problematic under the circumstances as they exist in time but we know now that it can't stand because the state supreme court has determined that the partial summary judgment in this case was not final and was not subject to certification f the c or abuse that you have to put on blinders and ignore what has happened in state court is not correct and it doesn't comport with common sense either you are required to ignore reality and you aren't required to give the partial summary judgment in federal court more weight than it has today in state court which is that it's not final when this court is faced with the question of rate you cut out a decision of another court is a proper subject for judicial notice that's true whether that decision was handed until after the lawsuits filed well your honor in federal court i think if we're talking about entirely federal court actions i think that would be the case but in fact missouri president is that in a situation just like this where one party is plain in one case the other party's plaintiff in the other case if it is not raised immediately that there is a claim splitting going on it is way the joel bianco case held that several years ago in this race for the court in this court held in the clips case that in this scenario state law of race to cut it clean claim splitting control it is a little counterintuitive i don't think it would play out that way if both actions were in federal court here necessarily right but because missouri principles apply that is the entered a final judgment confirming arbitration work between the same two parties this court took judicial notice of that development and affirm on the basis of race you kind of are getting the colorado river so if we were to find that  the city has cited a few cases that suggest that a non final decision can be inclusive in some respects those need to be looked at closely for example a criminal case is a good example of that around that effect it's not possible to file a new petition in missouri state court against that same defendant because it's not such a person jurisdiction so the remedy is that the plaintiff was permitted to appeal that dismissal without prejudice even though an appeal would not normally  some cases they haven't cited any case that said we may not appeal and we're past that sort of catch twenty two is not permissible under the cases that they cite or any other case that we're aware of  the supreme court acted the cities pivoted its arguments a little bit to talk about what i was for to see interlocutory claim splitting a claim splitting when when i think claims splitting i think of just a variety of race judicata you have a final judgement and then anything else that should have been part of that same cla done but there are a few cases in the story where the courts have dismissed a pending claim merely because it's similar claim was pending in another it's difficult to rely on those here for a couple of or cannot be decided in the state court i don't think there is your soul sold in that sense everything the central committee could be decided state now is just a question where there should i think that's great i think i think we have parallel litigation as that term is that very very clear federal claims must always be a major consideration weighing against surrender of jurisdiction to a state court or second interpretation of the colorado river that permits the state or local actor to drag federal works when a city official refuses to grant a permit to an on popular speaker or or a county sheriff's deputy roughs up a suspect during a rest using it and using excessive force there's an opportunity there for the state or local official to file in state court asking for a declaration that i didn't do anything wrong i didn't violate anybody's rights not mentioning any federal rights i didn't violate anybody's rights there is effectively then a compulsory counter by injured individual you'd least taking a serious risk if you don't counterclaims state court that that bar and then when the federal suit comes along and surely we hear about colorado stanchions and the federal case gets dismissed and so how does that really go to our standard to review it seems to me that what if i understand correctly and tell me from wrong we review the colorado river abstention decision as whether it was an abuse of discretion so now it seems to me those parade of horribles that you've wasted in your brief are issues that we would we would maybe say well in this situation not an abuse of discretion not to abstain that's why we called discretion but you certainly can make those organs i think this is perhaps different from your garden variety of use of discretion review because the governing standard is so heavily weighted in favor of federal jurisdiction you have doesn't this case the have to bring up the specter of piecemeal litigation if it's not all kept in one corner you know i don't think this really is a piecemeal litigation case  examples of piecemeal little piecemeal litigation cases think of colorado river itself you have a small the speed federal court over water rights involving a few parties in state court you have a thousand or so there's piecemeal litigation there because a small piece of the overall could be resolved in one court and you're still going to have to fight about the other as judge the judgment is not the case here with the state claims i don't think it i don't think it is the case you know i think there is a very high probability that whichever of these courts reaches a tru final judgment that preclusion law will take care of the claims in the other cases so it's not piecemeal litigation in the sense that that term is normally used in the colorado cases it is parallel  opportunity to get to judgment in federal court before it's state or local official gets to judgment in a local court and bars everything but there's no guarantee that the federal plaintiff has to judgment first but