exercise of federal jurisdiction. De Cisneros v. Younger, 871 F.2d at 307.
The second factor -- the inconvenience of the federal forum -- does not weigh in favor of abstention in this case. Although the Western District of New York may be a less convenient forum than New York County for A&A, whose offices are in New York City, New York County would be just as inconvenient for Smehlik, who resides (at least during the hockey season) in Western New York.
Similarly, the third factor -- avoidance of piecemeal litigation -- does not weigh significantly in favor of abstention here. Since the pendency of an action in state court is, generally, no bar to proceedings concerning the same matter in federal court, courts must consider, in weighing this factor, whether there is some exceptional circumstance -- for example, where there is a clearly stated federal policy of avoidance of piecemeal adjudication of interdependent property rights, and there is a substantial danger of inconsistent judgments, as in Colorado River -- justifying a particular concern over piecemeal litigation. See Travelers Indemnity Co. v. Madonna, 914 F.2d 1364, 1368-1369 (9th Cir. 1990). There is no such exceptional circumstance here.
The fourth factor -- the order in which jurisdiction was obtained -- also does not weigh significantly in favor of abstention. The Supreme Court has indicated that "priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. at 21. Smehlik's complaint in this action was filed on the same day as his answer in the state court action. No significant progress had been made in state court at the time the present action was filed.
The fifth factor -- whether federal or state law provides the rule of decision -- again fails to favor abstention. The presence of state law issues may weigh in favor of abstention only "in some rare circumstances." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. at 26. In cases involving only routine issues of state law, which federal district courts are fully capable of deciding, there are no such "rare circumstances." Travelers Indemnity Co. v. Madonna, 914 F.2d at 1370. The state law issues that may be raised in the present case are routine issues of breach of contract and misrepresentation that do not require the special attention of a state court.
The sixth factor -- whether the state court proceeding will adequately protect the rights of the party seeking to avail itself of federal jurisdiction -- also does not support abstention here. A&A argues that Smehlik's rights would be fully protected in state court, since there are only state law questions presented. The Second Circuit, however, has stated that "the possibility that the state court proceeding might adequately protect the interests of the parties is not enough to justify the district court's deference to the state action. This factor, like choice of law, is more important when it weighs in favor of federal jurisdiction." Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d at 328. Smehlik contends that the state court proceeding will not adequately protect his rights, because questions of law other than state law may apply, and because as a foreign citizen, he "needs the protection of our federal courts in light of the overreaching attempted by A&A, a New York corporation." It is not necessary to decide that Smehlik's assertions have merit to be able to conclude that the sixth factor fails to support abstention here.
In summary, none of the six factors usually considered by the courts in deciding whether to abstain under the Colorado River doctrine weighs significantly in favor of abstention in this case.
A&A makes one additional point that has some relevance. It characterizes this lawsuit as "classic reactive litigation," and maintains that "where . . . a suit is 'vexatious or reactive,' courts have repeatedly weighed such factor strongly against retaining federal jurisdiction" (citing Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947 F.2d 529, 533 (1st Cir. 1991), cert. denied, 118 L. Ed. 2d 393, 112 S. Ct. 1674 (1992); Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1289 (7th Cir. 1988); Allen v. Louisiana State Board of Dentistry, 835 F.2d 100, 105 (5th Cir. 1988); Lumen Construction, Inc. v. Brant Construction Co., Inc., 780 F.2d 691, 693-694 (7th Cir. 1985); Telesco v. Telesco Fuel and Masons' Materials, Inc. 765 F.2d 356, 363 (2d Cir. 1985); Goerner v. Barnes, 730 F. Supp. 767, 770 (S.D.Tex. 1990); DeVona v. City of Providence, 652 F. Supp. 683, 687-689 (D.R.I. 1987); and Byer Museum of Arts v. North River Insurance Co., 622 F. Supp. 1381, 1386-1387 (N.D.Ill. 1985)). The characterization of the action as "reactive" is based on the fact that it was commenced two weeks after the filing of A&A's complaint in state court, and on Smehlik's reference to it in his answer to A&A's state court complaint.
The commencement of a reactive or vexatious lawsuit may indeed weigh in favor of abstention. However, the cases cited by A&A all involve actions where (i) the plaintiff in the federal suit was also the plaintiff, or had filed counterclaims, in the state suit (i.e., was pursuing essentially identical claims in two forums), and/or (ii) there had been a history of contentious litigation or jurisdictional maneuvering. While it is clear that Smehlik brought this action in response to A&A's commencement of the state action, and he is admittedly seeking what he considers to be a favorable forum, he is not attempting to pursue his claims against A&A in both federal and state forums, and there is apparently no history of contentious litigation or jurisdictional maneuvering between the parties. Smehlik's filing of this suit was a legitimate alternative to filing a counterclaim in A&A's action against him in state court.
Smehlik argues that venue is proper in the Western District of New York pursuant to 28 U.S.C. § 1391. That section provides, in pertinent part, that:
(a) A civil action wherein jurisdiction is founded on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . .
. . . .