IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MC TRILOGY TEXAS, LLC, §

§

Plaintiff, §

§

VS. § Civil Action No. 3:22-CV-2154-D

§

CITY OF HEATH, TEXAS, §

§

Defendant. §

MEMORANDUM OPINION

 AND ORDER 

In this action challenging a municipality’s land use decisions, defendant City of

Heath, Texas (“Heath”) moves to dismiss MC Trilogy Texas, LLC’s (“MC Trilogy’s”)

federal- and state-law takings claims under Fed. R. Civ. P. 12(b)(1) for lack of subject matter

jurisdiction. For the reasons that follow, the court denies the motion. Because the court is

denying Heath’s motion, it denies as moot MC Trilogy’s motion requesting the court to strike

portions of Heath’s reply brief appendix, or, alternatively, to file a surreply.

I

The court assumes the parties’ familiarity with its prior memorandum opinions and

orders and recounts only the necessary facts to provide context to its ruling.1

1

See MC Trilogy Tex., LLC v. City of Heath, 662 F.Supp.3d 690, 695-96 (N.D. Tex.

Mar. 16, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023 WL 3635639,

at *1 (N.D. Tex. May 24, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023

WL 5918925, at *1 (N.D. Tex. Sept. 11, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City

of Heath, 2023 WL 6333115, at *1 (N.D. Tex. Sept. 28, 2023) (Fitzwater, J.); MC Trilogy

Tex., LLC v. City of Heath, 2023 WL 7004442, at *1 (N.D. Tex. Oct. 24, 2023) (Fitzwater,

J.); MC Trilogy Tex., LLC v. City of Heath, 2023 WL 7190652, at *1 (N.D. Tex. Nov. 1,

Case 3:22-cv-02154-D Document 355 Filed 06/27/24 Page 1 of 20 PageID 18560
In 2010 Heath purportedly annexed 139 acres of undeveloped land (“the Property”).2

At the time the Property was annexed, it was subject to a temporary zoning classification that

designated the land as an Agricultural District. The classification allowed single-family

residences to be built on lots that were at least one acre in size.3

2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023 WL 8569018, at *1 (N.D.

Tex. Dec. 11, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2023 WL

8583487, at *1 (N.D. Tex. Dec. 11, 2023) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of

Heath, 2023 WL 8583876, at *1 (N.D. Tex. Dec. 11, 2023) (Fitzwater, J.); MC Trilogy Tex.,

LLC v. City of Heath, 2023 WL 8850760, at *1 (N.D. Tex. Dec. 21, 2023) (Fitzwater, J.);

MC Trilogy Tex., LLC v. City of Heath, 2024 U.S. Dist. LEXIS 10336, at *3-5 (N.D. Tex.

Jan. 4, 2024) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2024 WL 201365, at *1

(N.D. Tex. Jan. 18, 2024) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of Heath, 2024 WL

346512, at *1 (N.D. Tex. Jan. 29, 2024) (Fitzwater, J.); MC Trilogy Tex., LLC v. City of

Heath, 2024 WL 1641233, at *1 (N.D. Tex. Apr. 16, 2024) (Fitzwater, J.).

2

Heath does not specify whether its standing argument is based on constitutional or

prudential standing. But because the court has an independent obligation to determine

whether it has subject matter jurisdiction before addressing prudential standing, it will

analyze Heath’s challenge to MC Trilogy’s standing under the Rule 12(b)(1) standard. See

Nixon v. Hegar, 2021 WL 4197207, at *2 (N.D. Tex. Sept. 15, 2021) (Fitzwater, J.)

(explaining that a challenge to a plaintiff’s constitutional standing should be raised by motion

under Rule 12(b)(1) while a challenge to a plaintiff’s prudential or statutory standing is

properly granted under Rule 12(b)(6)) (citing Harold H. Huggins Realty, Inc. v. FNC, Inc.,

634 F.3d 787, 795 n.2 (5th Cir. 2011)). When, as here, the Rule 12(b)(1) motion to dismiss

presents a factual challenge to standing, “the court is free to weigh the evidence and satisfy

itself as to the existence of its power to hear the case.” Hunter v. Branch Banking & Tr. Co.,

2013 WL 4052411, at *2 (N.D. Tex. Aug. 12, 2013) (Fitzwater, C.J.) (internal quotation

marks omitted) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. May 1981)). 

