Harrington v. City of Shiner, Texas

UNITED STATES DISTRICT COURT October 01, 2021

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

VICTORIA DIVISION

JOHN W. HARRINGTON, §

§

Plaintiff, §

§

v. § Civil Action No. 6:20-cv-00039

§

CITY OF SHINER, TEXAS; OFFICER §

LAWRENCE ROBLES; LAVACA §

COUNTY, TEXAS; RICHARD BROWN; §

EDWARD PUSTKA; SHANA OPELA; §

and JOHN and JANE DOES 1-10, §

§

§

Defendants. §

MEMORANDUM OPINION AND ORDER

In 2019, John Harrington filed a lawsuit in federal court against the City of Shiner,

Lavaca County, County officials Richard Brown and Edward Pustka, police officer

Lawrence Robles, and John and Jane Does 1–10, in an action styled John W. Harrington v.

City of Shiner, Texas and Shiner Police Department and Lawrence Robles, et al., Civil Action

No. 6:19-CV-81. Harrington brought a claim under 42 U.S.C. § 1983 against these

Defendants for allegedly violating his constitutional rights, along with certain state law

claims. The Defendants filed a motion to dismiss, and a district court dismissed the

lawsuit for lack of subject matter jurisdiction. The district court held that Harrington’s

claims did not raise a federal question because he did not allege specific federal or

constitutional violations. The district court also denied Harrington leave to amend and

issued a separate final judgment closing the action. Harrington then filed this case in

state court, alleging essentially the same causes of action but with more specificity as to

which constitutional rights the Defendants violated. After the Defendants removed the

case to this Court, Harrington filed a Motion to Remand and for Attorney’s Fees, arguing

that the district court’s dismissal of the prior action has res judicata effect as to this Court’s

jurisdiction. The Defendants, for their part, argue that this Court has federal question

jurisdiction over Harrington’s Section 1983 claim and supplemental jurisdiction over the

state law claims. But they also raise a res judicata argument of their own, contending that

the district court’s order effectively ruled on the merits of the prior Section 1983 claim.

They now seek to dismiss the lawsuit with prejudice as being barred by res judicata in

addition to asserting other pleading deficiencies. The Court ordered the Parties to submit

briefing to answer specific questions about to the district court’s previous dismissal order

and the finality of judgment in the prior case, and the Parties complied. For the reasons

stated below, the Court finds that it has subject matter jurisdiction over this Section 1983

claim, and therefore DENIES Harrington’s Motion to Remand. The Court will enter a

separate Order on the Defendants’ Motions to Dismiss.

I. BACKGROUND

In 2013, John Harrington moved from California to the City of Shiner, Texas,

where he owns and manages Shield Tactical, a gun shop and training center. (Dkt. No.

1-2 at ¶¶ 4.1–4.2). Shortly after moving to Texas, Harrington claims to have had several

negative incidents with police officers and elected officials in the City of Shiner and

Lavaca County. (Id. at ¶¶ 4.4–4.63). These incidents prompted him to file a lawsuit

against the City, the County, County officials Brown and Pustka, and Officer Robles.

Harrington v. City of Shiner, No. 6:19-CV-00081 (S.D. Tex. Sept. 9, 2019), ECF No. 1. In that

suit, Harrington pleaded a cause of action under 42 U.S.C. § 1983 as well as various other

state law claims. Id. With respect to his Section 1983 claim, he alleged that the

“Defendants . . . acting under color of state law, within this jurisdiction[,] subjected

Plaintiff to the depravation of his rights, privileges, and/or immunities secured by the

Constitution and laws of the United States in violation of 42 U.S.C. § 1983.” Id. at

¶¶ 4.1.1–4.1.4. Disputing Harrington’s claims, the Defendants moved to dismiss the case

under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Harrington v.

City of Shiner, No. 6:19-CV-00081 (S.D. Tex. Nov. 25, 2019), ECF No. 7.

On March 20, 2020, the district court, with Judge Kenneth M. Hoyt presiding,

granted dismissal. Harrington v. City of Shiner, No. 6:19-CV-00081, 2020 WL 1430010 (S.D.

Tex. Mar. 20, 2020) (“Harrington I”). The district court dismissed the Section 1983 claim

for lack of subject matter jurisdiction, and additionally dismissed the state law claims for

lack of supplemental or diversity jurisdiction. Id. at *3. The district court held that a

federal question did not exist in Harrington’s complaint since it “lacks specificity as to

how 42 U.S.C. § 1983—the basis of his complaint applies to the facts he has presented”

and that “[h]e has failed to identify any constitutional or federal law violation.” Id. Judge

Hoyt also denied Harrington the opportunity to replead.1 Id. Notably, the court entered

1 Harrington never filed a motion to amend his complaint, but he made general requests

to amend in the alternative in each Response in Opposition to Motion to Dismiss. See, e.g., (Dkt.

