Massengill et al v. City of DeSoto

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TARROUNCE MASSENGILL AND §
LASHEA JOHNSON-MASSENGILL, §
PLAINTIFFS, §
§
v. § Civil Action No. 3:25-CV-189-E-BK
§
CITY OF DESOTO, TEXAS, §
DEFENDANT. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case has been referred to the
undersigned United States magistrate judge for pretrial management. Before the Court is
Defendant City of Desoto’s Motion to Dismiss Plaintiffs’ Second Amended Verified Complaint
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 27. As discussed here,
the motion should be GRANTED.
I. BACKGROUND
In July 2023, Plaintiffs Tarrounce Massengill and LaShea Johnson-Massengill
(collectively, “Plaintiffs”), filed their first suit in state court against Defendant, the City of
Desoto (“the City” or “Defendant”), arising from the City’s alleged failure to maintain a creek
near their home.1 Doc. 27-1 at 1-3. In that action, Plaintiffs asserted claims for negligence and
inverse condemnation under Article I, Section 17 of the Texas Constitution, based on the City’s
installation of stormwater drainage pipes, which Plaintiffs alleged caused flooding and erosion of
their property and resulted in unsafe living conditions. Doc. 27-1 at 2-3. In October 2024, the
1 Tarrounce Massengill and Lashea Johnson-Massengill v. City of DeSoto, Cause No. DC-23-
09534.
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state court dismissed Plaintiffs’ petition with prejudice pursuant to the City’s governmental
immunity. Doc. 27-3 at 1.
In January 2025, Plaintiffs, proceeding without the assistance of counsel, filed the instant
action in this Court. Doc. 3. In their Second Amended Complaint, Plaintiffs assert claims
against the City for negligence, gross negligence, nuisance, and inverse condemnation under the
Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 17 of
the Texas Constitution. Doc. 19 at 4-10. As in their prior action, Plaintiffs’ claims stem from
“creek-related deterioration,” which they allege has caused “structural and foundational damage
to [their] home.” Doc. 19 at 3-4. Plaintiffs further allege that they first observed the ongoing
erosion and structural instability of the creek in 2013 and reported those conditions to City
officials continuously after that time. Doc. 19 at 3. Plaintiffs contend that, espite providing
notice to Defendant for more than a decade, the City “failed to remedy the hazardous
conditions,” resulting in continued structural and foundational damage to their property. Doc. 19
at 3-4.
Referencing the prior state court action, Defendant moves to dismiss Plaintiffs’ present
suit pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing, among other things, that
Plaintiffs’ claims are barred by the doctrine of res judicata. Doc. 27 at 1, 5-9. Plaintiffs have
filed a response, and Defendant has filed a reply. Doc. 28; Doc. 30.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
A plaintiff fails to state a claim for relief under Rule 12(b)(6), when a complaint does not
contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). To overcome a Rule 12(b)(6) motion, a plaintiff’s
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complaint “must contain either direct allegations on every material point necessary to sustain a
recovery . . . or contain allegations from which an inference fairly may be drawn that evidence
on these material points will be introduced at trial.” Campbell v. City of San Antonio, 43 F.3d
973, 975 (5th Cir. 1995) (quotation omitted). Moreover, the complaint should not simply contain
conclusory allegations, but must be pled with a certain level of factual specificity. Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). A pleading that offers “labels
and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). While a court must accept the
complaint’s factual allegations as true, it is not bound to accept as true “a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555.
A court ruling on a Rule 12(b)(6) motion may rely on the complaint, documents properly
attached to the complaint or incorporated into the complaint by reference, and matters of which a
court may take judicial notice. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011). Courts may take judicial notice of the record in prior related proceedings. Davis
v. Bayless, 70 F.3d 367, 372 (5th Cir. 1995); Basic Cap. Mgmt., Inc. v. Dynex Cap., Inc., 976
F.3d 585, 589 (5th Cir. 2020).
B. Res Judicata
The doctrine of res judicata or claim preclusion “bars litigation of claims that either have
been litigated or could have been raised in an earlier suit.” Test Masters Ed. Servs., Inc. v. Singh,
428 F.3d 559, 571 (5th Cir. 2005). Generally, a party cannot premise a motion to dismiss under
Rule 12(b)(6) on the affirmative defense of res judicata. Moch v. East Baton Rouge Parish Sch.
Bd., 548 F.2d 594, 596 n. 3 (5th Cir. 1977). However, where the elements of res judicata are
apparent from the pleadings and matters of which the Court may take judicial notice, “dismissal
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under Rule 12(b)(6) is appropriate.” Basic Cap., 976 F.3d at 591 (cleaned up; quoting Kahn v.
