Porretto v. City of Galveston

Case: 23-40035         Document: 103-1           Page: 1   Date Filed: 08/21/2024




          United States Court of Appeals
               for the Fifth Circuit
                                 ____________
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                  No. 23-40035                               FILED
                                 ____________                          August 21, 2024
                                                                        Lyle W. Cayce
Sonya Porretto,                                                              Clerk

                                                             Plaintiff—Appellant,

                                        versus

The City of Galveston Park Board of Trustees; The
City of Galveston, Texas; Texas General Land Office;
Dawn Buckingham, Commissioner of the Texas General Land Office,

                                           Defendants—Appellees.
                  ______________________________

                  Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 3:21-CV-359
                  ______________________________

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.
      _____________________
      ∗
          Judge Oldham concurs in the judgment only.
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                                    No. 23-40035


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 

; and (3) the court lacks federal question 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 § 1334
would be improper here, but we conclude that the court does have federal
question jurisdiction over Porretto’s constitutional claims.
          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



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                                 No. 23-40035


deficiencies if she so chooses. Finally, we AFFIRM the district court’s order
denying 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.
                                       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., 

(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




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                                    No. 23-40035


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 

(b),
because her claims arose under Title 11 or were related to Porretto’s then-
active bankruptcy case.
         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 also contends that the Park Board has excavated sand from
Porretto Beach, resulting in manufactured erosion data. She claims that this
erosion data is utilized by the Park Board to acquire federal and state

         _____________________
         1
          Throughout this opinion, we refer to the Park Board and the City of Galveston
collectively as the “Galveston Defendants,” and the GLO and its Commissioner
collectively as the “GLO.” Dawn Buckingham currently serves as Commissioner of the
GLO and is listed as a Defendant-Appellee in the current appeal.




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                                 No. 23-40035


renourishment funds. Porretto further alleges that during her bankruptcy
proceedings, the Park Board leased Porretto Beach to concessionaries and
referred to Porretto Beach as if it had authority to lease the property.
       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;




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                                 No. 23-40035


          • 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 December 21, 2021, following a hearing on the motions to dismiss
and the motion for leave to amend, the bankruptcy court sua sponte
transferred the adversarial proceeding to the U.S. District Court for the
Southern District of Texas, Galveston Division. About two months later,
Porretto filed a motion for a temporary restraining order, requesting that the
district court enjoin Defendants from carrying out any construction work
related to the Stewart Beach Drainage Project.
       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




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                                  No. 23-40035


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 

. Regarding § 1334(b),
which gives federal district courts jurisdiction over “civil proceedings . . .
arising in or related to cases under title 11,” the district court concluded that
Porretto’s claims do not relate to Porretto’s bankruptcy case “because the
abandoned property is no longer part of the estate nor will the claims affect
the bankruptcy case because each of the claims is personal to Porretto, and
her bankruptcy case has now been fully administered.” The district court
also concluded that § 1334(e)(1), which gives “[t]he district court in which a
case under title 11 is commenced or is pending . . . exclusive jurisdiction . . .




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                                 No. 23-40035


of all the property, wherever located, of the debtor as of the commencement
of such case, and of property of the estate,” also does not apply, reasoning
that § 1334(e)(1) does not confer jurisdiction over claims pertaining to
property that has been abandoned by the estate.
       The district court further concluded that it could not exercise federal
question jurisdiction under 

. Although Porretto alleged
unconstitutional takings in violation of the Fifth Amendment, she did so only
through a direct invocation of the federal Constitution. The district court
noted that the proper vehicle for asserting a Fifth Amendment takings claim
is 

, which Porretto did not invoke in her third amended
complaint.
       After determining that it lacked jurisdiction to hear Porretto’s case,
the district court denied Porretto another opportunity to amend her
complaint. About one month after the district court granted Defendants’
motions to dismiss, Porretto filed a motion requesting the recusal of U.S.
District Judge Jeffrey V. Brown and the reassignment of her case to a district
judge in the Houston Division. In her motion, Porretto raised several of Judge
Brown’s personal and professional connections that she claimed create the
appearance of impropriety. After the district court denied Porretto’s motion
for recusal, as well as her motion for a new trial, Porretto filed a notice of
appeal.
                                     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, 

 (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.” 

