IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30772

APTIM CORPORATION,

Plaintiff−Appellee,

versus

DORSEY RON MCCALL, 

Defendant−Appellant.

Appeals from the United States District Court 

for the Eastern District of Louisiana

Before REAVLEY, SMITH, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The Shaw Group (“Shaw”) sued Dorsey McCall, its former employee, in 

state court for allegedly violating noncompete and nonsolicitation agreements.

After being acquired in part by Aptim Corporation (“Aptim”), Shaw sought to 

dismiss its state action while Aptim pursued a federal-court action to enforce 

the arbitration clause in McCall’s employment contract. The federal district 

court declined to abstain, it compelled arbitration, and it stayed the state-court 

United States Court of Appeals

Fifth Circuit

FILED

April 17, 2018

Lyle W. Cayce

Clerk

 Case: 17-30772 Document: 00514432353 Page: 1 Date Filed: 04/17/2018
No. 17-30772

2

proceeding. We find no error and affirm.

I.

McCall resigned from Shaw in January 2016. He then began working 

for an affiliate of Bernhard Capital Partners Management LP and later became 

the CEO of Allied Power Management, LLC (“Allied”), a direct competitor of 

Shaw’s. Believing that McCall had violated the noncompete and nonsolicitation agreements in his employment contract, Shaw sued McCall in state court.1 

Those agreements state that arbitration will occur in New Orleans and that 

the employer may file for injunctive relief from a judicial authority without 

waiving the right to arbitrate the underlying dispute.

On June 15, 2017, Shaw sued in state court, requesting injunctive relief 

and damages. The state court issued a Joint Protective Order.2 On June 30, 

Aptim acquired Shaw’s capital services segment, which included the rights to 

McCall’s employment agreement. Aptim and Shaw moved to substitute Aptim 

in the state-court action on July 6, which McCall opposed on July 10. On 

July 17, Aptim and Shaw withdrew their motion for substitution. That same 

day, Aptim filed a demand for arbitration with the American Arbitration Association, and Shaw filed both an amended petition, deleting its request for 

damages, and a motion to dismiss the amended petition with prejudice. McCall 

filed an opposition to the motion for voluntary dismissal, an answer to Shaw’s 

complaint, a reconventional demand, a petition for declaratory judgment, a 

motion to consolidate, and a motion for constructive contempt against Aptim 

 

1 Allied intervened in the action as a joint party with McCall. For simplicity, the 

opinion refers to their joint motions and actions using McCall’s name.

2 The order prohibited McCall from violating his employment contract, ordered Shaw 

not to threaten legal or other action against Allied employees, and ordered expedited discovery. It specified that nothing in the order should be deemed a waiver of any rights or defenses 

of either party.

 Case: 17-30772 Document: 00514432353 Page: 2 Date Filed: 04/17/2018
No. 17-30772

3

for demanding arbitration in violation of the protective order, though Aptim 

was not then a party to the case.

On August 21, Aptim, without Shaw, sued in federal court to compel 

arbitration and to stay the state-court proceeding, seeking arbitration on the 

same contractual violations that Shaw had raised in state court: that McCall

had breached his noncompete agreement by working for Allied and his nonsolicitation agreement by poaching fifteen of Shaw’s senior employees. Before 

the federal court ruled, the state court on September 1 issued an order joining 

Aptim in the state-court action effective June 30 (the day the motion for substitution had been originally filed); finding that Aptim and Shaw had waived 

their arbitration rights by initiating the state-court action; and granting 

McCall’s motion to stay arbitration.

On September 19, the federal district court ordered Aptim and McCall to 

arbitrate their dispute and stayed the state-court action as between Aptim and 

McCall. On September 25, the court clarified its order to state that all persons 

and entities in privity with Aptim and McCall must submit to arbitration, thus 

staying the state-court litigation by McCall against Shaw. On appeal, McCall 

asserts the federal district court erred by declining to abstain under Colorado 

River Water Conservation District v. United States, 424 U.S. 816, 817 (1976),

erred by compelling the parties to arbitrate, and violated the Anti-Injunction 

Act by enjoining the state-court proceedings.

II.

A Colorado River abstention analysis begins with a heavy thumb on the 

scale in favor of exercising federal jurisdiction, and that presumption is overcome only by “exceptional circumstances.” Stewart v. W. Heritage Ins. Co., 

438 F.3d 488, 491 (5th Cir. 2006). Federal courts have a “virtually unflagging 

obligation . . . to exercise the jurisdiction given them.” Colo. River, 424 U.S.

 Case: 17-30772 Document: 00514432353 Page: 3 Date Filed: 04/17/2018
No. 17-30772

4

at 817. Even so, a court may choose to abstain, awaiting the conclusion of 

state-court proceedings in a parallel case, based on principles of “[w]ise judicial 

administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.” Id. (quoting Kerotest Mfg. Co. v. C-O-Two 

Fire Equip. Co., 342 U.S. 180, 183 (1952)). 

Whether to abstain is not a question answered by the recitation of “a 

mechanical checklist” but instead rests “on a careful balancing of the important 

factors as they apply in a given case, with the balance heavily weighted in favor 

of the exercise of jurisdiction.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. 

Corp., 460 U.S. 1, 16 (1983). To determine whether exceptional circumstances 

are present, the court considers the following six 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.

Stewart, 438 F.3d at 491. We review for abuse of discretion the district court’s 

decision whether to abstain, and we exercise de novo review to the extent that 

the decision turns on an interpretation of law. Black Sea Inv., Ltd. v. United 

Heritage Corp., 204 F.3d 647, 649–50 (5th Cir. 2000).

McCall asserts that there are exceptional circumstances because the 

state court issued a ruling on the question of arbitrability before the federal 

court ruled. This case, however, is subject to the same discretionary balancing 

of the Colorado River factors as any other abstention inquiry. 

A.

The first factor weighs against abstention. Because this is an in personam action, there is no res. An absence of property is not “a merely neutral 

 Case: 17-30772 Document: 00514432353 Page: 4 Date Filed: 04/17/2018
No. 17-30772

5

item, of no weight in the scales.”3 Instead, it “supports exercising federal 

jurisdiction.”4

B.

