Lui v. Commission on Adult Entertainment Establishments

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

5-26-2004

Lui v. Comm Adult Ent

Precedential or Non-Precedential: Precedential

Docket No. 03-2437

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PRECEDENTIAL

UNITED STATES COURT OF Argued April 19, 2004

APPEALS

FOR THE THIRD CIRCUIT Before: SCIRICA, Chief Judge,

__________ GARTH, and BRIGHT * , Circuit Judges

No. 03-2437 (Filed: May 26, 2004)

__________

OPINION

JEFFREY LUI, DAVID LUI, and __________

FANTASIA RESTAURANT &

LOUNGE, INC.,

Lewis H. Robertson(Argued)

a corporation of the State of Delaware

Lewis H. Robertson, P.C.

Appellants

116 Oceanport Avenue

Little Silver, New Jersey 07739

v.

Attorney for Appellants,

COMM ISSION ON ADULT

Jeffrey Lui, David Lui and

ENTERTAINMENT

Fantasia Restaurant & Lounge, Inc.

ESTABLISHMENTS OF THE STATE

OF DELAWARE,

an entity within the State of Delaware

Thomas H. Ellis(Argued)

Department of Administrative

Deputy Attorney General

Services, Division of Business &

State of Delaware Department of Justice

Occupation Recreation,

820 North French Street, 6 th floor

M. JANE BRADY, in her capacity as

Carvel State Building

Attorney General of the

Wilmington, Delaware 19801

State of Delaware, STATE OF

DELAWARE, and

Attorney for Appellees,

NEW CASTLE COUNTY, a political

Commission on Adult

subdivision

Entertainment Establishments of

of the State of Delaware

the State of Delaware, M. Jane

Brady, and State of Delaware

__________

On Appeal from the United States

District Court

for the District of Delaware *

Myron H. Bright, Circuit Judge,

Civil Action No. 02-177

United States Court of Appeals for the

District Judge: Honorable Kent A. Jordan

Eighth Circuit, sitting by designation.

1

Mary A. Jacobson(Argued) the sole shareholder of Fantasia, and his

Assistant County Attorney son Jeffrey Lui is the general manager of

New Castle County Office of Law Fantasia. Lui desires to offer nude

87 Reads Way dancing at Fantasia. In order to do so, Lui

New Castle, Delaware 19720 must satisfy the zoning and licensing

requirements imposed by both New Castle

Attorney for Appellee, New Castle County and the State of Delaware.

County

New Castle County (the “County”)

requires the owner or proprietor, in this

Garth, Circuit Judge:

case Lui, who wishes to offer nude

Appellants Jeffrey Lui, David Lui dancing, to first obtain zoning certification

and Fantasia Restaurant & Lounge, Inc. (a permit or license) from the County. To

appeal from the District Court’s summary obtain County zoning certification, Lui

judgment in favor of Appellees based on had to satisfy the New Castle County

the abstention doctrine announced in Department of Planning that the location

Younger v. Harris, 401 U.S. 37 (1971). of the proposed adult entertainment

After Lui1 filed the instant appeal, the establishment complied with the zoning

Delaware Superior Court rejected on the and subdivision provisions of the New

merits Lui’s motion to dismiss the Castle County Unified Development Code

criminal prosecution pending against him, (the “County Code”). In particular, Lui

which arose out of Lui’s failure to obtain was required to co mply with

an adult entertainment establishment § 40-133(a)(13) of the County Code,

license. For the reasons set forth below, which mandates that adult entertainment

we will affirm the District Court’s establishment be 2,800 feet from a church

decision to abstain under Younger, but we or other place of worship, and sets limits

will remand the case to the District Court on proximity to schools, residences, and

with direction to discharge the stay and other adult entertainment establishments.2

dismiss the case with prejudice.

