1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TEXARKANA DIVISION

B.F. HICKS, GARY BOREN §

and KATHY BOREN § 

§

v. § Civil Action No. 5:23cv81-RWS-JBB

§

SCOTT ANDREWS, ET AL. §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The above-referenced case was referred to the undersigned United States Magistrate Judge 

for pretrial purposes in accordance with 28 U.S.C. §636. Before the Court is the following pending 

motion:

Enel Defendants’ Motion to Dismiss for Failure to State a Claim (Dkt. No. 14).

The undersigned, having reviewed the relevant briefing, recommends the motion be DENIED 

WITHOUT PREJUDICE TO REFILING.

1 Specifically, the undersigned recommends the 

Court (1) order Plaintiffs to file, within twenty days from the date of any Order Adopting this 

Report and Recommendation, a second amended complaint with sufficient allegations to state 

plausible Texas Water Code and/or nuisance claim(s) to satisfy Federal Rule of Civil Procedure 

12(b)(6), if possible; and (2) advise Plaintiffs that failure to comply will result in Plaintiffs’ lawsuit 

being dismissed.

1 Contemporaneously with this Report and Recommendation, the undersigned is entering a Report and 

Recommendation recommending Plaintiffs’ motion to remand (Dkt. No. 12) be denied and denying Plaintiffs’ 

provisional motion for leave to amend. Having determined that Defendant Scott Andrews was improperly joined, the 

undersigned further recommends Plaintiffs’ claims against Scott Andrews be dismissed without prejudice and that 

Defendant Andrews’ Motion to Dismiss (Dkt. No. 21) be denied as moot.

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I. Background

Plaintiffs B.F. Hicks, Gary Boren, and Kathy Boren (“Plaintiffs”) originally filed this 

lawsuit in the 62nd Judicial District Court of Franklin County, Texas, on June 29, 2023, alleging 

causes of action against Scott Andrews, Stockyard Solar Project, LLC, Saddle House Solar Project, 

LLC, Enel Energy North America Texas, LLC, Enel Green Power Azure Blue Jay Solar Holdings, 

LLC, Enel Green Power Estonian Solar Project, LLC, Enel Green Power Lily Solar Holdings, 

LLC, Enel Green Power N.A. Development, LLC, Enel Green Power North America, Inc., Enel 

Green Power Roadrunner Solar Project I, LLC, Enel Green Power Roadrunner Solar Project II, 

LLC, and Enel Green Power Roseland Solar, LLC (collectively “Defendants”) for (1) intentional 

nuisance; (2) negligent nuisance; (3) strict-liability nuisance; (4) anticipatory nuisance; (5) 

violation of the Texas Water Code; and (6) declaratory judgment. See Cause No. 13077, B.F. 

Hicks, Gary Boren, and Kathy Boren v. Scott Andrews, et al. (the “State Court Action”); see also 

Dkt. No. 3 (original state court petition). Defendant Saddle House Solar Project, LLC (“Saddle 

House”) filed its Notice of Removal on July 28, 2023. Dkt. No. 1.

After Saddle House filed its Notice of Removal, Plaintiffs filed their amended complaint 

pursuant to this Court’s Order and Advisory dated August 1, 2023. Dkt. No. 5. Plaintiffs allege as 

follows in the amended complaint.

This case involves the corporate Defendants’ intentions to install 620,000 solar panels, DC 

electric lines that run to a 220 MW/AC storage facility (BESS) on the land surrounding Plaintiffs’

acreage. Dkt. No. 7, ¶¶ 4, 21, 30. Simply stated, a BESS is “a collection of large lithium batteries 

for the purpose of storing electricity.” Id., ¶ 28; see also id., ¶ 29 (alleging “[t]he well-known 

danger of the lithium batteries comprising a BESS are fire, emission of toxic chemicals and gasses, 

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and even explosion. A BESS is so hazardous that it should be surrounded by an Evacuation Zone 

in the event of a mishap as described above.”); see also id., ¶ 32. 

Plaintiff B.F. Hicks is an individual who resides in Franklin County, Texas, in the Eastern 

District of Texas, Texarkana Division. Id., ¶ 1. He owns approximately 1,000 acres of land in 

Franklin County. Id., ¶ 18. Plaintiffs Gary Boren and Kathy Boren are husband and wife who own 

five acres in Franklin County within 200 yards of the proposed BESS. Id., ¶ 30. They have resided 

on this land for 23 years. Id., ¶ 27.

Defendant Scott Andrews (“Andrews”) owns the acreage surrounding Plaintiff Hicks on 

two sides. Id., ¶ 19. Defendant Stockyard Solar Project LLC, (“Stockyard”) is a Delaware limited 

liability company and a 310 MW/AC Solar Electric Generating Facility with an attendant 220 

MW/AC storage facility (BESS). Id., ¶ 4. Defendant Saddle House is a Delaware limited liability 

company. Id., ¶ 5. Defendants Enel Energy North America Texas, LLC, Enel Green Power Azure 

Blue Jay Solar Holdings, LLC, Enel Green Power Estonian Solar Project, LLC, Enel Green Power 

Lily Solar Holdings, LLC, Enel Green Power N.A. Development, LLC, Enel Green Power North 

America, Inc., Enel Green Power Roadrunner Solar Project I, LLC, Enel Green Power Roadrunner 

Solar Project II, LLC, and Enel Green Power Roseland Solar, LLC are a group of entities organized 

under the laws of the state of Delaware. Id., ¶ 15. According to Plaintiffs, one or more of the Enel

Defendants is a holding company owning the stock in Stockyard and Saddle House. Id.

According to Plaintiffs, Andrews intends to sell his acreage to Enel Defendants or one of 

their subsidiaries. Id., ¶ 20. Plaintiffs allege Defendants Stockyard and Saddle House plan to install 

620,000 solar panels. Id., ¶ 21. Plaintiffs maintain that this facility will interfere with their land. 

Id. at 9. Plaintiffs assert four claims against Defendants arising in nuisance: 1) intentional nuisance, 

2) negligent nuisance, 3) strict liability nuisance, and 4) anticipatory nuisance. Id., ¶¶ 35-46.

