                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                           September 19, 2003
                      FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                          No. 02-50825


SOUTHWESTERN BELL TELEPHONE COMPANY,

                                         Plaintiff-Appellant,

                             versus

CITY OF EL PASO; ET AL,

                                         Defendants,

EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO. 1,

                                         Defendant-Appellee.



                          No. 02-50899


SOUTHWESTERN BELL TELEPHONE COMPANY,

                                         Plaintiff-Appellee,

                             versus

CITY OF EL PASO; ET AL,

                                         Defendants,

EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO. 1,

                                         Defendant-Appellant.



          Appeals from the United States District Court
                for the Western District of Texas
Before JOLLY, HIGGINBOTHAM, and STEWART, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     Southwestern Bell Telephone Co. (“SWBT”) brought a suit under

42 U.S.C. § 1983 for declaratory and injunctive relief against the

City of El Paso and El Paso County Water Improvement District No.

1 (“EPCWID”), claiming that EPCWID’s application process and fees

for the use of its facilities constituted an illegal taking in

violation of the Fifth Amendment as well as the Contract Clause of

the Constitution, and a violation of the Federal Telecommunications

Act of 1996 (“FTA”).1    SWBT also alleged that EPCWID’s actions

violated state law, particularly Texas Utility Code § 181.082. The

district court granted summary judgment in favor of SWBT, but

denied its request for attorney’s fees pursuant to 42 U.S.C. §

1988.    We affirm the grant of summary judgment in favor of SWBT,

but reverse the district court’s denial of attorney’s fees.     We

therefore remand the case to the district court for a determination

of reasonable attorney’s fees pursuant to § 1988.

                                 I.

     SWBT is a provider of telecommunications services and holds a

certificate of convenience and necessity issued by the Public

Utility Commission of Texas (“PUC”).   EPCWID is a water district

operating under Article XVI, Section 59, of the Texas Constitution.

At the center of the controversy between SWBT and EPCWID is a

     1
       47 U.S.C. §§ 151, et seq. The City and SWBT have settled
their claims, leaving only EPCWID in the case.

                                 2
series of irrigation canals, laterals and ditches deeded from the

United States Bureau of Reclamation to EPCWID in January 1996.

Development in the area of EPCWID’s facilities has resulted in a

number of roads being built across the facilities and has also

resulted in an increase in the demand for telephone services.

     EPCWID established application procedures for entities wanting

to   cross    its    facilities,       including         the    completion         of   an

application,    payment      of   an   application        fee     of    $500,     and   the

obtaining of a survey at the applicant’s expense.                             Before the

survey is ordered, EPCWID’s Board of Directors must preliminarily

approve the application.          After the survey is completed, if the

application is approved, the Board assesses an ad hoc charge for

the crossing, based on the length of the crossing to be used and

the nature of the applicant.

     SWBT    has    placed    its      lines       and   cables        across    EPCWID’s

facilities without submitting to EPCWID’s application process. The

current dispute arose when SWBT began laying a new fiber optic

cable along Texas State Highway 20, crossing one of EPCWID’s

facilities.        EPCWID   threatened        to    arrest     the     line     crews   for

trespass and remove the cables there and elsewhere if SWBT did not

comply with EPCWID’s application process and pay a fee for use of

EPCWID’s facilities.

     SWBT sought declaratory relief against EPCWID, arguing that

(1) EPCWID’s application fees violate the FTA and state law; (2)

roads and highways crossing EPCWID’s ditches, laterals, and canals

                                          3
are   public   roadways;       (3)       EPCWID    has   no   right   to    charge   for

telephone lines crossing its canals, ditches and laterals when

those lines are within the rights-of-ways of public roadways; (4)

the water flowing through EPCWID’s canals and ditches is public;

and (5) EPCWID has no right to charge for telephone lines crossing

public waters. EPCWID filed a counterclaim, alleging that SWBT has

trespassed on its property.

      EPCWID    and   SWBT     moved       for    summary     judgment,     and   EPCWID

requested   leave     to   file      a    second    amended     counterclaim.        The

district    court     denied      EPCWID’s        motion      for   leave   to    amend.

