UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1745

MIDATLANTIC INTERNATIONAL, INC.,

Plaintiff - Appellant,

v.

AGC FLAT GLASS NORTH AMERICA, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern

District of Virginia, at Norfolk. Robert G. Doumar, Senior

District Judge. (2:12-cv-00169-RGD-FBS)

Submitted: October 16, 2012 Decided: November 14, 2012

Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

James L. Chapman, IV, CRENSHAW, WARE & MARTIN, PLC, Norfolk, 

Virginia, for Appellant. James N. L. Humphreys, William C. 

Bovender, Joseph B. Harvey, HUNTER, SMITH & DAVIS, LLP, 

Kingsport, Tennessee, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

MidAtlantic International, Inc. (MidAtlantic) brought this 

diversity action against AGC Flat Glass North America, Inc. 

(AGC) in the United States District Court for the Eastern 

District of Virginia following AGC’s refusal to pay MidAtlantic 

for several thousand tons of dolomite. Invoking the abstention 

doctrine in Colorado River Water Conservation Dist. v. United 

States, 424 U.S. 800 (1976), the district court dismissed this 

action in favor of a related action in Tennessee state court 

which commenced before the federal action. Because we conclude 

that the federal action does not meet the criteria for Colorado 

River abstention, we vacate the district court’s judgment and 

remand for further proceedings. 

I

MidAtlantic is a Barbadian corporation with its principal 

place of business in St. Michael, Barbados. Prior to the 

commencement of the parties’ litigation, MidAtlantic supplied 

dolomite to AGC, a Delaware corporation with its principal place 

of business in Alpharetta, Georgia. AGC used the dolomite as 

part of its glass manufacturing business.

The dolomite supplied by MidAtlantic was imported from 

Spain in bulk quantity by ship, stored in a warehouse in 

Norfolk, Virginia, and then placed in AGC-supplied rail cars at 
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the warehouse. The rail cars would then make their way to 

various factories operated by AGC. Each bulk shipment came with 

a certificate of analysis from the mine. AGC paid for the 

dolomite as each rail shipment was made. The written contract 

between the parties specified that if AGC ever stopped buying 

the dolomite “for whatever reason,” AGC would pay MidAtlantic 

for any dolomite remaining in the warehouse within thirty days 

of the date of the invoice. (J.A. 5).

In June 2011, AGC arranged for the shipment of 8,267.38 

tons of dolomite. The dolomite was stored in Norfolk with 

approximately 500 tons of dolomite still on hand from a prior 

shipment. A certificate of analysis for the June 2011 shipment 

was furnished to AGC. According to MidAtlantic, AGC raised no 

concerns about the test results, nor did they request further 

testing of the dolomite. Between June and December 2011, AGC 

purchased and used at its glass manufacturing facility in 

Kingsport, Tennessee approximately 4,000 tons of the dolomite 

from the June 2011 shipment. In December 2011, AGC notified 

MidAtlantic that there was spinel in the dolomite that exceeded 

specifications. Consequently, AGC refused to pay for the 

dolomite remaining in the warehouse in Norfolk.

On March 9, 2012, AGC filed a complaint in Tennessee state 

court (Sullivan County) against MidAtlantic asserting a claim

for breach of contract based on nonconforming goods and a claim 
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for a declaratory judgment that it was not responsible to pay 

for the remaining dolomite in the warehouse in Norfolk. On 

March 30, 2012, MidAtlantic filed an action in the United States 

District Court for the Eastern District of Virginia seeking 

nearly $800,000.00 in damages for AGC’s alleged breach of 

contract.

On April 30, 2012, AGC filed a motion to dismiss pursuant 

to Rule 12(b) of the Federal Rules of Civil Procedure, arguing 

that the federal action should be dismissed either under the 

“first-to-file” rule, or, alternatively, under Colorado River

abstention. The district court rejected the “first-to-file” 

argument as inapplicable because the two actions were not 

pending in separate federal courts. With respect to abstention 

under Colorado River, the district court held that exceptional 

circumstances were present warranting the surrendering of 

federal court jurisdiction. In particular, the district court 

identified three factors which, in its opinion, weighed heavily 

in favor of abstention. First, the district court found that 

the federal forum was inconvenient because the “the great 

majority of records, evidence, and witnesses pertaining to this 

case” were located in Tennessee at AGC’s glass manufacturing 

facility. (J.A. 107). Next, the district court found that 

abstention was necessary to avoid piecemeal litigation involving 

the same parties and the same issues. Finally, the district 
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court found that abstention was warranted because the federal 

action was vexatious in nature, because MidAtlantic had not 

“offered [any] reason why this case should be tried in federal 

court rather than, or in addition to state court,” and had 

“fail[ed] to provide any justification” or “even attempt to 

explain why it waited until after . . . AGC had filed the state 

court action to file the federal suit or, indeed, why it filed 

suit at all when the claims at issue were already pending in 

state court.” (J.A. 109). As a result of its conclusion that 

Colorado River abstention was appropriate, the district court 

dismissed the federal action without prejudice. MidAtlantic 

noted a timely appeal.