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Plaintiffs also allege a violation of the Texas Water Code because each and every intrusion of 

surface water will cause injury to their property. Id., ¶ 50. Plaintiffs seek a temporary and 

permanent injunction against Defendants from further development on Andrews’ land for the 

purpose of constructing a solar farm or BESS unless and until Defendants demonstrate to the Court 

that they will not commit a nuisance or violation of the Texas Water Code. Id., ¶ 51. Plaintiffs

state Defendants’ actions “have and will cause proximately damages to Plaintiffs in an amount in 

excess of the jurisdictional limits of this Court, but not exceeding $10,000,000.00” and seek a 

declaratory judgment against Defendants, claiming that Defendants’ actions will cause Plaintiffs 

and their real estate temporary and permanent damage for which there is no adequate remedy. Id., 

¶ 53. Plaintiffs further seek attorney’s fees in accordance with the Declaratory Judgement Act, the 

Texas Water Code, and the Texas Civil Practice and Remedies Code in the amount of 

$1,000,000.00. Id., ¶ 54.

All of the defendants other than individual Scott Andrews (“Enel Defendants”) move to 

dismiss the amended complaint for failure to state a claim. Dkt. No. 14. Enel Defendants claim the 

allegations and facts fall short of those necessary to state a plausible claim for relief. Id. at 11.

First, Enel Defendants assert Plaintiff’s amended complaint is a “shotgun” pleading subject to 

dismissal under Rule 12(b)(6). Id. at 7-9. Second, Enel Defendants argue the Court should dismiss 

all of Plaintiffs’ claims as unsupported by non-barebones, non-hypothetical, non-conclusory, and 

non-speculative facts. Id. at 9-13. Finally, Enel Defendants assert Plaintiffs fail to allege all the 

essential elements in support of a negligent nuisance claim. Enel Defendants assert Plaintiffs have 

already been given an opportunity to replead, and therefore the amended complaint should be 

dismissed with prejudice without further leave to amend. Id. at 14-15.

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In response, Plaintiffs argue Enel Defendants waived their right to file a Rule 12(b)(6) 

motion to dismiss. Dkt. No. 17 at 2-3. Plaintiffs further assert the amended complaint states a claim 

based on “the Texas remedy of injunction for anticipatory nuisance and violation of the Texas 

Water Code on the grounds that Defendants are all participants in the construction of a solar farm 

and BESS (lithium battery installation) which will destroy Plaintiffs’ land and cause 

environmental, safety and health problems.” Id. at 3. Finally, Plaintiffs seek attorneys’ fees of 

$10,000.00 in connection with Enel Defendants’ “frivolous” motion. Id. at 5-6.

II. Legal Standards

 Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain 

statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). 

A motion to dismiss for failure to state a claim upon which relief can be granted under Rule 

12(b)(6) of the Federal Rules of Civil Procedure tests only the formal sufficiency of the statement 

of a claim for relief and is “appropriate when a defendant attacks the complaint because it fails to 

state a legally cognizable claim.” Pfang v. Lamar Inst. of Tech., No. 1:23-CV-93, 2023 WL 

5017204, at *8 (E.D. Tex. Aug. 5, 2023) (quoting Ramming v. United States, 281 F.3d 158, 161 

(5th Cir. 2001), cert. denied, 536 U.S. 960 (2002); also citing Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (holding that in order “[t]o 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”)). Such a 

motion is “not meant to resolve disputed facts or test the merits of a lawsuit” and “instead must 

show that, even in the plaintiff’s best-case scenario, the complaint does not state a plausible case 

for relief.” Id. (quoting Sewell v. Monroe City Sch. Bd., 974 F.3d 577, 581 (5th Cir. 2020)). 

“[T]he plaintiff’s complaint [must] be stated with enough clarity to enable a court or an 

opposing party to determine whether a claim is sufficiently alleged.” Id. (quoting Oscar Renda 

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Contracting, Inc. v. Lubbock, 463 F.3d 378, 381 (5th Cir. 2006)). The “[f]actual allegations must 

be enough to raise a right to relief above the speculative level.” Id. (quoting Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007)). “Where the well-pleaded facts of a complaint do not permit 

a court to infer more than the mere possibility of misconduct, the complaint has alleged—but it 

has not ‘show[n]’—‘that the pleader is entitled to relief.’” Walker v. Beaumont Indep. Sch. Dist., 

938 F.3d 724, 734 (5th Cir. 2019) (quoting Iqbal, 556 U.S. at 678). Accordingly, “a complaint’s 

allegations ‘must make relief plausible, not merely conceivable, when taken as true.’” Id. (quoting 

United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 186 (5th Cir. 2009)).

In evaluating motions to dismiss filed under Rule 12(b)(6), the court “must accept all wellpleaded facts as true, and . . . view them in the light most favorable to the plaintiff.” Id. at 735 

(quoting Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th. Cir. 1986)). Further, “[a]ll 

questions of fact and any ambiguities in the controlling substantive law must be resolved in the 

plaintiff's favor.” Id. (quoting Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001)). On the other 

hand, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” 

Id. (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice if it 

tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Iqbal, 556 U.S. 

at 678 (quoting Twombly, 550 U.S. at 557)).

III. Applicable law

A. Relevant law regarding public nuisance, private nuisance, and nuisance per se

There are two types of nuisance claims, public and private, which are based on “two distinct 

conditions with different requirements and limitations.” Bruington v. Chesmar Homes, L.L.C., No. 

08-23-00015-CV, 2023 WL 6972987, at *8 n. 10 (Tex. App. – El Paso Oct. 20, 2023) (citing 

Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 591, n. 3 (Tex. 2016)). A public 

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nuisance “affects the public at large,” while a private nuisance “is a non-trespassory invasion of 

another’s interest in the private use and enjoyment of land.” Riley v. Angelle, No. 01-20-00590-

CV, 2022 WL 3092892, at *4 (Tex. App. – Houston [1st Dist.] Aug. 4, 2022) (quoting Goad v. 

KHBM Partners III, Ltd., No. 09-20-00020-CV, 2021 WL 4597083, at *5 (Tex. App.—Beaumont 

Oct. 7, 2021, no pet.) (mem. op.)). A public nuisance may also be a private nuisance. Id. (citing

Crosstex, 505 S.W.3d at 591 n. 3). A private nuisance claim includes the following elements:

(1) the plaintiff had an interest in the land; (2) the defendant interfered with or 

invaded the plaintiff’s interest by conduct that was negligent, intentional, or 

abnormal and out of place in its surroundings; (3) the defendant’s conduct resulted 

in a condition that substantially interfered with the plaintiff’s use and enjoyment of 

his land; and (4) the nuisance caused injury to the plaintiff.

K & K Inez Properties, L.L.C. v. Kolle, No. 13-21-00460-CV, 2023 WL 8941487, at *3 (Tex. App. 