I. 2

§ 40-133(a)(13) states in

Fantasia Restaurant & Lounge, Inc. relevant part:

(“Fantasia”) is a bar and restaurant located

at 1031 South Market Street (Route 13) in Massage parlors which provide services

New Castle County, Delaware. Fantasia on and/or off premises, adult bookstores

currently offers exotic dancing by women and adult entertainment centers shall

dressed in brief costumes. David Lui is be permitted as follows:

(a) No such use shall be permitted within

500 feet of any property containing a

1

Appellants will collectively be dwelling or other residence located

referred to as “Lui.” within any residentially zoned district.

1

Once zoning certification is secured cannot obtain a State license necessary to

from the County, the requirements operate an adult entertainment

imposed by the State of Delaware (the establishment in New Castle County

“State”) pursuant to the Delaware Adult without first receiving a permit from the

Entertainment Establishments Act (the County demonstrating compliance with

“Act”), 24 Del. C. Ch. 16, must be the applicable provisions of the County

satisfied. This Act required Lui to file an Code. See Amico v. New Castle County,

application for an adult entertainment 571 F. Supp. 160, 163 n.3 (D. Del. 1983).

establishment zoning certification with the Indeed, the Act prohibits all counties in

Delaware Commission on Adult the State of Delaware from issuing permits

Entertainment Establishments. Lui’s or licenses for adult entertainment

application had to include a copy of the establishments unless their distance

County’s zoning review results. The State restrictions match those decreed by the

would then review the application to State.

ensure that Fantasia’s proposed location

A.

complied with all local laws and

ordinances, pursuant to 24 Del. C. Lui filed his first request for

§ 1610(a).3 Effectively, an applicant County zoning certification on July 30

1996, before construction of Fantasia was

underway. In his application, Lui stated

(b) No such use shall be permitted within that Fantasia would be located more than

2,800 feet of a school, church or other 2,800 feet from any house of worship. On

place of worship. August 12, 1996, the New Castle County

(c) No such use shall be permitted within Department of Planning granted Lui’s

1,500 feet of each other. request for zoning certification, but

3

24 Del. C. § 1610 provides, in stipulated that because Fantasia had yet to

relevant part: be constructed, the “certification may

(a) No license issued under this chapter

shall authorize the licensee to engage in 500 feet of any residence regardless of

or carry on the business of operating an how such property is zoned, or within

adult entertainment establishment in any 2,800 feet from a church or school . . .

place other than the premises set forth in Distances shall be measured from

said license. . . property line to property line.

*** (d) Notwithstanding any provision of

(c) No new adult entertainment law to the contrary, no municipal

establishment as defined in § 1602 of corporation or county may adopt any

this title shall operate in the same ordinance or charter amendment with

building or in separate buildings less distance restrictions less than those

than 1,500 feet from each other, within provided in this section.

2

become null and void due to changing B.

conditions in the future.” On August 23,

On November 22, 2000, Fantasia

1996, the County’s certification was

opened for business. Lui concedes that

revoked because Fantasia was, in fact,

Fantasia offers live female exotic dancers

located within 2,800 feet of a church. Lui

dressed in brief costumes, which cover the

appealed, and the revocation was affirmed

genitals and the areola region of the

by the New Castle County Board of

breast, and that Fantasia is located within

Adjustment. Lui appealed that

2,800 feet of a church.

determination to the Delaware Superior

Court. On December 31, 2001, Lui was

criminally indicted by the State of

Lui filed a second request for

Delaware on three counts of operating and

County zoning certification on September

conspiring to operate an adult

24, 1996. He argued that the church that

entertainment establishment without

was located within 2,800 feet of the

obtaining an Adult Entertainment

Fantasia site had ceased to operate as a

Establishment zoning certification. On

church, and that the County’s denial of

April 30, 2002, Lui filed a motion to

certification violated his due process

dismiss the state indictment, challenging

rights. The New Castle County

the constitutionality of the Act and of

Department of Planning again denied

§ 40-133(a)(13) of the County Code.5

Lui’s application, and the Board of

Adjustment affirmed. In State court, Lui argued that the

restrictions imposed by the State and

Lui appealed to the Delaware

County effectively deny adequate

Superior Court, which consolidated Lui’s

alternative avenues of communication for

two appeals and denied both in a

the presentation of adult entertainment.

