United States District Court, N.D. Texas, Dallas Division
JAMES L. ROSS, Plaintiff,
THE CITY OF DALLAS, TEXAS, Defendant.
MEMORANDUM OPINION AND ORDER
LINDSAY, UNITED STATES DISTRICT JUDGE.
the court are Defendant City of Dallas' Motion to Dismiss
Plaintiff's Complaint Pursuant to Rule 9(b), Rule
12(b)(6), and Res Judicata (Doc. 6), filed April 27, 2017;
and Defendant City of Dallas' Motion to Dismiss
Plaintiff's Second Amended Complaint Pursuant to Rule
9(b), Rule 12(b)(6), and Res Judicata (Doc. 10), filed May
31, 2017. After careful consideration of the motions,
pleadings, and applicable law, the court denies as
moot Defendant City of Dallas' Motion to Dismiss
Plaintiff's Complaint Pursuant to Rule 9(b), Rule
12(b)(6), and Res Judicata (Doc. 6); and denies
without prejudice Defendant City of Dallas'
Motion to Dismiss Plaintiff's Second Amended Complaint
Pursuant to Rule 9(b), Rule 12(b)(6), and Res Judicata (Doc.
10). The court, however, will allow an amended pleading to be
Factual and Procedural Background
February 27, 2017, Plaintiff James L. Ross
(“Plaintiff” or “Ross”) filed this
action against the City of Dallas, Texas
(“Defendant” or the “City”).
Plaintiff's suit arises out of a tax foreclosure lawsuit,
in which property located at 3811 Wendelkin Street, Dallas,
Texas (the “Property”), was the subject of a
lawsuit for delinquent taxes filed by the City, Dallas
Independent School District, Dallas County School
Equalization Fund, Parkland Hospital District, and Dallas
County Community College District, in which a judgment of
$26, 978.10 with costs of $1, 358 was entered on December 13,
2010. Sec. Am. Compl. ¶ 11.
alleges that he was not a party to the tax foreclosure
lawsuit, but that he resided in the Property from 1996 until
he was evicted in 2015. Sec. Am. Compl. ¶ 12. Ross
alleges that he made various repairs and improvements to the
Property and that after the tax foreclosure lawsuit was
filed, he filed a lien in the public records of Dallas County
for work done on the Property. Sec. Am. Compl. ¶¶
12, 13. Ross alleges that the Property was
“struck” to the City for $67, 820, which
reflected the judgment of $26, 978.10 with costs of $1, 358
and his $39, 483.90 valid lien on the Property. Sec. Am.
Compl. ¶ 16. Ross alleges that on February 26, 2015, the
City deeded the Property to James Bell (“Bell”)
for $12, 750 in a competitive bid process. Sec. Am. Compl.
¶¶ 8, 9. Ross alleges that agents of the City
failed to give him notice of the sale of the Property to
allow him to recover his investment in the Poperty and that
the transaction between the City and Bell “presents
major questions concerning civil fraud and criminal
violations in a transaction for a property that struck for
$67, 820 to Defendant City of Dallas . . . but was conveyed
for 18% of its represented cost in an area of Southern
Dallas, with the Downtown Dallas Skyline as backdrop.”
Sec. Am. Compl. ¶ 4. Ross brings claims pursuant to 42
U.S.C. § 1983 (“§ 1983”) for alleged
due process violations of the 14th Amendment to the United
States Constitution, and a claim for violation of 18 U.S.C.
§ 1961 (“§ 1961”). Ross's Second
Amended Complaint (“Amended Complaint”) also
states the following with respect to agency and respondeat
7. Whenever it is alleged in this Complaint that any
Defendant did any act or thing, it is meant that the
Defendant's agents, servants, employees, parent agents,
ostensible agents, agents by estoppel, employees, and/or
representatives did such act or thing, and at the time any
such act or thing was done it was done with the
Defendant's authorization or was done in the normal or
routine course of agency or employment with Defendant.
Sec. Am. Compl. 2, ¶ 7.
City contends that the Amended Complaint should be dismissed
because Ross fails to state a plausible due process claim.
