Trent v. Dial Medical of Florida, Inc.

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

8-12-1994

Trent, et al. v. Dial Medical of FL, Inc., et al.
Precedential or Non-Precedential:

Docket 92-2047

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 92-2047
___________

EARL TRENT, and all those similarly situated; EDWIN SNEAD,
EXECUTOR OF THE ESTATE OF ELAINE SNEAD Intervenor-
Plaintiff in D.C.; EDWIN SNEAD, IN HIS OWN RIGHT
Intervenor-Plaintiff in D.C.

vs.

DIAL MEDICAL OF FLORIDA, INC.; COMMUNITY DIALYSIS CENTERS;

vs.

W. W. GRAINGER, INC.; AMERICAN MACHINE AND TOOL CO. INC. OF
PENNSYLVANIA, a/k/a AMERICAN MACHINE AND TOOL CO.,
INC.; BAXTER HEALTHCARE CORPORATION

Earl Trent,

Appellant.

___________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 92-04493)

___________

ARGUED JULY 26, 1993

BEFORE: MANSMANN, GREENBERG and LEWIS, Circuit Judges.

(Filed August 12, 1994)

___________
Ronald V. Cole, Esquire (ARGUED)
Suite 2323
1601 Market Street
Philadelphia, PA 19103

Attorney for Appellant

Paul C. Quinn, Esquire (ARGUED)
Steven G. Wigrizer, Esquire
Wapner, Newman & Associates
115 South 21st Street
Philadelphia, PA 19103

Attorney for Appellee, Edwin Snead, Executor of the Estate
of Elaine Snead and in his own right

Joseph Frontino, Esquire
Richard W. Yost, Esquire
L'Abbate & Balkan
Four Penn Center Plaza
1600 John F. Kennedy Boulevard
Suite 1401
Philadelphia, PA 19103

Attorney for Appellee, Dial Medical of Florida, Inc.

Andrew A. Chirls, Esquire (ARGUED)
Wolf, Block, Schorr & Solis-Cohen
S.E. Corner 15th & Chestnut Streets
Packard Building, 12th Floor
Philadelphia, PA 19102

Attorney for Appellee, Community Dialysis Centers

Charles T. Roessing, Esquire
White & Williams
1500 Lancaster Avenue
Suite 206
Paoli, PA 19301

Attorney for Appellee, W. W. Grainger, Inc. and American
Machine and Tool Co., Inc. of Pennsylvania a/k/a
American Machine and Tool Co., Inc.

___________
 OPINION OF THE COURT
___________

LEWIS, Circuit Judge.
Appellant Earl Trent challenges a district court's

decision to abstain from hearing his case until a similar state

court case is resolved. We will affirm.

I.

Trent receives dialysis treatment at defendant

Community Dialysis Center ("CDC") in Lansdowne, Pennsylvania.

Defendant Dial Medical of Florida, Inc. ("Dial Medical") sells

acid concentrate to CDC for use in dialysis treatment. Between

late 1988 and early 1992, several CDC patients, including Trent,

were found to have high serum aluminum levels, which could result

in aluminum poisoning.

In July, 1992, Trent filed a class action complaint in

the United States District Court for the Eastern District of

Pennsylvania alleging negligence against CDC and Dial Medical.1

Specifically, Trent alleged that the elevated aluminum levels in

CDC patients resulted from CDC's use of aluminum pumps to pump

acid concentrate through patients as part of their dialysis

treatment. In September, 1992, he filed a "motion for class

1
. CDC apparently filed a third-party complaint against W.W.
Grainger, Inc. ("Grainger"), and American Machine and Tool
Co., Inc. of Pennsylvania ("American Machine"), and Dial
Medical filed a third-party complaint against Baxter
Healthcare Corp. ("Baxter"). Dial Medical, Grainger, and
American Machine have since been dismissed from this appeal
pursuant to stipulations of dismissal filed with the
district court, and Baxter was not a party to this appeal.
maintenance," seeking certification of the class described in his

amended complaint -- fifty-three CDC patients who have tested

positive for serum aluminum levels of greater that 100 micrograms

per liter (mcg/l) since January, 1990.

