United States Court of Appeals

for the Fifth Circuit

No. 20-30644

Terri Lewis Stevens; Craig Rivera; Jennifer Rivera, 

Plaintiffs—Appellants,

versus

St. Tammany Parish Government, 

Defendant—Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:20-CV-928

Before King, Higginson, and Wilson, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

This is the second suit in a multi-year litigation between three 

property owners and the St. Tammany Parish Government (“St. 

Tammany”). The dispute involves sewage and stormwater that allegedly 

flows through plaintiffs-appellants’ (“plaintiffs”) properties and into various 

creeks, rivers, and waterways in Louisiana. The first suit was filed in 

Louisiana state court in 2015. The state trial court entered judgment against 

plaintiffs in that suit in August 2018. Two years later, plaintiffs filed this suit 

in federal court, asserting largely the same state law claims plus claims under 

the federal Clean Water Act (“CWA”). 

United States Court of Appeals

Fifth Circuit

FILED

November 3, 2021

Lyle W. Cayce

Clerk

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The federal district court dismissed the state law claims as precluded 

by res judicata, dismissed the CWA claims under Federal Rule of Civil 

Procedure 12(b)(6) for failure to state a claim, and denied plaintiffs’ motions 

for injunctive relief. It further denied plaintiffs’ subsequent Rule 59(e) 

motion for reconsideration, which included a request for leave to file a third 

amended complaint. We AFFIRM. 

I. 

Plaintiffs Terri Lewis Stevens, Craig Rivera, and Jennifer Rivera live 

on adjoining properties located on Dove Park Road, in Covington, Louisiana. 

They complain of various “acts of man” related to the development of Dove 

Park Road, which began in 1993, and continued with additional development 

of the nearby Dove Park Subdivision in 2000, 2003, 2011, and 2015. The 

most recent complained-of project is the 2015 Dove Park road widening, 

“which widened a portion of the Dove Park Road and required the culverting 

of roadside ditches.” 

Plaintiffs allege that “sanitary sewer overflows . . . and other 

pollutants are conveyed by [St. Tammany Parish Government’s] drainage 

ditches to a catch basin” that flows to the Stevens property, then to the 

Rivera property, and then into various “waters of the United States.” They 

further allege that these discharges increase the storm and sewage burden on 

plaintiffs’ properties and pose health risks to plaintiffs and others. 

Plaintiffs filed their first suit in Louisiana state court on February 18, 

2015, in the 22nd Judicial District Court for St. Tammany Parish, Louisiana. 

As the district court explained, they “sought relief on five different claims: 

(1) violation of [their] natural servitude; (2) deprivation of rights guaranteed 

by the U.S. Constitution and the Louisiana Constitution; (3) intentional 

damage to property and mental anguish; (4) possessory action; and (5) unfair 

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trade practices under La. R.S. 51:1405.” Plaintiffs sought both damages and 

injunctive relief. 

After several years of litigation, the state trial court denied all relief 

and, on August 17, 2018, entered final judgment in favor of St. Tammany and 

against plaintiffs. Plaintiffs appealed that state court judgment. On April 8, 

2021, the Louisiana First Circuit Court of Appeal affirmed. Stevens v. St. 

Tammany Par. Gov’t, 322 So. 3d 1268, 1275 (La. Ct. App. 2021). Plaintiffs 

then filed an application for a writ of certiorari in the Louisiana Supreme 

Court, which remains pending.

Before the Louisiana First Circuit Court of Appeal had issued its 

decision, plaintiffs commenced this suit (the “second suit”) in federal court. 

They again sued St. Tammany, as well as the Louisiana Department of 

Environmental Quality (“LDEQ”), for claims arising from the same “acts of 

man” asserted in the state court suit and for the same sewage and storm 

burden on their properties. Specifically, in federal court, plaintiffs asserted 

claims against St. Tammany for past and ongoing violations of the CWA, 

33 U.S.C. § 1251 et seq.;1 violations of the Louisiana Pollution Discharge 

Elimination System (“LPDES”) Permit No. LAR04000; and failure to 

enforce the permit, the CWA, and applicable state laws. 

In these federal proceedings, plaintiffs filed their initial complaint on 

March 17, 2020 and then a first amended complaint on April 27, 2020. They 

also moved for preliminary and permanent injunctions against both St. 

