Porretto v. City of GalvestonPorretto v. City of Galveston
Before KING, JONES, and OLDHAM, Circuit Judges.*
KING, Circuit Judge:
Plaintiff-Appellant Sonya Porretto is the owner of Porretto Beach in Galveston, Texas. In 2009, Porretto filed for bankruptcy in the U.S. Bankruptcy Court for the Southern District of Texas, and her case was converted to a Chapter 7 proceeding. In 2020, the trustee of Porretto‘s bankruptcy estate abandoned the Porretto Beach property back to Porretto. A year later, Porretto filed an adversarial lawsuit in the bankruptcy court against the City of Galveston Park Board of Trustees (“Park Board“), the City of Galveston, the Texas General Land Office (“GLO“), and the GLO‘s Commissioner, alleging, inter alia, that Defendants-Appellees’ actions at Porretto Beach constituted takings without just compensation in violation of the Fifth Amendment. Porretto‘s case was transferred to the U.S. District Court for the Southern District of Texas, which dismissed Porretto‘s lawsuit, concluding: (1) Porretto lacks standing to sue the GLO and its Commissioner; (2) the court lacks bankruptcy jurisdiction under
We agree with the district court that Porretto lacks standing to sue the GLO and its Commissioner because her complaint fails to establish a causal nexus between these Defendants-Appellees’ actions and Porretto‘s alleged injuries, but we note that this deficiency in Porretto‘s pleadings could potentially be redressed via an amended complaint. Regarding Porretto‘s remaining claims against the Park Board and the City of Galveston, we agree with the district court that exercising bankruptcy jurisdiction under
Accordingly, we AFFIRM the district court‘s dismissal of Porretto‘s claims against the GLO and its Commissioner without prejudice. We VACATE the district court‘s dismissal of Porretto‘s remaining claims against the Park Board and the City of Galveston, and we REMAND for the district court to consider alternative arguments for dismissal in the first instance, as well as the issue of supplemental jurisdiction over Porretto‘s state law claims. We also AFFIRM the district court‘s decision to deny Porretto leave to amend her complaint, though we note that Porretto may file a motion for leave to amend on remand to address her complaint‘s
* Judge Oldham concurs in the judgment only.
I.
A.
Plaintiff-Appellant Sonya Porretto is the owner of Porretto Beach, one of the rare privately owned sections of the Texas coastline. Porretto Beach is generally identified as the beach along the Galveston Seawall from 6th to 10th (sometimes referred to as “Porretto Beach Classic“), 11th to 12th, 14th to 16th, 19th to 21st, and 26th to 27th streets. In 2014, after years of litigation between the Porretto family and the GLO, the Supreme Court of Texas affirmed that the Porretto family owns the property conveyed to them that lies landward of the “mean higher high tide line,” defined as “the average of highest daily water computed over or corrected to the regular tidal cycle of 18.6 years.” See Porretto v. Tex. Gen. Land Off., 448 S.W.3d 393, 395, 400 (Tex. 2014) (internal quotation omitted).
B.
In July 2009, Porretto filed a voluntary petition for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of Texas. Porretto claims that she was “forced” to file for Chapter 11 bankruptcy because her ongoing litigation with the GLO made it impossible for her to sell the Porretto Beach property. In December 2011, Porretto‘s bankruptcy case was converted to a Chapter 7 proceeding, and a trustee was appointed. On June 25, 2020, after the trustee was unable to close on sales of Porretto Beach, the bankruptcy court issued an order abandoning the Porretto Beach property, at which point “the ownership and control of the Porretto Beach property reverted to ... Porretto.” Porretto‘s bankruptcy estate was deemed fully administered in April 2022, and the bankruptcy case was closed on June 22, 2022.
C.
