1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-30-1997

Ryan v. Johnson

Precedential or Non-Precedential:

Docket 96-5419

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Recommended Citation

"Ryan v. Johnson" (1997). 1997 Decisions. Paper 117.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/117
Filed May 30, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-5419 

TARA RYAN 

Appellant 

v. 

CHARLES V. JOHNSON; LOUANN JOHNSON, h/w; TED 

CAM, JR.; MELANIE WEISS; GREGORY KIESER; SAMUEL 

D. HEWINS; MARIAN PAUZA; LAURA ELIZABETH PRENG; 

OMER C. MARION; KRISTIN PAULICK; JENNIFER RADAR; 

MATTHEW MCCABE; MICHAEL J. LANG 

CHARLES V. JOHNSON; LOUANN JOHNSON 

Third-Party Plaintiffs 

v. 

THEODORE CAM, JR.; GREGORY KIESER; SAMUEL D. 

HEWINS; MARIAN PAUZA; LAURA E. PRENG; MICHAEL J. 

LANG; OMER C. MARION; KRISTIN PAULICK; JENNIFER 

RADAR; MATTHEW MCCABE; MELANIE WEISS 

Third-Party Defendants 

(D.C. No. 95-cv-05789) 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

Argued April 15, 1997 

Before: SCIRICA, COWEN and NYGAARD, Circuit Judges. 

(Opinion filed May 30, 1997) 
MICHAEL D. SHAFFER, ESQUIRE 

 (Argued) 

Suite 300 

330 Market Street 

Philadelphia, PA 19106 

Attorney for Appellant 

LEWIS B. APRIL, ESQUIRE 

Cooper, Perskie, April, 

Niedelman, Wagenheim & Levenson 

1125 Atlantic Avenue, Suite 320 

Atlantic City, NJ 08401 

THOMAS F. BRADLEY, ESQUIRE 

 (Argued) 

Hankin, Sandson & Sandman 

30 South New York Avenue 

Atlantic City, NJ 08401 

Attorneys for Appellees 

Charles V. Johnson and LouAnn 

Johnson 

JOHN R. MOELLER, JR., ESQUIRE 

Law Offices of Stephen E. Gertler 

1350 Campus Parkway 

P.O. Box 1447 

Wall Township, NJ 07719 

Attorney for Appellee 

Ted Cam, Jr. 

MICHAEL B. OROPOLLO, ESQUIRE 

Harwood Lloyd 

Two Tower Center 

East Brunswick, NJ 08816 

Attorney for Appellee 

Kristin Paulick 

 2 
OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

Tara Ryan appeals from the district court's decision to 

dismiss her diversity action under the doctrine set forth in 

Colorado River Water Conservation District v. United States, 

424 U.S. 800, 96 S. Ct. 1236 (1976), and subsequent

cases. Because the district court applied Colorado River

abstention incorrectly, we will reverse. 

I. 

In 1995, Ryan attended a party at a beach house owned 

by Charles and LouAnn Johnson and rented for the 

summer to the remaining defendants. The exterior, secondfloor deck of the house suddenly collapsed, injuring at least 

thirty-three persons, including Ryan, who suffered a 

serious spinal injury. To date, seventeen of these persons 

have filed suit. 

Ryan filed this diversity action in federal district court, 

alleging that the defendants negligently caused her injuries. 

The remaining sixteen plaintiffs, however, were nondiverse 

from the defendants and filed their suits in the New Jersey 

Superior Court. In that state court action, twenty-two other 

parties have been joined as third-party defendants,

including contractors, realtors and predecessors in title. 

Defendants in the federal action moved the district court 

to abstain from exercising its jurisdiction under Colorado

River, arguing that the presence of parallel state and federal 

proceedings involving the same issues counseled in favor of 

abstention. The district court, in an unreported opinion, 

agreed and granted the motion, primarily to avoid 

"piecemeal litigation" and because the case was likely to 

involve complex state law issues. This appeal followed. 

