3 — Sterling IRA Transfer Request Form). Vanguard transferred $150,301.43 to Sterling. See docket no. 143-2 (Labaty Dep. Ex. 16— Sterling Trust Quarterly Statement). • On April 23, 2009, Sterling transferred $150,082.00 from Labaty’s account to Superior for the precious metals purchase. See id.; 138-1 (Labaty Dep. Ex. 10 — Confirmation of Wire Transfer). Her account was opened, and Sterling Trust’s representative, Andrew Thompson, signed the-Custodial Agreement on April 29, 2009. Docket no. 143-2 at 34 (Labaty Dep. Ex. 4— Custodial Agreement Signature Page).

Labaty’s signed application to Sterling Trust established an SDIRA with the company. Sterling was to act as a custodian, holding the money and permitting Labaty to access her retirement - funds, without incurring tax liabilities, in exchange for minimal fees,' like the $100 annual fee. Docket no. 143-2 (Labaty Dep. Ex. 24, at 5 — Sterling IRA Application).. Labaty’s application to Sterling to open an account included the following provisions, which Labaty acknowledged by her signature on April 15, 2009:

I acknowledge that my Account is self-directed and I am solely responsible for the selection, management, and retention of all investments held within my Account. I understand and acknowledge that Sterling will exercise no discretion with respect to funds in my Account, will not under any circumstances provide investment advice or recommen■dations, and will in all events invest all .of the funds in my Account solely and exclusively at my direction. I further understand that I am not entering into a “trust”, agreement with Sterling, rather I am entering' into a “custodial” agreement under which Sterling has no duties or responsibilities with respect to the Investment of the funds in my Account. Finally ■ I understand and intend that Sterling shall not assume the responsibilities of a “trustee”, a “fiduciary”, or a person entitled to exercise any discretionary authority- with respect to the funds in nly Account

I understand that if a financial representative suggested that I retain Sterling’s services as custodian for investments made through my Account, that such financial representative is not in any way an agent, employee, representative, or affiliate of Sterling. I acknowledge that Sterling is not responsible for and is not bound by any representations, warranties, statements or agreements made by any financial representative.

I understand that Sterling does not re='view the prudence, viability or merits of any investment or, whether the investment is acceptable.... I understand that I should have all investments reviewed by my attorney and or tax advis- or.

I understand that it is my sole responsibility to manage the investment(s) held within my Account, and that Sterling has no responsibility to question any investment directions given by me or my Representative (if I have appointed one), regardless of the nature of the investment.

Docket no. 143-2 (Labaty Dep. Ex. 24 at ¶¶ 2, 4, 5, and 10 — Sterling IRA Application). Labaty read and agreed to “everything in the contract.” Labaty Dep. Tr. at 125. Also, the section titled “Optional Representative Designation,” where an aceountholder could designate an investment “adviser, broker, financial planner, or other person” contains'a provision that states, “I [the accountholder] understand Sterling has not made and will not make any recommendation or investigation with respect to my Representative.” Id. at 9.

Before receiving the application for an SDIRA, Labaty had not heard of Sterling Trust or any of its employees. Labaty Dep. Tr. at 42 and 115-16. She did not hear of Equity until much later when Equity purchased Sterling Trust’s assets from UWT and began sending Labaty her quarterly statements. See Labáty Dep. Tr. at 42. Labaty states that she never spoke with Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, or anyone at Sterling or Equity prior to deciding to' invest with Superior, or even immediately after. Labaty Dep. Tr. at 109-17.

Sterling Trust transferred the funds to Superior, but Superior never delivered the precious metals in return. In early May 2009, Labaty left several messages and emails for Acosta and her initial sales contact, Van Ausdall. Id. at 84. She did not contact anyone at Sterling Trust at this time. Id. at 88. Sterling Trust, for its part, sent Labaty a quarterly statement in July for April 1 to June 30, 2009 that indicated Labaty’s transaction with Superi- or remained “pending.” See docket no. 137 — 1 (Labaty Dep. Ex. 16 — Sterling Quarterly Statement). All of Labaty’s quarterly statements through June 30, 2012, reflected the same “pending” transaction. See id. (attaching all statements). The quarterly statements also noted “this statement may not reflect current or accurate market values for certain assets,” and that “[valuations appearing on this statement may reflect the last known value reported by the investment sponsor or the original cost of the investment.” Id.

By August, Labaty was suspicious when the gold had not been delivered, so she left messages for Van Ausdall and Acosta again on August 3,- 4, and 5, to discuss the undelivered goods. Eventually, she heard back from Miriam Diaz, who informed her Van Ausdall was no longer with Superior and referred Labaty to Bruce Sands. Labaty attempted to contact Sands but never heard back. See docket no. 137-1 (Labaty Dep. Ex. 18 — Labaty Complaint to California Attorney’ General). On August 24, 2009, she requested her funds be returned to Vanguard from- Sterling/Equity. ■ See docket no. 138-1 (Labaty Dep. Ex. 11— Vanguard Asset Transfer Form). She was informed twice by Equity that her funds could not be returned because the gold was never delivered by Superior, and that she needed to contact Superior about any issue she was having. See docket no. 137-1 (Labaty Dep. Ex. 18 — Labaty Complaint to California Attorney General); see also docket no. 137-9 at 8 and 9.

