                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 04a0146n.06
                           Filed: December 6, 2004

                                           No. 03-2258

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


SAMANTHA BATES,                                          )
                                                         )
       Plaintiff-Appellant,                              )
                                                         )
v.                                                       )   On Appeal from the United States
                                                         )   District Court for the Eastern
VAN BUREN TOWNSHIP,                                      )   District of Michigan
                                                         )
       Defendant-Appellee.                               )




Before:        BOGGS, Chief Judge; GILMAN, Circuit Judge; and WEBER, Senior District

               Judge*


               PER CURIAM. Plaintiff-Appellant Samantha Bates appeals from the dismissal of

her § 1983 claim against the nudity and licensing ordinances of Van Buren Township. Bates

argues that the district court erred in invoking Colorado River abstention due to the existence of

a parallel state court proceeding. We affirm the decision to abstain, but modify the district court

order to require a stay of proceedings, rather than a dismissal without prejudice.

                                                 I

       Samantha Bates is an exotic dancer. She works as an independent contractor for Garter



       *
         The Honorable Herman J. Weber, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 03-2258
Bates v. Van Buren

Belt, which is located in Van Buren Township (the “Township”). In March 1999 the Township

enacted a “nudity ordinance” to restrict nudity in establishments that serve alcohol. In pertinent

part, the ordinance reads:

       (1) No person, while appearing in a state of nudity as defined by this section, shall
       frequent, loiter, work for or perform in any establishment licensed or subject to licensing
       by the Michigan Liquor Control Commission. No proprietor or operator of any such
       establishment shall allow the presence in such establishment of any person who violates
       the provisions of this section.

A separate “licensing ordinance” also requires a Township license for any person providing

services as a “dancer or entertainer” in any establishment “offering a kind of show emphasizing

specified sexual activities or specified anatomical areas.” Starting in August 2000, the Township

sought to enforce the ordinances against Garter Belt and Bates.

       Bates filed this action under 42 U.S.C. § 1983 on September 13, 2002. She alleges that

both the nudity ordinance and the licensing ordinance are unconstitutional in violation of the first

and fourteenth amendments.

A. Garter Belt Litigation

       Bates’s suit is one of several cases involving the Township’s nudity ordinance. On

November 6, 2000, the Township sought, in state court, a permanent injunction against Garter

Belt, requiring it to comply with the nudity ordinance (“Garter Belt I”). Garter Belt raised a

constitutional defense and, on December 13, 2000, removed the case to federal district court. On

December 28, 2000, Garter Belt filed a separate suit in federal court against the Township,

(“Garter Belt II”) claiming that both the nudity ordinance and the licensing ordinance were

unconstitutional. Garter Belt I and Garter Belt II were consolidated and heard before the same

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Bates v. Van Buren

judge.

         The district court remanded Garter Belt I on the grounds that a federal defense does not

create a basis for federal jurisdiction. It then dismissed Garter Belt II without prejudice,

reasoning that it should abstain from deciding the case out of deference to the parallel state court

proceedings in Garter Belt I.

         The decision to dismiss Garter Belt II on abstention grounds was affirmed by this court

on June 2, 2003. Garter Belt, Inc. v. Van Buren Township, 66 Fed. Appx. 612 (6th Cir. 2003)

(unpublished) (“Garter Belt III”). We found that all three conditions for abstention laid out in

Younger v. Harris, 401 U.S. 37 (1971), were satisfied. Garter Belt III, 66 Fed. Appx. at 614-15.

First, a parallel case between the same parties, Garter Belt I, was pending in state court. Id. at

614. Second, the state had an “important interest in enforcing its state and local liquor licensing

and obscenity codes.” Id. at 614 (citing Cooper v. Parrish, 203 F.3d 937, 954 (6th Cir. 2000)).

Third, we found that Garter Belt had the opportunity to raise all its claims in the state court

proceeding. Id. at 615. We also noted that the presence of an additional claim in Garter Belt II

– the challenge to the licensing ordinance – did not bar abstention because the claim could also

be raised in state court. Ibid. (citing Carroll v. City of Mount Clemens, 139 F.3d 1072, 1074-75

(6th Cir. 1998)).

