Louis Schneider v. County of San Diego, and Reybro, Inc., a California Corporation, Dba, Quality Auto Recycling

784 6, not obvious.34 See Goss Golden W. peal for 2000. It

dispositive motions June Metal, Inc. v. Sheet Metal Workers will be Sheet “No further continuances stated: 765(9th 759, Union, F.2d Cir. Int’l. 933 discovery cut-off of permitted.” Given the Co., 1991); Gayle Mfg. Inc. v. Fed. Sav. & for a continu- request Orr’s April (9th 574, Corp., Ins. 910 F.2d Loan discovery from to obtain additional ance Cir.1990). groundless. the FDIC was Orr-should compel production have filed a motion to CONCLUSION discovery cut-off. prior documents mostly are inadmissible Orr’s exhibits due to request for a continuance Orr’s hearsay. or due to lack of authentication likewise devoid of scheduling conflicts was raise a tri- consequence, she cannot As previous two continuances merit because any fact as to of the able issue of material granted. had been More- pretrial dates Further, if Complaint. counts in her even 7, over, from December Orr had notice meritorious, of her tort claims are some day filing dispositive that the final for of limitations. barred Nevada’s statute and that no motions June was grant court’s We thus affirm the district granted. further continuances would be judgment. summary That was in the midst of Orr’s counsel AFFIRMED. day summary trial on another judgment hearing does not as matter of

right entitle her to a continuance. Orr diligence as waited for two

lacked she with being

weeks after served the sum- seeking a

mary judgment papers before this, Despite continuance. SCHNEIDER, Plaintiff- Louis gave days court Orr five to cure the evi- Appellant, dentiary opposition papers defects her v. following hearing. She failed to do so. DIEGO, Reybro, COUNTY OF SAN circumstances, say these we cannot Under Inc., corporation, dba, a California that the district court abused its discretion Quality Recycling, Auto Defendants- denying request for a continuance. Orr’s Appellees. Canada, 831 F.2d at 925-26. See

No. 00-55709. Motion for for VI. BOA’s Sanctions Appeals, United States Court Filing Appeal. a Frivolous Ninth Circuit. BOA moves sanctions 2001. Argued Submitted June against filing appeal a frivolous Orr Filed March pursuant Appellate to Federal Rule of Pro deny cedure 38. motion BOA’s be arguments evidentiary

cause some of Orr’s meritorious, ap-

are and the result of the Appellate appellant's arguments wholly 34. Federal Rule of Procedure 38 are without Thoeren, provides: appeals "If court of determines Corp. v. merit.” Adriana Int’l frivolous, appeal may, that an it after a (9th Cir.1990). F.2d The decision separately filed motion or notice from the impose whether to Rule 38 sanctions lies opportunity respond, court and reasonable appeals. within the discretion of the court of just damages single or double C.I.R., See Urban appellee.” R.App. costs to the Fed. P. 38. An 1992). Cir. appeal is frivolous "if the result is obvious or

We must decide whether Schneider is entitled part interest as constitutionally required “just compen- whether, sation” for property or as the contends, he is merely entitled to delay of payment. Like the court, district where, we conclude that here, owner was not compen- long sated until “just after the taking, compensation” requires an award of pre- However, interest. unlike the court, district we conclude that the amount of is appropriately calculated in a manner that will ensure Goebel, CA, Louise E. Diego, San and property owner receives the con- Chesebro, MA, Kenneth Cambridge, for stitutionally mandated award. We also the plaintiff-appellant. conclude that previously because we had Hill, John J. Sansone and Morris G. held that procedural Schneider’s pro- due County CA, of Diego, Diego, San San rights cess were violated as a matter of the defendants-appellees. law, he judgment is entitled to and nomi- damages

nal jurisdic- therefor. We have pursuant § tion to 28 U.S.C. and we part, affirm in part, reverse in and re- mand. WARDLAW, Before: PAEZ and I. Factual and Procedural Background

