Rossi v. Gemma

United States Court of Appeals
For the First Circuit

No. 06-2020

ROBERT V. ROSSI; LINDA A. ROSSI,

Plaintiffs, Appellants,

v.

LEONARD P. GEMMA, individually and in his capacity as President
of Gem Plumbing & Heating Co., Inc.; ROBERT J. LEVINE,
individually and in his capacity as a general partner of Gemma &
Levine; HENRY S. KINCH, JR., in his capacity as Clerk of the
Providence County Superior Court,

Defendants, Appellees.

No. 06-2021

ROBERT V. ROSSI; LINDA A. ROSSI,

Plaintiffs, Appellants,

v.

GEM PLUMBING & HEATING CO., INC.,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]
 Before

Lynch, Circuit Judge,
Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.

Patrick J. Dougherty for appellants.
Steven J. Brouillard, with whom Theodore Orson, and Orson and
Brusini Ltd. were on brief, for appellees Leonard P. Gemma and Gem
Plumbing & Heating Co., Inc.
Michael W. Field, Special Assistant Attorney General, and
Patrick C. Lynch, Attorney General, on brief for appellee Henry S.
Kinch, Jr.

May 31, 2007

*
Of the Eighth Circuit, sitting by designation.
 LYNCH, Circuit Judge. Robert V. Rossi and Linda A. Rossi

("the Rossis") were named as respondents in a state court lien

enforcement petition brought in May 2002 by Gem Plumbing & Heating

Co., Inc. ("Gem"). In that proceeding, the Rossis raised a due

process argument that the Rhode Island Mechanics' Lien Law, R.I.

Gen. Laws § 34-28-1 et seq., was unconstitutional. Although a

state Superior Court justice accepted the Rossis' argument, this

decision was vacated by the Rhode Island Supreme Court. See Gem

Plumbing & Heating Co. v. Rossi, 867 A.2d 798, 800, 818 (R.I.

2005). Undaunted, the Rossis pursued § 1983 actions in federal

court, raising similar -- but not necessarily identical --

constitutional challenges. The state court action remains pending

in Superior Court, on remand from the Rhode Island Supreme Court.

The district court thought that the Rossis were simply

re-litigating a battle they had already lost, and so it dismissed

the Rossis' claims on the bases, inter alia, of issue preclusion

and the Rooker-Feldman doctrine. Before us, the parties spend

considerable time and energy debating whether or not the Rhode

Island Supreme Court has already rejected the Rossis'

constitutional challenge. We do not decide this question.

Instead, we conclude that Younger abstention is appropriate for the

Rossis' constitutional claims.

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 I.

The facts and procedural history are unusually

convoluted. The Rossis' federal complaint alleged that in

September 2001, the Rossis had a conversation with Leonard P.

Gemma, Gem's president, regarding contracting work to be done at an

office building the Rossis owned in Smithfield, Rhode Island.1

Gemma had agreed to provide the Rossis with a written proposal

before he engaged in any actual work, but then his company

proceeded to perform work on the Rossis' property without a

contract.

Gem sent the Rossis an invoice for $35,500, but the

Rossis refused to pay it. On January 28, 2002, Robert J. Levine --

an attorney for Gem -- signed and mailed to the Rossis a "notice of

intention" to perform work on the Rossis' building, and he

simultaneously filed a copy of this notice in the local land

records. This was done in order to perfect a mechanics' lien that

arguably had been created at the time Gem performed work at the

Rossis' property. See R.I. Gen. Laws § 34-28-4 (2002);2 Gem, 867

A.2d at 803. Then, 120 days after Levine had mailed the notice of

intention, Gem filed a petition to enforce its purported mechanics'

1
Robert Rossi is a self-employed attorney, and the Rossis
intended that Robert would use the office building for his law
practice.
2
Unless otherwise noted, all citations to the Rhode Island
Mechanics' Lien Law are to the version of the statute that existed
as of January 2002.

-4-
lien in the Providence County Superior Court. See R.I. Gen. Laws

§ 34-28-10. Gem sought to collect the full $35,500 it said it was

owed. The Rossis were named as respondents.

The Rossis concluded that Gem's enforcement action was

encumbering their land and threatening the financing on their

property. One possible course of action for them would have been

to simply contest the validity of Gem's lien, see id. § 34-28-20,

but this would have left their property encumbered until the

contest had been resolved. The Rossis instead chose another course

available to them under Rhode Island law -- they sought a "lien

substitution." Utilizing this procedure, on June 4, 2002, the

Rossis paid $35,8603 into the registry of the Superior Court, and

the Superior Court granted the Rossis' motion to dissolve the

original lien. See id. § 34-28-17.

This substitution had the effect of leaving nearly

$36,000 of the Rossis' money in the court registry. On August 29,

2002, the Rossis filed a second motion in the Superior Court, this

one seeking both to dismiss Gem's enforcement petition and to

secure the release of their funds. In support of their motion, the

Rossis advanced two claims. First, they argued that because

attorney Levine had signed the notice of intention, rather than

Gemma, the lien was invalid under state law. Second, the Rossis

3
This amount reflected the full amount of Gem's claim, plus
costs incurred from the lien's enforcement.

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claimed that the entire Mechanics' Lien Law was unconstitutional

because it violated their due process rights under both the federal

and Rhode Island constitutions.