On June 25, 2021, exactly one year after Porretto Beach was abandoned to her, Porretto filed a lawsuit in the U.S. Bankruptcy Court for the Southern District of Texas, naming as defendants the Park Board, the City of Galveston, the GLO, and GLO Commissioner George P. Bush (collectively, “Defendants“).1 In her original complaint, Porretto asserted that the bankruptcy court had jurisdiction pursuant to
In the operative third amended complaint, Porretto alleges that Defendants have taken various actions to “limit her use, control, and operation of Porretto Beach.” Porretto first contends that Defendants’ work on the “Stewart Beach Drainage Project,” a GLO-funded City project aimed at improving drainage conditions at a public beach adjacent to Porretto Beach, has caused, and continues to cause, flooding at Porretto Beach. Porretto includes in her complaint several photos of construction crews purportedly digging trenches and swales that diverted water toward Porretto Beach.
Porretto organizes her allegations against Defendants into fourteen discrete causes of action:
- I) a Fifth Amendment claim for the taking of a flowage easement without just compensation;
- II) a Fifth Amendment claim for the taking of “Other Property Interests” without just compensation;
- III) an inverse condemnation claim under Texas law;
- IV) a Fifth Amendment takings claim for interference with Porretto Beach‘s accretion levels;
- V) a claim under Article I, Section 17 of the Texas Constitution for the taking, damaging, or destruction of property;
- VI) a Fourteenth Amendment claim for depriving Porretto of her property interests in violation of her procedural and substantive due process rights;
- VII) a breach of settlement claim against the Park Board;
- VIII) tortious interference, harassment, and retaliation claims;
- IX) a claim for violation of the Texas Water Code;
- X) a claim seeking an accounting of all funds received from requests that reference any part of Porretto Beach, and reimbursement of funds that were never used to improve Porretto Beach;
- XI) a claim seeking injunctive relief preventing Defendants from referring to Porretto Beach as public property and from further carrying out construction on Stewart Beach without an agreement with Porretto;
- XII) a claim seeking a declaratory judgment that the rights of ways claimed by the City on the Porretto Beach property are terminated or abandoned;
- XIII) a claim seeking a declaratory judgment recognizing Porretto‘s mineral interests and determining the boundaries of submerged lands allegedly owned by the State;
- XIV) a claim under the Texas Tort Claims Act for damages caused to Porretto Beach by governmental functions.
Within a week of filing her original complaint, Porretto filed a first amended complaint. On August 13, 2021, both the GLO and the Galveston Defendants filed motions to dismiss, asserting that the bankruptcy court lacked jurisdiction to hear the lawsuit. That same day, Porretto filed a second amended complaint without obtaining leave to amend. On September 3, 2021, Porretto filed oppositions to Defendants’ motions to dismiss, and she filed amendments to these filings four days later.
Although Porretto never received leave to file a second amended complaint, Defendants filed new motions to dismiss responding to the second amended complaint out of an abundance of caution. Porretto thereafter filed oppositions to this second round of motions to dismiss. Then, on November 13, 2021, Porretto filed a third amended complaint, along with a motion for leave to amend her pleadings.
On March 7, 2022, the district court denied Porretto‘s motion for a temporary restraining order, but granted Porretto leave to file a third amended complaint. The district court denied as moot Defendants’ live motions to dismiss (which were filed in response to Porretto‘s second amended complaint), and it instructed Defendants that they could file renewed motions to dismiss responding to Porretto‘s live third amended complaint within thirty days.
Defendants filed renewed motions to dismiss on April 22, 2022. In their motions to dismiss, both groups of Defendants argued that the district court lacks bankruptcy jurisdiction over Porretto‘s lawsuit. Defendants also contended that Porretto‘s claims are barred by governmental immunities. The GLO‘s motion to dismiss further argued that Porretto lacks standing to raise her claims against the State, since her complaint alleges no causal connection between her alleged injuries and the GLO‘s conduct. In addition to raising these jurisdictional arguments, Defendants’ motions to dismiss also posited that Porretto‘s complaint does not state plausible claims for relief. In her oppositions to Defendants’ renewed motions to dismiss, Porretto requested that she “be afforded an opportunity to amend the Complaint if the Court deems additional factual allegations are necessary.”
On December 7, 2022, the district court granted Defendants’ motions to dismiss. Addressing solely the GLO‘s motion to dismiss first, the district court agreed with the GLO that Porretto‘s complaint fails to sufficiently allege that the GLO‘s conduct caused her purported injuries.