 The plaintiff bears the




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                                   No. 23-40035


burden of proof in establishing that jurisdiction does in fact exist. 

 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, 

 (5th Cir. 2008).
                                       III.
       Before addressing jurisdiction under 

 and 

, the district court in its order granting Defendants’ motions to dismiss
first concluded that Porretto lacks standing to sue the GLO because her
complaint does not sufficiently establish a causal link between the GLO’s
conduct and her alleged injuries. “Constitutional standing has three
elements: (1) an ‘injury in fact’ that is (a) concrete and particularized and (b)
actual or imminent; (2) a causal connection between the injury and the
conduct complained of; and (3) the likelihood that a favorable decision will
redress the injury.” Croft v. Governor of Tex., 

 (5th Cir.
2009) (quoting Lujan v. Defs. of Wildlife, 

, 560–61 (1992)). For
the causation element of standing to be satisfied, “the injury must be fairly
traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.” Bennett v.
Spear, 

 (1997).
       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




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                                     No. 23-40035


speculating that the GLO knew or “should have known” about these
activities. 2 Porretto’s complaint does vaguely allege that the GLO surveyed
Porretto Beach, but this allegation lacks any detail about how the survey was
performed, and it is difficult to ascertain how this alleged surveying activity
resulted in a cognizable injury that fits within her complaint’s causes of
action.
          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

          _____________________
          2
          The complaint appears to allege that the Park Board utilized manufactured
erosion data (purportedly the result of its sand mining) to obtain GLO funding for an
“Erosion Response Project a/k/a Seawall Beautification Project” in 2013. But still, the
complaint does not allege facts indicating that the GLO was involved in the Park Board’s
alleged sand mining scheme.




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                                       No. 23-40035


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, 

. 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, 

 (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



        _____________________
        3
         To avoid prejudging any 12(b)(6) issues, we decline to definitively decide whether
Porretto would be entitled to such leave from the court; after all, if the district court
determines that Porretto’s allegations of unlawful activity, when taken as true, fail to state
a claim upon which relief can be granted, then it may be futile for Porretto to tack on to her
complaint more allegations about the GLO’s purported involvement. However, in the
event that amendment would not be futile, we note this court’s general rule that “[l]eave
to amend should be liberally granted, when the plaintiff might be able to state a claim based
on the underlying facts and circumstances.” Ass’n of Am. Physicians & Surgeons Educ.
Found. v. Am. Bd. of Internal Med., 

, 394 (5th Cir. 2024) (quoting Hernandez
v. W. Tex. Treasures Est. Sales, L.L.C., 

 (5th Cir. 2023)).




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GLO and its Commissioner without prejudice. 4 For the remainder of this
opinion, we address Porretto’s remaining claims against the Galveston
Defendants.
                                             IV.
        Porretto’s third amended complaint asserts that the federal court has
jurisdiction pursuant to 

 because Porretto’s claims “arise[]
from or relate[] to” Porretto’s bankruptcy case. Her briefing more
specifically asserts jurisdiction under both § 1334(e)(1) and § 1334(b). We
address each subsection in turn.
                                             A.
        Porretto primarily focuses her jurisdictional arguments on 

(e)(1), which grants “[t]he district court in which a case under title 11
is commenced or is pending . . . exclusive jurisdiction . . . of all the property,
wherever located, of the debtor as of the commencement of such case, and of
property of the estate.” Porretto interprets this provision broadly, asserting
that when a debtor is in a bankruptcy proceeding, the district court has
exclusive jurisdiction over all claims related to her property, including
property that has been abandoned by the trustee and is no longer part of the
bankruptcy estate.


        _____________________
        4
          Because we are affirming the district court’s dismissal of Porretto’s claims against
these Defendants, we decline to address Porretto’s argument that she has a self-executing
right to bring a takings claim against the State of Texas. In DeVillier v. Texas, 

,
292–93 (2024), the Supreme Court declined to answer the question of “whether a plaintiff
has a cause of action arising directly under the Takings Clause,” since Texas’s “state-law
inverse-condemnation cause of action provides a vehicle for takings claims based on both
the Texas Constitution and the Takings Clause.” Of course, DeVillier’s holding will be
salient if Porretto attempts to amend her claims against the GLO, but we need not
prematurely address that issue here.