1 The CWA claims were not expressly asserted in the various state court petitions. 

See Stevens, 322 So. 3d at 1287 n.7 (noting that while plaintiffs, on appeal in state court, 

“alleged violations by [St. Tammany] of the Clean Water Act[,] . . . these claims are not 

contained within plaintiffs’ third amended petition and argument on these issues were not 

raised in the trial court. . . . Accordingly, we find these issues are not properly before the 

court on appeal.”).

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Tammany and LDEQ. St. Tammany and LDEQ separately moved to dismiss 

the first amended complaint. St. Tammany argued that the complaint both 

was barred by res judicata and failed to state a claim under Federal Rule of 

Civil Procedure 12(b)(6), while LDEQ maintained that it was entitled to 

sovereign immunity under the Eleventh Amendment and, alternatively, that 

the complaint failed to state a claim. Plaintiffs did not oppose the motions, 

but instead moved for leave to file a second amended complaint (which both 

St. Tammany and LDEQ opposed) and otherwise asserted that the motions 

to dismiss were moot. They subsequently voluntarily dismissed without 

prejudice defendant LDEQ pursuant to Federal Rule of Civil Procedure Rule 

41(A)(1)(a)(i). 

On July 23, 2020, with LDEQ no longer a party to the case, the district 

court granted St. Tammany’s motion to dismiss, concluding that that the 

non-CWA claims were precluded under res judicata by the state court 

litigation and that the CWA allegations in the first and second amended 

complaints failed to state a plausible claim. In a separate order, the district 

court denied the motion for injunctive relief. That same day, the court 

entered final judgment against plaintiffs.2 The court subsequently denied 

plaintiffs’ Rule 59(e) motion for reconsideration, which included a request 

for leave to file a third amended complaint. This timely appeal followed. 

II. 

The district court had subject matter jurisdiction over plaintiffs’ 

federal claims and supplemental jurisdiction over their state law claims. See 

2 Throughout this time, the district court also denied as premature various other 

motions related to plaintiffs’ requests for discovery, partial summary judgment, and to 

disqualify St. Tammany’s counsel. 

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28 U.S.C. §§ 1331, 1367(a). We have jurisdiction to review final judgments 

of a district court pursuant to 28 U.S.C. § 1291.3

III. 

On appeal, plaintiffs challenge (1) the dismissal of their non-CWA 

claims as barred by res judicata; (2) the dismissal of their CWA allegations 

for failure to state a claim under Rule 12(b)(6); (3) the denial of leave to file a 

third amended complaint following dismissal of their claims; and (4) the 

denial of injunctive relief. We address each issue in turn. 

A. 

“A district court’s grant of a motion to dismiss is reviewed de novo.” 

Budhathoki v. Nielsen, 898 F.3d 504, 507 (5th Cir. 2018). Likewise, “[t]he res 

judicata effect of a prior judgment is a question of law that this court reviews 

3 During the pendency of this appeal, appellants filed various motions challenging 

our appellate jurisdiction, which this court denied. To the extent we have a further 

obligation to ensure that we have jurisdiction, see Hill v. City of Seven Points, 230 F.3d 167, 

169 (5th Cir. 2000), we are satisfied that we do. Following plaintiffs’ voluntary dismissal 

of LDEQ as a defendant in this case, the district court granted St. Tammany’s motion to 

dismiss and entered a final judgment pursuant to Federal Rule of Civil Procedure 58(a), 

which ordered “that there be judgment in favor of defendant, St. Tammany Parish 

Government, and against plaintiffs, . . . dismissing said plaintiffs’ complaint, with 

prejudice.” No further separate judgmentwas required following the district court’s denial 

of plaintiffs’ Rule 59(e) motion. Fed. R. Civ. P. 58(a)(4). 

While a plaintiff’s voluntary dismissal of one defendant without prejudice may 

preclude our appellate jurisdiction in a multiple-defendant suit, Williams v. Taylor 

Seidenbach, Inc., 958 F.3d 341, 343 (5th Cir. 2020) (en banc), it does not defeat jurisdiction 

where, as here, the voluntary dismissal occurs “before the adverse . . . order.” United 

States v. Eli Lilly & Co., Inc., 4 F.4th 255, 261 (5th Cir. 2021) (concluding “that the prior 

without-prejudice dismissals did not deprive the district court’s subsequent decision of 

finality”). In this case, as in Eli Lilly, “the district court’s order on the motion to dismiss 

was final because it adjudicated all the claims against all the remaining parties in the action 

at the time it was entered. The prior voluntary dismissal does not alter that conclusion.” 

