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

______________
________________________________
brief for appellant.
Patrick M. Hamilton, with whom Richard E. Brody and Morris
____________________
_________________
______
Mahoney & Miller were on brief for appellees Patrick J. McNal
__________________
Stanley I. Bornstein, Kenneth J. Savoie, William E. Bingham, Cather
Lefebvre, Elizabeth Ware and the Town of Ipswich, Nancy Merrick, w
_____________
whom Douglas I. Louison and Merrick & Louison were on brief
___________________
__________________
appellee Joseph Ferruzzi.
____________________
April 22, 1994
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
_____________________
from
by

This appeal

arises

an action for damages brought by a developer frustrated

town planning

appellant,
Realty Trust

and

Arthur J.

permitting authorities.
Licari, as

the town

for defendants-appellees, the Town

building inspector, the

and members of the planning board.

process

Colonial Drive

(hereinafter "Colonial"), appeals from an order

granting summary judgment

of Ipswich,

trustee of

Plaintiff-

violations under

42

town planner,

The complaint alleged due

U.S.C.

1983,

as

well

as

violations of
interference

Massachusetts civil rights

with

contract.

defendants on the

We

laws and

affirm

tortious

the decision

1983 claims, but vacate the

for

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
zoning laws.1
buildings.
permit

One

part

The building

stated

that

of

the

to comply with town

project

included

three

plans incorporated into the special

Building

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.
-22

"approximately forty-five (45) feet" from the road.

acquired three

building

permits and

Colonial

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.

to Colonial

One week

later, the town planner wrote

that Building 3 was

special permit

seven feet closer to

allowed.

The

letter

requested

confirmation or

denial of those charges,

the

meeting on

next board

further
does not

work would be at

October 26

26 meeting,

the

board

to the board.

of deeds a "Notice

discrepancy between

Colonial's

and stated

the developer's risk.

issued

the

in writing, before

indicate whether Colonial attended

submitted any information

registry

the road than

that any
The record

that meeting or

During the October

and later

recorded

at

the

of Noncompliance," based on the

the special

permit and the

location of

Building 3.
Building 3's proximity to the road was discussed in
planning board
of

meetings over the following

months.

Members

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

that application until April 2, 1990.

did not approve

Meanwhile, on February

-33

1, 1990, Colonial once

again argued to the board

were

between

no discrepancies

the special

that there

permit and

the

project as built.
On February 2, 1990, defendant Joseph Ferruzzi, the
town building inspector, revoked
and ordered that
revocation

further work

all three building

cease.

were that the buildings

The

permits

reasons for

the

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.

to Colonial, the board ordered the permits revoked.
initiated,

but later

abandoned,

an

appeal

of

According
Colonial
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

commitment

August.

Colonial

also

expired

in

complete the project and defaulted on its loan.

financing
failed

to

In January 1993, Colonial

filed suit in the United

States District Court for the District of Massachusetts.

complaint

alleged

that

provide due process by

Ferruzzi

and the

town

The

failed

to

revoking the building permits without

a proper inquiry, notice, or hearing.

The complaint included

claims

defendants other

that

the arbitrary

acts

of

than

-44

Ferruzzi violated Colonial's

the

complaint

Colonial's

alleged

contractual

due process

that

defendants

relations,

for

summary

judgment,

which

Finally,

interfered

and

violated Massachusetts civil rights laws.

motion

rights.

that

with

defendants

Defendants filed a
the

district

court

granted.
II.
II.
ISSUES
ISSUES
______
Colonial argues
court

erred

in

on

appeal [1]

granting summary

that the

judgment

on

the

district
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

claims.

summary judgment

on

the

federal due

process

Our review of the district court's order is de novo.

__ ____

Nestor Colon Medina & Sucesores, Inc. v. Custodio,

______________________________________
________
32, 39 (1st Cir. 1992).

Summary judgment

material

dispute,

facts

are in

entitled to judgment

as a matter

and

964 F.2d

is proper where no

the moving

of law.

party

is

Fed. R. Civ.

P.