Eventually, Labaty complained to the California Attorney General, fearing she had been “ripped off,” on September 30, 2009. Id. On December 8, 2010, Labaty was informed, along with other customers, that the State of California had brought a suit against Sands and Superior in Los Angeles County. Docket no. 137-1 (Labaty Dep. Ex. 19 — Email from Paula Rockenstein). A local attorney was appointed receiver and the customers were entitled to a settlement from what was recovered from Superior and Sands. See id.; Labaty Dep. Tr. at 99-100. Labaty opted out of that settlement. See Labaty Dep. Tr. at 100. To date, Labaty has not been compensated for her $150,000 loss,

b. Equity Trust Purchase of Sterling Trust from UWT

Around the same time Labaty was making her ill-fated investment with Superior, Equity Trust was negotiating to purchase the assets of Sterling Trust. Negotiations began in late-2008 and early-2009 and Sterling assigned its rights and assets to Equity Trust on June 27, 2009. Docket no. 155-4. Prior to the assignment, employees from the two entities met to prepare for the possible purchase. Various committees were established to help with transition and integration, with Kelley and Dea leading the “Overall Integration” group. See docket no. 155-11. The integration groups, including some of the individual Defendants, held meetings throughout April, May and June 2009, resulting in various tasks and projects for employees at both companies. Id. Equity Trust incorporated Defendant Sterling Administrar tive Services LLC in March 2009 apparently in anticipation of the purchase of Sterling Trust’s assets.

Equity Trust had a due diligence plan called “Project Delta” to help research its purchase of Sterling Trust. Docket no. 155-25. Project Delta included a detailed checklist of to-do items for the diligence process dated March 5, 2009. Under the heading “Portfolio Asset Quality — For All Accounts Holding Non-Traditional Assets,” the Project Delta checklist included various items related to precious metal and other accounts:

The number, percent, and dollar amount of accounts (2005-present) holding precious, metals, commodity/PX accounts____

The percent and dollar amount of total cash balances derived from each LOB (IRA, Qualified Plan, Escrow, Custodial, and Advisor) (2005-pres-ent).

Percent and dollar amount of cash balances from each of the following assets classes (2005-present): precious metals, commodity/PX accounts

10 largest sources (investment promoter and/or Broker Dealer/Advisor) for new accounts by LOB and asset class (2005-present): precious metals commodity/PX accounts ...

Number of accounts holding non-performing assets and the assets respective asset class. Number of accounts that hold a bankrupt asset or one where- the asset promoter/referrer is under government scrutiny ...

Lawsuits, customer or regulatory complaints from any of the 10 largest referral sources from each LOB and assets class (2Q05-present).

Docket no. 155-25. After performing the diligence and further negotiations, Equity Trust completed its purchase of Sterling Trust’s assets from UWT and continued operating under the Sterling Trust name in Texas. Equity Trust purchased “the right to service Sterling Trust’s IRA accounts and the right to use the -name ‘Sterling Trust.’ ” Docket no. .143 at; 4-5. Maxwell and Kelley continued on as high-level employees at Equity Trust after Sterling Trust’s assets were, purchased. UWT is now the entity formerly known as Sterling Trust .Company and has filed for bankruptcy. Docket no. 33 at 16 n. 17; docket no. 47 at ¶ 5.

As senior officials, Kelley and Maxwell had authority to direct their employees at Sterling Trust. However, they, never specifically directed any .employee to communicate with Labaty, told an employee what to say or write to her, or to convey any particular message to her. Labaty never spoke, or communicated with them directly. Labaty Dep. Tr. at 115-16. Labaty never met, spoke with, or received any representation from Dea, Jeffrey Desich, or Richard Desich, either. See id. at 109-112.

c. Undisputed Procedural Facts

Labaty opted out of the California class-action. See Labaty Dep. Tr. at 100. She hired her own attorney and filed suit in the 285th Judicial District Court of Bexar County, Texas, on February 22, 2013. Docket no. 1 at 35. On May 6, 2013, the action was removed to federal court. Docket no. 1. The initial complaint named UWT,- Inc., United Western Administrative Services, Inc., Superior Gold Group, Paul Maxwell, individually and as Chairman and CEO of Sterling Trust Company, Jeffrey Kelley, individually and as COO of Stérling Trust Company, and Bruce Sands, individually and as CEO of Superior Gold Group, as defendants. The Court dénied a Rule 12(b)(6) motion to dismiss and granted Labaty’s first motion to amend on August 26, 2013. Docket nos. 24 and 25.

The Court granted Labaty leave to amend her‘complaint for a second time on November 21, 20Í3. Docket no. 33. Equity Trust, Sterling Administrative Services, Dea, Jeffrey Desich, and Richard Desich were added to the case as defendants for the first time in the second amended complaint. Docket no.- 33. They answered the second amended complaint without asserting counterclaims on January 14, 2014, after the Court -granted an extension. Docket no. 47. All parties participated in discovery that was extended twice.- One day before the third discovery deadline, the case was stayed for 30 days because Labaty’s attorney was gravely ill. See docket no. 89. The case was stayed for a total of 90 days because Labaty’s attorney eventually succumbed - to his illness and passed away. The Court permitted time for Labaty to find new counsel, for that counsel to assess the case, and for the parties to work out a new proposed scheduling order. At Labaty’s request, the Court reopened discovery for approximately ninety days. The parties conducted more depositions, exchanged additional documents, and had more discovery fights. The Court denied Labaty leave to file a third amended complaint, Equity leave to add a counterclaim, and any further extension of discovery. Docket nos. 119 and 131.

The live complaint states causes of action against Kelley, Maxwell, Dea, Jeffrey Desich, and Richard Desich: (1) two counts under RICO § 1962(c); (2) RICO 1962(d); (3) common-law fraud; (4) conversion; (5) negligence; (6) negligent misrepresentation; (7) Texas Deceptive Trade Practices Act (DTPA); and (8) Texás law criminal offense under Texas Penal Code § 32.46. See docket no. 125. The causes of action stated against Equity Trust and Sterling Administrative Services are: (1) RICO § 1962(c); (2) common-law fraud; (3) conversion; (4) negligence; (5) negligent misrepresentation; (6) DTPA; and (7) Texas law criminal offense under Texas Penal Code § 32.46.