Ripley, 772 F. App’x 141, 142 (5th Cir. 2019) (per curiam)); Lexxus Int’l, Inc. v. Loghry, 512 F.
Supp. 2d 647, 668-69 (N.D. Tex. 2007) (Lindsay, J.).
When a federal court is asked to give preclusive effect to a state court judgment, the court
applies state res judicata principles. Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir.
2000); See Tejas Motel, L.L.C. v. City of Mesquite by & through Bd. of Adjustment, 63 F.4th 323,
329, n.12 (5th Cir. 2023) (noting that “Texas law governs the preclusive effect of a judgment
from Texas state court”). Under Texas law, a party seeking to have an action dismissed based on
the doctrine of res judicata must show (1) a prior judgment on the merits by a court of competent
jurisdiction; (2) that the same parties, or those in privity with them, were involved in the prior
case; and (3) that the second action is based on the same claims that were raised or could have
been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).
III. ANALYSIS
Defendant argues that the claims asserted in Plaintiffs’ Second Amended Complaint are
barred by res judicata because: (1) the state court’s dismissal constitutes a final judgment on the
merits; (2) the parties in the state court action are the same as those in the present case; and (3)
the claims asserted in the instant action were either raised or could have been raised in the state
court action. Doc. 27 at 6-7.
Plaintiffs do not meaningfully contest that the first two elements are satisfied. See Doc.
28 at 2-5. In both the state court action and the present case, Plaintiffs—Tarrounce Massengill
and Lashea Johnson-Massengill—brought suit against the same defendant, the City of Desoto.2
2 Although Plaintiffs’ original complaint, Doc. 3, named only officials of the City of Desoto as
defendants, these individuals were later dismissed from the suit pursuant to Plaintiffs’ Second
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Compare, Doc. 27-1 at 1, with Doc. 19 at 2. Moreover, the Texas State Court issued a final
judgment on the merits by dismissing Plaintiffs’ claims with prejudice based on the City’s
governmental immunity. Doc. 27-3; see Tejas Motel, 63, F.4th at 332 (holding that a dismissal
for failure to “state a viable claim against an immune municipality” is an order “‘on the merits’
under Texas’ rules of claim preclusion.”); see also Carrasco v. City of Bryan, 515 F. App’x 325,
326 (5th Cir. 2013) (per curiam) (holding that a dismissal with prejudice on the basis of
governmental immunity constitutes a final judgment under Texas law). The sole issue is
therefore whether the claims asserted in this action were either raised or could have been raised
in Plaintiffs’ prior state court suit. Amstadt, 919 S.W.2d at 652.
Under Texas law, a “judgment in the first suit precludes a second action by the parties . . .
not only on matters actually litigated, but also on causes of action or defenses which arise out of
the same subject matter and which might have been litigated in the first suit.” Barr v. Resolution
Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 631 (Tex. 1992) (citation omitted)
(emphasis added). To determine whether a claim might have been raised in the first action,
Texas courts follow a “transactional approach,” under which “a final judgment on an action
extinguishes the right to bring suit on the same transaction, or series of connected transactions,
under which the action arose.” Dynex, 976 F.3d at 592 (quoting Barr, 837 S.W.2d at 631). This
determination “necessarily requires an examination of the factual basis of the claim or claims in
the prior litigation” and “an analysis of the factual matters that make up the gist of the
complaint.” Barr, 837 S.W.2d at 630. “Any cause of action which arises out of those same facts
should, if practicable, be litigated in the same lawsuit.” Id. (citations omitted)
Amended Complaint, which instead asserted claims against the City of Desoto itself, rather than
its employees. Doc. 19 at 2.
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Here, as in their state court action, Plaintiffs assert claims for inverse condemnation
under Article I, Section 17 of the Texas Constitution, and for common law negligence. Compare
Doc. 19 at 4-9, with Doc. 27-1 at 3-4. Plaintiffs also assert claims for gross negligence,
nuisance, and inverse condemnation under the Fifth and Fourteenth Amendments of the U.S.
Constitution, which were not explicitly asserted in the state court suit. Doc. 19 at 6-10.
Plaintiffs argue that their claims are not barred by the transactional test for two reasons: (1) they
assert new legal theories under federal law that could not have been raised in state court; and (2)
their claims are based on “new factual developments” that post-date the state suit. Doc. 28 at 2,
4. The Court addresses each of these arguments in turn.
A. Plaintiffs’ Fifth and Fourteenth Amendment Claims Could Have Been Raised in
State Court.