November 20, 1998 opinion. Fantasia

Rest. & Lounge, Inc. v. New Castle County

Bd. of Adjustment, 735 A.2d 424 (Del.

Super. Ct. 1998). The Delaware Supreme compliance with § 40-133(a)(13) of the

Court affirmed. Fantasia Rest. & Lounge, County’s zoning code. In May 2002,

Inc. v. New Castle County Bd. of counsel for Lui asked the State to

Adjustment, 734 A.2d 641 (Del. 1999).4 withhold action on Lui’s application.

5

As stated above, 24 Del. C.

§ 1610(d) directs that no “county may

4

In late March or early April adopt any ordinance or charter

2002, Lui submitted a third application amendment with distance restrictions

for zoning certification. This time, Lui less than those provided in this section,”

applied directly to the State Commission thus subjecting Fantasia to the relevant

– he did not first secure zoning portions of New Castle County’s Unified

certification from the County in Development Code.

3

See State of Delaware v. Fantasia Rest. & (citing N.W. Enters v. City of Houston,

Lounge, Inc., et al., Nos. 0112001060, 352 F.3d 162, 182 (5th Cir. 2003)).

0109002426, 0112000958 (Del. Super. Ct.

The State prosecution against Lui is

filed Mar. 9, 2004). On March 9, 2004,

presently pending.

the Delaware Superior Court denied Lui’s

motion to dismiss, holding that the State C.

and County zoning laws at issue

On March 11, 2002, Lui filed a

constituted reasonable time, place and

four count Complaint pursuant to 42

manner regulations of protected speech

U.S.C. § 1983 in the United States District

because (1) they are content-neutral; (2)

Court for the District of Delaware. He

they are narrowly tailored to serve a

filed an Amended Complaint on April 24,

substantial government interest; and (3)

2002. The Complaint echoed the

they leave open adequate alternative areas

arguments Lui raised in his motion to

of communication. See id.

dismiss the State court indictment. He

Specifically, the Superior Court made the following four allegations:

determined that the laws are content-

Count 1: that the Act and County

neutral because they do not constitute a

Code violate the First Amendment;

total ban on adult entertainment, but

merely “ban adult entertainment Count 2: that the County’s

establishments from some parts of the requirement that he pay a $500 application

state and county based upon location.” Id. fee (while a fee of $50 is typical), and the

at 12. The laws, which set the minimum State’s requirement that he include the

distance between an adult entertainment results of his County zoning review in his

establishment and a church or school, are State application, violate the Equal

narrowly tailored to serve a substantial Protection Clause;

government interest because they “are

Count 3: that the State prosecution

particularly aimed at protecting those of

of Lui was motivated by his race6 and

tender age and/or seeking spiritual

violated his Due Process and Equal

guidance from exposure to the negative

Protection rights; and

effects o f a d u l t e n te r t a in ment

establishments.” Id. at 13. And they leave Count 4: that the Act is

open adequate alternative areas of unconstitutionally broad.

communication because Lui has

Lui sought declaratory and injunctive

acknowledged that twelve available

relief, monetary damages, and fees and

potential adult use locations exist within

New Castle County, a number which the

Superior Court found to be

6

“constitutionally sufficient for purposes of The record indicates that Jeffrey

the Fourteenth Amendment.” Id. at 23 and David Lui are of Chinese-American

descent.

4

costs pertaining to Count One; declaratory In its January 31, 2003 order, the

and injunctive relief, monetary damages District Court held that:

from the County only,7 and fees and costs

(1)Lui’s claims for equitable relief

on Count Two; and declaratory and

are dismissed without prejudice;

injunctive relief and fees and costs from

the State only on Counts Three and Four. (2) Lui’s claims for monetary

damages against the State of Delaware, M.