The second factor is neutral. The relative convenience of the forums “primarily involves the physical proximity of the federal forum to the evidence and 

witnesses.” Evanston, 844 F.2d at 1191. The question requires finding not 

that the state court is a “better” or “more convenient” forum but that the 

“inconvenience of the federal forum is so great” as to warrant abstention. Id.

at 1192. “When courts are in the same geographic location, the inconvenience 

factor weighs against abstention.” Stewart, 438 F.3d at 492. The state courthouse is in Baton Rouge, and the federal district court is in New Orleans. Both 

Allied and Shaw are headquartered in Baton Rouge, and McCall resides closer 

to Baton Rouge than to New Orleans. The 80-mile distance does not compare 

to the 300-mile distance in Colorado River.5 The two courthouses are within 

 

3 Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185, 1191 (5th Cir. 1988); see also Saucier 

v. Aviva Life & Annuity Co., 701 F.3d 458, 463 (5th Cir. 2012).

4 Stewart, 438 F.3d at 492. McCall points out that this circuit has inconsistently 

treated the first factor as either neutral or weighing against abstention. McCall cites Signad, 

Inc. v. City of Sugar Land, 753 F.2d 1338, 1340 (5th Cir. 1985), as authority that the rule of 

orderliness constrains the court to consider the absence of property as neutral. Signad does 

not address all six Colorado River factors but instead lists only the three that it considers 

relevant to in personam actions. Id.

Evanston controls. The Colorado River factors as presently defined were not distilled 

until the Supreme Court added the final two in Moses H. Cone in 1983. Although Signad

post-dates Moses H. Cone, it and other pre-Evanston abstention opinions do not systematically analyze each factor independently. Evanston is the first Fifth Circuit case to grapple 

with the role of the first factor and to lay out the full six factors in their present form. The 

Evanston court, 844 F.2d at 1191, held that Moses H. Cone found the “absence of this first 

Colorado River factor to speak against abstention.” Because this is an interpretation of a 

Supreme Court precedent that refines the Colorado River factors, which Signad did not 

consider, Evanston controls. This is borne out in our circuit’s caselaw.

5 In African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 800 (5th Cir. 2014), 

we did find that a half-hour distance weighed slightly in favor of abstention. That case, however, involved a property that was closer to the state courthouse. The presence of property 

 Case: 17-30772 Document: 00514432353 Page: 5 Date Filed: 04/17/2018
No. 17-30772

6

the same geographic location for all practical purposes. Because nothing in 

this case demonstrates that the inconvenience of the federal forum is “so 

great,” Evanston, 844 F.2d at 1191, this factor is neutral at best.

C.

The third factor weighs against abstention. Given the strong federal 

policy favoring arbitration, the concern about piecemeal litigation “is not

applicable in the FAA context.” Safety Nat’l Cas. Corp. v. Bristol-Myers Squibb 

Co., 214 F.3d 562, 565 (5th Cir. 2000). Piecemeal litigation is a different concern from the worry of obtaining conflicting judgments in parallel actions

involving the same parties and the same questions. The remedy for conflicting 

judgments is not abstention, but the application of res judicata. Kelly Inv., Inc. 

v. Cont’l Common Corp., 315 F.3d 494, 498 (5th Cir. 2002).

D.

The fourth factor, regarding the order in which jurisdiction was obtained, 

slightly favors abstention. The inquiry centers more on the progress made in 

the relative forums, not on the date of initial filing. Moses H. Cone, 460 U.S. 

at 21. If the progress made is just “jurisdictional posturing” with little progress 

on the merits, the factor “weighs against abstention.” Black Sea Inv., 204 F.3d 

at 651. This factor is difficult to weigh, as the parties characterize the timeline 

and progress quite differently. And it is unusual in our abstention jurisprudence to confront a case in which the same side filed both the state and federal 

actions, though Aptim was not a party to the state suit when it filed in federal 

court.

 

weighed heavily in the court’s analysis of the factors. Other cases use the general language 

of “geographic location,” which is satisfied here. Even if the 80-mile distance weighed in favor 

of abstention, it would not alter the ultimate balance of the factors in this case.

 Case: 17-30772 Document: 00514432353 Page: 6 Date Filed: 04/17/2018
No. 17-30772

7

Numerous motions were filed in state court before the federal case began. 

The state and federal action were filed on June 15 and August 21, respectively. 

Aptim was not joined in the state action until September 1, which was more 

than a week after it filed its federal action and was several weeks after it and 

Shaw had withdrawn the motion to substitute and Shaw had attempted to 

dismiss the suit entirely on July 17. 

Despite the number of filings, the state action was not necessarily progressing. When the federal suit was filed at the end of August, the state court 

had not ruled on any of Shaw’s July 17 motions, none of which concerned the 

merits. Shaw sought to dismiss before any rulings had been issued and only 

one month after filing. In fact, Shaw even sought and was granted mandamus 

from the state appellate court ordering the state trial court to rule on Shaw’s 

motion to dismiss voluntarily by August 23. The state court denied the voluntary dismissal on August 24. It was not until September 1 that the state court 

made any progress. 

Before the federal court compelled arbitration, the state court issued an 

order staying the arbitration Aptim had initiated. Thus, this factor favors arbitration, but only slightly, considering the complete set of circumstances. Aptim

sought arbitration just weeks after acquiring Shaw, the state court had made 

minimal progress when the district court action was filed, and Aptim was a 

nonparty in the state-court proceeding until the state court simultaneously 

issued the stay and joined it in the suit.

McCall insists that the fact that the state trial court ruled on whether 

arbitration should proceed, and did so before the federal district court did, 

should be accorded almost decisive weight. McCall would be correct if the state 

trial court’s ruling would be res judicata or would collaterally estop Aptim. If 

a state court’s ruling would be given preclusive effect by another court of that 

 Case: 17-30772 Document: 00514432353 Page: 7 Date Filed: 04/17/2018
No. 17-30772

8

state, then federal courts must also give preclusive effect to that ruling.6 If the 

preclusive ruling is dispositive of the federal action, then the federal court 

should abstain and dismiss because there is no point in proceeding further, 

irrespective of the other relevant factors in assessing abstention under 

Colorado River.7 

McCall does not contend that the state court’s determination that Shaw 

and Aptim waived their rights to arbitrate would be given preclusive effect by 

Louisiana courts. In fact, at the hearing, the federal district court stated “that 

there was no final judgment, so neither res judicata nor issue preclusion 

applies.”8 McCall did not take issue with that statement and does not contend 

that preclusion applies. To the contrary, in his briefing in our court, McCall

opines that the federal district court’s stay of the state court proceedings 

“ensur[es] that the state court would never be able to enter a final judgment 

entitled to preclusive effect.” Accordingly, the state court’s ruling is not 

decisive regarding abstention because the state court’s interlocutory ruling 

regarding arbitration is not entitled to full faith and credit under the Full Faith 

and Credit Act.9

 

6 See, e.g., Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 523 (1986).

7 See generally Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 448–49 (2d Cir. 1995)

(concluding that because, under Alabama law, a state court’s order had preclusive effect and 

should have been afforded full faith and credit, the district court erred in proceeding and on 

remand should dismiss the petition to compel arbitration).