– Corpus Christi-Edinburg Dec. 28, 2023) (quoting Cerny v. Marathon Oil Corp., 480 S.W.3d 

612, 622 (Tex. App.—San Antonio 2015, pet. denied)).

In Crosstex, the Texas Supreme Court discussed the requirements for establishing a private 

nuisance claim. The court noted the law of “nuisance” seeks to balance a property owner’s right 

to use his property “as he chooses in any lawful way” against his duty not to use it in a way that 

“injure[s] another.” Crosstex, 505 S.W.3d at 590-91 (quoting Gulf, Colo. & Santa Fe Ry. Co. v. 

Oakes, 94 Tex. 155, 58 S.W. 999, 1000 (1900)). The Texas Supreme Court recognized early on 

that a nuisance could result from an array of actions by a wide variety of defendants, and could 

involve interference with numerous different interests through both physical substances and 

intangible conditions, such as “water, stones, rubbish, filth, smoke, dust, odors, gases, noises, 

vibrations, and the like.” Id. at 592 (quoting Oakes, 58 S.W. at 1001). However, more recently, the 

Texas Supreme Court has consistently used a more comprehensive definition of a private nuisance: 

“A ‘nuisance’ is a condition that substantially interferes with the use and enjoyment of land by 

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causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to 

use and enjoy it.” Id. at 593 (quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)).

The Texas Supreme Court clarified that “nuisance” does not refer to a cause of action or to 

the defendant’s conduct or operations, but instead refers to the particular type of legal injury that 

can support a claim or cause of action seeking legal relief. Id. at 594 (citing City of Tyler v. Likes, 

962 S.W.2d 489, 504 (Tex. 1997) (noting that private nuisance is “a kind of damage done, rather 

than any particular type of conduct”)). Thus, the term “nuisance” does not refer to the “wrongful 

act” or to the “resulting damages,” but only to the legal injury—the interference with the use and 

enjoyment of property—that may result from the wrongful act and result in the compensable 

damages. Id. at 595. Such an interference qualifies as a nuisance—and thus as a legal injury—only 

if the interference is “substantial” and causes “discomfort or annoyance” that is “unreasonable.”

Id.

A defendant’s liability for creating a nuisance does not depend on showing that the 

defendant acted or used its property illegally or unlawfully. Id. at 601. However, there must be some 

level of culpability on behalf of the defendant; nuisance cannot be premised on a mere accidental 

interference. Id. at 604. Whether a defendant may be held liable for causing a nuisance depends on 

the culpability of the defendant’s conduct, in addition to proof that the interference is a nuisance.

Id. Finally, Crosstex set forth three classifications for private nuisance: intentional nuisance, 

negligent nuisance, and strict liability nuisance.2 Id. at 604-609. 

2 For an intentional nuisance claim, a plaintiff may establish intent with proof that the defendant acted with a specific 

intent to inflict injury or a malicious desire to so harm by causing the actionable interference. Reed v. LKQ Corp., 436 

F. Supp. 3d 892, 912 (N.D. Tex. 2020) (citing Crosstex, 505 S.W.3d at 605). “But an intent to inflict injury or desire 

to harm is not required to show intent; the plaintiff can establish intent with evidence that the defendant acted with the 

belief that the interference was ‘substantially certain to result from’ the defendant’s conduct.” Id. (quoting Crosstex, 

505 S.W.3d at 605 (quoting Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985))). An intentional invasion 

may be “an invasion that the actor knowingly causes in the pursuit of a laudable enterprise without any desire to cause 

harm.” Id. (quoting Crosstex, 505 S.W.3d at 605 (quoting Restatement (Second) of Torts § 8A cmt. B)). Further, the 

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Texas law also recognizes a cause of action for nuisance per se. Riley, 2022 WL 3092892, 

at *5. Under one theory, a nuisance per se is an act, occupation, or structure that is a nuisance at all 

times, under any circumstances, and in any location. Id. (citing Aguilar v. Trujillo, 162 S.W.3d 839, 

851 (Tex. App.—El Paso 2005, pet. denied); Luensmann v. Zimmer-Zampese & Assocs., Inc., 103 

S.W.3d 594, 598 (Tex. App.—San Antonio 2003, no pet.); also citing Maranatha Temple, Inc. v. 

Enter. Prods. Co., 893 S.W.2d 92, 100 (Tex. App.—Houston [1st Dist.] 1994, writ denied) 

(contrasting nuisance per se with nuisance in fact, which is “an act, occupation, or structure that 

becomes a nuisance by reason of its circumstances or surroundings”)). Under another theory, 

usually involving municipalities, a plaintiff may prove nuisance per se by proving that the defendant 

violated a statute or ordinance declaring the activity to be a nuisance per se. Id. (citing Luensmann, 

103 S.W.3d at 598). However, violation of a statute or ordinance without additional evidence of 

nuisance is insufficient to prove the claim. Id.

Two basic remedies are available in nuisance actions—damages and injunctions. Cox v. City 

of Dallas, Tex., 256 F.3d 281, 291 (5th Cir. 2001) (citing RESTATEMENT (SECOND) OF TORT, § 821B 

cmt. i; id. § 821C (stating that to maintain a damage action for a public nuisance, the plaintiff must 

have suffered damage different in kind from that suffered by the general public and that to maintain 

an injunctive action for a public nuisance, the plaintiff must have a right to recover damages or the 

authority to represent a political subdivision in the matter or standing to sue in a citizen’s action); 

requirement for an intentional nuisance is that the effects of the substantial interference be unreasonable (thus, that 

there be a nuisance), not that the defendant’s conduct be unreasonable. Crosstex, 505 S.W.3d at 606. 

A plaintiff’s negligent nuisance claim is governed by ordinary negligence principles, and a plaintiff must prove “the 

existence of a legal duty, a breach of that duty, and damages proximately caused by the breach.” Reed, 436 F. Supp. 

3d at 912–13 (citing Crosstex, 505 S.W.3d at 607 (internal quotation marks omitted in Reed)).

The third category of nuisance-based claims (strict liability) includes those based on “other conduct, culpable because 

abnormal and out of place in its surroundings, that invades another’s interests.” Crosstex, 505 S.W.3d at 607 (quoting 

City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997)).

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id. § 821F (revealing that a private or public nuisance action for damages may be maintained only 

by those who have suffered “significant harm”); id. § 822 cmt. d (distinguishing between an action 

at law for damages and a suit for injunction in equity and providing that an injunction in equity may 

be obtained in a proper case against a threatened private nuisance, but an action cannot be 

maintained at law unless harm has already been suffered). 

