
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2047                        ARTHUR J. LICARI, AS HE IS TRUSTEE OF                             COLONIAL DRIVE REALTY TRUST,                                Plaintiff, Appellant,                                          v.                        JOSEPH FERRUZZI, PATRICK J. McNALLY,                        STANLEY I. BORNSTEIN, KENNETH J. SAVOIE                       WILLIAM E. BINGHAM, CATHERINE LEFEBVRE,                       ELIZABETH WARE AND THE TOWN OF IPSWICH,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Paul F. Denver, with whom Rossman,  Rossman & Eschelbacher were on            ______________            ________________________________        brief for appellant.            Patrick  M. Hamilton,  with whom  Richard E.  Brody and  Morrison,            ____________________              _________________      _________        Mahoney  &  Miller were  on brief  for  appellees Patrick  J. McNally,        __________________        Stanley I. Bornstein, Kenneth J. Savoie, William E. Bingham, Catherine        Lefebvre,  Elizabeth Ware and the Town of Ipswich, Nancy Merrick, with                                                           _____________        whom  Douglas I.  Louison  and Merrick  & Louison  were  on brief  for              ___________________      __________________        appellee Joseph Ferruzzi.                                 ____________________                                    April 22, 1994                                 ____________________                      BOWNES, Senior Circuit  Judge.  This appeal  arises                      BOWNES, Senior Circuit  Judge.                              _____________________            from  an action for damages brought by a developer frustrated            by  town planning  and  permitting authorities.    Plaintiff-            appellant,  Arthur J.  Licari, as  trustee of  Colonial Drive            Realty Trust  (hereinafter "Colonial"), appeals from an order            granting summary judgment  for defendants-appellees, the Town            of Ipswich,  the town  building inspector, the  town planner,            and members of the planning board.  The complaint alleged due            process  violations under  42  U.S.C.     1983,  as  well  as            violations of  Massachusetts civil rights  laws and  tortious            interference  with  contract.   We  affirm  the decision  for            defendants on the    1983 claims, but vacate the  judgment on            the pendent state claims and remand so that those claims will            be adjudicated, or dismissed without prejudice.                                            I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      In 1987, Colonial's predecessor in  interest sought            to develop property in Ipswich, Massachusetts, and obtained a            "special permit" from the planning board  to comply with town            zoning laws.1    One  part  of  the  project  included  three            buildings.  The building  plans incorporated into the special            permit   stated   that  Building   3   would   be  set   back                                            ____________________            1.  A  special permit  is  analogous to  a  variance.   Under            Massachusetts  law,  a  town's  zoning  ordinances may  allow            particular developments, such as multifamily dwellings, to be            constructed in a given zoning district only upon the issuance            of a special permit.  Mass. Gen. Laws ch. 40A,   9.                                           -2-                                          2            "approximately forty-five (45) feet" from the road.  Colonial            acquired three  building  permits and  began construction  in            1988.                        At a hearing held on October 12, 1989, the planning            board discussed whether the  location of Building 3 conformed            with the dimensions in the plans incorporated in  the special            permit.  One week  later, the town planner wrote  to Colonial            that Building 3 was  seven feet closer to  the road than  the            special permit  allowed.   The  letter  requested  Colonial's            confirmation or  denial of those charges,  in writing, before            the  next board  meeting on  October 26  and stated  that any            further  work would be at  the developer's risk.   The record            does not  indicate whether Colonial attended  that meeting or            submitted any information  to the board.   During the October            26 meeting,  the  board  issued  and later  recorded  at  the            registry  of deeds a "Notice  of Noncompliance," based on the            discrepancy between  the special  permit and the  location of            Building 3.                      Building 3's proximity to the road was discussed in            planning board  meetings over the following  months.  Members            of  the board informed Colonial at a hearing in November 1989            that Buildings  1 and 2 also contravened  the special permit.            In November 1989, Colonial sought an amendment to the special            permit  to cure the problems,  but the board  did not approve            that application until April 2, 1990.  Meanwhile, on February                                         -3-                                          3            1, 1990, Colonial once  again argued to the board  that there            were  no discrepancies  between  the special  permit and  the            project as built.                        On February 2, 1990, defendant Joseph Ferruzzi, the            town building inspector, revoked  all three building  permits            and ordered that  further work  cease.  The  reasons for  the            revocation  were that the buildings  did not conform with the            special permit, and that Colonial had represented in applying            for building  permits that the project was in compliance with            "project documents" and with zoning requirements.   According            to Colonial, the board ordered the permits revoked.  Colonial            initiated,  but later  abandoned,  an  appeal  of  Ferruzzi's            action to the Massachusetts Building Code Appeals Board.                      