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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2003 Decided April 18, 2003
No. 01-7129
DOROTHY HANDY,
APPELLANT
v.
SHAW, BRANSFORD, VEILLEUX & ROTH,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02336)
Dorothy Handy argued the cause pro se.
Aaron L. Handleman argued the cause for the appellee.
George S. Mahaffey, Jr. was on brief for the appellee.
Before: HENDERSON, RANDOLPH and GARLAND, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
KAREN LECRAFT HENDERSON, Circuit Judge: Dorothy
Handy appeals pro se the dismissal of her malpractice lawsuit
against the law firm of Shaw, Bransford, Veilleux & Roth
(Shaw). She asserts that the district court erred in ruling
that Rule 13 of the Federal Rules of Civil Procedure required
her to file her malpractice claim against Shaw in a lawsuit
already pending in the District of Columbia Superior Court
(Superior Court) brought by Shaw against Handy to recover
legal fees allegedly owing. A district court’s authority to
dismiss a case within its jurisdiction in favor of parallel local
court proceedings is limited, however, and here the court
overlooked both United States Supreme Court and Circuit
precedent to that effect. See, e.g., Colo. River Water Conser-
vation Dist. v. United States, 424 U.S. 800, 813–19 (1976);
Reiman v. Smith, 12 F.3d 222, 223–24 (D.C. Cir. 1993); Hoai
v. Sun Refining & Mktg. Co., Inc., 866 F.2d 1515, 1518, 1520
(D.C. Cir. 1989).
I.
Handy’s malpractice claim against Shaw arose as a result
of Shaw’s representation of Handy in another case—Handy
had hired Shaw to represent her in an employment discrimi-
nation suit against the United States Department of Trans-
portation. The Department successfully defended against
that claim and, subsequently, Shaw attempted to recover
legal fees from Handy. Handy, in turn, alleged that Shaw’s
representation of her in that case constituted malpractice.
Shaw filed its original complaint on September 26, 2000 in
Superior Court, seeking the recovery of fees allegedly owed
by Handy. Shaw, however, failed to serve Handy before she
filed pro se her malpractice complaint against Shaw in district
court on September 29, 2000. Shaw’s failure to serve Handy
ultimately resulted in the Superior Court’s dismissal of
Shaw’s claim on December 7, 2000. Shaw, Bransford, Veil-
leux & Roth v. Handy, Civ. No. 00–7138 (D.C. Super. Ct. Dec.
7, 2000). Handy, on the other hand, did successfully serve
Shaw, which on November 21, 2000 moved to dismiss her
3
complaint for failure to state a claim upon which relief could
be granted, namely, her alleged malpractice claim was re-
quired under FED. R. CIV. P. 13(a) to be brought as a
compulsory counterclaim in the then-pending Superior Court
litigation.
More than six months later, the district court granted
Shaw’s still-pending dismissal motion, dismissing without
prejudice Handy’s suit. Handy v. Shaw, Bransford, Veilleux
& Roth, Civ. A. No. 00–2336 (D.D.C. June 5, 2001) (mem.)
[hereinafter Mem. Op.].1 It reasoned that Rule 13(a)’s re-
quirement that ‘‘[a] pleading shall state as a counterclaim any
claim which at the time of serving the pleading the pleader
has against any opposing party, if it arises out of the transac-
tion or occurrence that is the subject matter of the opposing
party’s claim,’’ compels a litigant to bring all claims arising
out of the same transaction or occurrence in a single forum.
Mem. Op. at 3–5. It first determined that Handy’s malprac-
tice claim ‘‘bears a clear, logical relationship’’ to Shaw’s claim
for unpaid legal fees, id. at 5, and, then, based on that
determination, treated Handy’s claim as a compulsory coun-
terclaim under Rule 13(a). Because Shaw’s lawsuit was filed
three days before Handy’s, the court said, Handy must file
her claim there,2 declaring that ‘‘to permit both claims to
1 There is no dispute that Handy’s case was within the district
court’s subject matter jurisdiction under 28 U.S.C. § 1332 (diversi-
ty).
2 The district court was apparently unaware that in the interim
between Shaw’s motion to dismiss and its ruling thereon, Shaw’s
Superior Court case had been dismissed. Shaw filed a second
action in Superior Court on March 1, 2001, making the same claim.
Complaint, Shaw, Bransford, Veilleux & Roth v. Handy, No.