Id. (cleaned up). 

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de novo.” Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 

2005). 

On appeal, plaintiffs challenge whether it was error for the district 

court to consider res judicata arguments asserted in a motion to dismiss. 

Plaintiffs also argue that the state court judgment is not “final,” that the 

causes of action asserted in the second suit did not “exist[] at the time” of 

the state court judgment, and that those causes of action did not arise out of 

the same transaction or occurrence as the state court litigation. 

1. 

“The rule of res judicata encompasses two separate but linked 

preclusive doctrines: (1) true res judicata or claim preclusion and (2) 

collateral estoppel or issue preclusion.” Test Masters, 428 F.3d at 571. This 

appeal involves only the former. “Claim preclusion, or res judicata, bars the 

litigation of claims that either have been litigated or should have been raised 

in an earlier suit.” Id.

Louisiana law applies to determine whether the Louisiana state court 

judgment in plaintiffs’ suit has preclusive effect in federal court. See 

Lafreniere Park Found. v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000) (“To 

determine the preclusive effect of a prior Louisiana court judgment, if any, 

this court must apply Louisiana law.”); Weaver v. Texas Cap. Bank N.A., 660 

F.3d 900, 906 (5th Cir. 2011) (per curiam) (“In determining the preclusive 

effect of an earlier state court judgment, federal courts apply the preclusion 

law of the state that rendered the judgment.”).

Louisiana’s res judicata statute states that “a valid and final judgment 

is conclusive between the same parties, except on appeal or other direct 

review” if “the judgment is in favor of the defendant, all causes of action 

existing at the time of final judgment arising out of the transaction or 

occurrence that is the subject matter of the litigation are extinguished and the 

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judgment bars a subsequent action on those causes of action.” La. Rev. 

Stat. § 13:4231(2). As the Louisiana Supreme Court has explained: 

A reading of La. R.S. 13:4231 reveals that a second action is 

precluded when all of the following are satisfied: (1) the 

judgment is valid; (2) the judgment is final; (3) the parties are 

the same; (4) the cause or causes of action asserted in the 

second suit existed at the time of final judgment in the first 

litigation; and (5) the cause or causes of action asserted in the 

second suit arose out of the transaction or occurrence that was 

the subject matter of the first litigation.

Burguieres v. Pollingue, 843 So. 2d 1049, 1053 (La. 2003). 

2. 

First, plaintiffs argue that the district court erred in considering res 

judicata in St. Tammany’s motion to dismiss. The district court explained 

that it considered St. Tammany’s res judicata defense in its motion to dismiss 

because the “res judicata defense is apparent from the face of [p]laintiffs’ 

complaints and the documents attached to them,” which specifically 

“reference the State Court Litigation in their original and amended 

complaints.” 

Res judicata is an affirmative defense principally raised in a party’s 

responsive pleading. See Fed. R. Civ. P. 8(c)(1) (“In responding to a 

pleading, a party must affirmatively state any avoidance or affirmative 

defense, including . . . res judicata.”); Test Masters, 428 F.3d at 570 n.2 

(“[G]enerally a res judicata contention cannot be brought in a motion to 

dismiss; it must be pleaded as an affirmative defense.”). However, this court 

has also held that “[d]ismissal under Rule 12(b)(6) on res judicata grounds is 

appropriate when the elements of res judicata are apparent on the face of the 

pleadings.” Murry v. Gen. Servs. Admin., 553 F. App’x 362, 364 (5th Cir. 

2014) (per curiam) (unpublished) (citing Kansa Reinsurance Co. v. Cong. 

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Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994)); see also Kansa, 20 

F.3d at 1366 (“[W]hen a successful affirmative defense appears on the face 

of the pleadings, dismissal under Rule 12(b)(6) may be appropriate.”); 18 

Charles Alan Wright & Arthur R. Miller, Fed. Prac. & 

Proc. Juris. § 4405 (3d ed.) (“In various circumstances, preclusion 

defenses have been entertained on motions to dismiss. This procedure is 

most appropriate if the defense appears on the face of the complaint.”).