B. Texas Water Code

Texas Water Code Section 11.086 generally prohibits a person from diverting or 

impounding the natural flow of surface water in a manner causing damage to another’s property. 

Trevino v. Patel, No. 14-22-00497-CV, 2023 WL 5124662, at *1 (Tex. App. – Houston [14th Dist.] 

Aug. 10, 2023). Section 11.086 provides in relevant part:

(a) No person may divert or impound the natural flow of surface waters in this state, 

or permit a diversion or impounding by him to continue, in a manner that damages 

the property of another by the overflow of the water diverted or impounded.

(b) A person whose property is injured by an overflow of water caused by an 

unlawful diversion or impounding has remedies at law and in equity and may 

recover damages occasioned by the overflow.

City of Magnolia v. Smedley, No. 09-15-00334-CV, 2018 WL 2246533, at *8 (Tex. App. May 17, 

2018) (quoting TEX. WATER CODE ANN. § 11.086(a), (b) (West 2008)). Damages are allowed under 

§ 11.086 when “(1) a diversion or impoundment of surface water, (2) causes, (3) damage to the 

property of the plaintiff landowner.” Good River Farm, LP v. Martin Marietta Materials, Inc., No. 

1:17-CV-1117-RP, 2023 WL 2904577, at *3 (W.D. Tex. Apr. 11, 2023) (quoting Dietrich v. 

Goodman, 123 S.W.3d 413, 417 (Tex. App.—Houston 2003, no pet.)). 

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IV. Discussion

A. Enel Defendants have not waived their right to file a Rule 12(b)(6) motion to dismiss

Plaintiffs first assert Enel Defendants waived their right to file a Rule 12(b)(6) motion to 

dismiss by filing an answer in state court prior to removal of this action, in contravention of Rule 

12(b). Dkt. No. 17 at 2. Rule 12(b) does require a party to assert any of the enumerated Rule 12(b) 

defenses by motion “before pleading if a responsive pleading is required.” Matthews v. Tidewater 

Crewing, Ltd., 658 F. Supp. 3d 332, 344 (E.D. La. 2023) (quoting FED. R. CIV. P. 12(b)). However, 

Rule 81(c)(1) explains that the Federal Rules only “apply to a civil action after it is removed from 

a state court.”3 Dkt. No. 20 at 2 (quoting FED. R. CIV. P. 81(c)(1)); see also Matthews, 658 F. Supp. 

2d at 344. 

Here, like the Matthews defendants, Enel Defendants only answered in state court prior to 

removal. See Matthews, 658 F. Supp. 2d at 344. Additionally, the Court notes Enel Defendants 

raised the failure to state a claim defense in their state-court answer. See Dkt. No. 1-4 at 137 

(“Plaintiffs’ claims against the Enel Defendants are barred, in whole or in part, because Plaintiffs 

fail to state a claim against the Enel Defendants (individually and/or collectively) upon which relief 

can be granted.”); see also Matthews, 658 F. Supp. 2d at 344 (“Moreover, in their state court 

answer, Defendants raised the same defenses which they currently raise in the instant Motion: that 

the case should be dismissed on forum non conveniens grounds pursuant to the forum-selection 

clause in Plaintiff's employment contract, that Plaintiff is statutorily barred from pursuing his 

claims under 46 U.S.C. § 30105, and that Plaintiff is not a Jones Act seaman.”). Thus, there is no 

3 Enel Defendants further assert Plaintiffs overlook Rule 12(h), which allows a motion to dismiss for failure to state a 

claim upon which relief can be granted up to the time of trial. Dkt. No. 20 at 2 (citing FED. R. CIV. P. 12(h)(2)); see 

also Hunt v. BAC Home Loans Servicing, LP, No. CIV.A. C-11-261, 2012 WL 219330, at *11 (S.D. Tex. Jan. 24, 

2012).

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waiver, and Plaintiffs cannot claim any surprise or prejudice by Enel Defendants’ claims. See

Matthews, 658 F. Supp. 2d at 344.

Plaintiffs also argue the Court’s August 1, 2023 Order and Advisory “recognized” that Enel 

Defendants had waived their right to file a Rule 12(b) motion. Based on Plaintiffs’ reading of the 

Order and Advisory and Federal Rule of Civil Procedure 81(c)(2) (stating that repleading is 

unnecessary after removal unless the court orders it), Plaintiffs assert Defendants’ state court 

answer constitutes Enel Defendants’ answer after removal. Dkt. No. 17 at 3. This argument is a 

misapplication of the Court’s Order and Advisory, which advises the parties of the federal pleading 

requirements and orders repleading as necessary to comply with such rules. The order speaks only 

to deadlines for repleading state court pleadings as necessary to comply with the Federal Rules 

and does not address a defendant’s right to bring a post-removal Rule 12(b) motion.

B. Plaintiffs’ amended complaint should not be dismissed as an improper “shotgun” 

pleading

In their motion to dismiss, Enel Defendants first argue Plaintiffs’ amended complaint is a 

“shotgun” or group pleading warranting dismissal. Dkt. No. 14 at 7-8;see Cunningham v. Lifestyles 

Development, L.L.C., No. 4:19-CV-00006, 2019 WL 4282039, *5 n. 4 (E.D. Tex. Aug. 8, 2019)

(stating shotgun complaints are subject to dismissal under Rule 12(b)(6)). Coined by the Eleventh 

Circuit, a “shotgun pleading” fails “to give the defendants adequate notice of the claims against 

them and the grounds upon which [each] claim rests.” Alexander v. Dresser, L.L.C., No. 1:21-CV00161, 2022 WL 509366, at *5 (W.D. La. Feb. 18, 2022) (citations omitted). As opposed to the 

“short and plain statement” requirement contemplated by Rule 8, shotgun pleadings contain 

several counts within a complaint with each count “‘incorporating by reference the allegations of 

its predecessors, leading to a situation where most of the counts (i.e., all but the first) contain 

irrelevant factual allegations and legal conclusions.’” Copeland v. Axion Mortg. Grp. L.L.C., No. 

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1:16CV159-HSO-JCG, 2016 WL 4250431, at *4 (S.D. Miss. Aug. 11, 2016) (citations omitted).

Another characteristic of shotgun pleadings is that they fail to distinguish between the actions of 

named defendants. Id.; Marc Ellman, MD., P.A. v. MDOffice L.L.C., No. EP-21-CV-290-DB, 2022 

WL 980640, at *3 (W.D. Tex. Mar. 31, 2022).

The amended complaint names twelve defendants (Enel Defendants plus Scott Andrews). 