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        Contrary       to    Porretto’s      interpretation,       courts      addressing
§ 1334(e)(1)’s scope have consistently held that § 1334(e)(1) grants federal
courts limited, exclusive in rem jurisdiction that cannot be exerted over
abandoned property. 5 See, e.g., In re Mitchell-Smith, No. 21-57646-WLH,

, at *3 (Bankr. N.D. Ga. June 17, 2022) (“Abandonment is
an act of jurisdictional significance that removes the abandoned property
from the bankruptcy court’s exclusive in rem jurisdiction.” (citing 

(e))); In re Nyamusevya, No. 19-8027, 

, at *6 (B.A.P.
6th Cir. Jan. 20, 2021) (“[T]he Trustee had determined . . . that the Property
was of inconsequential value or benefit to the estate, and her abandonment
was an act of jurisdictional significance, removing the Property from the
bankruptcy court’s exclusive in rem jurisdiction.” (citing 

(e))); Lewis v. Harris, No. 3:08-CV-588 HTW-LRA, 

, at *6 (S.D. Miss. Apr. 5, 2012) (“This court immediately
recognizes that it does not have jurisdiction under § 1334(e), which provides
jurisdiction over property of the estate. As noted above, once the trustee
abandoned this case, it was no longer property of the estate and became the
property of [the debtor].”); see also In re Danley, 

 (Bankr.
M.D. Ala. 2016) (“[A] bankruptcy court’s in rem jurisdiction [pursuant to 

(e)(1)] over property only lasts so long as that property remains
in the estate; if the property leaves the estate, in rem jurisdiction lapses.”);
In re Sindram, No. 08-00559, 

, at *2 (Bankr. D.D.C. Jan. 28,
2010) (finding no jurisdiction under § 1334(e), because “[t]he closing of the
[bankruptcy] case abandoned the property to the debtor and resulted in the


        _____________________
        5
           Because we find that the district court correctly held that it could not exercise
jurisdiction pursuant to § 1334(e)(1) due to the abandonment of the Porretto Beach
property, we need not address the GLO’s alternative argument that inverse
condemnation/takings actions are not in rem proceedings.




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                                      No. 23-40035


estate having been fully administered insofar as that property was
concerned”).
        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 § 1334(e)(1) appears to align with the
provision’s function in context. As the U.S. Bankruptcy Court for the
District of Columbia explained in In re Ostroff, 

 (Bankr.

        _____________________
        6
           Without citing § 1334(e)(1) explicitly, this court acknowledged “the general rule
that a bankruptcy court loses jurisdiction over assets once they are transferred from the
bankruptcy estate” in In re Skuna River Lumber, LLC, 

 (5th Cir. 2009),
though that case concerned property sold by the estate, not property that the estate had
abandoned back to the debtor. Still, Skuna River indicates that a district court’s exclusive
jurisdiction over property may lapse depending on the status of the property at issue.




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                                        No. 23-40035


D.D.C. 2010), “Section 1334(e) provides that the court has exclusive
jurisdiction over the property of the debtor as of the commencement of the
case because 

(a)(1) defines property of the estate as including,
with minor exceptions, all of the property of the debtor as of the
commencement of the case.” See also In re Brown, 

 (Bankr.
S.D. Tex. 2014). Under this statutory scheme, the “debtor’s property must
first come into the estate, subject to the property being exempted and the
bankruptcy court’s determining questions relating to claims of exemption,
and is thus subject in that sense to administration by the bankruptcy court.”
Ostroff, 

. Therefore, the function of § 1334(e)(1) in context is
to “divest[] any other court of the authority to take jurisdiction over the res
being administered by the trustee for the benefit of unsecured creditors,” and
that res “includes the debtor’s property as of the commencement of the case
that becomes property of the estate on that date under 

(a)(1).” 