The district court also concluded that it could not exercise jurisdiction over Porretto‘s lawsuit pursuant to
The district court further concluded that it could not exercise federal question jurisdiction under
After determining that it lacked jurisdiction to hear Porretto‘s case, the district court denied Porretto another opportunity
II.
We review de novo the district court‘s grant of Defendants’ motions to dismiss filed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “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.” Id. The plaintiff bears the burden of proof in establishing that jurisdiction does in fact exist. Id. When reviewing a district court‘s dismissal based on lack of subject matter jurisdiction, “we take the well-pled factual allegations of the complaint as true and view them in the light most favorable to the plaintiff.” Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
III.
Before addressing jurisdiction under
We agree with the district court that Porretto‘s operative complaint is clearly deficient vis-à-vis her claims against the GLO. In fact, Porretto‘s complaint hardly mentions the GLO at all. For instance, it is true that Porretto alleges generally that “all Defendants” participated in the Stewart Beach Drainage Project that purportedly resulted in flooding at Porretto Beach, but she alleges no facts indicating what role, if any, the GLO played in implementing this project. She similarly alleges no facts indicating that the GLO participated in the Park Board‘s purported sand mining, only speculating that the GLO knew or “should have known” about these activities.2 Porretto‘s complaint does vaguely allege that the
While Porretto‘s complaint is deficient in this regard, the record indicates that there may, in fact, be a causal nexus between the GLO and the Stewart Beach Drainage Project. Specifically, record evidence indicates that the project involved comprehensive monitoring by the GLO, which required the Park Board to conduct an environmental assessment for the project and submit periodic progress reports highlighting the project‘s advancement and setbacks. Additionally, after reviewing the Park Board‘s project proposal, the GLO submitted comments and recommendations to the Park Board for implementing the project. The grant agreement between the Park Board and the GLO further required the Park Board to coordinate with the GLO prior to engaging with the media and to seek approval from the GLO before making any changes “in the scope of work or budget requests that change the total project cost.” Taking this evidence into account, the record contains some indication that the GLO was an active partner with the Park Board in planning and implementing the Stewart Beach Drainage Project.
This case presents us with an admittedly odd scenario: Record evidence indicates that a defendant may, in fact, have been involved in the
activities that purportedly resulted in the plaintiff‘s injuries, but the plaintiff has failed to allege this involvement in her complaint. It is true that we have held that courts, when ruling on a motion to dismiss for lack of subject matter jurisdiction, may consider “the complaint supplemented by undisputed facts evidenced in the record.” Ramming, 281 F.3d at 161. But while it may be permissible for us to supplement allegations against the GLO with record evidence, Porretto‘s complaint is devoid of specific allegations against the GLO in the first place. Plus, even if we concluded that Porretto has standing to sue the GLO, her complaint‘s failure to raise “a right to relief above the speculative level” vis-à-vis her claims against the GLO would result in the dismissal of these claims regardless. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
At bottom, the cure for a deficient complaint is an amended complaint, not for this court to find standing based on a hypothetical, improved complaint with more facts alleged. Porretto will be free on remand to request leave to file an amended complaint, if she so chooses.3 However, based on the complaint before us, we cannot say that the district court erred in dismissing Porretto‘s claims against the GLO for lack of standing. We thus AFFIRM the district court‘s dismissal of Porretto‘s claims against the
GLO and its
IV.
Porretto‘s third amended complaint asserts that the federal court has jurisdiction pursuant to
A.
Porretto primarily focuses her jurisdictional arguments on
Contrary to Porretto‘s interpretation, courts addressing
Though none of these authorities are binding on this court, taken together, they do indicate a consensus among federal courts on this issue:
[T]he exclusive jurisdiction granted in section 1334(e)(1) extends not only to property of the debtor as of the commencement of the case, but also to property of the estate. During the course of title 11 cases in general and of chapter 11 cases in particular, the estate acquires property in addition to or different from the property of the debtor as it existed as of the commencement of the title 11 case. Section 1334(e) makes it clear that both kinds of property are subject to its provisions. Jurisdiction is lost once the property is no longer property of the estate. Likewise, the district court has exclusive jurisdiction to determine whether property is property of the estate to begin with.