II. 

It is axiomatic that federal courts have a "virtually 

unflagging obligation . . . to exercise the jurisdiction given 

 3 
them" by Congress. Colorado River, 424 U.S. at 817, 96 S. 

Ct. at 1246. This precept can be traced at least as far back 

as Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821), 

where the Supreme Court, speaking through Chief Justice 

Marshall, stated: 

 It is most true that this Court will not take 

jurisdiction if it should not: but it is equally true, that 

it must take jurisdiction if it should. . . . We have no 

more right to decline the exercise of jurisdiction which 

is given, than to usurp that which is not given. The one 

or the other would be treason to the constitution. 

This principle is no less true in cases where, as here, 

there is a parallel litigation in a state court. "The rule is 

well recognized that the pendency of an action in the state 

court is no bar to proceedings concerning the same matter 

in the Federal court having jurisdiction . . . ." Colorado

River, 424 U.S. at 817, 96 S. Ct. at 1246 (quoting McClellan

v. Carland, 217 U.S. 268, 282, 30 S. Ct. 501, 505 (1910)); 

accord Chicot County v. Sherwood, 148 U.S. 529, 534, 13 S. 

Ct. 695, 697-98 (1893); University of Maryland v. Peat

Marwick Main & Co., 923 F.2d 265, 275-76 (3d Cir. 1991) 

("The general rule regarding simultaneous litigation of 

similar issues in both state and federal courts is that both 

actions may proceed until one has come to judgment, at 

which point that judgment may create a res judicata or 

collateral estoppel effect on the other action.") (citing 

McClellan). 

Nevertheless, in Colorado River, the Supreme Court 

recognized that there are certain extremely limited

circumstances in which a federal court may defer to

pending state court proceedings based on considerations of 

"wise judicial administration, giving regard to conservation 

of judicial resources and comprehensive disposition of 

litigation." 424 U.S. at 817, 96 S. Ct. at 1246. It

emphasized that "[a]bdication of the obligation to decide 

cases can be justified . . . only in the exceptional 

circumstances where the order to the parties to repair to 

the state court would clearly serve an important 

countervailing interest." Id. at 813, 96 S. Ct. at 1244. 

The Court then set forth several factors which can 

support this type of abstention, after cautioning that no one 

 4 
factor is determinative and "[o]nly the clearest of

justifications will warrant dismissal." Id. at 818-19, 96 S. 

Ct. at 1247. Those factors included: (1) whether the state 

court assumed in rem jurisdiction over property; (2) the 

inconvenience of the federal forum; (3) the desirability of 

avoiding piecemeal litigation; and (4) the order in which 

jurisdiction was obtained by the concurrent forums. Id. at 

818, 96 S. Ct. at 1246-47. The issue before us is whether 

the district court properly applied this narrow exception to 

jurisdiction on the facts of the present case. 

A. 

A threshold issue that must be decided in any Colorado

River abstention case is whether the two actions are 

"parallel." If they are not, then the district court lacks the 

power to abstain. This is a legal issue over which we 

exercise plenary review. See Trent v. Dial Medical, Inc., 33 

F.3d 217, 223 (3d Cir. 1994). Generally, cases are parallel 

when they involve the same parties and claims. Id. at 224. 

Appellant argues that the state and federal actions are 

not sufficiently parallel to justify Colorado River abstention. 

She avers that the state court defendants have joined the 

architects and builders of the beach house as third-party 

defendants, and that such joinder might not be possible in 

the federal litigation because one of those parties might 

successfully avoid service of process. She also asserts that 

"John Doe" defendants have been joined in state court, 

tolling the statute of limitations, but that this joinder is 

likely to be impossible in federal court because the statute 

of limitations will have run by the time these defendants' 

true identities are discovered. This is far too speculative a 

basis on which to conclude that the two actions are not 

parallel.1 We reject appellant's argument. 

