                              In the
 United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 06-3900
FREEEATS.COM, INC.,
                                                 Plaintiff-Appellant,
                                  v.

STATE OF INDIANA and STEVE CARTER,
Attorney General,
                                              Defendants-Appellees.
                           ____________
              Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
            No. 06 C 1403—Larry J. McKinney, Chief Judge.
                           ____________
     ARGUED APRIL 3, 2007—DECIDED SEPTEMBER 12, 2007
                           ____________


  Before MANION, EVANS, and WILLIAMS, Circuit Judges.
   MANION, Circuit Judge. FreeEats.com, Inc., a provider
of prerecorded telephonic messages, filed in federal district
court a motion for a preliminary injunction and a declara-
tory judgment seeking to prevent Indiana from enforcing
its statute prohibiting the use of automatic dialing ma-
chines to send prerecorded messages to Indiana tele-
phone subscribers. Three days earlier, Indiana had filed
an action in an Indiana state court against one of FreeEats’
clients, the Economic Freedom Fund, and numerous then-
unknown prerecorded telephonic message providers, to
2                                               No. 06-3900

enforce the Indiana statute. Based on its first-filed state
court action, Indiana moved the district court to abstain
from exercising jurisdiction pursuant to the principles of
Younger v. Harris, 401 U.S. 37 (1971), and to stay the case
pending the resolution of its motion. The district court
denied both of Indiana’s motions, as well as FreeEats’
motion for a preliminary injunction. Indiana and FreeEats
cross-appealed. We reverse the district court’s denial of
Indiana’s motion to dismiss pursuant to the Younger
abstention doctrine, and vacate its denial of FreeEats’
motion for a preliminary injunction.


                             I.
   FreeEats is a Virginia corporation that uses prerecorded
telephonic messages to poll households, identify political
supporters, deliver political advocacy messages, and
encourage supporters to go to the polls to vote for particu-
lar candidates. It makes interstate telephone calls into all
fifty states. If a FreeEats call is not answered by a live
person, FreeEats will attempt to call the number again
up to three times.
  Prior to the November 2006 elections, the Economic
Freedom Fund hired FreeEats to make prerecorded tele-
phone calls to Indiana residents from the FreeEats call
center located in Virginia. In early September 2006,
FreeEats began making calls on behalf of the Economic
Freedom Fund to Indiana telephone subscribers in sup-
port of various congressional candidates. On September 18,
2006, Indiana filed an action in Indiana state court1 seeking
an injunction and civil penalties against the Economic


1
  Indiana v. Economic Freedom Fund, No. 07C01-0609-MI-0425
(Brown County Cir. Ct. filed Sept. 18, 2006).
No. 06-3900                                                      3

Freedom Fund for violating Indiana’s Automated Dialing
Machine Statute (the “ADMS”), Ind. Code § 24-5-14-5,2
which generally prohibits the use of automatic dialing
machines to send prerecorded messages to Indiana tele-
phone subscribers. Indiana’s complaint did not name
FreeEats, but it did name several “John Does” who it
claimed were responsible for making the offending tele-
phone calls.
  Three days later, on September 21, 2006, FreeEats filed
in federal district court this action against both Indiana
and the Indiana Attorney General, seeking injunctive and
declaratory relief to prohibit Indiana from enforcing the
ADMS. Specifically, FreeEats claimed that Indiana
should be enjoined from enforcing the ADMS because: (1)


2
  In 1988, and prior to Congress’ passage of the Telephone
Consumer Production Act (“TCPA”), 47 U.S.C. § 227, Indiana
enacted its own statutory regulations pertaining to automatic
dialing machines, the ADMS. The ADMS prohibits commercial
telephone solicitation using automatic dialing-announcing
devices to Indiana telephone subscribers, unless “the subscriber
knowingly or voluntarily requested, consented to, permitted, or
authorized receipt of the message,” or “the message is immedi-
ately preceded by a live operator who obtains the subscriber’s
consent before the message is delivered.” Ind. Code § 24-5-14-
5(b). The ADMS allows the use of automatic dialing-announcing
devices in only three instances: (1) for school districts to inform
students, parents, or employees; (2) for Indiana telephone
subscribers with whom the caller has a current business or
personal relationship; and (3) for employers advising their
employees of work schedules. Ind. Code § 24-5-14-5(a). Unlike
the TCPA, the ADMS does not contain a broad exclusion
exempting any non-commercial calls, including calls deliver-
ing political messages.
4                                                 No. 06-3900