1 COLLIER ON BANKRUPTCY ¶ 3.01 (Richard Levin & Henry J. Sommer eds., 16th ed. 2024) (emphasis added) (collecting cases); see also 5 id. ¶ 554.02 (“Usually, abandonment of property will end the court‘s jurisdiction to determine disputes concerning that property, unless the result of the dispute could have some effect on the bankruptcy case.“).6
This prevailing interpretation of
In other words, the function of
insofar as that property [is] concerned,” and the district court‘s exclusive jurisdiction over that property pursuant to
Porretto correctly points out, however, that courts in some instances have invoked
Central to the court‘s reasoning was its conclusion that “an adversary proceeding to resolve a dispute between two competing lienholders involving property that is property of the debtor but is not property of the estate” is a “core proceeding” under
The same bankruptcy court, citing Gunter, reached a similar conclusion in In re Ormond, No. 12-05489-8-SWH, 2015 WL 1000218, at *2–3 (Bankr. E.D.N.C. Mar. 3, 2015), a case concerning a bank‘s request for reimbursement of attorney‘s fees following a foreclosure sale of abandoned property. In exercising jurisdiction under
Finally, in In re Fong, No. 01-00242, 2005 WL 3964429, at *1 (Bankr. D. Haw. Nov. 18, 2005), the U.S. Bankruptcy Court for the District of Hawaii determined that it had jurisdiction to “enter an order transferring a disputed tax lien and a judgment lien from property, some of which ha[d] been abandoned and some of which ha[d] not, to the proceeds of sale of the abandoned property.” The court cited
We do not find Gunter, Ormond, and Fong persuasive here. Given
The remaining cases cited by Porretto supporting jurisdiction under
Porretto has not presented a compelling reason for us to break from the prevailing consensus on
B.
We have read this jurisdictional grant broadly, stating that the test for whether a proceeding properly invokes federal “related to” jurisdiction is whether the outcome of the proceeding could conceivably affect the estate being administered in bankruptcy. Certainty is unnecessary; an action is “related to” bankruptcy if the outcome could alter, positively or negatively, the debtor‘s rights, liabilities, options, or freedom of action or could
influence the administration of the bankrupt estate.
(internal citations omitted).
That said, while
Here, we find that Porretto has not convincingly asserted that the present lawsuit could have affected her bankruptcy estate at the time of filing. Porretto notes that the Porretto Beach property has secured creditors, and that “damaging the property, taking the property, and/or inverse condemnation of the property are all claims that necessarily impact the secured creditor as her collateral is harmed.” She also asserts that if she receives damages in this case, “it is possible that the special counsel hired as an estate professional in the bankruptcy court [could] assert a claim to the proceeds.” Defendants counter that Porretto Beach was not part of the bankruptcy estate at the time of this lawsuit‘s filing; thus, if creditors have secured interests in Porretto Beach, they will recover from either Porretto or the property, not the bankruptcy estate. And, any awards from a favorable judgment would not have accrued to the bankruptcy estate.