01–1664 ¶ ¶ 1–2 (D.C. Super. Ct. Mar. 1, 2001). Shaw had argued in
support of its motion to dismiss that the first case filed ought to
determine the forum in which both suits are litigated. Motion to
Dismiss, Handy v. Shaw, Bransford, Veilleux & Roth, Civ. A. No.
00–2336 (D.D.C. Nov. 21, 2000). By the time the district court
ruled on Shaw’s motion to dismiss, however, its original Superior
Court case had been dismissed and Handy’s federal suit was then
4
proceed in separate forums would thwart the intent behind
Rule 13.’’ Id. at 7. The district court concluded that ‘‘ ‘the
fairest and most efficient course would be to permit the
parties to litigate all aspects of the dispute in the forum in
which the controversy was first raised.’ ’’ Id. at 6–8 (quoting
Pumpelly v. Cook, 106 F.R.D. 238, 240 (D.D.C. 1985)) (citing
Coates v. Ellis, 61 A.2d 28, 30 (D.C. 1948)).
II.
The district court based its Rule 12(b)(6) dismissal without
prejudice on the compulsory counterclaim provision of FED. R.
CIV. P. 13(a) and notions of judicial efficiency.3 Generally, the
district court’s decision to decline jurisdiction in favor of an
ongoing proceeding is reviewed for abuse of discretion. Mo-
ses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 19 (1983). Whether the lower court applied the proper
legal standard in exercising that discretion, however, is a
question of law reviewed de novo. Id.; Reiman, 12 F.3d at
223–24; Wash. Metro. Area Transit Auth. (WMATA) v.
Ragonese, 617 F.2d 828, 830 (D.C. Cir. 1980). As the district
court noted, parallel litigation of factually related cases in
separate fora is inefficient. Mem. Op. at 7 (use of Rule 13 to
consolidate factually related cases justified because it is the
resolution that ‘‘will best serve the interests of justice, as well
as judicial economy’’). Indeed, separate parallel proceedings
have long been recognized as a judicial inconvenience. Co-
lumbia Plaza Corp. v. Sec. Nat’l Bank, 525 F.2d 620, 626
(D.C. Cir. 1975) (‘‘Sound judicial administration counsels
against separate proceedings, and the wasteful expenditure of
the first filed, that is, it pre-dated Shaw’s second Superior Court
action.
3 The district court’s rationale would more correctly have been
based on the parallel compulsory counterclaim rule applicable in
Superior Court, D.C. SUPER. CT. CIV. R. 13(a), inasmuch as the
litigation began there. Assuming the district court meant to give
effect to Superior Court Civil Rule 13 (although it cited FED. R. CIV.
P. 13), that Rule is virtually identical in form and substance to the
federal rule and therefore would lead to the same result.
5
energy and money incidental to separate litigation of identical
issues should be avoided.’’) (footnotes omitted). For ‘‘reasons
of wise judicial administration,’’ Colo. River, 424 U.S. at 818,
the district court is given discretion to dismiss or stay a
pending suit in favor of a consolidated action in another forum
but it is a discretion both the Supreme Court and our court
have limited. Moses H. Cone, 460 U.S. at 19 (‘‘[T]o say that
the district court has discretion is not to say that its decision
is unreviewable; such discretion must be exercised under the
relevant standard prescribed by this Court [viz.] Colorado
River’s exceptional-circumstances testTTTT’’); Reiman, 12
F.3d at 224; Columbia Plaza, 525 F.2d at 627–28. In the
case of parallel litigation in two federal district courts, the
‘‘general principle is to avoid duplicative litigation.’’ Colo.
River, 424 U.S. at 817 (citing Kerotest Mfg. Co. v. C–O–Two
Fire Equip. Co., 342 U.S. 180, 183 (1952)). So long as the
parallel cases involve the same subject matter, the district
court should—for judicial economy—resolve both suits in a
single forum. If there is a question whether the two cases
involve the same subject matter, and hence, should be litigat-
ed in a single forum, we use Rule 13(a)4 to answer the
question. Columbia Plaza, 525 F.2d at 626–27 (using Rule
13(a) to conclude that ongoing suit in another district to
recover on certain notes and suit filed in district court here
challenging entire transaction—of which notes were part—
were ‘‘of a single controversy’’). Where the issues arise out
4 FED. R. CIV. P. 13(a) states:
A pleading shall state as a counterclaim any claim which at the
time of serving the pleading the pleader has against any
opposing party, if it arises out of the transaction or occurrence
that is the subject matter of the opposing party’s claim and
does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction. But the
pleader need not state the claim if (1) at the time the action
was commenced the claim was the subject of another pending
action, or (2) the opposing party brought suit upon the claim by
attachment or other process by which the court did not acquire
jurisdiction to render a personal judgment on that claim, and
the pleader is not stating any counterclaim under this Rule 13.