TALLMAN, Judges. Circuit Schneider filed this Section 1983 action WARDLAW, arising from the County’s removal Judge. Circuit of sev- eral vehicles property from his over a dec- Louis appeals Schneider ago. ade These appeals1 rep- consolidated awarding prejudgment court’s order inter- resent appearance his third before us est and refusing to award nominal dam- this action. We set forth the relevant ages. After Schneider successfully sued previously facts summarized a panel County Diego of San Gregory and our court: Reynolds, dba Reybro, Inc. (collectively, “County”) for violation Takings In Schneider owned a 1.4 acre lot rural, and Due Process Clauses of the Fifth in a agriculturally zoned part § Amendment under 42 U.S.C. Diego County, San not far from the City district court awarded Schneider “prejudg- of Oceanside. Schneider did not reside ment compensate interest” to him for the on the but rented out delay in payment did, compensation for house located on the lot. He how- takings. ever, buses, It motorhomes, refused to award nominal park nine two process Schneider’s due and two automobiles on the lot in an claim. open approximately field 240 feet from 56329) appeals 1. We address the related to the disposition in a memorandum filed (Nos. attorneys’ concurrently. fees 00-55798 and 00- remand, were On the district court conducted the house. These vehicles visible process road that in front due public jury from the runs trial on Schneider’s County. lot. The takings against of Schneider’s claims jury rendered a verdict favor of the receiving complaints After a number of County filed a on both claims. Schneider vehicles, County about the instituted law, judgment motion for as a matter of County an deter- investigation. officers which the district court denied. Schneider parked mined that the vehicles were 24, 1998, again appealed, April and on we county zoning the lot in violation of ordi- unpublished in an they pub- nances constituted a reversed. We held dis- County position lic that Schneider was entitled to nuisance. was not suc- persuading judgment proce- cessful in Schneider to abate as a matter of law on his voluntarily Septem- process the nuisance and on dural due claims and posted damages. ber it NOTICE AND remanded for determination of ABATE on the property. ORDER TO remand, sought compensa- On Schneider al., Diego, Schneider v. San et tory Compensation relief under the Just (9th Cir.1994). 90-91 Schneid requested entry Clause. Schneider requested appeal hearing, er an which was damages against nominal $1 result, again held. As a he was ordered to each defendant on his due claim However, the remove vehicles. during pre-trial proceedings. The district Schneider took no action the to remove agreed court that Schneider was “entitled property, vehicles from his nor did he by damages law” to nominal for due judicial seek review of the abatement process prejudgment claim and that inter- 21, 1989, order. On December the est would be determined the court after County, through agent Reybro, its abat- jury the trial on for damages takings the ed the nuisance towing the vehicles trial, day jury claim. After a one the Subsequently, Reybro from the lot. $67,795.50 dis- awarded Schneider total of in destroyed mantled or the vehicles and just compensation takings for his claim. scrap. sold the remains as 59(e) Schneider then filed a Rule motion to judgment, amend requesting Id. at 91. $64,931.07 prejudgment in interest for On December Schneider filed takings claim and in nominal damages $2 in this action the District Court for the claim, process the due which the Coun- California, Southern District of naming ty contested. County Diego, towing company of San Inc., Reybro, County and ten officials as court that The district ruled because of defendants. alleged delay Schneider violations in time taking between the of the Fourth payment compensation, Amendment Search and Sei- Schneider Clause, zures the Fifth Amendment Due was entitled to additional to Clauses, Takings Process and justly compensated and various ensure that he was statutory rejected other and common taking. law claims. The court the usual 30,1992, July On granted practice the district court of applying postjudgment rate summary judgment in favor of the for the prejudgment interest amount of on all claims and dismissed from the action sugges- interest and Schneider’s consistent the County appealed, officials. Schneider tion of use of treasury the 52 week bill rate reversed the grant taking we district court’s extant before the of his vehicles. It of summary judgment as to the due pro- found that because substantial evidence cess and takings claims. Id. that showed Schneider’s would during in value the time the claim not have increased accrues until entered, delay “equities thereby time of the and the period achieving compen full case,” appropriate of the it was more sation for the injury damages those are rate, computing a variable interest Virginia use intended to redress.” West States, 305, year separately. Using each that formula- United 311 n. tion, (1987). the court awarded a total amount of S.Ct. 93 L.Ed.2d 639 Whether $34,145.54 interest prejudgment prejudgment interest is permitted par Schneider. The court declined to award ticular case a matter statutory inter damages procedural pretation, law, and, nominal for the due federal common grounds instances, violation on the some state law. See Monessen present Schneider had failed to evidence to Ry. Southwestern Co. v. Morgan, 486 U.S. jury damages 337-38, that an award 108 S.Ct. 100 L.Ed.2d (1988) duplicative intent, of nominal would be (examining congressional law, damage takings award for the viola- federal common and state law rec interest). appealed. ognition tion. Schneider prejudgment ‘We review a district court’s decision to assess Prejudgment II. Interest prejudgment interest rates for abuse of discretion.” Saavedra v. Korean Air County contends Co., Ltd., 555(9th Lines Cir. by awarding any court erred prejudgment 1996) (citing Vance v. Am. Hawaii Cruis interest on the claim. Schneider es, Inc., Cir.1986)). 789 F.2d 790 argues that correctly the district court interest, prejudgment awarded but erred An award of inter calculating him by amount due however, est as for a taking, adopting variable annual rates. takes on a constitutional dimension. The erred, agree that the district court but Fifth Amendment entitles an individual not the manner either party suggests. property govern whose is taken the just Interest awarded as compensation for “just ment to compensation.” First En a takings equivalent violation is not the of glish Evangelical Church Glendale v. of the interest awarded here. 304, Angeles, 315, Los 482 U.S. The two forms of interest serve similar (1987). 2378, 107 S.Ct. 96 L.Ed.2d 250 (to purposes compensate delay), for but just standard, compensation] “Under[the have been entirely sepa- addressed under the owner entitled to receive ‘what a is analytical rate frameworks. As discussed willing buyer would in cash to a pay willing below, prejudgment post-tak- interest and taking.” Kirby seller’ at the time of the ings compensation in the form of interest Indus., States, Forest Inc. v. United 467 are supported by different theoretical 1, 10, 2187, 104 1 U.S. S.Ct. 81 L.Ed.2d foundations, legal under different reviewed (1984) (internal quotations and citations standards, frequently involve different omitted). payment fair market When rates of interest. period following value is deferred for a the taking, “something more than fair market Prejudgment