No. 13 at ¶ 13) (“In the alternative… Plaintiff would respectfully request of this Court the

opportunity to replead consistent with the Court’s ruling.”); (Dkt. No. 14 at ¶ 18) (“In the event

the Court believes Plaintiff’s pleadings are not sufficient under Rule 8 or otherwise, then Plaintiff

would request permission to amend under Rule 15(a)(2).”). Harrington did not attach a proposed

amended complaint to either Response.

a separate final judgment, in which the court specified that Harrington “shall take

nothing by his suit.”2 Harrington v. City of Shiner, No. 6:19-CV-00081 (S.D. Tex. Mar. 20,

2020), ECF No. 24.

After the dismissal, Harrington filed this case in state court. (Dkt. No. 8 at 1–2).

Like the prior complaint, the refiled version alleges Section 1983 claims along with other

state law claims against the Defendants.3 (Dkt. No. 1-2 at ¶¶ 5.1–5.13.3). But this time,

Harrington specifically stated which of his constitutional rights were allegedly violated.

He now alleges that the City of Shiner and Lavaca County violated his Equal Protection

and Due Process rights as well as his Fourth Amendment right to be free from unlawful

searches and seizures. (Id. at ¶¶ 5.1.1–5.2.5, 5.4.1–5.5.2). He further alleges that Officer

Robles violated his “Constitutional right to liberty” by initiating a prosecution without

probable cause, (Id. at ¶¶ 5.3.1–5.3.4), and Defendants Pustka, Brown, and Opela violated

his Equal Protection and Due Process rights, (Id. at ¶¶ 5.6.1–5.6.6).

The Defendants removed the complaint to this Court under 28 U.S.C. §§ 1331,

1441, and 1446, (Dkt. No. 1), and subsequently filed separate Motions to Dismiss. (Dkt.

No. 3); (Dkt. No. 12). In these Motions, the Defendants allege that Harrington I has res

judicata effect on the merits of this action and Harrington fails to state a plausible claim.

(Id.). Harrington filed a Motion to Remand, arguing that the Court does not have subject

matter jurisdiction to preside over the matter since Harrington I precludes jurisdiction

2 “Pursuant to the Memorandum Opinion and Order entered in this case, . . . the

[D]efendants’. . . motion to dismiss is GRANTED. . . . The [P]laintiff . . . shall take nothing by his

suit. This is a Final Judgment.”

3 Harrington also added County official Opela as a party-defendant. (Dkt. No. 1-2).

over this action. (Dkt. No. 8). The Defendants oppose remand, arguing that the

Complaint alleges “specific violations” of Harrington’s constitutional rights. (Dkt. No.

11 at 2).

The Court ordered briefing on subject matter jurisdiction and ordered the Parties

to answer the following: (1) Was Harrington I dismissed with or without prejudice?

(2) Did the district court rule on the merits in Harrington I? (3) What impact the separate

final judgment had, if any, on the district court’s dismissal? (4) If Harrington’s prior

Section 1983 claim was dismissed because of the insufficiency of the allegations, could

Harrington supplement the facts alleged in an amended complaint to cure the deficiency?

(5) If the answer to Question 4 is “yes,” can such an amended complaint be filed in this

Court, or must it be filed in another forum? (6) If the answer to Question 4 is “no,” what

remedy was available to Harrington or what procedure should he have followed that he

did not? Finally, (7) if the Court dismisses the Section 1983 claims, what is the proper

disposition of the remaining claims? (Dkt. No. 19 at 1). The Parties have filed their briefs,

and the Motion to Remand is ripe for review. (Dkt. No. 20); (Dkt. No. 23); (Dkt. No. 24).

II. DISCUSSION

A. WHETHER FEDERAL QUESTION JURISDICTION IS INVOKED IN ANY OF

HARRINGTON’S PRESENT CLAIMS

Federal courts have limited subject matter jurisdiction and cannot preside over

cases unless authorized by the Constitution or statute. Coury v. Prot, 85 F.3d 244, 248 (5th

Cir. 1996). “A district court has removal jurisdiction in any case where it has original

jurisdiction.” Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008) (citing 28 U.S.C.

§ 1441(a)). The district court’s original jurisdiction may be either “federal-question

jurisdiction” under 28 U.S.C. § 1331 or “diversity jurisdiction” under 28 U.S.C. § 1332(a).

Only the Court’s federal question jurisdiction is implicated here.

A district court has original federal question jurisdiction over “all civil actions

arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.

“[T]he burden of establishing federal jurisdiction is placed upon the party seeking

removal.” Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988). “The removal statute

is therefore to be strictly construed and any doubt as to the propriety of removal should

be resolved in favor of remand.” In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007). The

well-pleaded complaint rule recognizes that the plaintiff is the “master of the claim,” and

may “avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc. v.

Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987). “As a general rule,

absent diversity jurisdiction, a case will not be removable if the complaint does not

affirmatively allege a federal claim.” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123

S.Ct. 2058, 2062, 156 L.Ed.2d 1 (2003). To determine whether federal jurisdiction exists,

the court looks to the record in the state court at the time of removal. Manguno v.

Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

To prove a Section 1983 claim, a plaintiff must demonstrate: (1) a violation of the

United States Constitution or federal law; and (2) that the violation was committed by

someone acting under the color of state law. See Gomez v. Toledo, 446 U.S. 635, 640, 100

S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980).

In this case, Harrington does indeed plead numerous Section 1983 claims against

each of the Defendants, clearly alleging the specific constitutional rights he claims were

violated. See (Dkt. No. 1-2 at ¶¶ 5.1–5.6.6). Section 1983 is a federal statute providing

federal subject matter jurisdiction. See Livadas v. Bradshaw, 512 U.S. 107, 132, 114 S.Ct.

2068, 2082, 129 L.Ed.2d 93 (1994). Thus, it is clear that these claims invoke federal

question jurisdiction.

B. THE EFFECT OF HARRINGTON I ON THESE SECTION 1983 CLAIMS

Since federal subject matter jurisdiction arises from Harrington’s Section 1983

claims, the question before the Court is: what effect does Harrington I have over them?

Harrington points out that the Harrington I court dismissed the case under Rule 12(b)(1)

for lack of subject matter jurisdiction. (Dkt. No. 20 at 1–2). And since the dismissal was

under Rule 12(b)(1), Harrington argues, it was effectively a dismissal without prejudice

and is res judicata only to this Court’s jurisdiction. (Id. at 3–4). The separate final

judgment, Harrington further contends, was “purely ministerial.” (Id. at 7). In other

words, Harrington claims that he may pursue the action in state court but not in this

Court.

The Defendants, on the other hand, argue that this Court has federal question

jurisdiction over this Section 1983 claim, (Dkt. No. 11), but the Court should nevertheless

dismiss Harrington’s claims under res judicata. (Dkt. No. 23 at ¶¶ 2–3; Dkt. No. 24 at 6, 8–

10). They argue that the Harrington I court’s dismissal was with prejudice, and therefore

has preclusive effect in this case for two reasons: (1) Harrington I was a dismissal on the

merits under Rule 12(b)(6) because the district court reasoned that the prior Section 1983

claim lacked specificity, and did not grant leave to amend, (Dkt. No. 24 at 2–3); and (2) the

district court separately issued a “take nothing” final judgment terminating Harrington I

that clearly extended prejudicial effect (Dkt. No. 23 at 1).

The Parties’ disagreement on subject matter jurisdiction stems from two different

interpretations of the Harrington I dismissal. If the dismissal was under Rule 12(b)(1),

then it follows that the dismissal was without prejudice and the res judicata effect is

confined to the Court’s jurisdiction over the claims that were found to be jurisdictionally

deficient in Harrington I. See Griener v. United States, 900 F.3d 700, 705 (5th Cir. 2018) (“A

dismissal for want of jurisdiction bars access to federal courts and is res judicata only as

to the lack of a federal court’s power to act. It is otherwise without prejudice to the

plaintiff’s claims.”). If the dismissal was, in reality, under Rule 12(b)(6), then that

dismissal was on the merits, see Bell v. Hood, 327 U.S. 678, 682–83, 66 S.Ct. 773, 776, 90

L.Ed. 939 (1946), and with prejudice because the Harrington I court did not grant

Harrington leave to amend the previous complaint. See Foman v. Davis, 371 U.S. 178, 182,

83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) (holding that “in the absence of any apparent or

declared reason . . . [leave to amend], as the rules require, [should] be ‘freely given,’ but

that “the grant or denial of an opportunity to amend is within the discretion of the District

Court,” subject to review for abuse of discretion); Rodriguez v. CitiMortgage, Inc., No. SA-

14-CA-172-FB, 2014 WL 12496573, at *3 (W.D. Tex. Oct. 16, 2014) (“If allegations state no

cause of action upon which relief can be granted and are not susceptible to being pled

better, then permitting plaintiff to amend pleadings would be futile and dismissal with

prejudice is warranted.” (citation omitted)).

There is no ambiguity as to how the Harrington I court disposed of Harrington’s

prior complaint. The Harrington I court made its ruling clear when the court, after

analyzing whether Harrington raised a federal question, stated, “[h]Having addressed

the Court’s original jurisdiction under 28 U.S.C. § 1331, the Court now considers . . . .”

2020 WL 1430010, at *3. Even at the very beginning of the dismissal order, the district

court explicitly stated, “The Court’s determination was made pursuant to Federal Rule

of Civil Procedure 12(b)(1). Since the Court lacks subject matter jurisdiction, Harrington’s

claims against all parties, including the City of Shiner and Lawrence Robles fail.” Id. at

*1 n.1. Moreover, the district court wrote in its conclusion that “Harrington’s complaint

fails to establish federal question jurisdiction or diversity jurisdiction. Therefore, no

subject matter jurisdiction exists over this case.” Id. at *3. The district court clearly

dismissed the complaint under Rule 12(b)(1).