Each of the five claims allege “Defendants” have or will engage in nuisance or violation of the 

Texas Water Code.

4 Although Plaintiffs fail to distinguish between Enel Defendants within each 

claim, the amended complaint specifically alleges “Defendant Andrews intends to sell said acreage 

to Defendants ENEL or one of its subsidiaries” and that “Defendants Stockyard and Saddle House 

have announced their intent to install 620,000 solar panels, DC electric lines that run to a 220 MW 

BESS on the land surrounding Plaintiff Hicks’ pristine prairie acreage.” Dkt. No. 7, ¶¶ 20-21. 

Plaintiffs further allege one or more of the specifically named “Enel” entities is a holding company 

owning the stock in Defendant Stockyard Solar Project LLC, (“Stockyard”) and Defendant Saddle 

House. Id., ¶ 15. Saddle House’s Notice of Removal provides more detailed allegations regarding 

the interrelatedness of the various Enel Defendants. See Dkt. No. 1, ¶¶ 26-36.

Considering this, Plaintiffs’ pleading describes the facts underlying Plaintiffs’ claims in a 

manner sufficient to notify Enel Defendants of the claims against them – thereby allowing them to 

prepare responsive pleadings – and thus it does not constitute an improper “shotgun” pleading 

warranting dismissal. Alexander v. Dresser, L.L.C., No. 1:21-CV-00161, 2022 WL 509366, at *5 

4 Specifically, Plaintiffs assert that with respect to (1) intentional nuisance, “Defendants intend to cause and unless 

enjoined, will cause a temporary and permanent nuisance to Plaintiffs. . .;” (2) negligent nuisance, “Defendants have 

and will negligently cause, unless enjoined, both a temporary and permanent nuisance to Plaintiffs. . .;” (3) strict

liability nuisance, “Defendants will cause a temporary and permanent nuisance for which they will be strictly liable 

because they are engaging in abnormally dangerous activity. . .;” (4) anticipatory nuisance, “Defendants are causing 

and will cause an anticipatory temporary and permanent nuisance unless enjoined. . .;” and (5) Texas Water Code, 

“[e]ach and every intrusion of water caused by the acts of Defendants constitutes a violation of the Texas Water Code

which will cause injury to Plaintiffs’ property unless enjoined for which there is no adequate remedy at law. . .” Dkt. 

No. 7, ¶¶ 39-50.

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(W.D. La. Feb. 18, 2022) (further stating that any additional information regarding the specific 

nature of the plaintiffs’ claims is appropriately reserved for discovery); see also Martin v. Tesoro 

Corp., No. 2:11 CV 1413, 2012 WL 1866841, at *2 (W.D. La. May 21, 2012) ( Because the 

Amended Complaint describes the alleged misconduct in a sufficiently simple manner to notify 

the defendants of Mr. Martin’s claims against them, the Amended Complaint is not an improper 

‘shotgun pleading.’”). 

C. Plaintiffs’ nuisance claims

Enel Defendants next argue the Court should dismiss all of Plaintiffs’ claims as 

unsupported by non-barebones, non-hypothetical, non-conclusory, and non-speculative facts. Dkt. 

No. 14 at 9-13. According to Enel Defendants, the amended complaint “is nothing more than a 

generalized critique of renewable / solar energy projects,” and Plaintiffs’ nuisance and Texas Water 

Code claims lack specific allegations rising above speculation, hypotheticals, and mere 

conclusions. Id. at 2-3. 

As an initial matter, the amended complaint is more than just a generalized critique of 

renewable/solar energy projects as urged by Enel Defendants. Plaintiffs’ amended complaint 

contains a “FACTS” section spanning sixteen paragraphs, three of which contain allegations 

specific to certain defendants:

• “Defendant Andrews owns the acreage surrounding Plaintiff Hicks on two sides. 

Defendant Andrews is acting as an agent somewhat akin to a ‘Landman’ for 

Defendants Stockyard, Saddle House and ENEL.”

• “Defendant Andrews intends to sell said acreage to Defendants ENEL or one of its 

subsidiaries.”

• “Defendants Stockyard and Saddle House have announced their intent to install 

620,000 solar panels, DC electric lines that run to a 220 MW BESS on the land 

surrounding Plaintiff Hicks’ pristine prairie acreage.”

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Dkt. No. 7, ¶¶ 19-21. Paragraph 17 does contain a critique of the federal government’s solar energy 

policy and solar energy in general. Id., ¶ 17 (stating solar energy is “a wholly unregulated industry 

(at least in the State of Texas) that is only made economically viable by the tax breaks and 

subsidiary of the globalist agenda of the Biden Administration ‘Climate Change’ legislation” and 

further stating that a large solar farm containing hundreds of thousands of solar panels “will surely 

have an adverse effect on wild life and their natural habitat; a negative impact on agricultural 

economy through livestock and poultry operations, including, most specifically in East Texas, the 

dairy and beef cattle industry”). However, the amended complaint further alleges the potential 

negative impacts of the proposed construction and maintenance of the solar panels (although 

without specific reference to specific defendants or to the instant proposal): 

The panels, in such great numbers, concentrated in one spot, will shed toxic waste residue 

from the manufacturing process with initial rainfall and continue to do so via deterioration 

over the life of the panels. This toxic waste, mixed with rain groundwater, will run onto 

Plaintiff’s land which is less than 100 feet down stream of the proposed installations.

Denuding the ground beneath the panels will require toxic herbicides and increase erosion 

on Plaintiff’s land. Solar farms create islands of increased heat. The construction period 

will be prolonged and consists largely of the continual driving of piles which creates noise.

Upon completion, the panels and inverters will create a continuous humming sound which 

will have the same deleterious effect. All of this noise pollution is detrimental to 

surrounding wild life, especially birds.

Plaintiff’s family land, which will be surrounded on three sides by the proposed solar farm, 

is unique in that it consists of approximately 1,000 acres of untouched, unplowed, and 

unspoiled Texas prairie land. It has enjoyed protected status for over 25 years and Plaintiff 

Hicks gifted a conservation easement on the land restricting development.

In addition, the “view pollution” will destroy the natural views across the horizon. All of 

the above will adversely impact the value of the land, both as a natural preservation of 

vintage Texas and as an asset.

Id., ¶¶ 22-26 (internal numbering and footnote omitted).

