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Rollerson v. Port Freeport

United States District Court, S.D. Texas, Galveston Division

September 13, 2019




         Plaintiff Manning Rollerson ("Rollerson") filed this suit against the Brazos River Harbor Navigation District of Brazoria County n/k/a Port Freeport (the "Port") and the United States Army Corps of Engineers (the "Army Corps"). .

         Pending before me is the Port's Motion to Dismiss, which seeks to dismiss the claim brought against the Port under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. ("Title VI").[1] See Dkt. 20. United States District Judge George C. Hanks, Jr. referred the motion to me for report and recommendation See Dkt. 43. After reviewing the record, analyzing the law, and entertaining oral argument, I RECOMMEND the Port's Motion to Dismiss be GRANTED.


         Rollerson resides in Freeport, Texas and purportedly owns an interest in real property at 537 E. 2nd Street, Freeport, Texas 77542-2401 (the "Property"). The Property is located in the City of Freeport ("Freeport") in an area known as the East End. Rollerson alleges historic prejudice in Freeport pushed racial minorities to settle in the East End. Today, the East End remains a minority-majority neighborhood. The 2010 census numbers identify roughly 87 percent of East End residents as minorities-predominately Hispanic (71 percent) or African American (15 percent).

         In recent years, the Port began a phased expansion of its facilities to complement the Freeport Harbor Channel Improvement Project, an ongoing project to deepen the harbor channel and jetty. The Port is the non-federal sponsor for the Freeport Harbor Channel Improvement Project and has been actively involved in the planning process, equally funding the project with the Army Corps. The Port is also undertaking several additional projects in the area surrounding the harbor channel. Based on its website and public presentations, the Port plans to construct a 1300-acre multi-modal facility, two multipurpose berths with 50-foot draft, and two 120-thousand foot transit sheds at the docks (the "Expansion Projects").

         To complete the Expansion Projects, the Port is acquiring properties in the East End. Rollerson alleges that in the last several years the Port has threatened property owners in the community with condemnation. He claims that the Port makes below-market offers to property owners, including himself, and does not readily provide appraisals to residents. Rollerson alleges that as a result of the Port's property acquisitions and ongoing threat of eminent domain, the value of his Property has diminished.

         In the Second Amended Complaint, Rollerson brings only a Title VI claim against the Port.[3] Rollerson alleges that he "is the target of intentional racial discrimination as the Port engages in the illegal land acquisition practices discussed above." Dkt. 36 at 48. The Port has filed a Motion to Dismiss, arguing that Rollerson's Title VI claim should be dismissed because (i) Rollerson lacks standing to assert a Title VI claim; and (ii) Rollerson has not stated a claim upon which relief can be granted. See Dkt. 20.


         A. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of a complaint based on lack of subject matter jurisdiction. Because "[f]ederal courts are courts of limited jurisdiction[, t]hey possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). A district court is required to dismiss a case when it lacks the constitutional or statutory power to adjudicate the matter. See Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).

         "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) jurisdictional attack before addressing any attack on the merits." Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)). Challenges to subject matter jurisdiction under Rule 12(b)(1) may be "facial" or "factual." Facial attacks, contest the sufficiency of the pleadings, and the trial court must accept the complaint's allegations as true. See Ass'n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547, 553 (5th Cir. 2010). A factual attack is made when "the defendant submits affidavits, testimony, or other evidentiary materials." Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). The plaintiff bears the burden of proof in the Rule 12(b)(1) context, but a court should grant the motion "only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief." Ramming, 281 F.3d at 161 (citing Home Builders Ass'n of Miss., Inc., 143 F.3d at 1010).

         B. Rule 12(b)(6)

         A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This pleading standard does not require "detailed factual allegations, but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). Under Rule 12(b)(6), a party may "move for dismissal for a failure to state a claim upon which relief can be granted." Lemieux v. Am. Optical Corp., 712 Fed.Appx. 409, 412 (5th Cir. 2018) (internal quotation marks omitted). "The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true." Lowrey v. Tex. A&M Univ. Syst, 117 F.3d 242, 247 (5th Cir. 1997) (citation omitted).

         Dismissal is appropriate "when a plaintiff fails to allege sufficient facts that, taken as true, state a claim that is plausible on its face." Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011) (citation omitted). "Determining whether the plausibility standard has been met is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

         Although motions to dismiss under Rule 12(b)(6) are filed in many cases, the Fifth Circuit has repeatedly cautioned that such motions should be "viewed with disfavor and . . . rarely granted." Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (internal quotation marks and citation omitted).


         The Port asks that I dismiss the Second Amended Complaint due to a lack of subject matter jurisdiction, arguing that Rollerson lacks standing to bring his Title VI claim.[4] The Port claims that Rollerson's standing is deficient for several reasons:

(a) Plaintiff does not own or reside on the Property; (b) Plaintiff has neither received nor accepted any offer to sell any property to the Port or expressed any desire to do so; (c) Plaintiff has no right to pursue any private right of action against the Port under the [Uniform Relocation and Acquisition Policies Act of 1970 ("URA")]; (d) the URA does not apply to the Port because there is no causal relationship between the federal funds the Port receives and the activities about which Plaintiff complains; and ...

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