553 Broad Street, LLC v. Meriden
Filing
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ORDER granting 16 Motion to Remand to State Court and denying plaintiff's request for attorneys' fees. Signed by Judge Victor A. Bolden on 3/30/2015. (Shin, D.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
553 BROAD STREET LLC,
Plaintiff,
v.
CITY OF MERIDEN,
Defendant.
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Case No. 3:14-CV-00896 (VAB)
RULING ON MOTION TO REMAND
Plaintiff, 553 Broad Street LLC, moves to remand this case to state court under 28 U.S.C.
§ 1447(c), arguing that the case is not ripe for federal court adjudication and thus this Court lacks
subject matter jurisdiction. In addition, under § 1447(c), plaintiff seeks attorney’s fees and costs
in connection with the removal of this action. For the following reasons, plaintiff’s motion is
granted in part and denied in part.
I.
BACKGROUND
Plaintiff filed this action in Connecticut Superior Court, Judicial District of New Haven,
on May 20, 2014. Two days later, plaintiff served defendant with a writ, summons, and
complaint. On June 19, 2014, defendant removed the action to this Court by filing a Notice of
Removal, asserting that this Court has jurisdiction over the action based on a federal question,
specifically “an unlawful taking of real property in violation of the United States Constitution.”
Notice of Removal [Doc. No. 1] ¶ 2. Plaintiff filed the present motion to remand on July 24,
2014, to which defendant timely objected.
Plaintiff is the owner of a parcel of land located within the defendant municipality.
Plaintiff has alleged that, about a century ago, defendant entered onto the land and constructed a
drainage structure as part of an effort to bury and re-route Jordan Brook. Complaint ¶¶ 5, 8.
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Plaintiff also has alleged that the drainage structures have failed at numerous locations, including
on plaintiff’s land, but defendant has not remediated, repaired, replaced, or otherwise fixed the
drainage structure on plaintiff’s land, and that the failure of the drainage structure has
compromised the use of the property. Complaint ¶¶ 9-14. Defendant relies for removal of the
action on plaintiff’s “Inverse Condemnation” claim—one of eight claims alleged—which states
in part that defendant’s actions in entering the land and installing the drainage structure
constitutes a taking, and that defendant’s failure to provide compensation for the taking is a
violation of the United States Constitution. Complaint ¶¶ 15-17.
II.
DISCUSSION
A.
Remand
It is well-established that, “out of respect for the limited jurisdiction of the federal courts
and the rights of states,” federal courts must construe strictly statutory procedures for removal,
resolving any doubts against removability. In re Methyl Tertiary Butyl Ether (“MTBE”)
Products Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007). After a case is removed from a state
court, “[i]f at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c). Where such jurisdiction is
lacking, this Court “must remand a case to state court.” Vera v. Saks & Co., 335 F.3d 109, 113
(2d Cir. 2003). When a party challenges removal, “the party asserting jurisdiction bears the
burden of proving that the case is properly in federal court” and “must support [challenged]
jurisdictional facts with ‘competent proof’ and ‘justify [its] allegations by a preponderance of
evidence.’” United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark
Properties Meriden Square, Inc., 30 F.3d 298, 301, 305 (2d Cir. 1994) (quoting McNutt v. Gen.
Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936)).
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The federal takings claim alleged in the complaint provides the only basis for the Court’s
subject matter jurisdiction over this action. If this claim is not ripe, then the Court loses its only
basis for jurisdiction and the case must be remanded back to Connecticut Superior Court.
“Ripeness is a constitutional prerequisite to exercise of jurisdiction by federal courts.”
Nutritional Health Alliance v. Shalala, 144 F.3d 220, 225 (2d Cir. 1998); see also Clark v. Town
of E. Hampton, 757 F. Supp. 2d 121, 123 (E.D.N.Y. 2010) (“Ripeness is an issue that goes to the
issue of jurisdiction, and in its absence, there is no jurisdiction.”).
The Supreme Court established a two-prong test to determine the ripeness of a takings
claim. Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985). “For the claim to be ripe, the plaintiff must show that (1) the state
regulatory entity has rendered a ‘final decision’ on the matter, and (2) the plaintiff has sought
just compensation by means of an available state procedure.” Sherman v. Town of Chester, 752
F.3d 554, 561 (2d Cir. 2014) (internal quotation marks omitted). In this case, the first prong has
not been satisfied, and therefore, the case must be remanded for lack of subject matter
jurisdiction.
Defendant argues that Williamson County does not apply because the Supreme Court’s
ripeness test only applies to regulatory takings and the type of taking here was physical in nature.
The Second Circuit, however, has explicitly rejected defendant’s theory, holding that
“Williamson drew no distinction between physical and regulatory takings.” Villager Pond, Inc.
v. Town of Darien, 56 F.3d 375, 380 (2d Cir. 1995); see also Kurtz v. Verizon New York, Inc.,
758 F.3d 506, 513 (2d Cir. 2014) (“Williamson County applies to regulatory and physical takings
alike”), cert. denied, 135 S. Ct. 1156 (2015). Regardless of whether the alleged taking in this
case is a regulatory taking or “the classic taking in which government directly appropriates
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private property or ousts the owner from his domain,” Lingle, 544 U.S. at 539 (2005), the
Williamson County test must be satisfied.
The first prong of Williamson County requires that a federal court only hear “a claim that
the application of government regulations effects a taking of a property interest” after “the
government entity charged with implementing the regulations has reached a final decision
regarding the application of the regulations to the property at issue.” Williamson Cnty., 473 U.S.
at 186. The Second Circuit has explained that “[f]our considerations . . . undergird prong-one
ripeness.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir. 2005).
