United States Court of Appeals
For the First Circuit
No. 01-2020
CALIXTO DENIZ, A/K/A CALIXTO DENIZ MARQUEZ,
Plaintiff, Appellant,
v.
MUNICIPALITY OF GUAYNABO ET AL.,
Defendants, Appellees.
No. 01-2021
CALIXTO DENIZ, A/K/A CALIXTO DENIZ MARQUEZ,
Plaintiff, Appellee,
v.
MUNICIPALITY OF GUAYNABO ET AL.,
Defendants, Appellants.
______________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
Ana L. Toledo Dávila for plaintiff.
Pablo Landrau-Pirazzi, with whom Aldarondo & López Bras was
on brief, for defendants.
April 8, 2002
SELYA, Circuit Judge. These appeals grow out of an
action brought pursuant to 42 U.S.C. § 1983. In that action,
plaintiff-appellant Calixto Déniz Márquez accuses the
Municipality of Guaynabo (the Municipality) of confiscating his
property without just compensation. The district court held
that the plaintiff's takings claims were unripe and dismissed
the action. Déniz Márquez v. Municipality of Guaynabo, 140 F.
Supp. 2d 135, 140 (D.P.R. 2001). The plaintiff appeals. We
affirm.
I.
Background
Since the district court disposed of this matter on a
Rule 12(b)(1) motion to dismiss, without taking evidence, we
accept as true all well-pleaded factual averments in the
plaintiff's amended complaint and indulge all reasonable
inferences therefrom in his favor. Valentin v. Hosp. Bella
Vista, 254 F.3d 358, 365 (1st Cir. 2001).
The plaintiff is a real estate developer who owns two
adjoining parcels of real estate (the Property) in Guaynabo.
One parcel contains a three-story office building. The abutting
(unimproved) parcel serves as a parking lot for that building.
In or around February of 1999, the plaintiff signed a
conditional agreement to sell the Property for $625,000. Before
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the closing date, the would-be buyer visited the municipal
offices and learned that the Municipality intended to take the
Property by eminent domain. He promptly withdrew his offer. A
second potential purchaser backed out for much the same reason.
The plaintiff was perplexed because he had heard
nothing from the Municipality concerning an expropriation of the
Property. On March 31, 1999, he inquired whether the
Municipality intended to proceed with a condemnation action.
Almost two months later, Aurialis Lozada, the director of
Guaynabo's legal division, responded to his letter. She
informed the plaintiff that the mayor of Guaynabo, Héctor
O'Neill, intended to take the Property by eminent domain.
Presumably to facilitate this plan, Lozada forbade the plaintiff
from renewing any of the office building leases. Word of the
putative taking spread, and tenants began to quit the premises
like rats deserting a sinking ship.
Despite several subsequent conversations between the
plaintiff and Lozada, the Municipality neither designated the
Property for public use nor commenced eminent domain
proceedings. During this hiatus, the plaintiff's income stream
dried up, his mortgage went into default, and the mortgagee
began to threaten foreclosure. Left in a bureaucratic limbo and
concerned about his financial plight, the plaintiff brought suit
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in Puerto Rico's federal district court. His operative pleading
(the amended complaint) named the Municipality, O'Neill, and
Lozada as defendants. It alleged violations of section 1983 and
the Fifth Amendment to the United States Constitution. The gist
of the case was the averment that the defendants' conduct
amounted to a de facto taking that unconstitutionally deprived
the plaintiff of the beneficial use of the Property without just
compensation. For good measure, the plaintiff added a due
process claim, as well as supplemental claims under local law.
The suit provoked two motions to dismiss. The first,
based upon ripeness considerations, asserted that the district
court lacked subject matter jurisdiction. See Fed. R. Civ. P.
12(b)(1). The second, more substantively oriented, asserted
that the amended complaint failed to state a claim upon which
relief could be granted. See Fed. R. Civ. P. 12(b)(6).
For reasons that are not immediately apparent, the
district court first addressed the Rule 12(b)(6) motion and
found it wanting. Déniz Márquez, 140 F. Supp. 2d at 138-39.
The court determined, however, that the Rule 12(b)(1) motion was
dispositive because the plaintiff had an obligation to pursue
the inverse condemnation remedy available under Puerto Rico law
before prosecuting his takings claims under section 1983. Id.
at 139-40. Accordingly, the court dismissed the plaintiff's
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federal claims as unripe and dismissed the remaining
(supplemental) claims without prejudice. Id. at 140. The
plaintiff appealed, and the defendants cross-appealed from the
denial of their Rule 12(b)(6) motion.
II.
The Plaintiff's Appeal
We review de novo the district court's dismissal of the
plaintiff's federal claims as unripe. Ernst & Young v.
Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st Cir. 1995).