After significant briefing and argument,4 the Superior

Court concluded that the Mechanics' Lien Law was unconstitutional

under both the state and federal constitutions. To reach this

conclusion, the court relied primarily on federal cases about

procedural due process. See Connecticut v. Doehr, 501 U.S. 1

(1991); Mathews v. Eldridge, 424 U.S. 319 (1976). The court

reasoned that the Mechanics' Lien Law deprived the Rossis of a

significant property interest because it required them to pay the

value of the lien into the court registry in order to avoid the

negative consequences that flowed from owning encumbered property.

Additionally, the Superior Court held that this deprivation

occurred without adequate procedural safeguards: Rhode Island's

statutory procedures did not do enough to promptly remedy erroneous

deprivations. On May 30, 2003, the Superior Court entered judgment

in favor of the Rossis, dismissed the enforcement action against

them, and ordered the release of their funds from the court

registry. The court then temporarily stayed its judgment,

presumably to allow Gem the opportunity to appeal. It does not

4
At the invitation of the Superior Court, the Attorney
General and various building and trade associations filed briefs in
the case.

-6-
appear that the Superior Court ever addressed the Rossis' statutory

arguments for the lien's invalidity.

On June 5, 2003, Gem filed notice of appeal to the Rhode

Island Supreme Court. Gem also asked the Rhode Island Supreme

Court for a longer stay, which that court granted pending further

order.

The proceedings in the case attracted the attention of

the Rhode Island Legislature. On July 17, 2003, while Gem's appeal

in the Rhode Island Supreme Court was pending, the legislature

amended its Mechanics' Lien Law by adding a new provision. See

2003 R.I. Pub. Laws 978 (codified at R.I. Gen. Laws § 34-28-17.1

(2006)). In pertinent part, the new provision declared:

(a)If any person in interest, including, but
not limited to, an owner or contractor claims:
. . . (2) [that] it appears from the notice of
intention that the claimant has no valid lien
by reason of the character of or the contract
for the labor, materials or equipment and for
which a lien is claimed; or (3) that a notice
or other instrument has not been filed or
recorded in accordance with the applicable
provisions of § 34-28-1 et seq.; or (4) that
for any other reason a claimed lien is invalid
by reason or [sic] failure to comply with the
provisions of § 34-28-1 et seq., then in such
event, such person may apply forthwith to the
superior court for the county where the land
lies for an order to show cause why the lien
in question is invalid, or otherwise void, or
the basis of the lien is without probability
of a judgment rendered in favor of the lienor.

R.I. Gen Laws § 34-28-17.1 (2006). The legislature instructed that

the new provision would "take effect upon passage, and [would]

-7-
apply to all pending mechanics' liens under Chapter 34-28," and

that the law would also apply to future liens, petitions, and lien

substitutions. 2003 R.I. Pub. Laws 978, 979.

On September 16, 2003, the Rhode Island Supreme Court

directed the parties to include in their appellate briefs a

discussion of how the new statute affected the issues on appeal.

The parties complied.

On January 27, 2005, before the Rhode Island Supreme

Court had issued any decision, the Rossis filed a complaint against

Gemma and Levine in federal district court in Rhode Island. The

Rossis brought two main claims. First, pursuant to 42 U.S.C.

§ 1983, the Rossis asserted that Gemma and Levine had acted under

color of state law to deprive the Rossis of their federally

guaranteed rights to procedural due process.5 Federal jurisdiction

was alleged under 28 U.S.C. §§ 1331 and 1343 for this claim.

Second, the Rossis invoked the court's supplemental jurisdiction,

see 28 U.S.C. § 1367, and asserted a state law claim for slander of

title. The complaint sought a variety of remedies: a declaration

that Rhode Island's Mechanics' Lien Law was unconstitutional, a

declaration that Levine's signature was ineffective under state law

(thereby rendering the lien void), an injunction restraining Levine

5
The Rossis also claimed that Gemma and Levine had violated
similar guarantees in the Rhode Island Constitution.

-8-
and Gemma from further depriving the Rossis of their money, and

compensatory and punitive damages.

On February 22, 2005, approximately one month after this

federal complaint had been filed, the Rhode Island Supreme Court

issued its opinion in Gem and rejected the Rossis' constitutional

challenge. Gem, 867 A.2d at 818. The court first considered

whether it would analyze the constitutional issues with reference

to the old Mechanics' Lien Law, or the amended statute, and it

decided that the amended statute was applicable.6 Id. at 802. The

court then proceeded to analyze the constitutional issues presented

by the new statute in the context of the entire scheme set up by

the Rhode Island Mechanics' Lien Law.7

6
The court wrote:

Statutes are given retroactive effect only
when the legislature clearly expresses such an
application. Pion v. Bess Eaton Donuts Flour
Co., 637 A.2d 367, 371 (R.I. 1994). [The
amended Mechanics' Lien Law] . . . clearly
[was] intend[ed] to apply . . . both
prospectively to future mechanics' liens and
retrospectively to pending mechanics' liens.
Based on the clear language of the statute and
our caselaw, we are required to apply the
[amended law] to this appeal.

Gem, 867 A.2d at 802 (footnote omitted).
7
The court stated that this was no easy task because the law,
"having its roots in various predecessor statutes going back to
1847, has 'never been a model of clarity.'" Gem, 867 A.2d at 802
(quoting Faraone v. Faraone, 413 A.2d 90, 91 (R.I. 1980)); see also
id. at 818 (urging the legislature to write a "more plainly written
and user-friendly statute").