         Meanwhile, Garter Belt I continued in Wayne County, Michigan, Circuit Court. On

December 11, 2001, that court issued a permanent injunction against Garter Belt, in the process

upholding the ordinance and dismissing counterclaims. In a lengthy opinion, the Michigan

Court of Appeals affirmed on September 25, 2003. Van Buren Township v. Garter Belt, Inc.,

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Bates v. Van Buren

673 N.W.2d 111 (Mich. App. Ct. 2003). The Michigan Supreme Court declined to hear the

appeal on June 24, 2004. Charter Township of Van Buren v. Garter Belt, Inc., 682 N.W.2d 86

(Mich. 2004). A Petition for Certiorari, filed September 22, 2004, is pending before the United

States Supreme Court.

B. The Proceedings Below

       On September 16, 2003, the federal district court dismissed Bates’s suit without prejudice

on abstention grounds, citing Colorado River Water Conservation Dist. v. United States, 424

U.S. 800 (1976). The court determined that this case was parallel to Garter Belt I because they

both concerned the constitutionality of the Township’s nudity ordinance. It then weighed several

Colorado River factors, and concluded that the state forum could hear all claims and offer

complete relief, and that abstention was therefore warranted to avoid piecemeal litigation. The

court also found that because the ordinance contained a severability clause and Garter Belt I

raised state law issues, the ordinance could be modified in state court. Finally, the district court

noted that it is “surely more than a mere coincidence” that Bates’s attorney also represented

Garter Belt in another case and that she was a dancer at the Garter Belt. It characterized this

case as “yet another attempt to gain a federal forum.”

                                                 II

       There is conflicting precedent within this circuit as to the appropriate standard of review

for abstention decisions. Most panels have reviewed de novo. See, e.g., Rouse v.

DaimlerChrysler Corp., 300 F.3d 711 (6th Cir. 2002). The de novo standard was first articulated

in Traughber v. Beauchane, 760 F.2d 673, 676 (6th Cir. 1985), which explained that “[b]ecause

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Bates v. Van Buren

theories of state and federal law, and expressions of federalism and comity, are so interrelated in

the decision to abstain such dispositions are elevated to a level of importance dictating de novo

appellate review.”

       A few decisions, however, have reviewed abstention decisions for abuse of discretion.

Great Earth Companies, Inc. v. Simons, 288 F.3d 878, 886 (6th Cir. 2002); Romine v.

Compuserve Corp., 160 F.3d 337, 341-43 (6th Cir. 1998) (concluding that the district “court’s

decision was not an abuse of discretion”). For the abuse of discretion standard of review, these

cases rely upon Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1, 19 (1983).

Moses H. Cone does not explicitly state the standard of review, although it does suggest abuse of

discretion is the proper standard. Ibid. (“[W]e agree with the Court of Appeals that the District

Court in this case abused its discretion in granting the stay.”). Since the district court was found

to have abused its discretion, the outcome would have been the same under de novo review, and

the Court never considered explicitly which standard was appropriate.

       The circuits are also split on the proper standard of review. Compare Silverman v.

Silverman, 267 F.3d 788, 792 (8th Cir. 2001) (reviewing abstention for abuse of discretion) and

For Your Eyes Alone, Inc. v. City of Columbus, Ga., 281 F.3d 1209, 1216 (11th Cir. 2002)

(same) with American Consumer Pub. Ass'n, Inc. v. Margosian, 349 F.3d 1122, 1125 (9th Cir.

2003) (reviewing abstention de novo) and Diamond Const. Corp. v. McGowan, 282 F.3d 191,

197-98 (2nd Cir. 2002) (same).

       We conclude that Traughber requires us to review abstention decisions de novo. As an

original matter, Great Earth’s reading of Moses H. Cone may be correct. But Moses H. Cone is

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Bates v. Van Buren

at least somewhat ambiguous, and Traughber’s subsequent interpretation controls.




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                                                   III

          In Colorado River, the Supreme Court held that federal courts may abstain from hearing

a case solely because there is similar litigation pending in state court. 424 U.S. at 818.

Colorado River abstention rests on considerations of “wise judicial administration” and the

general principle against duplicative litigation. Id. at 817. These factors create a “narrow

exception” to the “virtually unflagging obligation of the federal courts to exercise the jurisdiction

given them.” Ibid.

