of his variance application, and defendants' granting of such applications to other parties make summary judgment improper at this time. Further, defendants are not entitled to summary judgment at this time because the nature and extent of plaintiff's rights regarding his property and variance application are unclear since the state court has not yet addressed them.
Defendants ask the Court, in the event it finds dismissal or summary judgment improper, to abstain from the action under the doctrine originating in Railroad Comm'n v. Pullman, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). Pullman abstention allows a court to postpone exercise of federal jurisdiction when "a federal constitutional issue . . . might be mooted or presented in a different posture by a state court determination of pertinent state law." Sederquist v. City of Tiburon, 590 F.2d 278, 280 (9th Cir. 1978), quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959). Abstention must ordinarily be justified by such considerations as "the desirability of avoiding unseemly conflict between the two sovereignties, the unnecessary impairment of state functions, and the premature determination of constitutional questions." Sederquist, supra, at 280, quoting Martin v. Creasy, 360 U.S. 219, 224, 3 L. Ed. 2d 1186, 79 S. Ct. 1034 (1959). Pullman abstention, in particular, is appropriate when: (1) the complaint touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open; (2) such constitutional adjudication can be avoided if a definitive ruling on the state issue would terminate the controversy; and (3) the possibly determinative issue of state law is doubtful. Sederquist, supra, at 281; Rancho Palos Verdes Corp. v. City of Laguna Beach, 547 F.2d 1092 (9th Cir. 1976); Canton v. Spokane School Dist., 498 F.2d 840, 845 (9th Cir. 1974).
The parties agree that the considerations necessary for Pullman abstention are present in this case.
Further, relevant Ninth Circuit authority addressing similar land-use issues in cases in which constitutional claims were also asserted supports the propriety of applying Pullman abstention here. Sederquist, supra. See also Pearl Inv. Co. v. City & County of San Francisco, 774 F.2d 1460, 1464 (9th Cir. 1985); Rancho Palos Verdes, supra. Accordingly, the Court abstains under the Pullman doctrine.
Plaintiff contends that, pursuant to abstaining under Pullman, the Court should remand the entire action to state court.
Defendants, however, contend that the Court should not remand plaintiff's federal claims. Whether the Court, pursuant to abstaining under Pullman, should remand the federal claims in plaintiff's removed complaint presents a question not heretofore addressed.
Courts have invoked Pullman abstention in many cases in which the plaintiff has initially brought suit in federal court, but this Court has not located a case where a court has abstained under Pullman following removal of the action from state court. Conventionally, in cases filed initially in federal court, a court finding Pullman abstention appropriate stays the federal action pending adjudication of the state issues in state court, and retains jurisdiction over the federal claims. See Pullman, supra, at 501-02; Isthmus Landowner's Association v. State of California, 601 F.2d 1087, 1090 (9th Cir. 1979). Adjudication of the state claims then requires the initiation of state proceedings by the plaintiff. See Pullman, supra, at 502; Stearns v. Estes, 504 F. Supp. 998, 1002 (C.D. Cal. 1980). Following such adjudication, the plaintiff may then return to federal court to have his federal claims decided if they have not been mooted by the state proceeding. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 421-22, 11 L. Ed. 2d 440, 84 S. Ct. 461 (1964); Sederquist, supra.
Thus, if the plaintiff in the action at bar had filed his complaint in federal court, the Court would abstain, stay the action pending determination of the state law issues, retain jurisdiction, and the plaintiff would be required to initiate a state proceeding to have his state claims adjudicated. Plaintiff, however, filed his complaint in state court and defendants then removed. It, thus, seems inequitable for the Court now, because it finds abstention appropriate, merely to stay the action and not remand because such action would require plaintiff to initiate yet another state lawsuit. Defendants, however, complain that if the Court were to remand the entire action to state court, they would lose their statutory right under 28 U.S.C. § 1441(b) to have plaintiff's federal claims adjudicated by a federal district court.
The Court, however, does not consider remand of the entire action, including plaintiff's federal claims, to foreclose defendants' right because defendants may preserve their right to federal district court adjudication of plaintiff's federal claims by making a reservation on the state court record. England, supra, at 421. The Supreme Court has expressly provided that a defendant may make an England reservation to preserve its right to litigate federal claims in federal district court. Id. at 422 n. 13. Therefore, the Court finds that remanding plaintiff's federal claims will not forclose defendants' right to federal court adjudication of those claims if defendants make the necessary England reservation on the state court record. Accordingly, the Court finds remand of the entire action proper.
Plaintiff also seeks sanctions against defendants for improper removal. Plaintiff argues that, since he was seeking to exhaust his state remedies in state court prior to removal, it was improper for defendants to remove and now to argue in their motion to dismiss that plaintiff's takings claim should be dismissed as not ripe because plaintiff has not exhausted his state court remedies. Plaintiff also argues that defendant's removal was improper because defendants now state in their motion to dismiss that abstention by the Court is warranted. Defendants' removal of the complaint was proper, however, because defendants do not challenge for lack of ripeness plaintiff's federal civil rights claim under 42 U.S.C. § 1983 for violation of his right to equal protection. Further, because defendants acknowledge the appropriateness of abstention only if the Court denies their motion to dismiss or for summary judgment, their removal in order to bring that motion was proper. Therefore, plaintiff is not entitled to sanctions.
IT IS HEREBY ORDERED that:
(1) Defendants' motion to dismiss or, in the alternative, for summary judgment is DENIED;
(2) The Court ABSTAINS and REMANDS the action to the Superior Court of the State of California in and for the County of Marin, but the Court retains jurisdiction to address plaintiff's federal claims involved herein, if defendants, in the state court proceeding make an England "reservation," 375 U.S. at 421, and such claims are not mooted in the state court proceeding.
Dated: June 29, 1990.