As the district court concluded, the res judicata defense is abundantly 

clear on the face of the pleadings, which incorporate and repeatedly refer to 

the state court litigation. Therefore, it was properly considered here at the 

motion to dismiss stage.

3. 

Next, plaintiffs argue that the state court judgment is not “final”

because that decision is still pending review on appeal. The district court 

concluded that “the judgment rendered in favor of [St. Tammany] by the 

trial court was final, as evidenced by the Final Judgment entered on August 

17, 2018.” 

Generally, “a judgment is entitled to preclusive effect even though an 

appeal is pending.” 18 Charles Alan Wright & Arthur R. 

Miller, Fed. Prac. & Proc. Juris. § 4404 (3d ed.). In Louisiana, 

“[a] judgment that determines the merits in whole or in part is a final 

judgment.” La. Code Civ. Proc. art. 1841. The comments to the 1990 

revisions to Louisiana’s res judicata statute, which substantially amended the 

law, further describe when a judgment is final: “The use of the phrase ‘final 

judgment’ also means that the preclusive effect of a judgment attaches once 

a final judgment has been signed by the trial court and would bar any action 

filed thereafter unless the judgment is reversed on appeal.” La. Rev. 

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Stat. § 13:4231, cmt. d. Consistently, the Louisiana Supreme Court held 

in 1995 that

When a court renders a judgment that decides the merits of the 

case in whole or in part, the judgment is a final judgment. 

La.Code Civ.Proc. art. 1841. A final judgment may be rendered 

by either a trial court or an appellate court, and a judgment by 

an appellate court that decides the merits of the case is a final 

judgment . . . . A final judgment is conclusive between the 

parties except on direct review. La.Rev.Stat. 13:4231.

Tolis v. Bd. of Supervisors of La. State Univ., 660 So. 2d 1206, 1206 (La. 1995).4 

Likewise, in 1996, we noted that Louisiana law applies res judicata to state 

court judgments in which an appeal was pending. See Zatarain v. WDSUTelevision, Inc., 79 F.3d 1143, 1996 WL 97105 at *3 (5th Cir. 1996) (per 

curiam) (unpublished).

Finally, the leading treatise on Louisiana civil procedure has reached 

the same conclusion, explaining that when a “trial court renders a judgment 

that determines the merits of the case, the exception of res judicata . . . would 

be appropriate in a subsequent suit between the same parties on a cause of 

action arising out of the same transaction or occurrence, even while the 

4 Plaintiffs point to two cases, Dupre v. Floyd, 825 So. 2d 1238, 1240 (La. Ct. App. 

2002), and Florida Gas Transmission Co., LLC v. Texas Brine Co., LLC, No. 2018-CA-1391, 

2021 WL 1731775 at *8-9 (La. Ct. App. May 3, 2021), in which the Louisiana First Circuit 

Court of Appeal declined to apply res judicata because the earlier judgment was still 

pending on appeal. Meanwhile, St. Tammany raises a third case from the same Louisiana 

court of appeal that held just the opposite. See Marchand v. Texas Brine Co., LLC, 293 So. 

3d 1132, 1135 (La. Ct. App. 2019). Notwithstanding Dupre and Florida Gas Transmission 

Co., the weight of the authority—including the text and commentary of Louisiana’s res 

judicata statute and the Louisiana Supreme Court’s decision in Tolis—better supports the 

understanding that, under Louisiana law, a judgment may be final for the purpose of res 

judicata even while an appeal is pending. 

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judgment is on appeal.” 1 Frank L. Maraist,La. Civ. L. Treatise, 

Civ. Proc. § 6:5 n.16 (2d ed.).

Thus, as the district court held, the August 2018 state court judgment 

is final for res judicata purposes.

4. 

As to the last two elements of res judicata—whether “(4) the cause or 

causes of action asserted in the second suit existed at the time of final 

judgment in the first litigation,” and whether “(5) the cause or causes of 

action asserted in the second suit arose out of the transaction or occurrence 

that was the subject matter of the first litigation,” Burguieres, 843 So. 2d at 

1053—the district court concluded that plaintiffs had “not raised causes of 

action that occurred after [the] state court’s August 17, 2018 Final 

Judgment” and had “simply realleged their State Court Petition claims in the 

complaints” before the district court.