federal law preempts it; (2) it violates the Commerce
Clause; and (3) it violates the First Amendment. The next
day, Indiana moved to amend its state court complaint to
name FreeEats as a defendant, and to stay the federal
proceedings pending the resolution of the state case
pursuant to the principles that the Supreme Court set
forth in Younger v. Harris, 401 U.S. 37 (1971).
  On October 24, 2006, the district court denied Indiana’s
and the Indiana Attorney General’s motion to stay. It also
denied their motion to dismiss pursuant to the Younger
abstention doctrine, upon finding that this case involves
important federal issues that require urgent attention in
light of the then-approaching 2006 congressional election.
Additionally, the district court denied FreeEats’ motion
for a preliminary injunction based on its finding that
FreeEats had not shown a likelihood of success on the
merits on any of its three claims. Specifically, it first found
that FreeEats was unlikely to prevail on its preemption
claim, because federal law, and in particular the TCPA,
did not preempt the ADMS. The district court reasoned
that the TCPA’s savings clause allows the states to enact
stricter regulations than the TCPA’s baseline federal
standards, including regulations impacting interstate calls
coming into a state. Second, the district court found that
FreeEats was unlikely to prevail on its Commerce Clause
claim, because the ADMS does not impose a clearly
excessive burden on interstate commerce in relation to the
putative local benefits of protecting residential privacy.3
Third, the district court found that FreeEats was unlikely
to prevail on its First Amendment claim, because the


3
   On appeal, FreeEats does not challenge the district court’s
findings regarding its Commerce Clause claim.
No. 06-3900                                                5

ADMS is content neutral, it is narrowly tailored to achieve
Indiana’s interest in protecting residential privacy, and it
leaves open alternative channels for communication. In
particular, the district court pointed out that the ADMS
does not ban FreeEats from delivering its messages to
Indiana residents via telephone; rather, it merely requires
FreeEats to use a live operator to obtain consent before
playing its prerecorded messages. The district court also
noted that the ADMS does not impose any limitations on
other traditional forms of political speech, such as door-to-
door campaigning, bulk mailings, or posting signs.
  FreeEats appealed the district court’s denial of its mo-
tion for a preliminary injunction, and Indiana cross-
appealed the district court’s denial of it motion to dismiss
pursuant to the Younger abstention doctrine. FreeEats then
moved the state court to stay its proceeding pending this
court’s decision. On December 11, 2006, the state court
denied FreeEats’ motion and ordered discovery to com-
mence. As of the date of publication, the state action
was ongoing. Both the Economic Freedom Fund and
FreeEats have moved for partial summary judgment, but
the state court has yet to rule on their motions.4




4
   The Sept. 7, 2007, docket sheet for the Indiana state case
indicates that the Economic Freedom Fund and FreeEats
moved for partial summary judgment on June 20, and July 10,
respectively; Indiana responded on July 20; EFF and FreeEats
filed an unopposed motion for oral argument on July 26; oral
argument has been set for Sept. 7, 2007.
6                                                     No. 06-3900