The Defendants, however, argue that the district court’s dismissal of Harrington’s

suit was for failure to state a claim under Rule 12(b)(6) because the court (1) stated that

“Harrington has failed to identify any constitutional violation that resulted from [the

Defendants’] conduct”; (2) concluded that Harrington’s Section 1983 claim “lacked

specificity” as to which specific constitutional rights were alleged to be violated; (3) and

denied Harrington’s motion for leave to amend. (Dkt. No. 24 at 2–5). But even if

Harrington I erred in dismissing the case on 12(b)(1) grounds as the Defendants imply,

this Court does not have authority to pass judgment on Harrington I’s disposal of the

previous case. See 28 U.S.C. § 1291 (“The courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts of the United States . . . .” (emphasis

added)). Consequently, the Court may not “revisit” Harrington I’s holding and

reinterpret it as a dismissal under Rule 12(b)(6).

Further, even if the disposition of Harrington I was ambiguous, the Court still

construes the dismissal as one made under Rule 12(b)(1). “Generations of jurists have

struggled with the difficulty of distinguishing between Rules 12(b)(1) and 12(b)(6) in

federal question cases[.]” Nowak v. Ironworkers Loc. 6 Pension Fund, 81 F.3d 1182, 1188 (2d

Cir. 1996). “[W]here the complaint . . . is so drawn as to seek recovery directly under the

Constitution or laws of the United States, the federal court, but for two possible

exceptions . . . must entertain the suit.” Hood, 327 U.S. at 681–82, 66 S.Ct. at 776. The two

exceptions are where the federal question (1) “clearly appears to be immaterial and made

solely for the purpose of obtaining jurisdiction,” and (2) “where such a claim is wholly

insubstantial and frivolous.” Id. This means that federal claims that are “patently

without merit . . . justify the district court’s dismissal for want of jurisdiction.” Suthoff v.

Yazoo Cnty. Indus. Dev. Corp., 637 F.2d 337, 340 (5th Cir. 1981); see also Giulini v. Blessing,

654 F.2d 189, 192 (2d Cir. 1981) (A complaint brought under Section 1983 alleging

constitutional rights violations “may not be dismissed for lack of jurisdiction unless it

appears that the claim is patently frivolous or wholly insubstantial.” (citing Hagans v.

Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), Oneida Indian Nation v. County of

Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), and Hood, 327 U.S. at 681–82, 66

S.Ct. at 775–76)). These exceptions “are narrowly drawn, and are intended to allow

jurisdictional dismissals only in those cases where the federal claim is clearly immaterial

or insubstantial.” Williamson v. Tucker, 645 F.2d 404, 416 (5th Cir. 1981) (emphasis added).

By way of example, consider Woods v. Wal-Mart, Inc., where the district court

dismissed a case under Rule 12(b)(1) after finding that the plaintiff’s Section 1983 claim

did not raise a federal question. No. 7:18-CV-00005-DC, 2018 WL 8996624 (W.D. Tex.

Aug. 14, 2018). The plaintiff had alleged that Wal-Mart and its employees were negligent

in placing an “advertisement carboard” that fell and hit his right eye. Id. at *1.

Interestingly, the plaintiff brought the negligence claim under Section 1983 and the

Federal Tort Claims Act. Id. at *1–4. The district court dismissed the claim, holding that

“it is clear from the face of the complaint that Wal-Mart is a private company, and its

arguable negligence regarding the advertising sign placement was not done under the

‘color’ of the law, but rather in its private capacity.” Id. at *3. The Court added that

“[e]ven though it is possible for a non-state actor such as Wal-Mart to be held liable under

a § 1983 claim, Plaintiff’s conclusory allegations are insufficient.” Id. Due to the obvious

disjunction between Section 1983 and the plaintiff’s factual allegations, the district court

concluded that it did not have subject matter jurisdiction over the Section 1983 claim. Id.

(“Plaintiff’s Complaint, as amended, alleged neither state action, nor any constitutional

violations by a person acting under color of state law . . . . Therefore, this Court does not

have subject matter jurisdiction over Plaintiff’s § 1983 claims against Wal-Mart or its

employees.”).

With regard to Harrington’s Section 1983 claim in Harrington I, his dismissed

complaint solely alleged that the “Defendants . . . acting under color of state law, within

this jurisdiction[,] subjected Plaintiff to the depravation of his rights, privileges, and/or

immunities secured by the Constitution and laws of the United States in violation of 42

U.S.C. § 1983.” Harrington v. City of Shiner, No. 6:19-cv-00081 (S.D. Tex. Sept. 9, 2019),

ECF 1 at ¶¶ 4.1.1–4.1.4. As discussed, Harrington I was clearly dismissed under Rule

12(b)(1). 2020 WL 1430010, at *1 n.1 (stating that the “determination [for dismissal] was

made pursuant to Federal Rule of Civil Procedure 12(b)(1)”).

But for their part, the Defendants substantially rely on Lobo v. Celebrity Cruises, Inc.,

704 F.3d 882 (11th Cir. 2013), to argue that Harrington I was dismissed under Rule 12(b)(6).

(Dkt. No. 24 at 3). In Lobo, the plaintiffs alleged that the defendant breached its duty of

fair representation under the National Labor Relations Act (“NLRA”). 704 F.3d at 886.

