the federal district court ruled on the motion to compel arbitration in this case a state court had already resolved that question staying the very same arbitration that apted was asking the district court to compel whatever the federal court may have thought about the state courts resolution of that question the fact that the state court had already resolved it should have led the federal court to stay its hand that conclusion follows both from the colorado river abstention doctrine which instructs federal courts to abstain when exercising jurisdiction would risk creating inconsistent state and federal decisions and also from the in an anti injunction act which precludes federal courts from issuing injunctions to deprive first in time state court decisions of effect but in all advance even if the district court was to correct to exercise jurisdiction here it had no basis to disturb the state courts waiver ruling as its view that apt in was somehow not bound by the conduct of its asinine or was simply wrong if i could start by talking a bit about the colorado river abstention doctrine while this court hasn't squarely confronted the question of what a federal court should do if the state court has already resolved the only question the federal court has asked to consider three courts of appeals have and every one of them has concluded that that's a circumstance in which the federal court should abstain isn't the question the question about lynching between federal policy favoring arbitration and the danger of having a piecemeal it's a balancing analysis in a discretionary analysis but we would submit that it's an extraordinarily heavy thumb on the side of abstention when the state court has actually already resolved the issue you know that in your typical colorado absent a river abstention case there's parallel litigation going on but neither court has gotten to resolution yet and the question is well which court looks like they're going to get there faster but in a context there's only one issue that the federal courts are asked to consider and the state court has just ruled on that same issue the balance ought to way you know heavily and perhaps conclusively at that point in favor of abstention  and that's the conclusion reached by the sixth circuit in the van arsdale case which is a case that is really just identical to this case in its posture it's a case where both a state and a federal court were considering whether to compel arbitration and the state court answered the question first and the fifth sixth circuit sad that the district court was correct to abstain there because at that point you know it's not just a risk of peace millette a geisha are inconsistent judgment or duplicative litigation the issue is done in the state court has completed all of you know it's made the progress it's answered the question so for the federal court to step in and take a second look is inevitably going to create exactly the kind of inconsistency that colorado river abstention size federal courts should try to avoid what's the standard of review only of change so it's a legal question as to whether the quote factors for abstention were satisfied and then at that point it's discretionary we would submit here the district court actually made significant legal errors in analyzing the colorado river abstention factors and i think most significant one is on this third factor the district court said inconsistent judgments are just irrelevant to the analysis because this isn't a case involving physical property and that's simply wrong i mean that is you know that that's obviously squarely contrary to decisions from all these other courts that have found inconsistent judgments to be a tremendously important consideration in cases involving arbitration this court has other cases in which it's treated colorado river abstention as appropriate in the arbitration cont so there's a clear legal error here in the district court saying it's just irrelevant to the analysis that i'm being asked to overrule a preexisting state court ruling i think there's also a legal error in the district court's analysis of the fourth factor this is the question about how much progress has been made the right question here is to ask was how much progress have been made in the state court on the question of whether to compel arbitration or whether it was in the state court the posture was whether to stay arbitration and the progress was complete the question had been completely resolved so and that should have really been controlling as to the fourth factor and on the fourth back to the court also made the same mistake it ultimately made later on in its way of a ruling of saying well whatever has been happening in state court that was the asinine or not the ass any so i can kind of ignore what was going on there so i think here there is there is legal error in the way that the district court approached the analysis and that's why the court ended up getting the analysis wrong and i think that's really clear from the cases from other courts that have dealt with this posture and said the right thing to do in these circumstances is to abstain in the fourth circuit actually did overrule a district court and say that the court erred by not abstaining in a context where the state court had already ruled there was competing motion to vacate an arbitration award and confirm an arbitration award and the fourth circuit said rightfully in our view you know in that circumstance that's an unusual circumstance and it is the extraordinary circumstance that warrants abstenti state federal court is just openly being asked to reconsider and overrule a decision of a state court and i think it is particularly you know that the posture of having this issue arise in a case where there's only one thing the federal courts being asked to do you know it's not like there's a lot going on and there happens to be one piece of that the state court has already considered there's only one issue in the federal court case and it's that the issue that had been resolved just days