-9-
 The court ultimately concluded that the statute, as

amended, passed constitutional muster. It held that operation of

the Mechanics' Lien Law constituted state action, notwithstanding

the fact that private parties like Gem are the ones who invoke the

law. Id. 808-09. It also agreed with the Rossis that Gem's use of

the Mechanics' Lien Law effected a deprivation of a significant

property interest because it clouded the Rossis' title. See id. at

809-10. Nonetheless, the court found that the amended statute was

constitutionally sound. It interpreted the amended statute to

allow for a prompt hearing at any time after the notice of

intention had been mailed -- a point in time that is usually before

the contractor obtains the right to sue to enforce the lien. Id.

at 811-12. The court further interpreted the amended statute to

require that this hearing "be given priority on the Superior Court

calendar," and explained that at the hearing a property owner would

have the opportunity to challenge the claimed lien on a number of

grounds. Id. at 812. The court held that this prompt opportunity

for a hearing, when combined with the pre-existing procedural

safeguards in the statute,8 sufficed to insulate the statute from

constitutional attack. See id. at 812-15, 818.

8
These other safeguards included the requirement that the
notice of intention be based on a sworn affidavit, see R.I. Gen.
Laws § 34-28-4(b), the fact that the Superior Court could award
legal and other fees and expenses to the prevailing party in a lien
enforcement action, see id. § 34-28-19, and the owner's opportunity
for a lien substitution, see id. § 34-28-17. See Gem, 867 A.2d at
812-13.

-10-
 The court also "pause[d] to acknowledge an especially

peculiar facet of this case." Id. at 812. It observed that while

Rhode Island case law "clearly establishe[d]" that the court had to

apply the amended lien law on appeal, the amended statute had not

existed at the time the Superior Court had ruled on the Rossis'

motion. Id. Despite this acknowledgment, the Gem opinion did not

provide further commentary on this procedural wrinkle -- the

wrinkle that is the rub in this federal case. Instead, the court

vacated the Superior Court's judgment and remanded the case "[f]or

the reasons stated herein and because the [Superior Court] did not

have an opportunity to review the Mechanics' Lien Law as amended."

Id. at 818.

The Rossis did not go back to the Superior Court to ask

that they be given the funds held in the registry. Instead, on

March 17, 2005, the Rossis amended their federal court complaint

to add as a defendant Henry S. Kinch, Jr., the Clerk of the

Providence County Superior Court. Clerk Kinch was named a

defendant in his official capacity only, and the amended complaint

asserted only a § 1983 due process claim against him. The

complaint asked that Kinch be ordered to release the Rossis' funds

to them (with interest), as the funds were still being held in the

Superior Court's registry.

Gemma, Levine, and Kinch all filled motions asking the

federal court to dismiss the lawsuit, or in the alternative to

-11-
abstain from exercising jurisdiction. While those motions were

pending, on July 6, 2005, the Rossis filed a separate federal

complaint naming Gem as the sole defendant. This new lawsuit was

filed under a separate docket number, and assigned to the same

district court judge before whom the first federal lawsuit was

pending.

The new federal complaint alleged the same two primary

causes of action that the Rossis had brought against Gemma and

Levine: a § 1983 claim based on procedural due process, and a state

law slander of title claim.9 The Rossis sought the following forms

of relief: a declaration that the unamended version of the

Mechanics' Lien Law was unconstitutional, a declaration that Gem's

continued use of the Mechanics' Lien Law violated the Rossis' due

process rights, a declaration that Levine's signature rendered

Gem's lien void, an injunction to prevent Gem from depriving the

Rossis of the funds in the Superior Court's registry, an injunction

requiring Gem to cooperate with the Rossis in obtaining the release

of their funds, and compensatory and punitive damages.

The motions to dismiss the Rossis' first federal lawsuit

were referred to a magistrate judge, who recommended that the suit

be dismissed. The magistrate judge dealt first with the

defendants' argument that the Rooker-Feldman doctrine barred the

9
As the Rossis did in their other federal complaint, they
also asserted their due process claim under the Rhode Island
Constitution.

-12-
Rossis' § 1983 claim. See Exxon Mobil Corp. v. Saudi Basic Indus.

Corp., 544 U.S. 280, 284 (2005) (explaining that the Rooker-Feldman

doctrine precludes district court jurisdiction in "cases brought by

state-court losers complaining of injuries caused by state-court

judgments rendered before the district court proceedings commenced

and inviting district court review and rejection of those

judgments"); see also D.C. Court of Appeals v. Feldman, 460 U.S.

462 (1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923). Citing

the Supreme Court's recent opinion in Exxon Mobil, the magistrate

judge agreed with Clerk Kinch that Rooker-Feldman barred the claim

against him. The judge pointed out that the Rossis did not sue

Kinch until after the Rhode Island Supreme Court had issued its

decision in Gem, and the judge further explained that because the

Rossis wanted Kinch to return the funds from the court registry,

they were seeking to undo a state court decision. However, the

magistrate judge also concluded that Rooker-Feldman did not bar the

claims against Gemma and Levine: since the Rossis had sued them

before the Gem opinion issued, the Rossis had not been "state-court

losers" at the time suit was filed.