For two reasons, we find that Defendants have the better argument. First, Porretto‘s lawsuit pertains to the Porretto Beach property, and we have held that a “debtor‘s rights to [abandoned] property are treated as if no bankruptcy petition was filed.” Kane v. Nat‘l Union Fire Ins., 535 F.3d 380, 385 (5th Cir. 2008) (quoting 5 COLLIER ON BANKRUPTCY ¶ 554.02 (Alan N. Resnick & Henry J. Sommer eds., 15th ed. 2008)). Accordingly, “[u]sually[] abandonment of property will end the court‘s jurisdiction to determine disputes concerning that property.” 5 COLLIER ON BANKRUPTCY ¶ 554.02; see also WILLIAM L. NORTON III, 3 NORTON BANKRUPTCY LAW AND PRACTICE § 74:2 (3d ed. 2024) (“The bankruptcy court loses subject matter jurisdiction over property on its abandonment, unless the property is claimed exempt by the debtor.“); In re Lyn, 483 B.R. 440, 451 (Bankr. D. Del. 2012) (determining that the court lacked subject matter jurisdiction under
Second, Porretto‘s claims all allege post-bankruptcy petition conduct. “Generally, post-petition claims are not dischargeable in bankruptcy and, therefore, do not affect the estate.” Wood, 825 F.2d at 94; see also In re
Rhinesmith, 450 B.R. 630, 632 (Bankr. W.D. Tex. 2011) (“Unlike pre-petition claims, claims which accrue to the debtor post-petition generally will not adhere to the estate, and remain actionable by the debtor.” (quoting Stanley v. Cmty. Bank, N.A., No. 8:08-CV-925 GLS/RFT, 2009 WL 261333, at *2 (N.D.N.Y. Feb. 4, 2009)))).
At bottom, it is Porretto‘s burden to establish that jurisdiction exists, Ramming, 281 F.3d at 161, so we need not engage in endless speculation over hypothetical scenarios linking this lawsuit to the administration of the bankruptcy estate. Because Porretto has not clearly identified how her claims, which concern an abandoned property, could impact the bankruptcy estate, we find that the district court did not err in concluding that it could not exercise jurisdiction over Porretto‘s lawsuit pursuant to
V.
While Porretto‘s arguments for jurisdiction pursuant to
In Johnson, the Supreme Court plainly held that plaintiffs pleading constitutional claims cannot have their complaint dismissed based on a failure to invoke
Though Porretto failed to cite
In response to Porretto‘s invocation of the rule enunciated in Johnson v. City of Shelby, the Galveston Defendants suggest that this is a case where “the basis of federal jurisdiction is intertwined with the plaintiff‘s federal cause of action,” and that therefore “the court should assume jurisdiction over the case and decide the case on the merits.” Eubanks v. McCotter, 802 F.2d 790, 792-93 (5th Cir. 1986). More specifically, the Galveston Defendants argue that because Porretto cannot meet the requirements for pleading a
Where factual findings regarding subject matter jurisdiction are intertwined with the merits, this court has applied the standard described in Bell v. Hood, 327 U.S. 678, 682-83 (1946), which provides that a federal claim “should not be dismissed for lack of subject matter jurisdiction unless the alleged claim is immaterial or is wholly insubstantial and frivolous.” See Clark v. Tarrant County, 798 F.2d 736, 741-42 (5th Cir. 1986). This standard “is met only where the plaintiff‘s claim ‘has no plausible foundation’ or ‘is clearly foreclosed by a prior Supreme Court decision.‘” Williamson v. Tucker, 645 F.2d 404, 416 (5th Cir. 1981) (quoting Bell v. Health-Mor, Inc., 549 F.2d 342, 344 (5th Cir. 1977)). To determine whether this standard applies, we look to “the extent to which the jurisdictional question is intertwined with the merits, considering such factors as whether the statutory source of jurisdiction differs from the source of the federal claim and whether judicial economy favors early resolution of the jurisdictional issue.” In re S. Recycling, L.L.C., 982 F.3d 374, 380 (5th Cir. 2020) (emphasis in original).
Defendants’ argument that we should apply the “intertwined with the merits” standard has some support; this court has held that invoking federal question jurisdiction for a claim brought pursuant to
Even if the “intertwined with the merits” standard applies, we do not find that Porretto‘s claims are “immaterial and made solely for the purpose of obtaining jurisdiction or . . . wholly insubstantial and frivolous.” Bell, 327 U.S. at 682-83. Porretto alleges that Defendants’ activities resulted in flooding and erosion at her beach property, and it is well established that government-caused flooding and erosion may constitute a taking. See, e.g., United States v. Dickinson, 331 U.S. 745, 750 (1947) (“When [the government] takes property by flooding, it takes the land which it permanently floods as well as that which inevitably washes away as a
Furthermore, while we decline at this juncture to prejudge the merits of Porretto‘s
Though we find that the district court has federal question jurisdiction, Porretto still faces hurdles in overcoming the Galveston Defendants’ motion to dismiss, including Defendants’ invocation of governmental immunity, as well as their assertion that Porretto‘s complaint should be dismissed for failure to state a claim under
VI.