The City further argues that Ross's allegations of a
violation of § 1961 are not sufficiently pleaded because
Federal Rule of Civil Procedure Rule 9(b) (“Rule
9(b)”) requires a heightened pleading. Alternatively,
the City argues that Ross's § 1983 claim should be
barred by the doctrine of res judicata.
to the current action, on March 21, 2012, Ross, as a pro se
plaintiff, filed his Original Petition against the City in
the 160th Judicial District Court, Dallas County, Texas
(herein after referred to as “Ross I”).
He alleged a trespass to try title action as it relates to
the Property. Def.'s Mot. to Dismiss 15. On April 10,
2012, the City filed a plea to the jurisdiction in Ross
I and requested that the state district court dismiss
Ross's claims with prejudice because Ross failed to
establish a waiver of the City's governmental immunity.
Id. On May 31, 2013, the state district court
granted the City's plea to the jurisdiction and dismissed
Ross I with prejudice.
Rule 12(b)(6) - Failure to State a Claim
defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Reliable
Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.
2008); Guidry v. American Pub. Life Ins. Co., 512
F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility
test “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations omitted). While a complaint need not
contain detailed factual allegations, it must set forth
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citation
omitted). The “[f]actual allegations of [a complaint]
must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Id. (quotation marks, citations, and
footnote omitted). When the allegations of the pleading do
not allow the court to infer more than the mere possibility
of wrongdoing, they fall short of showing that the pleader is
entitled to relief. Iqbal, 556 U.S. at 679.
reviewing a Rule 12(b)(6) motion, the court must accept all
well-pleaded facts in the complaint as true and view them in
the light most favorable to the plaintiff. Sonnier v.
State Farm Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th
Cir. 2007); Martin K. Eby Constr. Co. v. Dallas Area
Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
In ruling on such a motion, the court cannot look beyond the
pleadings. Id.; Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999). The pleadings include the
complaint and any documents attached to it. Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th
Cir. 2000). Likewise, “‘[d]ocuments that a
defendant attaches to a motion to dismiss are considered part
of the pleadings if they are referred to in the
plaintiff's complaint and are central to [the
plaintiff's] claims.'” Id. (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir. 1993)). In this regard, a document
that is part of the record but not referred to in a
plaintiff's complaint and not attached to a
motion to dismiss may not be considered by the court in
ruling on a 12(b)(6) motion. Gines v. D.R. Horton,
Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)
(citation omitted). Further, it is well-established and
‘“clearly proper in deciding a 12(b)(6) motion
[that a court may] take judicial notice of matters of public
record.”' Funk v. Stryker Corp., 631 F.3d
777, 783 (5th Cir. 2011) (quoting Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing
Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir.
ultimate question in a Rule 12(b)(6) motion is whether the
complaint states a valid claim when it is viewed in the light
most favorable to the plaintiff. Great Plains Trust Co.
v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th
Cir. 2002). While well-pleaded facts of a complaint are to be
accepted as true, legal conclusions are not “entitled
to the assumption of truth.” Iqbal, 556 U.S.
at 679 (citation omitted). Further, a court is not to strain
to find inferences favorable to the plaintiff and is not to
accept conclusory allegations, unwarranted deductions, or
legal conclusions. R2 Invs. LDC v. Phillips, 401
F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court
does not evaluate the plaintiff's likelihood of success;
instead, it only determines whether the plaintiff has pleaded
a legally cognizable claim. United States ex rel. Riley
v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376
(5th Cir. 2004). Stated another way, when a court deals with
a Rule 12(b)(6) motion, its task is to test the sufficiency
of the allegations contained in the pleadings to determine
whether they are adequate enough to state a claim upon which
relief can be granted. Mann v. Adams Realty Co., 556
F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep.
Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996),
rev'd on other grounds, 113 F.3d 1412 (5th Cir.
1997) (en banc). Accordingly, denial of a 12(b)(6) motion has
no bearing on whether a plaintiff ultimately establishes the
necessary proof to prevail on a claim that withstands a
12(b)(6) challenge. Adams, 556 F.2d at 293.