Plaintiffs argue that their inverse condemnation claims under the Fifth and Fourteenth
Amendments are not precluded by their earlier assertion of an inverse condemnation claim under
the Texas Constitution because the state court “did not—and could not—address federal claims.”
Doc. 28 at 3. In making this argument, Plaintiffs appear to advance two points: (1) that the state
court “lacked authority to adjudicate [their] federal takings claims”; and (2) that federal takings
claims require a different analysis than their claims arising under the Texas Constitution. Doc.
28 at 2-3. As explained below, both arguments are without merit.
It is well established that “[r]es judicata does not bar a claim if the court rendering
judgment in the initial suit lacked subject matter jurisdiction over the claim.” Piggly Wiggly
Clarksville, Inc. v. Interstate Brands Corp., 83 F. Supp. 2d 781, 788-90 (E.D. Tex. 2000)
(quoting Montgomery v. Blue Cross and Blue Shield of Texas, Inc., 923 S.W.2d 147, 150
(Tex.App.—Austin 1996, writ denied)). Accordingly, when a federal claim falls within the
exclusive jurisdiction of the federal courts, an earlier state court judgment cannot preclude a later
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federal action asserting that claim. See, e.g., In re Lease Oil Litig., 200 F.3d 317, 321 (5th Cir.
2000) (“Because federal antitrust claims are within the exclusive jurisdiction of the federal courts
. . . those claims could not have been litigated in [state court]”); In re Tusa-Expo Holdings, Inc.,
No. 8-45057, 2014 WL 6891295, at *3 (Bankr. N.D. Tex. Oct. 8, 2014) (holding that because
bankruptcy claims fall within the exclusive jurisdiction of federal courts, the principles of res
judicata did not bar a trustee from earlier state court action from pursing them in federal court).
In evaluating whether a state court may hear a federal claim, however, the “default assumption”
is that state courts enjoy concurrent jurisdiction over federal causes of action. Haywood v.
Drown, 556 U.S. 729, 735 (2009) (citing Tafflin v. Levitt, 493 U.S. 455, 458 (1990)). This
presumption may be rebutted only by “an explicit statutory directive,” “unmistakable implication
from legislative history,” or “by a clear incompatibility between state-court jurisdiction and
federal interests.” Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 478 (1981) (citations
omitted).
Although Plaintiffs contend that the state court lacked authority to adjudicate their Fifth
and Fourteenth Amendment takings claims, they identify no statute, legislative history, or other
authority suggesting that the presumption of concurrent jurisdiction does not apply to these
claims.3 See Doc. 28 at 2-3. On the contrary, both the United States Supreme Court and Texas
3 Plaintiffs cite Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S.
172 (1985) for the vague assertion that their Fifth and Fourteenth Amendment claims “were not
ripe for review in the state suit.” Doc. 28 at 3. In Williamson County, the United States Supreme
Court established the “state-litigation requirement,” which held that a plaintiff seeking to assert a
federal takings claim under the Fifth Amendment must first have unsuccessfully sought
compensation through available state procedures, including the state judicial process. Tejas, 63
F. 4th at 327 (citing Williamson Cnty., 473 U.S. at 186, 193). However, as Plaintiffs point out,
this requirement was later overruled in Knick v. Township of Scott, 588 U.S. 180, 185 (2019),
which held that a Fifth Amendment takings claim becomes ripe when the government takes
property without compensation. Because Plaintiffs filed their state court petition in 2023, four
years after Knick, the governing law made their federal takings claims immediately ripe. Id.
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courts have recognized that state courts may exercise jurisdiction over federal takings claims.
See San Remo Hotel, L.P. v. City and Cnty. of San Fransisco, Cal., 545 U.S. 323, 345-46 (2005)
(observing that “Congress has not expressed any intent to exempt . . . federal takings claims”
from the full faith and credit statute and rejecting the argument that state courts cannot hear state
law and Fifth Amendment claims simultaneously); Guetersloh v. State, 930 S.W.2d 284, 288
(Tex. App.—Austin 1996, writ denied) (noting that “state courts clearly have jurisdiction to
resolve takings claims based on federal law”). Because here, the state court was competent to
exercise subject matter jurisdiction over Plaintiffs’ Fifth and Fourteenth Amendment claims,
these claims qualify as ones that might have been raised in the earlier action. Barr, 837 S.W.2d
at 631.