6
of the same ‘‘transaction,’’ as they do here, the district court
next decides which district court should adjudicate the case.
Id. at 626–28. Although some courts make this determination
by using the so-called ‘‘first-to-file’’ rule, e.g., Cadle Co. v.
Whataburger of Alice, Inc., 174 F.3d 599, 606 (5th Cir. 1999);
Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 625
(9th Cir. 1991), we have emphasized that the district court
must balance equitable considerations rather than using a ‘‘a
mechanical ‘rule of thumb.’ ’’ Columbia Plaza, 525 F.2d at
628 (quotations omitted); id. (‘‘It is not enough to undertake
merely the task of inquiring into the applicability of relevant
provisions of the Civil Rules and end the effort at that
point.’’); see also WMATA, 617 F.2d at 830.
The district court determined that the two suits involved
the same subject matter, relying on Pumpelly v. Cook, 106
F.R.D. 238, 239–40 (D.D.C. 1985), where the district court
considered two factually related cases (one brought in our
district court and the other in the Eastern District of Virgi-
nia) and, using its discretion, dismissed the case in favor of
the parallel Virginia litigation. Mem. Op. at 4. Here, howev-
er, the district court determined that Rule 13(a) mandated
the dismissal of Handy’s action. Id. at 4 (Rule 13(a) imposes
two-step inquiry to determine whether case should be dis-
missed in favor of alternative forum). While it is true that
the purpose of Rule 13(a) is to consolidate logically related
claims, it is usually applied in subsequent litigation on res
judicata or estoppel principles. Asset Allocation & Mgmt.
Co. v. W. Employers Ins. Co., 892 F.2d 566, 572–73 (7th Cir.
1989) (rejecting FED. R. CIV. P. 13 as basis for enjoining
federal district court from proceeding with parallel litigation)
(‘‘[T]he usual method by which [Rule 13] is enforced is simply
by the plaintiff’s pleading the judgment as res judicata in the
defendant’s suit.’’) (citing Baker v. Gold Seal Liquors, Inc.,
417 U.S. 467, 469 n.1 (1974); Fagnan v. Great Cent. Ins. Co.,
577 F.2d 418, 420 (7th Cir.), cert. denied, 439 U.S. 1004
(1978)); Kane v. Magna Mixer Co., 71 F.3d 555, 562–63 (6th
Cir. 1995) (adopting waiver or estoppel theory for enforcing
Rule 13(a) compulsory counterclaim requirement in subse-
7
quent litigation), cert. denied, 517 U.S. 1220 (1996); see
generally 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1417 (2d ed. 1990 & Supp.
2002) (explaining that failure to plead compulsory counter-
claim under Rule 13(a) bars later claim on res judicata or
estoppel principles).
The parallel proceedings, as already noted, took place in
district court and in the Superior Court of the District of
Columbia. Although the Superior Court is a congressionally
created court and, thus, ‘‘federal’’ in its creation,5 we have
heretofore reviewed the district court’s discretionary dismiss-
al in favor of parallel proceedings in Superior Court under
the standard applicable to a parallel state court proceeding.
See, e.g., Reiman, 12 F.3d at 223–25; Hoai, 866 F.2d at 1517–
18, 1520–21; see also Mahaffey v. Bechtel Assocs. Prof’l
Corp., 699 F.2d 545, 546 (D.C. Cir. 1983) (per curiam) (revers-
ing district court dismissal in favor of Superior Court because
case was not within ‘‘narrowly circumscribed category in
which, despite a statutory basis for federal jurisdiction, ex-
traordinary factors warrant confining adjudication to a non-
federal forum,’’ endorsing stay of local litigation) (citing Colo.
River, 424 U.S. at 817–19). Thus, it is Colorado River
(followed by us in Reiman and Hoai), and not Columbia
5 District of Columbia Court Reorganization Act of 1970
(DCCRA), Pub. L. No. 91–358, tit. 1, sec. 111, 84 Stat. 473, 475–521
(codified at D.C. CODE § 11–101 et seq.) (creating District of Colum-
bia court system). Nevertheless, both our case law and other
federal statutes treat the D.C. courts like state courts. See, e.g.,
United States v. Dist. of Columbia, 669 F.2d 738, 741 n.4 (D.C. Cir.