        In other words, the function of § 1334(e)(1)—and its language
concerning property “of the debtor as of the commencement of such case”—
is to facilitate the bankruptcy estate’s administration of the debtor’s
property, and not, as Porretto suggests, for the bankruptcy court to exercise
jurisdiction over the debtor’s property in perpetuity. 7 It reasonably follows
that when a property is abandoned, “the estate ha[s] been fully administered

        _____________________
        7
          Accordingly, we are not persuaded by Porretto’s argument that the district court
retained jurisdiction over the Porretto Beach property after abandonment because Porretto
Beach became property “of the debtor.” § 1334(e)(1) grants the district court jurisdiction
over property “of the debtor as of the commencement of such case,” i.e., property of the debtor
that is subject to the bankruptcy estate’s administration. (emphasis added); cf. Ostroff, 433
B.R. at 452–53 (discussing exempt property, and noting that “[o]nce such property is
exempted from the estate, it is property of the debtor anew, and is no longer property being
administered by the bankruptcy trustee as property of the debtor as of the commencement
of the case” (internal quotation omitted)).




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insofar as that property [is] concerned,” and the district court’s exclusive
jurisdiction over that property pursuant to § 1334(e)(1) lapses. See Sindram,

, at *2.
       Porretto correctly points out, however, that courts in some instances
have invoked § 1334(e)(1) to exercise jurisdiction over abandoned property.
For instance, in In re Gunter, 

 (Bankr. E.D.N.C. 2008), the
U.S. Bankruptcy Court for the Eastern District of North Carolina addressed
whether it had jurisdiction to rule on a motion for summary judgment in an
adversarial proceeding involving a dispute between creditors regarding lien
priority. The court held that although the property at issue had been
abandoned, it was still “property of the debtor over which [the] court ha[d]
jurisdiction” under § 1334(e)(1). Id. at 180–81.
       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 

(b)(2) that is subject to a
bankruptcy court’s jurisdiction. 

; see 

(b)(2)(K)
(listing “determinations of the validity, extent, or priority of liens” as core
proceedings). Furthermore, the court concluded that were one of the
creditors to prevail in the adversarial proceeding, its competing creditor
“would be the largest unsecured creditor of the estate, and its claim would
certainly affect any distribution received by the other unsecured creditors.”
Gunter, 

. Therefore, the court also considered the case to be a
“core proceeding” subject to bankruptcy court jurisdiction under
Ҥ 157(b)(2)(A) (matters concerning the administration of the estate),
§ 157(b)(2)(B) (allowance or disallowance of claims against the estate), and
§ 157(b)(2)(O) (other proceedings affecting the adjustment of the debtor-
creditor relationship).” Id.




                                          16
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                                 No. 23-40035


       The same bankruptcy court, citing Gunter, reached a similar
conclusion in In re Ormond, No. 12-05489-8-SWH, 

, 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 § 1334(e)(1), the bankruptcy court
noted that the outcome of the proceeding would have “a direct effect on the
amount of proceeds . . . unsecured claimants will receive.” Id. at *4.
       Finally, in In re Fong, No. 01-00242, 

, 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 § 1334(e)(1) as a basis for exercising
jurisdiction over the abandoned property. Id. at *3. However, the court also
determined that the proceeding was “related to” a bankruptcy case and
exercised jurisdiction under 

(b), because “there [was] a lien
that encumber[ed] both abandoned property and estate property,” and thus
“the treatment of the lien on the abandoned property will affect the
administration of the estate.” 

       We do not find Gunter, Ormond, and Fong persuasive here. Given
§ 1334(e)(1)’s function and limited scope, we are not convinced that the
courts in these cases correctly exercised jurisdiction pursuant to this
provision. The court in each case found jurisdiction under § 1334(e)(1), in
part, due to the proceeding’s potential impact on distributions in a
bankruptcy case, and it seems to us that it would have been more appropriate
to exercise jurisdiction pursuant to 

(b), which provides
federal jurisdiction over civil proceedings that may affect the rights of a
debtor or the administration of the bankruptcy estate. See In re TXNB
Internal Case, 

 (5th Cir. 2007). In any event, even if Gunter,



                                          17
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                                  No. 23-40035


Ormond, and Fong indicate that there may be limited circumstances in which
a district court may exercise its jurisdiction under 

(e)(1) to
hear a claim pertaining to abandoned property—such as a dispute between
competing creditors (Gunter and Fong), or a trustee’s objection to a
creditor’s claim (Ormond)—Porretto has not effectively argued that the
limited circumstances present in Gunter, Ormond, and Fong exist here.
       The remaining cases cited by Porretto supporting jurisdiction under
§ 1334(e)(1) are clearly distinguishable in that they all involve enforcing the
right of a debtor to exempt certain property from the estate under 