First, . . . requiring a claimant to obtain a final decision from a local land use
authority aids in the development of a full record. Second, and relatedly, only if a
property owner has exhausted [all administrative] process will a court know
precisely how a regulation will be applied to a particular parcel. Third, [the
available appeals or other remedies] might provide the relief the property owner
seeks without requiring judicial entanglement in constitutional disputes. . . .
Finally, since Williamson County, courts have recognized that federalism
principles also buttress the finality requirement. Requiring a property owner to
obtain a final, definitive position from [local] authorities evinces the judiciary’s
appreciation that land use disputes are uniquely matters of local concern more
aptly suited for local resolution.
Id. at 348-49 (internal citations omitted). “[T]he finality requirement is not mechanically
applied,” and involves “a fact-sensitive inquiry.” Id. at 349, 350. “‘[T]o prove that a final
decision was indeed reached, the facts of the case must be clear, complete, and unambiguous.’”
Id. at 350 (quoting Hoehne v. Cnty. of San Benito, 870 F.2d 529, 533 (9th Cir. 1989)).
Plaintiff asserts that it has made numerous requests to the City of Meriden, asking it to
address in some manner the alleged taking at issue, as it has done for similarly-situated property
owners, and that the City of Meriden has not yet delivered the answer it had allegedly told
plaintiff it would provide. Defendant thus far has not disputed that it received these requests or
that it promised plaintiff a decision. Instead, it seeks to argue that the installation of the
structures a century ago constituted its relevant final decision, while at the same time denying
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plaintiff’s allegation it ever did so by its categorical denial of all allegations in the complaint.
See Doc. No. 11, at 3. Thus, information supporting a determination of Williamson County
finality is far from “clear, complete, and unambiguous.”
Before concluding its analysis of the finality prong, this Court must examine the impact
of the recent Second Circuit decision that “the pleading of a physical taking sufficiently shows
finality” and satisfies the first prong of Williamson County. Kurtz, 758 F.3d at 513. As
previously noted, defendant has argued that plaintiff has alleged a physical takings claim.
However, plaintiff counters that it has not alleged a physical takings claim. Indeed, plaintiff
titled the takings claim section of the complaint, “COUNT FOUR (Inverse Condemnation).”
Courts in this jurisdiction have noted that a “regulatory taking [is] also known as inverse
condemnation[.]” Miller v. Town of Westport, 268 Conn. 207, 210 n.2 (2004) (quoting
Southview Associates, Ltd. v. Bongartz, 980 F.2d 84, 93 n. 3 (2d Cir.1992), cert. denied, 507
U.S. 987 (1993)).
As discussed supra, any ambiguities regarding jurisdiction are to be resolved against
removal and the burden is on the party asserting jurisdiction to establish challenged jurisdictional
facts with competent proof and by a preponderance of the evidence. See also In re World Trade
Ctr. Disaster Site Litig., 270 F. Supp. 2d 357, 366 (S.D.N.Y. 2003) (“uncertainties are to be
resolved in favor of remand, in order to promote the goals of federalism, the limited jurisdiction
of federal courts, and the right of plaintiffs to choose the forum in which to bring suit”) (citing
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09 (1941)); Doe v. Allied-Signal, Inc.,
985 F.2d 908, 911 (7th Cir. 1993) (“Courts should interpret the removal statute narrowly and
presume that the plaintiff may choose his or her forum.”). Furthermore, for purposes of removal,
“plaintiff’s complaint controls.” City of New York v. New York Jets Football Club, Inc., 429 F.
Supp. 987, 990 n.4 (S.D.N.Y. 1977); see also Herrmann v. Braniff Airways, Inc., 308 F. Supp.
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1094, 1097-98 (S.D.N.Y. 1969) (“a determination [relevant to removal] is, of course, controlled
by the plaintiff’s pleading”) (citing American Fire & Cas. Co. v. Finn, 341 U.S. 6, 14 (1951);
Pullman Co. v. Jenkins, 305 U.S. 534, 538 (1939)). In light of plaintiff’s complaint and the wellestablished presumption against removal, the Court cannot conclude at this time that this alleged
taking is “physical.” Thus, this aspect of the Second Circuit’s decision in Kurtz is not implicated
and remand is appropriate.
For the foregoing reasons, the Court finds that the first prong of the Williamson County
test has not been satisfied. Because the two prongs are independent, the Court need not reach the
second prong. The Court finds that it lacks subject matter jurisdiction over this action and
remands it back to state court.
B.
Attorneys’ Fees and Costs
The Supreme Court has held that “the standard for awarding fees should turn on the
reasonableness of the removal. Absent unusual circumstances, courts may award attorneys’ fees
under § 1447(c) only where the removing party lacked an objectively reasonable basis for
seeking removal. Conversely, when an objectively reasonable basis exists, fees should be
denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Defendant had an
objectively reasonable basis for seeking removal. The application of the Williamson County
ripeness test is a difficult task. See, e.g., J. David Breemer, Ripeness Madness: The Expansion of
Williamson County’s Baseless “State Procedures” Takings Ripeness Requirement to NonTakings Claims, 41 Urb. Law. 615 (2009) (“As commentators have noted, this rule was
doctrinally confused from the start.”). After the Second Circuit’s decision in Sherman, 752 F.3d
554, issued just one month before the Notice of Removal was filed, defendant could have
reasonably believed that the newly-elucidated standards for applying Williamson County would
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enable this Court to find subject matter jurisdiction in this action. Therefore, fees and costs will
not be awarded to plaintiff in connection with the removal and remand of this action.
III.
CONCLUSION
For the foregoing reasons, plaintiff’s motion to remand [Doc. No. 16] is GRANTED and
plaintiff’s request for attorneys’ fees and costs is DENIED.
SO ORDERED this 30th day of March, 2015.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE
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