8 The federal district court’s statement, in full, was,

 The Court further finds on my own—of course, we always have to consider

jurisdiction, that the Rooker Feldman doctrine does not apply; that there was

no final judgment, so neither res judicata or issue preclusion applies.

 What appears to be before this Court today and what is the significant issue

is whether or not the Colorado River abstention is appropriate. So I’m going

to ask you to confine your remarks to that and we’ll proceed from there.

9 See 28 U.S.C. § 1738 (providing that state judicial proceedings “shall have the same 

 Case: 17-30772 Document: 00514432353 Page: 8 Date Filed: 04/17/2018
No. 17-30772

9

Greater progress alone “does not give rise to ‘exceptional circumstances’

capable of overcoming the strong presumption in favor of retaining jurisdiction.” Saucier, 701 F.3d at 465. Instead, the federal and state courts have 

concurrent jurisdiction, and the state court was not so far ahead as to counsel 

the federal court to stay its hand. Just as we concluded under the third factor, 

the solution to inconsistent judgments is through a plea of res judicata after 

one court enters a final judgment.

E.

The fifth factor weighs against abstention. “The presence of a federal 

law issue ‘must always be a major consideration weighing against surrender 

[of jurisdiction],’ but the presence of state law issues weighs in favor of surrender only in rare circumstances.” Murphy v. Uncle Ben’s, Inc., 168 F.3d 734, 739

(5th Cir. 1999) (quoting Evanston, 844 F.2d at 1193). 

The Federal Arbitration Act (“FAA”) is the underlying law and embodies 

“a liberal federal policy favoring arbitration agreements,” Moses H. Cone, 

460 U.S. at 24, that serves as the backdrop for any FAA litigation. The FAA 

itself is an outlier: It created substantive federal law but not federal-question 

jurisdiction. Thus its enforceability is left largely to state courts. Id. at 25 n.32

(“[A]lthough enforcement of the [FAA] is left in large part to the state courts, 

it nevertheless represents federal policy to be vindicated by the federal courts 

where otherwise appropriate.”). This factor, therefore, has less significance 

but still weighs against abstention. Id. at 25–26.

 

full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from 

which they are taken”).

 Case: 17-30772 Document: 00514432353 Page: 9 Date Filed: 04/17/2018
No. 17-30772

10

F.

The sixth factor, evaluating the adequacy of state proceedings to protect 

the rights of the party invoking federal jurisdiction, can only be neutral or 

weigh against abstention. Stewart, 438 F.3d at 493. Nothing has impugned 

the state court’s ability fairly to determine the legal questions at issue, so this 

factor is neutral.

G.

Reviewing the six factors, two are neutral, one weighs slightly in favor 

of abstention, and three weigh against abstention. To overcome the strong 

presumption in favor of federal jurisdiction, a party must show exceptional circumstances. The factors here do not demonstrate such circumstances, and the 

district court was correct to exercise jurisdiction.

H.

McCall points to three out-of-circuit decisions in which the state court 

ruled first and the appellate court found abstention proper. He contends those 

cases demonstrate that the state court’s issuance of a ruling should be a primary focus of the abstention inquiry, almost to the point of being conclusive. 

In addition to our treatment of this contention under the fourth factor, we 

address each of these cases in turn.

1.

In Vulcan Chemical Technologies, Inc. v. Barker, 297 F.3d 332 (4th Cir. 

2002), suit was filed in the state court, which compelled arbitration. Arbitration concluded with a multi-million dollar judgment on the merits against 

Vulcan, which sued in federal court to vacate the award. The state court confirmed the award before the federal court ruled. Id. at 335. After the federal

district court had vacated the award two months after the state court’s 

 Case: 17-30772 Document: 00514432353 Page: 10 Date Filed: 04/17/2018
No. 17-30772

11

confirmation of it, the Fourth Circuit reversed, finding that five of the six Colorado River factors favored abstention and one was neutral. Id. at 341–43. 

In addition to undertaking the typical six-factor analysis, the Fourth 

Circuit noted that the motive for filing in federal court was critical. Up until 

the arbitrator entered its award, Vulcan had “gladly litigated” in state court 

and had “gladly arbitrated there before an agreed-upon arbitrator.” Id. at 343. 

Its federal filing was merely a “strategy to obtain a second opinion.” Id. 

The same is not true here. In Vulcan, over two years of litigation and a 

complete disposition of the merits had occurred in state court before the federal 

filing. Aptim filed in federal court before the state court had done anything on 

the merits, so its motive could not have been to get a second opinion. Instead, 

Aptim asserted its arbitration rights on July 17, just weeks after acquiring 

Shaw.

2.

McCall points next to Preferred Care of Delaware, Inc. v. VanArsdale, 

676 F. App’x 388 (6th Cir. 2017). Based on the particular facts of the case and 

the state-law issue underlying the state-court decision on arbitrability, the 

Sixth Circuit affirmed the abstention. The opinion divided Colorado River’s 

six-factor test into eight factors and found that the first two weighed slightly 

against abstention, five strongly favored abstention, and one was neutral. Id.

at 394–97. 

This is again far different from how the factors play out in the present 

case. The Sixth Circuit examined each factor in turn and did not base its ruling 

solely on the fact that the state court issued an order finding the arbitration 

clause invalid under state law before the federal court ruled. No state-law 

question is at issue here, and the weighing of the factors is inherently 

 Case: 17-30772 Document: 00514432353 Page: 11 Date Filed: 04/17/2018
No. 17-30772

12

discretionary and cannot turn on the presence or absence of one fact.

3.

Finally, D.A. Osguthorpe Family Partnership v. ASC Utah, Inc., 705 F.3d 

1223 (10th Cir. 2013), is readily distinguished. The state suit began in 2006. 