                                 II.
  As a threshold matter, we must address Indiana’s
claim on cross-appeal that the district court should have
abstained from exercising subject matter jurisdiction over
this matter. We review de novo a district court’s decision
to decline to abstain from exercising jurisdiction pursuant
to the Younger abstention doctrine. Forty One News, Inc. v.
County of Lake, 491 F.3d 662,665 (7th Cir. 2007) (citations
omitted).5 Younger generally requires federal courts to
abstain from taking jurisdiction over federal constitutional
claims that involve or call into question ongoing state
proceedings. Younger, 401 U.S. 37, 43-44. See also Forty
One News, Inc., 491 F.3d at 665 (“Younger abstention is
appropriate only when there is an action in state court
against the federal plaintiff and the state is seeking to
enforce the contested law in that proceeding.”). “The rule
in Younger v. Harris is designed to permit state courts to
try state cases free from interference by federal courts.”
Id. (quotations and citations omitted). See also Younger, 401
U.S. at 43. The Younger principles of abstention apply both
to claims based on constitutional challenges, as well as to
those based on federal preemption challenges. See New
Orleans Public Serv., Inc. v. Council of City of New Orleans,
491 U.S. 350, 365 (1989).
  The Court’s holding in Younger “was based partly on
traditional principles of equity, but rested primarily on the


5
  While the Younger abstention doctrine originated in context
of criminal prosecutions, it “has since been expanded beyond
criminal prosecutions to various civil proceedings in state
court implicating important state interests.’ ” Ramsden v.
AgriBank, FCB, 214 F.3d 865, 871 (7th Cir. 2000) (quoting Trust &
Inv. Advisers, Inc. v. Hogsett, 43 F.3d 290, 294-95 (7th Cir. 1994)).
No. 06-3900                                                 7

even more vital consideration of comity.” New Orleans
Public Serv., Inc., 491 U.S. at 364 (internal quotations and
citations omitted). The Younger Court defined comity as:
    [A] proper respect for state functions, a recognition of
    the fact that the entire country is made up of a Union of
    separate state governments, and a continuance of the
    belief that the National Government will fare best if the
    States and their institutions are left free to perform
    their separate functions in their separate ways. This,
    perhaps for lack of a better and clearer way to describe
    it, is referred to by many as ‘Our Federalism,’ and one
    familiar with the profound debates that ushered our
    Federal Constitution into existence is bound to respect
    those who remain loyal to the ideals and dreams of
    ‘Our Federalism.’ The concept does not mean blind
    deference to ‘States’ Rights’ any more than it means
    centralization of control over every important issue in
    our National Government and its courts. The Framers
    rejected both these courses. What the concept does
    represent is a system in which there is sensitivity to
    the legitimate interests of both State and National
    Governments, and in which the National Government,
    anxious though it may be to vindicate and protect
    federal rights and federal interests, always endeavors
    to do so in ways that will not unduly interfere with
    the legitimate activities of the States. It should never
    be forgotten that this slogan, ‘Our Federalism,’ born
    in the early struggling days of our Union of States,
    occupies a highly important place in our Nation’s
    history and its future.
Younger, 401 U.S. at 44-45. Accordingly, Younger and its
progeny “require federal courts to abstain from enjoining
ongoing state proceedings that are (1) judicial in nature, (2)
8                                                 No. 06-3900

implicate important state interests, and (3) offer an ade-
quate opportunity for review of constitutional claims, (4)
so long as no extraordinary circumstances—like bias or
harassment—exist which auger against abstention.” Majors
v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998) (citing
Middlesex County Ethics Comm. v. Garden State Bar Assoc.,
457 U.S. 423, 429 (1982)). See also Gen. Auto Serv. Station LLC
v. City of Chicago, 319 F.3d 902, 904-05 (7th Cir. 2003)
(stating that “except in extraordinary situations, a fed-
eral court may not enjoin ongoing state proceedings that
arise out of important state interests, if the litigant has
an adequate opportunity to present its constitutional
arguments in the state forum”).
   There is no dispute that this case satisfies the first three
factors for abstention under Younger. First, the state
proceedings are judicial in nature as Indiana filed in the
Brown Country Circuit Court its complaint against the
Economic Freedom Fund and FreeEats alleging viola-
tions of the ADMS. Second, Indiana’s complaint clearly
implicates an important state interest, specifically the
preservation of residential privacy as expressed by the
Indiana legislature in its passage of the ADMS. Third,
FreeEats may potentially avail itself of the same remedies
in either the Indiana state court or the district court for
its claims that the ADMS is preempted by federal law
and unconstitutional. Accordingly, this case qualifies for
abstention.
  Despite the fact that the Younger factors all favor absten-
tion, the district court found that extraordinary circum-
stances—the then rapidly approaching 2006 congressional
elections—justified its exercise of federal jurisdiction. The
party claiming extraordinary circumstances must demon-
strate their existence. Green v. Benden, 281 F.3d 661, 667
No. 06-3900                                                    9