Until new building permits were issued, work on the            project could not continue, and bank financing was suspended.            In  May 1990, Ferruzzi promised to issue new permits, but did            not actually issue them until  August.  The bank's  financing            commitment  also  expired  in  August.   Colonial  failed  to            complete the project and defaulted on its loan.                       In January 1993, Colonial  filed suit in the United            States District Court for the District of Massachusetts.  The            complaint  alleged  that  Ferruzzi  and the  town  failed  to            provide due process by  revoking the building permits without            a proper inquiry, notice, or hearing.  The complaint included            claims  that  the arbitrary  acts  of  defendants other  than                                         -4-                                          4            Ferruzzi violated Colonial's  due process  rights.   Finally,            the   complaint  alleged  that   defendants  interfered  with            Colonial's   contractual   relations,  and   that  defendants            violated Massachusetts civil rights laws.  Defendants filed a            motion  for   summary  judgment,  which  the  district  court            granted.                                         II.                                         II.                                        ISSUES                                        ISSUES                                        ______                      Colonial argues  on  appeal [1]  that the  district            court  erred  in  granting summary  judgment  on  the    1983            claims; [2] that the court erred in denying Colonial's motion            for leave to engage in discovery under Fed. R. Civ. P. 56(f);            and [3] that the court erred in granting summary judgment for            defendants  on  the state  law  claims.   We  consider  those            arguments seriatim.                        ________                      The first issue is whether the district court erred            in  granting  summary judgment  on  the  federal due  process            claims.  Our review of the district court's order is de novo.                                                                 __ ____            Nestor Colon Medina &  Sucesores, Inc. v. Custodio,  964 F.2d            ______________________________________    ________            32, 39 (1st Cir. 1992).  Summary judgment  is proper where no            material  facts  are in  dispute,  and  the moving  party  is            entitled to judgment  as a matter  of law.   Fed. R. Civ.  P.            56(c).                        Defendants argue  that summary judgment  was proper            because this case is analogous to our line of cases upholding                                         -5-                                          5            pretrial  orders  disposing  of    1983  due  process  claims            brought by  frustrated  applicants against  local  permitting            officials.    See,  e.g.,  Nestor Colon,  964  F.2d  32;  PFZ                          ___   ____   ____________                   ___            Properties, Inc.  v. Rodriguez, 928 F.2d 28  (1st Cir. 1991),            ________________     _________            cert.  dismissed, 112  S. Ct.  1151 (1992);  Creative Env'ts,            _____  _________                             ________________            Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied, 459            ____    _________                           _____ ______            U.S. 989 (1982).  We agree.  In this case, as in those cases,            the procedural  and substantive  due process claims  were not            actionable under   1983.                                         III.                                         III.                                 DUE PROCESS CLAIMS                                  DUE PROCESS CLAIMS                                 __________________                      To  avoid summary  judgment  on  a  procedural  due            process  claim, Colonial must show [1] that it had a property            interest  defined  by state  law;  and  [2] that  defendants,            acting under color of state law, deprived it of that interest            without adequate process.  PFZ Properties, 928 F.2d at 30.  A                                       ______________            viable substantive due process  claim requires proof that the            state  action was  "in  and  of  itself  .  .  .  egregiously                                __  ___  __  ______            unacceptable,  outrageous, or conscious-shocking."  Amsden v.                                                                ______            Moran, 904  F.2d  748,  754  (1st  Cir.  1990)  (emphasis  in            _____            original), cert.  denied, 498  U.S. 1041 (1991).   Procedural                       _____  ______            due process guarantees that  a state proceeding which results            in a deprivation  of property is fair,  while substantive due            process  ensures that such state action  is not arbitrary and            capricious.  Id. at 753-54.                                ___                                         -6-                                          6            A.  Revocation of Building Permits            A.  Revocation of Building Permits                ______________________________                      Colonial  argues that its  right to  procedural due            process was violated when defendant Ferruzzi, at the planning            board's behest, revoked the  building permits in violation of            state law without prior notice and a hearing.  Ferruzzi acted            under color  of state law;  the letter  revoking the  permits            cited the  discrepancies between  the special permit  and the            project as built and  stated that he could "revoke a permit .            .  . in case of  any false statement  or misrepresentation of            fact in the application or the plans on which the  permit . .            .  was based."    22  Mass. Regs.  