Shortly thereafter, Edwin Snead, who had earlier filed

a similar class action complaint against CDC and its two medical

directors in state court, moved to intervene in Trent's lawsuit.

Snead, whose wife had died of aluminum poisoning after receiving

dialysis treatment at CDC, sought in his case to represent a

class comprised of all CDC patients injured by CDC's allegedly

defective dialysis equipment and methods. Snead's complaint

alleged negligence and outrageous conduct and included counts for

wrongful death and survival.

In November 1992, the district court granted Snead's

motion to intervene, denied Trent's motion for class

certification and sua sponte decided to abstain from hearing the
Trent case in light of the pendency of the Snead case in state

court. The following order issued:
The motion of Edwin Snead . . . to
intervene as a party plaintiff is GRANTED.

The motion of plaintiff Earl Trent for
class certification is DENIED without
prejudice.

This suit is DISMISSED WITHOUT
PREJUDICE. This case is to remain in status
quo and the Statute of Limitations is tolled.

It is further understood that all
discovery and settlement discussions will
continue in coordination with the action
currently pending in the Delaware County
Court of Common Pleas styled Snead v.
 Community Dialysis Center, Inc. . . . . If
intervention by the court is needed or
desired, the parties may ask for assistance
by either filing the appropriate motions,
writing to the court or setting a telephone
conference.

The parties shall keep the court advised
of the status of this case and the state
court action. When they are ready for trial
or wish a settlement conference all that is
necessary is to write directly to the court
or set a telephone conference.

App. at 185-86.

Since this appeal was argued, a class has been

certified in the Snead case as to duty and breach of duty.

Although the time period for opting out of that class has

expired, Trent has chosen not to opt out. Trent appeals the

district court's decision to abstain from hearing his case.

II.

Initially we must determine whether federal appellate

jurisdiction exists. The district court had jurisdiction over

this case pursuant to 28 U.S.C. § 1332(a)(1).2 The inquiry into
2
. Stating that it "anticipates that discovery will reveal to a
legal certainty that plaintiff will not be able to recover
the jurisdictional amount of $50,000," CDC urges that the
district court may not have had diversity jurisdiction over
this case. CDC's brief at 12 (footnote omitted). Trent's
complaint, however, alleges damages in excess of $50,000,
exclusive of interest and costs. Unless it appears to a
legal certainty from the facts alleged that this case does
not involve potential damages on that scale, the district
court had jurisdiction. Nelson v. Keefer, 451 F.2d 289 (3d
Cir. 1971); 28 U.S.C. § 1332(a). Given that Trent seeks
both compensatory and punitive damages, and the lack of
clarity as to the extent of his injuries, if he suffered
any, we cannot say with any certainty -- legal or otherwise
-- at this time that his damages will amount to less than
$50,000.
our jurisdiction, which we would undertake in any event but which

is also the subject of a pending motion to dismiss for lack of

appellate jurisdiction, is more complex due to conflicting

statements in the district court's order.

That order indicates that Trent's case was dismissed

without prejudice. An order dismissing a case is, of course,

final and appealable. Ingersoll-Rand Fin. Corp. v. Callison, 844
F.2d 133, 134-35 & n.1 (3d Cir. 1988). Even dismissals without

prejudice have been held to be final and appealable if they

"end[] [the] suit so far as the District Court was concerned,"

United States v. Wallace & Tiernan Co., 336 U.S. 793, 794 n.1

(1949), although we have indicated that such dismissals may not

constitute final orders until the party seeking relief renounces

any intention to reinstate litigation. See Tiernan v. Devoe, 923

F.2d 1024, 1031 (3d Cir. 1991).