Lui moved for partial summary

Jane Brady, and the Commission on Adult

judgment on Count One (violation of the

Entertainment Establishments of the State

First Amendment), and alternatively for a

of Delaware are dismissed with prejudice;

preliminary injunctio n preventing

enforcement of the State Act, 24 Del. C. (3)Partial summary judgment is

§ 1610, and the County Code, § 40- entered for New Castle County against Lui

133(a)(13). He argued that the restrictions on the issue of the County’s liability for

imposed by the State and County damages under Count One of Lui’s

effectively deny adequate alternative Amended Complaint; and

avenues of communication for the

(4)Further activity is stayed until

presentation of adult entertainment. The

the final resolution of Lui’s criminal

County cross-moved for summary

prosecution by the State of Delaware, now

judgment, and both the State and the

pending in Delaware Superior Court.

County filed motions to dismiss Lui’s

Amended Complaint. The District Court’s order did not

identify each Count in its disposition. We

Both the State and County argued

have been able to cure that deficiency by

that the District Judge was required to

reference to the proceedings and the

abstain from exercising jurisdiction under

District Court opinion, to the following

the doctrine announced in Younger v.

effect: The equitable claims made in

Harris, 401 U.S. 37 (1971), because of the

Count One were dismissed without

ongoing criminal prosecution of Lui in

prejudice under Younger. The District

state court. The County also argued that it

Court determined that the State and

could not be held liable for enforcing a

County were immune to money damages

zoning restriction imposed upon the

under the Eleventh Amendment and state

County by State law.

law. Accordingly, the claim for money

damages against the State and County

were dismissed with prejudice. As to

7

Lui conceded that the State was Count Two, the equitable claims

immune to Lui’s claims for damages pertaining to Equal Protection were

under the Eleventh Amendment. Lui dismissed without prejudice, and the

also withdrew all claims against claims for monetary damages and fees and

defendant M. Jane Brady, Attorney costs were stayed. At oral argument,

General of Delaware.

5

counsel for Lui stipulated that all of Count dismiss Lui’s appeal for lack of appellate

Two should be regarded as having been jurisdiction.

dismissed with prejudice. Counts Three

We address jurisdiction of this

and Four sought only equitable relief, and

Court at the outset. Although the

were dismissed by the District Court

timeliness of Lui’s appeal was questioned

without prejudice. In his appellate brief,

by the County, our independent analysis

Lui conceded that Counts Three and Four

shows that the County’s claim of

were properly the subject of Younger

untimeliness is without merit for two

abstention.

reasons. First, the order which the County

Thus, what remains for us to decide identified as being “final” was, in fact,

is whether the District Judge erred in interlocutory, as it was “without

applying Younger abstention to Count prejudice.” See Borelli v. City of Reading,

One, and whether he erred by retaining 532 F.2d 950, 951-52 (3d Cir. 1976) (per

jurisdiction over Lui’s claim for fees and curiam). Second, the District Court

costs brought in the same Count.8 retained jurisdiction over the fees and

costs claimed by Lui under Count One,

Lui filed a timely appeal from the

thereby ostensibly leaving its order non-

District Court’s orders of January 31, 2003

final.

and February 27, 2003.