Moreover, as to Plaintiffs’ second point, there is no meaningful distinction between the
federal and state clauses at issue that would require a court to conduct a separate analysis. The
Fifth Amendment’s Just Compensation Clause, as incorporated against the states through the
Due Process Clause of the Fourteenth Amendment, provides that “Private property [shall not] be
taken for public use, without just compensation.” U.S. CONST. amend. V; Chi., B & Q.R. Co. v.
City of Chi., 166 U.S. 266, 235 (1897). Article I, Section 17 of the Texas Constitution similarly
provides that “[n]o person’s property shall be taken, damaged or destroyed for or applied to
public use without adequate compensation being made.” TEX. CONST. art I, § 17.
Although the wording differs slightly, the Texas Supreme Court has described these
provisions as “comparable” and has made clear that “Texas case law on takings under the Texas
Constitution is consistent with federal jurisprudence.” See Jim Olive Photography v. Univ. of
Houston Sys., 624 S.W.3d 764, 771 (Tex. 2021) (internal quotations and citation omitted).
Knick therefore undermines, rather than supports, Plaintiffs contention that their claims were not
ripe during the state suit.
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Because a federal takings claim requires no elements beyond those necessary to assert a Texas
takings claim, courts have held that adjudication of the state claim precludes a later federal
takings claim based on the same facts, even if the federal claim was not expressly asserted in
state court. See Payne v. United States, No. 4:15-CV-246, 2016 WL 454899, at *5 (E.D. Tex.
Feb. 5, 2016) (holding that res judicata barred plaintiffs from pursuing a federal takings claim,
that was not raised or reserved in state court, where the state court had already dismissed their
state takings claim based on the same facts); see also Palomar Mobilehome Park Ass'n v. City of
San Marcos, 989 F.2d 362 (9th Cir. 1993) (holding that res judicata barred a federal takings
claim even though the plaintiff did not explicitly plead federal constitutional violations in state
court complaint, where the record reflected that the state court fully considered the plaintiff’s
Constitutional rights). Accordingly, a plaintiff who wishes to pursue both federal and state
takings claims has two options: raise both claims in state court to be tried together, or assert both
claims in federal court, relying on supplemental jurisdiction over the state claim. See Migra v.
Warren City Sch. Bd. of Educ., 465 U.S. 75 at 84-85 (1894) (explaining in the § 1983 context
that a plaintiff may either litigate federal claims in the original state court action or obtain a
federal forum by filing those claims in federal court first).
Because Plaintiffs did not pursue either of these available avenues, their failure to raise
their federal takings claims in the prior state court proceeding does not foreclose the application
of res judicata. Accordingly, the doctrine will apply to bar Plaintiffs’ present claims if they are
based on the same facts as in their state Court action. Payne, 2016 WL 454899, at *5.
B. Plaintiffs’ Claims Stem from a Common Nucleus of Operative Facts.
In determining whether claims arise from the same transaction, courts consider “whether
the facts are related in time, space, origin, or motivation, whether they form convenient trial
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units, and whether their treatment as a trial unit conforms with the parties’ expectations[.]” Barr,
837 S.W.2d at 631. “Different theories of recovery based on the same operative facts do not
generate different causes of action.” Sims v. City of Madisonville, 894 F.3d 632, 645 (5th Cir.
2018) (citation omitted). The central inquiry is therefore whether the claims share the “same
nucleus of operative facts.” Thompson v. Weaver, 429 S.W.3d 897, 902 (Tex. 2014) (citation
omitted).
In this instance, all of Plaintiffs’ claims arise from the same alleged misconduct
underlying their prior state court suit—namely, Defendant’s alleged failure to properly maintain
the creek behind Plaintiffs’ property.4 Compare Doc. 19 at 3-9, with Doc. 27-1 at 3-4. In both
actions, Plaintiffs allege that Defendant acted negligently in ignoring their pleas to inspect,
repair, or mitigate the creek’s deterioration and resulting erosion. Compare Doc. 19 at 3-9, with
Doc. 27-1 at 3-4. Although Plaintiffs now characterize Defendant’s conduct as “gross
negligence,” the factual predicate remains the same. Doc. 19 at 7. The negligence claims relate
in time, origin, and motivation to the same ongoing dispute and therefore arise from the same
nucleus of operative facts.
Plaintiffs’ nuisance claim, though not asserted in the prior action, is likewise based on
Defendant’s alleged “fail[ure] to maintain the creek and prevent flooding.” Doc. 19 at 9.