The court's order is not clearly a dismissal, however,

for it states that the case is "to remain in status quo,"

"discovery and settlement discussions will continue in

coordination with" the Snead case, the parties may contact the

court if they desire judicial intervention, and the parties need

only "write directly to the court or set a telephone conference"

when they "are ready for trial or wish a settlement conference."

App. at 185-86. The order thus appears to remove the case from

the district court's docket of pending cases but to anticipate

reactivation. See Brace v. O'Neill, 567 F.2d 237 (3d Cir. 1977).
Therefore, the proper jurisdictional inquiry focusses on an

interpretation of Moses H. Cone Memorial Hosp. v. Mercury Constr.
Corp., 460 U.S. 1 (1983), and other cases addressing the issue of
whether a stay order is final for purposes of appeal. See Rolo

v. General Development Corp., 949 F.2d 695, 700-02 (3d Cir.

1991); Schall v. Joyce, 885 F.2d 101, 104-05 (3d Cir. 1989);

Commonwealth Ins. Co. v. Underwriters, Inc., 846 F.2d 196, 198

(3d Cir. 1988); Cheyney State College Faculty v. Hufstedler, 703

F.2d 732 (3d Cir. 1983).

In Moses H. Cone, the Supreme Court held that a stay

grounded in the pendency of similar litigation in state court is

appealable if it "effectively deprive[s] the plaintiff of its

right to a federal forum because once the state court

adjudicate[s] the issues in the case, a federal court would be

bound to honor those determinations as res judicata." Schall,

885 F.2d at 104. Under Moses H. Cone, even if a stay order is

entered with the expectation that the federal litigation will

resume if the plaintiff does not obtain relief in state court,

the stay decision may be appealed if "the object of the stay is

to require all or an essential part of the federal suit to be

litigated in a state forum." Moses H. Cone, 460 U.S. at 10 n.11.

That is precisely the effect the district court's order

will have here. It is clear that the district court judge

expected that Snead would resolve this case, at least in large
part. A decision in Snead will constitute res judicata as to at

least the two major issues (duty and breach) in Trent.3

3
. CDC has asserted a counterclaim against Trent in his lawsuit
alleging that he has failed to pay for his dialysis
treatments. Snead may not resolve this counterclaim,
although, depending on the substance of Trent's defense to
Effectively requiring Trent either to wait until Snead is
resolved or to remain in the Snead class deprives him of the

opportunity to pursue remedies in federal court, thus

constituting a requirement that "all or an essential part of the

federal suit . . . be litigated in a state forum." Moses H.

Cone, 460 U.S. at 10 n.11. Since issuing the order in question,

in fact, the district court has denied as moot a motion to file a

second amended complaint, thus implying that it believes it has

effectively disposed of the case.

In Moses H. Cone, "[t]he Court distinguished between

stay orders that `merely . . . have the practical effect of

allowing a state court to be the first to rule on a common issue'

(such as an `ordinary delay in the interest of docket control')

and stay orders whose `sole purpose and effect . . . are

precisely to surrender jurisdiction of a federal suit to a state

court.' . . . Only the latter type of stay order is immediately

appealable." Schall, 885 F.2d at 104, quoting Moses H. Cone, 460

U.S. at 10 n.11. CDC attempts to categorize this case as one in

which the district court has issued a stay merely to afford the

state court an opportunity to rule first on a common issue. It

sees this order as an attempt at docket control rather than an

action which effectively dismisses Trent's case. Thus, it argues

that we lack jurisdiction.

it, it is conceivable that even that counterclaim may be
resolved by a verdict in Snead.
 Indeed, portions of the order point in the direction

CDC indicates. The order provides that "the case is to remain in

the status quo" and that "all discovery and settlement discussion

will continue in coordination with the action currently pending

in . . . Snead." App. at 185. It also instructs the parties

that the judge will be amenable to intervening if the parties ask

him to do so, and that they should keep him "advised of the

status of this case and the state court action." Id. In the

same vein, it provides that "[w]hen [the parties] are ready for

trial or wish a settlement conference all that is necessary is to

write directly to the court or set a telephone conference." App.

at 185-86. Moreover, since entering the order, the district

court judge has denied a motion to stay discovery pending this

appeal, thus perhaps implying that he expects discovery to

continue because the case is still pending.4

The order's unintended lack of clarity, which has been

exacerbated by the denial of the discovery motion, does not,

however, compel a conclusion that we lack appellate jurisdiction.