, which is not applicable here. See 5 Collier on Bankruptcy
¶ 554.02 (“Abandonment . . . should not be considered to divest the court of
jurisdiction to enforce the rights of a debtor to claim an exemption under
section 522.”); In re Ramos, 

 (B.A.P. 1st Cir. 2013) (“The
sole issue on appeal is whether the trustee’s abandonment of the debtor’s
residence deprived the bankruptcy court of jurisdiction to determine the
debtor’s motion to avoid a judgment lien under 

(f).”); In re
Lafoon, 

 (Bankr. E.D. Tenn. 2002) (“The abandonment by
the Trustee pursuant to 

(a) does not divest this court
of jurisdiction to enforce the rights of the debtors as to their exemption in the
property.” (quoting In re Bennett, 

 (Bankr. W.D. Mich.
1981))).
       Porretto has not presented a compelling reason for us to break from
the prevailing consensus on § 1334(e)(1), which is that a district court’s
limited, exclusive jurisdiction under § 1334(e)(1) does not extend to claims
related to property that has been abandoned by the bankruptcy estate. As
briefly referenced above, we find that § 1334(b) provides the proper lens
through which to analyze the exercise of bankruptcy jurisdiction over
Porretto’s claims, and we turn to that issue next.




                                           18
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                                    No. 23-

 U.S.C. § 1334(b) grants federal courts “original but not exclusive
jurisdiction of all civil proceedings . . . arising in or related to cases under title
11.” This court has interpreted § 1334(b) as a broad jurisdiction-conferring
provision. As we explained in TXNB, 

:
       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 § 1334(b)’s reach is broad, it is not limitless. Celotex
Corp. v. Edwards, 

 (1995). This court will not find
jurisdiction under § 1334(b) when the claims at issue affect only the debtor,
and not the bankruptcy estate. See In re Wood, 

, 94 (5th Cir. 1987).
Thus, to invoke jurisdiction under § 1334(b), Porretto must establish that her
suit could have had a conceivable effect on the bankruptcy estate at the time
she filed her complaint. See Double Eagle Energy Servs., L.L.C. v. MarkWest
Utica EMG, L.L.C., 

, 263–64 (5th Cir. 2019) (holding that the
“time-of-filing” rule applies to cases brought pursuant to § 1334(b)).
       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




                                              19
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                                 No. 23-40035


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., 

 (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, 

 (Bankr. D. Del. 2012) (determining that the court
lacked subject matter jurisdiction under § 1334(b) “with respect to all claims
pertaining to” an abandoned property); In re Torres, No. 13-06530, 

, at *1 (Bankr. D.P.R. Apr. 7, 2015) (determining that the court
lacked subject matter jurisdiction under § 1334(b) because the bankruptcy
trustee had abandoned “the property that is the subject of [the] adversary
proceeding”).
       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



                                          20
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                                 No. 23-40035


Rhinesmith, 

 (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, 

, at *2
(N.D.N.Y. Feb. 4, 2009))).
       Arguably the only claims alleged by Porretto that do not directly
pertain to losses or damages to Porretto Beach are her claims of tortious
interference, harassment, and retaliation, but Porretto has not alleged that
the conduct underlying these claims occurred pre-petition. The remaining
claims, which also allege post-petition conduct, directly pertain to the
abandoned property, and we treat Porretto’s rights to that property “as if no
bankruptcy petition was filed.” See Kane, 

 (internal quotation
omitted).
       At bottom, it is Porretto’s burden to establish that jurisdiction exists,
Ramming, 

, 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 § 1334(b).
                                      V.
       While Porretto’s arguments for jurisdiction pursuant to 

 are unavailing, her invocation of federal question jurisdiction under

 is straightforward. Porretto contends that the district
court’s dismissal due to her complaint’s lack of a specific citation to 

 contravenes the Supreme Court’s precedent in Johnson v. City
of Shelby, 

 (2014). We agree.