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Paragraphs 28–29 and 31–32 further allege potential negative impacts of solar projects and 

the proposed BESS (battery energy storage system). See id., ¶ 29 (“The well-known danger of the 

lithium batteries comprising a BESS are fire, emission of toxic chemicals and gasses, and even 

explosion. A BESS is so hazardous that it should be surrounded by an Evacuation Zone in the event 

of a mishap. . . .”); ¶ 31 (“If (or, probably when) there is an incident at the BESS causing emission 

of toxic gasses, fire, or explosion, the Borens and everyone within the evacuation zone, will be 

required to leave their property until the danger has been eliminated. (Images of East Palestine, 

Ohio are brought to mind.) The BESS threatens not only the property value of the Boren’s but their 

health and that of everyone in the Evacuation Zone.”); ¶ 32 (“There is more than a possibility of a 

leak of hydrogen chloride and hydrogen fluoride (deadly gases) that, being heavier than air, flow 

across the ground creating a deadly fog to every living entity. This would be catastrophic and fatal 

to the Borens and anyone else in the Evacuation Zone and even beyond if it is undiscovered for 

any period of time.”). 

The above allegations, which are accepted as true on a motion to dismiss, are not so 

barebone or conclusory that the complaint should be dismissed. However, Enel Defendants’

arguments that the complaint is too speculative or hypothetical to state a cause of action has merit 

as to Plaintiffs’ claims that must be based on injury already suffered.

Specifically, Enel Defendants argue each of Plaintiffs’ four separate nuisance claims (and 

the Texas Water Code claim) should be dismissed because Plaintiffs’ allegations are 

“impermissibly hypothetical,” resting on an “entirely speculative” set of assumptions. Dkt. No. 14

at 12-13. Enel Defendants further state the “essence of Plaintiffs’ Amended Complaint is that the 

Plaintiffs might be damaged in the future by the Defendants’ planned solar energy activities, on the 

sole basis of complaints Plaintiffs plead regarding other (not specifically defined or identified) 

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solar energy projects.” Id. at 3 (emphasis original). Enel Defendants assert nothing ties the 

allegations in the amended complaint to any inference that these batteries once installed in the 

future will cause any harm. Id. at 11 (emphasis original); see also id. at 12 (“Panels have not ‘shed 

toxic waste residue.’ BESS have not ‘leak[ed] hydrogen chloride and hydrogen fluoride.’ 

Defendants have not ‘divert[ed] or impound[ed] the natural flow of surface waters’ in violation of 

the Texas Water Code.”).

In their response, Plaintiffs do not specifically address the private nuisance claims of 

intentional nuisance, negligent nuisance, or strict liability nuisance. Dkt. No. 17 at 3 (Plaintiffs’

affirmatively stating that their claims are only based on “the Texas remedy of injunction for 

anticipatory nuisance and violation of the Texas Water Code. . . .”). Presumably, this is because 

private nuisance claims typically arise after the injury has occurred. See Olivarez v. Pena, No. 13-

22-00547-CV, 2023 WL 5611428, at *2 (Tex. App. – Corpus Christi-Edinburg Aug. 30, 2023) 

(“Generally, a claim accrues when the defendant’s wrongful conduct causes the claimant to suffer 

a legal injury, which gives the claimant the right to seek a judicial remedy.”). Indeed, the elements 

of a private nuisance claim are written in the past tense: that defendants “interfered with or 

invaded the plaintiff’s interest by conduct that was negligent, intentional, or abnormal and out of 

place in its surroundings;” the defendants’ conduct “resulted in a condition that substantially 

interfered with the plaintiff’s use and enjoyment of his land;” and “the nuisance caused injury to 

the plaintiff.” Olivarez v. Pena, No. 13-22-00547-CV, 2023 WL 5611428, at *2 (Tex. App. –

Corpus Christi-Edinburg Aug. 30, 2023) (emphasis added).

5 Instead, Plaintiffs focus on future 

5 “As nuisance claims arise only upon a substantial interference with property use, they normally do not accrue when 

a potential source is under construction; instead, a landowner ‘has the right to wait and see what the result will be 

when the improvements are subjected to an actual test.’” Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 279 

(Tex. 2004), holding modified by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 S.W.3d 474 (Tex. 

2014) (citations omitted) (emphasis in original).

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harm related to their “anticipatory nuisance” cause of action, in conjunction with possible future 

violations of the Texas Water Code. Dkt. No. 17 at 3 (Plaintiffs’ stating they are “employing the 

Texas remedy of injunction for anticipatory nuisance and violation of the Texas Water Code on the 

grounds that Defendants are all participants in the construction of a solar farm and BESS (a lithium 

battery installation) which will destroy Plaintiffs’ land and cause environmental, safety and health 

problems” and further stating “Defendants intend to build a dangerous, ugly and toxic solar farm 

(620,000 toxic solar panels) and BESS on Defendant Andrews property” and it “will adversely 

effect [sic] Plaintiffs in the extreme”) (emphasis added); see also Dkt. No. 12 at 8 (stating the solar 

farm and BESS “will change the flow of water and as such “make it toxic to Plaintiffs’ property”)

(emphasis added).

Plaintiffs’ amended complaint, like their briefing, focuses on future harm that might come 

from the operation of the solar farm and BESS. See, e.g. Dkt. No. 7, ¶ 40 (with respect to intentional 

nuisance, “Defendants intend to cause and unless enjoined, will cause a temporary and permanent 

nuisance to Plaintiffs. . . .”); ¶ 44 (with respect to strict liability nuisance, “Defendants will cause 

a temporary and permanent nuisance for which they will be strictly liable because they are 

engaging in abnormally dangerous activity. . . .”); ¶ 50 (with respect to Texas Water Code, “[e]ach 

and every intrusion of water caused by the acts of Defendants constitutes a violation of the Texas 

Water Code which will cause injury to Plaintiffs’ property unless enjoined for which there is no 

adequate remedy at law. . . .”). For this reason, which was not disputed by Plaintiffs in their 

briefing, the amended complaint fails to state a claim for intentional nuisance, negligent nuisance, 

and strict liability nuisance.

Plaintiffs’ negligent nuisance claim also fails because Plaintiffs fail to allege the essential 

elements to plausibly state such a claim. A plaintiff’s negligent nuisance claim is governed by 

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ordinary negligence principles, and a plaintiff must prove “the existence of a legal duty, a breach 

of that duty, and damages proximately caused by the breach.” Reed v. LKQ Corp., 436 F. Supp. 3d 

892, 912-13 (N.D. Tex. 2020) (citing Crosstex, 505 S.W.3d at 607 (internal quotation marks 

omitted in Reed)). “Whether a duty exists is a threshold inquiry and a question of law; liability 

cannot be imposed if no duty exists.” Id. at 913 (quoting Kroger Co. v. Elwood, 197 S.W.3d 793, 

794 (Tex. 2006)). However, the Amended Complaint fails to allege the existence of any duty owed, 

which of Defendants owed that duty, and to whom the duty was owed. Plaintiffs also fail to allege 

a breach of that duty by Enel Defendants and damage proximately caused by the breach.