56(c).
Defendants argue

that summary judgment

was proper

because this case is analogous to our line of cases upholding

-55

pretrial

orders

disposing

of

1983

due

process

claims

brought by

frustrated

officials.

See,
___

Properties, Inc.
________________
cert.
_____

applicants against

e.g.,
____

Nestor Colon,
____________

local
964

v. Rodriguez, 928 F.2d 28

_________

dismissed, 112
_________

S. Ct.

permitting

F.2d

32;

PFZ
___

(1st Cir. 1991),

1151 (1992);

Creative Env'ts,
________________

Inc. v. Estabrook, 680 F.2d 822 (1st Cir.), cert. denied, 459
____
_________
_____ ______
U.S. 989 (1982).
the procedural

We agree.

In this case, as in those cases,

and substantive

actionable under

due process claims

were not

1983.
III.
III.
DUE PROCESS CLAIMS
DUE PROCESS CLAIMS
__________________

To
process

avoid summary

judgment

on

procedural

due

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.

______________

viable substantive due process

state

action was

unacceptable,
Moran, 904
_____

"in
__

and
___

claim requires proof that the

of
__

itself
______

egregiously

outrageous, or conscious-shocking."

F.2d

original), cert.
_____

748,

754

denied, 498
______

due process guarantees that

(1st

Cir.

1990)

U.S. 1041 (1991).

Amsden v.
______

(emphasis

in

Procedural

a state proceeding which results

in a deprivation
process

of property is fair,

while substantive due

ensures that such state action

capricious.

is not arbitrary and

Id. at 753-54.
___

-66

A.
A.

Revocation of Building Permits

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.

under color
cited the

of state law;

discrepancies between

project as built and

.

the letter

. in case of

Ferruzzi acted

revoking the

permits

the special permit

and the

stated that he could "revoke a permit .

any false statement

or misrepresentation of

fact in the application or the plans on which the

.

was based."

Because

we assume

Colonial

held a

22

Mass. Regs.
for

Code

the purposes

property interest in

tit.
of

permit . .

780,

114.7.

this opinion

the permits,

that

see PFZ

___ ___
Properties,
__________

928 F.2d

at

30-31, the

key

issue is

whether

Colonial was afforded adequate process.

To

determine

whether

procedural

due

process

violation has occurred, "it is necessary to

ask what process

the State

provided,

constitutionally

adequate.

This

inquiry

safeguards

built

into

procedure . .

and

whether
would
the

was

examine

statutory

v. Burch, 494 U.S. 113,

_____

the
or

. effecting the deprivation,

for erroneous deprivations provided

Zinermon
________

it

procedural

administrative
and any remedies

by statute or tort law."

126 (1990).

We assess the

adequacy of procedures by balancing the government's interest

against the private interest affected by the action, the risk

-77

of

an erroneous

safeguards.

deprivation,

and the

value of

additional

Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

_______
________

We
protections
Colonial

afforded Colonial.

the

because

Prior

was notified of the board's

opportunity
that

begin our analysis by describing the procedural

to rebut them.
planning

it

ordered

notified at
1989, by

board

the deprivation,

allegations and had an

We take as true Colonial's claim

was

the

to

the

permits

ultimate
revoked.

planning board meetings in

a letter from the

decisionmaker
Colonial

October and November

town planner in October,

the "Notice of Noncompliance" filed

was

and by

at the registry of deeds

in November that there were alleged discrepancies between the

plans incorporated in
built.

Those

were false

the special permit and

allegations underlay

statements

in the

the project as

the finding

building permit

that there
application.

Colonial had an opportunity to contest those allegations with

respect

to Building 3 during

the October 12

the two weeks preceding the planning

Notice of
record

Noncompliance.
whether

allegations, it
that

the

on

allegations

with

actually

February

for

such

1,

respect to

1990,
all

-88

unclear from

responded

is enough to satisfy the

opportunity

Furthermore,

board's issuance of the

Although it is

Colonial

hearing and in

to

the
those

Due Process Clause

response

Colonial

existed.

disputed the

three buildings,

several

months after receiving notice

of them, and one day

prior to

the revocation.
The
revocation

notice
never

inconsistency
might be

Colonial

received

prior

specifically

informed

it

special permit

and

between

a basis for

the

finding a

to

the

that

the

the project

"misrepresentation" in

the

building permit application, justifying the revocation of the

permits.