Kelley and Maxwell filed three joint motions for summary judgment that would collectively dismiss all claims against them on March 30, 2015: one for “lack of causation” (docket no. 137), one based on the expiration of various statutes of limitation (docket no. 138), and one for “no evidence” (docket no. 139). Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services filed a joint motion for summary judgment that would dispose of all claims against them on-April 10, 2015. - Docket no. . 143. Labaty responded to Equity’s motion on April 28, 2015 (docket no. 155), and >to Kelley and Maxwell’s on April 29, 2015 (docket no. 160), with virtually identical arguments. Kelley and Maxwell replied on May 19, 2015 (docket nos. 168-170), and added a motion to strike some of Labaty’s summary judgment exhibits (docket no.' 171). Equity replied on May 26, 2015. Docket no. 173. Labaty filed for leave to file a sur-reply, without attaching a proposed reply, in order to present’ more evidence (docket no. 174), whic]i the Court denied because Labaty had multiple occasions previously to present all her evidence 'and circumstances did not require another opportunity.

ii. Disputed Facts

Despite many fact agreements and stipulations, the parties have widely different theories of the case based on several fact disputes. First, Labaty disputes the validity and applicability of the IRA contract with Sterling because it was obtained through “fraud.” Docket no. 155 at 2. Second, Equity states Labaty’s funds were transferred on April 15, 2009. Labaty Dep. Tr. at 42 and 73. Labaty asserts, however, that the transaction was done on April' 23, 2009, according to notes from Sterling, and a transaction log showing a transfer from Vanguard on April 22 and Sterling transferring the money to Superi- or on April 23. See docket nos. 160-2 and 143-2.

The remaining factual disputes relate to who knew what, when they knew it, and how they may have acted based on that knowledge. Labaty alleges that Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services were aware Superior was not delivering gold to Sterling account-holders before Labaty decided to invest with Superior, but covered up the unfilled orders to maintain custodial fees and to ensure Equity Trust’s pending acquisition of Sterling was not interrupted. See generally docket nos. 155 and 160. To support her assertion, Labaty offers evidence that: (1) lower-level employees were aware Sands and Superior were not delivering gold as early as late-2008; see docket no. 155-7, McVan Depo. Tr. P. 39 1. 11-17; docket no. 155-16 Cohete Woelkie Depo. Tr. at P. 59 L. 2-16 and P. 73 L. 3-8; (2) at a meeting before April 21, 2009, attended by Dea, Kelley, Maxwell and Sterling employees Kelley Click, Andrew Thompson, Hope Gonzales, and Charles Ives, and perhaps other Equity and Sterling representatives, these persons discussed Superior which resulted in an investigation and, by one account, a “do-not-process” directive that was soon secretively revoked; see Click and McVan depositions, docket no. 160 Ex. 7 at 42, docket no. 160 Ex. 8 at 29-31; and (3) Anthony Carl told Dea and Kelley that Superior was not delivering gold and a “do-not-process” directive was needed, and a “do-not-process” was issued on July 7, 2009, but a client communication letter Carl drafted informing investors about the Superior problem was never sent. See docket no. 155-1, Carl Affidavit, and docket no. 155-12, and an “anonymous letter” . Labaty also cites to circumstantial evidence about Equity Trust’s due diligence process, Sterling Trust employees who were aware of the Superior problem and who participated on due diligence and integration committees with Equity employees, and Sterling Trust’s chain of command to indicate Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services were aware Superior would not deliver gold to IRA accounthold-ers in the period leading up to the acquisition on June , 26, 2009, but chose not. to address the issue or inform the public to ensure the asset-purchase would go through and avoid investigation by the Texas Banking Commission. Docket no. 155 at 14-15 (citing Docket no. 155 Exs. 11 and 25).

All Defendants argue (1) they had no knowledge of any problem with Superior at any time relevant to this lawsuit, especially before Labat/s transaction, (2) Labaty only provides evidence that employees lower in the chain of command knew there might have beén an issue with Superior, and (3) even that evidence does not show the employees knew the gold would not be delivered to customers before Labaty decided to invest with Superior. Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services further state they had not heard of Superior prior to purchasing Sterling. See Transcript of Michael Dea Deposition at p. 20, lines 10-12, and p. 93, lines 8-17; Transcript of Jeffrey Desich Deposition, docket no. 143, Exhibit 4 at p. 47, lines 10-17; Transcript of Richard Desich- Deposition, docket no. 143, Exhibit 5 at p. 10, lines 12-20; Transcript of Richard A. Desich Deposition, docket no. 143, Exhibit 6 at p. 16, line 14, through p. 17, line 7, Kelley and Maxwell claim not to have known about Superior either. Dea, Jeffrey .Desich, Richard Desich, Equity Trust, and Sterling Administrative Services deny any meeting in April regarding Superior, arguing any meeting in that timeframe was about a different gold company, U.S. Gold Bureau, not Superior. Docket no. 173 Ex. 4 (emails between Click and Maxwell regarding U.S. Gold’s website’s reference to Sterling Trust as a viable IRA custodian). Click’s testimony indicates she was unsure what company was discussed at the meeting. Docket no. 173 Ex. 3, Click Depo. Tr. at 111-112. All Defendants argue that, in the end, what they knew is not relevant because the Custodial Agreement controls .all Defendants’ relationship with Labaty and states they had no duty to disclose anything to Labaty about Superior, and Texas law created no duty, either.

II. LEGAL STANDARD

A court shall grant summary judgment if the movant shows that there is no genuine issue of any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). To establish that there is no genuine dispute over any material fact, the movant must submit evidence that negates the existence of some material element of the nonmoving party’s claim or defense. Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990), cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 131 (1993). If the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, the movant can merely point out that, the evidence in the record is insufficient to support an essential element of the nonmovant’s claim or defense. Id. Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir.1991).