Concerning their request for injunctive relief through their so-called “anticipatory 

nuisance” theory, Plaintiffs rely on cases that have classified proposed sewage treatment disposal 

plants as a type of “legalized” nuisance which might be enjoined. Dkt. No. 12 at 7-9 (citing City 

of Marlin v. Holloway, 192 S.W. 623 (Tex. Civ. App.—Austin 1917); also citing Cardwell v. 

Austin, 168 S.W. 385 (Tex. Civ. App. – Galveston 1914));

6 see also City of Wylie v. Stone, 16 

S.W.2d 862, 863 (Tex. Civ. App.—Dallas 1929), writ granted (Oct. 30, 1929), aff’d, 34 S.W.2d 

842 (Tex. Comm’n App. 1931) (stating “the nuisance here complained of does not belong to the 

category of those legalized, but, in a proper case, may be enjoined”).

6 The appellate court in Cardwell reformed and affirmed the judgment of the district court enjoining the city of Bay 

City (and the owner of a franchise to construct, maintain, and operate a sanitary sewer system in the city) from 

constructing and operating a proposed septic tank. Cardwell v. Austin, 168 S.W. 385, 387-88 (Tex. Civ. App. –

Galveston 1914). Although the district court was correct in enjoining the construction and operation of the tank in 

question, the appellate court held the district court “was not warranted in perpetually enjoining the defendants from 

constructing and operating a septic tank of proper dimensions and construction, upon the 1.6 acres of land.” Id. at 387. 

The appellate court indicated a city may construct a septic tank if the sewage could be purified and discharged 

practically free from odor and could discharge effluent if it does not contaminate the creek so as to render the waters 

“unfit for drinking water for stock,” stating the “mere fact that the proximity of the tank to plaintiff’s residence would 

produce a degree of mental annoyance, or would tend to lessen the value of his property, ought not to prevent the 

establishment and operation of the tank on the 1.6-acre tract.” Id. at 387-88. According to the appellate court, “[i]f the 

market value is lessened thereby, and there is no annoyance other than mental disturbance due to the fact that the tank 

is in the vicinity, then plaintiff could be compensated in money for his damages thus sustained.” Id. at 388. 

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In Marlin, the appellate court affirmed the judgment of the district court granting a 

temporary injunction against the city of Marlin, whereby it restrained the city from erecting a 

sewage plant, “which [was] alleged would create a nuisance and inflict irreparable injury upon the 

plaintiffs.” Marlin, 192 S.W. at 624 (noting it was well settled that injunction was a proper remedy 

to prevent the creation of a nuisance by a municipal corporation). The court granted an injunction 

against the construction of the sewage plant after finding that the particular plant proposed would 

necessarily result in a nuisance to particular individuals. Id. (stating the section of the city of Marlin 

was “strictly a residence section;” that the sewage disposal plant “would emit foul and obnoxious 

odors, and attract and facilitate the breeding of flies;” that the odors emanating from said plant 

would reach the homes of plaintiffs and that said odors and flies would be disagreeable and 

annoying and render the continued occupancy of their homesteads intolerable). “In a sparse 

opinion, the Texas Court of Civil Appeals found that the plant would emit foul and obnoxious 

odors that would especially annoy the plaintiffs.” Andrew H. Sharp, An Ounce of Prevention: 

Rehabilitating the Anticipatory Nuisance Doctrine, 15 B.C. Envtl. Aff. L. Rev. 627, 641 (1988).

Thus, although not a nuisance per se, the court in Marlin permitted injunctive relief upon 

a showing that the particular plant proposed would necessarily result in a nuisance to a particular 

individual. 57 Am. Jur. 2d Municipal, etc., Tort Liability § 330, Remedies in actions alleging 

liability of governmental entity for nuisance in operation of sewage disposal plants – Injunctive 

relief for an anticipatory nuisance. Although Plaintiffs do not specifically argue the proposed solar 

farm should be classified similarly to the proposed sewage plant in Marlin, there is a possibility 

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that Plaintiffs could amend in such a way to fit within the equivalent of the “legalized” category 

of cases which can be anticipatorily enjoined.7 See Wylie, 16 S.W.2d at 863.

Relatedly, there are other circumstances in which a court may exercise its equitable power 

to enjoin a prospective nuisance.8 1717 Bissonnet, L.L.C. v. Loughhead, 500 S.W.3d 488, 497 (Tex. 

App. – Houston [14th Dist.] 2016) (citing Freedman v. Briarcroft Prop. Owners, Inc., 776 S.W.2d 

212, 216 (Tex.App.–Houston [14th Dist.] 1989, writ denied)). According to the Freedman court, a

court of equity is empowered to interfere by injunction to prevent a threatened injury where an act 

or structure will be a nuisance per se, or will be a nuisance for which there is no adequate remedy 

at law, or where a nuisance is imminent. Freedman, 776 S.W.2d at 216 (citing O’Daniel v. Libal, 

196 S.W.2d 211, 213 (Tex.Civ.App.—Waco 1946, no writ)). When an attempt is made to enjoin 

an anticipated nuisance, the threatened injury must not be merely probable but reasonably certain 

before a court will exercise its equitable power to restrain it. Id. (citing O’Daniel, 196 S.W.2d at 

213). In Freedman, the court held that although a parking lot was not a nuisance per se, “the 

parking lot did not have to be in existence to bring this claim.” Freedman, 776 S.W.2d at 216 

(noting the appellants’ intent to create the parking lot was imminent). 

Here, Plaintiffs do not argue the development of a solar farm/BESS is nuisance per se. The 

Court notes that neither the lawful use of property nor the lawful conduct of a business is a nuisance 

7 Not only do Plaintiffs allege the particular proposed solar farm would necessarily result in a nuisance to Plaintiffs, 

but Plaintiffs also suggest the development of the proposed solar farm and BESS would necessarily result in a nuisance 

more broadly to individuals in the “Evacuation Zone and beyond.” See Dkt. No. 7, ¶¶ 31-32. Federal courts at least 

have indicated that potential health-related environmental harm is an appropriate occasion for a prospective nuisance 

action. See Andrew H. Sharp, An Ounce of Prevention: Rehabilitating the Anticipatory Nuisance Doctrine, 15 B.C. 

