No Waiver-by-Procedural Skirmish; Comparator Facts Required: Fifth Circuit Reaffirms Removal Waiver Standard and Tightens Pleading for Gender-Based Monell Claims in Domestic-Violence Policing

Introduction

This appeal arises from the brutal murder of Melissa Banda by her ex-husband and the estate’s attempt to hold the City of McAllen liable under 42 U.S.C. § 1983 on a gender-based Equal Protection theory of municipal liability under Monell. After a series of police reports by Ms. Banda in the months following her divorce filing—including allegations of assault, stalking, violations of protective orders, and harassment—her ex-husband was arrested only once and promptly released. He later kidnapped and murdered her.

Banda’s estate sued the City in Texas state court, initially bringing state-law claims, then—minutes before a scheduled hearing on the City’s plea to the jurisdiction—adding a federal § 1983 Monell claim. The City removed, and the district court ultimately dismissed the fifth amended complaint for failure to state an Equal Protection claim and denied further leave to amend. On appeal, the Fifth Circuit (per curiam, nonprecedential) affirms on two fronts:

Removal: No waiver occurred when the City asked the state court to rule on a plea to the jurisdiction directed at now-superseded state-law claims. Waiver requires a “clear and unequivocal” intent to remain in state court and is not triggered by mere “procedural skirmishing.”
Monell Equal Protection Pleading: A domestic-violence-based Equal Protection claim under Shipp v. McMahon must plead facts showing that domestic-violence victims receive less protection than victims of other assaults and that gender discrimination motivated the disparity. Conclusory assertions and the severity of a single incident do not suffice.

Summary of the Opinion

The Fifth Circuit affirms the district court’s denial of remand and dismissal under Rule 12(b)(6), as well as the denial of leave to amend:

Removal and Waiver: The City did not “clearly and unequivocally” waive removal by participating in a state-court hearing and asking for a ruling on governmental immunity as to nonoperative state-law claims. The court contrasts the City’s limited participation with the exhaustive state-court litigation seen in earlier waiver cases and characterizes the City’s conduct as permissible “procedural skirmishing.”
Equal Protection (Monell): Applying Shipp, the court holds the estate failed to plead:
- a policy, practice, or custom of providing less protection to domestic-violence victims than to victims of other assaults (no comparator facts); and
- that discrimination against women was a motivating factor (only conclusory allegations).
Without these, the complaint fails under Twombly/Iqbal.
Leave to Amend: The district court did not abuse its discretion in denying further leave. The plaintiff had already been granted an opportunity to amend (with the benefit of discovery) and did not proffer specific new facts or a proposed amendment showing how defects would be cured.

Result: Affirmed in full; case dismissed.

Analysis

Precedents Cited and Their Influence

Monell v. Department of Social Services, 436 U.S. 658 (1978) and Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001)
Establish the framework for municipal liability: a policymaker, an official policy or widespread custom, and that the policy/custom was the “moving force” behind a constitutional violation. The panel focuses on the “policy/custom” and “intent” elements and, because those fail, does not reach the “policymaker” prong.
Shipp v. McMahon, 234 F.3d 907 (5th Cir. 2000), overruled in part on other grounds by McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) (en banc)
Shipp articulates the specific Equal Protection pleading for domestic-violence policing: (1) a policy/custom of providing less protection to domestic-violence victims than to other assault victims; (2) gender discrimination as a motivating factor; and (3) injury caused by that policy/custom. This opinion reaffirms Shipp’s comparator requirement at the pleading stage.
Beltran v. City of El Paso, 367 F.3d 299 (5th Cir. 2004)
Requires nonconclusory facts showing discriminatory intent for an Equal Protection claim. The panel cites Beltran to reject bare allegations that the City’s inaction was motivated by gender bias.
Twombly, 550 U.S. 544 (2007) and Iqbal, 556 U.S. 662 (2009)
Supply the plausibility standard: “threadbare recitals” and conclusory assertions are insufficient. The court uses these to underscore that the complaint must contain factual material about comparators and intent, not just labels and conclusions.
Abraham Watkins Nichols Agosto Aziz & Stogner v. Festeryga, No. 23-20337, 2025 WL 2621301 (5th Cir. Sept. 11, 2025)
Recent Fifth Circuit articulation of removal waiver: waiver requires a “clear and unequivocal” intent to remain in state court, and conduct short of seeking adjudication on the merits is not enough. The panel leans on Festeryga to hold the City’s hearing participation did not waive removal.
Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003)
Demonstrates that even notable state-court activity (transfer, confidentiality orders, consolidation, special exceptions) does not necessarily forfeit removal. This bolsters the panel’s conclusion that the City’s limited request for a jurisdictional ruling was permissible.
Brown v. Demco, Inc., 792 F.2d 478 (5th Cir. 1986) and Schell v. Food Machinery Corp., 87 F.2d 385 (5th Cir. 1937)
Earlier waiver cases involving extensive litigation in state court. The panel distinguishes these as far more robust invocations of state-court adjudication than what occurred here.
Scott v. U.S. Bank, 16 F.4th 1204 (5th Cir. 2021); Thomas v. Chevron U.S.A., Inc., 832 F.3d 586 (5th Cir. 2016); McKinney v. Irving ISD, 309 F.3d 308 (5th Cir. 2002); Martinez v. Nueces Cnty., 71 F.4th 385 (5th Cir. 2023); Ariyan, Inc. v. Sewerage & Water Bd., 29 F.4th 226 (5th Cir. 2022)
These cases supply the leave-to-amend standards: leave is to be “freely given,” but a plaintiff seeking another chance must identify proposed amendments and explain how they cure defects. Without that proffer, denial is proper. The panel applies this to uphold the denial of further leave, noting plaintiff already amended (with discovery) yet failed to cure.