In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, put differently, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4, 106 S.Ct, 2505, 91 L.Ed.2d 202 (1986); Lavespere, 910 F.2d at 178. In making this determination, the court should review all the evidence in the record, drawing all reasonable inferences in favor of the nonmovant and without making credibility determinations or weighing the evidence. Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-555, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990). The court also considers “evidence supporting the moving party that is uncontradicted arid unim-peaehed.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000),

III. ANALYSIS

a. Fraud

The heart of the motions for summary judgment is whether Kelley, Maxwell, Richard Desich, Jeffrey Desich, and Michael Dea, Sterling Administrative Services, or Equity Trust, acted fraudulently and caused Labaty’s losses. Superior and Sands’ fraud is undisputed. Kelley and Maxwell argue that they did not commit fraud because they (1) were unaware of Superior’s fraudulent gold scheme when Labaty made her investment, (2) made no misrepresentations to her' as they never communicated with her, (3) had no duty to disclose information to her even if they knew anything negative about Superior, and (4) could not have legally caused any injury to Labaty because she decided to invest with Superior before any dealings with Sterling Trust. See docket nos. 137, 139, 168 and 170. Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services argue they (1) were not involved in or aware of Superior’s fraud, (2) were not in control of Sterling Trust when Labaty made her investment because they did not complete the purchase of Sterling Trust’s assets- until three months later, (3) even if they were aware of any fraud by Supérior they had no duty to inform Labaty, and (4) they could not have caused Labaty’s injury. Docket nos. 143 and 173.

The elements of fraud in Texas 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.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex.2011) (quoting Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.2009) (per curiam)).

The thrust of Labaty’s fraud arguments against Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services is that Labaty was fraudulently induced into signing the Custodial Agreement with Sterling Trust, which led to her investment with Superior and Sands. She also asserts all the Defendants had a duty to disclose information they knew about Superior prior to and after she opened her account with Sterling Trust and-invested with Superior, the Custodial Agreement is “vitiated” by the fraudulent inducement, and the Defendants had duties to her beyond what the Custodial Agreement contemplates.

Labaty argues at length that Kelley; Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services fraudulently induced’ her into opening an account to invest with Superior by including in the Custodial Agreemént a statement "by the account holder that she “understood] that Sterling has not made and will not make any recommendation or investigation with respect to my Representative.” Docket no. 143-2 — Custodial Agreement at’9; docket no. 155 at 9-10. Labaty argues the evidence shows, at least at the time Labaty signed her agreement, this “statemént” was false and Kelley and Maxwell knew it was false, as their employees had “investigated” Superior and the numerous unfulfilled transactions. Docket no. 160 at 5. Labaty states that she would not have signed the Custodial Agreement had she known Superior had “investigated” Superior, thus causing her loss. Docket no. 160 Ex. 15— Labaty Affidavit. None of the individual Defendants in this case, however, made any representations to Labaty. Neither did Equity Trust or Sterling'Administrative Services before Labaty made her investment. Labaty says she never spoke with any of them, and they all stated they never spoke with her. Without fraudulent representations, Kelley, Maxwell,- Dea, Richard Desich, and Jeffrey Desich, Equity Trust and Sterling Administrative Services cannot be found liable for civil fraud under Texas law. See Italian Cowboy Partners, 341 S.W.3d at 337. Labaty’s attempts to connect these Defendants to statements made by Sterling Trust or low-level employees the defendants had authority over fall short. Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services did not make representations to Labaty upon which she could have relied to invest with Superior.

Labaty also states a claim for fraud by non-disclosure. The elements of fraud by nondisclosure in Texas are: “(1) the defendant failed to disclose facts to the plaintiff, (2) the defendant had a duty to disclose those facts, (3) the facts were material, (4) the defendant knew the plaintiff was ignorant of the facts and the plaintiff did not have an equal opportunity to discover the facts, (5) the defendant was deliberately silent when it had a duty to speak, (6) by failing to disclose the facts, the defendant intended to induce the plaintiff to take some action or refrain from acting, (7) the plaintiff relied on the defendant’s nondisclosure, and (8) the plaintiff was injured as a result of acting without that knowledge.” Horizon Shipbuilding, Inc. v. BLyn II Holding, LLC, 324 S.W.3d 840, 850 (Tex.App.-Houston [14th Dist.] 2010, no pet.); see also Blankinship v. Brown, 399 S.W.3d 303, 308 (Tex.App.-Dallas 2013, pet. denied).

A duty to • disclose generally arises in four circumstances: (1) a fiduciary or other special relationship between the parties; (2) new information makes a defendant’s earlier representation misleading or untrue; (3) a defendánt conveys a false impression by making a partial disclosure; and (4) a defendant who voluntarily discloses information has a duty to' disclose the whole truth. Lesikar v. Rappeport, 33 S.W.3d 282, 298-99 (Tex.App.-Texarkana 2000, pet. denied); see also Playboy Enters., Inc. v. Editorial Caballero, S.A. de C.V., 202 S.W.3d 250, 260 (Tex. App.-Corpus Christi 2006, pet. denied). “Absent a fiduciary or confidential relationship,” or one of the other three Lesi-kar circumstances, “the failure to disclose information is not actionable as fraud.” Jackson v. W. Telemarketing Corp. Outbound, 245 F.3d 518, 525 (5th Cir.2001). Whether a duty to disclose exists is a question of law. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex.2001).

Labaty argues that Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services had a duty to disclose information to her about Sterling Trust’s investigation of Superior, and their failure to disclose led her to open an account with Sterling Trust and invest with Superior.

To support her allegation that Kelley and Maxwell had a duty to disclose information, Labaty traces the history of Sterling Trust’s dealings with Superior. Labaty presents evidence that Charles Ives, a Sterling employee, called Superior dozens of times in 2008 in connection with unfulfilled orders for gold. Collette Woelkie Depo: — Docket no. 155 Ex. 16 at 73. Thompson, the Sterling Trust corporate officer who signed Labaty’s Custodial Agreement on behalf. of Sterling Trust, and other Sterling Trust employees were aware of the growing difficulty with Superior by late 2008 or early 2009. Docket no. 155-7 at 38. In January 2009, Sterling had 61 empty accounts due to Sterling’s unfulfilled orders, with 30 of those empty for 120 days or more. See docket no. 155, Ex. 5.