Following a stay for an interlocutory appeal of EPCWID’s Eleventh

Amendment defense,2 the district court granted summary judgment in

favor of SWBT and denied EPCWID’s motion for summary judgment on

its counterclaims.         Following entry of judgment, SWBT filed a

motion for attorney’s fees and EPCWID moved to alter or amend the

judgment.      The court denied both motions, and SWBT appeals the

denial of attorney’s fees.                 EPCWID cross-appeals the grant of

summary judgment in favor of SWBT, the denial of its summary

judgment motion, and the denial of its motion to alter or amend the

judgment.

                                            II.


      2
      EPCWID sought dismissal of SWBT’s claims on the ground that,
as an arm of the State, it was entitled to Eleventh Amendment
immunity. The district court denied the motion to dismiss, and we
affirmed. Southwestern Bell Tel. Co. v. City of El Paso, 243 F.3d
936, 940 (5th Cir. 2001).

                                             4
                                      A.

     We begin by addressing EPCWID’s assertion that the district

court abused its discretion by not giving the parties ten days

notice    prior   to   taking   the   summary   judgment   motions   under

consideration, a notice it argues is required by Rule 56(c)3.

     We rejected that argument in Jackson v. Widnall.4 There we

stated:

     Rule 56(c) merely requires the court to give the
     non-movant an adequate opportunity to respond prior to a
     ruling.     We have previously rejected [this] very
     argument, noting that rule 56(c) requires neither an oral
     hearing nor advance notice of a “date certain” on which
     a motion for summary judgment is to be decided; instead,
     “if there is not a hearing, the adverse party must have
     at least ten days to respond to the motion for summary
     judgment.”5

The local rules of the Western District of Texas, the ones at issue

here, satisfy the notice requirements of Rule 56(c) by requiring

that a response to a summary judgment motion be filed within a

specified period of time.6      Here, EPCWID filed a response, which it


     3
       Fed. R. Civ. P. 56(c) provides in part, “The motion shall be
served at least 10 days before the time fixed for the hearing. The
adverse party prior to the day of hearing may serve opposing
affidavits.”
     4
         99 F.3d 710, 713 (5th Cir. 1996).
     5
       Id. (quoting Daniels v. Morris, 746 F.2d 271, 274-75 (5th
Cir. 1984)).
     6
       Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014, 1020
(5th Cir. 1993); see also W.D. Tex. R. CV-7(e) and (g) (requiring
a response to a motion to be filed within eleven days, and
providing that oral argument is at the sole discretion of the
court).

                                      5
had ample opportunity to supplement before the court ruled.                    The

court delayed       consideration    of    the   motions,   but   there   is    no

evidence that it lulled EPCWID into prejudicial inaction, and this

delay    is   not   enough    to   warrant   a   finding    of    an   abuse   of

discretion.7

                                      B.

     We next turn to EPCWID’s assertion that the district court

abused its discretion in refusing to allow EPCWID to amend its

pleadings for a third time to include additional counterclaims

including breach of contract. The district court found undue delay

on the part of EPCWID, noting “discovery has closed, the deadline

provided in the scheduling order for amending pleadings has passed,

and this case is set for trial on August 14.                      Additionally,

[EPCWID] has twice previously amended its answer.                 Finally, the

raising of new counterclaims at this late date would prejudice

[SWBT].”

     We review the district court’s denial of leave to amend for

abuse of discretion.8        We recently stated that:



     7
       See Daniels, 746 F.2d at 275-76 (stating that, “[w]hen, as
here, the parties have been given ample opportunity to respond to
the motion for summary judgment, the district judge may rule on it
even after a significant delay, without giving the parties advance
notice,” and distinguishing cases where the court induced the
parties into thinking the case was going to trial from those where
the court merely waited to consider the motion (emphasis added)).
     8
       S & W Enters., LLC v. Southtrust Bank of Ala., NA, 315 F.3d
533, 535 (5th Cir. 2003).

