14‐4499
Smulley v. Mutual of Omaha Bank
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 25th day of February, two thousand
sixteen.
PRESENT: RALPH K. WINTER,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
______________________
DOROTHY A. SMULLEY,
Plaintiff‐Appellant,
‐v.‐ No. 14‐4499
MUTUAL OF OMAHA BANK, an
Arizona savings association, ERIN
BOWEN, AKA Erin Kremser, Erin Alicata,
an individual residing in Massachusetts,
WEBSTER FINANCIAL CORPORATION,
a Delaware corporation, DBA Webster
Bank, ZELDES, NEEDLE & COOPER, PC,
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a Connecticut professional corporation,
IMAGINEERS, LLC, Connecticut limited
liability company, ORONOQUE SHORES
CONDOMINIUM ASSOCIATION NO. 1,
INC., a Connecticut corporation,
Defendants‐Appellees.
______________________
FOR APPELLANT: DOROTHY A. SMULLEY, pro se, Stratford, CT.
FOR APPELLEES: TROY A. BATAILLE, Goldberg Segalla, LLP,
Hartford, CT (Reardon Scanlon Vodola Barnes LLP,
West Hartford, CT; Welch, Teodosio, Stanek & Blake,
LLC, Shelton, CT; Zeldes, Needle & Cooper, P.C.,
Bridgeport, CT, on the brief).
Appeal from a judgment and order of the United States District Court for
the District of Connecticut (Jeffrey Alker Meyer, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the orders and judgment of the District
Court are VACATED and the case is REMANDED.
Appellant Dorothy Smulley, proceeding pro se, appeals the District Court’s
order dismissing her complaint under the doctrine of Colorado River abstention,
the subsequent judgment entered, and an order denying her motion to alter the
judgment. Smulley filed a complaint raising numerous claims arising from her
dispute with a condominium association. The District Court decided to abstain
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in light of four pending state actions arising from the same facts. We assume the
parties= familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
We review a decision to abstain and the denial of reconsideration for abuse
of discretion, although our review is “somewhat rigorous” in the abstention
context. Niagara Mohawk Power Corp. v. Hudson River‐Black River Regulating Dist.,
673 F.3d 84, 99 (2d Cir. 2012) (citation omitted) (abstention); Analytical Surveys,
Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (reconsideration). Under
the Colorado River doctrine, a federal court may decline to hear a case when
parallel state court proceedings are pending and “reasons of wise judicial
administration” counsel dismissal. Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 818 (1976). However, “[o]nly the clearest of
justifications will warrant dismissal.” Id. at 819.
First, a court may abstain under this doctrine only if the state and federal
proceedings are parallel. Dittmer v. County of Suffolk, 146 F.3d 113, 118 (2d Cir.
1998). Second, whether Colorado River abstention is justified turns on a balancing
of six factors: (1) whether either the state or federal court has assumed
jurisdiction over a res; (2) the relative inconvenience of the federal forum; (3) the
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desirability of avoiding piecemeal litigation; (4) the order in which the actions
were filed; (5) whether state or federal law provides the rule of decision; and (6)
whether the state action will protect the federal plaintiff’s rights. Colorado River,
424 U.S. at 818 (announcing the first four factors); Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 23–26 (1983) (announcing factors five and six).
The District Court’s oral ruling carefully walked through each of these
factors in applying the Colorado River doctrine to the case before it. However,
following oral argument on appeal, Smulley informed us that she had entered
into a settlement agreement with all defendants except Webster Financial Corp.,
resolving both state and federal actions. See Motion, Smulley v. Mutual of Omaha
Bank, No. 14‐4499 (2d Cir. Jan. 11, 2016), ECF No. 116. We grant her motion to
withdraw those defendants as parties and, as a result, the procedural landscape
that faces us is different from what the District Court faced.
The parallel nature of concurrent state and federal actions is “a necessary
prerequisite to abstention under Colorado River,” without which we never reach
the six‐factor balancing test. Dittmer, 146 F.3d at 118. Actions are “parallel when
substantially the same parties are contemporaneously litigating substantially the
same issue in another forum.” Niagara Mohawk, 673 F.3d at 100. Now that
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Webster Financial Corp. is the only defendant in the federal action and is not a
party to any state action, there are no concurrent, “parallel” actions in state court,
and our Colorado River analysis is at an end. See Sheerbonnet, Ltd. v. Am. Exp. Bank
Ltd., 17 F.3d 46, 49–50 (2d Cir. 1994).
We GRANT Smulley’s motion to withdraw certain defendants and
accordingly VACATE the orders and judgment of the District Court and
REMAND the case for further proceedings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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