Torromeo v . Fremont CV-03-481-SM 10/12/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Henry Torromeo and MDR Corporation, Plaintiffs
v. Civil N o . 03-481-SM Opinion N o . 2004 DNH 148 Town of Fremont, Defendant
O R D E R
Plaintiffs, Henry Torromeo and MDR Corporation, bring this
action against the Town of Fremont, seeking damages for what they
say was the Town’s unlawful and unconstitutional delay in issuing
various building permits. See generally 42 U.S.C. § 1983.
According to plaintiffs, by unlawfully delaying the issuance of
building permits requested by them, the Town temporarily effected
a taking of their property for public use, without paying them
just compensation. Additionally, plaintiffs claim the Town
deprived them of Due Process and Equal Protection, in violation
of the United States Constitution. The Town moves to dismiss plaintiffs’ three-count complaint,
saying their claims are barred by the Rooker-Feldman doctrine and
res judicata. Plaintiffs object.
Standard of Review
When ruling on a motion to dismiss, the court must “accept
as true the well-pleaded factual allegations of the complaint,
draw all reasonable inferences therefrom in the plaintiff’s favor
and determine whether the complaint, so read, sets forth facts
sufficient to justify recovery on any cognizable theory.” Martin
v . Applied Cellular Tech., Inc., 284 F.3d 1 , 6 (1st Cir. 2002).
Dismissal is appropriate only if “it clearly appears, according
to the facts alleged, that the plaintiff cannot recover on any
viable theory.” Langadinos v . American Airlines, Inc., 199 F.3d
6 8 , 69 (1st Cir. 2000). See also Gorski v . N.H. Dep’t of Corr.,
290 F.3d 466, 472 (1st Cir. 2002). Notwithstanding this
deferential standard of review, however, the court need not
accept as true a plaintiff’s “bald assertions” or conclusions of
law. See Resolution Trust Corp. v . Driscoll, 985 F.2d 4 4 , 48
(1st Cir. 1993) (“Factual allegations in a complaint are assumed
to be true when a court is passing upon a motion to dismiss, but
2 this tolerance does not extend to legal conclusions or to ‘bald
assertions.’”) (citations omitted). See also Chongris v . Board
of Appeals, 811 F.2d 3 6 , 37 (1st Cir. 1987).
Here, in support of its motion to dismiss, the Town relies
upon various state and federal court filings made by plaintiffs
in prior litigation, opinions issued by New Hampshire state
courts, and the United States Supreme Court’s denial of
plaintiffs’ petition for writ of certiorari. Typically, a court
must decide a motion to dismiss exclusively upon the allegations
set forth in the complaint (and any documents attached to that
complaint) or convert the motion into one for summary judgment.
See Fed. R. Civ. P. 12(b). There i s , however, an exception to
that general rule:
[C]ourts have made narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs’ claim; or for documents sufficiently referred to in the complaint.
Watterson v . Page, 987 F.2d 1 , 3 (1st Cir. 1993) (citations
omitted). See also Beddall v . State S t . Bank & Trust Co., 137
F.3d 1 2 , 17 (1st Cir. 1998). Since plaintiffs do not dispute the
3 authenticity of the documents upon which the Town relies, the
court may properly consider those documents without converting
the Town’s motion to dismiss into one for summary judgment.
Background
Torromeo owns approximately 100 acres in the Town of
Fremont, and MDR owns approximately 50 acres. Both parcels are
zoned to permit residential construction. In February of 1997,
the Town approved Torromeo’s subdivision plan for “Mason’s
Corner,” and that plan was recorded with the county registry of
deeds. Approximately two and one-half years later, the Town
approved MDR’s subdivision plan for “Glidden Hill Estates,” and
that plan, too, was recorded in the county’s land records.
In March of 1999, the Town adopted a growth control
ordinance (the “Ordinance”) which authorized the Fremont Planning
Board to limit the number of building permits issued annually for
the construction of residential units within the Town. Pursuant
to that ordinance, the Town implemented “Growth Control and
Permit Limitations,” which limited to 16 the number of building
permits that would be issued to property owners during the one-
4 year period between April 1 4 , 1999, and April 1 3 , 2000. Within
that time frame, MDR applied for six permits to construct single-
family units at Glidden Hill Estates. The Town issued only five
and informed MDR that it must wait until April of 2000 before
additional building permits would issue for that development.