_________________________________________________________________ 

1. We note, however, that the state and federal cases, while otherwise 

involving the same facts and issues, have different plaintiffs and the 

federal plaintiff is not joined in the state litigation. There is some 

question whether, in the absence of identical plaintiffs, two cases can be 

deemed parallel for Colorado River purposes. See Alliance of American

Insurers v. Cuomo, 854 F.2d 591, 603 (2d Cir. 1988). Nevertheless, 

appellant does not argue that abstention was improper on this basis; 

thus, the issue is not before us and we express no opinion on it. 

 5 
B. 

1. 

Once the state and federal cases are found to be parallel, 

the next inquiry is whether the district court abused its 

discretion when it decided to abstain, an inquiry which is 

conducted under the factors set forth in Colorado River and 

its progeny. See Trent, 33 F.3d at 225. Of course, to the 

extent the district court evaluated a factor based on an 

erroneous view of the law, it necessarily abused its 

discretion and our review becomes plenary. See, e.g., United

States v. Romualdi, 101 F.3d 971, 973 (3d Cir. 1996); 

Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 127 

(3d Cir. 1993). 

In Colorado River, the United States filed suit in federal 

district court against a large group of water users in Water 

Division 7. The government sought a declaratory judgment 

of its water rights in that region. Shortly thereafter, one of 

the federal defendants filed an action in state court, seeking 

to join the United States as a party under the McCarran 

Amendment, 43 U.S.C. § 666, which allows such joinder in 

water rights cases, and asked the federal court to abstain. 

The district court granted the motions. 

In upholding the district court's decision to dismiss the 

federal action, the Supreme Court focused its attention on 

what it considered the most important factor on the record 

before it: avoiding piecemeal litigation. The extraordinary 

nature of the McCarran Amendment, which allows the 

United States to be deprived of its right to adjudication in 

a federal forum, see 28 U.S.C. § 1346, was evidence of a 

clear federal policy that the state court systems were the 

preferred means for avoiding the piecemeal adjudication of 

water disputes. Colorado River, 424 U.S. at 819, 96 S. Ct. 

at 1247.2 

_________________________________________________________________ 

2. Regarding the other factors, the Court stated that the fact that no 

proceedings of substance had occurred in the district court counseled in 

favor of abstention, as did the fact that the suit turned on state law 

water rights, and the 300 mile distance between the local and federal 

courts. Id at 821, 96 S. Ct. at 1248. 

 6 
Several years later, the Supreme Court further refined 

the Colorado River doctrine in Moses H. Cone Mem. Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 103 S. Ct. 927 (1983), a 

case involving concurrent state and federal proceedings 

arising out of a building construction dispute in which a 

hospital sued a contractor in state court and the contractor 

sought enforcement of a contractual arbitration clause 

against the hospital in federal district court. There, the 

Court reiterated the narrowness of the Colorado River

exception and held that abstention was improper on the 

facts before it. 

The Cone Court emphasized that the most important-- 

indeed "paramount"--factor justifying abstention in

Colorado River was the McCarran Amendment and its 

policy against piecemeal litigation. 460 U.S. at 20, 103 S. 

Ct. at 939. In contrast, the Cone case involved the Federal 

Arbitration Act, which the Court noted expressly requires

piecemeal adjudication of certain disputes when necessary 

to enforce an agreement to arbitrate. Id.

The Court then set forth another factor relevant to the 

abstention calculus under Colorado River: whether state or 

federal law provided the rule of decision. With respect to 

that issue, the court noted that the Arbitration Act, unlike 

the McCarran Amendment, did not express any strong 

preference for state proceedings that militated in favor of 

abstention. It then stated emphatically that 

our task in cases such as this 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," that can 

suffice under Colorado River to justify the surrender of 

that jurisdiction. Although in some rare circumstances 

the presence of state-law issues may weigh in favor of 

that surrender, the presence of federal law issues must 

always be a major consideration weighing against 

surrender. 