II

On appeal, MidAtlantic contends that the district court 

erred when it abstained from entertaining its claim for breach 

of contract. We review the district court’s abstention decision 

for an abuse of discretion. Chase Brexton Health Servs., Inc. 

v. Maryland, 411 F.3d 457, 464 (4th Cir. 2005).

It is well-settled that “our dual system of federal and 

state governments allows parallel actions to proceed to judgment 

until one becomes preclusive of the other.” Id. at 462. 

Indeed, “[d]espite what may appear to result in a duplication of 

judicial resources, ‘[t]he rule is well recognized that the 
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pendency of an action in the state [court] is no bar to 

proceedings concerning the same matter in the Federal court 

having jurisdiction.’” McLaughlin v. United Va. Bank, 955 F.2d 

930, 934 (4th Cir. 1992) (quoting McClellan v. Carland, 217 U.S. 

268, 282 (1910)). Moreover, the Supreme Court has cautioned 

that federal courts are bound by a “virtually unflagging 

obligation . . . to exercise the jurisdiction given them.” 

Colorado River, 424 U.S. at 817. As we noted in Chase Brexton, 

“[f]ederal courts have no more right to decline the exercise of 

jurisdiction which is given, than to usurp that which is not.” 

411 F.3d at 462 (citation and internal quotation marks omitted).

The Supreme Court, however, has indicated that, in certain 

limited instances, “federal courts may decline to exercise their 

jurisdiction, in otherwise ‘exceptional circumstances,’ where 

denying a federal forum would clearly serve an important 

countervailing interest.” Quackenbush v. Allstate Ins. Co., 517 

U.S. 706, 716 (1996) (quoting Colorado River, 424 U.S. at 813). 

“These ‘exceptional circumstances’ inevitably relate to a policy 

of avoiding unnecessary constitutional decisions and of 

accommodating federal-state relations.” Chase Brexton, 411 F.3d 

at 462.

In Colorado River, the Court noted that there were 

“principles unrelated to considerations of proper constitutional 

adjudication and regard for federal-state relations which govern 
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in situations involving the contemporaneous exercise of 

concurrent jurisdictions, either by federal courts or by state 

and federal courts.” 424 U.S. at 817. According to the Court, 

these principles rest on considerations of “[w]ise judicial 

administration, giving regard to conservation of judicial 

resources and comprehensive disposition of litigation.” Id.

(citation and internal quotation marks omitted). In general, 

the pendency of an action in state court is no bar to 

proceedings in federal court concerning the same matter. Id. 

As between two federal district courts, the general rule is that 

duplicative litigation should be avoided. Id. The Court 

explained that the difference in approach between federal-state 

concurrent jurisdiction and wholly federal concurrent 

jurisdiction stemmed from the “virtually unflagging obligation 

of the federal courts to exercise the jurisdiction given them.” 

Id. 

In assessing whether Colorado River abstention is 

appropriate, we must remain mindful that this form of abstention 

“is an extraordinary and narrow exception to the duty of a 

District Court to adjudicate a controversy properly before it” 

and that “[a]bdication of the obligation to decide cases can be 

justified under [abstention] only in the exceptional 

circumstances where the order to the parties to repair to the 

state court would clearly serve an important countervailing 
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interest.” Id. at 813 (citation and internal quotation marks 

omitted). Accordingly, our task “is not to find some 

substantial reason for the exercise of federal jurisdiction by 

the district court; rather, the task is to ascertain whether 

there exist ‘exceptional’ circumstances, the ‘clearest of 

justifications,’ . . . to justify the surrender of that 

jurisdiction.” Moses H. Cone Mem. Hosp. v. Mercury Const. 

Corp., 460 U.S. 1, 25-26 (1983) (citation and internal quotation 

marks omitted).

The threshold question in deciding whether Colorado River

abstention is appropriate is whether there are parallel federal 

and state actions. Chase Brexton, 411 F.3d at 463. Here, 

MidAtlantic concedes that the federal action is parallel to the

Tennessee state court action. Because the federal action is 

parallel, we now must carefully balance several factors “with 

the balance heavily weighted in favor of the exercise of 

jurisdiction.” Moses H. Cone, 460 U.S. at 16. Although the 

decision to dismiss a federal suit because of parallel statecourt litigation does not rest on a checklist, id., we have 

identified six factors to guide the analysis: (1) whether the 

subject matter of the litigation involves property where the 

first court may assume in rem jurisdiction to the exclusion of 

others; (2) whether the federal forum is an inconvenient one; 

(3) the desirability of avoiding piecemeal litigation; (4) the 
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relevant order in which the courts obtained jurisdiction and the 

progress achieved in each action; (5) whether state law or 

federal law provides the rule of decision on the merits; and (6) 

the adequacy of the state proceeding to protect the parties’ 

rights. Chase Brexton, 411 F.3d at 463-64.