On appeal, both parties agree that res judicata would only apply to St. 

Tammany’s alleged violative conduct prior to the entry of the state court 

judgment on August 17, 2018. See Chauvin v. Exxon Mobil Corp., 158 So. 3d 

761, 770 (La. 2014) (finding this element satisfied, and applying res judicata 

to a subsequent claim for punitive damages, where the tortfeasor’s asserted 

wrongful conduct had occurred before the state court’s first judgment, even 

though the second suit asserted claims for injuries—in this case, a subsequent 

cancer diagnosis—that were discovered after). As to the fifth element of res 

judicata, “the chief inquiry is whether the second action asserts a cause of 

action which arises out of the transaction or occurrence that was the subject 

matter of the first action.” Burguieres, 843 So. 2d at 1053.

Plaintiffs’ opening appellate brief argues, in conclusory terms, that 

their federal court complaint is not barred because it asserted 

“violations . . . complained of after the state court” judgment. More 

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specifically, in their reply brief, plaintiffs focus primarily on the “previously 

unrevealed . . . post-2019 public ditch sewage testing” results, which, they 

argue, show that St. Tammany “was and is in violation of the STOP 

ordinances, LDH health requirements, LDEQ regulations, and the federal 

CWA.” Plaintiffs argue that the fifth element is not met because, despite 

“factual similarities” with the state court litigation, their federal suit shows 

“a pattern by [St. Tammany] who repeatedly violated their rights.” 

All of these arguments, however, appear to be merely evidence that 

relates back to the same allegations asserted in the state court litigation, 

rather than independent violations that occurred after the state court 

judgment. The district court noted that “[t]he complaint focuses on the 

same ‘acts of man’ described in the State Court Petition,” which occurred 

in 1993, 2001, 2003, 2011, and 2015, well before the August 2018 state court 

judgment.

Moreover, plaintiffs’ arguments on appeal implicitly acknowledge 

that they are collaterally attacking the evidence—and conclusions—reached 

by the state court. For example, they argue that the new evidence of the 

2019-2020 tests “proved that plaintiffs’ entirely new claims were justified, 

and completely disproved all prior [St. Tammany] state court denials.” 

Likewise, all of plaintiffs’ arguments appear to implicitly acknowledge that 

their federal suit “arose out of the transaction or occurrence that was the 

subject matter of the first litigation,” Burguieres, 843 So. 2d at 1053—i.e.

plaintiffs’ continued allegations of damage caused by “sewage flow 

discharged by Dove Park Subdivision residents.” 

Thus, as the district court concluded, the non-CWA claims “existed 

at the time” of the state court judgment, and “are the same as those 

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asserted” in the state court litigation. See Chauvin, 158 So. 3d at 770.5

Accordingly, all the elements of res judicata are satisfied, and the district 

court properly dismissed plaintiffs’ non-CWA claims.

B. 

As to their CWA claims, plaintiffs argue on appeal that the district 

court erred in concluding that their allegations failed to state a plausible claim 

under Rule 12(b)(6). The Clean Water Act, 33 U.S.C. § 1251 et seq., “forbids 

the ‘addition’ of any pollutant from a ‘point source’ to ‘navigable waters’ 

without the appropriate permit from the Environmental Protection Agency 

(EPA).” County of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1468 (2020) 

(quoting 33 U.S.C. §§ 1311(a), 1362(12)(A)). In other words, the CWA 

“requires a permit when there is a direct discharge from a point source into 

navigable waters or when there is the functional equivalent of a direct 

discharge.” Id. at 1476. 

The CWA’s “Citizen suit” provision, 33 U.S.C. § 1365, provides, in 

relevant part:

[A]ny citizen may commence a civil action on his own behalf—

(1) against any person (including . . . any other governmental 

instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in 

violation of (A) an effluent standard or limitation under this 

chapter or (B) an order issued by the Administrator or a State 

with respect to such a standard or limitation[.]

33 U.S.C. § 1365(a). Plaintiffs must also comply with various pre-suit notice 

requirements described in § 1365(b). 

5 Plaintiffs also reference, without analysis, authorities in support of their 

takings/deprivation of property rights without due process claim. This claim was raised in 

the state court litigation and is likewise included in the res judicata bar. 

