Res Judicata Bars Renewed Flooding Claims When “Continuing Trespass” Was Abated and the New Remedy Could Have Been Sought in the Original Action

1. Introduction

In Carolyn Florimonte v. Borough of Dalton (3d Cir. June 29, 2026) (non-precedential), the United States Court of Appeals for the Third Circuit affirmed the dismissal with prejudice of Carolyn J. Florimonte’s federal complaint against the Borough of Dalton (the “Borough”). Florimonte alleged that the Borough had concealed drainage pipes on her property to divert stormwater from a residential development and that the Borough’s actions caused decades of flooding. She sought compensation and injunctive relief, including an order directing installation of catch basins.

The central issues were whether Florimonte’s claims were barred by res judicata and collateral estoppel, and whether her framing of “new harms” (including an alleged 2023 injury) avoided claim preclusion under Pennsylvania law—particularly in light of Pennsylvania’s treatment of “continuing trespass.”

2. Summary of the Opinion

The Third Circuit held that Florimonte’s suit was barred by res judicata under Pennsylvania preclusion principles. Although Pennsylvania may allow successive suits for a continuing trespass when a tortiously placed “thing” remains on the land, Florimonte did not state that kind of continuing-trespass claim because she acknowledged the Borough complied with the prior state-court abatement order in 2013 (removing/filling/capping the pipes). Her present claim instead blamed continuing flooding on the Borough’s failure to install catch basins—relief that could have been pursued during the remedial phase (on remand) of the earlier litigation.

The Court also:

  • Noted that dismissal on res judicata grounds is properly with prejudice because amendment would be futile.
  • Declined to consider a “fraud upon the court” argument raised for the first time on appeal.
  • Issued another warning that repetitive filings could lead to sanctions or filing restrictions, while declining to impose restrictions at this time.

3. Analysis

3.1. Precedents Cited

Appellate jurisdiction, review standard, and choice of preclusion law

  • Erie Indemnity Co. v. Stephenson, 157 F.4th 265 (3d Cir. 2025)
    Cited for the proposition that the Third Circuit reviews dismissals on res judicata/collateral estoppel grounds plenary (de novo). This matters because the panel did not defer to the District Court’s legal conclusions; it independently assessed Pennsylvania preclusion doctrine as applied to Florimonte’s pleadings and litigation history.
  • Delaware River Port Auth. v. Fraternal Order of Police, 290 F.3d 567 (3d Cir. 2002)
    Used to establish that Pennsylvania preclusion principles governed the claim-preclusion analysis. The underlying “first action” was litigated in Pennsylvania state court, and federal courts typically apply the preclusion law of the state whose judgment is invoked to bar later litigation. The panel treated this as dispositive of which preclusion framework controlled.
  • Hankins v. Temple Univ., 829 F.2d 437 (3d Cir. 1987)
    Quoted (in a footnote) for mootness: once the complaint was dismissed with prejudice, any appeal of the earlier denial of preliminary injunctive relief became moot. This is a procedural point reinforcing that merits dismissal can extinguish interlocutory disputes about interim relief.

Claim preclusion (res judicata) and its scope

  • Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542 (3d Cir. 2006)
    This is the panel’s core statement of Pennsylvania claim preclusion: when there is a final, valid judgment on the merits, res judicata bars a later action “between the parties or their privies on the same cause of action.” Critically, the panel emphasized Turner’s rule that res judicata applies not only to claims actually litigated, but also to claims that could have been litigated if part of the same cause of action. The “could have been litigated” aspect drives the outcome: the Court treated the request for catch basins as relief that should have been pursued in the earlier remedial proceedings.
  • Heart Care Consultants, LLC v. Albataineh, 239 A.3d 126 (Pa. Super. Ct. 2020)
    Cited for the proposition that when “the acts and alleged wrongs on which both actions are based are identical,” there is identity of the cause of action and res judicata applies “even if the later action seeks different relief.” This directly rebuts Florimonte’s attempt to avoid preclusion by changing the remedy (catch basins) and emphasizing later consequences (a 2023 injury). The panel used Heart Care Consultants to treat the changed prayer for relief as legally insufficient to create a new cause of action.