earlier by the state  and think the abstention analysis leads to the conclusion that the district court erred by exercising jurisdiction i think that anti injunction act itself reinforces that conclusion because the supreme court has made very clear that the anti injunction act cannot be used to come in after the fact and deprive a preexisting state court judgment of its force that was essentially what was going on in the atlantic coastline case that we discussed in our briefing and the court said you know even if you think the state court got an issue a federal law unmistakably wrong that's not a basis to come in after the fact and enter an injunction the remedy for a state court party who thinks the state court has gotten an issue a federal law wrong is appeal with ultimate review sought by the supreme court so the anti injunction act and the fact that the district court didn't have the power to be in joining these state court proceedings and essentially depriving the preexisting state court order of effect reinforces the conclusion that the appropriate thing to do was abstain from exercising jurisdiction over the issue you acknowledge that there would be appropriate cases in which it would be appropriate both to decline to abstain in him but also declined to issue an injunction yeah i think there could be you know i mean i think the abstention doctrine is by its nature a discretionary doctrine that's always going to turn on the facts and circumstances of the case so i'm sure there could be a case where you end up with both of those conclusions but the point being that the pro the general prohibition on injunctions is stronger it it certainly is but you know i think when you when you look at all of these doctrines together and i thought that you know judge him as opinion for the court in the fourth circuit in the case really to me speaks to the point we're making here which is when you take all of these doctrines together the anti injunction act full faith and credit act collateral estoppel you know all of them are getting at the same point which is looked at a question go out of their way to interfere with state court proceedings you can have concurrent proceedings but it's a different ballgame once you get to the point of the state court having already ruled and if the federal court has discretion which we know the court does have discretion to stay its hand that's a perfect case for exercising that discretion so our core submission here is that the district court never should have been considering this case in the first place through both principles of stench and and the anti injunction act but to the extent the court were going to reach the question of waiver we certainly don't think the district court got that right the only ground the district court provided for not a cry for a union for disagreeing with the analysis of the state trial court that actually had overseen the litigation was this idea that apt i'm is not bound by the litigation conduct of cell so even if it were appropriate for the court to have exercised her stiction here which we do not think it was there was no basis to disturb the waiver ruling that the trial court had already reached the court doesn't court had a hearing on september the a the judgment of the state court was issued on september the seventh it was an interlocutory ruling it wasn't it wasn't final and the questions really center upon whether the federal court had jurisdiction and clearly a did and whether or not the court should abstain and that is a very exceptional circumstance and given the strong federal policy here under the federal arbitration act of arbitration i think that the court got it right and exercised her discretion in ordering arbitration judgment and in fact to protect the final judgment that it rendered in other words the district court had issued a judgment compelling arbitration and finding that no waiver of arbitration existed under federal law that is a final judgment that it can then to in order to protect and effectuate that judgment it can enjoin a state court proceeding and in fact what happened in this case is after the district court did in joined the state court the party mccall went back to state court to try to enron around the district court's judgment we had to go back to the district court and ask for clarification because if they were trying to get a decision that was contrary to the federal court order and so at that point she clarified and it was really clear at that point that that it was necessary that she enjoined the state court proceeding from ruling on the merits the distinction in this case is that number one we did not file the federal court action when we were a party to the state court proceeding we had been precluded from joining in the state court we were doing anything and everything we could to protect our right to arbitration as quickly as we could only two weeks after acton bought the business at issue and was us on the right under the imp an agreement did apte him file for arbitration they did not wait they did not sit on their hands they did not prejudice mr mccall at all when it became clear that he was refusing to participate in the arbitration he was filing countless motions to hold absent in content for pursuing arbitration which it was entitle to do under the party's contract after it became clear that he w that allows an aggrieved party who is not been allowed to enforce its right to arbitration to file an action in any united states district court we wan party in the state court proceeding because we'd been refused he wasn't participating in the arbitration that we had filed he was refusing and the aaa was not proceeding with that because he was not participating and had indicated he was seeking a day before this day was ruled upon in the state court and while we were not a party to that proceeding was in order to protect our right to arbitration there was no question that he'd agreed to arbitrate he would invoke the arbitration agreement himself in a separate arbitration against his former