     Case: 09-20290   Document: 00511140063   Page: 1   Date Filed: 06/11/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                June 11, 2010

                                No. 09-20290                    Lyle W. Cayce
                              Summary Calendar                       Clerk



DAVID K. BROYLES; SHELLIE GALIK BROYLES; MICHAEL S. COOPER;
BERNICE F. GILMORE; FREDERICK B. HOWDEN, IV; ERIC JONES;
STACEY JONES; BRIAN C. KIMMELL; BRIAN E. KOONS; JAMES R.
MCKEAN; CHARLES D. MCWILLIAMS; JERRY MOSBACHER; FAYE
JESSIE OLIVER; WILLIE IRVIN; MARTIN G. PARR; JAMES E. RITTER;
CHERYL STALINSKY; LISA H. THEUT; JAMES A. WINNE, III,

                                          Plaintiffs-Appellants
v.

STATE OF TEXAS, Ex rel Greg Abbott, Texas Attorney General and Ex rel
Phil Wilson, Texas Secretary of State; FORT BEND COUNTY, Ex rel Robert
E. Hebert County Judge and Ex rel Dianne Wilson County Clerk; WESTON
LAKES PROPERTY OWNERS ASSOCIATION, INC., and its Board of
Trustees; HERBERT S. YATES; PATRICK A. HARRIS; CHARLES V.
FLOWERS; RHONDA ZACHARIAS, Personally and Individually; WESTON
LAKES COMMUNITY INCORPORATION PROJECT COMMITTEE, Ex rel
Clifton H. Aldrich, its chairman; CITIZENS COMMITTEE FOR
INCORPORATION OF WESTON LAKES, Ex rel Clifton H. Aldrich, its
chairman,

                                          Defendants-Appellees




                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:08-CV-2320


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
   Case: 09-20290       Document: 00511140063          Page: 2    Date Filed: 06/11/2010

                                       No. 09-20290

PER CURIAM:*
                           FACTS AND PROCEEDINGS
       Appellants are residents and property owners who challenge a municipal
incorporation election held in May 2008, in which Weston Lakes, a private gated
community in Fort Bend County, Texas and adjacent land were incorporated as
the City of Weston Lakes. The neighborhood is a 1,400-acre continuous tract
with a guardhouse, security gates, swimming pool, country club, and golf course,
with common areas, easements, and roads maintained by a nonprofit corporation
under a lengthy set of covenants and by-laws. The community has about 800
residences and 427 vacant lots. Some residents receive water and sewage
services from a private provider while others receive such services from the local
Municipal Utility District. Owners of lots in Weston Lakes pay annual dues and
maintenance fees to the nonprofit that administers the common areas. The
incorporated area also includes some adjoining landowners who do not pay dues.
       In January 2008, residents gathered enough signatures to place an
incorporation vote on the ballot. Pursuant to Texas Local Government Code
§ 7.006, the vote was open only to residents of the proposed incorporation area,
while non-resident landowners were not permitted to vote. The vote was 58 to
42 percent in favor of incorporation, with nearly three-quarters of eligible voters
coming to the polls. Appellants alleged that the process leading up to the
incorporation vote was rushed, secretive, and tilted in favor of incorporation;
that the notice required by the Texas incorporation law was not given; that
meeting attendees were not told that a vote was imminent; and that there was
improper bullying of anti-incorporation voters at the polling place. They sought
a declaratory judgment that § 7.006 is unconstitutional because it discriminates


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.

                                              2
   Case: 09-20290     Document: 00511140063      Page: 3    Date Filed: 06/11/2010

                                   No. 09-20290

against non-resident landowners. They also alleged that the State of Texas and
Fort Bend County violated the National Voter Registration Act (“NVRA”), 42
U.S.C. § 1973gg et seq., and the Help America Vote Act (“HAVA”), 42 U.S.C.
§ 15302 et seq., through various failures in the voting process. Appellants also
brought various claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against
state and county officials for constitutional violations caused by “fatal errors” at
the polls. They also brought additional state law claims. In a lengthy order, the
district court granted Appellees’ Rule 12(b)(6) motion to dismiss the federal law
claims and dismissed the state law claims without prejudice. See Broyles v.
Texas, 618 F. Supp. 2d 661 (S.D. Tex. 2009). After additional briefing, the
district court denied Appellants’ motion for discovery and an evidentiary hearing
and then awarded attorney’s fees of less than $12,000 to Fort Bend County and
various individual plaintiffs. See Broyles v. Texas, 2009 WL 2215781 (S.D. Tex.
July 23, 2009). This appeal followed.
                           STANDARD OF REVIEW
      We review de novo a district court’s dismissal for failure to state a claim
under F ED. R. C IV. P. 12(b)(6). See Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007). In considering whether dismissal was appropriate, we must accept as true
all well-pleaded facts. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). “To
survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed
factual allegations,’ but must provide the plaintiff’s grounds for entitlement to
relief—including factual allegations that when assumed to be true ‘raise a right
to relief above the speculative level.’” Cuvillier, 503 F.3d at 401 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
      We review a district court’s award of attorney’ fees under 42 U.S.C. § 1988
for abuse of discretion. See Merced v. Kasson, 577 F.3d 578, 595 (5th Cir. 2009).