1981) (‘‘The [DCCRA] was intended to create a local court system
similar in major respects to court systems in the several states.’’)
(citations omitted); Steorts v. Am. Airlines, Inc., 647 F.2d 194, 196
(D.C. Cir. 1981) (‘‘From [the passage of the DCCRA] onward, the
relationship of the federal to the local judiciary was to be akin to
that historically existent in the states.’’). See also, e.g., 28 U.S.C.
§§ 1257(b) (treating D.C. Court of Appeals as state court for
certiorari), 1451 (treating Superior Court as state court for remov-
al); 2113 (treating D.C. Court of Appeals as state court).
8
Plaza, Pumpelly or any compulsory counterclaim rule as the
district court believed, that applies here.
Because the Supreme Court has consistently reinforced
‘‘the virtually unflagging obligation of the federal courts to
exercise the jurisdiction given them,’’ Colo. River, 424 U.S. at
817, it has sanctioned the ‘‘ ‘[a]bdication of the obligation to
decide cases [as] justified TTT only in the exceptional circum-
stances where the order to the parties to repair to the State
court would clearly serve an important countervailing inter-
est.’ ’’ Moses H. Cone, 460 U.S. at 14 (quoting Colo. River,
424 U.S. at 813); see Quackenbush v. Allstate Ins. Co., 517
U.S. 706, 716 (1996). Countervailing interests identified by
the Supreme Court in abstention doctrines that predate Colo-
rado River include federalism and comity.6 Our court has
questioned whether abstention should apply vis-`-vis the
a
Superior Court to the same extent it does in the federal-state
context.7 Nevertheless, Colorado River recognizes as a coun-
6 The three abstention rules that preceded Colorado River include
the Younger/Pennzoil abstention, see Pennzoil Co. v. Texaco Inc.,
481 U.S. 1, 10–12 (1987) (abstention where there is federal/state
conflict and considerations of comity and federalism dictate federal
court should defer to state proceedings); see also Younger v.
Harris, 401 U.S. 37, 43–45 (1971), the Pullman abstention, Harris
County Comm’rs Ct. v. Moore, 420 U.S. 77, 83 (1975) (abstention to
avoid premature constitutional adjudication where there exists un-
settled question of state law); see also R.R. Comm. of Texas v.
Pullman Co., 312 U.S. 496 (1941); and the Burford abstention,
Colo. River, 424 U.S. at 814–15 (abstention where there exist
‘‘difficult questions of state law bearing on policy problems of
substantial public import whose importance transcends the result in
the case then at bar’’); see also Burford v. Sun Oil Co., 319 U.S.
315 (1943).
7 Silverman v. Barry, 727 F.2d 1121, 1123 n.4 (D.C. Cir. 1984)
(noting ‘‘threshold question of whether the abstention rules, doctri-
nally based on concerns of federalism and comity, apply at all in the
District of Columbia, a creature of Congress’’), cert. denied, 488
U.S. 956 (1988). As we noted in an earlier case,
It may well be that the abstention doctrine is rooted in
federalism interests which—with all their historic underpin-
nings, the tension between federal powers and state sovereign-
9
tervailing interest ‘‘wise judicial administration,’’ Colo. River,
424 U.S. at 817 (internal quotations omitted), an interest as
relevant as between the district court and the Superior Court
as it is between the district court and a state court. More-
over, when the issues raised in the parallel proceedings are
ones of local law, Superior Court judges presumably have as
much expertise as would a state court judge in deciding
questions of state law. This is one reason that we defer to
the local courts’ interpretations of the D.C. Code in the same
manner that other federal courts defer to state court inter-
pretations of state law. See United States v. Edmond, 924
F.2d 261, 264 (D.C. Cir.), cert. denied, 502 U.S. 838 (1991).
The Congress’s treatment of D.C. courts as state courts for
certain purposes, see supra note 5, also counsels in favor of
our making the same analogy.
ty, and the concern for local political autonomy—make the
abstention doctrine inapposite in the unique District. It may
be that, in defining the relationship between the local and
Federal courts within the District, cases articulating the doc-
trine of abstention in the context of a Federal-state relationship
are instructive, but not necessarily controlling. On the other
hand it may be that, in enacting the District of Columbia Court
Reorganization Act of 1970, Congress intended a relationship
between the Federal courts and the local statutory courts to be
patterned in full measure on the relationship between Federal
and state tribunals in other parts of the country.