A. Interest required property value is to make the Compensation as whole, ‘just him compensa owner to afford Taking a ” States, tion.’ Albrecht v. United 329 U.S. 599, 602, 606, (1947); Prejudgment is a mea L.Ed. 532 67 S.Ct. 91 States, sure compensate that “serves to for the see also Jacobs v. United 290 U.S. (1933) 13, 17, money 26, loss of use of due as from 142 54 S.Ct. 78 L.Ed. 790 the

(“ pay interest on to such of the United States is entitled property owner] ‘[The property.” Kirby adjudicated value equivalent the full produce as will addition 9, Forest, 2187. 467 at 104 S.Ct. U.S. with paid contemporaneously that value ” There, the the valuation of the Court found (citation omitted)); Phelps taking.’ the to have taken government the property 344, States, 341, 47 S.Ct. 274 U.S. United the actual date of place years three before (1927) (same); 611, Sea 71 L.Ed. 1083 payment compensa- taking States, Ry. Air Line Co. v. United board government pragmati- therefor. The tion L.Ed. 67 S.Ct. U.S. of trial sought to treat the date cally (same). (1923) district court As the rejected taking. The Court date of out, ele correctly pointed additional “[t]his provided it approach because compensation has been measured ment of “substantially less than the landowner with Albrecht, interest.” in terms of reasonable property on the fair market value of his 606; also at see 329 U.S. S.Ct. payment,” tenders date United States Air, at S.Ct. Seaboard Fifth in violation of the Amendment Just 354(“Interest good rate is a proper at a Id. at Compensation Clause. the amount by which to ascertain measure that the land- 2187. The Court reasoned added.”). of a so to be The determination constitutionally entitled to the owner “is com reasonable rate of interest taking, value of its land on the date of the fact, finding which should pensation is the date of the valuation.” Id. at not on if only clearly be erroneous. disturbed remedy the prob- 104 S.Ct. 2187. To Land, States v. 50.50 Acres United delay lem where “there is substantial (9th Cir.1991). 1349, 1354 F.2d and the date between the date of valuation Supreme recognized Court has judgment paid, during which time modifying a “procedure for condemnation changes materially,” of the land the value delay where there is substantial that an award of in- the Court concluded the date of valuation and the date between constitutionally required, was not terest time paid, during which appropriate procedure but that the was to changes materially.” of the land the value court to take evi- remand to the district Forest, 17-18, Kirby 467 U.S. at 104 S.Ct. in the market change dence related to the Kirby “straight Forest involved a value from date proceeding, which, condemnation”2 which the taking, valuation to the date of the circumstances, Supreme granted Court certiorari to de- in those coincided with the 18-19, a deemed at 104 taking payment. termine when “should be tender of Id. obligation to occur and the constitutional 2187. explained Kirby Supreme