We begin our inquiry by framing the issue and then proceed to
discuss the plaintiff's contentions.
A.
Setting the Stage
42 U.S.C. § 1983 provides in pertinent part that
"[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage . . . subjects, or causes to be
subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party
injured." This statute "supplies a private right of action
against a person who, under color of state law, deprives another
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of rights secured by the Constitution or by federal law." Evans
v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996). For section 1983
purposes, Puerto Rico is deemed equivalent to a state. See
Martínez v. Colón, 54 F.3d 980, 984 (1st Cir. 1995).
The plaintiff centers his primary section 1983 claim
on the allegation that the defendants unlawfully deprived him of
his rights in the Property without just compensation. Their
conduct, he alleges, constituted a de facto confiscation and
thereby violated the Takings Clause. See U.S. Const. amend. V
(prohibiting the taking of private property for public use
without just compensation).
The initial hurdle is easily cleared: the defendants
are alleged to have acted under color of Puerto Rico law, and
the Takings Clause applies unreservedly to the Commonwealth of
Puerto Rico. Tenoco Oil Co. v. Dep't of Consumer Affairs, 876
F.2d 1013, 1017 n.9 (1st Cir. 1989). Once past this point,
however, insurmountable obstacles loom. Chief among them is the
question of ripeness.
That question arises out of the plaintiff's decision
to pursue his takings claims directly in federal court. The
Supreme Court has explained that:
The Fifth Amendment does not proscribe the
taking of property; it proscribes taking
without just compensation. Nor does the
Fifth Amendment require that just
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compensation be paid in advance of, or
contemporaneously with, the taking; all that
is required is that a "reasonable, certain,
and adequate provision for obtaining
compensation" exist at the time of the
taking.
Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473
U.S. 172, 194 (1985) (citations omitted). Thus, a takings claim
ordinarily is considered unripe if the claimant comes directly
to a federal court without first seeking compensation through
state procedures. Id. at 194-95.
To be sure, this rule — like most rules — admits of
exceptions. One such exception is that a claimant in a takings
case may be excused for failing to seek recourse from the state
courts if all potential state remedies are "unavailable or
inadequate." Id. at 196-97. But this exception is narrowly
construed, and the claimant must carry the heavy burden of
showing unavailability or inadequacy. Gilbert v. City of
Cambridge, 932 F.2d 51, 65 (1st Cir. 1991). In this operose
endeavor, doubts are to be resolved in favor of exhaustion.
Thus, if it is unclear whether a particular state-law remedy
pertains, the claimant must attempt to exploit it — and his
federal takings claim will not be deemed ripe unless and until
he has pursued, and exhausted, that course. Id.
This exception lies at the heart of the plaintiff's
appeal. The dispositive question here is whether the plaintiff
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has made a sufficient showing that Puerto Rico law affords him
no remedy for the alleged taking. We turn next to that
question.
B.
Availability of the Inverse Condemnation Remedy
The remedy of inverse condemnation serves as a
"protection for [landowners] to force the State to comply with
the constitutional provisions guaranteeing that no person shall
be deprived of his property without due process of law and
without having received compensation." Culebras Enters. Corp.
v. Rivera Rios, 813 F.2d 506, 513 (1st Cir. 1987) (discussing
Puerto Rico law). Although the remedy is not memorialized in
Puerto Rico's Civil Code, the case law makes clear that inverse
condemnation is generally available under Puerto Rico law. See
Ochoa Realty Corp. v. Faria, 815 F.2d 812, 817 (1st Cir. 1987);
Culebras, 813 F.2d at 513-14; Aner Inv. Corp. v. Junta de
Planificacíon, 99 TSPR 65, 1999 WL 258578, at *2 (P.R. 1999);
Culebra Enters. Corp. v. Estado Libre Asociado, 143 P.R. Dec.
935, 1997 WL 870831, at *4 (P.R. 1997).
The plaintiff does not challenge the generic
availability of an inverse condemnation remedy under Puerto Rico
law, but, rather, contends that he is precluded from invoking
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that remedy. He makes three main points in support of his claim
that the inverse condemnation remedy is unavailable to him.
First, he suggests that the inverse condemnation remedy
does not extend to a de facto taking.1 The case law is sparse,
but the authorities tend toward the view that the remedy applies
to de facto takings. See Aner Inv. Corp., 99 TSPR 65, 1999 WL
258587, at *2 (explaining that Puerto Rico's inverse
condemnation remedy applies not only to physical occupation and
regulatory taking cases but also to other "real property rights'
takings" which have been effected "without the state filing
first the eminent domain action or having consigned the due
compensation"); Culebra Enters., 143 P.R. 935, 1997 WL 870831,
at *4 (observing that the inverse condemnation remedy applies
"when the state effects a 'de facto' taking," albeit linking
that term to actions "affecting substantially the property use,
physically or by regulatory means"). Since the plaintiff has
failed to adduce any case law that expressly precludes use of
the inverse condemnation remedy as a means of redressing a de
facto taking, the most that can be said is that it remains
1By "de facto taking," we mean a taking that occurs without
either a physical occupation, e.g., Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 426 (1982), or some formal
regulatory action, e.g., Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1014 (1992).
