[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 03-16378 ELEVENTH CIRCUIT
Non-Argument Calendar June 14, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00350-CV-2-BH
ROBERT EVANS MOORER,
Plaintiff-Appellant,
versus
DEMOPOLIS WATERWORKS AND SEWER BOARD,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 14, 2004)
Before BLACK, BARKETT and GODBOLD, Circuit Judges.
PER CURIAM:
This case arises because the district court abstained from exercising its
jurisdiction in favor of a concurrent state court proceeding and dismissed the case.
On April 21, 2003, the State of Alabama filed an action in the Circuit Court of
Marengo County alleging that the appellee has violated and continues to violate the
Alabama Water Pollution Control Act, A LA. C ODE §22-22-1 (1975). State of
Alabama, ex rel. Bill Pryor v. Demopolis Water Works and Sewer Board, No. CV -
2003-79. On May 28, 2003, Moorer filed a motion to intervene in the Marengo
County state court action. Subsequently, on June 2, 2003, Moorer filed the present
action against the appellee alleging that appellee has violated and continues to
violate both federal and state Water Pollution Control Acts, 33 U.S.C. §1251-1387
(2001) and A LA . C ODE. §22-22-1 to 14 (1975). Moorer’s motion to intervene in
the state court action was granted on August 11, 2003. Appellee filed a motion to
dismiss or in the alternative to stay Moorer’s suit filed in federal court arguing that
the federal court action unnecessarily duplicated the pending Marengo County
action. The district court granted appellee’s motion and dismissed the complaint
without prejudice. Moorer now appeals. We affirm the judgment of the district
court with modification.
The only issue before this court is whether the “exceptional circumstances
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test” enunciated in Colorado River Water Conservation District V. U.S., 424 U.S.
800 (1976) was applicable in this case, and if so, whether the district court should
have stayed the action rather than dismiss it. We review under an abuse of
discretion standard the district court’s dismissal on Colorado River abstention
grounds. Transouth Financial Corp. v. Bell, 149 F.3d 1292, 1294 (11th Cir. 1998).
“When employing an abuse of discretion standard, ‘we must affirm unless we at
least determine that the district court has made a clear error of judgment, or has
applied an incorrect legal standard.’” Alexander v. Fulton County, Ga., 207 F.3d
1303, 1326-27 (11th Cir. 2000) (quoting SunAmerica Corp. v. Sun Life Assurance
Co. of Canada, 77 F.3d 1325, 1333 (11th Cir. 1996)). We will not reverse unless
“the error [will] result in a substantial injustice to the Defendants.” Id.
Abstention and Water Pollution Control Act
The Colorado River doctrine of “exceptional circumstances” authorizes a
federal “district court to dismiss or stay an action when there is an ongoing parallel
action in state court.” LaDuke v. Burlington Northern Railroad Co., 879 F.2d
1556, 1558 (7th Cir. 1989). The principles of this doctrine “rest on considerations
of ‘[w]ise judical 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
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(1952). Although federal courts have a “virtually unflagging obligation . . . to
exercise the jurisdiction given them” they may defer to a parallel state proceeding
under “limited” and “exceptional” circumstances. Id at 817-818. Among the
factors the district court should consider in determining whether such exceptional
circumstances exist are:
(1) the order in which the courts assumed jurisdiction over property; (2) the
relative inconvenience of the fora; (3) the order in which jurisdiction was
obtained and the relative progress of the two actions; (4) the desire to avoid
piecemeal litigation; (5) whether federal law provides the rule of decision;
and (6) whether the state court will adequately protect the rights of all
parties.
Transouth Financial, 149 F.3d at 1294-5 (summarizing Moses H. Cone Memorial
Hospital v. Mercury Constr. Co., 460 U.S. 1, 16-26 (1983). The aim of these
factors do not “rest on a mechanical checklist, but on a careful balancing of the
important factors as they apply in a given case, with the balance heavily weighted
in favor of exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16. The weight
of each factor varies on a case-by-case basis, pending on the particularities of that
case. Id. One factor alone can be the sole motivating reason for the abstention. Id
(noting that the desire to avoid piecemeal adjudication was the driving force behind
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the dismissal in Colorado River).
In this case the district court diligently analyzed the above factors, correctly
noting that there was a distinct danger of piecemeal litigation in this case if both
the state and federal actions were allowed to proceed. The district court properly
noted that although Moorer aptly pointed to subtle differences between his federal
claim and that of the complaint filed by the State of Alabama in Marengo County
state court regarding compliance with permit rules, Moorer as a intervening party
in the Marengo County state court action had the right to present his compliance
permit arguments in the state court. Moreover, as an intervening party, Moorer
had the ability to ensure diligent prosecution in the Marengo County State court
action and thus the district court had no basis to believe that Moorer’s rights would
not be protected.
The above analysis does not change because the action involved state and
federal clean water acts. Unlike the appellant in Brewer v. City of Bristol, 577
F.Supp. 519, (E.D. Tenn. 1983), Moorer had sought and had been granted the right
to intervene in the state court action. Therefore, as the district court correctly
noted, Moorer may raise theories of liability in the Marengo County state court
action as well as ensure that a diligent prosecution is conducted.
Stay or Dismiss without Prejudice
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Prior to Colardo River, we had held that a district court could abstain from
exercising its jurisdiction over an equity suit in which the same parties and the
same issues were being litigated concurrently in both federal and state court. PPG
Indus., Inc. v. Continental Oil Co., 478 F.2d 674, 681-2 (5th Cir. 1973).1 We
found that a district court should stay the action pending the adjudication of the
state court action for, although “a stay pending final determination of a state suit
between the same parties and the same issues will probably have the same practical
effect as a dismissal would have . . . we do not believe the action should be
dismissed.” Id at 682. We noted that a stay is preferable because “[c]onceivably
state action could be quite unreasonably delayed or other factual situations not now
anticipated might develop in the state litigation which would cause the district
court on appropriate petition to desire to reactivate and to go forward with the
pending but presently stayed action.” Id (quoting Aetna State Bank v. Altheimer,
430 F.2d 750, 756 (7th Cir. 1970). Post Colarado River, this circuit has not had the
occasion to address the issue of whether the preferred course of action is still to
stay rather than dismiss without prejudice a case in which the district court has
abstained from exercising its jurisdiction pursuant to the doctrine of Colorado
River. We now join our sister circuits in holding that “a stay, not a dismissal, is the
1
Decisions rendered by the United States Court of Appeals for the Fifth Circuit prior to September 30, 1981 shall be
binding as precedent on the Eleventh Circuit. Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981).
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proper procedural mechanism for a district court to employ when deferring to a
parallel state-court proceeding under the Colorado River doctrine. LaDuke, 879
F.2d at 1561-2; Mahaffey, et al. v. Bechtel Assoc. Prof’l Corp. D.C., et al., 699
F.3d 545, 546-7 (D.C. Cir. 1983) (holding that a stay “effectively conserve[s] court
resources while avoiding premature rejection of the litigant’s access, as specified
by statute, to a federal forum”). A stay is preferred because it lessens the concerns
associated with statute of limitations, brings “the federal action back before the
same federal judge that had previously considered the case . . . [and] [i]t protects
the rights of all the parties without imposing any additional costs or burdens on the
district court.” LaDuke, 879 F.2d at 1562. The district court erred in dismissing
this action..
We hold that the district court shall convert its order of dismissal without
prejudice into a stay, and AFFIRM the judgment as modified.
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