Legal Reasoning

1) Removal and Waiver

The estate argued the City waived removal by participating in a state-court hearing and asking the court to rule on governmental immunity as to the TTCA claims. The panel applies the Fifth Circuit’s stringent waiver standard: removal rights are not lost absent a clear, unequivocal intent to remain in state court, typically shown by seeking an adjudication on the merits. The City’s conduct was:

Directed to a plea to the jurisdiction regarding a now-nonoperative petition (because the plaintiff amended minutes before the hearing), and
Limited in scope and time—nothing like the “testing state-court waters” over years (Brown) or extensive merits litigation (Schell).

Framing the hearing involvement as “procedural skirmishing,” the court holds there was no waiver. Importantly, the panel notes everyone in the courtroom understood that the case had become removable once the federal claim was added. That understanding, combined with the narrow, jurisdictional nature of the City’s request, undercut any claim that the City intended to litigate the merits in state court.

2) Monell Equal Protection Pleading (Domestic-Violence Policing)

Shipp’s three-part standard controls: the plaintiff must plausibly allege (1) a policy/custom of providing less protection to domestic-violence victims than to other assault victims; (2) gender-based discrimination as a motivating factor; and (3) injury caused by that policy/custom. The panel concludes:

No comparator facts (Shipp element 1): Although the complaint described multiple calls by Ms. Banda and limited police action, it did not supply facts showing disparate treatment relative to victims of other assaults. Without factual material about how the police respond to comparable non-domestic assaults, the allegation of a discriminatory policy remains a “threadbare recital.”
No plausible allegation of discriminatory intent (Shipp element 2): The complaint alleged, in conclusory terms, that discrimination against women or Hispanic women motivated the City’s response. The court requires specifics—statistics, statements, or other facts—indicating that gender bias plausibly drove differential policing. None were pleaded.
“Single severe incident” theory rejected: The estate argued the kidnapping/murder was so severe as to itself imply a municipal policy. The court rejects that notion. The allegation describes tragic harm but does not transform an isolated failure into an “official policy” for Monell purposes.

Because the first two Shipp elements were not plausibly pleaded, dismissal followed under Twombly/Iqbal. The court expressly declined to reach the “policymaker” element.

3) Denial of Further Leave to Amend

Rule 15 favors liberal amendment, but a plaintiff seeking another chance must signal what new facts will be added and how they will cure defects. Here:

The plaintiff already amended once in response to the City’s first motion to dismiss, with the benefit of discovery, after a court directive to plead all relevant Monell facts.
In opposing the second motion to dismiss, the plaintiff referenced “new information” from the murderer’s criminal trial but did not specify any facts or provide a proposed amended complaint explaining how such facts would satisfy Shipp’s comparator and intent elements.

Given that record, the panel finds no abuse of discretion in denying further leave; even under a de novo “futility” lens, additional amendment was not justified without a concrete proffer.