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The district court first concluded that plaintiffs failed to comply with 

the CWA’s pre-suit notice requirements. See 33 U.S.C. § 1365(b). Then,

even assuming that plaintiffs complied with those requirements, the district 

court concluded that the allegations in plaintiffs’ original, first, and second 

amended complaints were conclusory, and failed to “explicitly connect [St. 

Tammany’s] actions to pollution of the waters in the United States in 

violation of the CWA.” 

On appeal, plaintiffs have forfeited any challenge to the district 

court’s primary holding that the allegations failed to state a plausible claim 

under Rule 12(b)(6). First, their opening appellate brief argues only that they 

complied with the pre-suit notice requirements but does not address the 

sufficiency of their allegations. “An appellant abandons all issues not raised 

and argued in its initial brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 

(5th Cir. 1994). Moreover, plaintiffs rely exclusively on the allegations in 

their proposed third amended complaint, which was not properly before the 

district court. At the time of the motion to dismiss, plaintiffs had only filed 

their first amended complaint and moved to file a second amended 

complaint, both of which the district court considered in ruling on the motion 

to dismiss. 

Further supporting forfeiture, plaintiffs’reply brief fails to distinguish

between the res judicata and insufficient allegations rulings, arguing that 

dismissal of their CWA claims was error under the district court’s “res 

judicata ruling and failure to state a claim.” Nor does this seven-page section 

of the reply brief cite a single authority or case relevant to the CWA.6 Sindhi 

6 The only case cited in this section, Lucky Brand Dungarees, Inc. v. Marcel Fashions 

Grp., Inc., 140 S. Ct. 1589 (2020), relates to claim preclusion. 

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v. Raina, 905 F.3d 327, 334 (5th Cir. 2018) (“[A] litigant can waive an 

argument if he fails to cite authority to support his position.”). 

Plaintiffs also assert that the district court failed to consider the 

extensive exhibits and documents attached to, and allegedly incorporated by 

reference in, plaintiffs’ various complaints. For example, in their reply brief, 

plaintiffs point to a “non-exhaustive listing of exhibits, motions and 

memoranda” in seventeen docket entries replete with exhibits and 

attachments that they say were improperly “ignored and disregarded” by the 

district court. Even assuming that such expansive filings comply with Rule 

8(a)(2)’s “short and plain” statement requirement, plaintiffs barely 

articulate which documents are significant or how they undermine the specific 

conclusions of the district court. See Cinel, 15 F.3d at 1345 (“A party who 

inadequately briefs an issue is considered to have abandoned the claim.”); 

Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 n.8 (5th Cir. 2016).

In short, plaintiffs do not point to specific allegations in any of their 

initial, first amended, or proposed second amended complaints that prove 

they have sufficiently alleged a CWA claim. By pointing exclusively to the 

allegations in their proposed third amended complaint, plaintiffs essentially 

concede that their prior allegations were indeed deficient. They even admit 

that their third amended complaint was designed to “use[] the district 

court’s opinion as to specificity as guidance to avoid another Rule 12(b)(6) 

motion to dismiss.” Thus, plaintiffs have forfeited any argument that the 

district court erred in dismissing the CWA allegations in the original, first, 

and second amended complaints. Additionally, for the reasons that follow, 

we do not consider the allegations asserted in plaintiffs proposed third 

amended complaint. 

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C. 

The denial of a Rule 59(e) motion and a motion for leave to amend a 

complaint is reviewed for abuse of discretion. Allen v. Walmart Stores, 

L.L.C., 907 F.3d 170, 184 (5th Cir. 2018). “Where, as here, the plaintiff files 

a motion for reconsideration and requests leave to amend following a 

dismissal with prejudice, ‘the considerations for [the] Rule 59(e) motion are 

governed by [Federal Rule of Civil Procedure] 15(a).’” U.S. ex rel. Spicer v. 

Westbrook, 751 F.3d 354, 367 (5th Cir. 2014) (quoting Rosenzweig v. Azurix 

Corp., 332 F.3d 854, 864 (5th Cir. 2003)). “The district court properly 

exercises its discretion . . . when it denies leave to amend for a substantial 

reason, such as undue delay, repeated failures to cure deficiencies, undue 

prejudice, or futility.” Id. Absent such factors, leave to amend should be 

“freely given.” Rosenzweig, 332 F.3d at 864 (quoting Fed. R. Civ. P. 

