Perfect Puppy, Inc. v. City of East Providence
807 F.3d 415
1st Cir.2015Background
- Perfect Puppy signed a lease to operate a "Puppy Sales" store in East Providence, opened after receiving a state "PET SHOP" license, and shortly thereafter the city enacted an ordinance banning dog and cat sales.
- Perfect Puppy sued in state court alleging constitutional violations (including takings); the City removed the case to federal court and Perfect Puppy later amended to add a takings claim.
- On cross-motions for summary judgment the district court granted the City relief on most claims, rejected any developed facial-takings claim as undeveloped, and held the as-applied takings claim unripe for failure to seek state compensation, remanding that claim to state court under 28 U.S.C. § 1447(c).
- Perfect Puppy appealed only the takings rulings; it argued it had preserved a facial takings challenge and disputed the remand as to the as-applied claim.
- The First Circuit affirmed the district court’s rejection of a facial takings claim (for failure to develop the argument) and held it lacked appellate jurisdiction to review the remand of the as-applied claim under § 1447(d).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Perfect Puppy preserved a facial takings claim | Perfect Puppy contends its single-sentence assertion in briefing and request for declaratory relief sufficed to present a facial takings challenge | City contends the remark was undeveloped and insufficient to raise a facial challenge | Court: Plaintiff failed to develop the argument; facial claim waived and dismissed |
| Whether the takings claim was ripe without exhausting state remedies | Perfect Puppy argued state exhaustion should not apply because the City removed the case to federal court and/or the exhaustion rule is nonjurisdictional | City argued Plaintiff never sought just compensation in state process, so the as-applied claim is unripe | Court: District court correctly deemed as-applied claim unripe for failure to seek state compensation; remand proper |
| Whether the appellate court can review the remand order | Perfect Puppy argued § 1447(d) does not bar review because the takings claim was added after removal and thus the remand was not a § 1447(c) jurisdictional remand | City argued § 1447(d) bars appellate review of remands based on lack of subject-matter jurisdiction and the district court’s jurisdictional characterization was colorable | Court: § 1447(d) bars review here; remand order not reviewable and appeal dismissed as to remand |
| Whether the district court actually decided the facial-takings issue on the merits (allowing appellate review) | Perfect Puppy argued the district court addressed and rejected a facial challenge on the merits, permitting appellate review | City argued the court found no facial claim was adequately raised and thus did not decide a facial challenge on the merits | Court: The district judge found Plaintiff did not present a facial claim; affirmed for failure to develop the argument |
Key Cases Cited
- Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (establishes state-exhaustion requirement for takings ripeness)
- Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (§ 1447(d) bars appellate review of remands based on colorable lack-of-jurisdiction rulings)
- Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (discusses scope of appellate review of remands)
- Kircher v. Putnam Funds Trust, 547 U.S. 633 (interprets § 1447(d) and limits interlocutory review of remands)
- United States v. Zannino, 895 F.2d 1 (argument-development rule: courts need not entertain skeletal arguments)
- Downing/Salt Pond Partners, L.P. v. Rhode Island & Providence Plantations, 643 F.3d 16 (First Circuit characterized state-exhaustion requirement as jurisdictional in context)
- Horne v. Department of Agriculture, 569 U.S. 513 (describes state-exhaustion requirement as prudential rather than strictly jurisdictional)
- Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (distinguishes abstention-based remands from § 1447(c) jurisdictional remands)
- Lapides v. Board of Regents of University System of Ga., 535 U.S. 613 (removal can waive certain state-law defenses)