2. in how much is due to the owner As the Court Forest: the land. customarily employs practical The United States one The effect of final the appropriates pri- of three methods when it just compensation give issue of to public purpose. vate for a The most land option buy property Government an to "straight- frequently used is so-called adjudicated price. at the If the Govern- procedure prescribed condemnation” in 40 option, that it ten- ment wishes to exercise § 257. U.S.C. owner, payment private ders where- Forest, 4, Kirby 467 U.S. at 104 S.Ct. 2187. In upon right possession title and vests in to govern- procedure, accordance with this de- the United States. -If the Government complaint a that ment files in condemnation option, cides not to exercise its it can move property identifies the and the interest that the condemnation action. dismissal of Thereafter, the United States wishes to take. (citations omitted). Id. question a to determine the trial ensues

791 Kirby that The asserts est” from date to the date of the propo payment. and Albrecht stand for the Forest government is not consti sition 602, 392 at U.S. 88 S.Ct. 2243. tutionally obligated pay prejudgment therefore conclude that the dis in interest case. This miscon correctly trict court determined that Kirby strues both Forest and Albrecht. prejudgment Schneider is entitled to inter Forest Court described the Kirby est to put good ensure that he was in as meaning just compensa constitutional pecuniary position as he would have occu tion, is “in most the fair mar which cases pied County paid had the him for his vehi ket the property value of on the date it is However, cles when it took them. in de Forest, appropriated.” Kirby 467 at U.S. termining proper rate of the interest to 10, 104 S.Ct. 2187. The Court elaborated awarded, be the court erred. standard, this the owner is that under buyer entitled to receive what a willing B. Calculation of the Appropriate to a pay willing would cash seller at Prejudgment Rate of Interest taking. Addressing the time of the Id. In assessing prejudgment interest, question the Court could case, rate this the district court followed not have been more clear: analysis set forth in Western Pacific pays If the the owner be- Government Fisheries, Inc. v. SS PRESIDENT taken, fore or at the time the GRANT, 1280, Cir. no interest is due on the award.... But 1984). Although Western Fisher Pacific if delayed, disbursement of the award is case, analysis ies a maritime was its the owner is entitled to interest thereon prejudgment measure of interest has been placed sufficient to ensure that he is in applied by numerous district courts Sec good position pecuniarily as he See, e.g., tion 1983 and other actions. Mo occupied payment would have if the had torola, Express, Inc. v. Fed. No. C 99 appropriation. coincided with the WHA, 1677963, *1, 2000 WL at (N.D.Cal. Dist. at *4 U.S. LEXIS Forest, Kirby 467 U.S. at 104 S.Ct. 2000) (following November Western Pa prejudgment to award interest for a cific proposi- Nor does Albrecht stand for the case); cargo Murphy Warsaw Convention constitutionally tion that interest is never Elko, v. City F.Supp. required provide compensation. As (D.Nev.1997) (following Western Pacific Supreme Court stated Albrecht: interest for a Section [Wjhere claim); payment of that fair market due SEC v. Cross deferred, (C.D.Cal. Servs., value is it has been held that Fin. 908 F.Supp. 1995) something (following more than fair market value Western to award Pacific required property action); is to make the in prejudgment owner interest a SEC whole, “just compensa- to afford him Corp. City Golden State Transit v. Los of (C.D.Cal. tion.” additional Angeles, F.Supp. This element of com- 210 1991) in pensation has been measured terms (following Western in award Pacific of “just prejudgment reasonable interest. Thus com- interest ing a Section claim). sense, in pensation” the constitutional yet explicit 1983 labor We have to held, ly has been absent a settlement be- the in adopt standard set forth Western However, parties, tween the to fair be market 1983 cases. Section Pacific value at the time taking plus assuming of “inter- even that the Western Pacific Blankinship, 543 ings); applicable to Section United States generally standard is Cir.1976) (same). actions, the we conclude that measure 1275-76 E.2d in interest Section 1983 prejudgment government of the federal to The Act allows an unconstitutional arising actions out of eminent do- quickly power its of exercise by entirely an distinct taking is controlled the esti- by depositing main with the court line of cases. ac- property plans of it to mated value § At the moment 258a. quire. U.S.C. remedy “just compensation” The court, the the deposit the with placing of taking required is for an unconstitutional acquires property the government Accordingly, the we look Constitution. taking the is deemed to be thus the date of underlying provision constitutional deposit. requires The Act the date of the it, issue, to define interpreting at and cases ultimately if court should prejudgment measure of the appropriate higher at an amount property value the in 1983 cases based on an interest Section deposited, government than that must taking. conclude that unconstitutional We pay interest on the deficit from the time of what “a court must examine district taking payment. to the time of reasonably prudent person funds investing any interest awards on produce prohibits so as to a reasonable return while Act maintaining safety principal,” of 50.50 deposited amount with the court at the Land, 931 F.2d at would Acres taking, permitting only interest time determining pre the amount of receive any deficiency judg- determined after on due in 1983 ac judgment interest Section has described Supreme ment. The Court predicated tions on an unconstitutional purposes: the Act’s dual taking.3 First, give government immediate to ques- examined previously have to possession relieve tion of how interest should be accruing it of the burden of interest in the context calculated cases deposited the sum from the date of tak- Act, Taking the Declaration U.S.C. ing judgment... to date Second- 258a, by may § which United States owner, if ly, give the former his title power. exercise its eminent domain See clear, immediate cash Land, at 50.50 Acres 931 F.2d 1355-56 government’s the extent of the estimate (holding Takings the Declaration of property. of the value of the provision Act’s interest cannot limit the Miller, just United States v. computing rate of interest used (1943). proceed- in eminent domain 87 L.Ed. 336 3. The dissent asserts that we have "reached Schneider raised the issue as to whether the proper pre- out to decide” the calculation of district court erred its determination of the 'prejudgment opening rate of interest in his Section 1983 claims -in However, brief. seeking compensation. we as occasions, have held on numerous we address argues also that we drawn The dissent have law, pure questions despite being raised for present- "a dubious distinction” that was not See, appeal. e.g., the first time on United parties ed between Section claims Echavarria-Escobar, States v. seeking just compensation and Section 1983 ("the (9th Cir.2001) presented 1267-68 However, issue party properly once a tort claims. purely party issue, of law and opposing one obliged adopt we raises an are not prejudice will suffer no result of the legal the erroneous conclusions it advocates. court”); Instead, governing legal failure to raise the issue in the trial we must look to the Robertson, case, authority, United States v. the United States Con- this Here, (9th Cir.1994) (same). Appellant stitution. a government private interest award becomes obligations