The magistrate judge nonetheless concluded that both

claim and issue preclusion barred the § 1983 claims against Gemma

and Levine.10 As to claim preclusion, the magistrate judge found

10
In light of his disposition on the preclusion issues, the
magistrate judge did not reach the defendants' arguments that the
§ 1983 claim failed because the defendants did not act under color

-13-
that the Rossis could have asserted their § 1983 claim as a

counterclaim in the lien enforcement proceeding. Their failure to

do so, in the magistrate judge's view, meant that their claim was

barred.11 As to issue preclusion, the magistrate judge read the

Rhode Island Supreme Court's decision in Gem to have already

decided the constitutional claims that the Rossis were presenting

in their § 1983 action. Thus the magistrate judge held that issue

preclusion provided an independent reason to bar the constitutional

claims against Gemma and Levine.12

The magistrate judge next turned to the state law slander

of title claim against Gemma and Levine, and he concluded that the

court should abstain from deciding that claim under the doctrine of

Colorado River Water Conservation District v. United States, 424

U.S. 800 (1976). Additionally, the magistrate judge recommended

that the district court decline to exercise supplemental

jurisdiction over this state law claim; the judge explained that he

of state law, because there was no actual violation of a
constitutional right, or because the Rossis' had not shown an
entitlement to compensable damages.
11
The magistrate judge also explained that while the
defendants in the first federal action (Gemma and Levine) were not
parties to the state court action (which involved Gem), Gemma and
Levine were in privity with Gem.
12
In dealing with both issue preclusion and claim preclusion,
the magistrate judge rejected the Rossis' argument that there had
not yet been a final judgment against them in state court. Even
though the Rhode Island Supreme Court had remanded the case, the
magistrate judge reasoned that the opinion in Gem was a final
judgment on the merits as to the issues that it had resolved.

-14-
had recommended dismissal of all federal claims, and that, under

state law, the slander of title claim was not yet ripe.

The Rossis objected to the magistrate judge's report and

recommendation, and the issues from the first federal lawsuit were

presented to the district court. The court adopted the magistrate

judge's analysis and conclusion. Simultaneously, the district

court considered a motion for judgment on the pleadings that Gem

had filed in the second federal lawsuit. The court concluded that

the arguments presented in the lawsuit against Gem were identical

to the arguments presented in the lawsuit against Gemma and Levine,

and it granted Gem's motion.

The Rossis appealed the district court's decision in both

cases, and we consolidated the appeals.

II.

The parties present to us essentially the same arguments

that they made in the district court.13 The defendants argue that

there are a number of reasons why the district court correctly

dismissed the Rossis' claims, while the Rossis contend that each of

these arguments is in error. Nearly all of the dispute surrounds

the dismissal of the Rossis' § 1983 claims.

13
Levine did not a file a brief in this court, and it is
unclear if he continues to be a party to this appeal, and if so,
whether his intent is simply to rely on Gemma's brief. Gemma, for
his part, advances all of the same arguments he advanced in the
district court, with two exceptions -- he has apparently abandoned
his Rooker-Feldman argument, as well as his argument that the
defendants did not act under color of state law.

-15-
 We do not reach the merits of these arguments, and we

instead conclude that abstention is the appropriate course.

However, in order to understand our abstention analysis, it is

important to understand the differing ways that the parties read

the Rhode Island Supreme Court's opinion in Gem.

The Rossis explicitly disavow any attempt to undo the

state court decision in Gem upholding the constitutionality of the

Mechanics' Lien Law. Rather, they believe that their § 1983 claims

are targeted towards a narrow issue: the fact that the operation of

the Rhode Island statute deprived them of a prompt opportunity for

a hearing, notwithstanding the fact that the statute now provides

such a hearing for others. The Rossis read Gem as having decided

only a facial attack on the Mechanics' Lien Law. They contend that

when the Rhode Island Supreme Court remanded the case, it intended

for the Superior Court to decide any as-applied claims that the

Rossis might have.

The Rossis also point out that their § 1983 claims

include a request for damages. Thus even if one interpreted Gem as

deciding an as-applied constitutional challenge, the Rossis argue

that one could still read Gem's "retrospectivity determination" --

its decision to evaluate the Rossis' constitutional claims with

reference to the amended Mechanics' Lien Law -- as having been made

solely in the context of the Rossis' motion to dismiss the

enforcement action against them. On this reading of Gem, the Rhode

-16-
Island Supreme Court did not go so far as to hold that the new

statute eliminated a cause of action for any damages suffered from

the operation of the old statute.

The defendants appear to recognize that the Rhode Island

Supreme Court never explicitly analyzed the constitutional issues

presented by the unamended version of the statute.14 Nonetheless,

they place great weight on the Rhode Island Supreme Court's

"retrospectivity determination." In the defendants' view, the

Rossis are essentially trying to undo the Gem opinion because they

want the federal court to decide that the old version of the

Mechanics' Lien Law applies to their claims. Additionally,

defendants Gem and Gemma reject even the Rossis' alternative

reading in which their damages claim is preserved;15 Gem and Gemma

characterize the Rhode Island Supreme Court as having said that the

amended statute "now applies as if it was always in existence."

These differing readings shape many of the arguments that

the parties make on appeal. Because the defendants think that the

Rhode Island Supreme Court has already rejected the Rossis' claims,

they assert that the Rooker-Feldman doctrine and issue preclusion

(among other doctrines), bar the Rossis' § 1983 actions. And

14
Clerk Kinch, however, appears to argue that because the
Rhode Island Supreme Court vacated the Superior Court's decision,
it necessarily rejected that court's constitutional analysis.
15
Only injunctive relief was sought against Clerk Kinch, and
so the Rossis' claim for damages has no bearing on his arguments.