Colonial

argues that

it

was thereby

opportunity to be heard on that issue.

Colonial received
the discrepancy
of
the

a letter from the

developer's

risk.

That

that

significant.

town

officials

an

First,

town planner describing

and the location

that further work

letter,

Noncompliance, and later discussions

Colonial

We disagree.

between the special permit

Building 3 and indicating

denied

the

would be at
Notice

of

with the board informed

deemed

Furthermore, Ferruzzi's

the

discrepancies

letter

revoking the

building permits claimed that plans submitted to him prior to

the issuance

of the permits stated that the project complied

with

and with

zoning

"project documents."

Colonial's architect

appended

Defendants'

for

Motion

to Colonial's

Summary

Judgment

letter from

Opposition
supports

to
that

statement of the facts, and nothing in the record contradicts

it.

Cf. 22 Mass. Regs.

Code tit. 780,

113.5 (application

___
for building
state

permit must include

regulation

authorized

site plans).

Ferruzzi

to

Finally,

revoke

building

-99

permits

based

on

false

applications.2

Id.
___

statements
114.7.

in

The

building

permit

existence

of

that

regulation, the warning in the planner's letter, the repeated

discussions
submitted

with
on

the

board,

Colonial's

provided Colonial

and

the

behalf to

contents

the

of

plans

building inspector

with sufficient notice and

an opportunity

to respond.
There is a further reason why the revocation of the
building
procedural

permits

did

not

due

process:

violate

Colonial's

postdeprivation

available.

See
___

494

U.S.

constitutional

violation actionable

under

complete

when the

unless and until

Zinermon,
________

deprivation

occurs; it

the State fails to

right

remedies
at

126
1983

is not

to
were

("The
is

not

complete

provide due process.").

Colonial

had

informally

numerous opportunities

with town officials to

Amsden,
______

904 F.2d at

process

provided).

result

Colonial

to

meet

formally and

recover the permits.

755 (informal negotiations

See
___

are part of

Such negotiations ultimately yielded the

desired,

Moreover, Colonial had the

the

issuance

of

new

permits.

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.
-1010

of the

building inspector's decision, which

could have been

heard by the zoning board of appeals or by the state Building

Code

Appeals

thereafter.

Board,
See
___

and

22 Mass.

right

Regs. Code

to

judicial

tit. 780,

review
126.1,

126.6; 126.7.1.
Colonial

misses the

remedies

are insufficient

delayed,

and damages are

delays,

while endemic to

are minimized in these

adheres to

essential

by

arguing that

because

unavailable.

In

be

the first place,

judicial fora,

proceedings because the Appeals Board

22 Mass.

of

Regs. Code tit.

780,

a damage

remedy is

not an

constitutionally

adequate

review

Chongris v. Board of Appeals, 811 F.2d 36, 44-45

________
________________

Cir.), cert. denied, 483 U.S. 1021 (1987).

_____ ______

that Colonial had

heard prior

those

relief might

administrative and

Furthermore,

component

procedures.
(1st

solely

a timetable.

126.3.4, 126.4.3.

mark

We conclude

sufficient notice and an opportunity to be

to the revocation,

and adequate

administrative

and judicial review procedures afterwards; no further process

was exigible.
B.
B.

Id. at 40.
___

Notice of Noncompliance
Notice of Noncompliance
_______________________
Colonial adverts

procedural due process by

that the planning

board violated

summarily issuing and recording at

the registry of deeds a Notice of Noncompliance, which stated

that

Colonial's

requirements of the

buildings

did

special permit.

-1111

not

comply

with

That issue appears

the
in

the brief without citation to legal authority, and with scant

elaboration

on whether or

property

right.

we

it waived.

deem

perfunctory

act affected any

We express no opinion on the merits because

"Issues adverted

manner,

argumentation,

how the board's

unaccompanied

are deemed

to have

to
by

on appeal
some

in a

developed

been abandoned."