In addition to challenging the district court‘s dismissal of her claims,
Porretto never filed a motion requesting leave to amend her operative third amended complaint; instead, in her oppositions to Defendants’ motions to dismiss, Porretto asked to be “afforded an opportunity to amend the Complaint if the Court deems additional factual allegations are necessary.” We cannot fault the district court for refusing to grant Porretto leave to amend under these circumstances, since a “bare bones” request to amend pleadings “remains futile when it ‘fail[s] to apprise the district court of the facts that [the plaintiff] would plead in an amended complaint.‘” Edionwe v. Bailey, 860 F.3d 287, 295 (5th Cir. 2017) (quoting Gentilello v. Rege, 627 F.3d 540, 546 (5th Cir. 2010)). Accordingly, we AFFIRM the district court‘s decision to deny leave to amend.10
VII.
Finally, we address the district court‘s denial of Porretto‘s motion seeking the recusal of U.S. District Judge Jeffrey V. Brown.
In applying the recusal statute, we consider “whether a reasonable and objective person, knowing all of the facts, would harbor doubts concerning the judge‘s impartiality.” United States v. Jordan, 49 F.3d 152, 155 (5th Cir. 1995). This objective standard considers the perspective of the “well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person.” Andrade v. Chojnacki, 338 F.3d 448, 455 (5th Cir. 2003) (quoting Jordan, 49 F.3d at 156). “[E]ach
Porretto raises several grounds for concluding that Judge Brown should have recused himself. First, and most prominently, Porretto notes that Judge Brown had a mechanic‘s lien filed against his home in favor of Galveston Councilmember John Listowski‘s company in the amount of $72,683.99. Because the mechanic‘s lien is a “substantial financial obligation,” Porretto speculates that Listowski and Judge Brown may have “a close relationship” because of “the nature of the work given a contractor is in the home and would see the personal details of the judge‘s life.” Porretto also notes that Listowski regularly votes against Porretto‘s interests, and she opines that it is inappropriate for Judge Brown to conduct business with a local elected official who could feasibly appear before the court. According to Porretto, the appearance of impropriety is heightened here because Judge Brown lives next door to Galveston‘s mayor.
Porretto further takes issue with the tone of the court‘s order denying her motion for a new trial and motion for recusal. She notes that the court filed this order twice; the first order noted that “plaintiff‘s motion for new trial . . . and—filed just yesterday—her motion to recuse the undersigned” were before the court, and the second order omitted the language indicated above in italics. (emphasis added). Porretto claims that this first filing, as well as the court‘s order granting Defendants’ motions to dismiss, contains an inappropriate “personal tone” that evinces bias against Porretto. Porretto further contends that Judge Brown‘s bias is reflected by the fact that the district court‘s order granting Defendants’ motions to dismiss in some instances adopts language from Defendants’ filings.
Porretto additionally notes that Defendants’ counsel collectively donated over $9,000 to Judge Brown‘s judicial campaigns when he served on the state bench. She claims that the contributions’ “relative
Regarding the mechanic‘s lien that connected Judge Brown and Galveston Councilmember John Listowski professionally, courts have regularly held that casual, professional relationships—even those between a judge and a party to a case—do not warrant recusal. See, e.g., McWhorter v. City of Birmingham, 906 F.2d 674, 679 (11th Cir. 1990) (holding, in a lawsuit against the City of Birmingham, that the judge‘s friendship and business relationship with the Mayor of Birmingham did not “create the appearance of impropriety“); Jenson v. Fisher, 99 F.3d 1149, 1996 WL 606505 at *2 (10th Cir. 1996) (“Professional associations alone are insufficient to establish judicial bias.“); United States v. Olis, 571 F. Supp. 2d 777, 786 (S.D. Tex. 2008) (“Judges are not required to recuse . . . when facts stated in a supporting affidavit show that they have a casual, professional relationship with an attorney, victim, witness, or litigant appearing before them in court.“).