                                       6
     Federal Rule of Civil Procedure 16(b) governs amendment
     of pleadings once a scheduling order has been issued by
     the district court.      Rule 16(b) provides that a
     scheduling order “shall not be modified except upon a
     showing of good cause and by leave of the district
     judge.”    The good cause standard requires the “party
     seeking relief to show that the deadlines cannot
     reasonably be met despite the diligence of the party
     needing the extension.”9

Thus, EPCWID must show good cause for not meeting the deadline

before the more liberal standard of Rule 15(a) will apply to the

district court’s denial of leave to amend.10

     In determining good cause, we consider four factors: “(1) the

explanation for the failure to timely move for leave to amend;   (2)

the importance of the amendment;        (3) potential prejudice in

allowing the amendment;    and (4) the availability of a continuance

to cure such prejudice.”11   The district court previously extended

the deadline and allowed EPCWID to twice amend its pleadings to add

counterclaims.     EPCWID was aware of the contract that forms the

basis of its proposed amendment months in advance of the deadline

and does not offer a satisfactory explanation for its delay in

seeking leave to amend.    When combined with the prejudice to SWBT

in allowing untimely additional counterclaims, and the likely

failure of the proposed counterclaims on the merits, we find that



     9
      Id. (quoting 6A Charles Alan Wright et al., Federal Practice
and Procedure § 1522.1 (2d ed. 1990)).
     10
          Id. at 536.
     11
          Id. (internal quotation marks omitted).

                                  7
the court did not abuse its “broad discretion to preserve the

integrity and purpose of the pretrial order.”12

                                        C.

     EPCWID asserts that the district court erred in granting

SWBT’s     motion   for      summary   judgment.       Summary   judgment   is

appropriate      “if      the     pleadings,      depositions,   answers     to

interrogatories,       and      admissions   on   file,   together   with   the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.”13       We review a grant of summary judgment de novo,

applying the same standards as did the district court.14

     SWBT moved for summary judgment, relying on both state and

federal law, and requested that the district court declare

     Southwestern Bell’s right under Texas and federal law to
     use the roads and cross the waters controlled by EPCWID.
     Further, the Court should also declare that EPCWID has no
     authority under the Texas Water Code or the Texas
     constitution provision to which it owes its existence to
     charge the general public for crossing over its
     waters....

     We begin by considering SWBT’s argument that Texas Utilities

Code § 181.082 authorizes SWBT to cross EPCWID’s facilities without

submitting to EPCWID’s application process and paying EPCWID a fee

for the crossing. Section 181.082 reads: “A telephone or telegraph

     12
          Id. at 535 (internal quotation marks omitted).
     13
          Fed. R. Civ. P. 56(c).
     14
          Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir.
1998).

                                         8
corporation may install a facility of the corporation along, on, or

across a public road, a public street, or public water in a manner

that does not inconvenience the public in the use of the road,

street, or water.”15

     At the outset, we find no merit in EPCWID’s contention that

the word “public” makes the statute unconstitutionally vague.            The

statute has been applied in various forms by Texas courts since it

was first enacted in 1874, and it is not the case that more than

one-hundred years of pronouncements from the state courts have left

it unconstitutionally vague.

     EPCWID argued to the trial court that § 181.082 does not apply

because none of the roads crossing its facilities are public roads.

EPCWID    reasoned   that   the    roads   were   constructed   across   its

facilities    when   they   were    controlled    by   the   United   States

government pursuant to a fifty-year license agreement between the

United States and the City of El Paso.             That agreement did not

dedicate the land for public use, and therefore EPCWID contends

that although the roads are used by the public on a daily basis,

they are not “public” within the meaning of § 181.082.

     We will address this contention only briefly, as did EPCWID.

The streets of El Paso, as well as the other roads within the

district constructed by the various governments for public use, are

“public” within the meaning of § 181.082, even where they cross


     15
          Tex. Util. Code Ann. § 181.082 (Vernon 2003).

                                      9
over EPCWID’s facilities.          Whether EPCWID has the power to remove

the crossings at the expiration of the lease is irrelevant.                       The

roadways are public, and § 181.082 applies.