Code  tit.  780,    114.7.            Because  we assume  for  the purposes  of  this opinion  that            Colonial  held a  property interest in  the permits,  see PFZ                                                                  ___ ___            Properties,  928 F.2d  at  30-31, the  key  issue is  whether            __________            Colonial was afforded adequate process.                       To  determine  whether  a  procedural  due  process            violation has occurred, "it is necessary to  ask what process            the State  provided,  and  whether  it  was  constitutionally            adequate.    This  inquiry   would  examine  the   procedural            safeguards   built  into  the   statutory  or  administrative            procedure . .  . effecting the deprivation,  and any remedies            for erroneous deprivations provided  by statute or tort law."            Zinermon  v. Burch, 494 U.S. 113,  126 (1990).  We assess the            ________     _____            adequacy of procedures by balancing the government's interest            against the private interest affected by the action, the risk                                         -7-                                          7            of  an erroneous  deprivation,  and the  value of  additional            safeguards.  Mathews v. Eldridge, 424 U.S. 319, 335 (1976).                           _______    ________                                     We  begin our analysis by describing the procedural            protections  afforded Colonial.   Prior  to  the deprivation,            Colonial  was notified of the board's  allegations and had an            opportunity  to rebut them.  We take as true Colonial's claim            that  the  planning  board  was  the  ultimate  decisionmaker            because  it  ordered  the  permits  revoked.    Colonial  was            notified at  planning board meetings in  October and November            1989, by  a letter from the  town planner in October,  and by            the "Notice of Noncompliance" filed  at the registry of deeds            in November that there were alleged discrepancies between the            plans incorporated in  the special permit and  the project as            built.   Those  allegations underlay  the finding  that there            were false  statements  in the  building permit  application.            Colonial had an opportunity to contest those allegations with            respect  to Building 3 during  the October 12  hearing and in            the two weeks preceding the planning  board's issuance of the            Notice of  Noncompliance.   Although it is  unclear from  the            record   whether  Colonial   actually   responded  to   those            allegations, it  is enough to satisfy the  Due Process Clause            that  the   opportunity   for  such   a   response   existed.            Furthermore,  on  February  1,  1990,  Colonial  disputed the            allegations  with  respect to  all  three buildings,  several                                         -8-                                          8            months after receiving notice  of them, and one day  prior to            the revocation.                      The   notice  Colonial   received   prior  to   the            revocation   never  specifically   informed   it   that   the            inconsistency  between  the  special permit  and  the project            might be  a basis for  finding a  "misrepresentation" in  the            building permit application, justifying the revocation of the            permits.   Colonial  argues that  it  was thereby  denied  an            opportunity to be heard on that issue.   We disagree.  First,            Colonial received  a letter from the  town planner describing            the discrepancy  between the special permit  and the location            of  Building 3 and indicating  that further work  would be at            the   developer's  risk.     That   letter,  the   Notice  of            Noncompliance, and later discussions  with the board informed            Colonial  that   town  officials  deemed   the  discrepancies            significant.    Furthermore, Ferruzzi's  letter  revoking the            building permits claimed that plans submitted to him prior to            the issuance  of the permits stated that the project complied            with  zoning  and with  "project documents."   A  letter from            Colonial's architect  appended  to Colonial's  Opposition  to            Defendants'  Motion   for  Summary  Judgment   supports  that            statement of the facts, and nothing in the record contradicts            it.   Cf. 22 Mass. Regs.  Code tit. 780,   113.5 (application                  ___            for building  permit must include  site plans).   Finally,  a            state  regulation  authorized  Ferruzzi  to  revoke  building                                         -9-                                          9            permits  based  on   false  statements  in  building   permit            applications.2     Id.     114.7.    The  existence  of  that                               ___            regulation, the warning in the planner's letter, the repeated            discussions  with  the  board,  and  the  contents  of  plans            submitted  on  Colonial's  behalf to  the  building inspector            provided Colonial  with sufficient notice and  an opportunity            to respond.                       There is a further reason why the revocation of the            building   permits  did  not   violate  Colonial's  right  to            procedural   due  process:    postdeprivation  remedies  were            available.      See  Zinermon,   494   U.S.   at  126   ("The                            ___  ________            constitutional  violation actionable  under     1983  is  not            complete  when the  deprivation  occurs; it  is not  complete            unless and until  the State fails to  provide due process.").            Colonial  had  numerous opportunities  to  meet  formally and            informally  with town officials to  recover the permits.  See                                                                      ___            Amsden,  904 F.2d at  755 (informal negotiations  are part of            ______            process  provided).  