Summary
holding that the proper procedure is to remand the entire case to state court where removal was based on an unripe federal takings claim
Summary of this case from Dallas Independent School Dist. v. Calvary Hill CemeteryOpinion
No. 3:02-CV-1164-D
September 13, 2002
MEMORANDUM OPINION AND ORDER
The instant motion to remand presents the question whether plaintiff must exhaust state-law inverse condemnation relief before proceeding with a federal-law takings claim in this court. In the usual case the defendant-sovereign argues that the federal claim is not ripe and that the plaintiff must exhaust her state-court remedies before litigating her federal takings claim. Here, by contrast, the municipal defendant argues that plaintiff7s federal claim is ripe and that the case was removable. The court holds that plaintiff must pursue an inverse condemnation action in state court and be deprived of just compensation before she may bring a federal-law takings claim in this court. Because her federal takings claim is not yet ripe, and this court's removal jurisdiction is based solely on the presence of a federal question, the court grants the motion to remand.
See, e.g., Samaad v. City of Dallas, 940 F.2d 925, 933 (5th Cir. 1991) ("The municipal defendants argue that the takings claims . . . are not ripe because plaintiffs failed to seek just compensation in state court." (footnote omitted)).
I
Plaintiff Pat Milliken ("Milliken") sued defendants Town of Addison ("Addison"), and The Preston Group Designers and Builders, William Long, Preston Homes, Inc., and Jon B. Coleman (collectively, the "Developers") in state court alleging that they had negligently damaged her property; unlawfully diverted surface water flow onto her property, in violation of the Tex. Water Code Ann. § 11.086 (Vernon 2000); trespassed and damaged her property; and took, damaged, or destroyed her property for or application to public use without just compensation, in violation of Tex. Const. Ann. art. I, § 17 and the Fifth and Fourteenth Amendments of the United States Constitution. The Developers began constructing homes on two lots adjacent to her Addison residence. To develop the properties, they removed natural vegetation, graded the lots, substantially elevated them by hauling in dirt, installed cement decks and driveways, and modified the parcels' natural water drainage. Milliken alleges that this development reduced the permeability of the land and increased the volume and velocity of surface water runoff.
When the Developers began bringing in fill dirt, Milliken raised questions about the elevation of the lots and the potential damage to her property. Addison and the Developers told her the development would not adversely affect her property. Despite these assurances, her home, land, and swimming pool were later flooded and damaged as a result of the development activities.
Subsequently, Addison, in collaboration with the Developers, encroached on Milliken's property to install a drainage inlet. Despite promises by Addison's Director of Public Works ("Director") to install the inlet within the existing five foot drainage easement on her property, Addison, in collaboration with the Developers, installed a drainage system that intruded on her property ( i.e., exceeded Addison's easement), damaged and/or removed valuable trees, shrubbery, and ground cover, and altered the terrain of her property. The inlet has not completely alleviated the unlawful diversion of water onto her property, and rain continues to result in flooding. The alterations effected by Addison and the Developers have now permanently changed the drainage patterns of her land and have created pooling and erosion. Continued development and construction of homes on the lots adjacent to her property will further reduce permeability of the land and increase the volume and velocity of surface water runoff, causing additional flooding and erosion to her property.
Milliken moves to remand contending that her federal takings claim is not yet ripe, thereby depriving this court of subject matter jurisdiction. Addison opposes the motion to remand. Alternatively, it moves for abstention and stay of proceedings related to plaintiff's claims arising under the United States and to remand the remainder of the case to state court. Addison contends in its alternative argument that the proper procedure is to sever Milliken's federal takings claim from the remaining claims, remand the state claims, abstain and stay this case as it relates to the federal claim until the state court has resolved the state court issues, and adjudicate Milliken's federal takings claims once they become ripe.
Alternatively, she contends that Addison did not obtain from the Developers written consent to removal. The court disagrees. Milliken brought suit in state court on May 24, 2002. Addison removed the case on June 5, 2002. The Developers timely filed their joint written consent to removal on June 21, 2002.
Addison also includes in its response a purported notice of Fed.R.Civ.P. 11 motion, which it maintains constitutes the 21-day notice required by Rule 11(c)(1)(A) of intent to seek Rule 11 sanctions. Because Addison is not moving for Rule 11 sanctions as part of the instant motion, see infra note 7, the court need not address the merits of such a motion or whether this form of notice complies with Rule 11(c)(1)(A). It is notable, however, that Rule 11(c)(1)(A) provides that "[a] motion for sanctions under this rule shall be made separately from other motions or requests . . .[,] shall be served as provided in Rule 5, but shall not be filed with or presented to the court." (emphasis added). The Rule therefore contemplates that notice, and a copy of the proposed sanctions motion, will be given to the opposing party privately, not in a pleading filed with the court.
