     Case: 19-40966      Document: 00515443815         Page: 1    Date Filed: 06/08/2020




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

                                    No. 19-40966
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                        June 8, 2020
                                                                        Lyle W. Cayce
JOE BLESSETT,                                                                Clerk


              Plaintiff–Appellant,

v.

BEVERLY ANN GARCIA,

              Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:18-CV-137


Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM:*
       Pro se appellant Joe Blessett sued his ex-wife, Beverly Ann Garcia, in
federal district court alleging numerous claims that can be categorized as
challenges to a series of prior state court proceedings and allegations that
Garcia had committed fraud. The district court dismissed the first category of




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 19-40966
claims pursuant to the Rooker–Feldman doctrine. 1 It subsequently dismissed
the second category of claims after concluding each allegation failed to state a
claim upon which relief can be granted. We affirm.
                                           I
      Blessett and Garcia divorced on July 23, 1999. In the final divorce
decree, Garcia received primary custody of Blessett and Garcia’s only child,
Joseph C. Blessett, Jr. The final divorce decree also ordered Blessett to pay
$800 per month in child support.
      Blessett failed to pay child support over the course of the next several
years. As a result, Garcia sought a state court judgment for child support
arrears in July of 2015. Blessett did not attend the proceedings. He was
ultimately held liable for $131,923.14 in outstanding child support and was
ordered to begin making payments immediately. In June of 2016, Garcia
sought a writ of withholding in Texas state court in order to garnish Blessett’s
wages for the outstanding child support. She also filed a lien against certain
real property then-owned by Blessett (the Property).
      In response to the lien, Blessett filed suit in Texas state court seeking a
partial release of the lien on the basis that the Property qualified as his
homestead. Garcia countersued. She alleged that the lien was proper and
sought the right to foreclose on the Property. As part of discovery, Garcia
inquired into Blessett’s allegations that the Property was an exempt
homestead. Blessett failed to respond. Garcia’s counsel thereafter filed in the
real property records an affidavit alleging the Property did not qualify as a
homestead.
      Garcia moved for summary judgment on the basis that Blessett had



      1 See generally Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923).
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                                       No. 19-40966
judicially admitted he did not own any exempt real property by failing to
respond to discovery. 2 Blessett did not respond to the motion. The state court
entered a final judgment in Garcia’s favor, concluding the Property did not
qualify as a homestead and was thus subject to Garcia’s child support lien.
Garcia was also granted the right to foreclose on the Property. Blessett did not
appeal the judgment.          The Property was sold at a constable auction in
December of 2017.
       After the sale, Blessett initiated the instant proceedings in United States
District Court. The district judge initially dismissed the action for want of
subject matter jurisdiction. Following an intervening opinion from this court
in a related case, 3 however, the district court sua sponte withdrew its previous
opinion, reinstated Blessett’s case, and ordered him to file an amended
complaint. The district court expressly instructed Blessett that failure to plead
any allegations of fraud with particularity would result in dismissal of those
claims with prejudice.
       Blessett’s amended compliant included claims related to previous state
court proceedings, as well as five separate allegations of fraud. Garcia moved
to dismiss the complaint, alleging, inter alia, that the court lacked subject
matter jurisdiction over the case and that any remaining claims either failed
to state a claim upon which relief can be granted or failed to comply with Rule
9(b)’s heightened pleading standards. The district court ultimately granted
the motion.
       Pursuant to the Rooker–Feldman doctrine, the district court dismissed
the amended complaint to the extent it “collaterally attack[ed] the state court


       2 See Marshall v. Vise, 767 S.W.2d 699, 700 (Tex. 1989) (noting that under Texas law,
“[u]nanswered requests for admissions are automatically deemed admitted, unless the court
on motion permits their withdrawal or amendment”).
       3 See Blessett v. Tex. Office of Att’y Gen. Galveston Cty. Child Support Enf’t Div., 756