“[N]o presumptive truthfulness attaches to plaintiff’s allegations, and the existence of

disputed material facts will not preclude the trial court from evaluating for itself the merits

of jurisdictional claims.” Williamson, 645 F.2d at 413. 

3

The court need not address the validity of the temporary zoning classification for

purposes of deciding this motion.

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On October 22, 2020 Huffines Land Holding Partners, LP (“Huffines”)—MC

Trilogy’s affiliate and predecessor in interest—contracted to purchase the Property (and an

additional 754 acres outside of Heath’s jurisdiction) from Warren Hodges (“Hodges”). The

purchase and sale agreement provided for a 365-day inspection period and subsequent 45-day

closing period. 

On July 28, 2021 Teague, Nall and Perkins (“TNP”) applied to Heath for rezoning of

the 139-acre parcel from an agricultural to a planned development classification for the

“Trilogy Development.” Hodges signed the rezoning request because he owned the Property

at the time.

On August 24, 2021 the Heath City Council enacted Ordinance 210824A, amending

the temporary zoning classification to require parcels of at least ten acres per each singlefamily home. On September 4, 2021 Ordinance 210824A purportedly became effective after

its publication in The Dallas Morning News. That same day, MC Trilogy filed a certificate

of formation with the Texas Secretary of State.

After Ordinance 210824A was adopted, but before it purportedly took effect, Hodges

authorized a TNP engineer to apply to Heath for a preliminary plat on August 31, 2021.

Shortly thereafter, Heath’s planning director communicated on two occasions, September 2

and September 10, that the preliminary plat application was incomplete because it did not

conform to “the requirements of the (A) Agricultural District as amended by Ordinance No.

210824A.” P. Resp. (ECF No. 312) at 6, ¶ 10. 

On October 14, 2021 MC Trilogy (through counsel) requested that the Heath Zoning

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Commission provide it a “no action certificate” to ensure that its preliminary plat complied

with zoning regulations because the commission failed to “approve, approve with conditions,

or disapprove” the preliminary plat application in the required time. Id. at ¶ 11. Heath

(through counsel) responded on December 22, 2021, refusing MC Trilogy’s request for a “no

action certificate” and recommending that it request a permanent zoning change.4

On December 6, 2021, in accordance with the purchase and sale agreement, Hodges

signed a special warranty deed conveying the Property to MC Trilogy. MC Trilogy

purchased the Property for $22,250,000 at closing.

On July 5, 2022 MC Trilogy applied to Heath for a final plat that envisioned lots

under Heath’s jurisdiction to be at least one acre per single-family residence. Heath

commented on July 15. MC Trilogy responded on August 1, 2022, but did not address the

comment that no preliminary plat had been approved for the project. Heath’s Zoning

Commission denied MC Trilogy’s final plat on August 2, 2022, but did not provide written

reasons for its denial despite MC Trilogy’s request.

On September 7, 2022 MC Trilogy requested that the Heath Zoning Commission

provide it a “no action certificate” to ensure that its final plat complied with zoning

regulations. Heath refused, and this litigation followed.

The parties have completed discovery. Heath now asserts, inter alia, that MC Trilogy

lacks standing to assert a federal- or state-law takings claim because it did not own the

4

The TNP engineer later withdrew the zoning change request submitted to Heath.

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Property on any date that its regulatory takings claims ripened; and that if this court dismisses

MC Trilogy’s only remaining federal-law claim, the court should decline to exercise

supplemental jurisdiction over the pendent state-law claims. MC Trilogy opposes the motion

and responds that it has constitutional standing in its own right. MC Trilogy also moves to

strike Heath’s reply brief appendix, or, alternatively, to file a surreply, contending that Heath

submitted new and additional evidence that could have been, but was not, included in its

original appendix.5

The court is deciding the motion on the briefs, without oral argument.

II

Article III of the United States Constitution limits the jurisdiction of a federal court

to an actual “case” or “controversy.” U.S. Const. art III, § 2. The standing doctrine

implements this constitutional limitation by requiring that a plaintiff establish “‘a personal

stake in the outcome of the controversy’ as to warrant his invocation of federal-court

jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v.