Id. at 25-26, 103 S. Ct. at 942.3 

_________________________________________________________________ 

3. Finally, the Cone Court set forth afinal consideration: whether the 

state court would adequately protect the rights at issue. Because it was 

questionable whether the Arbitration Act could require a state court to 

issue an order compelling arbitration, the Court found that this factor 

weighed against abstention. Id. at 26-27, 103 S. Ct. at 942-43. 

 7 
We too have had occasion to apply and refine the 

contours of Colorado River abstention. In Western Auto

Supply Co. v. Anderson, 610 F.2d 1126 (3d Cir. 1979), two 

businesses filed suit against each other in state court. One 

of the companies then filed a federal diversity action 

against an individual defendant as guarantor of the other 

business' debt. The district court dismissed the federal suit, 

but we reversed, holding that none of the factors that 

justified abstention in Colorado River was present. Id. at 

1127. 

On the other hand, we upheld the use of Colorado River

abstention in Ingersoll-Rand Fin. Corp. v. Callison, 844 F.2d 

133 (3d Cir. 1988). There, the holder of a notefiled a 

diversity suit against its maker. Already pending in Texas 

state court was a securities fraud action by the federal 

defendant against the federal plaintiff. Under 15 U.S.C. 

§ 77v, the securities case was nonremovable even though it 

arose under federal law. We held that that statute was 

evidence of a strong federal policy against piecemeal 

litigation: 

The mandate of § 77v cannot be effectuated if the 

plaintiff in a securities case brought in state court may 

be thwarted in his choice of forum by being forced to 

litigate simultaneously his claims as defenses in federal 

court. 

Id. at 137. Thus, it is evident that the "avoidance of

piecemeal litigation" factor is met, as it was in Callison and 

Colorado River itself, only when there is evidence of a strong 

federal policy that all claims should be tried in the state 

courts. See Kentucky West Virginia Gas Co. v. Pennsylvania

Public Utility Comm'n, 791 F.2d 1111, 1118 (3d Cir. 1986) 

(denying abstention, inter alia, because "the PUC has not 

pointed to any Congressional legislation like the McCarran 

Amendment in Colorado River that evinces `a tempering of 

the policy of enforcing the plaintiff 's choice of a federal 

forum in favor of a policy of avoiding duplicative or 

inconvenient litigation.' " (quoting Harris v. Pernsley, 755 

F.2d 338, 345 (3d Cir. 1985) (similar)). 

A recent decision of this court, however, has recently 

applied a broader standard to the "avoidance of piecemeal 

 8 
litigation" factor. In Trent, a dialysis patient filed a federal 

class action sounding in negligence against his dialysis 

center and several of its suppliers, which he alleged injured 

him and the other members of the class. Another party had 

already filed a similar action in state court. This person 

successfully intervened in the federal action, after which 

the district court sua sponte abstained under Colorado

River. We affirmed, focusing on the piecemeal litigation

factor and the presence of state law issues: 

The principal reasons to abstain . . . are to avoid

piecemeal litigation and to adjudicate state-law issues 

in state court. Here, state rather than federal law is at 

issue, and piecemeal litigation might result if the

district court presided over Trent while Snead was 

progressing through the state court system. 

Id. at 225. 

We cannot reconcile Trent with either the caselaw of this 

circuit, or Colorado River and Cone. As we have discussed 

supra, neither we nor the Supreme Court had ever held, 

until our decision in Trent, that the mere possibility of 

piecemeal litigation justifies Colorado River abstention; 

rather, there must be a strongly articulated congressional

policy against piecemeal litigation in the specific context of 

the case under review. See, e.g., Colorado River, 424 U.S. at 

819, 96 S. Ct. at 1247 ("The clear federal policy evinced by 

[the McCarran Amendment] is the avoidance of piecemeal 

adjudication of water rights in a river system."); Cone, 460 

U.S. at 16, 103 S. Ct. at 937 ("[T]he [McCarran] 