Amid all her evidence and argument, Labaty fails to present evidence to support how Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, or Sterling Administrative Services had any duty to disclose information to her under Texas law. Sterling Trust, through signing the Custodial Agreement with Labaty, did potentially have a “duty to disclose” information about their investigation, but not’these Defendants.

Labaty argues Maxwell, Kelley, 'and Sterling Trust knew of Superior’s fraud based on a meeting attended by Maxwell and others on or about April 20, 2009. Labaty points to testimony by Click that Maxwell called an impromptu meeting about Superior in April 2009 that Click attended with Kelley, Jeff Thompson, Charles Ives, Anthony Carl, and others that led to an investigation by Hope Gonzales. Docket no. 160 at 6-7. Labaty argues this meeting led to a “do-not-process” order that made its way to McVan, who also testified that there was'a meeting of higher-ups, Docket no. 160 Ex. 7 at 42, and led to directives to Gonzales, Click, and others about investigating Superior, Docket no. 160 Ex. 8 at 29-31. She supports her argument that the meeting was about Superior with an email between Sands and Hope Gonzales’ staff reporting on the unfulfilled accounts. See docket no. 160 Ex. 9. This is apparently the only email of its type between Sands and anyone at Sterling Trust.

Labaty has presented enough evidence to create a genuine issue of material fact regarding the subject-matter of the meeting on or about April 20, 2009. Taking all disputes in the light most favorable to Labaty, the meeting on or about April. 20, 2009 was about Superior and led to an investigation and perhaps a do-not-process order that was ultimately lifted before Labaty’s funds were transferred from Vanguard to Sterling and then Sterling to Superior later in April 2009.

But this fact issue is not “material” to the outcome of these summary judgment motions for any defendant, except Sterling Trust’s successor in interest for liabilities for this alleged fraud. See Johnston v. City of Houston, Tex,, 14 F.3d 1056, 1060 (5th Cir.1994) (“the record taken as a whole could ... lead a rational trier of fact” to conclude Sterling had undergone some “investigation” before the contract was consummated).

Labaty, unlike some other Superior fraud victims, dealt only with Superior. Sterling representatives made no verbal representations to her before she completed signing the Custodial Agreement on April 18, 2009. Docket no. 137 Ex. 1 at 73, 81. Superior employees Van Ausdall and Acosta explained to her the process for opening an SDIRA -with Sterling Trust without Sterling Trust’s involvement except having the agreement available on their website. Id. at 62-65. Labaty admits she never communicated with Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, or Sterling Administrative Services.

Thus, even with the disputed fact issue about the April 2009 meeting’s subject-matter and directives, Labaty cannot establish fraud by nondisclosure against anyone other than Sterling Trust’s successor-in-interest because she has not established a duty to disclose under Texas law through either a fiduciary or other special relationship, or any other manner a duty to disclose can be created. LVI Facility Servs., Inc. v. Watson Rd. Holding Corp., No. A-12-CV-672-LY, 2013 WL 5519588, at *15 (W.D.Tex. Oct. 1, 2013). Labaty argues, “Here, Maxwell, Kelley and -Sterling should be held to a fiduciary’s standard because they represented themselves to Labaty as a fiduciary in order to induce her into signing their contract.” Docket no. 160 at 9. This argument is referring to a “traditional IRA Transfer Request Form” Labaty signed on April 15, 2009, and a Sterling Trust representative signed on April 20, 2009, that would transfer her funds fromVanguard to Sterling, which reads in Section IV, “This transfer of assets is to be executed from fiduciary to fiduciary in such a manner that will not place [Labaty] in actual or constructive receipt of all or any part of [her] assets,” Docket no. 155 Ex. 24. Labaty argues “Kelley, Maxwell, Thompson and Sterling, knew this language was false and that Sterling Trust Company was not a fiduciary yet they willfully intended Lab.aty to rely upon the fraudulent representation.” Docket no. 160 at 11.

First, again Labaty has not connected this form directly to Maxwell or Kelley’s directions. Second, in a later statement apparently tó show Sterling had made some “representations” to try to support her affirmative fraud arguments, Labaty admits, “It is undisputed that Sterling Trust Company, under Texas and Federal Law, is not a fiduciary.” Docket no. 160 at 11 n. 29. Neither the individuals nor Sterling Trust or Equity Trust owed fiduciary duties to Labaty. (See also .Securities Exchange Commission, “Investor Alert: Self-Directed IRAs and the' Risk of Fraud,” September 2011, http://www.sec.gov/ investor/alerts/sdira.pdf); see also Lamm v. State St. Bank & Trust, 749 F.3d 938, 947 (11th Cir.2014) (holding an IRA custodian has no duty to monitor assets purchased or any other duties not listed in the custodial agreement under Florida law; collecting cases from other states); Holtz v. J.J.B. Hilliard W.L. Lyons, 185 F.3d 732, 743 (7th Cir.1999) (holding an IRA custodian does not have duties beyond those in the contract because the Seventh Circuit did “not feel compelled to create a new duty to protect those investors .. who have emphatically stated by not choosing to cede control of their accounts that they do not desire such protections.”).