F. App’x 445 (5th Cir. 2019) (per curiam).
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                                       No. 19-40966
divorce decree, judgments concerning paternity and child support, or the
foreclosure order.” It subsequently dismissed the five allegations of fraud after
concluding each allegation failed to comply with the heightened pleading
standards required by Rule 9(b) of the Federal Rules of Civil Procedure. This
appeal followed.
                                             II
          We first consider whether the district court had subject matter
jurisdiction to entertain each of the claims alleged in Blessett’s complaint. As
previously mentioned, the district court dismissed portions of Blessett’s
complaint pursuant to the Rooker–Feldman doctrine. The court concluded,
however, that it had subject matter jurisdiction to entertain each of Blessett’s
fraud claims. Reviewing de novo, we agree with the district court’s analysis in
full. 4
          At its core, “the Rooker–Feldman doctrine holds that inferior federal
courts do not have the power to modify or reverse state court judgments except
when authorized by Congress.” 5 “[T]he doctrine is a narrow one.” 6 It is limited
to those “cases brought by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those
judgments.” 7     A litigant is seeking “review and reversal” of a state-court
judgment “when the [federal] claims are ‘inextricably intertwined’ with a




          See Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (noting that dismissals
          4

for want of subject matter jurisdiction are reviewed de novo).
        5 Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 384 (5th Cir. 2017) (internal

quotation marks omitted) (quoting Truong v. Bank of Am., N.A., 717 F.3d 377, 382 (5th Cir.
2013)).
        6 Truong, 717 F.3d at 382.
        7 Id. (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284

(2005)).
                                              4
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                                      No. 19-40966
challenged state court judgment,” 8 or when the litigant is requesting “what in
substance would be appellate review of the state judgment.” 9
       Liberally construing Blessett’s complaint in light of the aforementioned
standards, 10 we agree with the district court that some of Blessett’s allegations
were not cognizable in federal court. As indicated previously, Blessett lost in
his state court proceedings, proceedings which had ended long before he
initiated the present matter.          Portions of Blessett’s operative complaint
likewise appear to seek review of those state court proceedings. The complaint
alleges, for example, that Blessett received insufficient service of process
during two earlier state court proceedings, and that Garcia failed to follow
proper procedures in Texas state court. Blessett’s “recourse [for each of these
contentions] was with the state appellate courts and thereafter the United
States Supreme Court on application for a writ of certiorari, not by a complaint
to the federal district court.” 11        Accordingly, the district court properly
dismissed these claims.
       Nevertheless, we conclude that the bulk of Blessett’s complaint—
specifically, each of Blessett’s fraud claims—fell within the district court’s
subject matter jurisdiction. Our court does not recognize a universal fraud
exception to the Rooker–Feldman doctrine. 12               That is, a litigant cannot
circumvent the doctrine’s scope by merely casting his or her challenge to a state
court judgment as an allegation that the judgment was obtained through




       8  Weaver v. Tex. Capital Bank N.A., 660 F.3d 900, 904 (5th Cir. 2011) (alteration in
original) (quoting Richard v. Hoechst Celanese Chem. Grp., Inc., 355 F.3d 345, 350 (5th Cir.
2003)).
        9 Id. (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)).
        10 See Kaltenbach v. Richards, 464 F.3d 524, 527 (5th Cir. 2006) (construing a

complaint liberally in part because the litigant proceeded pro se).
        11 See Liedtke v. State Bar of Tex., 18 F.3d 315, 318 (5th Cir. 1994).
        12 Truong v. Bank of Am., N.A., 717 F.3d 377, 383 n.3, 384 n.6 (5th Cir. 2013).

                                             5
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                                          No. 19-40966
fraud. 13 If the relief a litigant requests would in substance require the federal
court to invalidate a prior state court judgment, the Rooker–Feldman doctrine
may still be implicated. 14 Likewise, a plaintiff’s claim may be barred by the
Rooker–Feldman doctrine if he or she is essentially alleging the state court
judge erred in arriving at a particular conclusion. 15 But where a litigant seeks
damages as compensation for the putatively fraudulent conduct of a litigant in
a prior state court action, the Rooker–Feldman doctrine is less likely to come
into play. 16     Each of Blessett’s fraud claims passes muster under these
parameters. He seeks monetary damages because Garcia—an adverse party
in several prior state court proceedings—allegedly engaged in fraudulent
conduct. Consequently, the district court properly considered these claims on
the merits.
                                                 III
       As to the merits of Blessett’s five fraud claims, the district court
dismissed each allegation after concluding each failed to plead fraud with
particularity. Following our own independent review of the complaint, we
agree that each allegation fails to state a claim. 17