      It is well established in Texas law that § 181.082 and its

predecessor statutes grant telephone companies broad powers to

install their lines within the rights-of-ways of public roads, and

that local governments cannot deny this right.16 EPCWID argues that

even if § 181.082 allows SWBT’s crossings within the rights-of-ways

of   public    roads,    nothing   in   §       181.082   prohibits   EPCWID      from

managing its facilities by requiring SWBT to comply with reasonable

regulations and pay a reasonable fee to compensate EPCWID for the

use of its property.

      In Harlingen Irrigation District Cameron County No. 1 v.

Caprock     Communications    Corp.,        a    Texas    State   appellate      court

addressed a similar argument.17             There, Caprock obtained permits

from the Texas Department of Transportation to install underground

fiber-optic     cables    along    several       roads    that    crossed   or   were

parallel to the irrigation district’s facilities.                   The irrigation

district insisted that Caprock pay a fee for crossing its property,


      16
        See Harlingen Irrigation Dist. Cameron County No. 1 v.
Caprock Communications Corp., 49 S.W.3d 520, 531 (Tex. App.--Corpus
Christi 2001, pet. denied); Southwestern Bell Tel. Co. v. Bigler,
563 S.W.2d 851, 853 (Tex. Civ. App.--San Antonio 1978, no writ);
Heldt v. Southwestern Bell Tel. Co., 482 S.W.2d 352, 356 (Tex. Civ.
App.--Corpus Christi 1972, no writ); City of Brownwood v. Brown
Tel. & Tel. Co., 157 S.W. 1163, 1165 (Tex. 1913).
      17
           49 S.W.3d 520.

                                        10
and institute additional measures to minimize the impact the cable

would have on its operations.18              The court rejected the irrigation

district’s argument that § 181.082 did not apply because the

easements granted to the county were limited to construction and

maintenance of a road, not the installation of utilities.                           The

court stated that the grant of a right-of-way for roadway purposes

“includes       the   attendant    public         purposes    of   transportation   of

persons and property, communication, and travel. Roadway easements

include the use of the subsurface for sewers, pipelines and other

methods of transmission and communication that serve the public

interest.”19      The Caprock court concluded that § 181.082 applied,20

and that any restriction on the Department of Transportation’s

ability    to    permit   the     use   of    the     roads    for   installation    of

communications facilities “interferes with the state’s freedom to

devote the roadways to the wants and convenience of the public”:21

     The public policy favoring the use of public roads for
     communications facilities is as relevant today as it was
     in the early part of the twentieth century.           The
     construction of new housing and new roads requires the
     construction of new telephone lines. Roads serving the
     public in areas of growth will inevitably cross stretches
     of property owned, or held by easement, by a variety of
     public utilities and entities similar to HID. If each of
     these utilities is able to impose restrictions on the


     18
          Id. at 524.
     19
          Id. at 527 (citations omitted).
     20
          Id. at 531.
     21
          Id. at 532.

                                             11
     construction of facilities along public roads, the
     extension of telephone service to areas of new
     construction would be greatly hampered. This is contrary
     to the policy of encouraging access to means of
     communication, such as telephone service.22

We find this reasoning persuasive, and agree that it is contrary to

the policy of § 181.082 to allow EPCWID to regulate or charge a fee

for SWBT’s facilities that are within the rights-of-ways of public

roads.

                                  D.

     The district court also held that in the alternative, the

waters within EPCWID’s facilities are public waters, and thus SWBT

was entitled pursuant to § 181.082 to install its cables across and

along them.     EPCWID argues that this holding is in error, first,

because the waters are not public, and second, because the district

court failed to address EPCWID’s claim that it can place reasonable

restrictions on the use of its property and charge a reasonable fee

for such use.    This alternative basis is in fact much broader than

simply allowing SWBT to utilize the rights-of-ways of public roads

to cross EPCWID’s facilities since it would allow SWBT to cross

EPCWID’s property at any point.        Given that the summary judgment

evidence before the court concerns only cables laid within the




     22
       Id. at 533 (citing City of Brownwood v. Brown Tel. & Tel.
Co., 157 S.W. 1163, 1165 (Tex. 1913); Roaring Springs Town-Site Co.
v. Paducah Tel. Co., 212 S.W. 147, 149 (Tex. 1919); Southwestern
Bell Tel. Co. v. Bigler, 563 S.W.2d 851, 853 (Tex. Civ. App.--San
Antonio 1978, no writ)).