Gamma
_____

Audio & Video, Inc. v. Ean-Chea, 11 F.3d 1106, 1113 (internal

___________________
________
quotation marks and citation omitted).
C.
C.

Delays
Delays
______
Colonial

approving the

contends

application

that
for

an

violated its right to procedural

Colonial
issuance,

amended

delay

special

due process.

and

that

the

as true

delay

the allegation

We have rejected similar

case--the deprivation

itself

with Colonial's
that the

defendants' unauthorized intransigence

this

board's

in

permit

Assuming that

held a property interest in the permit prior to its

"deprivation," we disagree
take

the

constituted
contention.

delay

a
We

resulted from

and illegal

demands.

1983 claims, however, where--as in

was unauthorized,

the

value of

further

process

was

adequate remedies.

negligible,

E.g.,
____

and

the

state

provided

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

-1212

application); id.
___

17 (final decisions

of permitting board

subject to expedited judicial review).

D.
D.

Substantive Due Process Claims

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

delays

in

application

the

processing

for an

amended

of

enforcement
and

approval

permit.

orders, and
of

Those acts

the

Colonial's
allegedly

manifest "a

persistent and consistent

toward [Colonial]," aimed at

hostility and

animus
______

coercing Colonial to reduce the

size of the project.

"This
rejections

Court

has

of development

repeatedly
projects

building permits do not ordinarily

process."

PFZ Properties, 928

______________

and

refusals to

that
issue

implicate substantive due

F.2d at 31;

Creative Env'ts, 680 F.2d at 832 n.9,

_______________
in

held

833.

see also, e.g.,

___ ____ ____
There is nothing

the record to differentiate this case from those in which

we have found no
that Colonial

viable basis for a

has neither argued, nor

1983 claim.

We note

offered evidence that

defendants' "hostility and animus" was aimed at any political

______
affiliation, belief, stance,
Colonial.

or immutable characteristic

Rather, Colonial's

brief states that defendants'

improper conduct "was motivated by the defendants'

outrageous goal" of compelling

of

wrongful,

it to reduce the size

-1313

of the

project.
.

. .

Cf. Creative Env'ts, 680 F.2d at 833 ("Every appeal

___ _______________
_____
from an

necessarily
abused

adverse ruling

involves some

claim

or `distorted' its legal

some allegedly perverse (from

reason.
claims

by a

It

is not

. planning

that the

board

authority . .

board

exceeded,

., often for

the developer's point of view)

enough simply

constitutional labels

substantial

. .

to give
. .

federal question under

in

these state
order to

law

raise

section 1983." (emphasis

in original)).
Colonial argues that
the cases

this court should

in this circuit rejecting

claims in local

substantive due process

planning disputes, so that

be litigated.

Colonial contends that

other circuits

permitting

or
this

court

Littlefield
___________

should follow

suit in

v. City of Afton,
_____________

(collecting cases).

But
___

its claims might

there are cases

1983 actions

capricious conduct by local land

"overrule"

from

based on arbitrary

use officials, and that

this

case.

785 F.2d 596

See, e.g.,
___ ____

(8th Cir. 1986)

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
goes

beyond its

precedent

problem with

assumption that

in this circuit:

Colonial's argument
this panel

we have never

that

would overrule
announced a rule

precluding

district

courts

from

finding

substantive

due

-1414

process violations

by land

use planning officials

conceivable case.

Rather,

"[o]ur cases make

regulatory
process

does

requirements

erroneous
exceed

board

reasons' or

its authority

not

transgress

merely
by

by

making

under the

in every
_____

clear that

constitutional

making
`demands

decisions
which

relevant state

a
due

`for

arguably

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.
slightly ajar

for federal

the

45.

requisite

indeed."

Id.
___

"We have left the door

relief [based on

process] in truly horrendous

F.2d at

1983).

situations."