there's at least a fighting chance that if i have a federal claim i can go to a federal court even though the defendant is in state court trying to get a judge but i think judge will or may have answered the question but just for clarification of clarity on my part is there any remedy you seek that you couldn't get in the state court if i don't believe there's any remedy that we're seeking that's not available there certainly there's nothing that's something to be exclusive federal jurisdiction  how many years they've been fighting while the litigation began in state court in two thousand and twelve and there were it as i understand some out of court disagreements before that i don't have an exact date about when the disagreements f but the litigation in state court began in two thousand and twelve the litigation federal court did not begin and immediately i used the race of the courthouse analogy a moment ago this isn't it actually the race to the courthouse specter didn't go to federal court and still until the city began to use its perm judgment but that's that's permissible that's part of part and parcel of our dual court system that absent extraordinary circuit circumstances absent a clear as the clear is the justification for relinquishing federal jurisdiction both cases iran at this point because the parties want to the missouri supreme court that took a bit of time there are there are summary judgment proceedings pending in state court right now to be heard near the end of the year and possibly subject to continuance is of course in the ordinary course in this case the parties were approaching those of discovery and trial when the district court dismissed and abstain so it would go back to a judge with this court i think it's fair to say that  the horses are that connector within a month or two of what are these parties and such large is it somewhat of the company's obligations to the city is completely out of the question i don't i know i don't know that i can say that it's while you are that's correct for younger analysis purposes one make sure i understand what the sort of the knot of a dispute is a biology is as i understand it it's the city charges spectra a fee based or want to charge spectra a fee to attach your lines to their telephone poles or utility bill and also and also underground or otherwise in the right of way which right do you dispute that you have is see seems to me are level three communications cases you the city can charge a reasonable fee there there are a couple of issues there one is a state law issue about whether it's permissible under state law and how it's calculated last clearly state that has clearly governed by state law and then the part disputed whether various state laws are constitutional under the state constitution but as a matter of federal law you're correct your honor there there is the positive it wouldn't violate section two fifty three to charge a reasonable fee for the use of the right way the question is when you get to the point of using that tool to try and force capitulation litigation or for the more extreme case when you demand that the telephone company take its wires down from all signal holes i thought they said  as a reservation of rights we disagreed with that characterization there was a there was a early on there was a discussion about whether this could be done under reservation rights i think it's fair to say that if it had been a true full reservation of rights that that might have been possible well let me ask the reverse what i asked mr walsh could you could is there any reason why all of these claims couldn't be litigated in federal court they could all be litigated in the federal court so that doesn't have to be a swinging claims it could all they could all be litigate in one form or the other and absolutely judge except that of course here the first filed court was the state court and both human judge smith had the question of the the law it is really clear that there is to fifty three c which i think everybody concedes they do have a right to reacquaint in that they just want a declaration that what you're doing is wrong don't do it anymore that's correct but but we're not in one court we're in to and so even though we started out in state court and the state court was undoubtedly competent to hear and resolve all the claims between the parties spectra opted to expand the litigation to federal court so as a result the very same issues were now before two cores and as a result the cost of the litigation for the cameron taxpayers skyrocketed and also as a result the potential for inconsistent big and small would pervade the case and as the court know those are big and small decisions it's not always just a dispositive motion but is the case of progress in two different forms there are lots of little every day that run the risk of being inconsistent things are discovery what's what's discoverable how is it going to be discoverable what about privilege claims how are you going to resolve those privilege claims you have to produce an index to preserve your claims all those things run a risk of rubbing up against each other in being inconsistent or did either court judge you have to have you have to deal with the case that is before you and so i think it would be difficult in fact i think both judges found it difficult to say well judge hang on this got considered in the other court split their claims in play the federal court against the state court as specter has done here to hedge their positions and if there's a disparity resources like there is here the will you will but again it's going to split their coins to escalate the cost of litigation to oppress their poor opponents so of course claim splitting is prohibited and there is independent of the state court judgment and race  simultaneous claims even before a judgment in both courts for obvious reasons you have exactly the situation that we're faced here where we're faced with