Seldin, 422 U.S. 490, 498 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). As the

party seeking to invoke this court’s jurisdiction, MC Trilogy bears the burden of establishing

standing according to the degree of evidence required at the pleading stage of litigation. See

5

The court has not relied on Heath’s reply brief appendix for the facts described

above. Nonetheless, Heath’s original appendix includes much of the same information in its

reply appendix. For example, Heath’s original appendix also includes Heath Ordinance

210824A, MC Trilogy’s zoning plat application, MC Trilogy’s certificate of formation, and

the special warranty deed conveying the Property to MC Trilogy. 

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Procter & Gamble Co v. Amway

Corp., 242 F.3d 539, 560 (5th Cir. 2001). “[O]n a motion to dismiss, [the court] presume[s]

that general allegations embrace those specific facts that are necessary to support the claim.” 

Lujan, 504 U.S. at 561 (internal quotation marks, citation, and alteration omitted).

An organization like MC Trilogy may assert standing under either of two theories: 

“organizational standing” or “associational standing.” See OCA-Greater Hous. v. Texas, 867

F.3d 604, 610 (5th Cir. 2017). Under the organizational standing theory, an organization

“may have standing in its own right to seek judicial relief from injury to itself and to

vindicate whatever rights and immunities the [organization] itself may enjoy.” Warth, 422

U.S. at 511; see also OCA-Greater Hous., 867 F.3d at 610. Under the associational standing

theory, the organization “has standing to bring suit on behalf of its members[.]” Hunt v.

Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977); see also Texans United for

a Safe Econ. Educ. Fund v. Crown Cent. Petroleum Corp., 207 F.3d 789, 792 (5th Cir. 2000)

(citation omitted). MC Trilogy asserts organizational standing in response to Heath’s

motion. 

To establish organizational standing, MC Trilogy must satisfy the same standing

requirements as an individual plaintiff. See NAACP v. City of Kyle, 626 F.3d 233, 237 (5th

Cir. 2010). Accordingly, MC Trilogy bears the burden of showing: “(1) an injury-in-fact that

is concrete and actual or imminent, not hypothetical; (2) a fairly traceable causal link

between the injury and the defendant’s actions; and (3) that the injury will likely be redressed

by a favorable decision.” Hunter v. Branch Banking & Tr. Co., 2013 WL 4052411, at *1

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Case 3:22-cv-02154-D Document 355 Filed 06/27/24 Page 6 of 20 PageID 18565
(N.D. Tex. Aug. 12, 2013) (Fitzwater, C.J.) (citing Little v. KPMG LLP, 575 F.3d 533, 540

(5th Cir. 2009)). “In addition to these constitutional requirements, plaintiffs must not run

afoul of prudential standing rules, including the ‘general prohibition on a litigant’s raising

another person’s legal rights.’” Singh v. RadioShack Corp., 882 F.3d 137, 151 (5th Cir.

2018) (citing Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 126

(2014)). 

III

The court will address the threshold issue of MC Trilogy’s constitutional standing

before examining prudential standing. See Nixon v. Hegar, 2021 WL 4197207, at *2 (N.D.

Tex. Sept. 15, 2021) (Fitzwater, J.). MC Trilogy’s constitutional standing turns on whether

it has suffered some actual or threatened injury that can fairly be traced to the challenged

action and is redressable by this court. 

A

An injury-in-fact is “an invasion of a legally protected interest which is (a) concrete

and particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504

U.S. at 560 (internal quotation marks and citations omitted). To be concrete, MC Trilogy’s

complained-of injury must be “real, and not abstract,” and to be sufficiently particularized,

it must “affect [MC Trilogy] in a personal and individual way.” Spokeo, Inc. v. Robins, 578

U.S. 330, 339-40 (2016). To be actual or imminent, MC Trilogy’s complained-of injury

must also have already happened or be sufficiently threatening. See Lujan, 504 U.S. at 560. 

So long as these requirements are satisfied, any level of injury is sufficient to support

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standing, even “an identifiable trifle.” United States v. Students Challenging Regul. Agency

Procs., 412 U.S. 669, 689 n.14 (1973).