                                  12
rights-of-ways of public roads,23 and the fact that there is no

guidance from the state courts on this difficult issue, we decline

to address this alternative basis to sustain the summary judgment.

Because state law provides an adequate basis for deciding the

issue, we also decline to consider SWBT’s contention that the

Federal Telecommunications Act,24 prohibits EPCWID’s actions, or

that EPCWID’s actions violate SWBT’s property and contract rights

under the United States Constitution.25

                                 E.

     EPCWID also argues that the district court erred in denying

its motion to alter or amend the judgment based on the denial of

permission to file an amended pleading. Because the district court

did not abuse its discretion in denying leave to amend to add the

     23
       The district court stated that the parties seemed to be in
agreement that the cables were installed along roadways constructed
or maintained by city or state governments for public use. SWBT’s
amended complaint describes the dispute as arising out of a
crossing within the right-of-way of Texas Highway 20. EPCWID’s
summary judgment evidence does not indicate where the cables are
installed, stating only that SWBT has “made use of the rights-of-
ways of EPCWID.”
     24
          47 U.S.C. § 253(a) and (c).
     25
        EPCWID also contends that the district court erred in
rejecting its contention that SWBT was liable for trespass on
EPCWID’s property.     SWBT’s entry onto EPCWID’s property is
authorized by § 181.082 where it is within the right-of-way of a
public road. EPCWID has presented no evidence of entry onto its
property other than an affidavit which states that SWBT has “made
use of the rights-of-ways of EPCWID.”     This is not evidence of
unauthorized entry, and therefore there is no evidence of trespass.
See Nugent v. Pilgrim’s Pride Corp., 30 S.W.3d 562, 575 (Tex. App.-
-Texarkana 2000, pet. denied) (stating that trespass is the
unauthorized and intentional entry upon land).

                                 13
counterclaim for breach of contract, the district court did not

abuse its discretion in refusing to amend the judgment based on the

counterclaim which was not before the court.26

                                III.

     The final issue is SWBT’s claim that the district court erred

in denying its motion for attorney’s fees under 42 U.S.C. § 1988

or, alternatively, Texas Civil Practice and Remedies Code § 37.009

based on SWBT’s successful Texas state-law claims for declaratory

relief.     We review a denial of attorney’s fees for abuse of

discretion.27   The district court’s underlying findings of fact are

subject to review for clear error and its conclusions of law are

reviewed de novo.28

     The district court denied SWBT’s motion for attorney’s fees

pursuant to § 198829 because “[SWBT] was not granted any relief

pursuant to 42 U.S.C. § 1983 in the Court’s [summary judgment]

order and judgment.     Therefore, the Court finds that attorney’s



     26
       See S. Constructors Group, Inc. v. Dynalectric Co., 2 F.3d
606, 611 (5th Cir. 1993) (stating that abuse of discretion standard
applies).
     27
        See Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001);
Auclair v. Sher, 63 F.3d 407, 410 (5th Cir. 1995).
     28
          Id.
     29
       42 U.S.C. § 1988 provides in relevant part: “In any action
or proceeding to enforce a provision of [section 1983], the court,
in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the
costs....”

                                 14
fees are not warranted....”       The district court accepted the

contention that because SWBT prevailed on its state law claims, it

was not the prevailing party under §§ 1983 and 1988.   This view is

supported by logic, but not our case law.

