and (4) the order in which the concurrent forums obtained
jurisdiction. See Colorado River, 424 U.S. at 818, 96 S.Ct.
1236. In Moses H. Cone, the Court added two more factors to the
Colorado River abstention analysis: (5) the source of the
applicable law; and (6) the adequacy of procedures in the state
court to protect the federal plaintiff's rights. See Moses H.
Cone, 460 U.S. at 23-26, 103 S.Ct. 927.
Notably, "[n]o one factor is necessarily determinative."
Colorado River, 424 U.S. at 818, 96 S.Ct. 1236. Moreover,
"[t]he weight to be given to any one factor may vary greatly from
case to case, depending on the particular setting of the case."
Moses H. Cone, 460 U.S. at 16, 103 S.Ct. 927. Thus, the six
factors do not present a mechanical or exhaustive checklist. The
district court is obligated to undertake a careful balancing of
the applicable factors, but the decision to abstain is in the
sound discretion of the district court. See Arkwright-Boston
Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205, 210 (2d
Cir. 1985). As this Court has noted, the federal courts
frequently follow Colorado River by abstaining from exercising
jurisdiction in deference to parallel state actions. See Mann v.
Alvarez, No. 96 Civ. 2641(RWS), 1996 WL 535540, at *2 (S.D.N Y
Sept. 20, 1996) (citing Weinstock v. Cleary, Gottlieb, Steen &
Hamilton, 815 F. Supp. 127, 131 (S.D.N.Y. 1993)).
As a threshold matter, the Court must address Wiggin's
assertion that no concurrent state proceeding is pending. Wiggin
citesShchegol v. Rabinovich, No. 98 Civ. 5616(MBM), 1999 WL
398025, at *5 (S.D.N.Y. June 9, 1999), and Alliance of American
Insurers v. Cuomo, 854 F.2d 591, 603 (2d Cir. 1988), for the
proposition that proceedings are concurrent only if the federal
and state actions involve the same parties and issues. Wiggin
goes on to state that because, in the California Action, A & S's
declaratory judgment action was dismissed, the unfair business
practice claim is materially different from the claim asserted in
this action, and the Wiggin Group is present (while not in this
action), the proceedings are not concurrent.
Wiggin's contention is not persuasive. The California
declaratory judgment action was dismissed for a technical defect
in the pleadings. The judge in the California Action indicated
that the complaint made out the elements for a declaratory
judgment cause of action and granted A & S leave to file an
amended complaint to correct the technical defect. A & S
indicated that it had every intention of filing the amended
complaint. Moreover, the issues in the unfair business practices
claim — which was not dismissed — are identical to the issues in
this case. Finally, the presence of the Wiggin Group in the
California Action but not here is insignificant. Both Shchegol
and Cuomo involved situations where several key plaintiffs or
defendants were present, and significant issues were raised, in
one action but not in the other.
The proceedings in this action are concurrent, and therefore it
is necessary to proceed to an analysis of the six factors
elucidated in Colorado River and Moses H. Cone.
1. Jurisdiction Over Property
The parties acknowledge that neither this action nor the
California action involves jurisdiction over property.
Nevertheless, Wiggin asserts that this factor may weigh against
abstention, since Strenger owns property in New York which could
be attached should it become necessary to enforce a judgment.
Apparently, however, Strenger also owns property in California,
thereby neutralizing any advantage to the New York action.
This Circuit has stated that the absence of jurisdiction by
either court over property "point[s] toward exercise of federal
jurisdiction." De Cisneros v. Younger, 871 F.2d 305, 307
(1989); accord Village of Westfield v. Welch's, 170 F.3d 116
(2d Cir. 1999). On the other hand, the Circuit has also stated
that this factor is "not applicable
. . . when there is no res or property involved."
Arkwright-Boston, 762 F.2d at 210. These seemingly contrary
pronouncements can be resolved by interpreting De Cisneros to
mean that the absence of jurisdiction over property weighs
against abstention simply because there is a general presumption
against abstention. Thus, for purposes of the analysis here, the
first factor weighs slightly against abstention.
2. Inconvenience of the Federal Forum
According to A & S, the convenience factor favors California
for several reasons. Wiggin maintains an office in Los Angeles,
Ampton is a California corporation, and Strenger has a residence
there. In addition, several third-party witnesses are in
On the other hand, Wiggin points out that Ampton's principal
place of business is New York, where Strenger also maintains a
residence. Moreover, there are also third-party witnesses in
Great Britain, in addition to Wiggin itself. Great Britain, of
course, is closer to New York than to Los Angeles.