Nevertheless, "the threshold

`abuse of

government

substantive due
Nestor Colon, 964
____________
for establishing

power' is

high one

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
allegations

are

not

and evidence

persuaded

by

in this

Colonial

that

case distinguish

the

it from

-1515

Nestor Colon and

____________

the other cases

substantive

process claims

due

in this circuit
in

similar

rejecting

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

although the evidence suggested

revoked
quotation

that plaintiff's license was

to force his partner out of business.

marks and citation

omitted).

in this case, allegedly designed to

the

size

the Due Process Clause,

of

its

project, is

"conscious-shocking."
court properly

granted summary

claims.

-1616

Defendants' conduct

force Colonial to reduce

similarly

Id. at 754.
___

Id. (internal
___

not

sufficiently

We hold that the district

judgment on the

due process

IV.
IV.
DENIAL OF RULE 56(f) MOTION
DENIAL OF RULE 56(f) MOTION
___________________________
Colonial argues
denying its

motion under Fed. R. Civ.

engage in discovery.
denying

that the district

the

motion

court erred

P. 56(f) for leave to

The district court stated that

because

in

"defendants

are

it was

entitled

to

judgment as a matter of law."

"To satisfy Rule 56(f),
plausible

basis for the

a party must `articulate a

belief that

discoverable materials

exist which would raise a trialworthy issue.'"

964

F.2d

at 38

federal claims
motion

(citation omitted).
that we

asserted

that

defendants' "animus"

With respect

consider in this
discovery

Nestor Colon,
____________

would

to the

appeal, Colonial's
yield

evidence

towards Colonial, and evidence

of

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

render the

1983 claims

is not the

viable.

Colonial

type that would

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

Enters.,
_______

not a

basis for

712 F.2d

at 1528.

1983 claim.
Similarly,

See
___

there would

Chiplin
_______
be no

-1717

basis

for

relief under

1983,

proof that defendants knew

the special permit.
state law
not

in such

discovery yielded

that the buildings conformed with

Id. ("A mere bad faith refusal to follow

___
local administrative matters

amount to a deprivation

courts are available to

we

even if

of due process

where the state

correct the error.").

conclude that the district

simply does

court did not

Consequently,
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

court's

summary judgment

state
order

notation on the first page

Nestor

claims.

consists

28

defendants."

of defendants' motion:

"Allowed,

Cir. 1991).
We read

district
following

1992), PFZ Properties,

(1st

The

of the

Colon Medina & Sucesores, Inc.

32 (1st Cir.
F.2d

law

v. Custodio, 964 F.2d

Inc. v. Rodriguez,

Judgment

may

928

be entered

that order as resting on

for

Nestor Colon
____________

and PFZ Properties, not as an endorsement of all arguments in

______________
defendants' brief.
The reference
makes clear
1983

state

that the district court

claims.

civil rights

to Nestor Colon and

_____________

Nothing,

appeals

considered Colonial's

however, indicates

and tort claims

procedures

were weighed.
and

PFZ Properties
______________

remedies

that the
That
might

state

adequate
protect

-1818

developer's federal
1983

due process rights, and

litigation, see Nestor Colon,

thus preclude

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
court ever

considered the pendent claims,

effectively
court's

dismissed

those

order on those

claims with

claims was

Defendants have not answered

in

the record for the

yet

had

the

Consequently,
claims,
remand

the court's order

prejudice.

an abuse

pendent claims; and

opportunity
while we

district

The

of discretion.

the complaint; there is support

to

Colonial has not

engage

affirm the

we vacate the judgment

in

judgment on

on the state

discovery.
the

1983

law claims and

the case so that those claims will be adjudicated, or

dismissed

without

prejudice.

(district court

may

pendent

if it

claims

Mercado-Garcia v.
______________
Cir.

indication that the

decline to
has

See
___

28

U.S.C.

1367(c)

exercise jurisdiction

dismissed

all federal

over

claims);

Ponce Federal Bank, 979 F.2d 890, 896 (1st

__________________

1992); Figueroa Ruiz v. Alegria, 896 F.2d 645, 650 (1st

_____________
_______

Cir. 1990).
It is so ordered.
It is so ordered.
_________________

-1919