United States Court of Appeals
For the First Circuit
No. 04-2547
HENRY TORROMEO and MDR CORPORATION,
Plaintiffs, Appellants,
v.
TOWN OF FREMONT, NEW HAMPSHIRE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Lipez, and Howard, Circuit Judges.
Timothy S. Hollister with whom Patrick M. Fahey, Shipman &
Goodwin, LLP, Sumner F. Kalman, Thea S. Valvanis, and Duane J.
Desiderio were on brief, for appellants.
John J. Ryan with whom Casassa and Ryan, Eric Kane and Devine,
Millimet & Branch, PA were on brief, for appellee.
February 21, 2006
HOWARD, Circuit Judge. This appeal arises from a dispute
between Plaintiffs Henry Torromeo and MDR Corporation and Defendant
Town of Fremont, New Hampshire over the Town's delay in issuing
certain building permits for property owned by Plaintiffs.
Plaintiffs sued in federal court under 42 U.S.C. § 1983, claiming
that the Town's delay constituted both a violation of the Takings
Clause of the Fifth Amendment and a breach of the due process and
equal protection guarantees of the Fourteenth Amendment.1 The
district court granted the Town's motion to dismiss under Fed. R.
Civ. P. 12 (b)(6) because the complaint was barred by the Rooker-
Feldman doctrine and res judicata. We affirm.
The case has a somewhat involved factual and procedural
history. In the late 1990s, Plaintiffs received approval from the
Fremont Planning Board for planned housing subdivisions.
Subsequently, however, the Town enacted a growth control ordinance
empowering the Board to limit the number of building permits that
it would issue for new residential housing. The Board thereafter
implemented such a limitation, which resulted in Plaintiffs being
denied the needed permits.
Displeased, Plaintiffs sued in New Hampshire Superior
Court, challenging the validity of the growth control ordinance and
1
The Takings Clause of the Fifth Amendment applies to the
states through the Fourteenth Amendment. See Dolan v. Tigard, 512
U.S. 374, 383-84 (1994).
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seeking an injunction compelling the Town to issue the building
permits. The court granted the injunction because the Town had
failed to satisfy a statutory prerequisite before adopting the
ordinance. After the New Hampshire Supreme Court affirmed that
ruling, the Town issued the permits.
Plaintiffs then filed additional separate suits in the
New Hampshire Superior Court, seeking compensation for the
temporary taking of their property during the period in which they
were wrongfully denied the permits. Their complaints referenced
both the Takings Clause of the Fifth Amendment to the United States
Constitution and the analogous provision of the New Hampshire
Constitution, Part 1, Article 12. In addition, the complaints
cited United States Supreme Court authority interpreting the
federal Takings Clause. The cases were consolidated.
The superior court ruled that Plaintiffs were entitled to
compensation to offset the losses from the wrongly-denied permits.
After a trial on damages, the court awarded MDR $71,600 and
Torromeo $23,800. The Town appealed to the New Hampshire Supreme
Court which reversed. See Torromeo v. Fremont, 813 A.2d 389 (N.H.
2002). It reasoned that compensation is due for a temporary taking
only where the losses are caused by a municipality's enactment of
an unconstitutional ordinance. Id. at 392. Because the growth
control ordinance had not been held unconstitutional, but merely
invalid due to the Town's failure to follow statutory enactment
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procedures, no compensation was due. Id. Plaintiffs petitioned
for a writ of certiorari in the United States Supreme Court,
claiming that the New Hampshire Supreme Court's opinion conflicted
with the Fifth Amendment's Takings Clause. The petition was
denied. See 539 U.S. 923 (2003).
After the state-court judgment became final, Plaintiffs
filed the present action. Their complaint claimed that the Town
failure to compensate them justly for a taking violated the Fifth
Amendment. They also alleged a violation of their substantive due
process rights on the ground that the Town's denial of the building
permits was "arbitrary and capricious," and a violation of their
equal protection rights because the Town treated them differently
from "other similarly situated property owners."
