RJ POTVIN III INVESTMENT TRUST et al v. AUBURN WATER DISTRICT

Filing 9

AMENDED ORDER ON DEFENDANT'S MOTION TO DISMISS re 4 Motion to Dismiss - By JUDGE NANCY TORRESEN. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
R.J. POTVIN, III INVESTMENT TRUST, )
PATRICK O’REILLY, TRUSTEE
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Plaintiff,
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V.
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AUBURN WATER DISTRICT
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Defendant.
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Docket No. 2:18-cv-00046-NT

AMENDED ORDER ON DEFENDANT’S MOTION TO DISMISS
Plaintiff R.J. Potvin, III Investment Trust (“Potvin” or the “Trust”) brings
this negligence and inverse condemnation action seeking compensation for damage
to its real estate caused by a leaky water pipe owned by the Auburn Water District
(the “District”). After removing the case from state court, the District has moved to
dismiss the takings claim as unripe or subject to Burford abstention under Fed. R.
Civ. P. 12(b)(6) “and/or” 12(b)(1) and the tort claim for a lack of supplemental
jurisdiction. Def.’s Mot. 1 (ECF No. 4). For the reasons that follow, the case is
REMANDED to state court.
BACKGROUND
I accept all of the Plaintiff’s well-pled allegations as true. For purposes of this
motion none of the relevant facts are disputed.
The Plaintiff owns various properties, including at least one in Auburn, Maine.
Compl. ¶¶ 6, 8 (ECF No. 3-3). In January of 2017, the Plaintiff became aware of a
“serious ice build-up in the parking lot” of that property. Compl. ¶ 8. The Plaintiff

eventually contacted the District about “the ice situation.” Compl. ¶¶ 11-12. The
District sent employees to assess; they told Potvin that the problem was not the result
of a water leak. Compl. ¶¶ 13-14. In July, Potvin asked the District’s Director, Sid
Hazelton, to come observe the ongoing problem at the scene. Compl. ¶ 20. Hazelton
did so, ordered a water test, and discovered that the water on Potvin’s property was
indeed coming from the District’s system. Compl. ¶ 20. He then ordered a road dug
up to repair the broken water main causing the flows. Compl. ¶ 21.
In December, the Plaintiff brought suit in Maine Superior Court alleging that
the District negligently allowed the flows from the broken water main to flood and
damage its property (Count I), and that the flows amounted to a taking of the its
flowage rights without the formality of eminent domain proceedings (Count II).1
Compl. ¶¶ 23-27, 36-37. It seeks damages for the taking via 42 U.S.C § 1983 and for
the District’s negligence pursuant to the Maine Tort Claims Act. Compl. ¶¶ 31, 40.
The Defendant removed the action on the basis of the federal takings claim. Notice of
Removal ¶ 2 (ECF No. 1) (citing 28 U.S.C. § 1331).
DISCUSSION
The Defendant argues the takings claim should be dismissed—not remanded—
either because it is unripe or because of Burford abstention, and that I should then

The Plaintiff also claims that the “taking of the [flowage] right and the actual flowage
deprived” it “of property without due process of law in violation of the Constitution and laws of the
United States and the State of Maine.” Compl. ¶ 38. This allegation is contained under Count II, which
otherwise appears primarily to be an inverse condemnation claim. To the extent the Plaintiff is also
asserting federal and state due process claims, they are duplicative of its takings claim and do not
alter the present disposition. Cf. Deniz v. Municipality of Guaynabo, 285 F.3d 142, 149 (1st Cir. 2002)
(“Dressing a takings claim in the raiment of a due process violation does not serve to evade the
exhaustion requirement.”).
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decline supplemental jurisdiction over and dismiss—not remand—the tort claim.
Def.’s Mot. 1; Def.’s Reply 3 (ECF No. 7). I consider these arguments in turn.
I.

The Takings Claim
A. Ripeness
The Fifth Amendment proscribes the taking of private property for public use