Continuing trespass and its limits (as framed by the panel)

  • Kowalski v. TOA PA V, L.P., 206 A.3d 1148 (Pa. Super. Ct. 2019)
    The Court acknowledged the doctrine that successive suits may be maintained for a continuing trespass when the actor fails to remove a “thing” tortiously placed on the land. The panel’s key move is distinguishing that scenario from Florimonte’s pleadings: because she admitted the Borough abated the trespass as ordered in 2013, she could not rely on continuing-trespass doctrine to justify serial litigation.

    The panel also cited Restatement (Second) of Torts § 161, cmt. b (through Kowalski) to anchor the “thing remains on the land” concept—illustrating that “continuing” is tied to persistence of the offending instrumentality, not merely persistence of harmful conditions in the plaintiff’s experience.

The underlying state litigation history (and its preclusive force)

  • Florimonte v. Borough of Dalton, No. 987 C.D. 2012, 2013 WL 3973727 (Pa. Commw. Ct. Apr. 4. 2013)
    This Commonwealth Court decision is the substantive anchor for preclusion. It affirmed the negligence judgment for the Borough, found takings claims waived on procedural grounds, and recognized that Florimonte established a continuing trespass (ownership/maintenance of drainage system located in part on her property, placed without consent, continually depositing concentrated surface water). Importantly, it remanded solely for equitable abatement and noted she had abandoned money damages.

    The Third Circuit used this history to show (i) the same operative nucleus—pipes, drainage system, flooding—and (ii) the availability of equitable remedial proceedings where alternative solutions could be presented.
  • Florimonte v. Council of Borough of Dalton, No. 1786 C.D. 2012, 2013 WL 3156566 (Pa. Commw. Ct. June 7, 2013)
    Cited to show that Florimonte filed multiple related actions while the original suit was pending and that those cases were dismissed under lis pendens (same parties, rights, and requested relief). While not the operative basis for the federal dismissal, it contextualizes the litigation pattern and supports the panel’s later warning about repetitive filings.
  • Florimonte v. Borough of Dalton, 603 F. App'x 67 (3d Cir. 2015)
    The panel cited this earlier federal appeal (non-precedential) as an example of prior res judicata-based dismissals for similar claims, reinforcing that the present complaint fits a longstanding pattern of duplicative litigation about the same alleged flooding wrong.
  • Florimonte v. Borough of Dalton, 735 F. App'x 53 (3d Cir. 2018)
    Referenced in two ways: (i) to note the Court had previously “strongly warn[ed]” Florimonte about sanctions for duplicative/frivolous filings; and (ii) to indicate the Court had already rejected her “fraud upon the court” allegation about the Borough’s role in installing the pipes—supporting the 2026 panel’s decision not to entertain the re-raised argument.

Dismissal with prejudice and futility

  • Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565 (6th Cir. 2008)
    Although from the Sixth Circuit, it was cited for the widely accepted principle that dismissal on res judicata grounds is necessarily with prejudice because amendment cannot cure preclusion. The Third Circuit used this to justify the remedy (with-prejudice dismissal) rather than allowing another amendment cycle.
  • Talley v. Wetzel, 15 F.4th 275 (3d Cir. 2021)
    Cited (alongside Winget) to reinforce that with-prejudice dismissal is appropriate where amendment would be futile—here, because the defect is legal (claim preclusion), not a pleading deficiency.

Issue preservation and new arguments on appeal

  • Cont'l Cas. Co. v. Dominick D'Andrea, Inc., 150 F.3d 245 (3d Cir. 1998)
    Cited for the general rule that appellate courts do not consider issues not raised in the district court absent exceptional circumstances. This allowed the panel to dispose of Florimonte’s “fraud upon the court” contention without reaching its merits.