multiple lawsuits on the very same issue  telecommunications actually congress intended for two fifty three to confer enforceable prior rights and of course the law after gonzaga in two thousand and two is clear no court to examine no party shall be subject to discrimination here two fifty three a talks about some constraints on what state and local governments can do and so they have snyder the the individually focused right creating language that the supreme court demanded in guns aga and even we're in rancho palos for days the structure of two fifty three is also inconsistent with that the fifth circuit in the tenth circuit have both looked at the structure of the statute and decided just that i do want to say something about the legislative history that spect legislative history for primarily because it's so it's uncertain legislators and even the executive also just often insert their personal views and legislative history or bill corporation versus me dance micro designs there was a claim there under a federal statute after a european trust point as to whether knight advanced micro designs could resort to discovery in this country to resolve it when justice scalia looked at the statute in concurred in the result but said is today's opinion shows the court's disposition is required by the text of the statute  he thought it was improper to really look to the a senate committee report which he said as far as we know now even the full committee much less the full senate much much less the house and much much less the claim they're going to go back to state court and i'm certain they will try and convince the state court to change its mind about the partial summary judgment i don't think that's going to be successful but then one of two things will happen one they'll leave the court will change its mind about the summary judgment and the litigation is going to progress through state court or to the court won't change its mind about that partial summary judgment the rest of the case  litigated and decided and then specter will have its appellate rights in state court so it will certainly have it stay in court but just one court not to that at the core it's really up almost like a contract dispute between the city end and add specter as to what's old under it's an ordinance but it's you know you just you know it's what number do you use the apply the percentage for the  or clear that when you have a state actor or a local government trying to enforce its laws through a state court that that is a basis for mandatory abstention under younger and so it doesn't have to be just criminal a civil enforcement proceeding is is sufficient for younger abstention and i think that is the difference between a private contract suit and an a form and a branch of government laws i would like to talk unless the the panel has any more questions about i'd like to move to my my cross appeal if i may there was no basis claim is dismissed with prejudice you don't have to replay it there is no basis in the federal rules for pleading with an asterisk saying that well this is just to preserve our rights on appeal it if you put a claim in a complaint everyone's got to deal with it as spectral well knows we you know we can't just leave it there we have to we have to engage each count in a complaint so we have to move to this mess and if we had been successful presumably specter would have conducted discovery on those issues and i don't know how the court would have dealt with it but it was camer to have to deal with that and cause the court to have to deal with it and there was absolutely no basis under the current law to think that you had to reassert a claim that he had been dismiss to preserve your appellate rights that the cases that spector cites are are really much different none of those cases deal the claim that have been dealt with on merits hasn't paid its taxes that are due under under cameron's ordinances and lots of other issues cities the state court determined the spectra had committed a willful violation of those taxing burdens are they paying the amount that they claim is not in dispute they are paying some amount under protest and the adequacy of those payments is a matter of dispute within cameron on for the right away issues and i don't think it foresaw the state court judge finding that those are the cameras right away code was valid and legal enforceable under state law we'll see how we do  cases reaches a final judgment wholly within the missouri system there are cases where courts have dismissed one claim merely because another one is pending course those cases can be consolidated petitions one case can be amended to pick whatever missing well but but just putting aside race could judicata in just a sort of intuitive way just sad unsettling to have the state court say you don't have a nine hundred eighty three action under to fifty three days and then the federal court being expected to say oh yes you do then what do you do race to the appellate court so that one's really well in in the most complicated of situations i suppose that that  be the answer when asked and that's not the most complicated as this situation that the state court said no to fifty three action and you're saying to the federal court oh yes there is we want to rule that there is a two fifty well i should clarify that the state court said there's no two fifty three action after if there are two cases in state court claims putting whether both still pending may be a viable doctrine if there are two cases in federal court claims putting whether both he may be a viable doc and those can be consolidated as well but we see no authority cited that one claim in state court one claim in federal opinion page tonight you will see the supreme court referring to the congressional record as it tries to figure out what the purpose of for i should clarify it was to a subsequent been acted added to for by after the initial statute was an act but the supreme court