                                          3
   Case: 09-20290     Document: 00511140063      Page: 4   Date Filed: 06/11/2010

                                   No. 09-20290

                                  DISCUSSION
        Appellants raise three issues on appeal. First, they argue that the district
court committed error when it granted the motion to dismiss as to the
unconstitutionality of Texas Local Government Code § 7.006. Second, they argue
that the district court applied the wrong standard in resolving the Rule 12(b)(6)
motion. Third, they argue that it was an abuse of discretion to deny Appellants’
motion for discovery and an evidentiary hearing prior to awarding attorney’s
fees.
        Texas Local Government Code § 7.006 permits only qualified voters “who
reside[] within the boundaries of the proposed municipality” to vote on
incorporation. Appellants allege that the exclusion of non-resident landowners
is an equal protection violation. This claim is not supported by case law. “[A]
government unit may legitimately restrict the right to participate in its political
processes to those who reside within its borders” and such a restriction does not
violate the Equal Protection Clause. Holt Civic Club v. City of Tuscaloosa, 439
U.S. 60, 68-69 (1978). The fact that non-residents may be affected by a
municipality’s actions does not mean that non-residents “have a constitutional
right to participate in the political processes bringing it about.” Id. at 69.
Appellants’ attempt to distinguish the facts of the instant case from Holt fail.
        Appellants also challenge the standard of review employed by the district
court in ruling on the Rule 12(b)(6) motions before it. The district court cited and
applied the standard drawn from Twombly, which requires that a complaint
must contain “enough facts to state a claim to relief that is plausible on its face.”
550 U.S. at 570. Twombly abrogated the “no set of facts” standard first
articulated in Conley v. Gibson. Id. at 546 (“Conley’s ‘no set of facts’ language .
. . is best forgotten as an incomplete, negative gloss on an accepted pleading
standard.”). Appellants dismiss this language from Twombly as dicta, but in
Ashcroft v. Iqbal, the Court confirmed that this pleading standard applied

                                          4
   Case: 09-20290      Document: 00511140063        Page: 5    Date Filed: 06/11/2010

                                     No. 09-20290

broadly to all civil complaints. 129 S. Ct. 1937, 1949-50 (2009). The district court
correctly applied this standard and, in a lengthy order, dismissed the Appellants’
federal claims because the complaint did not contain enough facts to state a
plausible constitutional or statutory claim for relief, and denied leave to amend
as futile.1 We affirm this finding.
       Finally, we find no error in the award of attorney’s fees. A prevailing party
in a § 1983 suit may obtain reasonable attorney’s fees. See 42 U.S.C. § 1998(b);
see also Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 410 (1978)
(prevailing defendant may obtain reasonable attorney’s fees). A prevailing
defendant, however, must prove that a suit was frivolous or groundless to
recover such fees. See No Barriers, Inc v. Brinker Chili’s Tex., Inc., 262 F.3d 498,
498 (5th Cir. 2001). A party has no due process right to an evidentiary hearing
if the district court has before it all the information upon which the decision to
award fees would be based. See Alizadeh v. Safeway Stores, Inc., 910 F.2d 234,
236 (5th Cir. 1990). The district found that even when all allegations in the
complaint were taken as true, they “fell far short of what is necessary to state
a claim under § 1983.” Broyles, 2009 WL 2215781 at *5. The district court then
reviewed briefs from the parties and extensive submissions of billing documents,
denied some fee requests, reduced others, and determined reasonable attorney’s
fees. Id. at *9-18. This was not an abuse of discretion.
                                   CONCLUSION
       The judgment of the district court is affirmed. All outstanding motions are
denied as moot.




      1
         The district court dismissed the NVRA and HAVA claims because those statutes apply
only to federal, not local, elections; dismissed the § 1983 claims because there was no
constitutional or federal statutory violation caused by these “garden variety” election
irregularities; and dismissed the §§ 1985 and 1986 claims because there was no plausible
allegation of racial discrimination. These findings were not in error.

                                            5