without just compensation. In order to bring a regulatory takings claim in federal
court, two ripeness requirements must be met: first, the governmental entity accused
of the taking must have reached a final decision; and second, the property owner must
have asked for and been denied just compensation. Williamson Cty. Reg’l Planning
Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). The plaintiff
bears the burden of proving the two requirements have been met. Downing/Salt
Pond Partners, L.P. v. Rhode Island & Providence Plantations, 643 F.3d 16, 20 (1st
Cir. 2011).
Where, as here, the claim is that the government entity physically took
property, as opposed to doing so through regulation, “the final decision requirement
is relieved or assumed because ‘where there has been a physical invasion, the taking
occurs at once, and nothing the [government actor] can do or say after that point will
change that fact.’” Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 91
(1st Cir. 2003). But the second requirement, variously known as the state-exhaustion
requirement, the state-litigation requirement, and the state-action requirement,
must still be met. See id. At issue in this case is the second requirement.
To satisfy the state-litigation requirement, a takings plaintiff must “seek
compensation through the procedures the State has provided for doing so.”
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Williamson, 473 U.S. at 194. “If the government has provided an adequate process
for obtaining compensation, and if a resort to that process ‘yields just compensation,’
then the property owner ‘has no claim against the Government’ for a taking.”
Williamson, 473 U.S. at 194-95 (citations omitted).2
“An inverse condemnation cause of action is a classic example of such a
particularized procedure; it gives a property owner aggrieved by government conduct
the opportunity to obtain compensation, thereby avoiding an unconstitutional
taking.” Asociacion De Subscripcion Conjunta Del Seguro De Responsabilidad
Obligatorio v. Flores Galarza, 484 F.3d 1, 17 (1st Cir. 2007); see also Tucker v. Town
of Winterport, 1 F.3d 1231 (Table), 1993 WL 312895, at *1 (1st Cir. July 29, 1993);
Lerman v. City of Portland, 675 F. Supp. 11, 16 (D. Me. 1987), aff’d, 879 F.2d 852 (1st
Cir. 1989).
Maine recognizes an inverse condemnation cause of action, which must be
pursued in state court before the Plaintiff’s federal takings claim is ripe. Lerman, 675
F. Supp. at 16 (citing Foss v. Maine Tpk. Auth., 309 A.2d 339, 344 (Me. 1973)); Drake
v. Town of Sanford, 643 A.2d 367, 369 (Me. 1994) (citing Foss and Lerman). Indeed,
the Complaint, while not a model of clarity, appears to state a claim for inverse
condemnation.3 Because the Plaintiff was pursuing its takings claim in state court
Williamson has been criticized for years for what some commentators have characterized as
stripping federal courts of jurisdiction over constitutional takings claims under the guise of prudential
ripeness concerns. See Asociacion De Subscripcion Conjunta Del Seguro De Responsabilidad
Obligatorio v. Flores Galarza, 484 F.3d 1, 17-18 (1st Cir. 2007) (collecting articles). The Supreme Court
has finally agreed to reconsider Williamson’s state-exhaustion requirement. See Knick v. Twp. of Scott,
Pa., 138 S. Ct. 1262 (granting cert. on this issue). The Court will hear the case next term. For now,
Williamson remains the law.
2

Although Count II is not styled as a claim for inverse condemnation, that claim appears to be
factually supported by the allegations. Compl. ¶¶ 36-38. 2 James Wm. Moore, et al., Moore’s Federal
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before the Defendant removed the action, the question arises: what are we doing
here? Why has the Defendant removed the action to federal court, only to file a motion
that requires the Plaintiff to return to state court?
In pressing its Williamson argument, the Defendant points not to Foss and the
other state inverse condemnation authorities, but to Maine statutory procedures that
it says the Plaintiff must use before its claim ripens and that thus require dismissal
and not remand. Def.’s Mot. 5-7, 10 (citing 35-A M.R.S. §§ 6501-6512, 6701-6706). The
problem for the Defendant is that these procedures apply to condemnation
proceedings, not inverse condemnation proceedings. The differences between these
proceedings have been explained by the Supreme Court as follows:
Although a landowner’s action to recover just compensation for a taking by
physical intrusion has come to be referred to as “inverse” or “reverse”
condemnation, the simple terms “condemn” and “condemnation” are not
commonly used to describe such an action. Rather, a “condemnation”
proceeding is commonly understood to be an action brought by a condemning
authority such as the Government in the exercise of its power of eminent
domain. . . . The phrase “inverse condemnation” appears to be one that was
coined simply as a shorthand description of the manner in which a landowner
recovers just compensation for a taking of his property when condemnation
proceedings have not been instituted.
Flores Galarza, 484 F.3d at 16 n.19 (quoting United States v. Clarke, 445 U.S. 253,
255-57 (1980)); see also Larrabee v. Town of Knox, 744 A.2d 544, 545 n.3 (Me. 2000)
(inverse condemnation is a “cause of action against a government agency to recover