          The threshold question in Colorado River abstention is whether there are parallel

proceedings in state court. Crawley v. Hamilton County Comm’rs, 744 F.2d 28, 31 (6th Cir.

1984). The state court proceedings need not be identical, merely “substantially similar.”

Romine v. Compuserve Corp., 160 F.3d 337, 340 (6th Cir. 1998). There is also no requirement

that the parties in the state court proceedings be identical to those in the federal case. Heitmanis

v. Austin, 899 F.2d 521, 528 (6th Cir. 1990).

          This case is clearly parallel to Garter Belt I. Both cases are principally about the

constitutionality of the Township’s nudity ordinance and allege the same constitutional

infirmities. To the extent the two suits differ, it is that Garter Belt I includes claims that state

law preempts the ordinance and that the ordinance violates the Michigan State Constitution.

Garter Belt III, 66 Fed. Appx. at 613. The fact that the state action is broader than the federal is

no bar to Colorado River abstention, because this fact can only make it more likely that it will

not be necessary for the federal courts to determine the federal question. See Romine, 160 F.3d

at 340.

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       Having established that there are parallel state proceedings, we must next examine

whether judicial economy warrants abstention. We have summarized the various factors from

Colorado River and subsequent cases as follows:

       (1) whether the state court has assumed jurisdiction over any res or property; (2) whether
       the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation;
       and (4) the order in which jurisdiction was obtained . . . . (5) whether the source of
       governing law is state or federal; (6) the adequacy of the state court action to protect the
       federal plaintiff’s rights; (7) the relative progress of the state and federal proceedings;
       and, (8) the presence or absence of concurrent jurisdiction. These factors, however, do
       not comprise a mechanical checklist. Rather, they require “a careful balancing of the
       important factors as they apply in a give[n] case” depending on the particular facts at
       hand.

Romine, 160 F.3d at 340-41 (citations omitted).

       Three of these factors weigh against abstention. First, this case does not involve a res.

Second, there is no reason to think the federal forum is less convenient. Finally, the governing

law in this case is federal, but the Supreme Court has stated that the source-of-law factor is less

significant when the states and federal courts have concurrent jurisdiction. Moses H. Cone., 460

U.S. at 25.

       The remaining factors militate in favor of abstention. First, the federal suit was filed

almost two years after the state suit. The state court took jurisdiction of Garter Belt I in

November 2000, but the initial complaint in this case was not filed until September 2002.

Second, the state court proceedings were clearly well advanced when the district court

considered the case. At the time the district court heard this case, Garter Belt I was already on

appeal in the Michigan Court of Appeals. Third, we expressly found that the state court

proceedings adequately protected the parties’ federal rights in Garter Belt III, 66 Fed. Appx. at

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615. Fourth, since the state courts were already considering constitutional challenges to the

nudity ordinance, the district court avoided piecemeal litigation by abstaining. Finally, state and

federal courts have concurrent jurisdiction over federal constitutional issues.

       We think the district court was correct to abstain on the basis of Colorado River. Our

focus in these cases, once we have found that a parallel state proceeding exists, has been on the

relative progress of the state and federal proceedings. See PaineWebber, Inc. v. Cohen, 276 F.3d

197, 207-08 (6th Cir. 2001) (finding that two-day delay between the filing of state and federal

suits was not a sufficient reason for abstention given that there was no significant progress in the

state court suit); Great Earth, 288 F.3d at 887 (finding that abstention was not warranted

because, although state suit was filed first, the federal proceeding was actually more advanced).

Here it is quite clear that the state proceedings arising from Garter Belt I are far more advanced

than this case.

       Our precedents support the conclusion that the substantial difference in the relative

advancement of the state and federal proceedings justifies abstention. The situation here is most

analogous to Romine, where we affirmed abstention in a class action securities fraud case when

the same federal claims had been brought in state court one month before the federal case was

brought. 160 F.3d at 338-40. In Romine, as in this case, both the state and federal actions

contained identical federal claims and the state court suit included additional state law claims.

