                                                                           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                            NOT FOR PUBLICATION                             JAN 07 2013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


                                           3
due process issue. See Gerling Global, 400 F.3d at 808–10; Carreras, 768 F.2d at

1042–43, 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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