The district court originally dismissed the plaintiff’s claims under Rule 12(b)(1), holding

that the NLRA was inapplicable to the plaintiffs’ claims, and thus, the claims did not

invoke federal question jurisdiction. Id. at 887, 891. The Eleventh Circuit disagreed,

holding that because the plaintiff “sufficiently alleged a breach of the federal common

law duty of fair representation under the NLRA, the District Court had subject matter

jurisdiction to hear the case under 28 U.S.C. § 1331.” Id. at 891. The dismissal was

ultimately affirmed on 12(b)(6) grounds because the plaintiff failed to state a plausible

claim. Id.

Unlike Lobo, the Harrington I court did not solely find that Section 1983 was

inapplicable to the claim Harrington attempted to plead. To be sure, Harrington was

claiming that his constitutional rights were violated by state actors. Harrington v. City of

Shiner, No. 6:19-cv-00081 (S.D. Tex. Sept. 9, 2019), ECF 1 at ¶¶ 4.1.1–4.1.4. But the district

court concluded that federal question jurisdiction did not arise from Harrington’s Section

1983 claim because there was simply no connection between the facts he alleged—

regardless of whether they were conclusory or not—and this statute. Harrington I, 2020

WL 1430010, at *3. Importantly, the district court found that Harrington did not allege a

specific constitutional right that the Defendants may have violated when he was

pursuing a claim under Section 1983—which requires a constitutional rights violation. Id.

As the district court noted, Harrington “failed to identify any constitutional violation”

from the Defendants’ alleged conduct. Id.

When the district court held that Harrington’s Section 1983 claim “lacked

specificity” as to what rights the Defendants infringed, the Defendants took this as a

dismissal for failure to state a claim. (Dkt. No. 24 at 3). But the lack of specificity the

district court referred to was with respect to how Harrington’s Section 1983 claim

“applie[d] to the facts” he presented. Harrington I, 2020 WL 1430010, at *3. In other

words, Harrington failed, not in stating conclusory or vague facts to support his Section

1983 claim, but in showing that the Section 1983 claim was not frivolous, insubstantial, or

patently without merit given the facts that he did allege. See Hood, 327 U.S. at 681–82, 66

S.Ct. at 775–76; Suthoff, 637 F.2d at 340. Thus, the district court concluded that the claim

did not raise a federal question given the lack of a foundation for the Section 1983 claim—

that is, an alleged constitutional rights violation—as well as the lack of any factual

allegations that could even imply the applicability of the statute.

Further, the Court is unpersuaded by the Defendants’ argument that the district

court’s denial of leave to amend necessarily means that the Harrington I dismissal was on

the merits. (Dkt. No. 24 at 3–5). The fact that the district court did not grant an

opportunity for Harrington to amend means only that it either (a) strictly followed

Federal Rule of Civil Procedure 12(h)(3) requiring dismissal of a case when it does not

invoke subject matter jurisdiction, or (b) determined that Harrington could not cure the

pleading deficiency the court found—namely, the jurisdictional issue the district court

based its dismissal on—when considering Harrington’s request for leave.4

As the Federal Rules require, when, “at any time,” a court discovers that it lacks

subject matter jurisdiction, “the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3)

(emphasis added). One district court held that it could not consider a motion to amend

a complaint to cure existing jurisdictional deficiencies because in-circuit precedent

“envisioned the filing of a new action following a 12(b)(1) dismissal without prejudice”

as the proper attempt to remedy the deficiencies, as opposed to amending the complaint.

Com. Warehouse Leasing, LLC v. Ky. Transp. Cabinet, No. 4:18-CV-00045-JHM, 2018 WL

3747466, at *2 & n.3 (W.D. Ky. Aug. 7, 2018). But another district court in the Fifth Circuit

noted that “courts may deny leave to amend when a proposed amended complaint does

not resolve the issues of subject-matter jurisdiction.” Chandler v. United States, 338 F.

Supp. 3d 592, 600 (N.D. Tex. 2018) (emphasis added) (quotations omitted). This means,

contrary to Commercial Warehouse Leasing, if a plaintiff shows that a jurisdictional

deficiency could be cured by an amended complaint, a court may, in fact, grant leave to

amend.

4 In his brief responding to the Defendants’ motion to dismiss in Harrington I, Harrington

stated: “In the event a plaintiff’s complaint fails to state a claim, the court should generally give

the plaintiff at least one chance to amend the complaint under Rule 15(a) before dismissing the

action with prejudice.” Harrington v. City of Shiner, No. 6:19-CV-00081 (S.D. Tex. Jan. 15, 2020),

ECF 13at ¶ 31. Harrington did not attach a proposed amended complaint to show how any

pleading deficiencies—jurisdictional or otherwise—could be resolved.