The district court dismissed the complaint on two
grounds. It first concluded that the complaint had to be
dismissed under the Rooker-Feldman doctrine because the Plaintiffs'
"federal lawsuit [was] little more than a thinly disguised effort
to reverse the New Hampshire Supreme Court's decision rejecting
their claimed entitlement, under the Fifth Amendment, to the
damages for the temporary 'taking' of their real property."
Torromeo v. Fremont, No. 03-481, 2004 WL 2300481, at *4 (D.N.H.
2004). The court alternatively held the complaint was res judicata
because the Fifth Amendment claim was in fact adjudicated in the
state-court proceeding, and the due process and equal protection
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claims could have been adjudicated in that proceeding. See id. at
*6-7.
We review the district court's dismissal order de novo.
See Roth v. United States, 952 F.2d 611, 613 (1st Cir. 1991). We
will affirm only if the well-pleaded facts fail to establish the
Town's liability under some actionable legal theory. See Rodi v.
S. New England Sch. of Law, 389 F.3d 5, 13 (1st Cir. 2004).
After the district court dismissed Plaintiffs' complaint,
the Supreme Court decided Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280 (2005), which substantially limited the reach
of the Rooker-Feldman doctrine. See Federación de Maestros de P.R.
v. Junta de Relaciones del Trabajo de P.R., 410 F.3d 17, 23-24 (1st
Cir. 2005) (describing the limitations placed on Rooker-Feldman by
Exxon Mobil). Because we agree that Plaintiffs' Fifth Amendment
claim is res judicata, we bypass the Rooker-Feldman issue and
proceed to the district court's alternative ruling.
Under federal law, "a federal court must give to a state-
court judgment the same preclusive effect as would be given that
judgment under the law of the state in which the judgment was
entered." Migra v. Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75,
81 (1984). This principle applies to a § 1983 action brought in
federal court following a state-court judgment. Id. at 83-85.
Thus, the effect of the New Hampshire court's final judgment on
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Plaintiffs' federal action is determined by applying New
Hampshire's res judicata law.
In New Hampshire, "the essence of the doctrine of res
judicata is that a final judgment by a court of competent
jurisdiction is conclusive upon the parties in a subsequent
litigation involving the same cause of action." In re Juvenile,
888 A.2d 422, 425 (N.H. 2005). The doctrine precludes litigation
in a later case of matters actually litigated, and matters that
could have been litigated, in the earlier action . See Brzica v.
Trustees of Dartmouth Coll., 791 A.2d 990, 999 (N.H. 2002). For
res judicata to apply, three elements must be satisfied: (1) the
parties must be the same or in privity with one another; (2) the
same cause of action must be before the court in both instances;
and (3) a final judgment on the merits must have been rendered in
the first action. See id. "Cause of action" is broadly defined to
mean "the right to recover, regardless of the theory of recovery."
McNair v. McNair, 856 A.2d 5, 16 (N.H. 2004).
At first blush, this case appears to fall squarely within
New Hampshire's res judicata rules. The parties to the federal
action and the state actions were identical. The same cause of
action was before the federal court as was before the state court
because both suits sought compensation for harm caused by the
Town's wrongful denial of the permits. And the New Hampshire court
entered final judgments on the merits of Plaintiffs' state-court
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actions.
There is, however, a complication. In 1985, the United
States Supreme Court held that a takings claim under the Fifth
Amendment is not ripe until the plaintiff has sought compensation
through available state procedures. See Williamson County Reg'l
Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-95 (1985); see
also Deniz v. Guaynabo, 285 F.3d 142, 146 (1st Cir. 2002). In
1989, building on Williamson County, the New Hampshire Supreme
Court held that federal takings and related federal due-process
claims raised in a state-court proceeding, alongside state-law
claims for compensation, had to be dismissed without prejudice
because they were not ripe until the state-law claims were
resolved. See Blue Jay Realty Trust v. Franklin, 567 A.2d 188,
190-91 (N.H. 1989).2
Invoking Blue Jay Realty, Plaintiffs argue that res
judicata does not bar their federal-court action because (1) their
federal claims were not litigated in the state-court action and (2)
they were not required to raise these claims in the state-court
action because they were not ripe. See In re Iannochino, 242 F.3d
2
Last term, the Supreme Court decided San Remo Hotel, L.P. v.
