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Ross v. City of Dallas

United States District Court, N.D. Texas, Dallas Division

March 30, 2018

JAMES L. ROSS, Plaintiff,
v.
THE CITY OF DALLAS, TEXAS, Defendant.

          MEMORANDUM OPINION AND ORDER

          SAM A. LINDSAY, UNITED STATES DISTRICT JUDGE.

         Before 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 filed.

         I. Factual and Procedural Background

         On 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.

         Ross 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”).[1] Ross's Second Amended Complaint (“Amended Complaint”) also states the following with respect to agency and respondeat superior:

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.

         The 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.[2]

         Prior 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.

         II. Rule 12(b)(6) - Failure to State a Claim

         To 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.

         In 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. 1994)).

         The 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.

         III. ...


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