Sullivan v. Murphy, 478 F.2d 938, 962 n.35 (D.C. Cir.), cert. denied,
414 U.S. 880 (1973); see also Spivey v. Barry, 665 F.2d 1222, 1229
n.16 (D.C. Cir. 1981) (quoting Sullivan, 478 F.2d at 962 n.35). In
fact, we have previously applied only the Pullman doctrine to the
District of Columbia. Justice v. Super. Ct. of D.C., 732 F.2d 949,
950 (D.C. Cir. 1984) (application of Pullman abstention); but see id.
at 953 & n.20 (Robinson, C.J., dissenting). See LaShawn A. v.
Kelly, 990 F.2d 1319, 1322 (D.C. Cir. 1993) (‘‘This Court has never
decided whether the District of Columbia is a state for Younger
abstention purposes.’’), cert. denied, 510 U.S. 1044 (1994); Dist.
Props. Assocs. v. Dist. of Columbia, 743 F.2d 21, 28 n.5 (D.C. Cir.
1984) (Burford abstention ‘‘never applied to’’ District of Columbia).
10
We emphasize, as has the Supreme Court, that the district
court may exercise its discretion to decline jurisdiction for the
purpose of judicial economy only in truly ‘‘exceptional circum-
stances.’’ Moses H. Cone, 460 U.S. at 14; see Colo. River,
424 U.S. at 815, 817–19; Hoai, 866 F.2d at 1518. It may do
so only after weighing a number of factors, including the
inconvenience of the federal forum, the order in which the
courts assumed jurisdiction, the desirability of avoiding piece-
meal litigation, whether federal or state law controls and
whether the state forum will adequately protect the interests
of the parties. Colo. River, 424 U.S. at 817–18; Moses H.
Cone, 460 U.S. at 25–26; Reiman, 12 F.3d at 223; see also
Burns v. Watler, 931 F.2d 140, 146 (1st Cir. 1991) (listing
principal factors courts consider under Colorado River and
Moses H. Cone). In the district court’s analysis, ‘‘[n]o one
factor is necessarily determinative; [but] a carefully consid-
ered judgment taking into account both the obligation to
exercise jurisdiction and the combination of factors counsel-
ling against that exercise is required.’’ Colo. River, 424 U.S.
at 818–19. ‘‘[O]nly truly ‘exceptional circumstances’ will allow
a federal court to stay or dismiss a federal action in favor of a
concurrent action before a state court.’’ Hoai, 866 F.2d at
1518. Indeed, the balance is ‘‘heavily weighted in favor of the
exercise of jurisdiction.’’ Moses H. Cone, 460 U.S. at 16;
Reiman, 12 F.3d at 223–24.
It does not appear that the district court engaged in the
deliberative balancing required by Colorado River and Moses
H. Cone and applied in Reiman, 12 F.3d at 223–24, and Hoai,
866 F.2d at 1518, 1520–21. In fact, the district court did not
discuss Colorado River or related precedent. While its objec-
tive, that is, pursuing the ‘‘ ‘most efficient course,’ ’’ Mem. Op.
at 7 (quoting Pumpelly, 106 F.R.D. at 240), is a relevant
consideration under Colorado River, the district court failed
to weigh the efficiency goal against its primary obligation to
exercise its jurisdiction. Here at least three factors should
be weighed: First, Shaw’s Superior Court suit had been
dismissed by the time the district court acted; second, no
substantial proceedings had occurred in Superior Court, see
Moses H. Cone, 460 U.S. at 21–22 (‘‘priority should not be
11
measured exclusively by which complaint was filed first, but
rather in terms of how much progress has been made in the
two actions’’; fact that ‘‘[i]t was the state-court suit in which
no substantial proceedings TTT had taken place’’ weighed
against stay of federal action); and third, the effect of the
applicable statute of limitations. LaDuke v. Burlington N.
R.R. Co., 879 F.2d 1556, 1561–62 (7th Cir. 1989) (district court
should stay rather than dismiss case if state statute of
limitations is bar); see also Hoai, 866 F.2d at 1517 (‘‘[I]t
might be appropriate to stay rather than dismiss a case if
dismissal is otherwise justifiedTTTT’’) (citations omitted).
III.
For the foregoing reasons, we conclude that the district
court’s dismissal of Handy’s claim constitutes legal error.
Accordingly, the judgment of the district court is reversed
and the case is remanded for further consideration consistent
with this opinion.
So ordered.