The Fifth Circuit has elaborated on what types of organizational activities satisfy the

Supreme Court’s injury-in-fact requirement. In Louisiana ACORN Fair Housing v. LeBlanc

(“ACORN”), 211 F.3d 298, 305 (5th Cir. 2000), the panel held that an organization did not

have standing because it had not shown “a drain on its resources” resulting from

counteracting the effects of the defendant’s actions. The panel explained that, although the

fair housing organization spent roughly 100 hours defending a prospective tenant, the

organization did not show that it had put other specific projects on hold as a result of the

defendant’s actions. See ACORN, 211 F.3d at 305; see also Havens Realty Corp. v.

Coleman, 455 U.S. 363, 379 (1982). The Fifth Circuit similarly held that an organization did

not have standing when it commissioned a $15,000 study to prepare for litigation related to

the city’s ordinance, held a meeting to discuss the ordinance’s impact, and researched

discriminatory zoning policies generally. See City of Kyle, 626 F.3d at 238; see also Tenth

Street Residential Ass’n v. City of Dallas, 968 F.3d 492, 500 (5th Cir. 2020). The panel

explained that, as in ACORN, the organization did not allege that it put any specific projects

on hold, and its complained-of injury did not differ from its routine lobbying activities. See

City of Kyle, 626 F.3d at 238. The Fifth Circuit has also held that the organization’s

activities could not be undertaken to prepare for litigation because the injury-in-fact

requirement would then “pose no barrier.” OCA-Greater Hous., 867 F.3d at 611.

MC Trilogy has satisfied its burden to show an injury-in-fact under Lujan and relevant

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Fifth Circuit authority. MC Trilogy’s injury is concrete and particularized and actual because

it has had to put on hold or at least delayed the Property’s development under Heath’s

jurisdiction, although it has been able to develop adjacent land under other municipal

authority. See ACORN, 211 F.3d at 305. MC Trilogy has spent time and resources

undertaking the Property’s development according to its proposed plans that envision a

residential subdivision with one-acre minimum lots. For example, MC Trilogy sought a no

action certificate for its preliminary plat application, submitted its final plat application, and

responded to Heath’s comments to the extent it considered the preliminary plat application

approved.6

 MC Trilogy suffered these injuries without a view toward litigation or its daily

operations. See OCA-Greater Hous., 867 F.3d at 612. To the extent that these costs are

associated with daily operations as a real estate developer, MC Trilogy’s plans for the

Property will be rendered redundant if Ordinance 210824A applies to the Property. MC

Trilogy has also suffered economic injuries in terms of lost revenue because of its inability

to develop the Property as proposed. See K.P. v. LeBlanc, 627 F.3d 115, 122 (5th Cir. 2010)

(“direct pecuniary injury” is usually “sufficient to establish injury-in-fact”). MC Trilogy

alleges that it has not been able to sell lots on the Property and has incurred increased costs

and interest charges. Heath neither challenges nor addresses MC Trilogy’s pre-development

expenditures or its lost revenue.

MC Trilogy’s injuries resemble the injuries a real estate developer suffered in Village

6

MC Trilogy undertook these actions after its legal formation on September 4, 2021. 

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of Arlington Heights v. Metropolitan Housing Development Corp. (“Arlington Heights”), 429

U.S. 252, 262 (1977). There, the plaintiff—a nonprofit corporation—entered into a 99-year

lease to build low- and moderate-income housing on vacant property owned by a religious

order. See id. at 256. The property sale was in part contingent on the developer’s “securing

zoning clearances from the Village.” Id. When the municipality denied the developer’s

zoning request, the developer sued. See id. at 258-59. Although the Arlington Heights

developer did not own the property and owed nothing if it could not secure zoning, the

Supreme Court held that the developer satisfied constitutional standing requirements to assert

its own rights. See id. at 261-63. The Court reasoned that the developer had “detailed and

specific” plans for the property, which provided the requisite personal stake in the

controversy. Id. at 261. The developer also suffered a cognizable economic injury because

it had “expended thousands of dollars on the plans for [the project] and on the studies

submitted to the Village in support of the petition for rezoning.” Id. at 262. If rezoning was

not granted, “many of these plans and studies [would] be worthless.” Id. 