San Francisco, -- U.S. --, 125 S.Ct. 2491 (2005), which calls Blue
Jay Realty into substantial doubt. The San Remo Court held that
Williamson County "does not preclude state courts from hearing
simultaneously a plaintiff's request for compensation under state
law and the claim that, in the alternative, the denial of
compensation would violate the Fifth Amendment of the Federal
Constitution." Id. at 2506.
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36, 43 n.4 (1st Cir. 2001) (res judicata does not apply where a
claim could not have been raised in the first litigation); see also
Restatement (Second) of Judgments § 26(1)(c) (1982) (res judicata
does not bar a claim for relief in a subsequent action where the
claim was not raised in the initial action "because of . . .
restrictions on [the court's] authority to entertain multiple
theories . . . in a single action").
But Plaintiffs' argument fails because the federal
takings claim was actually litigated to a final judgment on the
merits in the state court. As noted above, Plaintiffs' state-court
complaints identified the Takings Clause of the Fifth Amendment to
the United States Constitution as a basis for the cause of action.
The complaints also cited First English Evangelical Lutheran Church
v. Los Angeles County, 482 U.S. 304 (1987), a Supreme Court case
interpreting the Takings Clause. In addition, after losing in the
New Hampshire courts, Plaintiffs filed a writ of certiorari with
the United States Supreme Court claiming that the New Hampshire
decision violated their rights under the federal Takings Clause.
These filings demonstrate that a federal takings claim was actually
litigated in the state-court action. See C. Wright, A. Miller & E.
Cooper, Federal Practice & Procedure § 4406, at 143 (2d ed. 2002)
(stating that formal pleadings and other filings are relevant to
determining the claims that were advanced in a prior suit).
Indeed, Plaintiffs admitted as much in their federal complaint,
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which states that the state-court proceedings were actions "to
obtain just compensation for a taking under the U.S. and New
Hampshire Constitutions."3 The district court thus correctly
concluded that res judicata barred Plaintiffs' Fifth Amendment
claim.4 See Peduto v. N. Wildwood, 878 F.2d 725, 728-29 (3d Cir.
1989) (affirming res judicata dismissal of a Takings Clause claim
filed in federal court where the claim was litigated to a final
judgment on the merits in a prior state-court proceeding).
We turn now to the Plaintiff's substantive due process
and equal protection claims. Whether res judicata bars these
3
Plaintiffs point to the fact that the New Hampshire Supreme
Court cited only cases interpreting the New Hampshire Constitution
as evidence that the litigation did not involve a federal takings
claim. See Torromeo, 813 A.2d at 392. But the New Hampshire
Supreme Court has stated that where a plaintiff raises state and
federal takings claims in the same action, the court need not
consider the claims independently because the Fifth Amendment's
Takings Clause is no more protective than its state analogue. See
Sanderson v. Candia, 787 A.2d 167, 169 (N.H. 2001). Therefore, the
court's decision that the Town did not violate the takings
provision of the state constitution means, a fortiori, that, in its
view, there was no unlawful taking under federal law.
4
Plaintiffs also assert that, even if the elements of res
judicata are satisfied, we should permit the Fifth Amendment claim
to proceed because New Hampshire law imbues courts with discretion
to decline to apply res judicata. We have not found New Hampshire
authority to this effect. The most that can be said is that New
Hampshire applies res judicata on a "case-by-case basis." Cook v.