“[A]n with necessary just a part of both short long term and term maturi ties”). government’s award when the initial de In adopting standard and re this short the eventual posit falls of award.” jecting Congress’s attempts set a limita Ry. Seaboard Air Line Co. v. United interest, tion on the Supreme Court has States, 299, 306, 261 U.S. 43 S.Ct. 67 emphasized that under takings juris our (1923). L.Ed. 664 In Blankinship, we con prudence “just compensation” “judi is a percent sidered whether the 6 interest rate cial, not a legislative function.” Monon specified by deficiency then the Act for the gahela States, Navigation Co. v. United contravened the Fifth Amendment re 13 S.Ct. 37 L.Ed. quirement just compensation. of We held (1893). that notwithstanding express the Act’s lim have previously not held that this itation, the only: “op 6% limitation could method of calculation of prejudgment in- erate as a floor. No lesser rate 6% is than terest should be employed a Section consistent with the intent of Congress; predicated 1983 action upon an unconstitu- greater rate no than 6% in some instances taking. tional Failure employ the rea-

will contravene the Fifth Amendment.” sonably prudent investor measure pre- Blankinship, 543 F.2d at 1275. interest, however, as in cases Land, In 50.50 Acres we elaborated exploring question in the context of the upon in Blankinship, explaining: the rule Act, Declaration of Takings could result Blankinship, Under the court must first constitutionally inadequate compensation determine if the statutory formula is Moreover, award. we fail to see how the constitutionally inadequate given the tort law nature of Section 1983 alters this factual circumstances of the case. The Supreme conclusion. The Court rec- has court should receive evidence from each that, ognized unlike most constitutional side and variety consider a of invest- provisions, the Fifth Amendment provides ment If measures. the court finds the both the cause of action and the remedy statutory formula inadequate, to be it for an taking, unconstitutional “frequently must then determine the appropriate that, stat[ing] view the event of a rate to be used. taking, the compensation remedy is re- 931 F.2d at 1355. quired by the Constitution.” First En- 315-16, glish, 482 U.S. at 107 S.Ct. 2378. To appropriate determine the strongly suggested The Court has also just rate of interest payment when com the tort law nature of Section 1983 pensation delayed, the district court change does not the constitutional nature must reasonably examine what “a prudent remedy: of this person investing funds produce so as to reasonable return maintaining safety argument while uncompensated that an of principal” would receive. 50.50 Acres taking is not tortious because the land- Land, 931 F.2d at just 1354. The district court owner seeks rather apply should an interest damages rate based on than additional for the depriva- evidence generat of the rate that would be tion of a remedy, reveals the same mis- ed investment in a group understanding. Simply put, diverse there is no securities, including treasury injury bills. See constitutional or tortious until the Land, United States v. Acres is denied compensation, landowner 4.29.59 465(9th Cir.1980) F.2d (approving an that the to which the landown- range award of interest based on “wide er injury is entitled this are mea- of his constitu- just symbolic he was “as a vindication by sured surprising signifi- right.” Floyd, nor 929 F.2d at 1403. denied is neither tional court, however, cant. The denied district 59(e) Rule motion to amend Schneider’s Monterey v. Del Monte Dunes at City of in nominal judgment provide for $2 Ltd., 687, 718, 119 Monterey, citing grounds: two waiver and damages (1999). 