Practice § 8.04 (3d. ed. 1997) (“Rule 8(a)(2) does not require a claimant to set forth any legal theory
justifying the relief sought on the facts alleged, but does require sufficient factual averments to show
that the claimant may be entitled to some relief.”). Indeed, the Defendant acknowledges that the
Plaintiff “asserts an inverse takings claim.” Def.’s Mot. 2.
The Plaintiff was invoking the state court’s concurrent jurisdiction to enforce both Federal and
State constitutions and laws. It appears Maine state courts allow federal and state takings claims to
proceed simultaneously. See MC Assocs. v. Town of Cape Elizabeth, 773 A.2d 439, 442-43 (Me. 2001).
But see Drake, 653 A.2d at 369 (dismissing a federal takings claim as unripe where plaintiffs previously
dismissed inverse condemnation claims with prejudice).
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the value of property taken by the agency, though no formal exercise of the power of
eminent domain has been completed” (citing Black’s Law Dictionary 740 (5th ed.
1979))). “In other words, inverse condemnation affords compensation to a property
owner when the government unconstitutionally takes his property in some indirect
way.” City of S. Portland v. Maine Mun. Ass’n, 953 A.2d 1128, 1130 (Me. 2008).
The statutes the Defendant cites all contemplate that some governmental body
has initiated eminent domain proceedings.4 The Defendant itself repeatedly refers to
these statutes as “eminent domain procedures” or “procedure[s] for eminent domain.”
Def.’s Mot. 4, 5, 7. Eminent domain actions contemplate the formal transfer of title.
Cf. 35-A M.R.S. § 6512(2) (“Failure to provide, in an act expressly conferring the right
of eminent domain, for an act necessary to carry out the taking is a substantial error
and the plaintiff shall be given judgment of title.”).
The Defendant claims these procedures “are similar to the then-applicable
Tennessee process described in Williamson County.” Def.’s Mot. 5. And so they are,
to a point. Like the Maine statutory scheme, they “outline[] the procedures by which
government entities must exercise the right of eminent domain.” Williamson, 473

See, e.g., 35-A M.R.S. § 6501(1) (“All locations made and all damages assessed for the taking
of property by the exercise of the right of eminent domain shall be made and assessed and the rights
of the parties shall be as stated in this chapter.”); Id. § 6502(1) (“All property taken by eminent domain
shall, before it is entered upon for any purpose except to make surveys, be located by a description,
signed by the party taking the property.”); Id. § 6503(1) (“The owners are entitled to damages for all
property taken by eminent domain.”); Id. § 6504(1) (“A person who petitions the county commissioners
for the assessment of damages on account of property taken by eminent domain shall notify the adverse
party of the time and place of the hearing.”); Id. § 6702 (“The owner of the property, within 30 days
after the beginning of condemnation proceedings, may file with the commission a petition for a decision
as to the necessity of the appropriation.”); see also Caspar F. Cowan & J. Gordon Scannell, Jr., 1 Maine
Prac., Real Estate Law & Prac. § 16:3 (2d ed. 2017) (“The owner of property which is subject to being
taken [under Title 35-A] may, within 30 days following the beginning of condemnation proceedings,
file a petition with the Public Utilities commission for a decision as to the necessity of the taking.”).
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U.S. at 196. Unlike Maine’s law, however, the Tennessee statutory scheme provided
property owners recourse “if a government entity does take possession of the land
without following the required procedures.” Id. (citing Tenn. Code Ann. § 29-16-123).5
The Maine procedures offer no such recourse. As noted above, they apply to takings
accomplished by eminent domain in actions initiated by the state. They do not provide
an inverse condemnation remedy, as this Court has previously recognized. See
Lerman, 675 F. Supp. at 16 (noting, in December of 1987, that “Maine has no inverse
condemnation statute like that relied upon by the Court in Williamson); Caspar F.
Cowan & J. Gordon Scannell, Jr., 1 Maine Prac., Real Estate Law & Prac. § 16:3
(noting that Title 35-A of the Maine Revised Statutes, which sets out “a more nearly
uniform set of eminent domain provisions,” became effective July 1, 1987); cf. Drake,
643 A.2d at 369 (“Maine does allow inverse condemnation claims.” (citing Foss, not
Title 35-A)); King v. Town of Monmouth, 697 A.2d 837, 842 n.11 (Me. 1997) (noting
favorable outcome of “state non-statutory inverse condemnation” proceeding).
The Plaintiff has alleged that “the Defendant did not exercise any formal
eminent domain proceedings against [it] to obtain the flowage rights.” Compl. ¶ 37.
The procedures the Defendant points to are thus inapplicable here,6 and it would not
make sense to direct the Plaintiff to pursue this statutory “remedy” in the absence of
The current language of § 29-16-123 reads in part as follows: “If, however, such person or
company has actually taken possession of such land . . . the owner of such land may petition for a jury
of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore
provided; or the owner may sue for damages in the ordinary way.” Tenn. Code Ann. § 29-16-123(a).
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The provision cited by the Defendant that most closely appears to provide an inverse
condemnation remedy is § 6503(2), which says that “[u]pon written application of either party made
within 3 years after the taking, the county commissioners shall estimate the damages and the taker
shall pay the damages.” In context with the surrounding provisions, it is clear that these damages are
available only for “property taken by eminent domain.” § 6503(1).
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a formal condemnation proceeding.7 The Plaintiff needs to do exactly what the
Plaintiff was doing before this case was removed to federal court—pursue an inverse
condemnation proceeding in state court.
The Defendant claims that the failure to follow the state procedures requires
me to dismiss the takings claim. Def.’s Mot. 10. The Defendant argues that the “First
Circuit previously endorsed [dismissal] in circumstances identical to this” in Deniz v.
Municipality of Guaynabo, 285 F.3d 142, 150 (1st Cir. 2002). Def.’s Reply 2. The
circumstances of this case are hardly “identical” to Deniz for the obvious reason that
this case was removed from state court while the plaintiff in Deniz filed his action in
federal court to begin with. 285 F.3d at 146. Remand was not an option for the court
in Deniz, but remand of the takings claims is an option for me and it is entirely
appropriate here.8
B. Burford Abstention
As an alternative to its ripeness argument, the Defendant argues that I should
abstain from hearing the case under Burford v. Sun Oil Co., 319 U.S. 315 (1943) and
its progeny. Burford abstention would not be appropriate here because it is limited
to “cases in which a federal court is asked to provide some form of discretionary relief.”