Later, Torromeo sought building permits for the five remaining
lots at Mason’s Corner. That request was, however, denied since
the Town had already issued the maximum number of building
permits for that year under the Ordinance.
In August of 1999, MDR brought a petition for declaratory
judgment in Rockingham County Superior Court, alleging that the
Town’s Ordinance was not enacted in compliance with state law and
was, therefore, unenforceable. The state court agreed, and ruled
that the Ordinance was invalid dating back to its adoption. The
New Hampshire Supreme Court summarily affirmed the trial court’s
decision. Accordingly, the Town stopped enforcing the Ordinance
against MDR and issued the requested building permits.1
1 Under New Hampshire law, municipalities are authorized to “regulate and control” the timing of local development by, for example, enacting growth control ordinances such as the one adopted by Fremont. N.H. Rev. Stat. Ann. 674:22. Importantly, however, “[a]ny ordinance imposing such a control may be adopted only after preparation and adoption by the planning board of a
5 Torromeo also filed a petition for declaratory judgment in
Rockingham Superior Court, claiming that because the Town
approved his subdivision plan prior to adopting the Ordinance, it
was exempt from the provisions of the Ordinance. Again, the
court agreed and ordered the Town to issue the requested building
permits. The Town complied.
In March of 2000, plaintiffs joined forces and filed an
action in the Rockingham County Superior Court seeking damages
from the Town for inverse condemnation. Pointing to the fact
that the state court previously ruled the Town’s Ordinance
invalid, plaintiffs claimed entitlement to damages for the
temporary “taking” of their property (i.e., the delayed issuance
of the building permits). In support of their view, plaintiffs
invoked provisions of both the state and federal constitutions.
See Complaint at para. 21 (“On March 2 1 , 2000, Plaintiffs each
filed actions in the Rockingham County Superior Court to obtain
just compensation for a taking under the U.S. and New Hampshire
Constitutions.” (emphasis supplied).
master plan and a capital improvement program.” Id. Fremont’s ordinance was declared void ab initio because the state court concluded that the Town failed to adopt a valid capital improvement program.
6 The state trial court agreed with plaintiffs, and concluded
that they were entitled to compensation for the economic loss
they suffered as a result of the Town’s delay in issuing the
building permits. Accordingly, the court ordered the Town to pay
Torromeo damages in the amount of $23,800, and MDR damages in the
amount of $71,600.
The Town appealed those decisions to the New Hampshire
Supreme Court. In their joint brief, plaintiffs cited both the
state and federal constitutions in support of their view that the
lower state court had properly found that they were entitled to
compensation for the temporary “taking” of their property. See,
e.g., Exhibit D to defendant’s motion to dismiss, plaintiffs’
brief to the New Hampshire Supreme Court, at 8 (“The Town, by
imposing the invalid Growth Ordinance, caused a ‘taking’ of
plaintiffs’ property violating their protected right to use and
enjoy their property as a fundamental right protected by both our
State and Federal Constitutions. . . . The Constitution prohibits
takings without compensation.”). See also id. at 11 (“The right
to use and enjoy one’s property is a fundamental right protected
by both our State and Federal Constitution. The Fifth Amendment
7 of the United [States] Constitution provides, ‘nor shall private
property be taken for public use without just compensation.’”).
The New Hampshire Supreme Court concluded that plaintiffs
were not entitled to compensation and, therefore, reversed the
trial court’s damages award. Torromeo v . Town of Fremont, 148
N.H. 640 (2002). Specifically, the court held that while the
Town’s Ordinance had previously been declared invalid, plaintiffs
had not demonstrated that it was unconstitutional. The court
went on to discuss the distinction between a local ordinance that
is unconstitutional and one that is merely unenforceable due to a
procedural defect in its enactment. It then noted that, absent
proof from plaintiffs that the Ordinance was unconstitutional,
rather than merely procedurally flawed, “this case presents
merely the type of municipal error for which judicial reversal of
the erroneous action is the only remedy.” Id. at 644.