1624, 143L.Ed.2d 882 the de- duplication remedy. We review therefore, conclude, 59(e) nial motion for an abuse of the Rule just compensation remedy because City v. of discretion. See Zimmerman taking a is constitutional nature Cir.2001). (9th Oakland, 255 F.3d judicial legislative— a matter of thus —not function, court, statutory provid vehicle Upon return to the district his remedy ing that is not determinative made his claim for nominal Schneider $1 remedy prejudg itself. The amount of clear damages from each defendant to all. ment interest should be calculated a In the Pretrial Supplemental Conference manner that ensures that Order, judge agreed: constitutionally adequate owner receives takings remedy Because Schneider’s therefore remand this compensation. We superior procedural process to his due case to the district court for the determi remedy, limit he has elected to himself proper nation of a and reasonable interest proving up count actual “reasonably rate in accordance with the damages, beyond damages the nominal prudent investor” standard set forth to which he is entitled law under the Blankinship.4 Acres Land and 50.50 procedural process due claim. finding The court’s later district waiver Damages III. Nominal on failure was based Schneider’s to re- in failing district court erred quest jury a instruction on nominal dam- damages to award Schneider on nominal ages process for the due violation and a procedural process due claim. As a However, proof failure of as to that claim. ap result of second round Schneider’s already prevailed Schneider had on his due peals, we held that he was entitled to claim, judg- and was entitled to judgment as a law on matter of this claim. damages ment and nominal as a matter of Therefore, remand, the district court law. should have entered and award It if plaintiff is axiomatic that a is enti- damages. damages ed nominal “[N]ominal law, tled to an award as matter of he be if plaintiff must awarded proves need not submit evidence of entitle- her] violation of his constitutional [or explained ment to the trier of fact. As we Ihde, rights.” v. Estate Macias in Floyd: (9th Cir.2000) (citations F.3d omitted); Beach, George Long see also v. the judge jury any [N]either nor the has (9th Cir.1992) matter, 973 F.2d discretion in this (plaintiff assuming that jury reasonably entitled to nominal as a matter of has its rendered law); Laws, Floyd plaintiff. jury 929 F.2d verdict for the If the (9th Cir.1991) (same). violation, enti Schneider is finds a constitutional an award law, damages, damages mandatory, tled to such as a matter of of nominal not 1273; proper ship, 4. The determination of the rate of 543 F.2d at v. 100 United States Land, question interest is a factual Acres Cir. 1976). be determined the trier of fact. Blankin- jury might That a choose to We have awarded nominal permissive. damages damages actual is irrelevant award zero plaintiff even when a has been fully com whether, on the legal question to the pensated through a different cause of ac verdict, plaintiff jury’s basis of the In City Angeles, tion. Larez v. Los judgment entitled to and nominal was 630(9th 1991), F.2d Cir. Ruvalcaba v. damages. Floyd Because secured a fa- City Angeles, Los 167 F.3d 514 vorable verdict on her section 1983 jury Cir.1999), plaintiffs we awarded the both ..., legally claim entitled she was to nominal compensatory damages judgment mandatory with a nominal Larez, injury. the same 946 F.2d at damages symbolic award of $1.00 640(“[T]othe extent that the Larezes were right. vindication of her constitutional against made whole the award the offi 1402-03(abuse 929 F.2d at of discretion to cers, damages nominal were still available damage withhold nominal award notwith- phase.” in the second (citing Carey, 435 error). standing invited 1042)); Ruvalcaba, U.S. at 98 S.Ct. (“Even though 167 F.3d at 524 Ruvalcaba an Nor is award of nominal fully compensated inju has been for his damages for due claim process Schneider’s ries, may damages he still recover nominal duplicative just compensation for a Compensatory ‘separate claim. dam distinct [constitutional] ages damages and nominal serve distinct wrong’ irrespective of whether he is enti purposes. damages purely Nominal are a damages wrong.” tled to actual for that “symbolic vindication of constitutional [a] Larez, 640)). (quoting 946 F.2d at right,” regardless and are awarded Because Schneider was entitled as a whether “the constitutional violation judgment matter of law to and nominal any damage.” George, causes actual damages procedural on his due Compensatory damages, by F.2d at 708. claim, the district court abused its discre- contrast, serve to return the plaintiff to 59(e) denying his Rule tion motion to position occupied he or she would have judgment amend the to include in nomi- $2 had the harm not occurred. See Dan B. damages. nal (2d Dobbs, ed.1993); § 1.1 see Remedies Carey Piphus, also (1978) 1042, 55 (stating L.Ed.2d IV. Conclusion