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unclear whether the inverse condemnation remedy applies here.
That uncertainty undercuts the plaintiff's position.
Culebras illustrates the point. There, the plaintiffs
made much the same argument, asserting that it was at best
unclear whether the Puerto Rico courts would entertain a claim
for inverse condemnation on the facts at hand. 813 F.2d at 514-
15. We rejected their "uncertainty" argument, explaining that:
Lack of clarity is not unusual, however,
when legal rights are still in process of
definition through case-by-case
adjudication. The Puerto Rico high court
has at least discussed, and has seemingly
signaled, the existence of an inverse
condemnation remedy. . . . We think [that
the appellants] must pursue that remedy
before they can maintain a federal damages
claim . . . .
Id. at 514-15.
So it is here. If the plaintiff were to pursue the
inverse condemnation remedy, the local courts would be presented
with an issue of first impression under Puerto Rico law. Until
he travels that road, the availability vel non of the inverse
condemnation remedy remains open to question. It is the
claimant's burden to prove that the potential state remedy is
unavailable, and uncertainty prevents him from carrying that
burden. Consequently, his section 1983 takings claims are
unripe. See Gilbert, 932 F.2d at 64-65 (holding that as long as
the State provides an arguably adequate process for securing
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compensation for a taking, federal intervention under section
1983 before the claimant has resorted to that procedure is
premature).
The plaintiff's second argument focuses on the fact
that the Property has never been zoned or otherwise officially
designated for public use. Relying upon the logic of negative
inference, the plaintiff posits that all the reported Puerto
Rico inverse condemnation cases have involved properties
earmarked for public use. Building on this foundation, he
reasons that the inverse condemnation remedy is unavailable
where, as here, the property is zoned for commercial use.
As presented, this contention never gets out of the
starting gate. The plaintiff presumes to prepare for the race
by embracing a number of opinions authored by the Supreme Court
of Puerto Rico, but he neglects to furnish us with translations
of those opinions. This oversight not only hampers our ability
to evaluate his claim but also contravenes our local rules.
Those rules state, in pertinent part, that: "Whenever an
opinion of the Supreme Court of Puerto Rico is cited in a brief
or oral argument which does not appear in the bound volumes in
English, an official, certified, or stipulated translation
thereof with three conformed copies shall be filed." 1st Cir.
R. 30(d).
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A violation of Rule 30(d) is serious business. We have
given fair warning that we will not permit parties to disregard
the rule with impunity. E.g., Rolon-Alvarado v. Municipality of
San Juan, 1 F.3d 74, 77 n.1 (1st Cir. 1993) (referencing
previous version of Rule 30(d)). This is as it should be:
attorneys who appear before us are expected to know and follow
the rules. Ramos-Baez v. Bossolo-Lopez, 240 F.3d 92, 94 (1st
Cir. 2001).
The short of it is that a party who flouts Local Rule
30(d) does so at his peril. Specifically, he runs the risk that
he will be deemed to have forfeited arguments if those arguments
are based upon untranslated opinions or, alternatively, if
perscrutation of untranslated opinions is integral to their
resolution.2 See, e.g., Stein v. Royal Bank, 239 F.3d 389, 393
n.5 (1st Cir. 2001); Gonzalez-Morales v. Hernandez-Arencibia,
221 F.3d 45, 50 n.4 (1st Cir. 2000).
Here, the plaintiff's failure to supply the required
translations has left us in the lurch. The absence of English
translations (save for two relevant case excerpts provided by
the defendants) has compounded the seeming uncertainty in the
2
Parties who fail to satisfy their obligations under Local
Rule 30(d) also run the risk of sanctions, as do their
attorneys. See Lama v. Borras, 16 F.3d 473, 478 n.6 (1st Cir.
1994) (referencing previous version of Rule 30(d)).
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relevant Puerto Rico case law. Under the circumstances, the
most appropriate course is to reject the plaintiff's "public
use" argument to the extent that it is based upon untranslated
opinions.
The upshot of our ruling is that the plaintiff is left
clinging to a single case (for which a translation is available)
in support of his contention that the inverse condemnation
remedy extends only to land that has been zoned or officially
designated for public use. That case, Heftler Int'l, Inc. v.