Numerous issues and parties were involved in a complex proceeding. “[T]he 

[state court] litigation has not so much developed as it has metastasized: parties have proliferated, claims have collided, and issues have become intimately 

entangled.” Id. at 1226. After five years and the issuance of multiple decisions 

that went all the way to the state supreme court, one of the losing parties filed 

in federal court to compel arbitration. Id. at 1227–29. 

The Tenth Circuit affirmed the decision to abstain. It found four of the 

factors were neutral and two—the third and fourth—weighed heavily in favor 

of abstention. Id. at 1234–35. In examining the progress made in the state 

court, the court of appeals found that the “realities of the case at hand” must 

guide a court’s factorial analysis. Id. at 1236 (quoting Moses H. Cone, 460 U.S. 

at 21). That years, not weeks, had passed in state court without objection, that 

the case was “interwoven” with the “trial and appellate levels” of the statecourt system, and that “vexatious or reactive” motives were at play, were heavy 

considerations favoring abstention. Id. at 1235.

Conversely, in the present suit, weeks, not years, had passed in state 

court when the federal action was filed, and no vexatious motivation is discernible given the timeline of events. There is no comparison between the 

expansive litigation at issue in D.A. Osguthorpe and the mere months in the

case at hand.

Colorado River presents an inherently discretionary balancing inquiry 

that shifts with the particular facts. Given our facts, the district court did not 

 Case: 17-30772 Document: 00514432353 Page: 12 Date Filed: 04/17/2018
No. 17-30772

13

abuse its discretion in declining to abstain.

III.

Having found that the district court did not abuse its discretion in declining to abstain, we turn to its finding that Aptim did not waive its arbitration 

rights. This court reviews the issue of waiver de novo. Walker v. J.C. Bradford 

& Co., 938 F.2d 575, 577 (5th Cir. 1991).

The right to arbitrate can be waived if a party “(1) ‘substantially invokes 

the judicial process’ and (2) thereby causes ‘detriment or prejudice’ to the other 

party.”10 Given the strong federal policy in favor of arbitration, the party seeking to prove waiver must overcome the heavy presumption against such a finding.11 There is not enough here to overcome that presumption.

A.

Shaw’s initial complaint raising a claim for damages is enough for substantial invocation under Nicholas v. KBR, Inc., 565 F.3d 904, 908 (5th Cir. 

2009). In Nicholas, the court found that “filing suit without asserting an arbitration clause constitutes substantial invocation of the judicial process.” Id. 

The purpose of the Nicholas rule is to divine a plaintiff’s intent regarding 

its choice of forum for litigating the merits of an arbitrable claim. Though a

defendant may allow significant time to pass and may engage in some preliminaries of litigation without the court’s finding substantial invocation,12 a 

 

10 Al Rushaid v. Nat’l Oilwell Varco, Inc., 757 F.3d 416, 421 (5th Cir. 2014) (quoting 

Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986)).

11 Id. at 421–22; Tenneco Resins, Inc. v. Davy Int’l, AG, 770 F.2d 416, 420 (5th Cir. 

1985).

12 For example, in its opinion collecting cases, the court in Tenneco Resins, 770 F.2d 

at 420−21, found that a defendant’s delay of eight months and participation in limited discovery were insufficient to constitute substantial invocation of the judicial process.

 Case: 17-30772 Document: 00514432353 Page: 13 Date Filed: 04/17/2018
No. 17-30772

14

plaintiff’s “disinclination to resort to arbitration” can be seen at the filing stage. 

Id. (quoting Miller, 781 F.2d at 497). The court laid out two exceptions to this

assumption: filing suit to determine the presence of an enforceable arbitration 

agreement and filing to obtain injunctive relief pending arbitration. Id.

The facts of the present case, however, defy easy application of this seemingly straightforward rule. In Nicholas, the filing of a lawsuit on the merits 

was followed by actual merits litigation, and the court found especially troubling the plaintiff’s decision to seek arbitration following an adverse ruling. Id.

at 909. The present appeal does not implicate the feared second bite at the 

apple. Further, it is complicated by Aptim’s delayed entrance into the litigation and McCall’s contradictory postures in state and federal court regarding 

Aptim’s status.

Shaw had the contractual right to seek injunctive relief in court without 

compromising its arbitration rights. Its initial filing, including a claim for 

damages, however, is enough under Nicholas to find substantial invocation of 

the judicial process, though still leaving open the question of prejudice to 

McCall. The dispute then arises whether Shaw’s conduct in filing the initial

complaint is imputed to Aptim.

In contending that Shaw’s conduct should be attributable to Aptim, 

McCall tries to have his cake and eat it too. In state court, McCall opposed 

Aptim and Shaw’s motion for substitution, stating that it was unclear which 

rights Shaw assigned to Aptim and whether Aptim was a successor such that 

substitution was proper. Then, in its federal filings, McCall treated Aptim and 

Shaw as one and the same party, using the very language of the motion it 

opposed to assert that Aptim stepped into the shoes of Shaw and thus inherited 

Shaw’s substantial invocation of the judicial process.

The state court never ruled on the motion or the opposition before Aptim 

 Case: 17-30772 Document: 00514432353 Page: 14 Date Filed: 04/17/2018
No. 17-30772

15

and Shaw withdrew the motion. The court later joined Aptim as a party and 

bound it to all prior rulings but neither substituted Aptim nor dismissed Shaw, 

making no apparent judgment about Aptim’s status as a successor under the 

assignment agreement. The federal district court was rightly concerned about 

the appearance that McCall tried to keep Aptim out of the litigation but then 

sought to have Aptim bound by rulings made while it was actively denied the 

ability to defend itself. 

Absent imputation, Aptim did not substantially invoke the judicial process. It did not file anything regarding the merits or ask for damages but filed 

only a motion for substitution and a motion withdrawing the request for substitution. A nonparty to the suit, Aptim demanded arbitration only one month 

after the state-court litigation had begun and only eleven days after it had

sought unsuccessfully to be substituted into the action. If Shaw’s filing the 

initial complaint is not imputed to Aptim, Aptim’s actions alone are inadequate

for substantial invocation. This inquiry is simplified by the absence of prejudice, thus obviating the need to interpret the assignment agreement and determine imputation.

B.

To support a finding of waiver, McCall must demonstrate prejudice. 

