* 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Not For Publication in West's Federal Reporter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 Circuit

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.
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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
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Per Curiam. Since 1995, Héctor Colón-Rodríguez has

leased certain property, where he has operated a tourist gift shop,

from the municipality of Rincón in Puerto Rico. On October 1,

2000, he was given a five-year lease by the then-municipal

administration, which was under the control of the New Progressive

Party (NPP). He alleges that when the new administration came into

office, controlled by a different political 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-Rodríguez, 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 of the lease violated

Colón-Rodríguez's civil rights and constituted political

discrimination and retaliation against him. After several

extensions of time, the municipality and municipal defendants

answered the 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 with the lack of progress in getting to the

merits of the controversy in federal court, the defendants did not
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file a motion with the federal court to expedite proceedings but

instead filed a Puerto Rico court complaint on 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 court granted the

requested injunction. The defendants submitted their opposition to

the motion later that day, arguing 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

defendants 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 Younger v. 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 §
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1983 means that the case was within an exception to § 2283.

Mitchum v. 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 prompt hearing on the merits of this

matter so that the status of the property can resolved. They said

that, from 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 defendants 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 district court to expedite and promptly schedule this

matter. Plaintiffs' counsel agreed. Defendants then said that

they would 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
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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 appropriate 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.
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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 expedite the

resolution of this controversy. They have no

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 to be set for any of the Court's available

dates in the months of August or September 2004.