       13  See id. at 383 n.3 (collecting cases where fraud claims were held to be barred by the
Rooker–Feldman doctrine).
        14 See id. at 383-84 (collecting cases where fraud claims were held to be barred by the

Rooker–Feldman doctrine in part because the relief requested directly challenged prior state
court judgments).
        15 See id. at 382-83 (noting that “[i]f a federal plaintiff asserts as a legal wrong an

allegedly erroneous decision by a state court, and seeks relief from a state court judgment
based on that decision, Rooker–Feldman bars subject matter jurisdiction in federal district
court” (alteration in original) (quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003))).
        16 See id. at 383 (“If . . . a federal plaintiff asserts as a legal wrong an allegedly illegal

act or omission by an adverse party, Rooker–Feldman does not bar jurisdiction.” (quoting
Noel, 341 F.3d at 1164)); see also id. at 383-84 (collecting cases where the nature of the
requested relief impacted whether the Rooker–Feldman doctrine barred the claims at issue
in each case).
        17 See Carroll v. Fort James Corp., 470 F.3d 1171, 1173 (5th Cir. 2006) (noting that

appellate courts “review a dismissal pursuant to [Rules] 12(b)(6) or 9(b) de novo” (citing
Herrmann Holdings Ltd. v. Lucent Techs., Inc., 302 F.3d 552, 557 (5th Cir. 2002))).
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       Because each of Blessett’s fraud claims fall within the court’s diversity
jurisdiction, our analysis is governed by the substantive law of Texas. 18 As a
general matter, Texas state law fraud claims require the plaintiff to offer
sufficient proof of the following six elements:
       (1) that a material representation was made; (2) the
       representation was false; (3) when the representation was made,
       the speaker knew it was false or made it recklessly without any
       knowledge of the truth and as a positive assertion; (4) the speaker
       made the representation with the intent that the other party
       should act upon it; (5) the party acted in reliance on the
       representation; and (6) the party thereby suffered injury. 19
At least two intermediate courts of appeals in Texas have recognized a sub-
category of fraud—fraud by omission. 20 This sub-category of claims stems from
the basic recognition that an “omission or nondisclosure may be as misleading
as a positive misrepresentation of fact where a party has a duty to disclose.” 21
       “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” 22 We “accept all well-pleaded facts as true, viewing them in the light
most favorable to the plaintiff.” 23 But “[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,” are insufficient




       18  See Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938); Universal Truckload, Inc. v.
Dalton Logistics, Inc., 946 F.3d 689, 695 (5th Cir. 2020) (“Under the Erie doctrine, this court
must apply substantive state law in diversity jurisdiction cases.” (citing Erie, 304 U.S. at 78)).
        19 Allstate Ins. Co. v. Receivable Fin. Co., 501 F.3d 398, 406 (5th Cir. 2007) (quoting In

re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001)).
        20 Dewayne Rogers Logging, Inc. v. Propac Indus., Ltd., 299 S.W.3d 374, 391 (Tex.

App.—Tyler 2009, pet. denied) (citing Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos.,
Inc., 217 S.W.3d 653, 670 (Tex. App.—Houston [14th Dist.] 2006, pet. denied)).
        21 Id. (citing Four Bros. Boat Works, Inc., 217 S.W.3d at 670).
        22 Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018) (internal

quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also FED.
R. CIV. PRO. 12(b)(6).
        23 Allen, 907 F.3d at 177 (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.

