United States Court of Appeals
For the First Circuit
No. 11-1347
DAVID EFRON, as personal representative of the
Estate of José Efron,
Plaintiff, Appellant,
v.
MORA DEVELOPMENT CORP., et al.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter, Associate Justice,*
and Boudin, Circuit Judge.
Etienne Totti del Valle, with whom Totti & Rodríguez Díaz, was
on brief, for appellant.
Luis Sanchez Betances, with whom Sánchez Betances, Sifre, &
Muñoz Noya, P.S.C., was on brief, for appellee.
March 26, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. As a fiduciary, appellant
David Efron owned a parcel of land in Carolina, Puerto Rico, near
two lots intended for construction by the appellee Mora Development
Company. In 2002, the defendant Puerto Rico Highway and
Transportation Authority (“PRHTA”) notified Efron of its plan to
acquire the greater part of his land by condemnation, in aid of
Mora’s project.
In November 2004, PRHTA filed a petition to condemn
Efron’s property in the Court of First Instance of the Commonwealth
of Puerto Rico, along with a deposit of proposed compensation.
Efron’s motion to dismiss the condemnation proceeding was itself
dismissed by the Commonwealth court, which ordered the transfer of
ownership and possession to PRHTA.
Efron then filed suit under 42 U.S.C. § 1983 against
Mora, its president Cleofe Rubi, PRHTA, and PRHTA employees Jack
Allison and Paquito Rivera, alleging that the defendants had
conspired to deprive him of his property without just compensation
or due process of law. He also invoked the district court’s
supplemental jurisdiction to hear a tort claim under Commonwealth
law for unlawful deprivation of the use and quiet enjoyment of
property.
Mora and the other defendants moved for summary judgment
for Efron’s failure to seek just compensation in the courts of
Puerto Rico before raising his federal takings claim. The district
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court granted the motion in accordance with the rule of SFW Arecibo
Ltd. v. Rodríguez, 415 F.3d 135, 139 (1st Cir. 2005), that a
plaintiff has no federal Fifth Amendment claim for a taking under
Puerto Rico law without first availing himself of the
Commonwealth’s process for seeking just compensation. See Deniz v.
Municipality of Guaynabo, 285 F.3d 142, 150 (1st Cir. 2002) (“The
plaintiff’s failure to seek recompense through Puerto Rico’s
inverse condemnation remedy renders both [a plaintiff’s] takings
and substantive due process claims unripe for federal
adjudication.”); see also Williamson Cnty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985) (“[I]f a
State provides an adequate procedure for seeking just compensation,
the property owner cannot claim a violation of the Just
Compensation Clause until it has used the procedure and been denied
just compensation.”). The supplemental claim was dismissed without
prejudice, and Efron refiled it in a court of Puerto Rico.
After obtaining judgment, Mora filed a Bill of Costs
under Fed. R. Civ. P. 54(d)(1) and a Motion for Attorneys’ Fees
under 42 U.S.C. § 1988, and it is from an award of $92,149 in fees
for work on discovery, pleadings, and motions that Efron appeals
here. We review it for abuse of discretion, which includes the
issue of the correct legal standard. Wennik v. Polygram Grp.
Distrib., Inc., 304 F.3d 123, 134 (1st Cir. 2002); see Fox v.
Vice, 131 S.Ct. 2205, 2216 (2011).
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Section 1988 authorizes an order for “a reasonable
attorney’s fee” to “the prevailing party” in suits brought to
enforce any of several civil rights statutes, including § 1983, see
42 U.S.C. § 1988(b), though the eligibility of a successful
defendant requires “a finding that the plaintiff’s action was
frivolous, unreasonable, or without foundation.” Christianburg
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). If some, but not
all, of a plaintiff’s claims are frivolous, only the fees for
defending against the worthless ones are recoverable. Fox, 131
S.Ct. at 2214.
In this case, the district court adopted the magistrate
judge’s finding that Efron’s federal claim was indeed frivolous,
unreasonable, and unfounded, although it drew no such conclusion
about the supplemental tort claim dismissed without prejudice,
which is consequently to be treated as non-frivolous. See id. at
2211, 2217. Given the mixture, the § 1988 fee award must be
restricted to work attributable to dismissal of the frivolous
federal claim, the analytical basis for apportionment being
governed by equitable considerations under Ward v. Hickey, 996 F.2d
448, 455-56 (1st Cir. 1993) at the time of trial, but now
ultimately, by Fox v. Vice, 131 S. Ct. at 2215, decided during the
appeal period. Fox allows an award only of fees the prevailing
defendant would not have paid but for the frivolous claim. Id.
And while there will still be difficult issues of separability
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after Fox, id. at 2214, this case does not appear to present one,
given the discrete legal basis of the dismissal.
The district court, to be sure, did not take a
microscopic approach, as is apparent in its discussion of the
allocation issue for work done on discovery:
Discovery work is a different story.
There is no dispute that the facts and law
upon which Efron predicated his federal and
state law claims were inextricably
interrelated. Defendants’ argument is
therefore correct: “the facts being the same,
the potential witnesses and damages evidence
would have also been the same. The trial work
would be one and the same . . . .
Consequently, the discovery process was also
inseparable and the work done cannot be
allocated by claim.” Docket No. 154, p. 8.
It necessarily follows then that all discovery
work Defendants performed in this case was
required to defend against Efron’s frivolous
federal claims. Moreover, the fees Efron
challenges in connection with discovery work
arose from depositions Defendants conducted.
The dynamics involved in this type of work
generally require the deponent to cover a wide
range of subjects to develop the facts
relevant to any given claim. This, in turn,
renders the task of allocating deposition work
between claims virtually impossible.
Efron v. P.R. Highway & Transp. Auth., 763 F. Supp. 2d
283, 288 (D.P.R. 2011). Even setting Fox aside, this approach is
unconvincing when one recalls the reason for dismissing the
frivolous action. Puerto Rican law provides process to get
compensation for property takings by the government. Efron did not
take advantage of that process. These are the only facts that
needed to be shown for the dismissal Mora obtained. Suffice it to
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say that there is no basis in the record brought to our attention
that suggests that these facts are inextricably associated with the
tortious conduct alleged in the supplementary action, or that any
effort was required to unearth the elementary basis for dismissing
the Fifth Amendment claim. The Commonwealth officials must have
known of Efron’s failure to resort to local process, and Mora’s
principal could presumably have found this out with nothing more
than a phone call. A few pages of pleadings and affidavits would
have sufficed to place the law and facts before the court. Perhaps
there is a more supportive basis for the amount of the fee order
than meets the appellate eye, but on the record as cited for our
consideration, the need for over $90,000 in fees for discovery and
summary judgment in Mora’s favor on the SFW Arecibo issue is
inexplicable.
Accordingly, the award is vacated and the case remanded
for reconsideration of the portion of the fee order from which this
appeal was taken. The standard, of course, will be Fox’s holding
that fees are recoverable only for work that would have been
unnecessary but for the frivolous constitutional takings claim.
Whatever the amount of any subsequent order, its basis must be
explained in sufficient detail “to withstand appellate review.”
Wennik, 304 F.3d at 134 (quoting Grendel’s Den, Inc. v. Larkin, 749
F.2d 945, 950 (1st Cir. 1984)) (internal quotation marks omitted).
Vacated and remanded. Costs are awarded to the appellant.
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