4 In their response, Doc. 27, Plaintiffs contend that their Second Amended Complaint also asserts
a breach of statutory duty claim against the City that was not included in their state court
petition. Doc. 27 at 4. However, this allegation also does not appear anywhere in their Second
Amended Complaint. See Doc. 19 at 4-10. It is well settled that “[a] claim which is not raised in
the complaint but, rather, is raised only in response to a motion for summary judgment is not
properly before the court.” Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113
(5th Cir. 2005) (citation omitted). Even if the claim were properly before the Court, however, it
would nevertheless be barred by the doctrine of res judicata because it arises from the same
factual circumstances as Plaintiffs’ state court claims—namely, Defendant’s failure to “maintain
public infrastructure and mitigate hazards” related to the creek. Compare Doc. 19 at 4, with Doc.
27-1 at 3.
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Because it seeks recovery for the same injuries under a different theory, the claim could have and
should have been raised in the earlier suit. Sims, 894 F.3d at 645; Musgrave v. Owen, 67 S.W.3d
513, 520 (Tex. App. —Texarkana 2002, no pet.) (holding that claims arising from the same
incident or seeking the same injuries share the same nucleus of operative facts, even if one claim
requires proof of elements not required for the other).
Plaintiffs’ inverse condemnation claims also arise out of the same circumstances as their
state takings claim. In the state action, Plaintiffs alleged that repeated flooding of the creek
caused significant erosion to their property, constituting a taking under Article I, Section 17 of
the Texas Constitution. Doc. 27 at 2-4. Similarly, here, Plaintiffs allege that “continuous
erosion, flooding and physical intrusion onto Plaintiffs’ property” amounts to a taking in
violation of the Fifth Amendment and Fourteenth Amendments, as well as Article I, Section 17
of the Texas Constitution. Doc. 19 at 8-9.
Despite the overlapping facts, Plaintiffs contend that their claims are not barred by res
judicata because they arise from “new factual developments,” including “worsening erosion
post-dating the state suit.” Doc. 28 at 5. But “subsequent wrongs by a defendant constitute new
causes of action not barred by res judicata” only when those wrongs occur after the prior suit is
filed or the judgment is entered. Sacks v. Tex. S. Univ., 83 F. 4th 340, 345 (5th Cir. 2023)
(cleaned up). Here, Plaintiffs do not allege that the worsening erosion resulted from any action
by Defendant occurring after they filed their first petition or received judgment in the prior suit.
Doc. 28 at 5. Rather, they seek relief for the continuing effects of the same alleged harm. Doc.
28 at 5. Under Plaintiff’s theory, each new instance of flooding and resulting damage would
entitle Plaintiffs to file another lawsuit, regardless of how many judgments have already been
awarded in favor of Defendant. This is precisely the type of repetitive litigation the doctrine of
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res judicata is intended to prevent. See Barr, 837 S.W.2d at 629 (“The policies behind the
doctrine reflect the need to bring all litigation to an end, prevent vexatious litigation, maintain
stability of court decisions, promote judicial economy, and prevent double recovery.”).
Because all of Plaintiffs’ claims arise from the same nucleus of operative facts as those
asserted in the prior state court action, they could have been raised previously. Therefore,
Plaintiffs’ claims are barred by the doctrine of res judicata and should be dismissed with
prejudice.
IV. LEAVE TO AMEND
Ordinarily, pro se litigants should be afforded an opportunity to amend their complaint
before dismissal. Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009) (citation omitted).
However, leave to amend is not required if the plaintiff has already pleaded their “best case.” Id.
Here, Plaintiffs have had two opportunities to amend their complaint to state a valid claim
against the Defendant. See Doc. 12; Doc. 19. As outlined above, the claims asserted in their
Second Amended Complaint suffer from deficiencies that are not curable by amendment.
Because Plaintiffs have neither asserted, nor demonstrated, that they have a valid claim that
would survive the res judicata bar, the Court concludes that any additional amendment would be
futile.
V. CONCLUSION
For the foregoing reasons, Defendant City of Desoto’s Motion to Dismiss Plaintiffs’
Second Amended Verified Complaint Pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, Doc. 27, should be GRANTED, and Plaintiff’s claims should be summarily
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DISMISSED WITH PREJUDICE. And as no claims will remain pending, the Clerk of Court
should be directed to close this case.
SO RECOMMENDED on February 27, 2026.
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties
in the manner provided by law. Any party who objects to any part of these findings, conclusions
and recommendation must file specific written objections within 14 days after being served with
a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection
must identify the specific finding or recommendation to which objection is made, state the basis
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for the objection, and specify the place in the magistrate judge’s findings, conclusions and
recommendation where the disputed determination is found. An objection that merely
incorporates by reference or refers to the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the aggrieved party from appealing the factual
findings and legal conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d
1415, 1417 (5th Cir. 1996).
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