Two relevant precedents assist in line-drawing here, and

comparison with those cases provides the focus for our decision

that we have appellate jurisdiction.

In Cheyney State College Faculty v. Hufstedler, supra,

we examined a district court's decision to abstain from a class

4
. Of course, this could alternatively imply that the judge
believes he has no jurisdiction to consider the motion to
stay discovery because the case has been dismissed.
action suit alleging segregation in the Pennsylvania higher

education system until the United States Department of Education

had adjudicated administrative procedures regarding the

allegation. We acknowledged Moses H. Cone's holding that,
although a stay is not ordinarily a final decision, an appellate

court may review it when it "amounts to a dismissal of the

underlying suit." Cheyney, 703 F.2d at 735. We also

acknowledged that "[a]n indefinite stay order that unreasonably

delays a plaintiff's right to have his case heard is appealable."

Id. We held, however, that "[t]he stay in this case does not

have the practical effect of a dismissal. Nothing in the

district court's opinion or order intimates that the stay was

intended to `deep six' the suit. Plaintiffs have not been put

`effectively out of court.' . . . Nor is the case `rife with

special circumstances which bring it outside the general rule and

so limit its precedential value as to not measurably weaken our

continued aversion to piecemeal appeals.'" Id. Rather, based in

large part on the district court's instruction that the parties

report to it on the progress of the administrative proceedings,

we were "convinced" that "this stay [was] merely a temporary

suspension of proceedings." Id. at 735. Therefore, we

determined that we lacked jurisdiction over an appeal from the

stay order because the district court was only abstaining until

the plaintiffs proceeded on the administrative level. There was

no indication that the outcome of the administrative proceeding

would deprive plaintiffs of their day in federal court.
 Conversely, in Schall, we held that a district court's
decision to stay a case pending the disposition of a state court

case was appealable because: (1) there was no indication that

the order was tentative (i.e., there was no basis to suppose that

the district judge contemplated any reconsideration of his

decision to defer to the parallel state-court suit (quoting Moses

H. Cone)); (2) the district court had instructed the plaintiff to

proceed in state court and then ordered the stay pending the

outcome of those state court proceedings, leading us to believe

that "the district court stayed the suit to relegate the

plaintiff to state court rather than to exercise control over its

docket"; and (3) the issues in the state court suit constituted

the heart of the federal court suit, thus effectively preventing

the litigation in federal court of a significant part of

plaintiff's federal case. Schall, 885 F.2d at 105.

Arguably, unlike Schall, the order on appeal here

indicates that the district court might reconsider whether to

defer to Snead. The court's statements that it will "intervene"

if asked and will set a trial date or a settlement conference

upon request imply not only that it recognizes that there may be

some issues remaining after Snead is disposed of, but also that
it might try the case whenever the parties (apparently jointly)

seek a trial date. Like Schall, however, the issues in Snead

provide the central focus of this case, so the district court's

order effectively prevents litigation of Trent's claims in

federal court and requires him to abide by the state court

decision in Snead. (Although Snead alleges more legal bases for
relief that the Trent case does, the allegations of the Trent
case are subsumed within Snead.) Unlike Cheyney, then, this stay

has the practical effect of a dismissal rather than merely

delaying adjudication until completion of administrative or state

court proceedings. Therefore, we conclude that, like the orders

in Schall and Moses H. Cone, this stay order is immediately

appealable and we may exercise jurisdiction over it.

