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R.J. Potvin, Investment Trust v. Auburn Water District

United States District Court, D. Maine

May 25, 2018



          Nancy Torresen, United States Chief District Judge

         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.


         I accept all of the Plaintiffs 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).


         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 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.” 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 ...

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