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                                      No. 23-40035


        In Johnson, the Supreme Court plainly held that plaintiffs pleading
constitutional claims cannot have their complaint dismissed based on a
failure to invoke § 1983; as long as they plead factual allegations sufficient to
show that their claims have substantive plausibility, their complaint can
survive a motion to dismiss. 574 U.S. at 12. In Quinn v. Guerrero, 

, 358–59 (5th Cir. 2017), this court clarified that while a plaintiff does not
need to specifically cite a federal provision such as § 1983 to establish federal
question jurisdiction, the plaintiff’s “federal question must appear on the
face of his well-pleaded complaint.” In other words, federal question
jurisdiction exists where the plaintiff specifically lists a federal cause of action
or makes a claim under federal law. Id. at 359.
        Though Porretto failed to cite § 1983 (or 

, for that
matter), her complaint clearly raises constitutional claims. She repeatedly
alleges that the flooding of her property, the Park Board’s alleged taking of
sand, and Defendants’ alleged interference with her beach property’s natural
accretion levels constitute takings without just compensation in violation of
the Fifth Amendment. 8 She also alleges that these takings occurred in
violation of her Fourteenth Amendment due process rights. Because Porretto
unambiguously pleaded constitutional claims in her complaint, her failure to
        _____________________
        8
           Porretto’s failure to cite 

 is understandable when considering
that she filed the operative complaint in bankruptcy court. If, on remand, Porretto’s claims
survive Defendants’ motions to dismiss, an amended complaint could readily clarify the
proper basis for the court’s jurisdiction. See Johnson, 574 U.S. at 12 (noting that the
plaintiffs, on remand, “should be accorded an opportunity to add to their complaint a
citation to § 1983”).
        Furthermore, we note that we do not consider Porretto’s failure to cite 

 to be a fatal defect to her complaint. See Charles Alan Wright & Arthur
R. Miller et al., 5 Federal Practice and Procedure § 1206 (4th ed. 2024)
(“[I]f a party seeking to invoke federal jurisdiction asserts a substantial claim under a
federal statute or common law, both the jurisdictional prerequisite and the pleading
requirements of Rule 8(a)(1) are satisfied.”).




                                                22
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                                  No. 23-40035


invoke § 1983 should not have prevented the district court from exercising
federal question jurisdiction. See Johnson, 574 U.S. at 10; see also Devillier v.
Texas, 

 (5th Cir. 2023) (Oldham, J., dissenting from denial
of rehearing en banc) (“[T]he absence of a cause of action is a merits
problem, not a jurisdictional one.”).
       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, 

, 792–93 (5th Cir. 1986). More specifically, the Galveston
Defendants argue that because Porretto cannot meet the requirements for
pleading a § 1983 municipal liability claim, the court was correct to conclude
that there is no federal question jurisdiction.
       Where factual findings regarding subject matter jurisdiction are
intertwined with the merits, this court has applied the standard described in
Bell v. Hood, 

, 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, 

, 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,

 (5th Cir. 1981) (quoting Bell v. Health-Mor, Inc., 

 (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., 

 (5th Cir. 2020) (emphasis in original).



                                           23
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                                  No. 23-40035


       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 § 1983 is a
“classic example of a case in which the federal cause of action and federal
jurisdiction are interdependent.” Eubanks, 

. Furthermore,
the U.S. District Court for the Southern District of Texas, in considering a
recent takings claim against the GLO brought pursuant to § 1983, concluded
that “factual issues determinative of jurisdiction are intertwined with or
identical to factual issues determinative of the merits.” Sheffield v. Bush, 

, 599–600 (S.D. Tex. 2022) (quoting Worldwide Parking, Inc.
v. New Orleans City, 

 (5th Cir. 2005)).
       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, 

 (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 result of
that flooding.”); Pumpelly v. Green Bay & Miss. Canal Co., 

(1871) (determining that a taking occurs “where real estate is actually
invaded by superinduced additions of water, earth, sand, or other material,
or by having any artificial structure placed on it, so as to effectually destroy
or impair its usefulness”); Boling v. United States, 

, 1372–73
(Fed. Cir. 2000) (finding that a taking may occur when a parcel is
“substantially encroached by erosion”); Applegate v. United States, 

 (1996) (“Binding precedent supports a ruling, as a matter of law,
that flooding and erosion on plaintiffs’ properties caused by governmental




                                           24
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                                  No. 23-40035


action above the [mean high-water mark] is a compensable taking.”). And,
even if the alleged flooding was temporary, that fact does not bar relief. See
Cedar Point Nursery v. Hassid, 