On balance, the convenience factor slightly favors California.
3. Avoidance of Piecemeal Litigation
The Supreme Court has acknowledged that the most important
factor in its decision to approve the dismissal of the Colorado
River action was the "`clear federal policy . . . [of] avoidance
of piecemeal adjudication.'" Moses H. Cone, 460 U.S. at 16, 103
S.Ct. 927 (quoting Colorado River, 424 U.S. at 819, 96 S.Ct.
1236); see also Arkwright-Boston, 762 F.2d at 211 (danger of
piecemeal litigation was the "paramount consideration");
American Alliance Ins. Co. v. Eagle Ins. Co., 961 F. Supp. 652,
656 (S.D.N.Y. 1997). As this Circuit said in Arkwright-Boston:
As the suits all arise out of the [same set of
facts], they should be tried in one forum.
Maintaining virtually identical suits in two forums
under these circumstances would waste judicial
resources and invite duplicative effort. Plainly,
avoidance of piecemeal litigation is best served by
leaving these suits in the state court.
Arkwright-Boston, 762 F.2d at 211.
It is appropriate to conclude from Wiggin's letterhead,
Martindale listing, and Web advertising that Wiggin maintains an
office for the practice of law in Los Angeles. A counterclaim in
the California Action will preserve Wiggin's claim for its fees.
All issues can be resolved in the California Action, which has a
fixed schedule, at the moment, for resolution. This factor,
therefore, strongly favors California.
4. Order in Which Jurisdiction Was Obtained
In evaluating the order in which jurisdiction was obtained, the
court does not look only to which action was commenced first, but
rather to the relative progress of the actions in the two forums.
See Moses H. Cone, 460 U.S. at 21, 103 S.Ct. 927; De
Cisneros, 871 F.2d at 308; Arkwright-Boston, 762 F.2d at 211.
The California action, though commenced first, was a preemptive
strike against a Wiggin payment deadline, and this action was
filed less than a month later. Nevertheless, the action has
proceeded further in California; a trial date has been set, and
discovery has commenced. Wiggin maintains that dismissal of the
declaratory judgment claims in the California action weighs
against abstention, but, as noted above, those claims were
dismissed for a technical defect in the pleadings. The judge in
the California action noted that the elements for declaratory
relief had been met and that A & S had leave to amend the
complaint to address the defect. In conclusion, the relative
progress of the actions weighs in favor of California.
5. Source of Law
This diversity action only involves issues of state law. In
Colorado River, the Supreme Court noted that the presence of a
federal question in a case weighs heavily against abstention.
See Colorado River, 424 U.S. at 815 n. 21, 96 S.Ct. 1236. On
the other hand, "[T]he absence of federal issues does not
strongly advise dismissal, unless the state law issues are
novel or particularly complex." Village of Westfield, 170 F.3d
at 124 (emphasis added). There are no such novel or particularly
complex issues in this case. However, the absence of a federal
question still slightly favors abstention. See De Cisneros, 871
F.2d at 309.
6. Adequacy of Procedures in State Court to Protect Federal
Little comment on this factor is necessary. Wiggin's rights are
adequately protected in the California Action, where it can
assert (as counterclaims) the same claims raised here. See
Arkwright-Boston, 762 F.2d at 211; American Alliance, 961
F. Supp. at 659.
The Balance of Factors Favors Abstention
This Court's "discretion to abstain must be exercised within
the `narrow and specific limits' prescribed by the particular
abstention doctrine involved." Village of Westfield, 170 F.3d
at 125 (quoting Dittmer v. County of Suffolk, 146 F.3d 113, 116
(2d Cir. 1998)). This case favors exercise of that discretion
under the six factors of Colorado River and Moses H. Cone, as
analyzed above. Factors two, three, four, and five favor
abstention. Factors one and six are neutral, which weigh only
slightly against abstention. The balance in this case clearly
favors abstention, particularly as factor three, the avoidance of
piecemeal litigation, strongly favors abstention, as in Colorado
River. The parties must be directed to concentrate their efforts
in one forum. As indicated by the grant of the stay, that forum
will be California.
However, should circumstances be presented to demonstrate the
inadequacy of the California forum under Colorado River and
Moses H. Cone, leave is granted for an application to dissolve
the stay. Towards that possibility, all discovery in the
California action will be admissible in this action, and it is
assumed that the California Action will proceed expeditiously as
it has thus far.
The motion of A & S for a stay under Colorado River is
granted, discovery in the California Action will be admissible in
this action should the stay be dissolved, and leave is granted to
apply for such a dissolution should the circumstances warrant.
It is so ordered.
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