For the Court’s analysis, these holdings directly illustrate that the Harrington I

court dismissed the action because it either found that, similar to Chandler, amending the

complaint to cure the jurisdictional deficiency would be futile, or decided, like in

Commercial Warehouse Leasing, that the proper course of action to cure the jurisdictional

issue was through a repleading of the whole complaint. Either way, the denial of leave

to amend does not establish that the district court dismissed Harrington’s prior complaint

on the merits for failure to state a claim.

C. THE EFFECT OF THE FINAL JUDGMENT IN HARRINGTON I

Because Harrington I dismissed Harrington’s Section 1983 claim for lack of subject

matter jurisdiction, that claim was dismissed without prejudice. Griener, 900 F.3d at 705.

As such, determining the effect of Harrington I’s effect on these Section 1983 claims should

be a straightforward proposition: Harrington may replead his claim in the proper forum

since the res judicata effect of that decision is only confined to the jurisdictional issue

litigated. See id. But a separate final judgment was also filed that disposed of and

terminated the lawsuit. Harrington v. City of Shiner, No. 6:19-cv-00081 (S.D. Tex. Mar. 20,

2020), ECF 24. Given the final judgment, it seems that Harrington I’s resolution “looks

both ways,” as it was dismissed without prejudice, which is “ordinarily a nonfinal

decision,” and it was also disposed of with the finality a separate final judgment confers.

See Umbrella Inv. Grp., L.L.C. v. Wolters Kluwer Fin. Servs., Inc., 972 F.3d 710, 712 (5th Cir.

2020). Acknowledging this seemingly contradictory outcome, the Court now turns to

whether the final judgment added preclusive effect to the district court’s Rule 12(b)(1)

dismissal.

Harrington argues that the separately filed final judgment was merely “entered

pursuant to the ‘separate document’ requirement of Rule 58 [of the Federal Rules of Civil

Procedure].” (Dkt. No. 20 at 7). As such, he argues that the final judgment did not have

preclusive effect on any subsequent Section 1983 claims he may bring against the

Defendants arising out of the same incidents. (Id.). The Defendants disagree, contending

that the “take nothing” final judgment served to render the dismissal with prejudice.

(Dkt. No. 23 at 1–2). This view is proper, they argue, since a final judgment “puts an end

to the controversy between the parties . . ., disposing of the whole merits of the

controversy or of some independent, unrelated portion of it, leaving nothing to be

judicially determined, with nothing remaining to be done but to enforce by execution

what has been determined.” (Id. at 1).

The Fifth Circuit has ruled that it is improper to dismiss a party or a claim with

prejudice for lack of subject matter jurisdiction. See Campos v. United States, 888 F.3d 724,

738 (5th Cir. 2018) (“We agree with our prior cases that have precluded district courts

from dismissing plaintiffs’ claims with prejudice when the basis for the dismissal is lack

of subject-matter jurisdiction under Rule 12(b)(1).”); Int’l Energy Ventures Mgmt., L.L.C. v.

United Energy Grp., Ltd., 818 F.3d 193, 210 (5th Cir. 2016) (finding that, because dismissal

under Rule 12(b)(1) is not a disposition on the merits, dismissal of a nondiverse party for

lack of subject matter jurisdiction “must be a dismissal without prejudice in every

instance”); Cox, Cox, Filo, Camel & Wilson, LLC v. Sasol N. Am., Inc., 544 F. App’x 455, 456–

57 (5th Cir. 2013) (per curiam) (“[T]o dismiss with prejudice under Rule 12(b)(1) is to

disclaim jurisdiction and then exercise it. Our precedent does not sanction the practice,

and we will not do so here.”). Still, the Federal Rules of Civil Procedure provide that,

generally, “[e]very judgment and amended judgment must be set out in a separate

document[.]” Fed. R. Civ. P. 58(a). A final judgment disposing of a plaintiff’s claims is

construed as an appealable final decision, serving to open the doors for the losing party

to appeal. Arnold v. Williams, 979 F.3d 262, 266 n.3 (5th Cir. 2020) (finding that a plaintiff’s

claims that were involuntarily dismissed “without prejudice to the filing of a motion for

leave to amend” constituted an appealable final decision because plaintiff declined to file

a motion for leave to amend and the final judgment disposed of the matter in its entirety);

Wolters Kluwer, 972 F.3d at 712 (“[A] judgment dismissing all claims is a judgment

dismissing an action . . . . ‘The dismissal of an action—whether with or without

prejudice—is final and appealable.’” (quoting Ciralsky v. C.I.A., 355 F.3d 661, 666 (D.C.

Cir. 2004)).