Such negotiations ultimately yielded the            result  Colonial   desired,  the  issuance  of  new  permits.            Moreover, Colonial had the  right to an administrative appeal                                            ____________________            2.  An affidavit of Jason Sokolov, Colonial's attorney before            the planning board, states, "On information and belief, th[e]            accusation  [of  a misrepresentation  in the  building permit            application] was untrue."  We  express no opinion on whether,            as  a  matter of  state law,  those  statements in  the plans            submitted  to  Ferruzzi constituted  "misrepresentation[s] of            fact in the  [building permit] application."  22  Mass. Regs.            Code tit., 780   114.7.                                            -10-                                          10            of the  building inspector's decision, which  could have been            heard by the zoning board of appeals or by the state Building            Code  Appeals   Board,  and   a  right  to   judicial  review            thereafter.   See  22 Mass.  Regs. Code  tit. 780,     126.1,                          ___            126.6; 126.7.1.                        Colonial  misses the  mark  by  arguing that  those            remedies  are insufficient  solely  because  relief might  be            delayed,  and damages are  unavailable.  In  the first place,            delays,  while endemic to  administrative and  judicial fora,            are minimized in these  proceedings because the Appeals Board            adheres to  a timetable.   22 Mass.  Regs. Code tit.  780,               126.3.4, 126.4.3.   Furthermore,  a damage  remedy is  not an            essential  component  of  constitutionally   adequate  review            procedures.  Chongris v. Board of Appeals, 811 F.2d 36, 44-45                         ________    ________________            (1st  Cir.), cert. denied, 483 U.S. 1021 (1987).  We conclude                         _____ ______            that Colonial had  sufficient notice and an opportunity to be            heard prior  to the revocation,  and adequate  administrative            and judicial review procedures afterwards; no further process            was exigible.  Id. at 40.                             ___            B.  Notice of Noncompliance            B.  Notice of Noncompliance                _______________________                      Colonial adverts  that the planning  board violated            procedural due process by  summarily issuing and recording at            the registry of deeds a Notice of Noncompliance, which stated            that   Colonial's  buildings   did   not  comply   with   the            requirements of the  special permit.   That issue appears  in                                         -11-                                          11            the brief without citation to legal authority, and with scant            elaboration  on whether or  how the board's  act affected any            property  right.  We express no opinion on the merits because            we  deem  it waived.    "Issues adverted  to  on appeal  in a            perfunctory   manner,   unaccompanied   by   some   developed            argumentation,  are deemed  to have  been abandoned."   Gamma                                                                    _____            Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1113 (internal            ___________________    ________            quotation marks and citation omitted).             C.  Delays            C.  Delays                ______                      Colonial  contends  that   the  board's  delay   in            approving the  application  for  an  amended  special  permit            violated its right to procedural  due process.  Assuming that            Colonial  held a property interest in the permit prior to its            issuance,   and  that   the   delay   itself  constituted   a            "deprivation," we disagree  with Colonial's  contention.   We            take  as true  the allegation  that the  delay  resulted from            defendants' unauthorized intransigence  and illegal  demands.            We have rejected similar   1983 claims, however, where--as in            this  case--the deprivation  was unauthorized,  the  value of            further  process  was  negligible,  and  the  state  provided            adequate remedies.  E.g.,  Nestor Colon, 964 F.2d at  40; PFZ                                ____   ____________                   ___            Properties, 928 F.2d at 31; see also Mass. Gen. Laws ch. 40A,            __________                  ___ ____              9 (failure of permitting board to act on permit application            within  90 days after public hearing deemed to be approval of                                         -12-                                          12            application); id.    17 (final decisions  of permitting board                          ___            subject to expedited judicial review).             D.  Substantive Due Process Claims            D.  Substantive Due Process Claims                ______________________________                      The substantive due process claims are based on the            same  factual  allegations  underlying  the   procedural  due            process claims, i.e., the revocation of the building permits,                            ____            the  unauthorized issuance  of  enforcement  orders, and  the            delays  in  the   processing  and   approval  of   Colonial's            application  for an  amended  permit.   Those acts  allegedly            manifest "a  persistent and consistent  hostility and  animus                                                                   ______            toward [Colonial]," aimed at  coercing Colonial to reduce the            size of the project.                       "This  Court  has  repeatedly   held  .  .  .  that            rejections  of development  projects  and  refusals to  issue            building permits do not ordinarily  implicate substantive due            process."   