“Prejudice in the context of arbitration waiver refers to delay, expense, and 

damage to a party’s legal position.” Nicholas, 565 F.3d at 910. Courts considering prejudice look to things such as how much discovery has been conducted 

and how much the litigation relates to the merits.13 Minimal discovery does 

not demonstrate prejudice. Tenneco Resins, 770 F.2d at 421.

 

13 Miller, 781 F.2d at 498 (“A party may not invoke arbitration and yet seek pre-trial 

discovery going to the merits. . . . [A]ny attempt to go to the merits and to retain still the 

right to arbitration is clearly impermissible.” (alterations in original) (quotation omitted)).

 Case: 17-30772 Document: 00514432353 Page: 15 Date Filed: 04/17/2018
No. 17-30772

16

McCall does not show prejudice. Before Aptim’s acquisition of Shaw, the 

state court held a hearing on the TRO, and Shaw, McCall, and Allied entered 

into a protective order. All of those proceedings relate to the injunctive relief 

that Shaw was contractually permitted to seek without compromising its arbitration rights. Additionally, Shaw dropped the damages claim only one month 

after filing, with no proceedings that would have cost McCall time, money, or 

strategic advantage. The case was ongoing for just over two months before the 

federal filing and for only one month before the initial arbitration demand. 

During that time, around June 30 when Aptim acquired part of Shaw, discovery was stayed for the parties to sort out the consequences of the acquisition, 

and the preliminary-injunction hearing was cancelled. McCall cannot demonstrate the time, expense, or disadvantage in litigating position required to 

show prejudice.

IV.

We must now determine whether the federal district court erred in 

enjoining the state-court proceedings under the relitigation exception to the 

Anti-Injunction Act. Because, under the Act, a federal court is entitled to 

defend its own final judgment, we uphold the injunction.14

The Anti-Injunction Act states, “A court of the United States may not 

grant an injunction to stay proceedings in a State court except as expressly 

authorized by Act of Congress, or where necessary in aid of its jurisdiction, or 

to protect or effectuate its judgments.” 28 U.S.C. § 2283. The prohibition 

against interfering in state proceedings embodies a strong policy that,

 

14 The district court initially enjoined the state-court litigation only as to Aptim but 

later expanded the injunction to apply to the litigation against Shaw as an entity “in privity 

with” Aptim. Because Shaw assigned all of its interest in the litigation to Aptim, it is not 

apparent what litigation there is to continue in state court. Given that Shaw’s interest is 

moot, we affirm the injunction without deciding whether the extension was proper.

 Case: 17-30772 Document: 00514432353 Page: 16 Date Filed: 04/17/2018
No. 17-30772

17

recognizing the “independence of the States and their courts, the exceptions 

should not be enlarged.” Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 

398 U.S. 281, 287 (1970). A federal court cannot enjoin a state-court suit on 

the grounds that “the state court may have taken action which the federal court 

[is] certain [is] improper,” nor is it appropriate to avoid simultaneous pursuit

of claims in courts with concurrent jurisdiction. Id. at 295–96.

Under the Act, an injunction is not appropriate just because it is 

“related” to the federal court’s jurisdiction. Id. at 295. If the state court takes 

an action the federal court or a party to the action finds incorrect, the proper 

course is typically the state appellate court. Id. at 296. Any doubts about the 

“propriety of a federal injunction . . . should be resolved in favor of permitting 

the state courts to proceed . . . . The explicit wording of § 2283 itself implies as 

much.” Id. at 297.

The federal district court invoked the relitigation exception, stating that

the injunction was necessary to “protect or effectuate its judgment[].” This 

exception was “designed to permit a federal court to prevent state litigation of 

an issue that previously was presented to and decided by the federal court.” 

Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147 (1988). McCall asserts that 

the Act prevents a federal court from enjoining an already issued state court 

ruling. 

The application of the Act is not so temporally bound. Instead, the 

inquiry turns on the question of finality. A federal court that has entered a 

final judgment entitled to preclusive effect may, “to protect or effectuate its 

judgment[],” stay state-court proceedings when it is clear that the state court 

ruling that would interfere with the enforcement of the federal court’s judgment is not preclusive and is not entitled to full faith and credit.

For example, in Atlantic Coast Line, a federal court in 1967 refused to 

 Case: 17-30772 Document: 00514432353 Page: 17 Date Filed: 04/17/2018
No. 17-30772

18

enjoin the BLE union from picketing at a railroad switching yard. The railroad 

then promptly obtained an injunction in state court that prohibited the picketing. Two years later, the Supreme Court reviewed a state-court injunction 

against picketing by the BLE and other unions in a nearby area and held that 

the unions had a federally protected right to picket. Atl. Coast Line, 398 U.S. 

at 283–84 (citing Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 

369 (1969)). The BLE then returned to state court seeking dissolution of the 

1967 injunction, but “the state judge refused to dissolve the injunction, holding 

that [the Supreme Court’s] Jacksonville Terminal decision was not controlling.” Id. at 284. The union did not appeal that decision but instead requested 

the federal court to issue an injunction against the enforcement of the 1967 

state-court injunction. The federal court did so, and the Supreme Court 

reversed.

Were the timeline the sole deciding factor, the Court could have based 

its decision on the fact that the state injunction preceded the federal litigation. 

Instead, the Court found that the language “necessary in aid” of a federal 

court’s jurisdiction in the Anti-Injunction Act “implies something similar to the 

concept of injunctions to ‘protect or effectuate’ judgments.” Id. at 295. There 

was no federal-court judgment that needed to be defended against state litigation. Instead, the federal-court litigation involved claims under federal law, 

and the state-court litigation involved claims based on state law and the 

union’s defense regarding the preclusive effect of federal law. Id. “In short, 

the state and federal courts had concurrent jurisdiction in this case, and neither court was free to prevent either party from simultaneously pursuing 

claims in both courts.” Id. “The state court’s assumption of jurisdiction over 

state law claims and the federal preclusion issue did not hinder the federal 

court’s jurisdiction so as to make an injunction necessary to aid that 

 Case: 17-30772 Document: 00514432353 Page: 18 Date Filed: 04/17/2018
No. 17-30772

19

jurisdiction.” Id. at 296. 

The Court used the same language of preclusion in Parsons Steel. 

Though the state-court ruling did not precede the federal court’s final judgment, the Court’s reasoning, which focused on the Full Faith and Credit Act, 

applies regardless of the order of the state and federal decisions. 