Here, MC Trilogy has “detailed and specific” construction plans for the 139-acre plot

under Heath’s jurisdiction. See id. at 261. MC Trilogy paid TNP to draft and submit predevelopment plans for the Property like the Arlington Heights developer who “expended

thousands of dollars” on plans for the project and studies to support its rezoning petition.7

7

MC Trilogy maintains that it “incurred and paid no less than $75,000.00 for TNP’s

preparation of the Preliminary Plat Application and the Final Plat Application, and for filing

the same.” P. Resp. (ECF No. 312) at 17-18. But the preliminary plat application was

prepared and filed before MC Trilogy’s legal formation. Accordingly, while the court

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Id. at 262. If MC Trilogy cannot develop the Property according to its final plat—i.e.,

according to the classification that allowssingle-family residencesto be built on lotsthat are

at least one acre in size rather than at least ten acres in size—its plans are “worthless.” Id. 

Moreover, Ordinance 210824A stands as an “absolute barrier” to MC Trilogy’s moving

forward with its proposed development and recouping its final application costs. Id. at 261.8

The similarities between MC Trilogy and the Arlington Heights developer support finding

that MC Trilogy has alleged an injury-in-fact. See also Charter Sch. Fund, LLC v. City of

Desoto, 2021 WL 1110708, at *5-6 (N.D. Tex. Mar. 3, 2021) (Rutherford, J.) (denying

summary judgment when real estate developer raised fact issue as to whether it suffered

injury-in-fact, even though it never owned the relevant property, because it invested a

substantial amount of money into the development of its project); Mercado Azteca, LLC v.

City of Dallas, 2004 WL 2058791, at *1-6 (N.D. Tex. Sept. 14, 2004) (Boyle, J.) (denying

motion to dismiss on similar grounds).

Heath attempts to distinguish Arlington Heights on the basis that the developer did not

acknowledges that MC Trilogy paid TNP some amount less than $75,000 for the predevelopment documents prepared and filed after MC Trilogy’s legal existence (i.e., those

associated with the final plat application), for standing purposes, MC Trilogy does not rely

on any costs it may have incurred to TNP before its legal existence.

8

In a footnote in its reply brief, Heath attempts to distinguish Arlington Heights on the

ground that Ordinance 210824A does not stand as an “absolute barrier” to MC Trilogy’s

planned development. See D. Reply (ECF No. 322) at 10 n.4. Heath suggests that MC

Trilogy can “reactivate its zoning request” to “move forward with its Preliminary Plat.” Id. 

The mere fact that MC Trilogy must submit a zoning request demonstrates that Ordinance

210824A bars MC Trilogy from developing the Property according to its proposed one-acre

minimum lots.

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assert a takings claim. But Heath’s distinction exaggerates the role of the claim itself under

this analysis. The standing analysis “focuses on the party seeking to get his complaint before

a federal court and not on the issues he wishes to have adjudicated.” Valley Forge Christian

Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 484 (1982)

(emphasis added) (quoting Flast v. Cohen, 392 U.S. 83, 99 (1968)); see also Warth, 422 U.S.

at 500 (“[S]tanding in no way depends on the merits of the plaintiff’s contention that

particular conduct was illegal,” although “it often turns on the nature and source of the claim

asserted.”). Indeed, the Supreme Court’s Arlington Heights analysis did not materially rely

on the nature and source of the plaintiff’s asserted claims. See Arlington Heights, 429 U.S.

at 260-61. The Supreme Court concluded that the Arlington Heights developer satisfied the

injury-in-fact requirement because it suffered a cognizable “economic injury.” Id. at 262;

see Tex. Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir. 2006) (“[E]conomic

injury is a quintessential injury upon which to base standing.”); Young Conservatives of Tex.

Found. v. Univ. of N. Tex., 609 F.Supp.3d 504, 511 (E.D. Tex. 2022) (collecting cases). 

Thus the court considers Arlington Heights relevant and persuasive regardless of the different

claims.