-17-
because the Rossis read Gem differently, they think that their

§ 1983 claims are viable.

III.

An appellate court may order abstention when the issue

has been raised and briefed and requested by the federal

defendants, even though the issue was not addressed by the district

court in the first instance. See Ford Motor Co. v. Meredith Motor

Co., 257 F.3d 67, 71 n.3 (1st Cir. 2001); cf. Swisher v. Brady, 438

U.S. 204, 213 n.11 (1978) (declining to consider Younger abstention

in a case where the defendants had not requested it).

Although there are a variety of abstention doctrines,

these doctrines "are not rigid pigeonholes into which federal

courts must try to fit cases." Pennzoil Co. v. Texaco, Inc., 481

U.S. 1, 11 n.9; see also Rio Grande Cmty. Health Ctr., Inc., v.

Rullan, 397 F.3d 56, 68 (1st Cir. 2005). Nonetheless, "the

categories do matter." Rio Grande, 397 F.3d at 68. We think that

abstention is warranted under the rubric of Younger v. Harris, 401

U.S. 37 (1971), for the Rossis' constitutional claims.

A. Younger Abstention on the Equitable Claims

Younger abstention is most commonly applied to suits

seeking injunctive or declaratory relief, see Rio Grande, 397 F.3d

at 70, and we begin with the Rossis' requests for these remedies.

The Younger doctrine is based on principles of comity,

and unless there are extraordinary circumstances, it instructs

-18-
federal courts not to "interfere with ongoing state-court

litigation, or, in some cases, with state administrative

proceedings." Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31

(1st Cir. 2004); see also Middlesex County Ethics Comm. v. Garden

State Bar Ass'n, 457 U.S. 423, 431 (1982). Although the doctrine

is frequently associated with state criminal prosecutions, it has

been extended to certain "coercive" civil cases. See Maymó-

Meléndez, 364 F.3d at 31 & n.3. Following Supreme Court case law,

see Middlesex County, 457 U.S. at 432, we have articulated the

basic analytical framework for Younger abstention. Abstention is

appropriate when the requested relief would interfere (1) with an

ongoing state judicial proceeding; (2) that implicates an important

state interest; and (3) that provides an adequate opportunity for

the federal plaintiff to advance his federal constitutional

challenge. See Brooks v. N.H. Supreme Court, 80 F.3d 633, 638 (1st

Cir. 1996); Bettencourt v. Bd. of Registration in Med., 904 F.2d

772, 777 (1st Cir. 1990).16

The threshold issue of "interference" is clearly

satisfied here. Granting the Rossis' requests for injunctive

16
The Rossis briefly suggest that Younger is inapplicable here
because the Rhode Island Mechanics' Lien Law is flagrantly
unconstitutional. See Huffman v. Pursue, Ltd., 420 U.S. 592, 611
(1975) (recognizing an exception to Younger when a statute is
flagrantly unconstitutional). We reject this argument out of hand.
Whatever the merits of the Rossis' constitutional challenge, the
Rhode Island statute is not so obviously invalid as to come within
this very narrow Younger exception.

-19-
relief would substantially interfere with the lien enforcement

proceeding: if the Rossis obtain the return of their funds from the

court registry, they will deprive the Superior Court of its ability

to satisfy any claim that Gem may have against those funds. See

Rio Grande, 397 F.3d at 70 ("Interference is . . . usually

expressed as a proceeding that either enjoins the state proceeding

or has the 'practical effect' of doing so."); see also Keystone

Elevator Co., Inc. v. Johnson & Wales Univ., 850 A.2d 912, 923

(R.I. 2004) (explaining that once there has been a lien

substitution, the funds in the registry become the sole security

for the former-lienholder's claim). Similarly, if the Rossis

obtain their requested declaratory relief, and it is adjudged that

the old Mechanics' Lien Law is unconstitutional as applied to them,

they will essentially have obtained a judgment that the

continuation of the state proceeding against them violates their

due process rights. This too is interference for Younger purposes.

See Samuels v. Mackell, 401 U.S. 66, 72-73 (1971); Rio Grande 397

F.3d at 70.

Turning to the three-part test for Younger, it is plain

that the first and third requirements are satisfied. There is an

ongoing judicial proceeding, as the lien enforcement action remains

pending before the Superior Court. And it is clear that the state

proceeding provides an adequate forum for the Rossis to present

their constitutional challenge. Indeed, the Rossis raised a due

-20-
process challenge, had it at least partially adjudicated by the

state courts, and now actively contend that their as-applied

challenge is or will be pending before the Superior Court.17

That leaves the second Younger requirement, that "an

important state interest" be implicated. This requires slightly

more discussion. In several cases, the Supreme Court has

recognized that states "have important interests in administering

certain aspects of their judicial systems." Pennzoil, 481 U.S. at

12-13; see also Middlesex County, 457 U.S. at 434-35 (state bar

disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434, 444

(1977) (writ of attachment proceedings instituted by the state);