In Parsons Steel, a bank obtained a final judgment in its favor in federal 

district court that was affirmed on appeal. Parallel proceedings had been 

ongoing in state court, which rejected the bank’s argument that the federal 

judgment was res judicata. The state-court case proceeded to trial, and a jury 

returned a verdict adverse to the bank. Id. The bank then returned to federal 

district court and obtained an injunction prohibiting plaintiffs from proceeding 

further in the state action. Parsons Steel, 474 U.S. at 520–21.

In the succeeding challenge to the federal injunction, the Supreme Court 

first recognized that “under the Full Faith and Credit Act a federal court must 

give the same preclusive effect to a state-court judgment as another court of 

that State would give.” Id. at 523. The Court held that the federal district 

court had erred by failing to “consider the possible preclusive effect under Alabama law of the state-court judgment, and particularly of the state court’s 

resolution of the res judicata issue.” Id. The federal district court had concluded that “the relitigation exception to the Anti-Injunction Act limits the Full 

Faith and Credit Act.” Id. The Supreme Court disagreed: “We believe that 

the Anti-Injunction Act and the Full Faith and Credit Act can be construed 

consistently, simply by limiting the relitigation exception of the Anti-Injunction Act to those situations in which the state court has not yet ruled on the 

merits of the res judicata issue.” Id. at 524.

The Court once again confirmed that lower federal courts do not sit in 

review of state-court decisions and that “[c]hallenges to the correctness of a 

 Case: 17-30772 Document: 00514432353 Page: 19 Date Filed: 04/17/2018
No. 17-30772

20

state court’s determination as to the conclusive effect of a federal judgment 

must be pursued by way of appeal through the state-court system and certiorari from this Court.” Id. at 525. Even if the state court incorrectly resolved 

the res judicata claim, that would not justify a lower-federal-court injunction. 

Id.

Nevertheless, the federal district court was not foreclosed from enjoining 

state-court proceedings on other grounds if that court, upon considering the 

preclusive effect under state law, found that Alabama would not in fact consider the judgment preclusive. In that instance, the federal district court could 

then “decide the propriety of a federal-court injunction under the general principles of equity, comity, and federalism.” Id. at 526. This decision directs that

in determining whether a stay of state-court proceedings was necessary under 

the Anti-Injunction Act, a federal district court’s and this court’s focus should 

be on the preclusive effect of a state-court ruling.

Chick Kam Choo further bolsters this conclusion, stating that the relitigation exception is “founded in the well-recognized concepts of res judicata and 

collateral estoppel.” Chick Kam Choo, 486 U.S. at 147. This does not permit a 

federal court to enjoin a state-court ruling out of disagreement. But when the 

federal court issues a final judgment, the relitigation exception employs the 

foundation laid in the Full Faith and Credit Act and permits the federal court 

to enjoin proceedings contrary to that judgment.

Our circuit has applied this reasoning several times, stating that the 

relitigation exception “allows an injunction where state proceedings threaten 

to undermine a federal judgment having preclusive effect under the ‘wellrecognized concept’ of collateral estoppel.”15 We do so again and determine 

 

15 Duffy & McGovern Accommodation Servs. v. QCI Marine Offshore, Inc., 448 F.3d 

 Case: 17-30772 Document: 00514432353 Page: 20 Date Filed: 04/17/2018
No. 17-30772

21

that the injunction was proper to defend the federal district court’s final 

judgment in the face of a non-preclusive state-court order.

V.

In sum, the federal district court did not abuse its discretion in declining 

to abstain, Aptim did not waive its arbitration rights, and the district court 

properly invoked the relitigation exception to defend its final judgment. Therefore, its judgment is AFFIRMED.

 

825, 828 (5th Cir. 2006) (quoting Chick Kam Choo, 486 U.S. at 147); see also Vines v. Univ. 

of La. at Monroe, 398 F.3d 700, 704 (5th Cir. 2005). Regions Bank of La. v. Rivet, 224 F.3d 

483, 488–92 (5th Cir. 2000).

 Case: 17-30772 Document: 00514432353 Page: 21 Date Filed: 04/17/2018
No. 17-30772

22

PRISCILLA R. OWEN, Circuit Judge, concurring and dissenting:

I agree with, and join, the court’s thorough and thoughtful opinion, with 

the exception of footnote 14, and the court’s affirmance of the district court’s 

judgment in its entirety. I would reverse the district court’s judgment to the 

extent that it purports to enjoin the state-court litigation as to The Shaw 

Group, Inc. (Shaw). I also write separately to address statements in Supreme 

Court opinions that, at least facially, lend support to McCall’s contention that 

the federal district court was powerless under the Anti-Injunction Act to stay 

state-court proceedings because the state trial court ruled that arbitration had 

been waived before the federal district court addressed that issue and entered

a final judgment. The state trial court’s ruling, as McCall concedes, would not 

be given preclusive effect. Therefore, the state court’s interlocutory ruling was 

not an impediment to the federal district court’s ability to issue a stay to protect 

and effectuate its final judgment compelling arbitration between Aptim and 

McCall.

I

With regard to the Anti-Injunction Act, first and foremost, nothing in the 

text of the Act suggests that a federal district court must defer to a prior, 

interlocutory, non-preclusive state-court ruling in an ongoing state proceeding 

once the federal district court enters a final judgment concerning the same 

issue and parties.1 Second, as the Supreme Court has recognized, the final 

phrase in the Anti-Injunction Act, that permits federal courts to stay 

state-court proceedings “to protect or effectuate its judgments,”2 “is founded in 

the well-recognized concepts of res judicata and collateral estoppel.”3

 

1 28 U.S.C. § 2283 (“A court of the United States may not grant an injunction to stay 

proceedings in a State court except as expressly authorized by Act of Congress, or where 

necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”).

