One of those instances is when the federal court action would needlessly interfere with the state's administration of its own affairs. Alabama Public Service Commission v. Southern Railroad Company, 341 U.S. 341, 349, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Burford v. Sun Oil Company, supra; Tomiyasu v. Golden, 358 F.2d 651, 655 (CA9 1966). We believe that the instant case presents a situation fitting the mold for abstention.
ida, Inc., 5 Cir. 1962, 299 F.2d 736; Hanna v. Home Ins. Co., 5 Cir. 1960, 281 F.2d 298; Norwood v. Parenteau, 8 Cir. 1955, 228 F.2d 148; Parnacher v. Mount, 10 Cir. 1953, 207 F.2d 788, cert. denied, 1954, 347 U.S. 917, 74 S.Ct. 515, 98 L.Ed. 1073; Williams v. Tooke, 5 Cir. 1940, 108 F.2d 758, cert. denied, 1940, 311 U.S. 655, 61 S.Ct. 8, 85 L.Ed. 419; Moran v. Paine, Webber, Jackson Curtis, W.D.Pa. 1967, 279 F. Supp. 573, aff'd 3 Cir. 1968, 389 F.2d 242; Lenske v. Sercombe, D.Or. 1967, 266 F. Supp. 609; Chirillo v. Lehman, S.D.N.Y. 1940, 38 F. Supp. 65, aff'd 1941, 312 U.S. 662, 61 S.Ct. 741, 85 L.Ed. 1108. See also City of Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944; England v. Louisiana State Bd. of Medical Examiners, 1964, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440; Angel v. Bullington, 1947, 330 U.S. 183, 67 S.Ct. 657, 91 L.Ed. 832; Jones v. Hulse, 8 Cir. 1968, 391 F.2d 198; Stevens v. Frick, 2 Cir. 1967, 372 F.2d 378; Tomiyasu v. Golden, 9 Cir. 1966, 358 F.2d 651. Appellants' reliance upon verbiage in Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, is misplaced.
Plaintiff now contends, in the main, that the resulting loss of pension rights accompanying his dismissal is a denial of due process of law in violation of the United States Constitution, Amendment XIV; an impairment or diminishment of his contractual rights in violation of New York State Constitution, Article 5 § 7; and cruel and unusual punishment under United States Constitution, Amendment VIII. Jurisdiction is based upon 28 U.S.C. § 1331. As the constitutional issues presented do not turn on unsettled questions of state law which might modify those issues or on predominately local factors, abstention is inappropriate. Tomiyasu v. Golden, 358 F.2d 651 (9th Cir. 1966). State administrative remedies being exhausted, we will not now require further state judicial proceedings.
Thus, Magnolia Petroleum and section 1334(c)(1) mandate that a federal court exercising bankruptcy jurisdiction "defer to a State court for determination of a particularly unusual question" of State law. H.R.Rep. No. 595, 95th Cong., 1st Sess. 51 (1977), reprinted in 1978 U.S.Code Cong. Admin.News 5963, 6012; see also Tomiyasu v. Golden, 358 F.2d 651, 654 (9th Cir. 1966) ( Magnolia Petroleum "recognized that in some exceptional circumstances difficult and unanswered questions of state law should be deferred to state forums"); General Am. Communications, 130 B.R. at 146 ("[g]iven the genesis of section 1334(c)(1), it is not surprising that the primary determinant for the exercise of discretionary abstention is whether there exist unsettled issues of state law"). No one has suggested that the Coker actions present the type of difficult questions of state law Congress contemplated when it codified Magnolia Petroleum.