Amendment represents Congress' judgment that the field of 

water rights is one peculiarly appropriate for comprehensive 

treatment in the forums having the greatest expertise and 

experience." (Emphasis added.)) The presence of gardenvariety state law issues has not, in this circuit, been 

considered sufficient evidence of a congressional policy to 

consolidate multiple lawsuits for unified resolution in the 

state courts. See Kentucky West Virginia Gas Co., 791 F.2d 

at 1118 (requiring congressional legislation); Harris, 775 

F.2d 338 at 345 (same); Western Auto Supply, 610 F.2d at 

1127 (finding none of the Colorado River factors satisfied in 

state law action on debt); see also Burns v. Walter, 931 

F.2d 140, 146 (1st Cir. 1991) (declaring that concern for 

 9 
avoiding piecemeal adjudication is met only where it "gives 

rise to special complications[,]" not in straightforward state 

law negligence case). 

Indeed, if the mere possibility of concurrent state-federal 

litigation satisfies Colorado River's "piecemeal adjudication" 

test, the test becomes so broad that it swallows-up the 

century-old principle expressed in University of Maryland, 

Colorado River, McClellan and Sherwood that "the pendency 

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

concerning the same matter in the Federal court having 

jurisdiction . . . ." Colorado River, 424 U.S. at 817, 96 S. Ct. 

at 1246. If this were the law, it is difficult to conceive of any

parallel state litigation that would not satisfy the "piecemeal 

adjudication" factor and militate in favor of Colorado River

abstention. If that is true, then the "virtually unflagging 

obligation of the federal courts to exercise the jurisdiction 

given them[ ]" recognized in Colorado River, 424 U.S. at 

817, 96 S. Ct. at 1246, and reiterated in Cone would 

effectively be eviscerated, a result we cannot presume either 

the Supreme Court or this court to have intended. 

Under Third Circuit Internal Operating Procedure 9.1, 

when two decisions of this court conflict, we are bound by 

the earlier decision. United States v. Monaco, 23 F.3d 793, 

803 (3d Cir. 1994); O. Hommel Co. v. Ferro Corp., 659 F.2d 

340, 354 (3d Cir. 1981). It is clear that, under our prior 

caselaw, specifically University of Maryland, Kentucky West

Virginia Gas Co., Harris and Western Auto Supply, the 

"piecemeal adjudication" factor would not have been

satisfied by the presence of a state law negligence action. 

Thus, we will not apply Trent's pronouncement on this 

point to decide the issue before us. 

Appellees nevertheless argue that this case presents 

special considerations justifying finding the "piecemeal 

adjudication" factor satisfied. Relying on the reasoning of 

the district court, they invite us to hold that the presence 

of a limited fund may constitute a special circumstance 

beyond the mere presence of parallel state-federal litigation. 

Specifically, they point to the limited fund of insurance 

available to satisfy the claims of the dozens of people who 

were injured in the deck collapse. Were both the state and 

federal actions to proceed, appellees argue, the federal 

 10 
plaintiff might obtain a judgment first and collect a 

disproportionate sum, leaving a greatly depleted "pot" for 

the other claimants. Although we are not unmindful of that 

concern, we nevertheless hold that it does not support 

Colorado River abstention. 

First of all, limited fund problems are, unfortunately, not 

uncommon in tort litigation. That fact itself makes such 

cases unlikely candidates for abstention under Colorado

River, given the Supreme Court's admonition that "only 

exceptional circumstances, the clearest of justifications, . . . 

can suffice . . . to justify the surrender of . . . jurisdiction." 