employer he wasn't arguing that it was an in for civil he wasn't arguing that there was a vice of consent he wasn't even you mentioned finally i haven't found a final judgment yet there's not one here well there's a final judgment you don't think the federal court district order is final then and they they grant that and order the parties to arbitration there's nothing else to be decided and so therefore that constitutes a final judgment and on that basis once there is a final judgment judgment which which is really critical in my view is the fact that there is no question that the federal court had jurisdiction in this case there is no no obstacle to parallel proceedings in this case both in state and federal court on the issue there had been no race to get caught or collateral stoppel bar the court did obviously and was concerned about conservation of judicial resources under the colorado river doctrine she went through those considerations she she and every one of them were are in favor of the court's decision not to abstain in this case and i'm happy to go through those but it was her decision not to abstain that is that is reviewed for clear abuse of discretion it's our position that she did not abuse her discretion here and i understand the court's concerned about this the day itself but it was really clear based on the procedural history in the fact that we want a party to the state court case and the fact that you know the the party who was was trying to march forward policy and so opposing counsel who focuses on numbers three and four i'd like to focus on those factors number three is the avoidance of peace me and that concern primarily deals with a property issue like they had in colorado river and noses h cones supreme court noted that in said the colorado river doctrine in the context of arbitration and court found that the f a a requires piecemeal litigation when necessary to give effect to an arbitration agreement even said a decision to allow arbiter ability to be decided in federal rather than supreme judge judge at the district court she weighed through the decisions and an overriding her concern was arbitration and the strong federal policy of arbitration and the fact that there was just no bar at that point to hard deciding when we filed the action no decision had been made and literally a day before the decision date the judge had made a decision to join us retroactively in the case and to say that we waived arbitration one thing that's important to note under louisiana law a state court judge cannot decide the question of waiver the question of waiver supposed to be decided by an arbitrator so there's a right to appeal that and and we did have the right to appeal and we were appealing and the problem is is the law i'm sorry what indication is or the state appellate courts in louisiana aren't going to follow the law you're out we're not trying to impugn the credibility or the process in louisiana the issue is that we had the right to file and in federal court there'd been no final decision there was no bar to the district court jurisdiction and show the district court ballots the factors and decided that of the that circuit both support the district court's ruling and in fact in the conseco case both both of those cases the district court issued a order compelling arbitration and in both of those cases the district court in joined the state court proceeding and particularly in the conseco case it's very similar to the facts that we have here the play in that case it was the defendant that was seeking to compel arbitration and after the state court had denied the motion to compel arbitration and was allowing discovery to proceed on whether or not arbitration should be had so that adverse order had been issued in the in the state court nine months had passed since the lawsuit had been filed in four months had passed since the district court issued an adverse order they sent bendish to me that there's a contradiction in what you're saying on the one hand you're saying there's no obstacle to parallel proceedings and the only other hand you're saying that it was it was perfectly acceptable to take the unusual action of enjoining the state court proceedings those two things are intention yes your honor and the reason is and i don't believe it's inconsistent but the reason is is that the federal policy of arbitration allowed the court to compel arbitration and once that finding is made there is the right under the case law for the district court to protect its judgment and at that point it does become a supreme issue and a federal court and in order to protect and effectuate the final judgment decision i believe provides the rule of law here i really do i think that that decision makes it very clear that inconsistent rulings on inconsistent parallel proceedings  something that may have to occur in order for the court to protect the right to arbitrate and in getting back to the conseco decision where somebody the party had waited nine months after the initiation the state court lawsuit and four months after interest of an adverse order the defendant went to federal court and asked the federal court to compel arbitration  again just like us the only issue before the federal court was whether or not to compel arbitration and in the this the docket said even though a party could find adequate protection in state court does not thereby deprive that party of its right to the federal forum and who may still pursue the action there says there is no ban on parallel proceedings and that is  to the colorado river case and most is a cone which we believe both provide the rule of law here there is no there is you know while i think the point is there are two different things was it appropriate to order arbitration and the second question is having done in the fifth circuit both a those cases do provide for the enjoining of a state court action after a federal court has ruled that it is compelling arbitration under the immediately if the district court had not enjoying the state court proceeding the