1999)).
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                                       No. 19-40966
to state a claim. 24 Nor can a complaint survive if it fails to allege a required
element of the cause of action. 25
       Furthermore, allegations of fraud must be pleaded with particularity
under the Federal Rules of Civil Procedure. 26 Specifically, Rule 9(b) requires
the plaintiff to allege “the time, place and contents of the false representation[],
as well as the identity of the person making the misrepresentation and what
that person obtained thereby.” 27 The rule is context specific. Nevertheless, at
its core, the rule is intended to “provide[] defendants with fair notice of the
plaintiffs’ claims, protect[] defendants from harm to their reputation and
goodwill, reduce[] the number of strike suits, and prevent[] plaintiffs from
filing baseless claims and then attempting to discover unknown wrongs.” 28
Accordingly, district courts are permitted to dismiss complaints with prejudice
if plaintiffs fail to comply with these heightened pleading standards despite
being given numerous opportunities to do so. 29
                                               1
       Blessett’s first allegation of fraud—which he titles, “[f]raud by omission
of federal statutes and Texas family codes”—fails under Rule 9(b)’s heightened


       24  Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
       25  Allen, 907 F.3d at 178 (noting that “[d]ismissal is proper if the complaint lacks an
allegation regarding a required element necessary to obtain relief” (alteration in original)
(quoting Rios v. City of Del Rio, Tex., 444 F.3d 417, 421 (5th Cir. 2006))).
        26 See FED. R. CIV. PRO. 9(b) (“In alleging fraud or mistake, a party must state with

particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person’s mind may be alleged generally.”).
        27 IAS Servs. Grp., L.L.C. v. Jim Buckley & Assocs., Inc., 900 F.3d 640, 647 (5th Cir.

2018) (alteration in original) (quoting United States ex rel. Grubbs v. Kanneganti, 565 F.3d
180, 186 (5th Cir. 2009)).
        28 Id. (alterations in original) (quoting Tuchman v. DSC Commc’ns Corp., 14 F.3d

1061, 1067 (5th Cir. 1994)).
        29 See Hart v. Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (noting that

“[a]lthough a court may dismiss [a] claim [for failure to comply with Rule 9(b)], it should not
do so without granting leave to amend, unless . . . the plaintiff has failed to plead with
particularity after being afforded repeated opportunities to do so” (citing O’Brien v. Nat’l
Prop. Analysts Partners, 936 F.2d 674, 675-76 (2d Cir. 1991))).
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                                         No. 19-40966
pleading standards. The claim appears to allege that Blessett was harmed
when Garcia failed to mention two statutes at some point in time following the
couple’s divorce. But even liberally construing the claim, we are left to guess
when and where the omission occurred and why Garcia had a duty to include
the statutes at all. Blessett likewise fails to allege Garcia’s omissions were the
product of fraudulent intent. Therefore, Blessett’s first allegation of fraud fails
to pass muster under Rule 9(b).              Given Blessett’s failure to correct these
deficiencies despite being provided numerous opportunities to amend his
complaint, we conclude the district court correctly dismissed the first
allegation of fraud with prejudice. 30
                                                2
       Blessett’s     second     claim—“[f]raud         by    use      of    an   administrative
enforcement action under the color of law”—fails to state a claim upon which
relief can be granted. The complaint specifically alleges Garcia suspended
Blessett’s driver’s license without due process of law. But Blessett fails to
allege any statement or omission by Garcia that ultimately led to the
revocation of his driver’s license. The gravamen of a common law fraud claim
is a false statement or omission. 31 Because Blessett failed to plead this required
element, his second allegation of fraud fails to state a claim upon which relief
can be granted. 32



       30  See Hart, 199 F.3d at 247 n.6 (noting that “[a]lthough a court may dismiss [a] claim
[for failure to comply with Rule 9(b)], it should not do so without granting leave to amend,
unless . . . the plaintiff has failed to plead with particularity after being afforded repeated
opportunities to do so” (citing O’Brien, 936 F.2d at 675-76)).
        31 See Allstate Ins. Co. v. Receivable Fin. Co., 501 F.3d 398, 406 (5th Cir. 2007) (quoting

In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001)); Dewayne Rogers Logging, Inc.
v. Propac Indus., Ltd., 299 S.W.3d 374, 391 (Tex. App.—Tyler 2009, pet. denied) (citing Four
Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., Inc., 217 S.W.3d 653, 670 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied)).
        32 Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 178 (5th Cir. 2018) (noting that