Accordingly, the court held that “plaintiffs are not entitled to
damages, and . . . their only remedy is issuance of the
erroneously-denied building permits.” Id.
8 Plaintiffs sought review by the United States Supreme Court.
Again, they relied upon the federal constitution in support of
their view that they were entitled to compensation from the Town
for the temporary taking of their property. See, e.g., Exhibit F
to defendant’s motion, plaintiffs’ petition for writ of
certiorari at 2 (“Certiorari should be granted to clarify that a
municipality can violate the Takings Clause when it enforces an
illegal land-use law, which a court declares was invalid from the
start, and refuses to provide the constitutional remedy of ‘just
compensation’ promised by the Fifth Amendment.”). The Supreme
Court denied plaintiffs’ petition for certiorari. Torromeo v .
Town of Fremont, 539 U.S. 923 (2003).
Having been denied relief by New Hampshire Supreme Court
(and the United States Supreme Court), plaintiffs filed this
federal suit against the Town. In their three-count complaint,
plaintiffs allege: (1) the “application of the Town’s Growth
Control Ordinance . . . deprived [them] of the economic use of
their respective properties, in violation of the Fifth and
Fourteenth Amendments.” Complaint at para. 3 2 ; (2) the Town’s
denial of building permits, “to which plaintiffs were entitled,
9 constitutes a denial of due process.” Complaint at para. 3 7 ; and
(3) they were “treated disparately because they were not
permitted to receive building permits solely by virtue of the
Town’s unreasonable application of the illegal Ordinance to their
respective projects.” Complaint at para. 4 1 . As noted above,
the Town moves to dismiss plaintiffs’ claims, invoking the
Rooker-Feldman doctrine and principles of res judicata.
Discussion
I. The Rooker-Feldman Doctrine.
The Rooker-Feldman doctrine precludes a federal district
court from reviewing a final judgment entered in a state court,
and from considering claims that are inextricably intertwined
with those raised in the state court proceeding. See Rooker v .
Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of
Columbia Court of Appeals v . Feldman, 460 U.S. 4 6 2 , 476 (1983).
See also Wang v . New Hampshire Bd. of Registration in Medicine,
55 F.3d 6 9 8 , 703 (1st Cir. 1995). Federal claims are
inextricably intertwined with state court proceedings (even if
precisely the same claims were not raised previously in state
litigation) if the party had an opportunity to raise those claims
10 in the state court and if their resolution in federal court would
effectively provide a form of federal appellate review of the
state court’s decision. See Pennzoil C o . v . Texaco, Inc., 481
U.S. 1 , 25 (1987) (Marshall, J., concurring).
Moreover, once a state court issues a final judgment, a
federal district court lacks jurisdiction to review that decision
even if the state judgment is patently wrong or was entered
following patently unconstitutional proceedings. See Feldman,
460 U.S. at 486. Thus, a litigant may not seek to reverse a
final state court judgment “simply by casting his complaint in
the form of a civil rights action.” Ritter v . Ross, 992 F.2d
750, 754 (7th Cir. 1993) (citation omitted).
Here, plaintiffs’ federal suit is 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 damages for the temporary “taking” of their real
property. Consequently, that constitutional claim is “foreclosed
by a textbook application of the Rooker-Feldman doctrine.”
11 Picard v . Members of the Employee Ret. Board, 275 F.3d 139, 145
(1st Cir. 2001).
The same is true with regard to plaintiffs’ Fourteenth
Amendment claims (counts two and three), which are “inextricably
intertwined” with their Fifth Amendment claim. As the court of
appeals for this circuit has observed:
Where a party did not actually present its federal claims in state court, Rooker-Feldman forecloses lower federal court jurisdiction over claims that are “inextricably intertwined” with the claims adjudicated in a state court. A federal claim is inextricably intertwined with the state-court claims if the federal claim succeeds only to the extent that the state court wrongly decided the issues before i t .