II
A matter must be ripe for a federal court to exercise jurisdiction under Article III of the United States Constitution. See United Transp. Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000). "Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for judicial review." Id. Although a plaintiff "must allege in his pleading the facts essential to show jurisdiction," McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936), "[t]he party invoking the removal jurisdiction of federal courts bears the burden of establishing federal jurisdiction over the state court suit," Frank v. Bear Stearns Co., 128 F.3d 919, 921-922 (5th Cir. 1997).
III
There are two requirements that must be met before Milliken's federal takings cause of action is ripe: her property must have been "taken," and she have been denied just compensation. See Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186 (1985); Samaad v. City of Dallas, 940 F.2d 925, 933 (5th Cir. 1991). The parties do not appear to quarrel at the remand stage over whether Milliken has asserted a taking. "Where there has been a physical invasion, the taking occurs at once, and nothing the city can do or say after that point will change that fact." Hall v. City of Santa Barbara, 833 F.2d 1270, 1281 n. 28 (9th Cir. 1986), overruled on other grounds by Yee v. City of Escondido, 503 U.S. 519 (1992). The alleged flooding of surface water onto Milliken's land, the extension of the drainage pipe beyond Addison's easement, and the damage to her house, land, swimming pool, trees, shrubbery, and ground cover all constitute a physical invasion of her property. As a result, a taking has been alleged, satisfying the first prong of the Williamson County ripeness test.
Defendants are free, of course, to argue in state court that Milliken cannot establish a taking.
IV
The second issue is whether Milliken has been denied just compensation. Milliken argues that she must first unsuccessfully pursue compensation in Texas state court via inverse condemnation action, because until she seeks but is denied such relief, no constitutional violation has occurred. Addison responds that a state court suit is a remedy, not a procedure, and that it need not be pursued before Milliken may file her federal takings claim.
A
"[B]ecause the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied. The nature of the constitutional right therefore requires that a property owner utilize procedures for obtaining compensation before bringing a § 1983 action." Williamson County, 473 U.S. at 194 n. 13. "[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." Id. at 195. "A takings claim is not ripe until the claimant has unsuccessfully sought compensation from the state." Samaad, 940 F.2d at 933 (citing Williamson County, 473 U.S. at 194). "Because a violation of the Takings Clause does not occur until just compensation has been denied, Appellants must use available state procedures to seek such compensation before they may bring a § 1983 takings claim to federal court." John Corp. v. City of Houston, 214 F.3d 573, 581 (5th Cir. 2000) (citations and footnote omitted).
Under this interpretation of Williamson County, the Fifth Circuit has held unripe takings claims complaining of the destruction of apartment buildings, John Corp., 214 F.3d at 580-81, condemnation of real property, Rolf v. City of San Antonio, 77 F.3d 823, 826-27 (5th Cir. 1996), and nuisance caused by automobile racing noise, Samaad, 940 F.2d at 927, 936, where the plaintiffs had not sought just compensation under Texas law. It has not distinguished, as would Addison, between state remedies and state procedures.
B
Addison argues that Milliken need not pursue a lawsuit in state court because such a suit is remedial and therefore not a procedure that must be complied with before filing a federal takings claim. It posits that no adequate procedure exists whereby Milliken may seek just compensation. See D. Resp. at 4 ("Addison contends that remand is inappropriate for the reason that the federal taking claim is ripe for adjudication because there is no adequate procedure for obtaining compensation from the state."); id. at 4-5 (same). Addison cites Judge Sanders' decision in L.J. J. Corp. v. City of Dallas, 1998 WL 320257 (N.D. Tex. 1998) (Sanders, J.), for the conclusion that an inverse condemnation lawsuit is a remedy, not a procedure. The court disagrees with Addison's position.
As the court notes supra and at note 1, in its experience, municipal defendants routinely take a contrary position. Addison may in fact stand alone in its decision to concede the absence of any remedy and its apparent desire to litigate in federal court before state-court remedies have been pursued unsuccessfully.