This latter issue, which we discuss

II.

later in this opinion, did not affect the

The District Court had jurisdiction finality of the District Court’s order,

over Lui’s federal action pursuant to 28 however, because a ruling which orders

U.S.C. §§ 1331 and 1343(a)(3) and (4). Younger abstention transfers the entire

Lui asserts that this Court has jurisdiction proceeding to the State court for

over the instant appeal pursuant to 28 adjudication, including all of its collateral

U.S.C. § 1291. The County moved to aspects – in this case, fees and costs. We

have therefore held that a district court’s

Younger abstention order constitutes a

8

In its February 27, 2003 opinion, final, appealable order under 28 U.S.C.

the District Court denied Lui’s motion § 1291 because, under Younger v. Harris,

for reargument without prejudice to a the effect of such an order is to surrender

later filing of a motion to reconsider, jurisdiction of the federal action to a state

which the District Judge restricted to the court. By doing so, the Younger

issue of the availability of fees and costs abstention order becomes immediately

pursuant to § 1988. In effect, the appealable. See Schall v. Joyce, 885 F.2d

District Court retained jurisdiction over 101, 105 (3d. Cir. 1989); Moses H. Cone

the fees and costs, as they pertained to Mem. Hosp. v. Mercury Constr. Corp.,

Count One (violation of the First 460 U.S. 1, 10 (1983). As we said in

Amendment). Schall:

6

Because we are convinced (3d Cir. 1992).

that ‘the object’ of the

IV.

district court’s [order and]

stay was ‘to require all or an We now turn to the question at the

essential part of the federal heart of this appeal – was the District

suit to be litigated in a state Court’s decision to invoke Younger

forum,’ Moses H. Cone, 460 abstention proper? Lui asserts that the

U.S. at 10 n. 11, we District Court erred in applying Younger

conclude that the district in this case.

court’s stay order was an

We have had a longstanding public

abstention order that is final

policy against federal court interference

within the meaning of 28

with state court proceedings. Younger has

U.S.C. § 1291.

taught us that federal courts should not act

885 F.2d at 105.9 to restrain a criminal prosecution where

the appellant here, has an adequate remedy

III.

at law in state court and will not suffer

This Court exercises plenary review irreparable injury if denied equitable

over the District Court’s legal relief. Moreover, this principle, Younger

determination that the requirements for teaches,

Younger abstention have been met.

is reinforced by an even

University of Maryland v. Peat Marwick

more vital consideration, the

Main & Co., 923 F.2d 265, 270 (3d Cir.

notion of ‘comity,’ that is, a

1991). If the requirements for abstention

proper respect for state

have been met, this Court reviews the

functions, a recognition of

District Court’s decision to abstain under

the fact that the entire

Younger abstention principles for abuse of

country is made up of a

discretion. Gwynedd Properties, Inc. v.

Union of separate state

Lower Gwynedd Tp., 970 F.2d 1195, 1199

governments, and a

continuance of the belief

9

We also had concerns as to t h a t t h e N at i o n al

whether we had jurisdiction to entertain Government will fare best if

this appeal because Count Two was the States and their

dismissed by the District Court without institutions are left free to

prejudice. As noted in text, when we perform their separate

raised this question with counsel for Lui functions in their separate

at oral argument, he conceded that Count ways.

Two should be dismissed with prejudice, 401 U.S. at 44. Accordingly, Younger

and he forwarded a letter to us states that “it has been perfectly natural for

acknowledging that fact.

7

our cases to repeat time and time again defending a pending criminal prosecution

that the normal thing to do when federal in State court. Second, the District Court

courts are asked to enjoin pending Judge concluded that the State’s criminal

proceedings in state courts is not to issue prosecution of Lui implicated important

such injunctions.” Id. at 45. State courts State interests – namely, the State’s effort

are every bit as competent to deal with the to control the negative effects of adult

claims of the appellant (in this case, the entertainment establishments through the

defendant in the criminal proceeding) as enforcement of its zoning laws. Third, the

are the federal courts and this, of course, District Court Judge held that Lui had

includes the ability to address claims failed to carry his burden of showing that

under both the State constitution and the he could not present his constitutional