Sheehan v . Marr, 207 F.3d 3 5 , 39-40 (1st Cir. 2000) (citations
and internal punctuation omitted). In this case, to rule in
plaintiffs’ favor on their Fourteenth Amendment claims would, in
essence, require this court to reverse the New Hampshire Supreme
Court’s holding that plaintiffs failed to demonstrate that the
Ordinance was unconstitutional, that they “are not entitled to
damages, and that their only remedy is issuance of the
erroneously-denied building permits.” Torromeo v . Town of
Fremont, 148 N.H. at 644. The Rooker-Feldman doctrine plainly
12 provides that this court lacks jurisdiction to issue such a
ruling. See, e.g., Hill v . Town of Conway, 193 F.3d 3 3 , 40 (1st
Cir. 1999) (“Appellants in the face of a Superior Court
determination that they ‘are not entitled to damages,’ have
sought in their § 1983 suit a ‘Judgment . . . awarding an amount
of damages that will fairly compensate . . . for the taking of
their real property.’ In short, . . . the relief for which the
plaintiffs prayed would, if granted, effectively void the state
court’s judgment. As the district court properly determined,
Rooker-Feldman precludes such an adjudication.”) (citation and
internal quotation marks omitted).
In support of their view that the Rooker-Feldman doctrine
does not preclude relitigation of their federal constitutional
claims in this forum, plaintiffs rely on Santini v . Conn.
Hazardous Waste Mgmt. Serv., 342 F.3d 118 (2d Cir. 2003). That
reliance i s , however, misplaced. First, unlike the plaintiff in
Santini, these plaintiffs were not precluded from litigating
their federal constitutional claims in state court. See id. at
129 (“Santini did not, and could not, present his federal claim
to the state court. . . . the Connecticut state courts would not
13 have adjudicated Santini’s federal takings claim [even] if he had
presented it to them.”). In fact, as they unequivocally assert
in their complaint, plaintiffs in this case actually advanced
their federal constitutional claims in state court. See
Complaint at para. 2 1 .
Moreover, in Santini, the court of appeals held that a
plaintiff who must, pursuant to Williamson County Reg’l Planning
Comm’n v . Hamilton Bank, 473 U.S. 172 (1985), litigate his or her
takings claims in state court, may specifically notify the court
that he or she is reserving any federal constitutional claims for
resolution by the federal district court.
While we have not previously held that parties may use the England [v. Louisiana State Bd. of Med. Examiners, 375 U.S. 411 (1964)] reservation procedure in cases that did not properly originate in federal court, we deem it appropriate to permit parties like Santini, who litigate state-law takings claims in state court involuntarily, to reserve their federal takings claims for determination by a federal court.
* * *
[P]arties may explicitly reserve their federal takings claims, making clear to the state court and adverse parties that they intend to bring a federal takings claim in federal court once the litigation of the state-law claim has been completed.
14 Santini, 342 F.3d at 130 (emphasis supplied). Here, however,
plaintiffs never gave any indication to the state courts (or
opposing counsel) that they were expressly “reserving” their
federal constitutional claims for resolution in the federal
forum. In fact, as noted above, plaintiffs actually litigated those claims.2
II. Res Judicata.
Even if the plaintiffs’ constitutional claims were not
precluded by virtue of the Rooker-Feldman doctrine, they would be
barred by the doctrine of res judicata.
2 It i s , perhaps, worth noting that the Court of Appeals for the First Circuit has expressly rejected the use of an England reservation of federal claims in a condemnation/takings case quite similar to this one.
[Plaintiff] argues that the federal constitutional issues were not raised in the state proceedings, but rather were reserved under England v . Louisiana State Board of Medical Examiners, 375 U.S. 411 (1964). The rule laid down in England is not applicable to this case. Section 1983 does not override state preclusion law by allowing plaintiffs to first proceed to judgment in state courts and then turn to federal courts for adjudication of federal claims. Thus plaintiff’s argument re[garding] England is meritless.
Griffin v . Rhode Island, 760 F.2d 359, 360 n.1 (1st Cir. 1985) (parallel citations omitted). That case was, however, decided before the Supreme Court issued its opinion in Williamson.