Heath implicitly asserts that MC Trilogy was not injured because it did not own the

Property on any date an alleged regulatory taking ripened, and it relies on a Second Circuit

decision, United States Olympic Committee v. Intelicense Corp., S.A.(“USOC”), 737 F.2d

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263, 268 (2d Cir. 1984).9

 That case considered whether the Amateur Sports Act of 1978 (the

“Act”), 36 U.S.C. §§ 371-96, required the consent of the United States Olympic Committee

to market the Olympic symbol in the United States. See id. at 264. The argument was made

that the Act’s relevant section was unconstitutional as applied because it represented a taking. 

See id. at 267. The Second Circuit rejected that argument (in a single paragraph) because the

Act was enacted in 1978, and the claimant did not enter into an agreement with the

International Olympic Committee to market the pictograms that incorporated the Olympic

symbol until 1979. See id. The court reasoned that “[o]nly the owner of an interest in

property at the time of the alleged taking has standing to assert that a taking has occurred.” 

Id. at 268. Accordingly, the Second Circuit held that the claimant did not have standing to

pursue a takings claim. See id. 

The court is not persuaded to follow USOC, which is not binding authority in any

event. The Second Circuit did not analyze Article III’s constitutional standing requirements

explicitly or elaborate on its holding. See id. at 267-68. In fact, the Supreme Court authority

that the Second Circuit cited in support of its holding never mentioned the standing doctrine. 

See United States v. Dow, 357 U.S. 17, 20-21 (1958). In Dow the Supreme Court decided

when a taking occurred under the Declaration of Taking Act of February 26, 1931, 40 U.S.C.

§§ 258a-258e, and who was entitled to recover the compensation award for that taking. This

is evidence that the Court did not lack subject matter jurisdiction to hear the case. See id. at

9

Heath does not explicitly address Article III’s constitutional requirements as applied

to MC Trilogy’s federal- or state-law regulatory takings claim.

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20-27. Moreover, Supreme Court authority since USOC has undermined the Second

Circuit’s holding that property ownership is dispositive of constitutional standing to assert

a regulatory takings claim. See Palazzolo v. Rhode Island, 533 U.S. 606, 626 (2001)

(acknowledging that its takings jurisprudence does not stand for the rule that “postregulation

acquisition of title” is fatal to a regulatory takings claim for deprivation of all economic use

or to a Penn Central claim).10

In sum, MC Trilogy currently owns the Property. It has expended time and resources

planning to develop the Property according to the size restriction on residential lots that

complies with the temporary zoning classification that existed before Heath passed

Ordinance 210824A. MC Trilogy cannot recoup these pre-development costs because

Ordinance 210824A bars it from developing the Property according to its proposed plans.

MC Trilogy has also suffered economic harms related to the delayed development of the

10Heath’s other cited authority also does not support the proposition that, to have

constitutional standing, a plaintiff asserting a Fifth Amendment regulatory takings claim must

have owned the property taken at the time of the taking. For example, Deniz v. Municipality

of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002), analyzed ripeness rather than standing; the

court only mentioned standing in an explanatory parenthetical. See id. at 149. Heath also

cites von Kerssenbrock-Praschma v. Saunders, 48 F.3d 323, 326 (8th Cir. 1995), for the

simple proposition that the owner of an interest in the affected property has standing to

challenge the restriction, and MC Trilogy currently owns the affected property. Heath’s

more recent authority actually supports a contrary position. See Manhattan Ave. LLC v.

Tampa, 2023 WL 9958391, at *2 (M.D. Fla. May 5, 2023) (distinguishing physical and

regulatory takings and acknowledging that “a purchaser retains the ability to challenge” a

regulatory taking because it acquires the full property rights upon purchase, which includes

the right to challenge existing regulations); Epice Corp. v. Land Reutilization Auth. of St.

Louis, 2009 WL 4730337, at *4 (E.D. Mo. Dec. 4, 2009) (“A property interest acquired after

the conduct that allegedly violated Plaintiff’s property rights occurred is sufficient, therefore,

to give Plaintiff standing to challenge the conduct.”).

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Property, including an inability to sell lots and increased costs and interest. Accordingly,

MC Trilogy has satisfied its burden to show an injury-in-fact under Lujan and relevant Fifth

Circuit authority.

B

The second and third elements of the Lujan standing test are traceability and

redressability. See Lujan, 504 U.S. at 560-61. 