(7th Cir. 2002) (citing Ramsden, 214 F.3d at 871). The
Supreme Court has pointed out that such a determina-
tion must be made on a case-by-case basis:
    The very nature of “extraordinary circumstances,” of
    course, makes it impossible to anticipate and define
    every situation that might create a sufficient threat of
    such great, immediate, and irreparable injury as to
    warrant intervention in state [ ] proceedings. But
    whatever else is required, such circumstances must be
    “extraordinary” in the sense of creating an extraordi-
    narily pressing need for immediate federal equitable
    relief, not merely in the sense of presenting a highly
    unusual factual situation.
Kugler v. Helfant, 421 U.S. 117, 124-25 (1975) (footnote
omitted).6 See also Arkebauer v. Kiley, 985 F.2d 1351, 1361
(7th Cir. 1993) (recognizing that the extraordinary circum-
stances exception “is a nebulous one”). The Court has
stated that a district court should not abstain under
Younger where: (1) the pending state proceeding was
motivated by a desire to harass or is conducted in bad
faith, see Huffman v. Pursue, Ltd., 420 U.S. 592, 611 (1975); see
also Ramsden, 214 F.3d at 871; or (2) the plaintiff has demon-
strated “ ‘an extraordinarily pressing need for immediate
equitable relief’ ” that, if not granted, will irreparably
injure the plaintiff, see Moore, 442 U.S. at 433 (quoting
Kugler, 421 U.S. at 124-25)); see also Younger, 401 U.S. at 46
(noting that even irreparable injury is insufficient unless it
is “both great and immediate”). Brunken v. Lance, 807 F.2d
1325, 1331 (7th Cir. 1986) (discussing the two exceptions to



6
  While Kugler spoke in the context of criminal prosecutions,
the Court has held that the same standard applies in the
civil context. Moore v. Sims, 442 U.S. 415, 423 (1979).
10                                                   No. 06-3900

the Younger doctrine).7 We consider each of these excep-
tions in turn.8
  First, we must determine whether the pending state
proceeding was motivated by a desire to harass or is


7
   Since the genesis of the Younger abstention doctrine over
thirty-five years ago, the Supreme Court has provided only
two examples of circumstances that would meet this high
standard: (1) when a state statute is “ ‘flagrantly and patently
violative of express constitutional prohibitions in every clause,
sentence and paragraph, and in whatever manner and against
whomever an effort might be made to apply it,’ ” Younger, 401
U.S. at 53-54 (quoting Watson v. Buck, 313 U.S. 387, 402 (1941));
and (2) when the state administrative agency “was incompetent
by reason of bias to adjudicate the issues pending before
it,” Gibson v. Berryhill, 411 U.S. 564, 577 (1973). Neither of
those scenarios is present in this case. First, the ADMS is not
flagrantly and patently violative of express constitutional
prohibitions in its every clause, sentence and paragraph, and
in whatever manner and against whomever an effort might
be made to apply it. In fact, the only appellate courts to consider
statutes similar to the ADMS have upheld them, including
one in which FreeEats was a defendant. See generally North
Dakota v. FreeEats.com, Inc., 712 N.W.2d 828 (N.D. 2006) (up-
holding state telemarketing statute from federal preemption
challenge); Utah Div. of Consumer Prot. v. Flagship Capital, 125
P.3d 894 (Utah 2005) (same). Second, as discussed below,
FreeEats makes no allegations that the Indiana state court
was incompetent by reason of bias to adjudicate the issues
pending before it.
8
  While this circuit generally has considered both of these
exceptions to fall within the rubric of “extraordinary circum-
stances,” some of our sister circuits have treated them as two
separate exceptions: (1) bad faith; and (2) extraordinary circum-
stances. See, e.g., Diamond “D’ ” Constr. Corp. v. McGowan, 282
F.3d 191, 198 (2d Cir. 2002).
No. 06-3900                                                  11

