Stewart v. Western Heritage Insurance

                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                                                               January 26, 2006
                        FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 05-60405
                           Summary Calendar



     SUSIE PIERCE STEWART,
                                       Plaintiff - Appellee,


                                  v.


     WESTERN HERITAGE INSURANCE COMPANY,

                                       Defendant - Appellant.




          Appeal from the United States District Court
             for the Southern District of Mississippi



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

     The parties ask this Court to determine whether the district

court correctly stayed this lawsuit pending the outcome of a

related state court proceeding.        We hold that the lower court

erred, and therefore REVERSE and REMAND.



               I.   FACTUAL AND PROCEDURAL BACKGROUND

     The present case concerns a previous lawsuit in Mississippi

state court.   The plaintiffs in that suit claimed that Boardwalk
Lounge, Inc. was responsible for the wrongful death of one of its

patrons,    Ryan   Yates.    Susie    Pierce   Stewart    (“Appellee”)    is

Boardwalk’s   sole   shareholder,      officer,   and   registered    agent.

Boardwalk   was    insured   by    Western   Heritage   Insurance    Company

(“Appellant”), who claims to have denied any obligation to defend

or indemnify Boardwalk.           No one defended the lawsuit and the

plaintiffs took a default judgment of $1.4 million.                  Shortly

thereafter, Boardwalk and the Appellee filed for bankruptcy.

     On October 23, 2003, the Appellee filed this lawsuit alleging

breach of insurance contract and bad faith in the United States

District Court for the Southern District of Mississippi.            The case

proceeded in federal court with the entry of a case management

order followed by a motion for summary judgment filed by the

Appellant. The discovery deadline expired in October 2004, and the

court set a trial date of February 14, 2005.

     Meanwhile, on July 6, 2004, the trustee for Boardwalk filed

suit in the Circuit Court of Hinds County, Mississippi.                  The

complaint named the Appellant, the Appellee, Phillip Dunn (an

insurance agent), and others who were later dismissed from the

suit.   The state complaint mirrors the federal suit except that it

also includes claims against the Appellee and Appellant for breach

of fiduciary duty and claims against Dunn.         The Appellant removed

the case on grounds of improper joinder.           The trustee moved to

remand.

     Following the commencement of the trustee’s suit, the Appellee

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filed two separate motions to voluntarily dismiss this action. The

Appellant opposed both.   The Appellee also moved to join Dunn as a

party.1   Additionally,   the   Appellant    filed   a   motion   to   join

Boardwalk’s trustee as a necessary party to this case.                  The

magistrate judge granted that motion and ordered the Appellee to

serve the trustee with process.       The trustee, however, has never

been joined and is not a party to this action.2          The court set a

hearing on all pending motions and a pretrial conference for early

February 2005.   At the hearing, the court stayed the case pending

a ruling on the remand motion in the trustee’s suit.       The two cases

were before different judges.

     On March 22, 2005, the trustee’s suit was remanded on the

grounds that Dunn had been properly joined.     On March 31, 2005, the

court in this case, acting sua sponte, entered an order that

“terminated” all pending motions and stayed the case pending the

resolution of the trustee’s suit in Mississippi state court.            The

Appellant appeals that order.



                          II.   DISCUSSION

     We review a district court’s decision to stay a case pending


     1
     If Dunn is joined, it would defeat diversity jurisdiction
as both the Appellee and Dunn hail from Mississippi. See
Cornhill Ins. PLC, v. Valsamis, Inc., 106 F.3d 80, 84 (5th Cir.
1997).
     2
      The Appellee states that it never had an opportunity to
join the trustee because the district court stayed the case.

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the outcome of parallel proceedings in state court for abuse of

discretion. Kelly Inv., Inc. v. Continental Common Corp., 315 F.3d

494,       497   (5th   Cir.   2002).    If   the   decision   rests    on   an

interpretation of law, our review is de novo.            Id.

       A district court’s decision to enter a permanent stay is

governed by Colorado River Water Conservatory District v. United

States, 424 U.S. 800, 813 (1976).             Colorado River applies when

suits are parallel, having the same parties and the same issues.

Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 540 (5th

Cir. 2002).3        Under Colorado River, a district court may abstain

from a case only under “exceptional circumstances.”                    Colorado

River, 424 U.S. at 813 (describing abstention as “an extraordinary

and narrow exception to the duty of a District Court to adjudicate

a controversy properly before it”).

       In deciding whether “exceptional circumstances” exist, the

Supreme Court identified six relevant factors:

       1) assumption by either court of jurisdiction over a res,
       2) relative inconvenience of the forums, 3) avoidance of
       piecemeal litigation, 4) the order in which jurisdiction
       was obtained by the concurrent forums, 5) to what extent
       federal law provides the rules of decision on the merits,
       and 6) the adequacy of the state proceedings in
       protecting the rights of the party invoking federal
       jurisdiction.

Kelly Inv., 315 F.3d at 497; see also Wilton v. Seven Falls Co.,


       3
      If the suits are not parallel, the federal court must
exercise jurisdiction. Republicbank Dallas, N.A. v. McIntosh,
828 F.2d 1120, 1121 (5th Cir. 1987).