As noted, this circuit's precedents make clear that just compensation must be pursued unsuccessfully before a party can bring a federal takings claim. See John Corp., 214 F.3d at 581; Rolf, 77 F.3d at 826-27; Samaad, 940 F.2d at 933. Samaad specifically contemplates that relief must be sought via a state lawsuit for nuisance. See Samaad, 940 F.2d at 936. Under Texas law,
See also Brewster v. City of Dallas, 1998 WL 713243, at *4 (N.D. Tex. 1998) (Fitzwater, J.) (noting that inverse condemnation should be considered adequate remedy even in cases that do not involve real property).
[i]f the government appropriates property without paying adequate compensation, the owner may recover the resulting damages in an inverse condemnation suit. An inverse condemnation may occur when the government physically appropriates or invades the property, or when it unreasonably interferes with the landowner's right to use and enjoy the property, such as by restricting access or denying a permit for development.Westgate, Ltd v. State, 843 S.W.2d 448, 452 (Tex. 1992) (citations omitted). The court discerns no material distinction between a suit to recover damages for nuisance and one for damages arising from an inverse condemnation. As in Samaad, such relief must be pursued and refused before a plaintiff has a ripe claim for denial of just compensation.
Addison also argues that remanding Milliken's suit to state court will lead to inequitable results because Milliken will have two opportunities to litigate the claim. Addison contends that it should have the right to expect that a subsequent federal claim would be barred by res judicata or issue preclusion, and it maintains that decisions in this area of the law have not adequately considered this question. These assertions are foreclosed by the effect of binding circuit precedent that holds that federal takings claims are not ripe until state-law remedies are pursued, and they therefore provide no basis to deny Milliken's remand motion.
V
Addison maintains in the alternative that the court should sever, abstain from, and stay the proceedings regarding Milliken's federal takings claim and remand only the balance of the suit to state court. The court disagrees.
First, the court lacks jurisdiction over Milliken's unripe federal takings claim. Second, in John Corp. the Fifth Circuit implicitly approved the procedure outlined in Geutersloh v. State, 930 S.W.2d 284, 289-90 (Tex.App. 1996, writ denied). John Corp., 214 F.3d at 581 n. 13 ("In bringing their claim for compensation to the state court, Appellants may be able to avail themselves of the steps outlined in [ Geutersloh] and reserve their right to have their takings claim litigated in federal court."). Under Geutersloh, which is derived from the principles and holdings of England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964), Jennings v. Caddo Parish School Board, 531 F.2d 1331 (5th Cir. 1976), and Fields v. Sarasota Manatee Airport Authority, 953 F.2d 1299 (11th Cir. 1992), a plaintiff who is involuntarily in state court "because Williamson County ripeness requirements effectively prevent a litigant from first filing in a federal court," Geutersloh, 930 S.W.2d at 289, is permitted to inform the state court that she intends to reserve her federal-law claim and return to federal court, without suffering the adverse effects of res judicata, if the claim is denied, id. at 289-90. Accordingly, the court disagrees with Addison that the proper procedure calls for this case to be remanded in part and for Milliken's federal takings claim to be abated. Instead, the suit should be remanded in its entirety, and Milliken should exercise her option under Geutersloh to reserve her federal takings claim for later litigation in federal court, if necessary.
VI
Milliken seeks attorney's fees and costs under 28 U.S.C. § 1447 (c). The court denies this aspect of her motion. She included a federal question cause of action in her state court petition. She did not affirmatively plead that her federal takings claim was not yet ripe. Addison and the other defendants were under no obligation to sit on their rights and potentially forgo removal based on nothing more than supposition that she would later challenge removability on the basis that her federal claim was unripe. This case may yet return to this federal forum after Milliken properly exhausts her state remedies. The court determines in its discretion that the parties should bear their own attorney's fees and costs associated with removal.
* * *
Accordingly, the court concludes that it lacks subject matter jurisdiction and, pursuant to § 1447(c), remands this case to the 116th Judicial District Court, Dallas County, Texas. The clerk shall effect the remand in accordance with the usual procedure. Addison's motion for abstention and stay of proceedings related to plaintiff's claims arising under the United States and to remand the remainder of the case to state court is denied.
After the court prepared this memorandum opinion and order, but before it was filed, Addison filed on September 12, 2002 a motion for Rule 11 sanctions. Despite the fact that this case is being remanded today, the court retains jurisdiction over the Rule 11 motion, see Willy v. Coastal Corp., 855 F.2d 1160, 1172 (5th Cir. 1988), and will decide it in due course unless Addison withdraws the motion after reviewing today's decision.
SO ORDERED.