Juidice v. Vail, 430 U.S. 327, 335 (1977) (state's process for

enforcing its contempt judgments); Casa Marie, Inc. v. Superior

Court of P.R., 988 F.2d 252, 263 (1st Cir. 1993) (state's process

17
Even if the Rossis have not yet actually raised their as-
applied constitutional claim in state court, a point we do not
decide, there has been no showing that state procedural rules
prevent them from raising such a claim. See Maymó-Meléndez, 364
F.3d at 33 ("[W]hen a state judicial proceeding does occur, federal
judges usually say that the parties ought to raise all of their
claims, defenses[,] and objections. . . . [I]f they don't, they
should not later come and complain to the federal courts."); see
also Duty Free Shop, Inc. v. Administracion de Terrenos de P.R.,
889 F.2d 1181, 1183 (1st Cir. 1989) (explaining that for Younger
purposes, all that matters is that the state proceeding give an
opportunity to make a constitutional argument).
The Rossis do seem to suggest that the Rhode Island Supreme
Court's rules prevented them from making an as-applied
constitutional argument to that court. But they have not shown
that the argument is unavailable to them on remand in the Superior
Court, and it is their burden to show unavailability in the state
proceeding they wish to interfere with. See Pennzoil, 481 U.S. at
14.

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for enforcing its civil judgments through the use of civil

contempt). State proceedings can sometimes implicate these

interests even when the proceedings are initiated by private

actors. See Bettencourt, 904 F.2d at 777 n.6 (discussing

Pennzoil).

The Supreme Court's decision in Pennzoil is especially

instructive. Pennzoil involved a breach of contract suit in the

Texas state courts between two corporations, Pennzoil and Texaco.

481 U.S. at 4. Pennzoil won a large jury verdict, and if it

recorded this judgment in any Texas county, and followed certain

other procedures, Texas law would have allowed it to enforce the

judgment through forced sale of Texaco property. See id. A

separate Texas rule provided that if Texaco wished to appeal the

trial court judgment, the only way Texaco could stave off

enforcement of the judgment during the appeal was if it posted a

bond. Id. at 4-5. The bond amount would have been prohibitively

large in that case. Id. at 5. But rather than challenge this

procedure in the Texas state courts, Texaco filed a § 1983 suit in

federal court claiming that the Texas procedure was

unconstitutional, and the company sought to enjoin Pennzoil from

enforcing its judgment. Id. at 6-7. The Supreme Court held that

Younger abstention was appropriate, and it decided that important

state interests were affected, even though the Texas procedures

served to vindicate the interests of private litigants. Id. at 10,

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12-13. That was because the procedures stood "in aid of the

authority of the judicial system, so that its orders and judgments

are not rendered nugatory." Id. at 13 (quoting Juidice, 430 U.S.

at 336 n.12) (internal quotation marks omitted).

This case, like Pennzoil, "involve[s] challenges to the

processes by which the State compels compliance with the judgments

of its courts." Id. at 13-14. As in Pennzoil, a federal court is

being asked not only to "interfere with the execution of [a] state

judgment[], but [to] do so on grounds that challenge the very

process" from which that judgment derives. Id. at 14. And just as

Pennzoil involved a bond meant to act as security for Pennzoil's

anticipated final judgment, here the funds in the registry act as

security for Gem's anticipated successful claims.18

It is true, however, that this case differs from Pennzoil

in that the Rossis attack a pre-judgment process, rather than a

post-judgment process. And the Third Circuit, anxious to find a

limiting principle for Pennzoil, has speculated that "in an

appropriate case," Younger may not bar interference with a

18
Pennzoil cannot be distinguished on the ground that Texaco
had never presented its constitutional argument to the state
courts, whereas here the Rossis may have presented the Rhode Island
courts with their constitutional challenge. While the Pennzoil
court did discuss this fact, it was not part of its explanation for
why federal interference implicated an important state interest.
See 481 U.S. at 11-14; see also Kelm v. Hyatt, 44 F.3d 415, 420-21
(6th Cir. 1995) (reading this aspect of Pennzoil as pertaining to
whether the state proceedings provided an adequate opportunity for
presenting federal constitutional claims).

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"privately initiated state proceeding in which the state court has

not yet rendered judgment." Schall v. Joyce, 885 F.2d 101, 109 (3d

Cir. 1989).

Whatever the merits of the Third Circuit's concerns, this

is not an "appropriate case" to prevent Younger abstention.

Instead, this case presents special concerns because the state

court proceeding, a petition to enforce a mechanics' lien, is an in

rem proceeding under state law. See Tilcon Gammino, Inc. v.

Commercial Assocs., 570 A.2d 1102, 1107 (R.I. 1990). Consistent

with the in rem nature of the proceeding, the Superior Court has

taken jurisdiction over a res, and the Rossis' funds are in the

court's registry. It is well established that this provides strong

reasons to defer to a state court proceeding. See Colorado River,

424 U.S. at 818; Donovan v. City of Dallas, 377 U.S. 408, 412

(1964).19 Thus, we conclude that the Rossis seek to interfere with

a state proceeding in a way that implicates an important state

interest, and so the second test under Younger has been met. Cf.

Kelm v. Hyatt, 44 F.3d 415, 419-20 (6th Cir. 1995) (applying

Younger in a pre-judgment civil proceeding based on the unique

19
We note that the Rossis' constitutional challenge goes to
the very authority of the state court to administer the res, and it
is not simply a request to adjudicate a claimed entitlement to a
portion of the res. Cf. United States v. Fairway Capital Corp.,
483 F.3d 34, 40-41 (1st Cir. 2007); Bergeron v. Estate of Loeb, 777
F.2d 792, 798-99 (1st Cir. 1985).