conducted in bad faith. FreeEats also makes no allegations
that the Indiana state court is incompetent to adjudicate
the issues in this case because of bias, or that Indiana
filed the state action based on a desire to harass or in bad
faith. Accordingly, the first exception to the Younger
abstention doctrine is not applicable in this case.
  Second, we consider whether the plaintiff has demon-
strated “ ‘an extraordinary pressing need for immediate
federal equitable relief’ ” that, if not granted, will irrepara-
bly injure the plaintiff. Moore, 442 U.S. at 433 (quoting
Kugler, 421 U.S. at124-25). In Kugler, the Supreme Court
expounded on this second exception, noting that for it to
apply, there (1) must be no state remedy available to
meaningfully, timely, and adequately remedy the alleged
constitutional violation; and (2) that the litigant will suffer
“great and immediate” harm if the federal court does not
intervene. Kugler, 421 U.S. at 124-25. See also Trainor v.
Hernandez, 431 U.S. 434, 441-42, 442 n.7 (1977). Thus, to
satisfy the first predicate of the “extraordinary circum-
stances” exception, FreeEats must show that there is no
state remedy available to meaningfully, timely, and
adequately remedy its alleged constitutional violations.
The district court found that FreeEats made this show-
ing, based upon the temporal proximity of the election
and its conclusion that the state court was unlikely to
resolve FreeEats’ claims prior to election day. Specifically,
the district court “conclude[d] that abstention is inappro-
priate because this case involves important federal issues
that require urgent attention,” the state action was “in its
infant stages,” and “the delays that have taken place in
that matter to date make it unlikely that the state court
will be able to address those claims prior to the general
election.”
12                                                 No. 06-3900

   Whether a fast-approaching election justifies refusing
to abstain under the principles of Younger is an issue of
first impression in this circuit.9 We find guidance, however,
in the Supreme Court’s decision in Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1 (1987), in which the Court reiterated that “a
federal court should assume that state procedures will
afford an adequate remedy, in the absence of unambig-
uous authority to the contrary.” Id. at 15. In this case, the
district court observed that while the state court could
provide a remedy to FreeEats, it could not do so prior to
the election due to various procedural obstacles. This calls
for an examination of the proceedings in the state court.
  On September 26, 2006, eight days after Indiana filed its
state court complaint, the original state court judge as-
signed to the matter recused herself. Prior to her recusal,
the original state court judge had scheduled a hearing on
Indiana’s motion for a preliminary injunction for October
6, 2006, which was over one month prior to the election.
Pursuant to Indiana state and local court rules, the original
state court judge appointed a special judge to hear the
state action. Three days before the hearing date, FreeEats’
state court co-defendant, the Economic Freedom Fund,



9
   We did, however, touch on this issue in our order denying
FreeEats’ emergency motion for advancement of oral argument
and expedited consideration of this appeal. FreeEats.com, Inc. v.
Indiana, No. 06-3900 (7th Cir. Nov. 2, 2006) (order denying
FreeEats’ emergency motion for advancement of oral argument
and expedited consideration) (per curiam). Specifically, we
stated that “Indiana’s statute was enacted 18 years ago, and
emergency relief in a suit filed on the eve of an election is
unwarranted.” Id. (citing Purcell v. Gonzalez, ___ U.S. ___, 127
S. Ct. 5, 7 (2006)).
No. 06-3900                                               13