III.

The district court decided to defer exercising

jurisdiction over this case under the "exceptional circumstances"

doctrine of Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976). See Ingersoll-Rand, 844 F.2d 133.

Colorado River abstention is not one of the three

constitutionally- or comity-based traditional grounds for

abstention.5 Instead, under Colorado River, even if a case (such

as this one) does not fall within one of the three traditional

categories,

5
. The three constitutionally- or comity-based grounds for
abstention are Pullman abstention, an outgrowth of Railroad
Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941), which
is proper when a state court determination of a question of
state law might moot or change a federal constitutional
issue presented in a federal court case; Burford abstention,
an outgrowth of Burford v. Sun Oil Co., 319 U.S. 315 (1943),
which is proper when questions of state law in which the
state has expressed a desire to establish a coherent policy
with respect to a matter of substantial public concern are
presented; and Younger abstention, an outgrowth of Younger
v. Harris, 401 U.S. 37 (1971), which is proper when federal
jurisdiction has been invoked for the purpose of restraining
certain state proceedings. See generally Colorado River
Conservation Dist. v. United States, 424 U.S. 800, 814-16
(1976).
 there are principles unrelated to
considerations of proper constitutional
adjudication and regard for federal-state
relations which govern in situations
involving the contemporaneous exercise of
concurrent jurisdictions, either by federal
courts or by state and federal courts. These
principles rest on consideration of "[w]ise
judicial administration, giving regard to
conservation of judicial resources and
comprehensive disposition of litigation."

Colorado River, 424 U.S. at 817, quoting Kerotest Mfg. Co. v.
C-O-Two Fire Equip. Co., 342 U.S. 180, 183 (1952). While

abstention even under the three traditional categories is the

exception, rather than the rule, Colorado River, 424 U.S. at 813

(Moses H. Cone, 406 U.S. at 14), Colorado River abstention is

even rarer, for two reasons. First, generally, the pendency of a

case in state court will not bar federal litigation of a case

concerning the same issues if the federal court has jurisdiction

over the case before it. Id. at 817. Second, the federal courts

have a "virtually unflagging obligation . . . to exercise the

jurisdiction given them." Id. at 817; see also Olde Discount

Corp. v. Tupman, 1 F.3d 202, 211 (3d Cir. 1993).

A.

In reviewing an abstention decision, "the underlying

legal questions are subject to plenary review, although the

decision to abstain is reviewed for abuse of discretion."

University of Maryland v. Peat Marwick Main & Co., 923 F.2d 265,

269 (3d Cir. 1991); see also Moses H. Cone, 460 U.S. at 19;

General Glass Indus. Corp. v. Monsour Medical Found., 973 F.2d

197, 200 (3d Cir. 1992).
 In other words,
The determination of whether this case falls
in the area within which the district court
may exercise discretion is . . . a matter of
law, reviewable on a plenary basis. Only if
we determine that the case falls within this
range will we apply an abuse of discretion
standard in reviewing the district court's
decision to abstain.

University of Maryland, 923 F.2d at 270.
B.

Cases that are not truly duplicative do not invite

Colorado River deference. University of Maryland, 923 F.2d at

276; Complaint of Bankers Trust Co. v. Chatterjee, 636 F.2d 37,

40-41 (3d Cir. 1980); see also LaDuke v. Burlington Northern R.R.

Co., 879 F.2d 1556 (7th Cir. 1989). Therefore, we initially

inquire whether the Trent case and the Snead case are parallel.

Generally, cases are parallel so as to justify

abstention under Colorado River when they involve the same

parties and claims. In LaDuke, a plaintiff sued his employer in

state court and then filed an identical suit in federal court.

The cases were "parallel" because they involved identical parties

and claims. La Duke, 879 F.2d at 1559. Similarly, in Moses H.

