The Business Court has ruled that a petition under Rule 202 for authority to take a presuit deposition is an “action” for purposes of the jurisdiction of the court.
In re Radical Hoops, Ltd. and Radical Mavericks, LLC (2026 Tex. Bus. 55; August 5, 2026) is the next phase of the litigation between the Dallas Mavericks and the Dallas Mavericks over the American Airlines Center in Dallas. Radical Hoops is owned by Mark Cuban, former owner of the Mavs. Radical Hoops alleges that Arena Development Intermediate (ADI) “is or may be interfering with Radical Hoops’ asserted right to participate in a future arena development for the Dallas Mavericks professional basketball team.” As part of Cuban’s sale of the Mavs to the Adelson family, the parties agreed to a partnership whereby Cuban could participate in “certain business opportunities” that he anticipated would include a destination casino.
In 2024, the Adelson family began pursuing a new arena to replce the American Airlines Center on the site of the derelict Valley View Mall. In June 2026, the ADI concluded an option agreement with the mall’s owner to buy part of the property. The Adelsons didn’t tell Cuban about it, but formed ADI to front the deal. Cuban thus sought Rule 202 discovery from a district court to find out what the Adelsons are up to. The Adelsons removed to the Business Court. Cuban then sought emergency relief from the Business Court, asking the court to remand the Rule 202 proceeding to district court.
In an opinion by Judge Whitehill, the court denied emergency relief. The issue was whether the Business Court had jurisdiction over a Rule 202 petition to take a pre-suit deposition filed in a district court. Cuban argued that a Rule 202 motion is not an “action” under § 25A.006(d) because the lawsuit hasn’t been filed yet (if there is one). Rule 202 permits a person to petition the court for an order authorizing the person to take deposition to “(i) perpetuate or obtain testimony for use in an anticipated suit or (ii) investigate a potential claim or suit.” Observing that none of Cuban’s cited authorities concerned a Rule 202 motion, the court turned to SCOTX’s decision in Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014), which held that “[a]lthough the word ‘suit’ can be ‘more general in its comprehension than the word ‘action,’ both terms refer to a judicial proceeding in which the parties claims for relief. (internal citations omitted). Thus, under the common definition, ‘[a]n action is a judicial proceeding, either in law or in equity, to obtain certain relief at the hands of the court” (citation omitted). Consequently, as Judge Whitehill reasoned, “a Rule 202 proceeding is an ‘action’ because petitioners are seeking to enforce their claimed right to conduct pre-suit discovery” (citations omitted).
The court next turned to whether Cuban’s request for remand was within the jurisdiction of the Business Court. ADI’s notice of removal pleaded two qualified transactions that far exceed the $5 million jurisdictional threshold of the court. So, given that the Business Court may “grant any relief that may be granted by a district court” (§ 25A004(a)(3)), it can, like a district court, grant the relief of requested by the Rule 202 petition. The court left the ripeness issue to the Rule 202 petition hearing.
