* Of the United States District Court for the District of

Puerto Rico, sitting by designation.

Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United States Court of Appeals

For the First C ircuit
No. 03-2224 HÉCTOR E. COLÓN-RODRÍGUEZ, in his personal capacity and as President of Fundación Eco-Cultural, Inc. and doing business as the Eco-Logic Co., Inc. & TM; ECO-LOGIC CO., INC., & TM; FUNDACIÓN ECO-CULTURAL, INC., represented by its president Héctor Colón-Rodríguez, Plaintiffs, Appellees,

v. CARLOS D. LÓPEZ-BONILLA, Hon., in his personal capacity and official capacity as Mayor of the Municipality of Rincón; ALEXIS ROSADO, Director of the Department of Public Works of the Municipality of Rincón and member of the Municipality's Procurement Board, ZAYDA RODRÍGUEZ-MORALES, in her personal capacity and official capacity as President of the Procurement Board, Municipality of Rincón; MUNICIPALITY OF RINCÓN, represented by its Mayor Hon. Carlos D. López-Bonilla; PERSONS A-Z, Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge ]
Before Lynch, Circuit Judge , Lipez, Circuit Judge , and Garcia-Gregory, * District Judge .-2-

G. Ismalia Gutiérrez Galang , with whom the Law Offices of Pedro E. Ortiz Álvarez, P.S.C. , were on brief, for appellants. Hector E. Calle-Ortiz for appellees.
April 22, 2004-3- PerCuriam . Since 1995, Héctor Colón-Rodríguez has leasedcertain property, where he has operated a tourist gift shop, fromthe municipality of Rincón in Puerto Rico. On October 1, 2000, he was given a f ive-ye ar lease by the then-municipal administration, which was under the control of the NewProgressive Party(NPP). He alleges that when the new administration came into office, controlled by a different po liti cal party, the Popular Democratic Party (PDP), he was harassed and false complaints were made against him, culminating in a notice from Rincón on March 9, 2002 that it was terminating his lease effective April 8, 2002 because he had defaulted on certain lease provisions.

On June 19, 1992, Colón-Rodríg uez, his gift shop (EcoLogic Co., Inc.), and his non-profit organization (Fundación EcoCultural, Inc.), for which he had planned to build a center next to his store, filed suit in federal district court under 42 U.S.C. § 1983, asserting that the termination o f th e lease violated Colón-Rodríguez's civil rights and constituted political discrimination and retaliation against him. After several extensions of time, th e municipality and municipal defendants answeredthe complaint on September 5, 2002. The matter continued in federal court, with some delay occasioned by the fact that plaintiffs' original counsel was replaced.

Impatient wit h t he lack of progress in getting to the merits of the controversy in federal court, the defendants did not-4-

file a motion with the federal court to expedite proceedings but insteadfiled a Puerto Rico court complaint o n April 1, 2003 to evict Colón-Rodríguez from the property. The state court set a hearing date for July 2, 2003. The defendants did not, as best we
can tell, inform the state court of the pending federal court proceedings.

On June 20, 2003, the plaintiffs filed a motion with the federal court to stay the state court proceedings. On July 1, 2003, before the defendants had responded, the c ourt g ranted the requestedinjunction. The defendants submitted their opposition to the motion later that day, a rguin g that a stay was prohibited by the 28 U.S.C. § 2283, the Anti-Injunction Act. After realizing that the court had already ruled, the defendants then moved for reconsideration, which the court denied on July 16, 2003. The d efe ndants took this appeal on July 28, 2003, arguing the injunction violated § 2283 and raising a new argument that a stay was required under the doctrine of Youngerv. Harris , 401 U.S. 37 (1971). Although Younger was not raised in the trial court, it may still be raised before this court. See Bellotti v. Baird , 428 U.S. 132, 143 n.10 (1976).

There was some confusion below about which exception to the Anti-Injunction Act permitted the court to consider the application for injunctive relief. The parties now agree that, at
a minimum, the fact that the plaintiffs brought the action under §-5-

1983 means that the case was within an ex ception to § 2283. Mitchumv. Foster , 407 U.S. 225 (1972). That being so, at oral argument, this court inquired of counsel what the defendants' real interest in pursuing this appeal was. Defendants said that their objective is to achieve a pr ompt hearing on the merits of this matter so that the status of the property can resolved. They said th at, fr om their point of view, Colón-Rodríguez has created a dangerous and unsightly condition at the premises by his failure to meet certain lease obligations.

The de fend ants represented to us that they have no objection to remaining in federal court and having the federal court resolve the entire matter, provided that there would be a prompt resolution, at least of the issue concerning the condition of the premises. This court then inquired of plaintiffs' counsel whether the plaintiffs would agree to join with the defendants in asking the distr ict court to expedite and promptly schedule this matter. Plaintiffs' counsel agreed. Defe nda nts then said that theywould voluntarily dismiss the appeal if they could get a prompt resolution in the trial court.

The parties have provided such a written agreement to this court, the pertinent portions of which are attached as Exhibit A. As a result, we order that the appeal be dismissed without prejudice, and the case is remanded to the district court with instructions to expedite the resolution of this matter and to set-6-

a firm trial date. We also note that the defendants' most pressing concern seems to be the condition of the premises and that it may be appr opr iate for the district court to promptly consider that issue first. If the defendants become concerned that they are unable to achieve a prompt resolution of this matter, they may then seek appropriate relief and raise material arguments first in the district court.

So ordered.-7-

EXHIBIT A Come now the parties in this appeal, the Municipality of Rincón and Héctor Colón Rodríguez, through the subscribing attorneys, and respectfully submit the following stipulation.

1. Defendants' interest is to exp edite th e

r esolution of this controversy. They ha ve n o objection to being in the federal district court, provided that the proceedings are expedited. 2. Plaintiffs agree that the proceedings be

expedited. 3. The parties agree to the dismissal of this appeal

without prejudice. 4. The parties jointly request an expedited trial

date t o be s et for any of the Court's available dates in the months of August or September 2004.