moved for a change of judge. The next day, and before the
state court had ruled on the change of judge motion,
FreeEats moved to continue the October 6, 2006, hearing
on Indiana’s motion, and to stay the entire state court
proceeding pending the district court’s resolution of its
own federal court motion for a preliminary injunction.
FreeEats also represented that it would not make any
more calls to Indiana telephone subscribers unless and
until it received a favorable ruling from the district court.
The day after that, October 5, 2006, which was one day
before oral arguments were scheduled on Indiana’s motion,
the special judge accepted jurisdiction.10 That same day,
the special judge granted FreeEats’ motion to continue
the October 6, 2006, hearing, as well as the Economic
Freedom Fund’s motion for a change of judge. A second
special judge accepted jurisdiction on November 1, 2006.
Five days later, and the day before the election, FreeEats
again moved to stay the state court proceedings, this time
until we resolve its appeal. On December 11, 2006, the
second special judge denied FreeEats’ motion to stay the
state action, and the state action continues to date. Based
upon these facts, it is clear that the state court could
have, and would have, conducted a hearing on Indiana’s
motion for a preliminary injunction prior to the election,
but for FreeEats’ and the Economic Freedom Fund’s
exercise of their procedural options to stay the hearing and
request a change of judge. While we do not express an
opinion regarding whether these procedural tactics were



10
  Under Indiana procedural rules, the special judge retained
emergency jurisdiction, including the power to adjudicate a
motion for a preliminary injunction, until the new judge
qualifies. See Ind. R. Tr. P. 79(O).
14                                                No. 06-3900

dilatory, they were undertaken at FreeEats’ and its client’s
election with the obvious consequence of postponing any
hearing until after the election. A party that exercises a
state court’s ordinary procedural processes to delay an
action cannot then turn around and claim that because of
that delay there is no state remedy available to meaning-
fully, timely, and adequately address its constitutional
claim. To find otherwise would offend comity.
   The district court also stated that its decision not to
abstain was supported by the fact that the state action
was “in its infant stage.” We have recognized that “ ‘where
state criminal proceedings are begun against the federal
plaintiffs after the federal complaint is filed but before
any proceedings of substance on the merits have taken
place in the federal court, the principles of Younger v. Harris
should apply in full force.’ ” Forty One News, Inc., 491 F.3d
at 666 (quoting Hicks, 422 U.S. at 349). Thus, in such a
situation, “the district court must consider the progress of
the federal action . . . and abstain if there have been no
proceedings of substance on the merits . . . in the federal
court.” Id. (quotations and citations omitted). We have
never addressed the inverted situation, however, where
the district court would consider the progress of a first-
filed state case for purposes of determining whether or
not to apply the Younger abstention doctrine. If the first-
filed state proceeding had only reached its preliminary
stages, would the federal court still be obligated to abstain?
Unless there are extraordinary circumstances as discussed
above, the answer is yes. To do otherwise would be an
affront to comity, as it would give district courts a free
hand to wrest control over cases first filed in the state
courts, so long as there have been no proceedings of
substance on the merits in the state court. Accordingly,
No. 06-3900                                               15

the district court erred in considering the progress of
the state action in its abstention analysis.
   We also consider how the action reached the courts. In
other words, who filed the action and when. FreeEats’
litigation history evinces that it was no stranger to litiga-
tion by states seeking to enforce automated dialing ma-
chine statutes. In September 2004, two years before
FreeEats filed this action, North Dakota sued FreeEats in
its state courts seeking civil penalties for violating its
automated dialing machine statute for calls that FreeEats
admitted it made to North Dakota residents. North Dakota
v. FreeEats.com, Inc., 712 N.W.2d at 831. FreeEats litigated
the North Dakota case all the way to the Supreme Court
of North Dakota, and that court resolved the case in favor
of North Dakota exactly five months before FreeEats filed
this action in the district court. Accordingly, FreeEats
was aware, or should have been aware, that a state might
seek to enforce its automated dialing machine statute
against it if it elected to make potentially offending calls.
That brings us to the ADMS. Indiana enacted the ADMS
in 1988, and it is highly similar to the North Dakota
automated dialing machine statute. While the record does
not disclose Indiana’s previous enforcement history for
the ADMS, there is no question that it was on the books
both during the time that FreeEats was being sued by
North Dakota, as well as when FreeEats contracted
with the Economic Freedom Fund to make automatic dialer
calls to Indiana telephone subscribers. If FreeEats had
exercised a modicum of due diligence, and the record is
silent on this point, it would have discovered the ADMS
and its potential liability thereunder. FreeEats then could
have filed suit for a declaratory judgment in either the
state court or the district court well in advance of the
16                                                 No. 06-3900