-24-
concerns surrounding interference with a state's domestic relations

law).

We find that Younger abstention is appropriate on the

Rossis' § 1983 claims for equitable relief. We affirm the district

court's dismissal of the plaintiffs' constitutional claims insofar

as they seek equitable relief. See Bettencourt, 904 F.2d at 781.

B. Younger Abstention on the Damages Claims

The Rossis' claims for damages present a somewhat

different concern. Although the Supreme Court has not yet decided

whether Younger is applicable to § 1983 damages actions, see

Deakins v. Monaghan, 484 U.S. 193, 202 (1988) (reserving the

issue), our circuit has determined that Younger can in fact be

applicable to damages actions in appropriate cases. See

Bettencourt, 904 F.2d at 777; Landrigan v. City of Warwick, 628

F.2d 736, 743 (1st Cir. 1980); Guerro v. Mulhearn, 498 F.2d 1249,

1251, 1253-54 (1st Cir. 1974). This is such a case.

We explained above that the three Younger requirements

are met by the Rossis' equitable claims, and those requirements are

met by their damages claims for the same reasons. However, the

threshold Younger issue, that the requested relief interfere with

an ongoing judicial proceeding, necessitates slightly more

discussion in the damages context.

We have recognized that a § 1983 damages award may

interfere with a state proceeding because it can have the same

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practical effect as a declaratory judgment: the federal court has

produced a ruling on the merits that the federal plaintiff can then

use to alter the state proceeding. See Landrigan, 628 F.2d at 743;

accord Deakins, 484 U.S. at 209 (White, J., concurring). That

logic applies to this case. If the Rossis obtain a § 1983 damages

award based on a successful due process argument, there is little

practical difference than if they had obtained a declaratory

judgment based on the same constitutional claim.

In light of this, we think that abstention is

appropriate on the § 1983 damages claims, in addition to the

abstention on the § 1983 equitable claims. However, there is one

important difference. When a court orders abstention on a damages

claim, it ordinarily may only stay the action, rather than dismiss

the action in its entirety. See Quackenbush v. Allstate Ins. Co.,

517 U.S. 706, 731 (1996). Without addressing whether Quackenbush

governs this case, we think that a stay is appropriate here. Cf.

Deakins, 484 U.S. at 202 (holding that a court cannot use Younger

to dismiss a damages claim when the state proceeding cannot redress

the claims for monetary relief); Bettencourt, 904 F.2d at 781

(suggesting that a stay is appropriate when the state proceeding

does not actually involve a claim for damages). Accordingly, we

remand the case with instructions that the district court stay the

§ 1983 damages actions pending the completion of state court

proceedings.

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 IV.

In addition to their federal constitutional claims, the

Rossis brought state law claims for slander of title against Gem,

Gemma, and Levine, and they also sought a declaration that Gem's

lien was invalid under state law.20 The district court dismissed

these state law claims for two reasons: it thought that abstention

was appropriate under Colorado River, and it also exercised its

discretion to decline supplemental jurisdiction. See 28 U.S.C.

§ 1367(c).

Insofar as the Rossis sought a declaratory judgment that

Gem's lien was invalid under state law, we review the district

20
The magistrate judge treated the Rossis' request for
declaratory relief as part of their slander of title claim, and the
Rossis appear to do so as well. We think it is more appropriate to
treat it as a separate claim for relief arising under state law.
Cf. Peckham v. Hirschfeld, 570 A.2d 663, 666-67 (R.I. 1990)
(stating the elements for slander of title under state law). We
note that if we treated the claim as the magistrate judge did, it
would not change our analysis.
We also note that the Rossis have apparently abandoned, in
federal court, any claim for relief under the Rhode Island
Constitution. Throughout their brief, the Rossis refer to their
constitutional claims as arising under § 1983, which of course only
applies to the deprivation of rights guaranteed by federal law.
See 42 U.S.C. § 1983. Moreover, the Rossis' brief never cites the
Rhode Island constitutional provision that they relied on in their
complaint. In fact, they identify their slander of title claim as
the only state law claim over which the district court should have
exercised supplemental jurisdiction. In these circumstances, we
believe that the Rossis have waived any argument that the district
court erred in dismissing their state constitutional claims. See
Playboy Enters., Inc. v. Pub. Serv. Comm'n, 906 F.2d 25, 40-41 (1st
Cir. 1990) (issues not raised in an appellant's opening brief are
waived); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(issues that lack developed argumentation in an appellant's brief
are deemed waived).

-27-
court's dismissal for something akin to abuse of discretion. See

Wilton v. Seven Falls Co., 515 U.S. 277, 288-89 (1995) (explaining

that under the Declaratory Judgment Act, a district court has

discretion whether or not to exercise jurisdiction).21 Importantly,

even though the district court concluded that there were

"exceptional circumstances" sufficient to justify abstention under

Colorado River, the Supreme Court has made clear that when

declaratory relief is sought under state law, the rigorous Colorado

River test need not be met, and a much more lenient standard is

applicable. See id. at 287-88.

