The opinion of the court was delivered by: PHILIP G. REINHARD
On March 13, 1992, Douglas Beres, plaintiff, filed a two-count complaint against defendants, the Village of Huntley, Illinois (Village), and James Dhamer, village president, and Richard Rossi, the village chief of police, both in their individual and official capacities, pursuant to 42 U.S.C. § 1983, alleging that defendants violated plaintiff's due process rights. Defendants have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure (Fed.R.Civ.P.) 12(b)(1) for lack of jurisdiction based on several abstention doctrines.
According to plaintiff's complaint filed March 13, 1992, until December 5, 1991, the Village employed plaintiff as a police officer. On that day, Dhamer issued plaintiff a written notice of termination. Previously, on December 2, 1991, Rossi requested plaintiff's resignation and placed plaintiff on involuntary vacation so that plaintiff could look for a new job. Plaintiff refused to resign and asked for the reasons for Rossi's request. According to plaintiff, no specific reasons were given. Plaintiff alleges that Rossi implied that plaintiff's termination was related to a theft at King Chevrolet. Plaintiff states that no disciplinary charges were brought against him, and no hearing was held prior to or after his discharge on December 5, 1991. Plaintiff alleges that his termination violated his constitutional right not to be deprived of liberty or property without due process because defendants had published the reason for termination and the termination was in violation of Ill. Rev. Stat. ch. 24, P10 (1991) and Ill. Rev. Stat. ch. 85, P2551 (1991). Plaintiff's two-count complaint requests compensatory damages, punitive damages against the individuals, attorney fees and declaratory and injunctive relief, including reinstatement of his employment.
Defendant has attached to its memorandum in support of its motion to dismiss a copy of a complaint which plaintiff filed on January 8, 1992, seeking administrative review of defendants actions in the circuit court of McHenry County, Illinois. The complaint in the state court alleges the same facts as are alleged in the complaint before this court and contends that plaintiff's termination violates "plaintiff's statutory and constitutional rights to due process and his rights under Ch. 24, Section 10, and Chapter 85, § 2551 et seq." Plaintiff's complaint for administrative review seeks, among other things, reinstatement of plaintiff in his employment.
On May 21, 1992, the state court granted defendant's motion to dismiss the complaint but gave plaintiff leave to file an amended complaint. Plaintiff filed an "amended complaint for preliminary restraining order and for temporary and permanent injunction." The amended complaint in state court does not include allegations that defendants had denied plaintiff of a property interest without due process. The amended complaint contains no citations to Illinois statutory authority granting plaintiff a property interest in his continued employment. Rather, although the amended complaint alleged the same facts, it alleges what appears to be a claim of a deprivation of liberty without due process based on the allegations that defendants discharged plaintiff for a theft at an auto dealership, that defendants failed to notify plaintiff of the charges and provide plaintiff with a hearing on the charges, that defendants published the reason for the discharge, and that plaintiff cannot find employment because of the stigma defendants placed on plaintiff.
Defendants contend that under principles of comity and federalism this court should abstain from this case or issue an order staying this case pursuant to the abstention doctrines prescribed in Younger v. Harris, 401 U.S. 37 (1971), Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941) and Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). Plaintiff contends that this court should neither abstain from this case nor issue a stay.
Initially, this court notes that a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) appears to be an appropriate method for raising the issue of abstention. See, e.g., Hanlin Group, Inc. v. Power Authority of the State of New York, 703 F. Supp. 305, 306 (S.D.N.Y. 1989). However, a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) based on abstention does not fit into the two types of jurisdictional attacks generally raised under Rule 12(b)(1), compare 2A Moore's Federal Practice P12.07[2. -1] at 12-46 -47 and 5A Wright & Miller, Federal Practice and Procedure Civil 2d (2d ed. 1990), because the challenge is not to either the facial insufficiency of the complaint nor to the factual basis pleaded in the complaint. The rationale for abstention is based on principles of comity and federalism. See New Orleans Public Service, Inc. v. Council of City of New Orleans, 109 S. Ct. 2506, 2515-16 (1989); Pennzoil, Co. v. Texaco, Inc., 481 U.S. 1, 10-12 (1987). Nevertheless, this court will look to the general rules in determining whether a motion to dismiss for lack of subject matter jurisdiction should be granted. Although this court will take all of plaintiff's allegations as true and view them, along with all reasonable inferences therefrom, in the light most favorable to plaintiff, Orchard Hills Cooperative Apartments, Inc. v. Resolution Trust Corp., 779 F. Supp. 104, 106 (C.D.Ill. 1991); 2A Moore's Federal Practice P12.07[2.1 - 1] at 12-46 -47, this court must also look beyond the face of the plaintiff's complaint, Rennie v. Garrett, 896 F.2d 1057, 1057-58 (7th Cir. 1990). Specifically, this court believes it must look to the complaints filed in the state court to compare the causes of action pleaded and the remedies sought in each court.
As a general rule, the pendency of an action in state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976). However, several exceptions exist to the general rule. Wright, Federal Courts 303 (4th ed. 1983). Abstention from the exercise of federal jurisdiction is the exception, not the rule, because federal courts have a virtually unflagging obligation to exercise the jurisdiction given them. Ankenbrandt v. Richards, 112 S. Ct. 2206, 2215 (1992).
Defendant raises the abstentions articulated in Younger v. Harris, 401 U.S. 37 (1971), Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941) and Colorado Water Conservation District v. United States, ...