     In Scham v. District Courts Trying Criminal Cases, a criminal

defense attorney, challenged a state court order prohibiting the

Harris County district court and sheriff from disclosing the street

addresses or telephone numbers of criminal defendants until the

defendant retained counsel.30   Scham sued under § 1983, alleging a

violation of his First and Fourteenth Amendment rights, and sought

an injunction prohibiting enforcement of the order.        He also

brought a supplemental state law claim for violation of the Texas

Open Records Act.31

     The district court granted summary judgment in favor of Scham,

holding that the defendants did not have authority under Texas

state law to issue the order, and specifically avoided ruling on

Scham’s § 1983 claims.32   Scham sought attorney’s fees pursuant to

§ 1988, which the district court denied, and Scham appealed.33   The

appellees argued that because the district court granted summary

judgment on a narrow state law ground, Scham did not succeed on any


     30
          148 F.3d 554, 556 (5th Cir. 1998).
     31
          Id.
     32
          Id.
     33
          Id.

                                  15
federal claim and therefore was not a prevailing party for the

purposes of § 1988.34      We rejected this argument, stating, “we have

previously held that a plaintiff may be deemed a prevailing party

if he prevails on a supplemental state law claim which arises from

a common nucleus of fact with his federal constitutional claims, if

the court chooses to avoid ruling on the constitutional issues.”35

     In Williams v. Thomas, a county jail inmate sued under § 1983,

alleging that deputies imposed cruel and unusual punishment upon

him and deprived him of his liberty without due process of law by

grabbing him and slamming him against the wall and floor of the

Dallas County jail.36       In an amended complaint, Williams added a

state     assault   and   battery   action   pursuant   to   the   court’s

supplemental jurisdiction, and sought recovery of attorney’s fees

under § 1988. 37    The district court entered judgment based on the

state law claims.       We affirmed Williams’ recovery of damages under

the state law claims, and did not address the alleged errors

regarding the denial of a “good faith” defense to the § 1983

claims.38 We then affirmed the district court’s grant of attorney’s

fees pursuant to § 1988, stating:

     34
          Id. at 557.
     35
       Id. (citing Williams v. Thomas, 692 F.2d 1032, 1036 (5th
Cir. 1982)).
     36
          692 F.2d at 1033.
     37
          Id.
     38
          Id. at 1035.

                                     16
      In Maher v. Gagne, [448 U.S. 122 (1980)], the Supreme
     Court intimated that a party prevailing on a substantial
     claim that is pendent to a civil rights claim is entitled
     to a recovery of attorney’s fees when the civil rights
     claim and the pendent claim arise out of a common nucleus
     of operative facts.     This Circuit, along with other
     circuits, has followed the Supreme Court’s direction.
      These cases demonstrate that the federal courts are
     aware of the fact that often a court will affirm a
     judgment on a pendent, noncivil rights claim when to do
     so will allow it to avoid an unnecessary decision on a
     difficult constitutional issue.39

     Thus, under our precedent attorney’s fees may be awarded even

if the § 1983 claim is not decided, “provided that 1) the § 1983

claim of constitutional deprivation was substantial;              and 2) the

successful    pendant   claims   arose   out   of   a   ‘common   nucleus   of

operative facts.’”40    A claim is substantial if it supports federal

question jurisdiction, and the “common nucleus of operative facts”

element must satisfy the test established in United Mine Workers v.

Gibbs for pendent jurisdiction.41


     39
       Id. at 1036 (citing Gibbs v. Town of Frisco City, Ala., 626
F.2d 1218 (5th Cir. 1980); Lund v. Affleck, 587 F.2d 75, 76-77 (1st
Cir. 1978); Seals v. Quarterly County Court, 562 F.2d 390, 393-94
(6th Cir. 1977); Bond v. Stanton, 555 F.2d 172, 174 (7th Cir.
1977); Kimbrough v. Ark. Activities Ass’n, 574 F.2d 423, 426 (8th
Cir. 1978) (citations omitted)). Since deciding Williams, we have
cited its holding numerous times. See, e.g., Scham v. District
Courts Trying Criminal Cases, 148 F.3d 554, 557 (5th Cir. 1998);
Rodriguez v. Handy, 873 F.2d 814, 817 (5th Cir. 1989); Heath v.
Brown, 807 F.2d 1229, 1233 (5th Cir. 1987); McDonald v. Doe, 748
F.2d 1055, 1057 (5th Cir. 1984); Espino v. Besteiro, 708 F.2d 1002,
1010 (5th Cir. 1983).
     40
          Rodriguez, 873 F.2d at 817 (quoting Williams, 692 F.2d at
1036).
     41
       See Espino v. Besteiro, 708 F.2d 1002, 1009-10 (5th Cir.
1983) (citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966)).