To illustrate this rule, the Fifth Circuit in Wolters Kluwer cited to Hoskins v. Poelstra,

320 F.3d 761, 764 (7th Cir. 2003), a case where “the district court dismissed a ‘complaint’

‘without prejudice,’ ordinarily a nonfinal decision, while issuing a ‘final’ judgment in the

defendants’ favor under Rule 58.” Wolters Kluwer, 972 F.3d at 712. Hoskins had held that

when a district court’s resolution of a case “looks both ways,” “the only safe route is to

treat it as final: the alternative lays a trap for unwary (or even wary) litigants, who may

forego appeal in reliance on the ‘without prejudice’ language only to learn later . . . that

the original order was appealable and the time for appellate review has lapsed.” Hoskins,

320 F.3d at 764.

Following the rule explained in Williams, Wolters Kluwer, and Hoskins, a separately

filed final judgment thereby provides finality for appellate purposes. But these cases do not

hold that a final judgment adds preclusive effect to a dismissal that was contemplated

without prejudice, such as a Rule 12(b)(1) dismissal. Indeed, the Fifth Circuit has

explained that a dismissal of an action “is final and appealable,” regardless of whether the

dismissal was “with or without prejudice.” Wolters Kluwer, 972 F.3d at 712; see also Swope

v. Columbian Chems. Co., 281 F.3d 185, 193 (5th Cir. 2002) (“[A] party seeking to create

finality through dismissal without prejudice of remaining claims must file for Rule 54(b)

certification with the trial court. This permits a trial court to control its docket and make

an independent determination whether an appeal is warranted under the circumstances

of the case.”); West v. Ford Motor Co., No. 2:13cv173-KS-MTP, 2014 WL 1569565, at *2 (S.D.

Miss. Apr. 17, 2014) (dismissing in part the plaintiff’s claims without prejudice and

issuing a “separate final judgment . . . pursuant to Federal Rule of Civil Procedure 58” as

to the dismissed claims).

In this case, because Harrington’s claims were dismissed for lack of subject matter

jurisdiction, that dismissal was without prejudice. Daigle v. Opelousas Health Care, Inc.,

774 F.2d 1344, 1348 (5th Cir. 1985). The separate final judgment served to give finality to

the dismissal insofar as Harrington could appeal the decision. But, as discussed, the final

judgment did not convert the 12(b)(1) dismissal without prejudice to a dismissal with

prejudice. Thus, the Court finds that Harrington I’s dismissal was without prejudice,

despite the separately filed final judgment, and Harrington may pursue his claims in the

proper court. See Nilsen v. City of Moss Point, 674 F.2d 379, 382 (5th Cir. 1982) (finding that

a Rule 12(b)(1) dismissal “is not a bar to a later action brought in a court of competent

jurisdiction on the same claim”).

D. WHETHER HARRINGTON I’S RULING ON SUBJECT MATTER JURISDICTION

BARS THIS COURT’S JURISDICTION OVER THE SECTION 1983 CLAIMS

The remaining question is whether this case should be litigated in this Court or in

state court. Harrington argues that the prior 12(b)(1) dismissal precludes this Court from

exercising jurisdiction over this case—even though the Complaint clearly invokes federal

law through the Section 1983 claims—and that a state court is the proper venue for the

lawsuit. (Dkt. No. 8 at 3–5). The Defendants counter by arguing that subject matter

jurisdiction exists for the suit because the Complaint alleges specific constitutional rights

violations that have been pleaded in connection with Harrington’s Section 1983 claims.

(Dkt. No. 11 at ¶¶ 1–2). With this in mind, the Court turns to whether res judicata, or more

precisely, claim preclusion, bars jurisdiction.

Res judicata “bars the litigation of claims that either have been litigated or should

have been raised in an earlier suit.” Southmark Corp. v. Coopers & Lybrand (In re Southmark

Corp.), 163 F.3d 925, 934 (5th Cir. 1999). “The test for res judicata has four elements: (1) the

parties are identical or in privity; (2) the judgment in the prior action was rendered by a

court of competent jurisdiction; (3) the prior action was concluded by a final judgment

on the merits; and (4) the same claim or cause of action was involved in both actions.”

Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005). The party asserting

that res judicata applies has the burden of proving preclusion is appropriate. See Memphis-

Shelby Cnty. Airport Auth. v. Braniff Airways, Inc. (In re Braniff Airways, Inc.), 783 F.2d 1283,

1289 (5th Cir. 1986).

In the context of Rule 12(b)(1) dismissals, res judicata applies only to a court’s

jurisdiction over the once-dismissed claims. Griener, 900 F.3d at 705. “Although the

dismissal of a complaint for lack of jurisdiction does not adjudicate the merit[s] so as to

make the case res judicata on the substance of the asserted claim, it does adjudicate the

court’s jurisdiction, and a second complaint cannot command a second consideration of

the same jurisdictional claims.” Boone v. Kurtz, 617 F.2d 435, 436 (5th Cir. 1980) (per

curiam). For instance, in Locke v. City of Corpus Christi, the district court found that the

plaintiff’s claims of constitutional rights violations, against the same parties, were barred

by res judicata after the same claims were dismissed for lack of subject matter jurisdiction

in two prior cases. No. 2:06-CV-305, 2006 WL 2670982, at *3–4 (S.D. Tex. Sep. 18, 2006).

In the prior actions, the plaintiff had attempted to bring the same claims against the City

of Corpus Christi. Id. But the claims were dismissed because the courts determined that

they lacked subject matter jurisdiction under the Rooker-Feldman doctrine. Id. at *2. The

plaintiff did not appeal the dismissals in either case, and the district court concluded that

the prior dismissals “bar the Plaintiff from re-litigating the subject matter jurisdiction

issue in another complaint.” Id. at *4.