Labaty also appears to argue the duty to disclose stems from “new information” that'made previous “representations misleading or untrue.” See Lesikar, 33 S.W.3d at 298-99. Labaty argues Kelley and Maxwell were aware the Custodial Agreement said Sterling had made “no investigation” and, “When the account agreement was returned to Sterling with Superior Gold listed as a representative, there was new information that Kelley, Maxwell, Thompson and Sterling knew of that made the previously generic statement” about not having done an investigation into the accountholder’s investment “untrue.” Docket no. 160 at 9. Again, there is no evidence Kelley and Maxwell had anything to do with any of Sterling Trust’s actions in this regard, aside from peyhaps general oversight and the ability to direct employees, which is not enough to establish a duty to ’ disclose., Sterling Trust was the signatory to the Custodial Agreement making representations to La-baty, not Kelley or Maxwell. There is no basis in Texas law for Maxwell and Kelley to have had a duty to disclose information to Labaty. Therefoye, her fraud by. nondisclosure claims against Kelley and Maxwell fail.

As for Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services, Labaty argues Dea and the Desiches, and through them Equity Trust, would have learned of Sterling Trust’s problem with unfulfilled Superior accounts when performing due diligence and as part of integration in the lead up to Equity Trust’s purchase of Sterling Trust beginning in October 2008. Docket no. 155 Ex. 23. The due diligence process was ongoing and became more serious in early 2009, when Project Delta started. Docket no. 155-25. Project Delta’s due diligence checklist listed precious metals accounts and unfulfilled accounts as items to -be researched, and discussed. Docket no, 155 Ex. 25. Dea, Jeffrey Desich, Kelley, and other individual defendants were involved in the due diligence process with some employees, like Carl and Thompson, who had knowledge of Superior’s issue delivering gold to SDIRA accountholders. Docket no. 155 Ex. 11 and 25. She also argues they would have learned about the April meeting that led to Hope Gonzales’ investigation and the rescinded do-not-process order.

First, like Kelley and Maxwell, there is no competent summary judgment evidence that Equity Trust, Dea, or the Desiches ever made representations to La-baty before she made her investment. La-baty had never heard of these individuals or Equity when she invested in Superior, let alone communicated with them in any way. Second, much like Kelley and Maxwell, Dea, Jeffrey Desich, Richard' Desich, Equity Trust, and Sterling Administrative Services had no duty to disclose information to Labaty so any fraud by nondisclosure claim against them fails. They had no fiduciary relationship, made no representations that needed correcting after new information emerged, and no had other special relationship at or around the time Labaty made her investment. Arguably with “new information” after the do-not-process order decision in. July 2009, Dea, Jeffrey Desich, Richard Desich, Equity Trust,’ and Sterling Administrative Services might have had a duty to disclose this information to Labaty. Though the Court is dubious of such an argument, even assuming its validity in creating a duty, Labaty’s claims still fail on the fifth and sixth elements of a fraud by nondisclosure claim: (1) there is no evidence Equity withheld that information with the intent to have Labaty rely upon it in some, way, and (2) withholding the information in breach of the duty did not cause Labaty’s injury, as her investment had long since occurred and been lost.

As for the “fraudulent statement” on page 9 of the Custodial Agreement, all Defendants argue that it was Labaty, not Sterling Trust, that made the representation. Though it is literally correct that Labaty is making the statement on page 9 that Sterling Trust had “not made and will not make any recommendation or investigation with respect to my Representative,” it is absurd to conclude that, therefore, Sterling Trust did not represent that it had “not made and will not make any recommendation or investigation with respect to my Representative.” Labaty would not have just offered that statement; it was either expressly represented to her that Sterling Trust had not made an investigation when she received the document, or impliedly represented to her that Sterling Trust had not undertaken any investigation.

Equity Trust argues that other provisions in the Custodial Agreement demonstrate that Sterling had disclaimed all responsibility and Labaty had taken all responsibility for researching and directing her investments. See docket no. 143-2 at 5 and 10 ¶2. Kelley and Maxwell argue the statement on page 9 regarding investigation of the Representative was only in the contract to provide Sterling. -Trust a defense “in the event that an account holder alleged inducement to choose a particular account representative.” Docket no. 170 at 4.

None, of those provisions, or Kelley and Maxwell’s stated purpose for the statement, overcome the fact- that there is a fact issue about whether. Sterling Trust knew that its express or implied representation that it “had not.or would not undertake any investigation of the Representative” was false. In the alternative, if the representation was not knowingly false at the time, when page 9 of the Custodial Agreement was returned reflecting Superi- or as the Representative, a duty to disclose arose as Sterling Trust now had “new information” that made its previous representation false or misleading. This is especially true given Thompson .did not sign the Custodial Agreement on behalf of Sterling Trust until April 29, 2009, two- weeks after Labaty signed indicating Superior as a Representative. Sterling. Trust might have had a duty to correct that representation. And if it had corrected the “no, investigation” representation, it might have stopped Labaty’s ill-fated investment with Superior from ever occurring. See Docket no. 160 ex. 15 Labaty Affidavit. Either way, Labaty’s affidavit creates a fact issue about whether she relied on the statement and the causation elements of the . fraud claims. Therefore, the claims survive as to Sterling Trust Company. :

But none of this changes the fact that Kelley, Maxwell, Dea, Jeffrey Desich^ Richard Desich, Equity Trust, and Sterling Administrative Services never made representations to Labaty or had a duty to disclose information about an investigation of Superior to her under Texas law. Labaty’s claims of fraud and fraud by nondisclosure against Kelley, Maxwell, Dea, Richard Desich, and Jeffrey Desich, all fail because there is no issue of material fact that any of the individual Defendants made any representations to Labaty before or immediately after she invested with Superior and none of the moving Defendants had a duty to disclose information they may have known about Superior as a matter of law. The fraud and fraud by nondisclosure claims against Equity Trust and Sterling Administrative Services, LLP also fail, but the claims survive insofar as they are stated against these two entities in their. potential capacity as successor to Sterling Trust’s liability for fraud on Labaty.

b. Statute of Limitations Arguments

Kelley and Maxwell argue that they should be granted summary judgment on four of Labaty’s claims because the statute of limitations expired before Labaty filed this lawsuit on February 22, 2013. The four claims are: (1) conversion, (2) negligence, (3) negligent misrepresentation, and (4) violations of the Texas Deceptive Trade Practices Act (DTPA). Docket no. 138. Kelley, Maxwell, Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services argue all of the causes of action stated against them are barred by limitations. Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services were added to this lawsuit by the second amended complaint on November 21, 2013. Docket no. 143. All Defendants argue the relevant date for when the causes of action accrued is April 15, 2009, as it is when Labaty contacted Superior and opened her Sterling account, directing the funds be transferred to Superior. Labaty argues the relevant date is April 23, 2009, when Sterling transferred the funds to Superior, or September 30, 2009, when she lodged her complaint with the California attorney general. Labaty brought this suit more three years later regardless of the exact date the causes of action accrued, which Defendants argue is after the relevant statutes of limitation expired.