Cone and Colorado River, the state and federal cases involved the

same claims and the same parties, although the defendants in the

federal cases appeared as plaintiffs in the state cases. Moses

H. Cone, 460 U.S. at 7; Colorado River, 424 U.S. at 805-06.

Thus, those cases, too, were parallel.

In contrast, when a federal court case involves claims

that are distinct from those at issue in a state court case, the
cases are not parallel and do not justify Colorado River
abstention. In University of Maryland, for example, we reversed

a district court's dismissal of a class action fraud case filed

by policyholders of an insolvent insurance company against the

insurance company's independent auditor. The district court

decided to abstain under Burford v. Sun Oil Co., 319 U.S. 315

(1943) (see note 5, supra), in favor of a state court case

against the same auditor brought by the Pennsylvania insurance

commissioner on behalf of the insurance company and its

policyholders. Although the district court had based its

decision upon Burford, we reviewed its decision under both

Burford and Colorado River.

We reversed the district court because the parties and

claims in each of the two cases differed. The insolvent

insurance company was a party to the state court suit but not to

the one brought in federal court. The classes of policyholders

involved in each case differed. And the insurance commissioner's

lawsuit alleged fewer legal bases for relief than did the federal

court suit. University of Maryland, 923 F.2d at 268-69.

Therefore, the policyholders' claims in the federal court case

were "distinct" from those asserted in the commissioner's case;

because of this "lack of identity of all issues," and because

there was "no theoretical obstacle to both actions proceeding

independently," we ruled that abstention under Colorado River
would be improper. Id. at 276.

Similarly, in Complaint of Bankers Trust, we admonished
that "[i]t is important . . . that only truly duplicative
proceedings be avoided. When the claims, parties, or requested

relief differ, deference may not be appropriate." Complaint of
Bankers Trust, 636 F.2d at 40. In that case, we reviewed a

federal district court's decision to defer in favor of litigation

pending in another federal district court. Because neither the

parties to nor the relief requested in the two cases at issue

were identical, and because the two cases employed substantially

different "approaches" and might "achieve potentially different

results," we reversed the district court's "docket-control

dismissal" of one of the cases. Id. at 41.

In this case, the district court ruled that Trent and

Snead were parallel because it found them to be "substantially

identical." App. at 180. The two cases do in fact raise nearly

identical allegations and issues, and the defendants in each are

essentially identical.6 Moreover, as the district court found,

the plaintiffs in the two cases are effectively the same.7 That

6
. The Snead case in state court includes as defendants the two
medical directors of CDC in addition to CDC itself. This
does not trouble us, since abstention will in no way deny
Trent an opportunity to have his claims litigated against
the remaining defendant in this federal suit -- CDC. See
supra n.1.
7
. The court stated:

The class previously certified by the state
court includes all CDC patients who utilized
the defective dialysis equipment at CDC and
suffered injury as a result. Although the
putative class defined by plaintiff Trent is
somewhat more limited, he relies upon the
same allegations of negligence.

App. at 180 (emphasis added).
Snead has been certified only as to duty and breach of that duty
does not negate the fact that the determination of those issues

in Snead will resolve them in Trent. Trent's decision not to opt

out of Snead8 means that Snead will result in recovery for him if

the class prevails on the class-wide issues and he is found to

have suffered damages as a result of the defendants' actions. In

sum, Trent and Snead are parallel and thus present an appropriate

setting for Colorado River abstention.

C.

Given that this case is one in which Colorado River

abstention may be appropriate, we now must determine whether the

decision to abstain constituted an abuse of the district court's

discretion. We conclude that it did not.