3.2. Legal Reasoning

The panel’s reasoning proceeds in a structured preclusion sequence:

  1. Identify governing law: Because the earlier litigation produced a Pennsylvania state-court judgment, Pennsylvania preclusion principles apply.
  2. Identify the “same cause of action”: The Court compared the factual core of the 2003 state case (pipes/drainage, flooding, trespass/takings framing) to the 2025 federal complaint and found them materially the same: the Borough is alleged to be responsible for flooding and interference with property rights.
  3. Apply the “could have been litigated” rule: Even accepting that Florimonte now seeks catch basins and emphasizes later injuries, the Court treated that as merely a new remedial request arising from the same alleged wrong. Because the trial court on remand in the prior case entertained “viable solutions,” the catch-basin demand was deemed available then.
  4. Reject the continuing-trespass escape hatch: The Court acknowledged Pennsylvania’s allowance for successive actions in true continuing-trespass scenarios, but held that Florimonte’s own allegations foreclosed it: she conceded the ordered abatement (removal/filling/capping) occurred in 2013. Her new theory—failure to install catch basins—was therefore not the “continued presence” of a tortiously placed thing.
  5. Dismiss with prejudice due to futility: Because res judicata is a legal bar, further amendment would not change the preclusive effect of the prior judgment.
  6. Address litigation conduct: The Court corrected Florimonte’s asserted “right” to keep filing until the Borough installs catch basins, and issued a renewed warning about sanctions—while exercising restraint given the time gap since the last related Third Circuit filing (2018) and her professed reliance on continuing-trespass doctrine.

3.3. Impact

Although designated “NOT PRECEDENTIAL” and therefore not binding under Third Circuit internal operating procedures, the decision has practical significance in three ways:

  • Clarifying the limits of “continuing trespass” as an anti-preclusion argument: The panel’s analysis underscores that continuing-trespass doctrine does not automatically defeat res judicata merely because harmful effects continue. Where the “thing” constituting the trespass has been abated (or the plaintiff alleges it has), later suits must clear preclusion hurdles by identifying a genuinely new transaction/occurrence—not just new injuries or preferred engineering solutions.
  • Reinforcing the breadth of “could have been litigated”: By treating the request for catch basins as relief that could have been sought during the earlier remedial phase, the opinion illustrates that res judicata can bar later litigation even where the plaintiff reframes the fix as different from the earlier ordered remedy.
  • Signaling escalating judicial management of repetitive litigation: The renewed warning about sanctions and possible filing restrictions indicates that repeated, duplicative suits—especially after prior warnings—may prompt courts to employ stricter gatekeeping tools. This is particularly relevant to municipal-defendant cases where plaintiffs refile variations of the same grievance.

4. Complex Concepts Simplified

Res judicata (claim preclusion)
A doctrine preventing parties from relitigating the same cause of action after a final judgment. It bars not only what was actually raised, but also what could have been raised in the earlier case.
Collateral estoppel (issue preclusion)
A narrower doctrine that prevents relitigation of specific issues that were actually decided previously. Although the District Court cited both doctrines, the Third Circuit’s affirmance turned on res judicata.
Continuing trespass
A trespass that continues because something wrongfully placed on land remains there (e.g., a structure or device). In such cases, some jurisdictions, including Pennsylvania in certain circumstances, may allow successive suits for ongoing invasions. The Third Circuit held Florimonte did not plead this kind of continuing trespass because she admitted the pipes were abated in 2013.
Lis pendens
A doctrine used to dismiss or stay later-filed suits while an earlier suit involving the same parties and claims is still pending—preventing duplicative parallel litigation.
With prejudice
A dismissal that ends the case permanently; the plaintiff cannot refile the same claim. Here, it was appropriate because preclusion is a legal barrier that amendment cannot fix.
Fraud upon the court
A serious allegation that a party corrupted the judicial process itself (not merely that it lied). The panel did not consider this claim because it was not raised in the District Court, and it also noted similar allegations had been rejected before.
Plenary review
Appellate review without deference to the district court’s legal conclusions (i.e., de novo).

5. Conclusion

The Third Circuit affirmed dismissal with prejudice because Florimonte’s renewed flooding-related claims against the Borough were barred by Pennsylvania res judicata principles. The Court treated her request for new relief (catch basins) and her reliance on later harms as insufficient to create a new cause of action where the underlying wrong was the same and the remedy could have been pursued during the earlier remand proceedings. The opinion also delineates the boundary between true “continuing trespass” (continued presence of a tortiously placed thing) and continuing adverse effects after an abatement order has been carried out, while cautioning against repetitive filings that may trigger sanctions.