Sullivan, 829 A.2d 1059, 1063 (N.H. 2003). But even assuming that
New Hampshire law affords courts some discretion in applying res
judicata, Plaintiffs have failed to explain why their case is
exceptional. See Sondel v. Northwest Airlines, Inc., 56 F.3d 934,
941 (8th Cir. 1995) (doubting that res judicata was a discretionary
doctrine under Minnesota law, but concluding that, even if
discretion existed, res judicata barred a claim where the plaintiff
failed to show that applying the doctrine worked an "injustice").
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claims presents a somewhat closer question. These additional
federal-law theories were not litigated in the state-court action,
and there is a plausible argument that they are not res judicata
because they could not have been litigated in that action under
Blue Jay Realty. See Restatement of Judgments (Second), supra. On
the other hand because, as just explained, Plaintiffs ignored the
Blue Jay Realty rule by litigating their takings claim in the
state-court action, one could argue that the due process and equal
protection claims should have been raised along with the takings
claim. In any event, we need not decide how New Hampshire's res
judicata law would apply to this unique situation because the due
process and equal protection claims fail as a matter of law. See
Carroll v. Xerox Corp., 294 F.3d 231, 241 (1st Cir. 2002) (court of
appeals may affirm the dismissal of complaint on any ground
supported by the record).
We begin with the substantive due process claim. We
recently explained the limits on substantive due process claims
arising from land-use disputes:
This Court has repeatedly held that
rejections of development projects and
refusals to issue building permits do not
ordinarily implicate substantive due process.
Even where state officials have allegedly
violated state law or administrative
procedures, such violations do not ordinarily
rise to the level of a constitutional
deprivation. The doctrine of substantive due
process does not protect individuals from
all governmental actions that infringe liberty
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or injure property in violation of some law.
Rather, substantive due process prevents
governmental power from being used for
purposes of oppression, or abuse of government
power that shocks the conscience, or action
that is legally irrational in that it is not
sufficiently keyed to any legitimate state
interest. Although we have the left door
slightly ajar for federal relief in truly
horrendous situations, the threshold for
establishing the requisite abuse of government
power is a high one indeed.
SFW Arecibo Ltd. v. Rodríguez, 415 F.3d 135, 141 (1st Cir. 2005)
(internal citations omitted).
In Arecibo, real estate developers sued after a state
planning board incorrectly determined that their building permit
had expired. Id. at 137. When suit was filed, the state court had
already determined that the permit had been wrongly revoked. Id.
at 138. We affirmed the dismissal of the substantive due process
claim because the complaint stated "[i]n its strongest form . . .
that the [p]lanning board made an erroneous decision in violation
of state law," which is insufficient to establish a substantive due
process violation. Id. at 141. So too here. Plaintiffs allege
that the Town violated substantive due process by enacting the
growth control ordinance without following the procedures mandated
by New Hampshire law. But, as in Arecibo, the claim is only that
the Town's violation of state law caused Plaintiffs harm. This is
not enough. See id. at 141; see also Licari v. Ferruzzi, 22 F.3d
344, 349 (1st Cir. 1994)(affirming dismissal of substantive due
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process claim based on allegations that a town planning board
improperly revoked the developer's building permits and delayed
processing and approval of an application for an amended permit);
PFZ Properties, Inc. v. Rodríguez, 928 F.2d 28, 32 (1st Cir. 1991)
(affirming dismissal of substantive due process claim were
developer alleged that government agency failed to comply with
agency regulations or practices in the review and approval process
of construction plans).
The equal protection claim fares no better. Plaintiffs
contend that they stated a viable equal protection claim by
pleading that, in denying the permits, the Town treated them
differently from other "similarly situated property owners." But
only in "extreme circumstances" will a land-use dispute give rise
to an equal protection claim. Arecibo, 415 F.3d at 142. It is
insufficient for a plaintiff merely to allege that the permitting
entity violated state law in denying a permit request. Id.
"Absent facts reflecting more fundamental discrimination, [a
plaintiff] ha[s] not stated a claim under the Equal Protection
Clause of the Fourteenth Amendment." Id. Yet, that is all that is
alleged here.
Affirmed.
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