2 Id. 3 Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147 (1988).

 Case: 17-30772 Document: 00514432353 Page: 22 Date Filed: 04/17/2018
No. 17-30772

23

Well-recognized concepts of res judicata and collateral estoppel permit a final 

judgment to have preclusive effect when another court in concurrent or parallel 

proceedings has ruled to the contrary, if that prior ruling was not a final 

judgment or was not entitled to preclusive effect.4

The Supreme Court reviewed the history of the development of the 

Anti-Injunction Act in Atlantic Coast Line Railroad Co. v. Brotherhood of 

Locomotive Engineers.5 Our country, it explained, has “two essentially 

separate legal systems,” and “[e]ach system proceeds independently of the 

other with ultimate review in [the Supreme Court] of the federal questions 

raised in either system.”6 The Supreme Court explained that “[p]roceedings in 

state courts should normally be allowed to continue unimpaired by 

intervention of the lower federal courts, with relief from error, if any, through 

the state appellate courts and ultimately this Court.”7 But “this dual court 

system was bound to lead to conflicts and frictions,” and “[t]he 1793 

anti-injunction Act was at least in part a response to these pressures.”8 There 

are “three specifically defined exceptions” in the present-day Anti-Injunction 

 

4 See generally RESTATEMENT (SECOND) OF JUDGMENTS § 14 (AM. LAW INST. 1982)

(“[W]hen two actions are pending which are based on the same claim, or which involve the 

same issue, it is the final judgment first rendered in one of the actions which becomes 

conclusive in the other action (assuming any further prerequisites are met), regardless of 

which action was first brought.”); id. § 27 cmt. l (“If two actions which involve the same issue 

are pending between the same parties, it is the first final judgment rendered in one of the 

actions which becomes conclusive in the other action, regardless of which action was brought 

first.”); id. § 86 (“A valid and final judgment of a state court has the same effects under the 

rules of res judicata in a subsequent action in a federal court that the judgment has by the 

law of the state in which the judgment was rendered [with exceptions not material here].”); 

see also Vines v. Univ. of La. at Monroe, 398 F.3d 700, 712 (5th Cir. 2005) (“[W]hen two suits 

are pending based on the same claim or issue, the first final judgment rendered becomes 

conclusive in the other action.”) (citing Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 

2000)).

5 398 U.S. 281, 285-87 (1970).

6 Id. at 286.

7 Id. at 287.

8 Id. at 286.

 Case: 17-30772 Document: 00514432353 Page: 23 Date Filed: 04/17/2018
No. 17-30772

24

Act to its otherwise “absolute prohibition against enjoining state court 

proceedings.”9 The Supreme Court has never held that to come within one of 

these exceptions, the federal court’s final judgment must precede any state 

ruling on the issue resolved by the federal court’s judgment.

In Chick Kam Choo v. Exxon Corp., the Supreme Court described the 

final phrase in the Anti-Injunction Act, “to protect or effectuate its 

judgments,”10 as a “relitigation exception” that “was designed to permit a 

federal court to prevent state litigation of an issue that previously was 

presented to and decided by the federal court.”11 The word “previously” cannot 

bear the weight that McCall, in the present case, places upon it. It is only after 

an issue has been presented to and decided by a federal court and a final 

judgment has issued that a question can arise as to whether, in order to protect 

the federal court’s final judgment, it is necessary to enjoin state litigation of 

the issue “previously” decided by the federal court. In Chick Kam Choo, the 

Court was not called upon to decide whether a federal district court could 

enjoin ongoing state-court proceedings in which a state court had already 

issued an interlocutory ruling.

The description in Chick Kam Choo of what § 2283 permits and does not 

permit was not intended to be all-encompassing. It is also important to 

recognize that in the very next sentence, the Supreme Court said that § 2283 

“is founded in the well-recognized concepts of res judicata and collateral 

estoppel,”12 as already noted. 

The Supreme Court also said in Chick Kam Choo that “[t]he proper scope 

of the exception is perhaps best illustrated by this Court’s decision in Atlantic 

 

9 Id. 10 28 U.S.C. § 2283.

11 486 U.S. 140, 147 (1988).

12 Id.

 Case: 17-30772 Document: 00514432353 Page: 24 Date Filed: 04/17/2018
No. 17-30772

25

Coast Line.”13 The panel’s opinion in the present case discusses that, in 

Atlantic Coast Line, a state-court injunction had been in effect for two years

when the federal district court entered an order staying the state-court 

litigation. If a federal court has no authority under the Anti-Injunction Act to 

stay state-court proceedings once a state trial court has issued a ruling on the 

issue that is also presented to a federal court, then the Supreme Court could 

easily have vacated the federal injunction on that basis. It did not.

In Smith v. Bayer Corp., the Supreme Court said, “[t]he Act's relitigation 

exception authorizes injunctions only when a former federal adjudication 

clearly precludes a state-court decision.”14 The Bayer decision, however, did 

not focus on whether the federal court’s judgment had preceded the 

commencement of a state-court action or a ruling by a state court. The Court 

held that the federal court’s stay was improper because “the issue presented in 

the state court was not identical to the one decided in the federal tribunal,” 

and “the plaintiff in the state court did not have the requisite connection to the 

federal suit to be bound by the [federal court’s] judgment.”15 The decision in 

Bayer recognized that “the Anti-Injunction Act’s relitigation 

exception . . . involves the requirement of preclusion law that a subsequent 

suit raise the ‘same issue’ as a previous case.”16 But here again, the relative 

points in time in which a federal court issued a decision and a state-court action 

was commenced were not at issue in Bayer, and the Court’s general statement 

regarding the law of preclusion was imprecise. Preclusion law generally 

 

13 Id. 14 564 U.S. 299, 318 (2011).

15 Id. at 302.

16 Id. at 305 

 Case: 17-30772 Document: 00514432353 Page: 25 Date Filed: 04/17/2018
No. 17-30772

26

permits a final judgment to have preclusive effect when another court’s ruling, 

even if prior in time, was not entitled to preclusive effect.17

The Supreme Court has long recognized that state- and federal-court 

proceedings involving the same parties and issues may proceed, and often 

should proceed, on parallel tracks.18 The Court’s decision in Atlantic Coast 

Line said at one point that “the state and federal courts had concurrent 

jurisdiction in this case, and neither court was free to prevent either party from 

simultaneously pursuing claims in both courts.”19 But these are not holdings

that when there are concurrent state- and federal-court proceedings, the 

federal court is powerless to protect or effectuate its final judgment by staying 

further state-court proceedings. One of the decisions the Court cited in 

Atlantic Coast Line recognized that “Congress has seen fit to authorize courts 

of the United States to restrain state-court proceedings in some special 

circumstances,” citing the Anti-Injunction Act, even though that decision also 

recognized that “where the judgment sought is strictly in personam, both the 

state court and the federal court, having concurrent jurisdiction, may proceed 

with the litigation at least until judgment is obtained in one of them which 

may be set up as res judicata in the other.”20

In Rivet v. Regions Bank of Louisiana, the Supreme Court signaled that 

a federal district court would have authority under the Anti-Injunction Act to 

enjoin state-court proceedings if necessary to protect or effectuate its 

judgment, even if that judgment had also been raised in a defensive plea in 

 

17 See RESTATEMENT (SECOND) OF JUDGMENTS, supra note 4. 18 See, e.g., Atl. Coast R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 295 (1970) 

(“In short, the state and federal courts had concurrent jurisdiction in this case, and neither 

court was free to prevent either party from simultaneously pursuing claims in both courts.”). 