Ibid. We found it significant in Romine that the state proceedings were well into discovery,

whereas the federal proceedings were still in the initial pleading stage. Id. at 341-42. Here the

state proceeding is even more advanced; at the time the district court dismissed, Garter Belt I

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had already been heard by the Michigan Court of Appeals. See Bd. of Education of Valley View

Community Unit School Dist. v. Bosworth, 713 F.2d 1316, 1321-22 (7th Cir. 1983) (finding that

when a parallel state court case is on appeal, the reasons for Colorado River abstention are

stronger). Thus the differences between this case and Romine cut in favor of abstention – this

case involves a greater delay between the filing of the state and federal suits and a greater

disparity between the relative advancement of the state and federal proceedings.

                                                 IV

       Having found that Colorado River abstention is appropriate, the remaining issue is

whether the case should be dismissed or stayed. Although we have never explicitly prohibited

district courts from dismissing cases when abstaining under Colorado River, issuing a stay of

proceedings has been the general practice. See Romine, 160 F.3d at 338 (affirming a district

court stay of a case on the basis of Colorado River abstention); Holmes Financial Associates,

Inc. v. Resolution Trust Corp., 33 F.3d 561, 562 (6th Cir. 1994) (same). In similar

circumstances, other circuits have generally required district courts to issue a stay rather than

dismiss without prejudice. Moorer v. Demopolis Waterworks and Sewer Bd., 374 F.3d 994, 998

(11th Cir. 2004) (requiring a stay, not dismissal, when exercising Colorado River abstention);

LaDuke v. Burlington Northern R. Co., 879 F.2d 1556, 1561-62 (7th Cir. 1989) (requiring a stay

because it lessens concerns over the statute of limitations, enables the parties to return to the

judge who is already familiar with the case, and generally protects all the rights of the parties

without imposing any additional burden on the district court); Mahaffey v. Bechtel Assoc. Prof'l

Corp., 699 F.2d 545, 546-47 (D.C. Cir. 1983) (holding that a stay is required because it

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“effectively conserve[s] court resources while avoiding premature rejection of the litigants’

access, as specified by statute, to a federal forum”); Kelser v. Anne Arundel County Dept. of

Social Services, 679 F.2d 1092, 1094-95 (4th Cir. 1982) (affirming abstention in a § 1983 action,

but modifying the order from a dismissal to a stay).

        Because Colorado River abstention is temporary, federal courts will often eventually hear

a case they have abstained from deciding. Colorado River abstention is temporary because all

the reasons for it dissipate once the state court proceedings have run their course.1 At that point,

if any party still has a claim for which it is entitled to a federal forum, and it is not barred by res

judicata or a similar doctrine, it may return to federal court. Because, under Colorado River

abstention, the parties in the state and federal proceedings need not be identical, the federal suit

will normally not be barred by res judicata and federal litigation may resume if the state courts

do not moot the issue on state law grounds.2

        We conclude that a stay is the best way to effectuate Colorado River abstention.

Functionally, the difference between a stay and dismissal without prejudice is small, but staying

the proceedings does offer a few advantages. Although not an issue in this case, it will prevent

        1
         From that perspective, this appeal is something of a puzzle. Since the Supreme Court
will, in all likelihood, soon resolve the application for certiorari in Garter Belt I, Bates may well
soon be free to resume her § 1983 action because the state court proceeding will have concluded
and left the ordinance intact. Even if Bates were to prevail in this appeal, it is not clear she will
get back to district court much faster. For that matter, if her employer, Garter Belt, had simply
decided not to file for certiorari, she could have been back in federal district court months ago.
        2
         This is in contrast to Younger abstention, which blocks federal suits seeking to enjoin
state criminal proceedings and hence only applies to proceedings between the same parties. 401
U.S. at 38-46. Hence, in Younger abstention cases, the parties will almost always be barred by
res judicata from relitigating in federal court.

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statute of limitations problems. Requiring refiling also imposes small, but non-zero, costs and

delay upon the plaintiff. A stay of proceedings is also more efficient from the court’s point of

view, since the post-abstention case would stay with the original judge, who is familiar with the

case, rather than be assigned a new judge. An indefinite stay of proceedings also imposes no

additional burden to the court. We therefore join other circuits in requiring a stay of proceedings

rather than a dismissal in Colorado River abstention cases.

                                                 V

       Garter Belt I is clearly parallel to this case. As the state proceedings are substantially

more advanced than this federal suit, the Colorado River factors, on balance, favor abstention.

Therefore, we AFFIRM, but modify the dismissal order to require a stay of proceedings.




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