It is true that a plaintiff ordinarily bears the burden of showing that state remedies are
“ ‘unavailable’ or ‘inadequate’ ” in order to be excused from the state-litigation requirement.
Downing/Salt Pond, 643 F.3d at 22. But the issue at present is whether to remand or dismiss, not
whether the Plaintiff is excused from the state-litigation requirement.
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I construe the Plaintiff’s Response as a motion for remand. Pl.’s Resp. 2 (ECF No. 6) (“It goes
without saying that Count I of the Complaint, which sounds solely in state law, should be remanded.”).
It was filed on February 21, 2018, which is within 30 days of the filing of the notice of removal
(February 2, 2018) as required by 28 U.S.C. § 1447(c) for non-jurisdictional remands. Although there
has been some confusion on this point, the Williamson ripeness requirements are (at present) not
strictly speaking a matter of subject-matter jurisdiction. See Perfect Puppy, Inc. v. City of East
Providence, R.I., 807 F.3d 415, 420-21 (1st Cir. 2015) (Williamson requirements may be prudential
rather than jurisdictional).
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Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730 (1996). The Plaintiff seeks
damages for the alleged taking. Compl. ¶ 30. There is nothing discretionary about
that relief. Cf. Sinclair Oil Corp. v. Cty. of Santa Barbara, 96 F.3d 401, 410 n.6 (9th
Cir. 1996) (directing a lower court not to dismiss a takings claim on abstention
grounds because, under Quackenbush, “federal courts can dismiss based on
abstention only where the relief sought is equitable or otherwise discretionary”).
Burford abstention thus could not support an outright dismissal here.
II.

The Tort Claim
“[A] remand [of pendent state law claims] may best promote the values of

economy, convenience, fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 353 (1988). The values supporting a remand of pendent state law claims in
Cohill support one in this case too, where prudential limitations require the
substance of the Plaintiff’s federal claim to be litigated in state court using a state
law cause of action. Having remanded the takings claim, I decline supplemental
jurisdiction over the tort claim and remand it as well. See 28 U.S.C. § 1367(c)(3); 14C
Wright & Miller, Fed. Prac. & Proc. Juris. § 3739 n.121 & accompanying text (4th
ed.). This would be appropriate even if the takings claim were being dismissed and
not remanded.9
I note that “[a]n order remanding the case may require payment of just costs and any actual
expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “[A]bsent
unusual circumstances, attorney’s fees should not be awarded when the removing party has an
objectively reasonable basis for removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005).
Whether the Defendant had an objectively reasonable basis for removal depends on how deeply one
looks at the law. On the surface, the Plaintiff asserted federal claims that supported the removal.
Scratch that surface, however, and one would see that the Plaintiff was required to raise its claim for
inverse condemnation in the State courts. And one need scratch hardly at all to see there is no basis
for opposing remand of the tort claim. It is unclear to me whether the Defendant’s strategy here was
based on a misreading of the law or something more manipulative. “The appropriate test for awarding
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CONCLUSION
For the reasons stated above, the case is REMANDED to state court.
SO ORDERED.
/s Nancy Torresen
United States Chief District Judge
Dated this 25th day of May, 2018.

fees under § 1447(c) should recognize the desire to deter removals sought for the purpose of prolonging
litigation and imposing costs on the opposing party.” Martin, 546 U.S. at 140. The Plaintiff has
suggested that the Defendant’s conduct is “designed to increase expense and cause delay,” Pl.’s Resp.
1 n.1, but has not actually asked for costs. Nor has the Plaintiff done itself any favors with its
perfunctory briefing, which itself has delayed disposition. Given how intimately removal and remand
are bound up, I consider it a close question whether these constitute “unusual circumstances”
justifying a fee award despite an objectively reasonable basis for removal, but I ultimately decline to
make an award under § 1447(c).
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