Envtl. Aff. L. Rev. 627, 636 (1988).

8 However, there is no cause of action for damages caused by a prospective nuisance, which is a question of law. 1717 

Bissonnet, L.L.C. v. Loughhead, 500 S.W.3d 488, 496-97 (Tex. App. – Houston [14th Dist.] 2016) (citing Cook v. Neely, 

No. 04–14–00518, 2015 WL 4554286, at *2 (Tex.App.–San Antonio July 29, 2015, pet. denied) (mem. op.)).

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per se.9 Maranatha Temple, 893 S.W.2d at 100 (citing Storey v. Central Hide & Rendering Co., 

226 S.W.2d 615, 617 (Tex.1950); O’Connor v. Ryan, 159 S.W.2d 531, 533 (Tex.Civ.App.—San 

Antonio 1942, writ ref’d); also citing Inwood Forest Community Improvement Ass’n v. R.J.S. Dev. 

Co., 630 S.W.2d 751, 754 (Tex.App.—Houston [1st Dist.] 1982, no writ)). In Maranatha, the court 

declined to allow a nuisance in fact cause of action based on fear, apprehension, or other emotional 

reaction that resulted from the nearby lawful operation of petrochemical or hydrocarbon facilities 

or pipelines. Id. (“If we were to allow a cause of action to persons who have not been harmed, in 

their land or body, by the lawful operation of an industry, but who are afraid that one day they will 

be, we would be opening our courts to a potential torrent of litigation.”); see also Inwood, 630 

S.W.2d at 753 (holding that construction of an apartment complex and sewage plant could not be 

enjoined before they were built because they were not nuisances per se).

Nor do Plaintiffs allege the anticipated threatened injury is imminent. See Bruington v. 

Chesmar Homes, L.L.C., No. 08-23-00015-CV, 2023 WL 6972987, at *11 (Tex. App. – El Paso 

Oct. 20, 2023) (stating that “probable, imminent, and irreparable injury requires proof of an actual 

threatened injury, as opposed to a speculative or purely conjectural one”). Therefore, as currently 

pleaded, the allegations in the amended complaint are insufficient to state a plausible claim for 

injunctive relief to prevent a threatened injury.

D. Plaintiffs’ Texas Water Code claim

Although both parties’ briefing gloss over the elements of the Texas Water Code claim, 

Plaintiffs state in their response to Enel Defendants’ motion that they are seeking injunctive relief 

9 Courts have disallowed nuisance per se claims against lawfully-run industries regarding operation of oil pipelines 

and refineries. Maranatha Temple, 893 S.W.2d at 100 (citing, among other cases, Humble Pipe Line Co. v. Anderson, 

339 S.W.2d 259 (Tex.Civ.App.—Waco 1960, writ ref’d n.r.e.) (operation of oil pipeline); Warren v. Premier Oil Ref. 

Co., 173 S.W.2d 287 (Tex.Civ.App.—Eastland 1943, writ ref’d w.o.m.) (operation of oil pipeline); Hall v. Amoco Oil 

Co., 617 F. Supp. 111 (S.D.Tex.1984) (operation of oil refineries)).

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for violation of the Texas Water Code, presumably a future violation following the construction of

the solar farm and BESS. In their reply, Enel Defendants do not specifically address whether that 

would be permissible under Texas law. Because Plaintiffs treated this claim as rising and falling 

with the anticipatory nuisance claim, so will the Court for purposes of this Report and 

Recommendation.

E. Plaintiffs should be allowed leave to amend

Enel Defendants argue the Court should not grant Plaintiffs leave to amend again because 

Plaintiffs have already had the opportunity to replead following the Court’s Order and Advisory. 

Enel Defendants also misapply the Court’s Order and Advisory.

As is the Court’s standard practice following removal, the Order and Advisory merely 

advised the parties that repleading was not necessary under Federal Rule 81(c)(2) and ordered the 

parties to “replead as necessary to comply with the Federal Rules of Civil Procedure and the 

Court’s Local Rules.” Dkt. No. 5. Thus, the Court finds no reason to deny Plaintiffs the opportunity 

to replead to plausibly state their claims. See Jack v. Evonik Corp., 79 F.4th 547, 565 (5th Cir. 

2023) (“Normally, a plaintiff should be afforded at least one chance to remedy all identified flaws 

in his pleadings.”); see also Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 

305, 329 (5th Cir. 2002) (“District courts often afford plaintiffs at least one opportunity to cure 

pleading deficiencies before dismissing a case, unless it is clear that the defects are incurable or 

the plaintiffs advise the court that they are unwilling or unable to amend in a manner that will 

avoid dismissal.”). Accordingly, the undersigned recommends the Court direct Plaintiffs to amend 

their amended complaint to address the deficiencies identified above, if possible. Enel Defendants 

may refile a motion to dismiss in response to Plaintiffs’ second amended complaint.

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IV. Recommendation

For the above reasons, it is

RECOMMENDED that Enel Defendants’ Motion to Dismiss for Failure to State a Claim 

(Dkt. No. 14) be DENIED WITHOUT PREJUDICE TO REFILING. It is further

RECOMMENDED that the Court (1) order Plaintiffs to file, within twenty days from the 

date of any Order Adopting this Report and Recommendation, a second amended complaint with 

sufficient allegations to state plausible Texas Water Code and/or nuisance claim(s) to satisfy 

Federal Rule of Civil Procedure 12(b)(6), if possible; and (2) advise Plaintiffs that failure to 

comply will result in Plaintiffs’ lawsuit being dismissed.

Objections

Within fourteen (14) days after service of the magistrate judge’s report, any party must 

serve and file specific written objections to the findings and recommendations of the magistrate 

judge. 28 U.S.C. § 636(b)(1)(C). Any response to the objections shall be filed within seven days 

from the date of receipt of the objections.

In order to be specific, an objection must identify the specific finding or recommendation 

to which objection is made, state the basis for the objection, and specify the place in the magistrate 

judge’s report and recommendation where the disputed determination is found. An objection that 

merely incorporates by reference or refers to the briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjectedto factual findings and legal conclusions of the magistrate judge that are accepted by the district 

court, except upon grounds of plain error, provided that the party has been served with notice that 

such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 

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79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. 

§ 636(b)(1) (extending the time to file objections from ten to fourteen days).

____________________________________

J. Boone Baxter

UNITED STATES MAGISTRATE JUDGE

SIGNED this the 28th day of February, 2024.

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