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
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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
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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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
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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).
2Parties 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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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
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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
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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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
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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.