FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 June 13, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-10307

Non-Argument Calendar

________________________

D.C. Docket No. 04-02637 CV-P-S

AMERITAS VARIABLE LIFE

INSURANCE COMPANY,

Plaintiff-Appellant,

versus

SUSAN L. ROACH,

Defendant-Appellee.

__________________________

Appeal from the United States District Court 

for the Northern District of Alabama

_________________________

(June 13, 2005)

Before CARNES, MARCUS and FAY, Circuit Judges.

PER CURIAM:
2

This is an appeal of a district court’s dismissal of a declaratory judgment action

in favor of a parallel state court action. It also marks our first opportunity to discuss

the circumstances under which a federal district court should decline to exercise its

discretion to accept jurisdiction of such a controversy. The district court below found

that the declaratory judgment action amounted to unnecessary and inappropriate

interference with the parallel state court action, which will resolve the entire

controversy, and granted a dismissal. We agree, finding that the district court did not

abuse its discretion, and affirm the decision below. 

I. 

In March 2002, Brooke Roach (“Mr. Roach”) met with David Guttery

(“Guttery”), an agent of Acacia National Life Insurance (“Acacia”), which is

affiliated with Ameritas Variable Life Insurance Company (“Ameritas”). On that

date, he applied for a life insurance policy to replace an existing life insurance policy

he had with another insurance carrier. Mr. Roach also assigned to Acacia all of his

benefits, interests, and rights under his existing insurance policy. Acacia

subsequently issued to Mr. Roach a new life insurance policy (the “Policy”) that

included a suicide provision. The suicide provision provided that if the insured

committed suicide within two years after the Policy date, the insurance company

would only pay “the premiums received, less any partial surrenders and
In dispute is the effective date of the Policy. 

1

3

indebtedness.” In November 2002, Ameritas assumed all rights, obligations, and

liabilities under the Policy. 

Mr. Roach died (of an apparent suicide) on March 23, 2004. On April 13,

2004, Defendant-Appellee Susan Roach (“Mrs. Roach”), the beneficiary of the

Policy, filed a claim with Ameritas to recover death benefits under the Policy.

Thereafter, on September 1, 2004, Ameritas brought a diversity action under the

Federal Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. (the “Declaratory

Judgment Act”), in the district court, seeking a declaration of the rights and

obligations of the parties under the Policy (the “declaratory action”).1

Subsequently, on October 12, 2004, Mrs. Roach filed a state court action

against Ameritas, Guttery, and Nowlin & Associates, Inc. (“NAI”), the agency that

employed Guttery (the “state court action”). The state court action asserts claims for

breach of the insurance contract and negligent supervision and hiring against

Ameritas; and claims for negligence against Guttery and NAI. Also, that same day,

Mrs. Roach filed with the district court a motion to dismiss the declaratory action in

favor of the parallel state court action. The district court ultimately determined that

the state court action was the more appropriate forum in which to hear the complete

controversy and granted Mrs. Roach’s motion to dismiss. This appeal followed.
This Circuit has repeatedly cited Kern for its elaboration of the abuse of discretion 2

standard. See United States v. Drury, 396 F.3d 1303, 1315 (11 Cir. 2005); Cooper v. Southern th

Co., 390 F.3d 695, 712 (11 Cir. 2004); United States v. Frazier, 387 F.3d 1244, 1259 (11 Cir. th th

2004) (en banc); Macklin v. Singletary, 24 F.3d 1307, 1311 (11 Cir. 1994); In re Rasbury, 24 th

F.3d 159 (11 Cir. 1994). th

4

II.

We review the district court’s dismissal of the declaratory judgment action for

abuse of discretion. Wilton v. Seven Falls Co., 515 U.S. 277, 289-90, 115 S.Ct. 2137

(1995). “[W]hen we say that a decision is discretionary, or that a district court has

discretion to grant or deny a motion, we do not mean that the district court may do

whatever pleases it. The phrase means instead that the court has a range of choice,

and that its decision will not be disturbed as long as it stays within that range and is

not influenced by any mistake of law.” Kern v. TXO Prod. Corp., 738 F.2d 968, 970

(8 Cir. 1984). Specifically, an abuse of discretion “can occur in three principal th 2

ways: [1]when a relevant factor that should have been given significant weight is not

considered; [2]when an irrelevant or improper factor is considered and given

significant weight; and [3]when all proper factors, and no improper ones, are

considered, but the court, in weighing those factors, commits a clear error of

judgment.” Id. Thus, when employing an abuse of discretion standard, we will leave

undisturbed a district court’s ruling unless we find that the district court has made a

clear error of judgment, or has applied the wrong legal standard.
Centennial Life Ins. v Poston, 88 F.3d 255, 257 (4 Cir. 1996) (citation omitted). 3 th

This Circuit has not previously espoused a specific set of criteria to be applied in cases

4

such as this one – where a district court is faced with a declaratory action brought in federal court

5

The Declaratory Judgment Act is “an enabling Act, which confers a discretion

on courts rather than an absolute right upon the litigant.” Wilton, 515 U.S. at 287

(citations omitted). It only givesthe federal courts competence to make a declaration

of rights; it does not impose a duty to do so. Brillhart v. Excess Ins. Co. of America,

316 U.S. 491, 494, 62 S.Ct. 1173 (1942). In fact, in cases such as this, the Supreme

Court has expressed that “it would be uneconomical as well as vexatious for a federal

court to proceed in a declaratory judgment suit where another suit is pending in a

state court presenting the same issues, not governed by federal law, between the same

parties.” Id. at 495. The Supreme Court has warned that “[g]ratuitous interference

with the orderly and comprehensive disposition of a state court litigation should be

avoided.” Id. This warning should be heeded. 