 (2021) (“[W]e have held that
a physical appropriation is a taking whether it is permanent or temporary.”).
       Furthermore, while we decline at this juncture to prejudge the merits
of Porretto’s § 1983 municipal liability claim, our recent decision in St.
Maron Properties, L.L.C. v. City of Houston, 

 (5th Cir. 2023), leads
us to believe that Porretto’s case, at the very least, clears the “wholly
insubstantial and frivolous” threshold. In St. Maron, a group of property
owners brought § 1983 claims under the Takings Clause, the Due Process
Clause, and the Equal Protection Clause, alleging that the Mayor of Houston,
the City Council, and the City Attorney used the property owners’ empty
lots as a dumping ground for construction materials, which resulted in
flooding and subsequent damage to their properties. Id. at 757–58. This court
determined that the plaintiffs had sufficiently pleaded a § 1983 municipal
liability claim, noting that “even a single decision may constitute municipal
policy in rare circumstances, when the official or entity possessing final
policymaking authority for an action performed the specific act that forms
the basis of the § 1983 claim.” Id. at 760. Given that there are some key
factual similarities between Porretto’s claims and the St. Maron plaintiffs’
claims—i.e., a municipality undertaking activities that result in
unconstitutional takings without just compensation or due process—we find
that the viability of Porretto’s municipal liability claim is a nonfrivolous issue
that deserves full consideration on remand. Therefore, we decline to affirm
the dismissal of Porretto’s claims for lack of federal question jurisdiction
pursuant to the “intertwined with the merits” standard.
       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



                                           25
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                                       No. 23-40035


governmental immunity, as well as their assertion that Porretto’s complaint
should be dismissed for failure to state a claim under Rule 12(b)(6). The
district court’s supplemental jurisdiction over Porretto’s state law claims is
another unresolved issue. But we leave it to the district court to address these
issues in the first instance. See Montano v. Texas, 

 (5th Cir.
2017) (“‘As a court for review of errors,’ we do ‘not . . . decide facts or make
legal conclusions in the first instance,’ but ‘review the actions of a trial court
for claimed errors.’” (quoting Browning v. Kramer, 

 (5th
Cir. 1991))). Accordingly, we VACATE the district court’s dismissal of
Porretto’s claims against the Galveston Defendants, and we REMAND for
the district court to consider alternative grounds for dismissal in the first
instance.
                                            VI.
        In addition to challenging the district court’s dismissal of her claims,
Porretto also challenges the district court’s decision to deny her leave to
amend her complaint. “Rule 15(a) [of the Federal Rules of Civil Procedure]
requires a trial court to grant leave to amend freely, and the language of this
rule evinces a bias in favor of granting leave to amend.” Smith v. EMC Corp.,

 (5th Cir. 2004) (internal quotation omitted). A district
court’s denial of leave to amend is reviewed for an abuse of discretion. Peña
v. City of Rio Grande City, 

, 618 n.5 (5th Cir. 2018). 9 “The district

        _____________________
        9
          As a threshold matter, Porretto claims that the proper standard of review is de
novo, because the district court referenced futility when denying Porretto an opportunity to
further amend her pleadings. See Peña, 

 (“[W]here the district court’s denial
of leave to amend was based solely on futility, this court applies a de novo standard of
review ‘identical, in practice, to the standard used for reviewing a dismissal under Rule
12(b)(6).’” (quoting Thomas v. Chevron U.S.A., Inc., 

 (5th Cir. 2016))).
There are two issues with Porretto’s contention. First, our standard of review is de novo
when the district court denies leave to amend solely based on futility, and the district court
here also referenced Porretto’s repeated failures to correct her pleadings’ deficiencies. And




                                                  26
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                                       No. 23-40035


court properly exercises its discretion under Rule 15(a)(2) when it denies
leave to amend for a substantial reason, such as undue delay, repeated failures
to cure deficiencies, undue prejudice, or futility.” United States ex rel. Spicer
v. Westbrook, 

 (5th Cir. 2014).
        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, 

 (5th Cir. 2017) (quoting Gentilello v. Rege, 

 (5th Cir. 2010)). Accordingly, we AFFIRM the district court’s
decision to deny leave to amend. 10 But, as noted above, Porretto may request
leave to amend her complaint on remand if she so chooses.