A federal court may not abstain because of difficulty in determining applicable state law or because of the risk that it might err in predicting state law. See McNeese v. Board of Education, 373 U.S. 668, 673 n. 5, 83 S.Ct. 1433, 1436, 10 L.Ed.2d 622 (1963); Louisiana Power Light Co. v. Thibodaux, 360 U.S. 25, 27, 79 S.Ct. 1070, 1072, 3 L.Ed.2d 1058 (1958); Meredith v. Winter Haven, 320 U.S. 228, 236, 64 S.Ct. 7, 11, 88 L.Ed. 9 (1943); Baltimore Bank for Cooperatives v. Farmers Cheese Cooperative, 583 F.2d 104, 111 (3d Cir. 1978); Middle Atlantic Utilities Co. v. S.M.W. Development Corp., 392 F.2d 380, 386 (2d Cir. 1968); Royal School Labs, Inc. v. Town of Watertown, 358 F.2d 813, 816 (2d Cir. 1966); Miller-Davis Co. v. Illinois State Toll Highway Auth., 567 F.2d 323, 326 (7th Cir. 1977); Julander v. Ford Motor Co., 488 F.2d 839, 844 (10th Cir. 1973); Wohl v. Keene, 476 F.2d 171, 174 (4th Cir. 1973); Martin v. State Farm Mutual Auto. Ins. Co., 375 F.2d 720, 722 (4th Cir. 1967); Tomiyasu v. Golden, 358 F.2d 651, 654 (9th Cir. 1966); In re Mohammed, 327 F.2d 616, 617 (6th Cir. 1964); Penagaricano v. Allen Corp., 267 F.2d 550, 556 (1st Cir. 1959); but see United Services Life Ins. Co. v. Delaney, 328 F.2d 483 (5th Cir.) (en banc), cert. denied, 377 U.S. 935, 84 S.Ct. 1335, 12 L.Ed.2d 298 (1964); 1A (Part 2) Moore's Federal Practice Par. 0.203[3], at 2135 (1979); 17 Wright, Miller Cooper, Federal Practice Procedure § 4246, at 492-500 (1978); American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts § 1371(f), at 50 (1969); Currie, The Federal Courts and the American Law Institute, 36 U.Chi. L.Rev. 268, 313-14 (1969); Comment, Abstention Under Delaney: A Current Appraisal, 49 Tex.L.Rev. 247 (1971); Comment, Recent Developments in the Doctrine of Abstention, 1965 Duke L.J. 102; Note, Abstention and Certification in Diversity Suits: "Perfection of Means and Confusion of Goals," 73 Yale L.J. 850 (1964). See generally P. Bator, P. Michkin, D. Shapiro H. Wechsler, Hart Wechsler's
We have examined the opinion of the Supreme Court of the State of Oklahoma in Glasgow v. Beaty, 476 P.2d 75 (1970), and the opinion of the Oklahoma Court of Appeals, Division 2, in Shadid v. City of Oklahoma City and B. D. Eddie, No. 44873 (filed Jan. 16, 1973), and it is our conclusion that this cause has been thoroughly litigated in the State Courts on the same facts and by the same parties (or their privies), and that appellant is barred by the doctrine of res judicata from re-litigating these same factual and legal issues. The mere assertion of a new theory based upon the Federal Constitution or statute is insufficient to entitle appellant to reconsideration in a Federal court of allegations of the same wrong, based upon the same facts, and seeking the same relief. Grubb v. Public Utilities Commission of Ohio et al., 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972 (1930); Tomiyasu v. Golden, 358 F.2d 651 (9th Cir. 1966). Furthermore, as to appellant's claim under 42 U.S.C. § 1983 and 1985, a municipal corporation is not a "person" within the contemplation of those sections.
The appellant is bound by those judgments and cannot attack them at this late date. Chicot County Drainage District v. Baxter State Bank et al., 308 U.S. 371, 375, 60 S.Ct. 317, 84 L.Ed. 329 (1940), Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), Tomiyasu v. Golden, 358 F.2d 651 (9th Cir. 1966). Moreover, Douglas-Guardian failed to exhaust all of its remedies at law through the state appellate process of Colorado by appealing the adverse holding of the Court of Appeals in the three replevin suits.
See Grubb v. Public Utilities Comm., supra; Lavasek v. White, 339 F.2d 861 (10th Cir. 1965); Chirillo v. Lehman, 38 F. Supp. 65 (S.D.N.Y. 1940), aff'd, 312 U.S. 662, 61 S.Ct. 741, 85 L.Ed. 1108 (1941). Cf. Angel v. Bullington, 330 U.S. 183, 67 S. Ct. 657, 91 L.Ed. 832 (1947); Tomiyasu v. Golden, 358 F.2d 651 (9th Cir. 1966). Plaintiff raises several objections to application of the doctrine of res judicata, all if which are without merit.
One of those instances is when the federal court action would needlessly interfere with the state's administration of its own affairs. Alabama Public Service Commission v. Southern Railroad Company, 341 U.S. 341, 349, 71 S.Ct. 762, 95 L.Ed. 1002 (1951); Burford v. Sun Oil Company, supra; Tomiyasu v. Golden, 358 F.2d 651, 655 (CA9 1966). We believe that the instant case presents a situation fitting the mold for abstention.
Although, state issues pervade that claim, there is no authority for abstaining from non-constitutional issues simply because of the significance of state law. See Tomiyasu v. Golden, 358 F.2d 651, 654 (9th Cir. 1966). However, to the extent the claim is not constitutional in nature, plaintiffs have no standing to bring it.