Guided by these general principles expressed by the Supreme Court, as well as

“the same considerations of federalism, efficiency, and comity that traditionally

inform a federal court’s discretionary decision whether to abstain from exercising

jurisdiction over state-law claims in the face of parallel litigation in the state courts,”3

we provide the following factors for consideration to aid district courts in balancing

state and federal interests.4
on the basis of diversity and a subsequent parallel lawsuit on the merits is instituted in state court. 

Other circuits, most notably the Fourth and Sixth Circuits, have already explored this question in

detail, and have set forth certain factors, which we adopt as guideposts for the district courts. 

These factors arise from a variety of sources. See Scottsdale Ins. Co. v. Roumph, 211 F.3d 964,

968 (6 Cir. 2000); Centennial Life Ins., 88 F.3d at 257; 12 Moore’s Federal Practice, § 57.42 th

(3d ed. 2005). 

6

(1) the strength of the state’s interest in having the issues raised in the

federal declaratory action decided in the state courts;

(2) whether the judgment in the federal declaratory action would settle

the controversy;

(3) whether the federal declaratory action would serve a useful purpose

in clarifying the legal relations at issue;

(4) whether the declaratory remedy is being used merely for the purpose

of “procedural fencing” – that is, to provide an arena for a race for res

judicata or to achieve a federal hearing in a case otherwise not

removable;

(5) whether the use of a declaratory action would increase the friction

between our federal and state courts and improperly encroach on state

jurisdiction;

(6) whether there is an alternative remedy that is better or more

effective;

(7) whether the underlying factual issues are important to an informed

resolution of the case;

(8) whether the state trial court is in a better position to evaluate those

factual issues than is the federal court; and 

(9) whether there is a close nexus between the underlying factual and

legal issues and state law and/or public policy, or whether federal

common or statutory law dictates a resolution of the declaratory

judgment action. 

Our list is neither absolute nor is any one factor controlling; these are merely

guideposts in furtherance of the Supreme Court’s admonitions in Brillhart and

Wilton. 

Here, the district court weighed several different factors before abstaining from
Ameritas places great emphasis on the issue of the district court’s ability to appropriately 5

exercise supplemental jurisdiction over the non-diverse third-party litigants. It argues that the

determination whether the court abused its discretion hinges on the outcome of this issue. We

disagree. The state court action includes all the parties to the dispute, which is controlled by state

law. There is no need for a federal district court to reach out for expanded jurisdiction even were

it permissible. 

7

the declaratory action in favor of the state court action. First, the district court found

that while it had before it only an incomplete set of parties and claims, the state court

action encompassed the complete controversy. Neither Ameritas, as plaintiff, nor the

district court, could compel Mrs. Roach to litigate her third-party claims in the

declaratory action, which would be the only way in which the district court could

mirror the state court action. 

Second, the district court expressed concern about its ability to appropriately

exercise supplemental jurisdiction over the non-diverse third-party litigants if Mrs.

Roach were to seek to join them. The district court noted that the question is an open

one in the Eleventh Circuit and the Supreme Court, and that although it would be

inclined to rule that such a joinder would not destroy diversity jurisdiction, the issue

was moot because Mrs. Roach had not attempted such a joinder.5

Finally, the district court concluded that to allow the declaratory action to

proceed would amount to the unnecessary and inappropriate “[g]ratuitous

interference” with the more encompassing and currently pending state court action

that was contemplated by the Supreme Court in Brillhart and Wilton. We agree.
8

Ameritas contends that the district court abused its discretion by not

considering the various factors enumerated by oursister circuits in similar situations.

To the contrary, it appears to us that the district court gave appropriate consideration

to the primary factors existing here, including the traditional concepts of federalism,

efficiency, and comity.

Under an abuse of discretion standard, we will leave undisturbed a district

court’s ruling unless we find that the district court has made a clear error of judgment,

or has applied the wrong legal standard, and we find no such errors here. Moreover,

district courts have “substantial latitude in deciding whether to stay or dismiss a

declaratory judgment suit in light of pending state proceedings.” Wilton, 515 U.S.

at 286. “In the declaratory judgment context, the normal principle that federal courts

should adjudicate claims within their jurisdiction yields to considerations of

practicality and wise judgment.” Id. We, as the reviewing court, “must be mindful

that the district courts are closer to the facts and the parties, and that not everything

that is important about a lawsuit comesthrough on the printed page.” Kern, 738 F.2d

at 970. Here, the district court adequately considered “whether the claims of all the

parties in interest [could] satisfactorily be adjudicated in [the declaratory action],

whether necessary parties have been joined, [and] whether such parties are amenable

to process in [the declaratory action].” Brillhart, 316 U.S. at 495. 
9

In our view, the district court acted well-within the range of its discretion by

heeding the Supreme Court’s admonitions in Brillhart and rightly abstaining from the

declaratory action in favor of the parallel state court action. Therefore, we find no

abuse of discretion and affirm the district court’s dismissal.

AFFIRMED.