                                    17
     SWBT grounded its § 1983 claim on a violation of the Federal

Telecommunications Act and violations of the Takings and Contracts

Clauses of the United States Constitution.     We here affirm the

grant of summary judgment based on state law, declining to decide

whether EPCWID’s practices also violate federal law under § 1983.

To qualify as a prevailing party, “the plaintiff must (1) obtain

actual relief, such as an enforceable judgment or a consent decree;

(2) that materially alters the legal relationship between the

parties; and (3) modifies the defendant’s behavior in a way that

directly benefits the plaintiff at the time of the judgment or

settlement.”42 SWBT is the prevailing party. It is also clear that

SWBT prevailed under § 1983, since SWBT stated a § 1983 claim

substantial enough to support federal question jurisdiction,43 and

the state law claims arise out of the same facts as the § 1983

claims.

     EPCWID argues that a violation of the FTA cannot be the basis

for a § 1983 action, and therefore SWBT did not prevail under §




     42
       Walker v. City of Mesquite, 313 F.3d 246, 249 (5th Cir.
2002) (citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)).
     43
        We have stated that “[t]he substantiality test merely
requires that the issue raised in the fee claim not be ‘wholly
insubstantial,’ ‘obviously frivolous,’ ‘plainly insubstantial’ or
‘obviously without merit.’” Espino v. Besteiro, 708 F.2d 1002,
1010 (5th Cir. 1983) (quoting Hagans v. Levine, 415 U.S. 528, 537
(1974)).

                                18
1983.44   We need not decide whether the FTA supports a claim under

§ 1983 to find that SWBT was a prevailing party for the purposes of

§ 1988.   Our precedent is clear that if SWBT states a § 1983 claim

based on the alleged violation of constitutional rights that

supports federal question jurisdiction, that is sufficient to

support the award of attorney’s fees, even if the constitutional

claim is avoided by the court.        It is not necessary for SWBT to

prevail on the constitutional claim.45         Because we find that SWBT

is eligible for attorney’s fees under § 1988, we do not address

SWBT’s alternative basis for fees under Texas law.

                                    IV.

     We   AFFIRM   in   part,   REVERSE   in   part,   and   REMAND,   for   a

determination of reasonable attorney’s fees pursuant to § 1988.




     44
        Compare, e.g., AT&T Wireless PCS, Inc. v. City of Atlanta,
210 F.3d 1324-30 (11th Cir. 2000) (finding a remedy under § 1983
for a violation of the plaintiff’s rights under the FTA), vacated
for lack of jurisdiction, 223 F.3d 1324 (11th Cir. 2000),
reinstated, 250 F.3d 1307 (11th Cir. 2001), and appeal dismissed on
settlement, 264 F.3d 1314 (11th Cir. 2001); Omnipoint Holdings,
Inc. v. Town of Westford, 206 F. Supp. 2d 166, 173-74 (D. Mass.
2002) (same), with, e.g., Nextel Partners Inc. v. Kingston
Township, 286 F.3d 687, 693-96 (3d Cir. 2002) (holding that an
alleged violation of FTA does not provide a basis for a § 1983
claim).
     45
       See McDonald v. Doe, 748 F.2d 1055, 1056 (5th Cir. 1984);
Espino, 708 F.2d at 1009-10. We do not decide whether prevailing
under a state law supplemental claim would support an award of
attorney’s fees under § 1988 if the § 1983 claim sought only
enforcement of a federal statute.

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