that damages under Section 1983 should correctly The district court found that ordinarily according be “determined case, under the circumstances of this Indeed, compensation principle”). nominal paid long where was after damages normally are awarded when a taking, pre- Schneider is entitled to plaintiff is unable an enti to demonstrate judgment prop- interest. That amount is compensatory damages. tlement See erly calculated within framework 1042(stat Carey, 435 U.S. at 98 S.Ct. our eminent domain cases to ensure that ing that courts can award nominal dam constitutionally in a ade- ages under Section 1983 for violation of an “ quate amount is awarded to the right[ ‘absolute’ not shown to ] that[is] prevailed owner. Because Schneider as a injury....”); have actual caused Estate procedural pro- matter of law on his due Macias, (holding 219 F.3d at 1028 claim, prove cess he need not actual dam- damages nominal must be awarded for vio and nomi- ages, but is entitled rights lations of constitutional even when shown). damages. no actual are nal We therefore omitted). opinion appears Our part; part tions AFFIRM REVERSE § claim for agree that Schneider’s consistent proceedings and REMAND for removal of his nuisance vehi- County’s herewith. of tort law. governed by principles cles is TALLMAN, Judge, Dissenting Circuit in correctly recognizes that opinion The Opinion: Part II. from prejudgment interest in tort calculating law, agree

I that is entitled to both in governed by Schneider cases federal courts claim reasoning nominal on his due follow the generally our Circuit Fisheries, § interest on his 1983 Inc. v. prejudgment and of Western SS Pacific Grant, ill- only I from the 730 F.2d 1288 claim. dissent Court’s President Cir.1984). fact, In applicable pre- opinion cites sever- departure advised from our holds, in have for the first al cases which our district courts cedent. The Court time, in- calculating prejudgment applied reasoning in of Western Pacific actions,” § § “takings in certain 1983 Fisheries to 1983 claims. Nowhere does terest longer rely solely disapprove computation can no on the Court of the district court in easily simply applied and those cases under determined § Treasury week Bill rate 28 1961. applicable 52 U.S.C. judgments by other tort awarded federal company my I col- part Where with opinion courts. Because the Court’s however, leagues, is their conclusion that by drawing reaches out to decide this issue exception we must now carve out an from § 1983 dubious distinction between § accepted practice this for 1983 actions just seeking claims and oth- just which seek under §er 1983 tort claims that was neither Takings of the Fifth Amendment. Clause by the nor presented parties, considered so, doing In the Court relies on a line of court,

by respectfully I dissent. cases, exemplified by holdings our Unit- Supreme recognized, Blankinship, As the Court has ed States v. 543 F.2d 1272 (9th Cir.1976) Land, § brought actions under U.S.C. Acres 50.60 (9th Cir.1991), by in tort are to sound be evaluated 931 F.2d 1349 which re- light the courts in of the principles quire variety of tort trial courts to consider a liability: in calculating pre- marketable investments interest on awards of com-