Labaty argues “fraudulent concealment” by Kelley, Maxwell, Sterling Trust, Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services tolled the statute of limitations. Specifically, Labaty argues Kelley and Maxwell knew about Sands and Superior’s fraud and participated in it by “helping to cover up and conceal the fraud.” Docket no. 160 at 13. Labaty also argues that Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services “purposefully with[e]ld information in order to keep Labaty from discovering her causes of action against” all the defendants in this case. Id. (citing nothing in the record); docket no. 155 at 13 (same).

Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court sitting in diversity applies the substantive law of the state in which it sits. See Cates v. Sears, Roebuck & Co., 928 F.2d 679, 687 (5th Cir.1991). “Whether a particular provision is substantive or procedural for Erie purposes is determined by looking to the ‘twin aims’ of the Erie doctrine: the discouragement of forum shopping and the avoidance of the inequitable administration of the laws.” Herbert v. Wal-Mart Stores, 911 F.2d 1044, 1047 (5th Cir.1990). Statutes of limitation are substantive for purposes of the Erie doctrine. Guaranty Trust v. York, 326 U.S. 99, 110, 65. S.Ct. 1464, 89 L.Ed. 2079 (1945). Additionally, “[l]ike the statute of limitations itself, rules- that are an ‘integral part of the statute of-limitations,’ such as tolling and equitable es-toppel, are treated as substantive for purposes of the Erie doctrine.’ ” Hollander v. Brown, 457 F.3d 688, 694 (7th Cir.2006) (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 751-53, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980)); Albano v. Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir.2011) (“Federal courts must abide by a state’s tolling rules, which are integrally related to statutes of limitations.”); State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1228 (10th Cir.2008) (following Colorado’s tolling rules in a diversity action because “they are an integral part of several policies served by the statute of limitations”); see Stolz v. State Farm Fire & Cas. Co., 2013 WL 3168176, at *2 (S.D.Miss. June 20, 2013) (applying Mississippi equitable tolling statute as opposed to federal equitable tolling common law to a defendant’s limitations defense without discussion of whether tolling is substantive or procedural).

The four Texas claims Kelley and Maxwell argue are barred limitations have two-year statutes of limitations. See Tex. Civ. Prac. & Rem.Code § 16.003(a) (setting two-year statute of limitations for conversion); Tex. Bus. & Comm.Code § 17.565 (setting two-year statute of limitations for DTPA claims); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex.1999) (citing § 16.003(a) for establishing a two-year statute of limitations in a negligent property injury claim); Cornerstones Mun. Util. Dist. v. Monsanto Co., 889 S.W.2d 570, 575 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (negligence); Texas American Corp. v. Woodbridge Joint Venture, 809 S.W.2d 299, 302 (Tex.App.-Fort Worth 1991, writ denied) (negligent misrepresentation). The claims Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services argue are barred have two- or four-year statutes of limitations. The conversion, negligence, and DTPA claims have two-year limitations periods under Texas law. The state common-law fraud claims have four-year statutes of limitations in Texas. Tex. Civ. Prac. & Rem. Code § 16.004 (establishing a four-year statute of limitations for fraud claims in Texas). And federal law provides a four-year statute of limitations for RICO claims. See Agency Holding Corp. v. Malley-Duff and Associates, 483 U.S. 143, 156, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987) (“[T]he federal policies that lie behind RICO and the practicalities of RICO litigation make the selection of the 4-year statute of limitations ... the most appropriate limitations period for RICO actions;”)..

Each cause of action in this case has its own differently phrased rule for when a cause of action accrues and the statute of limitations begins to run. See docket no. 138 at 5-8 (discussing various rules for accrual). Ultimately, the state causes of action accrue when the plaintiff knew or should have known of her injury. See, e.g., Gonzales v. Sw. Olshan Found. Repair Co., 400 S.W.3d 52, 57-58 (Tex.2013) (DTPA suits “must be commenced ... within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice”); Childs v. Haussecker, 974 S.W.2d 31, 37 (Tex.1998) (“[A negligence] cause of action does not accrue until a plaintiff knows or, through the exercise of reasonable care and diligence, should have known of the wrongful act and resulting injury.”). “For the claim to accrue, the plaintiff need not know the specific nature of each wrongful act that may have caused his injury.” Baxter, 182 S.W.3d at 463 (citing Prostok v. Browning, 112 S.W.3d 876, 896 (Tex.App.-Dallas 2003), aff'd in part, rev’d in part, on other grounds, 165 S.W.3d 336 (Tex.2005)).

Federal RICO causes of action also accrue “when a plaintiff knew or should have known of [her] injury.” Rotella v. Wood, 528 U.S. 549, 553-59, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (stating the Fifth Circuit has adopted this discovery rule based on injury as well); contrast with Fujisawa Pharm. Co. v. Kapoor, 115 F.3d 1332, 1336 (7th Cir.1997) (“In most fields [of federal law the discovery rule] .refers to- discovery just of the plaintiffs ipjury,.... In the securities field it has a broader, a more generous meaning”).