        _____________________
second, when the grounds for denying leave to amend is futility, this court reviews a
proposed amended complaint de novo under a Rule 12(b)(6) standard, and there was no
proposed amended complaint here. See 

 (“Under that [Rule 12(b)(6)] standard, we must
evaluate the sufficiency of the proposed complaint and decide which, if any, of [the
plaintiff’s] claims survive the pleadings.”); Ariyan, Inc. v. Sewerage & Water Bd. of New
Orleans, 

 (5th Cir. 2022) (“If the complaint, as amended, would be
subject to dismissal, then amendment is futile and the district court was within its
discretion to deny leave to amend.”). Therefore, we apply the abuse of discretion standard
of review.
        10
           We briefly address Porretto’s argument that the district court denied her leave
to amend in violation of Rule 6 of the Galveston Division Rules of Practice (“Local Rule
6”), which provides that the court will sua sponte grant a plaintiff leave to amend if
defendants do not meet and confer with the plaintiff before filing a motion to dismiss. We
recently invalidated Local Rule 6, holding that it “impermissibly short circuits Federal Rule
of Civil Procedure 15’s liberal amendment scheme and our associated caselaw.” See Ass’n
of Am. Physicians, 103 F.4th at 388. While it could be argued that the portion of Local Rule




                                                 27
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                                      No. 23-40035


                                           VII.
        Finally, we address the district court’s denial of Porretto’s motion
seeking the recusal of U.S. District Judge Jeffrey V. Brown. 

(a) provides that “[a]ny justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.” We review the denial of a motion for
recusal for an abuse of discretion. Matassarin v. Lynch, 

 (5th
Cir. 1999).
        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, 

 (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, 

 (5th Cir. 2003) (quoting Jordan, 

). “[E]ach
§ 455(a) case is extremely fact intensive and fact bound, and must be judged
on its unique facts and circumstances more than by comparison to situations
considered in prior jurisprudence.” Jordan, 

.

        _____________________
6 invoked by Porretto was not invalidated, we need not address this issue, because we are
not convinced that this portion is applicable here. When the district court inherited this
case from the bankruptcy court, Porretto had already filed three amended complaints, and
Defendants had filed renewed motions to dismiss responding to Porretto’s second
amended complaint. Under these unique circumstances, the district court decided to delay
ruling on the motions to dismiss, grant Porretto’s request to make her third amended
complaint the operative complaint in the matter, and provide Defendants the opportunity
to renew their motions to dismiss within thirty days. Because the district court inherited a
case that already had several amended complaints and live motions to dismiss, it was not
unreasonable, nor an abuse of discretion, for the court to conclude that Local Rule 6 would
not apply to these particular circumstances. See McLeod, Alexander, Powel & Apffel, P.C. v.
Quarles, 

 (5th Cir. 1990) (“We recognize that district courts have
considerable latitude in applying their own rules.”).




                                                  28
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                                   No. 23-40035


       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 size . . . is
significantly more than average donors and more consistent than other
donors.” Finally, Porretto highlights that Judge Brown serves on the



                                            29
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                                 No. 23-40035


Houston Law Review Board of Directors with attorneys who serve as
Defendants’ counsel.
       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, 

 (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, 

, 

 at *2 (10th
Cir. 1996) (“Professional associations alone are insufficient to establish
judicial bias.”); United States v. Olis, 

 (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, 

. 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 § 1983 suit against the municipality. 

.
       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




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                                 No. 23-40035


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, 

 (Tex. App.—El Paso 1993, writ denied)
(collecting cases); see also Rocha v. Ahmad, 

 (Tex. App.—
El Paso 1993, 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., 

 (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 meritless. We fail to see how a minor language edit in the district
court’s order evinces bias against Porretto. And while the district court may
have adopted some of Defendants’ language in drafting its order granting
Defendants’ motions to dismiss, the language of the order does not appear to
“have a personal tone against” Porretto.
       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




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                                 No. 23-40035


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,

 (5th Cir. 1998) (quoting Travelers Ins. v. Liljeberg Enters.,
Inc., 

 (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, 

, 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




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                                No. 23-40035


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.




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