In fact, the class in Snead had not yet been certified at
the time the district court decided to abstain. App. at
177. Subsequent events have nonetheless proven the district
court judge to have been prescient, for, as previously
noted, the judge handling Snead has, during the pendency of
this appeal, certified a class consisting of "all persons
who received bicarbonate dialysate treatments at CDC's
Lansdowne facility between January 1, 1990 and February 7,
1992, the spouses of all such patients and the
administrators and the executors of the estates of such
persons and/or their spouses." Attachment to Letter from P.
Quinn to P. Lester (Deputy Clerk, Third Circuit) of June 30,
1994 (state court order in Snead granting class
certification). Clearly, Trent would be a member of that
class.
8
. Trent states that he intends to move for permission to opt
out of the Snead class after receiving our decision in this
appeal. At oral argument, he expressed an intention to
pursue his case on an individual basis instead of as a class
action. We cannot assume that his belated motion to opt out
of the Snead class will be granted, however, so we must
consider him to be a member of the Snead class as we decide
this appeal.
 The factors which govern a district court's exercise of

discretion in deciding whether to abstain under Colorado River
are:
(1) Which court first assumed jurisdiction
over property involved, if any;

(2) Whether the federal forum is
inconvenient;

(3) The desirability of avoiding piecemeal
litigation;

(4) The order in which the respective courts
obtained jurisdiction;

(5) Whether federal or state law applies;
and

(6) Whether the state court proceeding would
adequately protect the federal
plaintiff's rights.

See generally Moses H. Cone, 460 U.S. at 15-16, 19-26; see also

Colorado River, 424 U.S. at 818-19 ("No one factor is necessarily

determinative; a carefully considered judgment taking into

account both the obligation to exercise jurisdiction and the

combination of factors counselling against that exercise is

required. . . . Only the clearest of justifications will warrant

dismissal.").

Many factors weigh in favor of abstention in this case.

The principal reasons to abstain, once abstention has been found

to be possible, are to avoid piecemeal litigation and to

adjudicate state-law issues in state court. Cf. DeCisneros v.

Younger, 871 F.2d 305, 309 (2d Cir. 1989). Here, state rather

than federal law is at issue, and piecemeal litigation might
result if the district court presided over Trent while Snead was
progressing through the state court system. Moreover, the class

certified in Snead is broader than that asserted in Trent. Snead

thus will resolve more individuals' claims than Trent would; it

makes more sense to resolve common issues in a setting which will

dispose of the most claims. Finally, Snead was filed before

Trent and, more importantly under Moses H. Cone, it appears as if

Snead has invested more time into substantive work and discovery

in his case. See App. at 32.

In sum, because the parties agree that there is no res

over which any court has exercised jurisdiction, only one factor

truly weighs in favor of the district court exercising federal

jurisdiction. That is simply that the federal forum is not

inconvenient. This alone, even given the obligation federal

courts have to exercise their jurisdiction, cannot justify a

decision to exercise jurisdiction when the countervailing factors

weigh so heavily in favor of abstention. Accordingly, we will

affirm.
 IV.

Trent and CDC also argue that the district court erred

in granting Snead's motion to intervene because Snead had not

complied with the requirements of Rule 24(c) of the Federal Rules

of Civil Procedure in filing it.9 We need not reach the merits

of this argument on appeal because orders granting intervention

are not final for purposes of appeal. In re Continental
Airlines, Inc., 932 F.2d 282, 286 (3d Cir. 1991); Matter of Marin

Motor Oil, Inc., 689 F.2d 445, 447 (3d Cir. 1982); Equal

Employment Opportunity Commission v. American Tel. & Tel. Co.,

506 F.2d 735, 742 (3d Cir. 1974). Trent's and CDC's arguments

must await the conclusion of this case before they may be

considered.

V.

In conclusion, we will affirm the district court's

decision to abstain from proceeding further with Trent until the

parties inform it either that Snead has reached some conclusion

but issues remain for disposition in Trent or that it is

appropriate to proceed in Trent despite the continuing pendency

of Snead.

9
. Rule 24(c) requires that a person seeking to intervene in a
lawsuit serve upon the parties to the lawsuit a motion to
intervene which sets forth the grounds for intervention and
is accompanied "by a pleading setting forth the claim or
defense for which intervention is sought." Fed. R. Civ.
P. 24(c).