The Court,' for the sake of simplicity and caution, assumes the date the statute of limitations for all claims against all Defendants began running is September 30, 2009, when Labaty filed her complaint with the three attorneys general", including California, because she likely “knew” of her injury by that date.

The United States Supreme Court has stated:

We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights.

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (internal citations and footnotes omitted). Various equitable doctrines could serve to toll the statutes of limitations in the Fifth Circuit and Texas; Labaty invokes only fraudulent concealment here. See docket nos. 155 and 160.

i. Fraudulent Concealment Tolling Texas Statutes of Limitations

Fraudulent concealment is an equitable doctrine that requires the court to perform a fact-specific analysis. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex.2011). Fraudulent concealment tolls limitations “because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.” S.V v. R.V., 933 S.W.2d 1, 6 (Tex.1996). “Fraudulent concealment may be shown by circumstantial evidence as well as direct evidence.” Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex.1999).

To establish fraudulent concealment in Texas a plaintiff must show the defendant: (1) “actually knew a wrong occurred,” (2) “had a fixed purpose to conceal the wrong,” and (3) “did conceal the wrong.” Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex.2011) (quoting Shah v. Moss, 67 S.W.3d 836, 841 (Tex.2001). A plaintiff must also establish that they reasonably relied on the deception. Krot v. Fid. Nat’l Title Co., No. 03-14-00250-CV, 2014 WL 7464084, at *4 (Tex.App.-Austin Dec. 31, 2014, no pet.) (citing BP Am., 342 S.W.3d at 67-69)). “However, fraudulent concealment only tolls the statute of limitations until ‘the fraud is discovered or could have been discovered with reasonable- diligence.’ ” Ross, 356 S.W.3d 924, 927 (quoting BP Am., 342 S.W.3d at 67). .

‘Knowing that oné‘has a cause of action does not necessitate knowing “the exact identity of the wrongdoer,” Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex.1998), or awareness of all thé potential defendants. Baxter v. Gardere Wynne Sewell LLP, 182 S.W.3d 460, 464 (Tex.App.-Dallas 2006, pet. denied). Rathér, knowledge of a cause of action only requires knowing that one has suffered an “injury and that it was likely caused by the ‘wrongful acts of another.” Id. “Once these requirements are satisfied, ’‘limitations commences, even if the plaintiff does not know the exact identity of the wrongdoer.’ ” Baxter, 182 S.W.3d at 463 (citing Childs, 974 S.W.2d at 40).

In Baxter, the court held that the statute of limitations had expired, precluding fraud claims against the defendant despite the defendant having taken action to conceal its identity and involvement in the fraud. 182 S.W.3d at 464. The defendant was a law firm that represented an investment company. Id. at 461. The investment company mismanaged its funds in violation of the Texas Securities Act. Id. When the company failed in November 1998, the SEC appointed a special master to take over and manage the company. Id. at 462. At that time, the SEC sent a letter to the plaintiffs, who had invested their money with the company, notifying them of the SEC’s actions. Id. Upon receiving the letter, the plaintiffs knew of their injury -from the fraud. Id. at 464. The court held that the statute of limitations began to run the day of . the SEC letter against a defendant who took action to conceal its role in the fraud from the SEC and- potential investors; ■ fraudulent concealment did not toll the-statute’s running. Id. ■ - ,

, Similarly, in Krot v. Fidelity National Title Company, plaintiffs in a suit for fraud over a failed real estate investment named the title company and escrow agent as a defendant seven years after the cause of action accrued. 2014 WL 7464084, at *1 (Tex.App.-Austin 2014, no pet.). The court held fraudulent concealment did not apply because the plaintiffs knew the title company’s “identity and role in closing the land transaction,” and if they did not know the company’s role as escrow agent “those circumstances could have been discovered with the exercise of reasonable diligence.” Id. at *4; see also Burns v. Thomas, 790 S.W.2d 1, 2 (Tex.App.-Amarillo 1988) rev’d on other grounds by Burns v. Thomas, 786 S.W.2d 266 (Tex.1990) (“The court of appeals in Otis v. Scientific Atlanta, Inc., 612 S.W.2d 665, 667 (Tex.App.-Dallas 1981, writ refd n.r.e.), determined specifically that concealment of the identity of a party does not toll .the running of the statute of limitations when the cause of action is not concealed.”); Griffith v. Shannon, 284 S.W. 598, 600 (Tex.App.-Austin 1926, writ dism’d) (“Fraud and concealment, in order to prevent the running of the statute, must relate to concealment of the cause of action and not to the concealment of the parties.”).

Labaty’s argument for fraudulent concealment is virtually'identical for Kelley and Maxwell, Dea, the Desiches, Equity Trust, and Sterling Administrative Services, and does not differentiate between state and federal law. It also tracks her argument for fraud .almost exactly. Labaty argues “Sterling and [Kelley and Maxwell] knew of the Superior Gold Group problem, and the extent of the problem, in late 2008,” citing' -to Margaret McVan’s deposition, where she stated Jeff Thompson knew about the. Superior problem. Docket no. 155 at-13 (citing 155-7 at 38). But, again, Labaty -never -connects knowledge in that timeframe to Kelley, Maxwell, Dea, the Desiches, Equity Trust, or Sterling Administrative Services.

Labaty next points to the alleged meeting on or before April 21, 2009, attended by Kelley, Maxwell, Thompson, Click, Curl, and Gonzales, to show Kelley, Maxwell, and through them Dea, Jeffrey Desich, Richard Desich, Equity Trust, and Sterling Administrative Services, knew Superior was committing fraud by not delivering gold orders but chose to conceal the fraud from potential investors by instituting and then lifting a do-not-process order. Labaty cites the due diligence and integration teams as circumstantial evidence leading to the inference that Dea, Jeffrey Desich, Richard Desich,