15(a)). An “[o]utright refusal . . . without any justifying reason appearing for 

the denial is not an exercise of discretion.” Allen, 907 F.3d at 184 (quotation 

marks omitted). 

This court has held that it is not an abuse of discretion to deny such 

leave where the plaintiff “had the opportunity to cure and failed,” Spicer, 751 

F.3d at 367; where the plaintiffs “did not exercise diligence,” including 

attempting to raise facts which were “available previous to the district 

court’s opinion,” Rosenzweig, 332 F.3d at 864–65; id. at 865 (emphasizing 

that a “busy district court need not allow itself to be imposed upon by the 

presentation of theories seriatim” (quoting Freeman v. Cont’l Gin Co., 381 

F.2d 459, 469 (5th Cir. 1967)); or where leave to amend would be futile, 

Johnson v. Teva Pharms. USA, Inc., 758 F.3d 605, 610 (5th Cir. 2014).

Here, the district court denied plaintiffs’fourth attempt to plead their 

claims. The district court extensively analyzed the allegations in plaintiffs’ 

initial, first amended, and proposed second amended complaints in its 

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original dismissal order. In denying plaintiffs’ Rule 59(e) motion, it declined 

to reopen the case, explaining that “the [c]ourt will not entertain plaintiffs’ 

request to amend their complaint a third time, as it is completely 

inappropriate to do so at this stage of litigation.” 

The district court’s decision was not an “outright refusal,” and it 

included express and implied “justifying reason[s].” Allen, 907 F.3d at 184. 

Plaintiffs had multiple opportunities to re-plead and cure the deficiencies in 

their complaints prior to the court’s dismissal order. Spicer, 751 F.3d at 367. 

Additionally, plaintiffs do not explain why any of the facts in the third 

amended complaint were not otherwise “available previous to the district 

court’s opinion.” Rosenzweig, 332 F.3d at 865. Accordingly, the district court 

did not abuse its discretion in denying plaintiffs’ motion. 

D. 

Finally, plaintiffs challenge the district court’s denial of their motions 

for preliminary and permanent injunctive relief. We review such denials for 

abuse of discretion, with factual findings reviewed for clear error and legal 

conclusions reviewed de novo. Big Tyme Invs., L.L.C. v. Edwards, 985 F.3d 

456, 463 & n.6 (5th Cir. 2021).

The same day that the district court granted St. Tammany’s motion 

to dismiss, it denied plaintiffs’ request for injunctive relief. Plaintiffs argue 

that this was error largely for the same reasons they challenge the dismissal 

of their case: that their claims are not barred and that “the district court 

disregarded hundreds of pages of affidavits and other exhibits.” 

A party seeking a permanent injunction must “establish (1) success on 

the merits; (2) that a failure to grant the injunction will result in irreparable 

injury; (3) that said injury outweighs any damage that the injunction will 

cause the opposing party; and (4) that the injunction will not disserve the 

public interest.” Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 824 F.3d 

Case: 20-30644 Document: 00516080088 Page: 16 Date Filed: 11/03/2021
No. 20-30644

17

507, 533 (5th Cir. 2016) (quotation marks omitted). Likewise, to obtain a 

preliminary injunction, the movant must establish:

(1) a substantial likelihood of success on the merits, (2) a 

substantial threat of irreparable injury if the injunction is not 

issued, (3) that the threatened injury if the injunction is denied 

outweighs any harm that will result if the injunction is granted, 

and (4) that the grant of an injunction will not disserve the 

public interest. 

Speaks v. Kruse, 445 F.3d 396, 399–400 (5th Cir. 2006) (internal quotation 

marks omitted). 

Since plaintiffs’ claims were properly dismissed, they cannot show a 

likelihood of success on the merits. “If the party requesting a preliminary 

injunction cannot show a substantial likelihood of success on the merits, the 

injunction should be denied and there is no need for the court to address the 

other requirements for a preliminary injunction.” Butts v. Aultman, 953 F.3d 

353, 361 (5th Cir. 2020). Accordingly, the district court did not abuse its 

discretion in declining to enjoin St. Tammany after dismissing plaintiffs’ 

claims. 

IV. 

For the foregoing reasons, the district court’s judgment is 

AFFIRMED. 

Case: 20-30644 Document: 00516080088 Page: 17 Date Filed: 11/03/2021