“[d]ismissal is proper if the complaint lacks an allegation regarding a required element
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                                       No. 19-40966
                                               3
       Blessett next alleges Garcia engaged in “[f]raud by [i]nducement and
[c]oercion.”     Specifically, he contends Garcia threatened him with the
possibility of arrest if he did not appear at several state court proceedings. But
Blessett fails to allege with particularity the statements he contends
constituted fraud. As with his first allegation of fraud, we are left wondering
what was said, when the statement occurred, and why the statement
amounted to fraud. Nor can we deduce this information from the exhibits he
cites in the complaint. The exhibits are orders to appear from state judicial
officers, not Garcia. Blessett’s complaint fails to allege with particularity how
any putatively false statement by Garcia may have prompted state-level
judicial officers to issue these orders. Collectively, these inadequacies amount
to a failure to comply with Rule 9(b)’s heightened pleading standards. Because
Blessett was given ample opportunities to correct these issues, the district
court did not err in subsequently dismissing this claim with prejudice. 33
                                               4
       Blessett next alleges Garcia engaged in “[f]raud by [p]erjury and
violation of [p]ublic [p]olicy rights to property.” The factual basis for this claim
lies in the affidavit filed with the real property records challenging Blessett’s
assertions that his property qualified as a homestead. We conclude, however,
that this allegation fails to comply with Rule 9(b)’s heightened pleading
standards. The affidavit—which counsel authored in his capacity as a fact
witness—is clearly counsel’s declaration, not Garcia’s. The complaint fails to



necessary to obtain relief” (alteration in original) (quoting Rios v. City of Del Rio, Tex., 444
F.3d 417, 421 (5th Cir. 2006))).
        33 See Hart, 199 F.3d at 247 n.6 (noting that “[a]lthough a court may dismiss [a] claim

[for failure to comply with Rule 9(b)], it should not do so without granting leave to amend,
unless . . . the plaintiff has failed to plead with particularity after being afforded repeated
opportunities to do so” (citing O’Brien, 936 F.2d at 675-76)).
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                                        No. 19-40966
plead with particularity to what extent, if at all, Garcia was involved in the
filing of the affidavit nor why her involvement amounted to fraud.
Consequently, the district court correctly dismissed this claim with prejudice.
                                                5
       Blessett’s final allegation of fraud—“[f]raud by [o]mission to provide
notice as ordered by a [j]udge”—alleges Garcia failed to provide Blessett with
notice of a status conference during the state court proceedings he initiated
challenging Garcia’s lien on his property.               Accordingly, Blessett could not
“defend his rights [at] the status conference.” He then appears to insinuate
that his case was dismissed for want of prosecution as a result. But this
allegation is not plausible. As the judgment in the state court proceeding
makes clear, Blessett’s case was dismissed following Garcia’s motion for
summary judgment, not for want of prosecution. 34 Because the claim does not
plausibly allege Garcia’s putative omission caused Blessett harm, Blessett’s
claim falls sort of stating a claim upon which relief can be granted. 35
                                               IV
       In summary, the district court properly dismissed each of Blessett’s
claims. Blessett’s remaining contentions are either waived, 36 unnecessary to
address in light of our previous holdings, or are dismissed pursuant to our
longstanding policy not to consider inadequately briefed arguments on


       34 See Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir.
2010) (noting that a court, in evaluating a motion to dismiss, can consider “any documents
attached to the complaint, and any documents attached to the motion to dismiss that are
central to the claim and referenced by the complaint” (citing Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498-99 (5th Cir. 2000))).
       35 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007))).
       36 See F.D.I.C. v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (“[I]f a litigant desires to

preserve an argument for appeal, the litigant must press and not merely intimate the
argument during the proceedings before the district court.”).
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                                          No. 19-40966
appeal. 37
                                      *        *         *
       The district court’s judgment is AFFIRMED.




       37 See Monteon–Camargo v. Barr, 918 F.3d 423, 428 (5th Cir.), as revised (Apr. 26,
2019) (“Generally speaking, a [party] waives an issue if he fails to adequately brief it.”
(alteration in original) (quoting United States v. Martinez, 263 F.3d 436, 438 (5th Cir. 2001))).
                                              12