With respect to the first factor, whether the subject 

matter of the state litigation involves res or property, the 

parties agree that no res or property is involved over which the 

Tennessee state court has asserted jurisdiction. Accordingly, 

this factor weighs against abstention. Gannett Co., Inc. v. 

Clark Const. Group, Inc., 286 F.3d 737, 747 (4th Cir. 2002).

With respect to the second factor, whether the federal 

forum is an inconvenient one, the district court found that this 

factor weighed in favor of abstention. According to the 

district court, although AGC had some contacts with the state of 

Virginia (the contract in part was performed in Virginia, AGC 

was authorized to do business in Virginia, and AGC had an 

appointed agent to receive service of process in Virginia), such 

evidence was “clearly insufficient to outweigh the convenience 

of trying a case in the jurisdiction in which nearly all of the 

records and witnesses are located.” (J.A. 107). 

In Colorado River, the Supreme Court identified “the 

inconvenience of the federal forum” as a factor for the federal 

court to consider in deciding whether to dismiss a federal court 
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action because of a concurrent state proceeding. 424 U.S. at 

818. The Court cited only Gulf Oil Corp. v. Gilbert, 330 U.S. 

501 (1947), as support for consideration of this factor. 424 

U.S. at 818. Gulf Oil involved the doctrine of forum non 

conveniens. 330 U.S. at 502. The district court had dismissed 

a suit filed in the Southern District of New York. Id. at 503. 

The disputed event had occurred in Virginia, and the witnesses 

and evidence were located in Virginia, some 400 miles from the 

New York forum. Id. at 503, 511. The Court noted that 

compulsory process would not be available for some witnesses if 

the matter remained in the New York federal court. Id. at 511. 

In Colorado River, the Court referred to the inconvenience of 

trying the case in the federal district court in Denver, 300 

miles from the disputed area and from the Colorado state court 

with jurisdiction over that area. 424 U.S. at 820.

The district court’s consideration of this factor is 

somewhat troubling. On the one hand, the distance between 

Sullivan County, Tennessee and Norfolk, Virginia is over 400 

miles. Moreover, it appears, based on the scant record before 

us, that many of the witnesses and much of the evidence is 

located in Tennessee. Such facts support the district court’s 

analysis under the authority of Gulf Oil and Colorado River. On 

the other hand, it is a bit of an overstatement to say that this 

case is all about conduct and witnesses in Tennessee. The 
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dolomite was imported into Virginia, stored in Virginia, and 

some of the dolomite at issue presumably remains in a warehouse

there. With such conflicting evidence before it, perhaps the 

most prudent course for the district court would have been to 

take evidence on the question, especially since the record does 

not disclose which of the forums was more convenient for 

MidAtlantic. In any event, we need not address whether the 

district court’s evaluation of this factor amounted to an abuse 

of discretion, because we can resolve this appeal by assuming 

for the sake of argument that the inconvenience of the federal 

forum factor favors abstention. 

With respect to the third factor, the desirability of 

avoiding piecemeal litigation, the district court found that the 

Tennessee state court action and the federal action “will no 

doubt pose serious res judicata problems depending on which 

court first reaches the merits of the case.” (J.A. 108). As a 

result, the district court concluded this factor favored 

abstention.

However, res judicata problems are not the threat with 

which Colorado River was concerned; it is a prospect inherent in 

all concurrent litigation. And the Supreme Court in Colorado 

River instructed federal courts that they are normally to accept 

jurisdiction even in the face of concurrent state litigation. 

424 U.S. at 817. The “mere potential for conflict in the 
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results of adjudications, does not, without more, warrant 

staying exercise of federal jurisdiction.” Id. at 816. 

Accordingly, the district court erred when it determined that 

this factor weighed in favor of abstention. See Gannett, 286 

F.3d at 746 (“The threat of different outcomes in these breach 

of contract actions, however, is not the type of inconsistency 

against which abstention is designed to protect, in that Gannett 

and Clark are both parties to the Federal and State Contract 

Actions; thus, res judicata effect will be given to whichever 

judgment is rendered first. . . . Insofar as abstention does 

not lessen the threat of inefficiency or inconsistent results 

beyond those inherent in the duplicative nature of these 

proceedings and there is nothing in the nature of breach of 

contract actions that renders the fact of duplicative 

proceedings exceptionally problematic, the district court abused 

its discretion by determining that the possibility of piecemeal 

litigation weighs in favor of abstention.”).