judgment would have meant nothing and that is because one week after the  federal court issued this decision mr mccall went back to state court and asked for hearings on the merits of the campaign and the defense says to try to say that he was not obligated and had not breached his non compete which is the ultimate issue in the arbitration that the judge had compelled so a finding on that merit decision would have would have agreed to it adam had had had sought it quickly without any question of waiver and and compelled the parties to arbitrate and to say i think your honor in answering your question i do think it is it is would be meaningless in this case if the district court had issued the order compelling arbitration but not stayed the the state court proceeding the problem was is that they were marching forward against shaw who was not a no longer had an interest in the underlying case as if we they were atom and so they were going to try to get a decision that would impact the merits and then use it as a race to the kata in the arbitration so i do think that that's why the the district court was very troubled by that the dish of course was troubled by the procedure posture and the fact that after him had been kept out of the case but had the mr mccall had continued to advance the case against a party who had no interest and so the remedy that we had was federal court under the f a a and she and balancing all of those issues found that it was appropriate for her not to abstain thank you your honor if i could start one point i just want to make sure is very clear you know adams repeatedly talks about not being a party to the state litigation by the time the federal court took up the issue of arbitration act and had been joined to that litigation there's no question that apt in was a party to the state court litigation at that point the order that the state court had entered before the district court acted specifically said that the a retracement apt him had initiated was state the exact same arbitration that apted was asking the district court to compel so so you know that they were fairly a party to the order they were fully a party to the proceeding by the time the federal court took it up with it which is what should matter for purposes of the abstention and anti injunction analysis and conseco cases those are both cases where the federal court ruled first we're not here to dispute the proposition that if you have parallel on whether to compel arbitration and the federal court answers that question first then the federal court can enter an injunction this court has held that that's appropriate this court has never held that after a state court says no i won't compile arbitration or no i'm going to stay arbitration that it's an appropriate exercise of the federal courts power to come in over or that determination and then enter enter an injunction the whole point of which is to deprive the first in time state court decision a fact that is not what either of those cases involve the only cases that involve that dynamic are the cases from the fourth sixth and tenth circuit that we discussed in our briefing and in each of those cases the court said you know never got to injunction and because the court said you should be abstaining what are you doing entering orders you know why why would a federal district court enter an order that is directly contrary to one that the state court his arm ordered adam points out that the decision by the state court here was interlocutory it was in all three of those cases it was in atlantic coastline the supreme court's anti injunction act case we wouldn't be talking about abstention if there was a final judgment in every abstention case there's not preclusion or a jurisdictional bar otherwise you would have a problem or whatever it is so by definition when you're in the context of abstention sure the federal court has jurisdiction the question under the abstention analysis is are there reasons that the district court should stay its hand even though it could act and the question under the anti injunction act is you know even if you and a decision is there power or has congress said no you cannot enjoin state court proceedings under these circumstances and i think the atlanta coastline make case that it's crystal clear that this is not the kind of case that falls within the  the power of federal court to protect those and finally on on the point about moses h cone i'd invite the court to go back and take a look at what the supreme court was saying there about piecemeal litigation the court was making a very different point which was that sometimes it's inherent in the arbitration agreement itself that there will be peace in the resolution that was a case where there were multiple parties to the dispute and only some of them had agreed to arbitrate and so the quote was simply saying look if by virtue of the agreement itself there's going to be peaceful resolution that's not the kind of piecemeal resolution with which that is an issue that we're talking about in the abstention contacts that's not what we're talking about in this case either our point isn't about you know how the particular arbitration agreement would have allowed this dispute to be resolved at the end of the day when the actual dispute is resolved i point is this was creating peace millett a geisha and an injunction on the exact issue of arbiter ability and whether there should be whether that should be compelled or stayed and i suppose in one final point to make you know apt a makes much of the fact that we're not challenging the legitimacy of the arbitration agreement that's because we're raising a waiver argument which is a well recognized ground in both start to forget federal and state court for concluding that arbitration should not go forward so certainly the fact that we're raising a waiver argument instead of an argument that the agreement itself is not valid is no reason that the federal courts should be overruling the determination that the state court made that we ask you to reverse and