Planning Bd., 99 P.R.R. 454 (P.R. 1970), marked the first
occasion on which the Supreme Court of Puerto Rico discussed
inverse condemnation. For our purposes, the court's comments
are elliptical, and, in all events, they are dictum. See id. at
462-63 (disposing of the case based upon the plaintiff's failure
to exhaust administrative remedies); see also Culebras, 813 F.2d
at 513 (making this point). It is, then, transparently clear
that Heftler, unaided, cannot bear the weight that the plaintiff
piles upon it.
In a final effort to distinguish his case from the mine
run, the plaintiff alleges that the mortgagee has commenced
foreclosure proceedings — according to the plaintiff,
foreclosure is underway because his tenants have fled, leaving
him unable to pay the mortgage — and avers that, once he loses
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title, he also will lose the ability to pursue the inverse
condemnation remedy. This construct is fatally flawed.
The fact of the matter is that the plaintiff has not
yet lost title. As of the date of oral argument in this court,
foreclosure proceedings had been pending for some time, but had
yet to be consummated. Therefore, the inverse condemnation
remedy remains potentially available to the plaintiff.3
Moreover, a divestiture of title would not undermine the
plaintiff's section 1983 takings claim for damages incurred
while he owned the Property. See United States Olympic Comm. v.
Intelicense Corp., 737 F.2d 263, 268 (2d Cir. 1984) ("[T]he
owner of an interest in property at the time of [an] alleged
taking has standing to assert that a taking has occurred.")
(emphasis supplied); see also United States v. Dow, 357 U.S. 17,
21-22 (1958). Consequently, the threat of foreclosure does not
serve to ripen the plaintiff's federal claims.
That ends this aspect of the matter. A plaintiff's
failure to exhaust the inverse condemnation remedy renders
premature a section 1983 damages action predicated upon an
3We hasten to add that we have no reason to believe that the
Puerto Rico courts would limit the inverse condemnation remedy
to current owners. The plaintiff cites no apposite cases to
that effect, and the law elsewhere is to the contrary. E.g.,
Klopping v. City of Whittier, 500 P.2d 1345, 1360 (Cal. 1972)
(allowing claimant who lost property through foreclosure to
pursue inverse condemnation claim).
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alleged takings violation. Ochoa, 815 F.2d at 816-17; Culebras,
813 F.2d at 514-15.
C.
Due Process
There is one final point. In addition to his takings
claims, the plaintiff alleges that the defendants' conduct is
immediately actionable as a violation of the substantive
component of the Due Process Clause of the Fourteenth Amendment.
That allegation need not detain us.
Dressing a takings claim in the raiment of a due
process violation does not serve to evade the exhaustion
requirement. Here as we have said, the inverse condemnation
remedy represents an arguably available and adequate means of
obtaining compensation for the alleged taking. See supra Part
II(B). Thus, no substantive due process claim will lie until
that remedy is exhausted. Ochoa, 815 F.2d at 817 n.4; Culebras,
813 F.2d at 515-16.
III.
The Defendants' Cross-Appeal
We need not dwell upon the defendants' cross-appeal.
Although the district court passed upon, and denied, the
defendants' Rule 12(b)(6) motion, Déniz Márquez, 140 F. Supp. 2d
at 138-39, that decision was gratuitous. It would be equally
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gratuitous for us to reach the merits of the cross-appeal, and
we decline to do so.
When a court is confronted with motions to dismiss
under both Rules 12(b)(1) and 12(b)(6), it ordinarily ought to
decide the former before broaching the latter. See NE Erectors
Ass'n v. Sec'y of Labor, 62 F.3d 37, 39 (1st Cir. 1995); see
also Bell v. Hood, 327 U.S. 678, 682 (1946) ("Whether the
complaint states a cause of action on which relief could be
granted is a question of law [which] must be decided after and
not before the court has assumed jurisdiction over the
controversy."). After all, if the court lacks subject matter
jurisdiction, assessment of the merits becomes a matter of
purely academic interest. Accordingly, we regard the lower
court's Rule 12(b)(6) ruling as a nullity and thus dismiss the
defendants' cross-appeal.
IV.
Conclusion
We need go no further. The plaintiff's failure to seek
recompense through Puerto Rico's inverse condemnation remedy
renders both his takings and substantive due process claims
unripe for federal adjudication. Hence, we affirm the district
court's dismissal of the plaintiff's federal claims for lack of
subject matter jurisdiction. We likewise affirm the court's
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dismissal without prejudice of the plaintiff's supplemental
claims under local law. See 28 U.S.C. § 1367(c)(3); see also
Serapión v. Martínez, 119 F.3d 982, 993 (1st Cir. 1997) (noting
the district court's "substantial discretion" in regard to
relinquishing jurisdiction over supplemental claims after the
dismissal of the linchpin federal claims). Finally, we dismiss
the defendants' cross-appeal as non-justiciable.
Affirmed.
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