Impact and Practical Implications

A. Removal Strategy in Texas Local-Government Cases

Procedural engagement at the state level does not automatically waive removal. Defendants may attend and even seek certain state-court rulings (e.g., jurisdictional pleas) without forfeiting removal, so long as they do not seek a merits adjudication or otherwise clearly commit to state-court resolution.
Timing matters when plaintiffs inject federal claims. Adding a federal claim minutes before a hearing will not force defendants to abandon all state-court motions to preserve removal; requesting a jurisdictional ruling on now-superseded claims was held not to be a waiver.
Defense caution: Do not invite or obtain a merits determination; keep state-court activity narrow, procedural, and expressly reserved in light of imminent removal.

B. Pleading Gender-Based Equal Protection Monell Claims in Domestic-Violence Contexts

Comparator facts are essential. Plaintiffs must allege specific facts showing that domestic-violence victims receive less protection than comparable victims of other assaults (e.g., stranger assaults). Examples:
- Arrest/charging rates or response times for domestic-violence calls versus non-domestic aggravated assaults in the same jurisdiction/time frame;
- Internal directives or training materials evidencing a policy to downgrade or deprioritize domestic-violence enforcement;
- Concrete comparative incidents (e.g., similar severity/non-domestic facts yielding arrest versus similar DV facts yielding no action).
Plausible intent allegations are required. Equal Protection demands facts that make gender bias a plausible motivator—statements by officials, statistical disparities aligned with gender, or documented patterns reflecting gendered disfavor in enforcement.
“Single-incident” policy theories are generally inapplicable. The severity of harm, without more, does not convert an isolated failure into a municipal policy for Monell. The “single-incident” route is exceedingly narrow and rarely fits Equal Protection theories as opposed to failure-to-train claims, and even there is tightly cabined.
Pre-suit investigation is critical. In the Fifth Circuit, plaintiffs should use public records requests, internal-affairs data, audits, and expert analysis to assemble comparator and intent facts before filing (or at least before amendment), anticipating Twombly/Iqbal scrutiny.

C. Leave to Amend—Proffer or Perish

Second chances require specifics. When seeking leave to amend, plaintiffs should attach a proposed amended complaint or detail the new facts they will add and how those facts cure identified defects under the operative standards (here, Shipp’s comparator and intent elements).
Discovery does not excuse pleading gaps. Where a plaintiff has had discovery and still cannot supply comparator and intent facts, courts are more likely to deem further amendment futile.

Complex Concepts Simplified

Monell liability: Cities are not vicariously liable for employees’ constitutional violations. A plaintiff must connect the harm to a city’s policy or widespread custom that was the moving force behind the violation.
Policy or custom: Can be a formal written policy, a widespread persistent practice of officials, an act or ratification by a final policymaker, or (rarely) an obvious failure to train so severe that it amounts to deliberate policy.
Equal Protection in policing: Requires showing that the government treated a protected group differently from others who are similarly situated, and that the difference was motivated by discriminatory intent, not mere negligence or poor outcomes.
Shipp comparator requirement: In domestic-violence policing claims, plaintiffs must compare police responses to domestic-violence assaults with responses to other non-domestic assaults; alleging inadequate response to domestic-violence incidents alone is not enough.
Plea to the jurisdiction (Texas): A mechanism to challenge a court’s subject-matter jurisdiction, often grounded in governmental immunity. It is not, by itself, a merits adjudication.
Removal waiver: A defendant’s right to move a case to federal court can be waived, but only by a clear and unequivocal decision to seek merits adjudication in state court. Routine or preliminary state-court activity typically does not waive removal.
Twombly/Iqbal plausibility: Complaints must contain factual content that makes the claim plausible, not just legal conclusions. Courts disregard conclusory statements when assessing sufficiency.

Conclusion

Banda v. City of McAllen underscores two practical and doctrinal realities in the Fifth Circuit. First, removal is resilient: defendants do not forfeit it by limited participation in state-court proceedings, particularly when conduct is jurisdictional, the pleading posture is shifting, and no merits adjudication is sought. Second, Equal Protection claims alleging gender-based discrimination in domestic-violence policing face a stringent pleading bar. Plaintiffs must present concrete comparator facts showing less protection for domestic-violence victims than for other assault victims, coupled with nonconclusory allegations of discriminatory intent. The tragic severity of a single incident, however harrowing, does not establish a municipal policy.

Although unpublished and not precedential under Fifth Circuit Rule 47.5, this decision is a clear application of settled standards (Festeryga; Shipp; Twombly/Iqbal) that will inform both municipal defense strategies and plaintiff-side pleading in domestic-violence Equal Protection cases. The key takeaway is evidentiary: success at the pleading stage will often hinge on pre-suit acquisition of comparator and intent evidence and on making a concrete proffer if further amendment is sought.