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515 U.S. 277, 285–86 (1995).                        We do not apply these factors

mechanically, but carefully balance them “with the balance heavily

weighted in favor of the exercise of jurisdiction.”                      Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 469 U.S. 1, 16 (1983).                        The

balancing is done on a case-by-case basis.                      Id.

       The district court did not apply the Colorado River test when

it stayed this case.                Therefore, we review the factors for the

first time on appeal.              We assume, but do not decide, that the cases

are parallel.

A.   Res at Issue

       Neither the state nor federal court has assumed jurisdiction

over any res in this case.                We have rejected the contention that

the absence of this factor is “a neutral item, of no weight in the

scales.”          Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185, 1191

(5th       Cir.    1988).4         This   factor       supports   exercising   federal

jurisdiction.         Murphy, 168 F.3d at 738.

B.   Inconvenience Between Forums

       When       courts     are    in    the       same   geographic   location,   the


       4
      This holding in Evanston Insurance conflicts with the
holding in Bank One, N.A. v. Boyd, 288 F.3d 181, 185 (5th Cir.
2002) (“The first factor is not relevant to the present case as
neither the state nor federal district court have assumed
jurisdiction over any res or property.”) Because Evanston
Insurance predated Bank One, the former controls our analysis.
E.g., Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539,
549 (5th Cir.1997). The first factor, therefore, is relevant
even if no res exists in the case. Murphy v. Uncle Ben’s, Inc.,
168 F.3d 734, 738 (5th Cir. 1999).

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inconvenience factor weighs against abstention.              Id. at 738.   Both

the state and federal courthouses hearing these two cases are

located in Jackson, Mississippi.           This factor, therefore, supports

exercising federal jurisdiction.

C.   Avoidance of Piecemeal Litigation

       The pendency of an action in state court does not bar a

federal court from considering the same matter.               Bank One, N.A.,

288 F.3d at 185.           While duplicative litigation is permitted,

Colorado River prevents “piecemeal litigation, and the concomitant

danger      of    inconsistent   rulings    with   respect   to   a   piece   of

property.”        Black Sea Inv. v. United Heritage Corp., 204 F.3d 647,

650–51.          Again, no property is at issue in this case.                 The

potential, however, does exist for some piecemeal litigating as the

state court is the only forum hearing the breach of fiduciary duty

claims and claims against Dunn.            For the remaining issues, a plea

of res judicata after the completion of one suit could eliminate

the problem of inconsistent judgments.             Kelly Inv., 315 F.3d at

498.       Nonetheless, as the litigation presently exists, the third

factor favors abstention.5

D.   The Order in Which Jurisdiction Was Obtained

       The inquiry under this factor is “how much progress has been


       5
     While the current captions suggest that different parties
exist, the record is clear that the magistrate intended to have
the trustee joined and the Appellee is attempting to join Dunn.
These efforts and the ability of the trustee to file a cross-
claim could moot these piecemeal characteristics.

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made in the two actions.”       Murphy, 168 F.3d at 738.         The federal

lawsuit progressed through an entire case management order, had a

summary judgment motion pending at the time of the stay, and a

trial date.   With regard to the state proceeding, it is undisputed

that no trial date exists, and the record suggests that little, if

any, discovery has taken place. We have suggested that this factor

only favors abstention when the federal case has not proceeded past

the filing of the complaint.           Id.     Here, the case has clearly

progressed further.      For that reason, this factor favors federal

jurisdiction.

E.   The Extent Federal Law Governs the Case

     “[T]he   presence    of   state   law    issues   weighs   in   favor   of

surrender only in rare circumstances.” Black Sea Inv., 204 F.3d at

651 (reversing stay in case where state law governed).               This case

involves only issues of state law as it is being heard by the court

under its diversity jurisdiction.            Nonetheless, the Appellee has

failed to show that “rare circumstances” exist.            Therefore, this

factor is “at most neutral.”       Id.

F.   Adequacy of State Proceedings

     The sixth factor is either a neutral factor or one that weighs

against abstention.      Id.    The Appellant does not argue that the

state court would not adequately adjudicate the case.            Under Black

Sea, therefore, this is a neutral factor.




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                              IV.   CONCLUSION

     With   the   exception    of   the    factor   considering   “piecemeal

litigation,” all of the Colorado River factors weigh against

abstention or remain neutral.        Given that we must balance these in

favor of the exercise of jurisdiction, abstention in this case is

inappropriate.     The facts do not overcome the “extraordinary and

narrow exception” to the “virtually unflagging obligation of the

federal courts to exercise the jurisdiction given them.”             Colorado

River, 424 U.S. at 814, 817.        Because abstention is prohibited by

Colorado River, we need not address the Appellant’s argument that

the federal and state cases are not parallel.

     For    the   reasons   above,    the    district   court     abused   its

discretion in staying this case.          Therefore, we REVERSE and REMAND

for proceedings consistent with this opinion.




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