Federal constitution. Thus, we have been claims as a defense in State court. See

instructed that the concerns of comity and Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

federalism which underlie the Younger 14 (1987) (“the burden on this point rests

doctrine command the federal courts to on the federal plaintiff to show that state

respect the independence and functioning procedural law barred presentation of its

of the state courts. Rizzo v. Goode, 423 claims.”). Furthermore, as we noted

U.S. 362, 380 (1976). above, Lui had already filed a motion to

dismiss the State indictment which

Following Younger, this Court has

challenged the constitutionality of the

set out a three-prong test to determine

State zoning statute. Thus the District

whether courts should abstain from

Court concluded that Lui had the

addressing the merits of a federal action in

opportunity to raise all of his

the face of ongoing state criminal

constitutional claims in State court.

litigation. Abstention under Younger is

appropriate only where: (1) there are On appeal, Lui argues that Younger

ongoing state proceedings that are judicial abstention was not proper because Count

in nature; (2) the state proceedings One of his federal claim does not

implicate important state interests; and (3) implicate important state interests, and

the state proceedings afford an adequate because the State proceedings might not

opportunity to raise the federal claims. afford him an adequate opportunity to

Gwynedd Properties, Inc. v. Lower raise his federal claims. Reviewing the

Gwynedd Tp., 970 F.2d 1195, 1200 (3d District Court’s Younger analysis under a

Cir. 1992). plenary standard, we reject both of Lui’s

arguments. First, Count One implicates

In the instant case, the District

the State’s valid and important interest in

Court Judge determined that all three

regulating the location and effect on the

prongs of the Gwynedd Properties test

community of adult entertainment

were met, and Younger abstention should

establishments, particularly their effect on

therefore be invoked. First, it was

individuals attending school or a house of

undisputed that Lui was – and still is –

8

worship. See Larkin v. Grendel’s Den, unconstitutional.10 But here, as in

Inc., 459 U.S. 116, 121 (1982) (zoning Younger, a criminal proceeding raising the

laws may be validly used to regulate the same issues and affording Lui an

environment around schools and churches, opportunity to assert all of his

given the legitimate interest in insulating constitutional claims was pending in State

them fro m certain commercial court. As Younger teaches us, any injury

establishments). to which such a defendant may be exposed

is solely “that incidental to every criminal

Second, it is beyond dispute that

proceeding brought lawfully and in good

the State court prosecution has afforded

faith.” Younger, 401 U.S. at 49 (internal

Lui an opportunity to raise his sole

quotations omitted).

remaining federal claim – Count One

(Lui’s First Amendment claim). By the We are satisfied that the record and

time Lui filed his federal action, he had the principles we have related clearly

already brought a motion to dismiss the demonstrate that there is no merit to the

charges filed against him by the State, and arguments that Lui has advanced. The

that motion, among other things, District Court Judge did not abuse his

challenged the constitutionality of the discretion when he determined that all

State Act. See State v. Fantasia Rest. & three prongs of the Gwynedd Properties

Lounge, Nos. 0112001060, 0109002426, test were met, because (1) Lui is

0112000958 (Del. Super. Ct. filed Mar. 9, defending a pending criminal prosecution

2004). Indeed, the submissions made by in state court, (2) the prosecution

Lui in defense of the State criminal implicates the State’s interest in

charges are identical to the Amended controlling the negative effects of adult

Complaint which he filed in Federal court entertainment establishments, and (3) Lui

and from which the District Court has actually did raise, albeit unsuccessfully,

abstained. Thus it is not surprising that his constitutional claims as a defense to

the District Court concluded that Lui has his prosecution in State court. The

the opportunity to raise his Federal

constitutional claims in State court.

10

See Samuels v. Mackell, 401

We have previously noted that the U.S. 66 (1971) (holding that declaratory

District Court dismissed all of Lui’s relief is improper when a prosecution

equitable claims, which included a request involving the challenged state statute is

for an injunction to prevent enforcement pending in state court at the time the

of the State Act and the County Code federal suit is initiated, and the same

against him, and a declaratory judgment principles that govern the propriety of

that the State Act and the County Code are federal injunctions of State criminal

proceedings govern the issuance of

federal declaratory judgments in

connection with such proceedings).