To establish traceability, the plaintiff must demonstrate that the defendant’s action

caused the plaintiff’s injury, rather than “the independent action of some third party not

before the court.” Cameron Cnty. Hous. Auth. v. City of Port Isabel, 997 F.3d 619, 623 (5th

Cir. 2021) (citation omitted). In other words, the plaintiff must show that the injury is “the

consequence of the [defendant’s] actions, or that prospective relief will remove the harm.” 

Warth, 422 U.S. at 505. “When the suit is one challenging the legality of government action

or inaction” and “the plaintiff himself an object of the action,” then “there is ordinarily little

question that the action or inaction has caused him injury[.]” Lujan, 504 U.S. at 561-62.

To establish redressability, the plaintiff must demonstrate that the alleged injury is

likely to be “redressed by a favorable decision.” Id. at 561. The court considers “the

relationship between the judicial relief requested and the injury suffered.” California v.

Texas, 593 U.S. 659, 671 (2021) (internal quotation marks and citation omitted). Typically,

where an injury is traceable to a defendant’s conduct, it is redressable as well. See OCAGreater Hous., 867 F.3d at 613-14; Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001)

(en banc).

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MC Trilogy has satisfied its burden to show that its injury is fairly traceable and

redressable. MC Trilogy’s Property is the subject of Ordinance 210824A, and Heath

possesses the authority to enforce that ordinance against MC Trilogy. Cf. Okpalobi, 244 F.3d

at 409 (holding that causal connection prong of Lujan standing test was unsatisfied when the

named defendants were “without power to enforce the complained-of statute”). Heath’s

application of Ordinance 210824A to MC Trilogy’s Property caused MC Trilogy’s inability

to develop the Property according to its proposed plans. Nevertheless, MC Trilogy’s injury

is redressable because Heath can compensate MC Trilogy for the alleged regulatory taking

and interference with its use and enjoyment of its property.

Because MC Trilogy’s Property is the subject of Ordinance 210824A and because the

parties do not appear to seriously dispute that MC Trilogy has established traceability and

redressability, the court easily concludes that MC Trilogy has satisfied these requirements.

IV

The court next considers whether MC Trilogy has established prudential standing. 

Heath does not directly dispute that MC Trilogy has prudential standing, but it urges

that this court should decline to adjudicate MC Trilogy’s federal- and state-law takings

claims on the grounds that MC Trilogy did not own the Property on any date that an alleged

regulatory takings claim ripened. Heath’s argument therefore appears rooted in principles

of prudential standing rather than Article III standing to the extent it asserts that MC Trilogy

cannot sue in federal court to enforce the rights of the prior landowner, Hodges.

Prudential standing does not emanate from the Constitution, and it instead “embodies

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‘judicially self-imposed limits on the exercise of federal jurisdiction.’” Cibolo Waste, Inc.

v. City of San Antonio, 718 F.3d 469, 474 (5th Cir. 2013) (citation omitted). The Supreme

Court has acknowledged that the prudential standing doctrine “is in some tension with [its]

recent reaffirmation of the principle that a federal court’s obligation to hear and decided

cases within its jurisdiction is virtually unflagging.” Lexmark Int’l, 572 U.S. at 126 (internal

quotation marks and citation omitted). Nonetheless, the Supreme Court has enumerated three

principles that encompass prudential standing, “including the ‘general prohibition on a

litigant’s raising another person’s legal rights.’” Singh, 882 F.3d at 151 (quoting Lexmark

Int’l, 572 U.S. at 126). 

The prohibition against third-party standing generally requires that a litigant “assert

his own legal rights and interests, and cannot rest his claim to relief on the legal rights or

interests of third parties.” U.S. Dep’t of Lab. v. Triplett, 494 U.S. 715, 720 (1990). The

rationale behind the requirement is that “courts should not adjudicate such rights

unnecessarily, and it may be that in fact the holders of those rights either do not wish to assert

them, or will be able to enjoy them regardless of whether the in-court litigant is successful

or not,” and, second, because the third parties themselves are “the best proponent[] of their

own rights.” Singleton v. Wulff, 428 U.S. 106, 113-14. 