election, and prior to Indiana filing its action in state court.
Thus, FreeEats had a state remedy available to meaning-
fully, timely, and adequately resolve its alleged constitu-
tional claims, and one that would have avoided any
implication of the Younger abstention doctrine. Unfortu-
nately for FreeEats, it chose not to clarify this issue prior
to initiating its calling program to Indiana telephone
subscribers. We will not reward FreeEats with its desired
federal forum merely because it decided to delay seeking
injunctive and declaratory relief until the eve of the
election, regardless of the harm it potentially could have
suffered at that eleventh hour. Having found that FreeEats
had a meaningful, timely, and adequate state remedy to
resolve its alleged constitutional violation, we need not
address whether it would have suffered “great and
immediate” harm if the federal court did not intervene.
Accordingly, the district court should have abstained
pursuant to the principles of Younger.
  We further note that elections, be they municipal,
state, or federal, take place on a very regular basis. If
we were to conclude that waiting until weeks before an
election to file a suit seeking injunctive and declaratory
relief from a state statute that was enacted eighteen
years earlier gives rise to “extraordinary circumstances,”
then it would give license to the federal courts to run
roughshod over the state courts’ rights to adjudicate
properly filed actions involving constitutional challenges
that relate in some way to that election. That result would
not respect comity, and thus it would violate the core
principles of Younger.
  Finally, upon finding that the district court should
have abstained, “we are only left with the issue of how
to abstain from these claims; by dismissing or merely
No. 06-3900                                                  17

staying them.” Majors, 149 F.3d at 714. The pivotal ques-
tion in making this determination is whether any of the
relief sought by the plaintiff in its federal action is unavail-
able in the state action. See id. (“The crucial fact in this
determination is whether damages are available in the state
proceeding. If they aren’t, a stay is appropriate to avoid
losing the plaintiff’s claim to the statute of limitations
without adjudicating it, but where they are available,
dismissal is appropriate.” (internal citations omitted)); see
also Green, 281 F.3d at 667 (“A stay is appropriate when a
plaintiff is foreclosed from bringing his damages claims
in the state proceeding.”). Here, FreeEats does not assert
that the state court is incapable of providing any of the
forms of relief for which it has prayed in the federal action.
The Indiana state court clearly has the power to grant a
preliminary injunction to FreeEats to prevent Indiana
from enforcing the ADMS, as well as to grant FreeEats a
declaratory judgment upon its finding that the ADMS is
preempted by federal law or unconstitutional. We thus
conclude that dismissal, rather than a stay of FreeEats’
claims, was appropriate here. See id. (finding dismissal
appropriate); see also Majors, 149 F.3d at 714 (same).


                              III.
  The district court erred in declining to abstain from
exercising jurisdiction over this case pursuant to the
Younger abstention doctrine, because: Indiana filed its
complaint in state court before FreeEats filed its complaint
in this case; Indiana’s state court complaint seeking to
enforce the ADMS implicated important state interests;
the Indiana courts offer an adequate opportunity for
review of FreeEats’ federal preemption and constitutional
claims; and FreeEats did not demonstrate the existence of
18                                            No. 06-3900

any “exceptional circumstances” that would exempt this
case from the principles of Younger. Accordingly, we
REVERSE the district court’s denial of Indiana’s and the
Indiana Attorney General’s motion to dismiss, and we
VACATE the district court’s denial of FreeEats’ motion for
a preliminary injunction. This case is REMANDED with
directions to DISMISS pursuant to the Younger abstention
doctrine.

A true Copy:
       Teste:

                        _____________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                  USCA-02-C-0072—9-12-07