Here, the district court correctly noted that the

validity of Gem's lien is an issue that has been presented in the

state court proceedings. It was within the district court's

discretion to dismiss the claim for declaratory relief on this

21
Our cases have sometimes used slightly different terms to
describe the appropriate standard of review for dismissal of a
declaratory judgment action. In at least two post-Wilton cases, we
have simply said that review is for "abuse of discretion." See
Hartford Fire Ins. Co. v. R.I. Pub. Transit Auth., 233 F.3d 127,
130 (1st Cir. 2000); DeNovellis v. Shalala, 124 F.3d 298, 313 (1st
Cir. 1997). In another post-Wilton case, however, we said that
review "'is conducted under a standard slightly more rigorous than
abuse of discretion.'" Diaz-Fonseca v. Puerto Rico, 451 F.3d 13,
39 (1st Cir. 2006) (quoting Nat'l R.R. Passenger Corp. v.
Providence & Worcester R.R. Co., 798 F.2d 8, 10 (1st Cir. 1986)).
We need not resolve any apparent inconsistency here, as under
either articulation of the standard the district court acted well
within its discretion.

-28-
ground. See Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491,

494-96 (1942).22

That leaves only the state law damages claims against

Gem, Gemma, and Levine for slander of title. We bypass the

Colorado River analysis, and go straight to the district court's

declination of supplemental jurisdiction.23 That declination is

reviewed for abuse of discretion. See Gonzalez-De Blasini v.

Family Dep't., 377 F.3d 81, 89 (1st Cir. 2004).

The Rossis contend that the district court abused its

discretion because, as a matter of state law, it erred in

concluding that the Rossis' slander of title claims were not yet

ripe. But even assuming that the district court erred in its

state-law ripeness determination, it still acted appropriately in

declining supplemental jurisdiction.

22
The Rossis point out that while Gem is a party to the state
court lien enforcement petition, Levine and Gemma are not. Cf.
Brillhart, 316 U.S. at 495 ("Ordinarily it would be uneconomical as
well as vexatious for a federal court to proceed in a declaratory
judgment suit where another suit is pending in a state court
presenting the same issues, not governed by federal law, between
the same parties.") (emphasis added). Yet the Rossis have not
disputed the magistrate judge's finding that Gemma and Levine are
in privity with Gem. In this situation, we cannot say that the
district court acted outside its discretion in declining to
adjudicate the Rossis' claim for declaratory relief. Cf. New
Beckley Mining Corp. v. Int'l Union, 946 F.2d 1072, 1073 (4th Cir.
1991) (explaining that suits can trigger Colorado River abstention
when they involve "substantially the same parties"); LaDuke v.
Burlington N. R.R. Co., 879 F.2d 1556, 1559 (7th Cir. 1989) (same).
23
Gem, Gemma, Levine, and the Rossis are all Rhode Island
citizens, so there is no argument that diversity jurisdiction could
provide an alternative basis for federal jurisdiction.

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 At the time the district court made its ruling, it had

dismissed all federal claims on the pleadings, and so dismissal of

the state claims was perfectly reasonable. "As a general

principle, the unfavorable disposition of a plaintiff's federal

claims at the early stages of a suit . . . will trigger the

dismissal without prejudice of any supplemental state-law claims."

Rodriguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.

1995); see also 28 U.S.C. § 1367(c)(3).

While we have dismissed the Rossis' federal claims for

equitable relief, we have merely stayed their federal claims for

monetary relief. But the distinction makes no difference for the

slander of title claims; we do not believe that Congress meant to

preclude the exercise of the district court's discretion to dismiss

state claims, this early in the litigation, once the court will not

go forward on any federal claims. Cf. United Mine Workers of Am.

v. Gibbs, 383 U.S. 715, 726-27 (1966). That is particularly so in

light of the relative novelty of the state law claim.24 Cf. 28

24
The Rossis argue that it is clear under state law that Gem's
lien is invalid because Levine was not competent to sign the
affidavit which accompanied Gem's notice of intention. See Conti
v. Geffroy, 486 A.2d 579, 581 (R.I. 1985). That may or may not be
correct. But the Rossis' claim for relief is based on slander of
title, a claim which requires a showing that "the defendant
maliciously uttered false statements about the plaintiff's
ownership of real estate which resulted in the plaintiff sustaining
an actual pecuniary loss." DeLeo v. Anthony A. Nunes, Inc., 546
A.2d 1344, 1346 (R.I. 1988). The Rossis' theory is that because
the lien was invalid under the Mechanics' Lien Law, it was
therefore "defamatory from the outset." It is not at all clear
that such a scenario is equivalent to the malicious uttering of

-30-
U.S.C. § 1367(c)(1). Accordingly, we sustain the district court's

dismissal of the state law slander of title claims, although we

clarify that this dismissal must be without prejudice.

V.

We make a further comment. The sum of money at issue in

this lawsuit is surely not enough to have justified the extensive

litigation in federal court. Plaintiffs initially chose to present

their federal claims to the state courts, and they may wish to

consider whether continuation of a stayed federal action is

worthwhile.

The district court's judgment is affirmed insofar as it

dismissed the Rossis' claims for injunctive and declaratory relief,

vacated as to its dismissal of the Rossis' claims for monetary

relief, and remanded with instructions (1) to stay the Rossis'

§ 1983 claims insofar as they seek monetary damages, and (2) to

dismiss the state law slander of title claims without prejudice

insofar as those claims seek monetary relief. Each side shall bear

its own costs.

false statements.

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