MC Trilogy’s regulatory takings claim is not barred by the prohibition against thirdparty standing under the prudential standing doctrine. See 33 Charles Alan Wright & Arthur

R. Miller, Federal Practice and Procedure § 8343 (2d ed. 2019) (“[T]he doctrine of thirdparty standing or jus tertii, still remains [for the time being] in the prudential category.”). 

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MC Trilogy does not seek to raise anyone else’s legal rights in its first amended complaint. 

MC Trilogy currently owns the Property, and satisfies the Article III constitutional standing

requirements based on its own injuries. See supra § III(A)-(B). That is, MC Trilogy suffered

economic harm that can fairly be traced to Heath’s enforcement of Ordinance 210824A and

is redressable by compensatory damages. In particular, Ordinance 210824A interferes with

MC Trilogy’s use and enjoyment of the Property distinct from its interference with Hodges’s. 

MC Trilogy is a real estate developer who seeks to build single-family residences on the

Property with one-acre minimum lots, and Ordinance 210824A interferes with the density

of MC Trilogy’s development by requiring ten-acre minimum lots. Hodges no longer owns

the Property, and Ordinance 210824A did not interfere with his use and enjoyment of the

Property because he used it for “running cattle and cutting hay”—not developing singlefamily residences on one-acre minimum lots.

Heath’s argument, rather than challenge prudential standing, challenges the ripeness

of MC Trilogy’s regulatory takings claims—which this court addressed in March 2023. See

MC Trilogy Tex., LLC v. City of Heath, 662 F.Supp.3d 690, 701-02 (N.D. Tex. 2023)

(Fitzwater, J.). Indeed, Heath’s reliance on Palazzolo demonstrates as much because that

decision addressed ripeness. See Palazzolo, 533 U.S. at 626-28. Palazzolo reaffirmed the

general rule that the right to assert a takings claim for a physical taking and to receive just

compensation belongs to owner of the property at the time of the taking because “the fact and

extent of the taking are known.” Id. at 628. Palazzolo distinguished regulatory takings

because those claims may involve a ripening period. See id. The Court held that title

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transfers occurring during that ripening period do not preclude a subsequent purchaser or

successive title holder from challenging the taking when the claim ripens. See id. The Court

reasoned that if transfers of title after an ordinance absolved “the State of its obligation to

defend any action restricting land use, . . . A State would be allowed, in effect, to put an

expiration date on the Takings Clause.” Id. at 627. Nevertheless, Palazzolo did not address

whether title transfers occurring after the ripening period preclude that title holder from

challenging the taking. Palazzolo therefore offers no support for Heath’s contention that MC

Trilogy does not have standing regardless whether it owned the Property before or after its

claims ripened.11

Heath’s motion essentially inquires into the merits of MC Trilogy’s federal- and statelaw regulatory takings claims. For example, Heath disputes when MC Trilogy’s regulatory

takings claim ripened and whether MC Trilogy is the party entitled to a just compensation

award based on that date. Heath questions the validity of MC Trilogy’s claims rather than

its ability to bring them in federal court. The court declines to decide in the context of this

motion the specific date when MC Trilogy’s regulatory takings claims ripened. Neither

party’s brief addresses the merits of MC Trilogy’s regulatory takings claims, and Heath’s

motion for summary judgment on those claims remains pending.

11The Supreme Court’s decision in Knick v. Township of Scott, 588 U.S. 180 (2019),

also did not address prudential standing. The Supreme Court in Knick held that a property

owner can bring a federal suit at the time of the taking without first exhausting remedies in

state court. See id. at 206. The Supreme Court never mentioned prudential standing, and this

court does not consider Knick to be relevant to its standing inquiry.

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V

The court need not address whether it should exercise supplemental jurisdiction over

MC Trilogy’s remaining state-law claims because it declines to dismiss MC Trilogy’s 

federal takings claim.

* * *

Heath’s motion to dismiss under Rule 12(b)(1) is denied. MC Trilogy’s motion

requesting the court to strike Heath’s reply brief appendix, or alternatively, to file a surreply,

is denied as moot.

SO ORDERED.

June 27, 2024.

_________________________________

SIDNEY A. FITZWATER

SENIOR JUDGE

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