A prior dismissal for lack of subject matter jurisdiction, nevertheless, permits a

subsequent action that cures the material deficiencies of the first. Estevez v. Nabers, 219

F.2d 321, 323 (5th Cir. 1955); see Fallon, 1998 WL 120362, at *2 (finding that a prior Rule

12(b)(1) dismissal “permits a second action on the same claim that corrects the deficiency

found in the first action” (quoting 18 Charles A. Wright & Arthur Miller, Federal Practice

and Procedure § 4436 (1981)); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th

Cir. 1990) (finding that dismissal of an earlier action for lack of subject matter jurisdiction

“allows for the possibility of repleading the action to bring it within the subject matter

jurisdiction of some court” and that “[t]he res judicata effect . . . is consequently limited to

the jurisdictional issue”). As the Fifth Circuit has stated, “[r]elitigation of an issue is not

precluded unless the facts and the legal standard used to assess them are the same in both

proceedings.” In re Southmark Corp., 163 F.3d at 932 (emphasis added).

Estevez v. Nabers helpfully illustrates this principle. 219 F.2d 321. In that case,

plaintiff Estevez, a Honduran citizen, initially filed an action against defendant Nabers’s

predecessor at the Immigration and Naturalization Service, seeking review of an

exclusion order that the INS issued against Estevez. Id. at 322. That case was dismissed

for lack of a justiciable controversy, a “jurisdictional requirement” under Article III.5 Id.

at 322–23. Estevez repleaded and filed another, largely identical action against Nabers.

Id. at 322. In reviewing the second action, the Fifth Circuit noted that “if the complaint in

the later action contains further allegations, the omission of which made the complaint in

the first action demurrable, the judgment in the first action is not a bar to the second

action, even though the plaintiff has failed to avail himself of permission to amend.” Id.

5 “Article III of the Constitution confines the federal courts to adjudicating actual ‘cases’

and ‘controversies.’” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

“It is a basic principle of Article III that a justiciable case or controversy must remain ‘extant at all

stages of review, not merely at the time the complaint is filed.’” United States v. Juvenile Male, 564

U.S. 932, 936, 131 S.Ct. 2860, 2864, 180 L.Ed.2d 811 (2011) (quoting Arizonans for Official English v.

Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997)).

at 323. “The cardinal principle,” the Fifth Circuit explained, “is that the second action is

precluded unless the new allegations supply a material deficiency of the complaint in the

first action.” Id. The court, however, still observed that the second action lacked a

justiciable controversy, much like the first. Id. The Fifth Circuit thus applied res judicata

to the repleaded complaint since the allegations in it were not “materially different” from

the originally dismissed complaint. Id. at 324.

Here, Harrington corrects the jurisdictional deficiency the Harrington I court

found. In the prior case, the district court dismissed the case under Rule (12)(b)(1)

because Harrington’s claim “lack[ed] specificity as to how” Section 1983 applied to the

alleged facts since Harrington “failed to identify any constitutional or federal law

violation.” Harrington I, 2020 WL 1430010, at *3. Put differently, Harrington’s deficiency

was in his failure to allege any constitutional rights that the Defendants may have violated

that could be redressed by his Section 1983 claim. Conversely, in the instant case,

Harrington’s Complaint alleges the following claims under Section 1983: (1) the City of

Shiner violated his Equal Protection, Due Process, and Fourth Amendment rights, (Dkt.

No. 1-2 at ¶¶ 5.1.1–5.2.5); (2) Officer Robles violated his “Constitutional right to liberty”

by “commenc[ing] and proceed[ing] with multiple criminal proceedings” against him,

(Id. at ¶¶ 5.3.1–5.3.4); (3) Lavaca County violated his Equal Protection, Due Process, and

Fourth Amendment rights, (Id. at ¶¶ 5.4.1–5.5.2); and (4) Defendants Pustka, Brown, and

Opela violated his Equal Protection and Due Process rights (Id. at ¶¶ 5.6.1–5.6.6).

Unlike before, Harrington has stated the constitutional rights that the Defendants

are alleged to have violated. For purposes of subject matter jurisdiction, the deficiencies

the district court originally found are not present in the current Complaint. Thus, res

judicata does not bar this Court's exercise of subject matter jurisdiction. This Court is the

proper forum to litigate Harrington’s constitutional rights claims. Whether Harrington

does, in fact, state plausible claims given the facts he has alleged is another matter

altogether, which the Court will review and determine in a separate order.

III. CONCLUSION

For the foregoing reasons, the Court finds that it has jurisdiction over this action.

Accordingly, the Court DENIES Harrington’s Motion to Remand. (Dkt. No. 8). The

Court will issue a separate Order with respect to the Defendants’ Motions to Dismiss.

It is SO ORDERED.

Signed on September 30, 2021.

Dew &

DREW B. TIPTON

UNITED STATES DISTRICT JUDGE

23