9

District Court did not err in abstaining awards to the party who prevails on the

pursuant to Younger v. Harris, supra. merits of the federal claim. See Healy v.

Town of Pembroke Park, 831 F.2d 989

V.

(11th Cir. 1987). Defense of a State

Having determined that the District criminal prosecution is not a proceeding

Court correctly analyzed Lui’s claims in for which fees and costs can be awarded

accordance with the principles and under § 1988. See Venuti v. Riordan, 702

instruction of Younger v. Harris, we are F.2d 6 (1st Cir. 1983); see also Greer v.

obliged to hold that the District Court did Holt, 718 F.2d 206 (6th Cir. 1983). Thus,

not correctly implement its order because even a successful defense of the State

it retained jurisdiction over Court One as criminal charges would not entitle Lui to

it pertained to fees and costs, and we now seek fees and costs in federal court, and

address that issue. In Moses H. Cone, the the stay of those claims was therefore in

Supreme Court observed that where “a error.

stay of the federal suit pending resolution

VI.

of the state suit meant that there would be

no further litigation in the federal forum; Having held that the District Court

[then] the state court’s judgment on the did not err in abstaining from deciding the

issue would be res judicata . . . [and the] merits of Lui’s federal complaint, we have

stay order amounts to a dismissal of the no occasion to address the merits of Lui’s

suit.” Moses H. Cone, 400 U.S. at 10. In constitutional arguments. These were

Schall, this Court extended the holding in properly transferred to the Delaware

Moses H. Cone, which was a Colorado courts, and are not the subject of our

River abstention case, to the Younger analysis. Indeed, the opinion of the

abstention context. Thus, as we noted Delaware Superior Court, which was filed

above, a Younger abstention stay requires during the pendency of Lui’s federal

a dismissal with prejudice of the federal appeal, reflects that the Delaware Superior

suit. Court, addressing the exact same

constitutional claims made by Lui here,

The District Court’s February 27,

rejected on the merits all of the issues

2003 order, see note 8, supra, implies that

which Lui sought to have us decide. This

if Lui were successful on the merits in

being so, if for no other reason, the

State criminal court he could then revisit a

doctrines of res judicata on the one

portion of his federal claims to seek fees

hand,11 or Rooker-Feldman on the other,12

and costs from the State and County

ostensibly under 42 U.S.C. § 1988, and

thus a stay of those claims was

11

appropriate. We cannot agree. Section Res judicata bars suit where

1988(b), which governs fee and cost there was (1) an earlier decision on the

awards for § 1983 claims, allows such issue, (2) a final judgment on the merits,

and (3) the involvement of the same

10

would militate against our deciding the

merits of the federal claim in any event.

One thing more needs to be said.

The stay which the District Court imposed

on the request for fees and costs in Count

One must, as a matter of law, be

discharged. As we have pointed out, the

abstention order transferred the whole “kit

‘n caboodle” of Count One to the state

court to be adjudicated. Thus the fees and

costs, as well as all the other elements of

Count One, no longer remained in the

federal court, and the District Court could

not under any circumstance rule on those

issues.

Thus, we will affirm the District

Court in all respects except one – we are

obliged to reverse and remand to the

District Court the stay which was

improviden tly and consequentl y

erroneously entered pertaining to the fees

and costs. The District Court is instructed

to correct its judgment accordingly, so that

all matters that remained in the District

Court are now remitted to the Delaware

Superior Court for adjudication.

parties, or parties in privity with the

original parties. Restatement (Second)

of Judgments §§ 17, 24 (1982).

12

The Rooker-Feldman doctrine

divests a federal district court of

jurisdiction if the plaintiff’s claim was

either (1) actually litigated in state court

or (2) if the claim is inextricably

intertwined with the prior state court

ruling. See Desi’s Pizza, Inc. v. City of

Wilkes-Barre, 321 F.3d 411, 419 (3d Cir.

2003).