15 The federal full faith and credit statute, 28 U.S.C. § 1738,
commands federal courts to employ state rules of res judicata
when determining the preclusive effect, if any, to be given to a
prior state court determination. See Marrese v . American Academy
of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985); Kremer v .
Chemical Constr. Corp., 456 U.S. 4 6 1 , 468 (1982). Accordingly,
if the Rooker-Feldman doctrine did not preclude this court from
hearing plaintiffs’ constitutional claims, the principles of res
judicata, as developed by the New Hampshire Supreme Court, would
apply.
Under New Hampshire law, “[t]he doctrine of res judicata
precludes the litigation in a later case of matters actually
litigated, and matters that could have been litigated, in an
earlier action between the same parties for the same cause of
action.” In re Alfred P., 126 N.H. 6 2 8 , 629 (1985) (citations
omitted). “In order for res judicata to apply to a finding or
ruling, there must be ‘a final judgment by a court of competent
jurisdiction [that] is conclusive upon the parties in a
subsequent litigation involving the same cause of action.’” In
16 re Donovan, 137 N.H. 7 8 , 81 (1993) (quoting Marston v . U.S.
Fidelity & Guar. Co., 135 N.H. 706, 710 (1992)).
In other words, for the doctrine of res judicata to apply,
“three elements must be met: (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 on the first action.” Brzica
v . Trustees of Dartmouth College, 147 N.H. 443, 454 (2002). The
term “cause of action” means the “right to recover, regardless of
the theory of recovery.” Eastern Marine Constr. Corp. v . First
S . Leasing, 129 N.H. 2 7 0 , 274 (1987) (citations omitted).
Here, each of those three essential elements is present. As
to the existence of the first and third elements, there can be
little doubt that the parties in the two proceedings are
identical and the state supreme court resolved plaintiffs’ claims
against them on the merits. Finally, the “causes of action”
advanced (and the underlying facts upon which those claims are
based) in the two proceedings are also identical. In both this
proceeding and the earlier state court proceeding, plaintiffs
17 asserted that the Town’s delay in issuing the requested building
permits under an invalid local ordinance amounted to an
unconstitutional taking of their property and, therefore,
entitled them to compensation. While plaintiffs may not have
articulated their claimed entitlement to damages in precisely the
same way in this and the earlier state court litigation, the
“causes of action” are identical: claims for compensation
stemming from the allegedly unconstitutional (albeit temporary)
withholding of the requested building permits.
Finally, even if one could reasonably conclude that the
causes of action advanced in the state court litigation are not
identical to the Fourteenth Amendment claims advanced in this
proceeding, it is beyond doubt that plaintiffs could have
advanced their Fourteenth Amendment claims in the state court
proceeding (and, as noted above, it is equally clear that they
did not reserve those claims under England). Consequently, those
claims are barred by the doctrine of res judicata, which
precludes relitigation of all matters actually litigated and any
matters that could have been litigated in the same proceeding.
See Appeal of Univ. System of N.H. Bd. of Trustees, 147 N.H. 626,
18 629 (2002) (“Res judicata, or claim preclusion, bars the
relitigation of any issue that was or might have been raised in
respect to the subject matter of the prior litigation. In
determining whether two actions are the same cause of action for
the purpose of applying res judicata, we consider whether the
alleged causes of action arise out of the same transaction or
occurrence.”) (citations and internal quotation marks omitted);
Brzica, 147 N.H. at 455-56 (“Res judicata will bar a second
action even though the plaintiff is prepared in the second action
to present evidence or grounds or theories of the case not
presented in the first action.”); Radkay v . Confalone, 133 N.H.
294, 298 (1990) (“Generally, once a party has exercised the right
to recover based upon a particular factual transaction, that
party is barred from seeking further recovery, even though the
type of remedy or theory of relief may be different.”).
Conclusion
For the foregoing reasons, as well as those set forth in
defendant’s memorandum and its reply memorandum, defendant’s
motion to dismiss (document n o . 11) is granted. The Clerk of
19 Court shall enter judgment in accordance with this order and
close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
October 1 2 , 2004
cc: Duane J. Desiderio, Esq. Sumner F. Kalman, Esq. Michael A . Ricker, Esq. John J. Ryan, Esq.