Porretto‘s argument that the mechanic‘s lien creates the appearance of impropriety is unpersuasive. The professional relationship between Judge Brown and Councilmember Listowski does not alone establish a “personal relationship of such magnitude that the judge cannot be impartial.” Olis, 571 F. Supp. 2d at 786. Furthermore, it is unclear what role, if any, Councilmember Listowski will play in this litigation. As the Eleventh Circuit explained in McWhorter, personal ties to a municipal leader—who is not a party or witness in the case—are insufficient to create the appearance of impropriety in a
Porretto‘s other allegations regarding Judge Brown‘s relationships are similarly uncompelling. The fact that Judge Brown lives next door to the Mayor of Galveston is hardly grounds for recusal, especially considering that the Mayor‘s involvement in this lawsuit is unclear. Furthermore, Judge Brown‘s role on the University of Houston Law Review‘s Board of Directors is an ordinary professional association that does not create the appearance of impropriety.
Turning to the campaign contributions provided to Judge Brown, Defendants note that “Texas courts have repeatedly rejected the notion that a judge‘s acceptance of campaign contributions from lawyers creates bias necessitating recusal, or even an appearance of impropriety.” Aguilar v. Anderson, 855 S.W.2d 799, 802 (Tex. App.— El Paso 1993, writ denied) (collecting cases); see also Rocha v. Ahmad, 662 S.W.2d 77, 78 (Tex. App.— El Paso 1983, writ denied) (“If a judge cannot sit on a case in which a contributing lawyer is involved as counsel, judges who have been elected would have to recuse themselves in perhaps a majority of the cases filed in their courts.“). In any event, Judge Brown now serves on the federal bench, which largely ameliorates any possible concern regarding “[t]he temporal relationship between the campaign contributions, the [judge‘s] election, and the pendency of the case.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 886 (2009) (reviewing the due process factors that courts look to when addressing the potential bias of a judge who received campaign contributions from a party).
Porretto‘s arguments related to the district court‘s “personal tone” also are
Finally, while Porretto claims that she filed a motion for recusal shortly after learning of the mechanic‘s lien, the timing of Porretto‘s motion gives us pause. “The general rule on timeliness requires that ‘one seeking disqualification must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification.‘” United States v. Sanford, 157 F.3d 987, 988 (5th Cir. 1998) (quoting Travelers Ins. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)). “We have rejected recusal challenges on appeal when the challenger waited to see if he liked an outcome before springing the recusal issue.” Id. at 989. While not dispositive, the fact that Porretto raised this issue after receiving an adverse judgment raises concerns regarding whether her motion was brought in good faith.
In sum, Porretto‘s brief highlights Judge Brown‘s seemingly innocuous professional connections, which do not create the appearance of impropriety. Several of these connections are with nonparty individuals whose relation to this litigation is unclear. And the campaign contributions are of limited concern, since Judge Brown now sits on the federal bench. We therefore AFFIRM the district court‘s denial of Porretto‘s motion for recusal, and we DENY Porretto‘s request for this case to be reassigned to a judge in the Houston Division on remand. See Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 581 (5th Cir. 2005) (noting that reassigning a case to a different judge on remand is an “extraordinary power that should be rarely exercised” (internal quotation omitted)).
VIII.
For the foregoing reasons, we AFFIRM the district court‘s denial of Porretto‘s claims against the GLO and its Commissioner without prejudice. We VACATE the district court‘s dismissal of Porretto‘s claims against the Park Board and the City of Galveston, and we REMAND with instructions for the district court to consider these Defendants-Appellees’ alternative arguments for dismissal, as well as the issue of supplemental jurisdiction over Porretto‘s state law claims. We also AFFIRM the district court‘s decision to deny Porretto leave to amend her complaint, though we note that Porretto may file a substantive motion for leave to amend on remand if she so chooses. Finally, we AFFIRM the district court‘s denial of Porretto‘s motion for recusal, and we DENY Porretto‘s request for her case to be reassigned to a judge in the Houston Division on remand.