PFZ Properties, 928  F.2d at 31;  see also, e.g.,                        ______________                    ___ ____  ____            Creative Env'ts, 680 F.2d at 832 n.9,  833.  There is nothing            _______________            in  the record to differentiate this case from those in which            we have found no  viable basis for a    1983 claim.   We note            that Colonial  has neither argued, nor  offered evidence that            defendants' "hostility and animus" was aimed at any political                                       ______            affiliation, belief, stance,  or immutable characteristic  of            Colonial.   Rather, Colonial's  brief states that defendants'            improper conduct "was motivated by the defendants'  wrongful,            outrageous goal" of compelling  it to reduce the size  of the                                         -13-                                          13            project.  Cf. Creative Env'ts, 680 F.2d at 833 ("Every appeal                      ___ _______________                    _____            .  . .  from an  adverse ruling  by a  . .  . planning  board            necessarily  involves some  claim  that the  board  exceeded,            abused  or `distorted' its legal  authority . .  ., often for            some allegedly perverse (from  the developer's point of view)            reason.  It  is not  enough simply  to give  these state  law            claims  constitutional labels  .  . .  in  order to  raise  a            substantial  federal question under  section 1983." (emphasis            in original)).                        Colonial argues that  this court should  "overrule"            the cases  in this circuit rejecting  substantive due process            claims in local  planning disputes, so that  its claims might            be litigated.   Colonial contends that  there are cases  from            other circuits  permitting   1983 actions  based on arbitrary            or  capricious conduct by local land  use officials, and that            this  court  should follow  suit in  this  case.   See, e.g.,                                                               ___  ____            Littlefield  v. City of Afton,  785 F.2d 596  (8th Cir. 1986)            ___________     _____________            (collecting cases).  But  see Lemke v. Cass County,  846 F.2d                                 ___  ___ _____    ___________            469, 470-71 (8th Cir. 1987) (en banc) ("Whether a substantive            due process claim may arise from a denial  of a zoning permit            is an open question in this circuit . . . .").                         There is a  problem with  Colonial's argument  that            goes  beyond its  assumption that  this panel  would overrule            precedent  in this circuit:   we have never  announced a rule            precluding  district  courts  from  finding  substantive  due                                         -14-                                          14            process violations  by land  use planning officials  in every                                                                    _____            conceivable case.   Rather,  "[o]ur cases make  clear that  a            regulatory  board  does  not  transgress  constitutional  due            process   requirements  merely   by  making   decisions  `for            erroneous  reasons' or  by  making  `demands  which  arguably            exceed  its authority  under the  relevant state  statutes.'"            Amsden, 904 F.2d at 757 (quoting Creative Env'ts, 680 F.2d at            ______                           _______________            832 n.9); see also, e.g., Chiplin Enters. v. City of Lebanon,                      ___ ____  ____  _______________    _______________            712 F.2d 1524, 1528 (1st Cir.  1983).  "We have left the door            slightly ajar  for federal  relief [based on  substantive due            process] in truly horrendous  situations."  Nestor Colon, 964                                                        ____________            F.2d at  45.   Nevertheless, "the threshold  for establishing            the  requisite  `abuse of  government  power' is  a  high one            indeed."  Id.                        ___                      There is  a sound basis  for our  approach to  such            claims in land use planning disputes:                        Substantive due process, as a  theory for                      constitutional  redress, has  . .  . been                      disfavored,  in  part   because  of   its                      virtually standardless reach.   To  apply                      it  to  claims [alleging  that permitting                      officials  were  motivated  by  political                      factors  and  parochial  views  of  local                      interests]  would  be  to  insinuate  the                      oversight   and  discretion   of  federal                      judges into  areas traditionally reserved                      for state and local tribunals.            Id.             ___                      We  are   not  persuaded  by   Colonial  that   the            allegations  and evidence  in this  case distinguish  it from                                         -15-                                          15            Nestor Colon and  the other cases  in this circuit  rejecting            ____________            substantive  due  process claims  in  similar  disputes.   In            Amsden, 904 F.2d at 757, for example, in deciding an issue of            ______            qualified immunity, we stated that plaintiff had not produced            evidence of  conduct so  "shocking or violative  of universal            standards  of decency" as to violate  the Due Process Clause,            although the evidence suggested  that plaintiff's license was            revoked  to force his partner out of business.  Id. (internal                                                            ___            quotation  marks and citation  omitted).  Defendants' conduct            in this case, allegedly designed to  force Colonial to reduce            the  size  of  its  project, is  similarly  not  sufficiently            "conscious-shocking."  Id. at 754.  