[T]here can be no doubt that claims pensation. opinion recognize, fails to brought pursuant § 1983 sound however, that these cases involve land con- tort. tort Just common-law actions proceedings completely demnation under a provide redress for interference with Act, separate Rights statute from the Civil interests, protected personal or Act, Taking the Declaration of 40 U.S.C. § provides relief for invasions of 258a, § brought and were by the United rights protected under federal law. acquire States an effort to land for Recognizing the essential character of public use eminent domain. statute, repeatedly have noted ‘[w]e § that 42 species U.S.C. 1983 creates a contrast, sharp In Schneider chose to liability,’ interpreted of tort and have claim bring damages stemming a tort light ‘background statute in of the County’s improper from the removal from liability.’ tort his land and destruction of personal prop- City Monterey vehicles, erty, junked Del Monte Dunes at commercial in an Ltd., Monterey, public U.S. effort to abate a nuisance. Schneid- (1999) (quota- styled 143 L.Ed.2d 882 er could have his claim as one for recovery just compensation taken by under the district court. After recog- Constitution, Takings Clause but nizing general applicability of Western instead chose to invoke the of 42 benefits Fisheries, the district court relied Pacific § Presumably, U.S.C. he did so for Anzalone, Blanton v. reasons, purely strategic such as the abili- (9th Cir.1984), proposition § ty punitive under 1983 to recover dam- the equities of the require case fees, ages, attorneys he pre- costs if different result than would be afforded By choosing style vailed. claim as a perfunctory application of 28 U.S.C. tort, one sounding implicitly Schneider § 1961. The district court then went on to agreed to have his against action evaluated fashion an by using a variable inter- “background the liability.” tort rate, est based on the 52 week Treasury judgment he won should therefore be Bill, but to compound refused the interest is, treated for what it as a judgment, tort annually.2 justified The district court this and prejudgment interest should be calcu- approach reference to the fact that the lated the manner applicable in all other County produced had evidence that the § 1983 actions. seven old updated buses which values fact, In this is the approach advocated were available would have declined to a himself in Schneider this ease. fair market value of zero by January 1999. argued appeal Schneider on that he should Thus, the district court reasoned that the have been awarded prejudgment interest declining underlying value the at the required by calculated rate 28 justified a in discount the amount of pre- § U.S.C. the approach same dictated judgment interest. in assigned Western Fisheries. He Pacific error to the district court’s While it refusal to do unclear how the district Moreover, brief, so. in his appellate court’s compound refusal to interest is re- specifically requested Schneider that we equities case, lated to the of the the dis- court, not remand this ease to the district trict court and Schneider both were cor- but that we instead entry remand for of an rect in recognizing judgment that the awarding order prejudgment at interest tort, favor of Schneider is based in rate interpretation consistent with his prejudgment thus interest should be calcu- § 1961. While I disagree with applica- prescribed lated manner Western case, § tion of the facts of I this By Fisheries. creating unprec- an Pacific believe that he correctly identified edented to the method of exception calcu- body of law applicable to the calculation of lating prejudgment interest in federal tort prejudgment interest due on an award of cases, and unnecessarily complicating its just compensation.1 calculation with the need for a “mini-trial”

In addition to ignoring arguments rates of return to fix inter- reasonable us, made to judgment, Schneider also fails est on the opinion Court the Court’s to address reasoning and approach unnecessarily confuses what should have however, requested 1961(a), prejudg- Schneider an § award of under 28 U.S.C. 7.66%, ment applicable Treasury interest at a fixed rate of com- 52 week Bill rate is "for pounded annually, period preceding for the the the week calendar the date of between judgment.” (12/12/89 yield 1/26/99). removal This would interest rate an This rate is interest based on the 52 week 4.513%. Treasury bill rate closest to the date seizure, and would result in an approach prejudgment interest award 2. This resulted in a $64,931.07. $34,145.54. recognized, The district court interest appli- simple straight-forward

been I have § 1961. would

cation of 28 U.S.C. according

awarded the Western analysis forth set cases, and or- Fisheries line of

Pacific in nominal pay

dered $2 lengthy lit- thereby bringing this

damages, end. For richly to its deserved

igation reasons, respectfully I dissent.

these ALMADA, husband; Mary

Edward

Almada, wife, Plaintiffs-

Appellants, COMPANY, INSURANCE

ALLSTATE corp., foreign Defendant-

Appellee.

No. 00-16115. Appeals,

United States Court of

Ninth Circuit. Nov. 2001.

Argued and Submitted

Filed March

Case Details

Case Name: Louis Schneider v. County of San Diego, and Reybro, Inc., a California Corporation, Dba, Quality Auto Recycling

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 21, 2002

Citation: 285 F.3d 784

Docket Number: 00-55709

Court Abbreviation: 9th Cir.