                                                                                                                           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Precedential or Non-Precedential: Precedential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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"Lui v. Comm Adult Ent" (2004). 2004 Decisions. Paper 641.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/641


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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).
