Cordi-Allen v. Conlon

Decision Date27 July 2007
Docket NumberNo. 06-2300.,06-2300.
Citation494 F.3d 245
PartiesBarbara CORDI-ALLEN and John Allen, Plaintiffs, Appellants, v. Joseph R. CONLON et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Paul Revere, III, for appellants.

Deborah I. Ecker, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on brief, for appellees.

Before LYNCH, Circuit Judge, SELYA, Senior Circuit Judge, and LIPEZ, Circuit Judge.

SELYA, Senior Circuit Judge.

Land-use restrictions often set neighbor against neighbor, and can be a source of considerable turmoil in otherwise tranquil communities. So it is here: Barbara Cordi-Allen and her husband John Allen (the Allens) are landowners in the Cape Cod town of Truro, Massachusetts (the Town). They own a waterfront lot and wish to improve it. They have thus far been stymied in their efforts by a series of zoning, environmental, and licensing restrictions.

The Allens accuse the Town of singling them out for unfavorable treatment and thwarting their plans. The Town, with equal fervor, accuses the Allens of seeking advantages to which they are not entitled. The ill will has spread like a malignant growth and has come to envelop several of the Allens' neighbors.

After many years of travail, the Allens elevated the feud to constitutional proportions: they condensed their grievances into a so-called "class of one" claim, alleging that the disparate treatment they had received infringed their rights under the Equal Protection Clause. See U.S. Const. amend. XIV. The Town heatedly denied these allegations. The district court sided with the Town and granted summary judgment in its favor. See Cordi-Allen v. Conlon, No. 1:05-cv-10370, 2006 WL 2033897, at *8 (D.Mass. July 19, 2006).

We are called upon to review that order. In doing so, we take the supported facts in the light most favorable to the nonmovants (here, the Allens). Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.2007).

The events surrounding this case are byzantine, and a full recitation would serve no useful purpose. Thus, we offer only a decurtate summary, supplemented as needed in the course of our analysis of the relevant legal issues. We urge readers who hunger for more detailed information to consult the district court's comprehensive opinion (which even the Allens, at oral argument before us, commended as doing "a good job of gleaning the facts").

This controversy dates back to March of 1996, when the Allens purchased a piece of waterfront property in Truro. The parcel abuts properties owned by Brooke Newman, Sarah Landis, and the Pamet Harbor Yacht Club. Other neighbors in relatively close proximity include the Sextons and the Perrys.

The Allens' lot is undersized. The only improvements on it as of the date of acquisition were a small 400-square-foot cottage and a short pier.1 The Allens aspired to build a compound. Their plans contemplated erecting a new 1,512-square-foot dwelling with an attached 1,750-square-foot garage on a solid foundation with crawl space drainage; expanding the existing cottage (originally built as a boathouse) into a 640-square-foot residence; and installing a large swimming pool with adjacent decks. To top matters off, the Allens proposed to install floats as a means of extending their existing pier.

A number of disagreements arose with respect to the Allens' plans. These included disputes about the interpretation and application of zoning laws and environmental restrictions. The controversy soon extended to the licensing of the proposed floats.

The Allens characterize all of this as obstructive behavior. They protest that it stands in stark contrast to the accommodations lavished on other residents. Their next-door neighbor, Newman, is the poster child for the claim of unequal treatment. In addition, they insist that Landis, the Sextons, and the yacht club all have received more favorable receptions from the Town.

Frustrated by these perceived inequities, the Allens filed suit in a Massachusetts state court in February of 2005. Their complaint contained five counts. The first, third, fourth, and fifth counts are not relevant here. The sole count with which we are concerned—count 2—invoked 42 U.S.C. § 1983 and alleged that the Town had denied the Allens equal protection of the laws.

On the basis of the equal protection claim, the defendants removed the case to the federal district court. See 28 U.S.C. §§ 1331, 1441. In due course, the Town moved for summary judgment with respect to count 2. See Fed.R.Civ.P. 56. The district court concluded that the Allens had not shown that the Town had treated them differently from similarly situated parties and entered judgment on the equal protection claim. See Cordi-Allen, 2006 WL 2033897, at *8. It then remanded the remaining counts to the state court. See id.; see also 28 U.S.C. § 1367(c).

This timely appeal ensued. We have appellate jurisdiction notwithstanding the remand. The rule is that when a district court enters a final judgment on all the federal claims then pending in a civil action and contemporaneously remands all remaining claims to a state court, immediate appellate review of that collateral order is available. See Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95, 99 (1st Cir.2001) (per curiam).

The applicable standard of review is familiar. We appraise a grant of summary judgment de novo. Galloza v. Foy, 389 F.3d 26, 28 (1st Cir.2004). We are not wed to the district court's rationale but, rather, may affirm its order on any independent ground made manifest by the record. Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999).

To warrant affirmance of an order for summary judgment, the record must disclose no genuine issue as to any material fact and show conclusively that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). An issue is genuine if, on the evidence presented, it "may reasonably be resolved in favor of either party" at trial. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). By like token, a fact is material if it "possess[es] the capacity to sway the outcome of the litigation under the applicable law." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (internal quotation marks omitted). In the final analysis, then, "[t]he nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006).

In applying these tenets, we take the facts in the light most hospitable to the nonmovant and draw all reasonable inferences in that party's favor. Galloza, 389 F.3d at 28. When doing so, however, we give no weight to conclusory allegations, unsupported conjecture, or free-wheeling invective. Id.

This is a rifle-shot appeal: the only assignment of error advanced by the Allens is that the district court blundered in concluding that they had not adduced facts sufficient to survive summary judgment on their equal protection claim against the Town.2 That theory runs along the line that the Allens constitute a "class of one," impermissibly singled out for unfavorable treatment by the Town. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Such a claim is cognizable when—and only when—a "plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Id. At the summary judgment stage, of course, this allegation must be backed by competent evidence.

The Allens maintain that they have offered probative evidence on all the elements that are necessary to forge such a cause of action.3 The district court rejected the Allens' importunings: it concluded that while the Allens had presented a plethora of evidence concerning a number of other landowners, they had failed to show that these landowners were similarly situated to them. The main thrust of the Allens' appeal is the claim that the district court "erred in placing [a] burden on the Allens [that] should have been placed upon the moving party" with respect to this issue. Appellants' Br. at 20.

In evaluating this argument, we do not write on a pristine page. Although "[t]he formula for determining whether individuals or entities are `similarly situated' for equal protection purposes is not always susceptible to precise demarcation," Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001), the case law makes clear that the burdens of production and persuasion must be shouldered by the party asserting the equal protection violation. Thus, "[p]laintiffs claiming an equal protection violation must first identify and relate specific instances where persons situated similarly in all relevant aspects were treated differently." Buchanan v. Maine, 469 F.3d 158, 178 (1st Cir.2006) (emphasis in original) (internal quotation mark omitted).

The Allens also argue that, regardless of the allocation of burdens, the district court demanded more of them than the law allows. In their view, the degree of similarity between their situation and the situations of the landowners whom they identified as comparators was, on the evidence adduced, a question of material fact that should have been left to a jury. This argument cannot withstand scrutiny.

To be sure, the ultimate determination as to whether parties are similarly situated is a fact-bound inquiry and, as such, is normally grist for the jury's mill. But that does not mean that every case, regardless of the proof presented, is a jury case. To carry the burden of proving substantial similarity, "plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves." Clubside, Inc. v. Valentin, 468 F.3d 144,...

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