We hold that the district                                   ___            court properly  granted summary  judgment on the  due process            claims.                                           -16-                                          16                                         IV.                                         IV.                             DENIAL OF RULE 56(f) MOTION                             DENIAL OF RULE 56(f) MOTION                             ___________________________                      Colonial argues  that the district  court erred  in            denying its  motion under Fed. R. Civ.  P. 56(f) for leave to            engage in discovery.   The district court stated that  it was            denying  the  motion  because  "defendants  are  entitled  to            judgment as a matter of law."                        "To satisfy Rule 56(f),  a party must `articulate a            plausible  basis for the  belief that  discoverable materials            exist which would raise a trialworthy issue.'"  Nestor Colon,                                                            ____________            964  F.2d  at 38  (citation omitted).    With respect  to the            federal claims  that we  consider in this  appeal, Colonial's            motion  asserted  that  discovery  would  yield  evidence  of            defendants' "animus"  towards Colonial, and evidence  of what            defendants "knew or believed" about the location of the three            buildings.   We consider whether the denial of the motion was            an abuse of discretion.  Id.                                     ___                      We find no abuse of discretion in this case because            the  evidence sought by Colonial  is not the  type that would            render the     1983 claims  viable.   Colonial  alleged  that            defendants' improper conduct was motivated by the defendants'            goal  of compelling  it to  reduce the  size of  the project.            Such a motive might be illegitimate as a matter of state law,            but  it is  not a  basis for  a    1983 claim.   See  Chiplin                                                             ___  _______            Enters.,  712 F.2d  at 1528.   Similarly,  there would  be no            _______                                         -17-                                          17            basis  for  relief under    1983,  even if  discovery yielded            proof that defendants knew  that the buildings conformed with            the special permit.  Id. ("A mere bad faith refusal to follow                                 ___            state law  in such  local administrative matters  simply does            not  amount to a deprivation  of due process  where the state            courts are available to  correct the error.").  Consequently,            we  conclude that the district  court did not  err in denying            the Rule 56(f) motion.                                            V.                                          V.                              DISMISSAL OF STATE CLAIMS                              DISMISSAL OF STATE CLAIMS                              _________________________                      Finally, we consider whether judgment  was properly            entered  on  the pendent  state  law  claims.   The  district            court's  summary judgment  order  consists  of the  following            notation on the first page  of defendants' motion:  "Allowed,            Nestor  Colon Medina & Sucesores, Inc.  v. Custodio, 964 F.2d            32 (1st Cir.  1992), PFZ Properties,  Inc. v. Rodriguez,  928            F.2d  28  (1st  Cir. 1991).    Judgment  may  be entered  for            defendants."  We read  that order as resting on  Nestor Colon                                                             ____________            and PFZ Properties, not as an endorsement of all arguments in                ______________            defendants' brief.                        The reference  to Nestor  Colon and  PFZ Properties                                        _____________      ______________            makes clear  that the district court  considered Colonial's              1983  claims.   Nothing,  however, indicates  that the  state            civil rights  and tort claims  were weighed.   That  adequate            state   appeals  procedures  and  remedies  might  protect  a                                         -18-                                          18            developer's federal  due process rights, and  thus preclude              1983  litigation, see Nestor Colon,  964 F.2d at  40, 45; PFZ                              ___ ____________                        ___            Properties, 928 F.2d  at 31-32, is not  germane to Colonial's            __________            state law claims.                        Although there is no  indication that the  district            court ever  considered the pendent claims,  the court's order            effectively  dismissed  those  claims with  prejudice.    The            court's  order on those  claims was  an abuse  of discretion.            Defendants have not answered  the complaint; there is support            in  the record for the  pendent claims; and  Colonial has not            yet   had   the   opportunity   to   engage   in   discovery.            Consequently,  while we  affirm the  judgment on  the    1983            claims,  we vacate the judgment  on the state  law claims and            remand  the case so that those claims will be adjudicated, or            dismissed  without  prejudice.    See  28  U.S.C.     1367(c)                                              ___            (district court  may  decline to  exercise jurisdiction  over            pendent  claims  if it  has  dismissed  all federal  claims);            Mercado-Garcia v.  Ponce Federal Bank, 979 F.2d 890, 896 (1st            ______________     __________________            Cir.  1992); Figueroa Ruiz v. Alegria, 896 F.2d 645, 650 (1st                         _____________    _______            Cir. 1990).                        It is so ordered.                      It is so ordered.                      _________________                                         -19-                                          19
