Westmark Development Corporati v. City of Burien , 504 F. App'x 560 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WESTMARK DEVELOPMENT No. 12-35059
CORPORATION, a Washington
corporation; TRIZEC INVESTMENT D.C. No. 2:08-cv-01727-RSM
CORPORATION, a Washington
corporation,
MEMORANDUM *
Plaintiffs - Appellants,
v.
CITY OF BURIEN, a municipal
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted December 5, 2012
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TALLMAN and WATFORD, Circuit Judges, and GLEASON, District
Judge.**
The district court held that it lacked discretion to award attorney’s fees to
Westmark Development Corporation and Trizek Investment Corporation
(collectively “Westmark”) unless it first resolved the merits of Westmark’s
substantive due process claim. The court erred in so holding. After Westmark
obtained the $10.7 million verdict from the City of Burien, it had obtained all the
relief it had sought from the City except for attorney’s fees. After that favorable
state court determination, the district court should have invoked the principle of
constitutional avoidance. Gerling Global Reins. Corp. of Am. v. Garamendi, 400
F.3d 803, 806–08 (9th Cir. 2005); Carreras v. City of Anaheim, 768 F.2d 1039,
1042–43, 1050 (9th Cir. 1985), abrogated on other grounds by Los Angeles
Alliance for Survival v. City of Los Angeles, 993 P.2d 334, 350 (Cal. 2000). At that
point, Westmark was eligible to recover attorney’s fees on its § 1983 claim,
provided two conditions were met: (1) its federal constitutional claim is
“substantial” under Hagans v. Lavine, 415 U.S. 528, 537–38 (1974); and (2) its
state law claims and its federal constitutional claim arise out of a “common nucleus
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
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of operative fact” under United Mine Workers of America v. Gibbs, 383 U.S. 715,
725 (1966). See Gerling Global, 400 F.3d at 808.
Both of these requirements are met here. The first condition is met because
Westmark’s substantive due process claim is not “obviously frivolous” or
“obviously without merit,” which makes it substantial within the meaning of
Hagans. See id. The second condition is met because Westmark’s state law claims
arise out of the same common nucleus of operative fact as its federal substantive
due process claim (namely, Burien’s improper conduct during the permitting
process for Westmark’s development project), and Westmark originally attempted
to litigate those claims in the same judicial proceeding. See id. at 808–09 (“Claims
arise from a common nucleus of operative fact where fee-supporting claims are so
interrelated with non-fee claims that plaintiffs ‘would ordinarily be expected to try
them all in one judicial proceeding.’”) (quoting Gibbs, 383 U.S. at 725).
The procedural posture of this case renders our holding in Mateyko v. Felix,
924 F.2d 824, 828 (9th Cir. 1991), distinguishable. There, the plaintiff’s state and
federal claims were tried simultaneously, and the district court’s rejection of the
plaintiff’s federal constitutional claim during trial was entirely proper. Here, in
contrast, Westmark had already won in state court all the relief it sought in its
federal claim, obviating any need for the district court to address the substantive
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due process issue. See Gerling Global, 400 F.3d at 808–10; Carreras, 768 F.2d at1042–43, 1050.
Accordingly, we vacate the district court’s summary judgment ruling and
remand the case for resolution of Westmark’s motion for attorney’s fees. As the
prevailing party, Westmark is entitled to an award of reasonable attorney’s fees
unless the district court determines, in its discretion, that special circumstances
render such an award unjust. See Mendez v. Cnty. of San Bernardino, 540 F.3d
1109, 1126 (9th Cir. 2008). Should the district court decide to award fees, it may
do so for work performed in state court on only those claims that involved similar
facts, legal theories, and relief sought as the substantive due process claim. See
Smith v. Robinson, 468 U.S. 992, 1015 (1984), superseded by statute on other
grounds, Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372;
Bartholomew v. Watson, 665 F.2d 910, 911–13 (9th Cir. 1982).
VACATED AND REMANDED.
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