The fourth factor-the order in which jurisdiction was 

obtained by the courts-does not counsel in favor of abstention 

because the litigation in Tennessee state court is not further 

along than the federal action. See Moses H. Cone, 460 U.S. at 

21 (noting that fourth factor is not “measured exclusively by 

which complaint was filed first, but rather in terms of how much 

progress has been made in the two actions”).
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The fifth factor, whether state law or federal law provides 

the rule of decision on the merits, and the sixth factor, 

assessing the adequacy of the state proceeding to protect the 

parties’ rights, do not weigh in favor of abstention. These 

factors “typically are designed to justify retention of 

jurisdiction where an important federal right is implicated and 

state proceedings may be inadequate to protect the federal 

right, . . . or where retention of jurisdiction would create 

needless friction with important state policies.” Gannett, 286 

F.3d at 746 (citation and internal quotation marks omitted). As 

in Gannett, the fact that state law is implicated in this breach 

of contract action does not militate in favor of abstention, 

“particularly since both parties may find an adequate remedy in 

either state or federal court.” Id. at 747 (citation and 

internal quotation marks omitted).

In our view, consideration of the Colorado River factors 

leads to the inescapable conclusion that this case does not 

present exceptional circumstances justifying a federal court 

surrendering its jurisdiction. The only factor that arguably 

weighs in favor of abstention is the inconvenience of the 

federal forum factor. Yet, this factor, standing alone under 

the circumstances of this case, is insufficient to uphold the 

district court’s decision. Cf. AXA Corporate Solutions v. 

Underwriters Reins. Corp., 347 F.3d 272, 279 (7th Cir. 2003) 
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(“The court was aware that there are powerful reasons for giving 

precedence to the Texas proceeding: all the parties are there, 

in one capacity or another, and there is no special expertise an 

Illinois federal court can bring to bear that would outweigh the 

efficiencies inherent in the ability to consider the case as a 

whole. Yet that cannot be enough; otherwise, the Court would 

not have stressed the ‘unflagging obligation’ of the federal 

courts to hear cases properly before them.”). MidAtlantic

properly filed this case in federal court, and it is entitled to 

its federal forum.*

 Accordingly, we vacate the district court’s 

 * We note that, in its opinion, the district court also 

found that MidAtlantic’s filing of the federal action was 

premised on an improper motive. Such finding was based on the 

facts that MidAtlantic filed the federal action “almost 

immediately after being served” in the Tennessee state court 

action and that MidAtlantic failed to “offer any explanation as 

to why” the federal action was filed. (J.A. 109-10). The 

district court’s findings raise the question of whether a 

party’s motivation in pursuing parallel state or federal 

litigation may be a relevant factor in the exceptional 

circumstances equation. In dicta, the Supreme Court has 

remarked that motivation may play a role in the Colorado River

abstention determination. Moses H. Cone, 460 U.S. at 17–18 

n.20. We need not decide what role an improper motive plays in 

the Colorado River abstention determination, because there is no 

evidence to support the district court’s finding that 

MidAtlantic had an improper motive in bringing the federal 

action. There is nothing sinister in the timing of the filing 

of the federal action–a later complaint is always going to be 

filed in the parallel litigation context, and there is nothing 

extraordinary about a three-week difference. Nor can we discern 

an improper motive from the forum selected by MidAtlantic. 

After all, part of the contract was performed in Virginia, AGC 

was authorized to do business in Virginia, AGC had an appointed 

agent to receive service of process in Virginia, and some of the 

(Continued)
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judgment and remand for further proceedings consistent with this 

opinion.

We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process.

VACATED AND REMANDED

 

dolomite at issue presumably remains in a warehouse there. 

Finally, the circumstances in which courts have found improper 

motive simply are not present here. Cf. Vulcan Chem. Techs., 

Inc. V. Barker, 297 F.3d 332, 343-44 (4th Cir. 2002) (after 

applying the six Colorado River factors, the court discussed the 

inherent unfairness of allowing a company that was ordered to 

pay $21 million in damages in a California state court case to 

vacate that decision in a subsequent federal action in 

Virginia); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 

947 F.2d 529, 534 (1st Cir. 1991) (stating that the district 

court did not err in counting “the motivation factor against 

retaining jurisdiction” where the district court found that the 

plaintiff’s decision to switch to federal court stemmed from the 

plaintiff’s unsuccessful effort to obtain a preliminary 

injunction in the state court); Telesco v. Telesco Fuel & 

Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir. 1985) 

(affirming the dismissal of a federal action filed by a state 

court plaintiff, noting that deference to the state court is 

appropriate where the same party is the plaintiff in both courts 

and sues in the federal court on the same cause of action after 

suffering some failures in the earlier state court action).