19 Id. (citing Donovan v. City of Dallas, 377 U.S. 408 (1964) and Kline v. Burke Constr. 

Co., 260 U.S. 226 (1922)).

20 Donovan, 377 U.S. at 412 (quoting Princess Lida of Thurn and Taxis v. Thompson, 

305 U.S. 456, 466 (1939)).

 Case: 17-30772 Document: 00514432353 Page: 26 Date Filed: 04/17/2018
No. 17-30772

27

state court.21 The Court’s actual holding in Rivet was that “claim preclusion

by reason of a prior federal judgment is a defensive plea that provides no basis 

for removal under § 1441(b),” and that “[s]uch a defense is properly made in 

the state proceedings, and the state courts’ disposition of it is subject to this 

Court’s ultimate review.”22 In a footnote appended to these statements, 

however, the Court said, “[w]e note also that under the relitigation exception 

to the Anti–Injunction Act, 28 U.S.C. § 2283, a federal court may enjoin 

state-court proceedings ‘where necessary . . . to protect or effectuate its 

judgments.’”23 On remand after the Supreme Court’s decision in Rivet, the 

Fifth Circuit proceeded to address preclusion issues under Louisiana law in 

accordance with Parsons Steel, Inc. v. First Alabama Bank,24 in deciding 

whether the federal district court had properly stayed proceedings under the 

Anti-Injunction Act.25

There is no rationale expressed in any of the Supreme Court’s decisions 

that supports differentiating how the Anti-Injunction Act is applied solely on 

the basis of whether a state court’s ruling occurred before the federal district 

court issued a final judgment.

II

The majority opinion in the present case concludes that “[b]ecause Shaw 

assigned all of its interest in the litigation to Aptim, it is not apparent what 

litigation there is to continue in state court,” and therefore that “Shaw’s 

interest is moot.”26 As a consequence, the majority opinion affirms the district 

 

21 522 U.S. 470, 478 (1998).

22 Id. 23 Id. n.3 (quoting 28 U.S.C. § 2283).

24 474 U.S. 518 (1986).

25 Regions Bank of La. v. Rivet, 224 F.3d 483, 492-95 (5th Cir. 2000).

26 Ante at __, n.14.

 Case: 17-30772 Document: 00514432353 Page: 27 Date Filed: 04/17/2018
No. 17-30772

28

court’s judgment in its entirety. With respect, I disagree with this disposition 

for at least two reasons.

First, the district court did not purport to resolve whether Shaw had 

waived its right to arbitrate disputes with McCall. Nothing in the district 

court’s memorandum setting forth the reasons for its decision in this case

addresses Shaw’s right to arbitrate. After the district court entered its final 

judgment, McCall filed a “Motion to Stay Order and Judgment Pending 

Appeal.” In the order denying this motion, the district court confirmed that its 

conclusion that Aptim is entitled to an order compelling arbitration did not 

consider whether Shaw’s actions were imputed to Aptim under Louisiana law 

regarding assignments, and that since McCall had not raised that argument 

in the district court initially, it was waived.27 The district court also observed 

in the order denying a stay pending appeal that in any event, Aptim was joined 

as an additional party in state court and not substituted for Shaw. McCall had 

opposed substituting Aptim for Shaw in state court. The federal district court 

reasoned that “[i]t is therefore difficult for this Court to say that Aptim should 

now be held accountable for Shaw’s actions when Defendant opposed a 

substitution and such was never actually made.” Shaw was not a party to the 

federal district court suit, and the district court did not adjudicate whether 

Shaw was entitled to arbitrate claims against McCall.

 

27 The district court’s order states:

Defendant argues that under Louisiana’s assignment law, Aptim 

stepped into the shoes of Shaw and all defenses available against Shaw should 

have been available against Aptim. It argues that Shaw’s actions in the State 

Court Action should therefore have been imputed to Aptim. Defendant, 

however, did not make any argument regarding Louisiana assignment law in 

its opposition to Plaintiff’s Motion to Compel Arbitration. Indeed, this Court 

noted in its prior Order that, “Defendant has offered no argument why Shaw’s 

actions should be imputed to [Aptim].” “[A]rguments not raised before the 

district court are waived and cannot be raised for the first time on appeal.”

 Case: 17-30772 Document: 00514432353 Page: 28 Date Filed: 04/17/2018
No. 17-30772

29

The Supreme Court has made clear that a federal district court can stay 

a state-court action only as to issues actually determined by the federal district 

court.28 In Chick Kam Choo, the Court discussed its decision in Atlantic Coast 

Line29 to illustrate this principle, observing that “[t]he Court assessed the 

precise state of the record and what the earlier federal order actually said; it 

did not permit the District Court to render a post hoc judgment as to what the 

order was intended to say.”30 In the present case, the district court neither 

actually addressed Shaw’s right to arbitrate nor whether the state-court 

proceeding was moot.

Second, it does not appear that the state-court proceedings are moot as 

to Shaw. In this court, McCall attached exhibits to a motion for stay pending 

appeal. One of those exhibits is a filing in the state-court action that asserts

that McCall’s claims against Shaw in state court include a claim for damages 

against Shaw for tortious interference with McCall’s contract with Allied.31

For these reasons, I would vacate the portion of the district court’s 

judgment issuing a stay that appears to include Shaw as “an entit[y] in privity 

with” Aptim. I would otherwise affirm the district court’s judgment.

 

28 See, e.g., Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 148 (1988) (“[A]n essential 

prerequisite for applying the relitigation exception is that the claims or issues which the 

federal injunction insulates from litigation in state proceedings actually have been decided 

by the federal court.”).

29 398 U.S. 281 (1970).

30 Chick Kam Choo, 486 U.S. at 148 (analyzing Atlantic Coast Line).

31 Motion for Stay Pending Appeal, Ex. C (“Motion to Consolidate”).

 Case: 17-30772 Document: 00514432353 Page: 29 Date Filed: 04/17/2018