Cone, 460 U.S. at 25-26, 103 S. Ct. at 942 (internal 

quotation marks and emphasis deleted). More importantly, 

it is Congress that granted plaintiffs like Ryan diversity 

jurisdiction under 28 U.S.C. § 1332, and it is evident from 

the cases reviewed supra that only a congressional intent to 

require state-court adjudication, such as the McCarran 

Amendment or 15 U.S.C. § 77v, will be sufficient to divest 

it. Cf. MCI Telecommunications Corp. v. Teleconcepts, Inc., 

71 F.3d 1086, 1109 (3d Cir. 1995) (Nygaard, J., concurring) 

(noting that state law cannot divest a federal court of the 

jurisdiction conferred on it by Congress), cert. denied, 117 

S. Ct. 64 (1996). When Congress enacts a statute that 

allows the United States to be joined as a defendant in 

state court or that forbids the removal of certain kinds of 

securities cases, it is making a strong statement that these 

cases either belong in state court or that the plaintiff's 

choice of a state forum is a paramount interest. There is 

simply no such evidence of congressional policy here. 

Accordingly, we hold that the district court erred when it 

found that the "avoidance of piecemeal litigation" factor 

supported abstention. We turn next to the other principal 

factor on which the court justified its abstention decision: 

the presence of state law issues. 

2. 

The district court concluded that the presence of state 

law issues, including the construction of state and local 

building codes, counseled in favor of abstention. We 

disagree. As Cone made clear, while the presence of federal 

 11 
issues militates against abstention, the converse cannot be 

said; abstention cannot be justified merely because a case 

arises entirely under state law. 460 U.S. at 26, 103 S. Ct. 

at 942. On the other hand, the Cone Court did hint that, 

"in some rare circumstances[,]" state law issues could 

weigh in favor of the federal court's surrender of 

jurisdiction, id., and the Second Circuit has found such 

circumstances sufficient in a mass tort case. In ArkwrightBoston Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205 

(2d Cir. 1985), a blackout forced the closing of many 

businesses in Manhattan for several days. Some of those 

businesses recovered under their business interruption 

policies, and the insurers filed subrogation actions in 

federal court against the allegedly negligent city and public 

utility companies. Meanwhile, Gimbel's Department Store 

and several hundred other plaintiffs commenced a state 

court action against the same defendants, seeking to 

recover those sums not covered by insurance. The court 

held that, because the case raised novel issues of state tort 

and construction law, the scales were tipped in favor of 

abstention. Id. at 211.4 

Whatever its inherent persuasiveness, Arkwright-Boston

is distinguishable from this case. Although a few dozen 

people were injured by the deck collapse, this is hardly a 

mass tort situation with hundreds of claims and parties. It 

thus presents a far less compelling argument for abstention 

than was present in Arkwright-Boston. 

We are also skeptical of Arkwright-Boston's rationale, at 

least as applied to the straightforward state negligence law 

issues involved here. Although it is possible that some case 

could involve a skein of state law so intricate and unsettled 

that resolution in the state courts might be more 

appropriate, traditional negligence law does notfit that 

description. It is an area, rather, in which federal courts are 

called upon routinely to predict state law. Were we to 

consider the "state law issue" factor to be met in this case, 

it would be applicable in many more instances than the 

_________________________________________________________________ 

4. The court also found the "piecemeal litigation" prong satisfied, on a 

rationale similar to Trent. As we have discussed supra, we cannot follow 

that holding. 

 12 
"rare circumstances" required by the Supreme Court in 

Cone. Instead, it would be met in nearly every diversity case 

in which the law was not entirely settled. Nor do we see any 

principled difference between the interpretation of state law 

generally and the construction of building codes. Those 

laws and regulations are no more inherently complex or 

unsettled than any other state statute or regulation. We 

therefore conclude that the district court erred when it 

concluded that this factor supported abstention. 

3. 

We think the district court also was incorrect when it 

found that the ability of the state court to protect Ryan's 

rights militated in favor of surrendering jurisdiction. It 

opined: 

While plaintiff argues that "there are inherent dangers 

in forcing a non-resident plaintiff from Massachusetts 

to proceed at the local state level," this Court does not 

find such arguments persuasive at this point in 

history. Beyond this general concern that a foreign

litigant would be disfavored, plaintiff has identified no 

reasons to believe that the state court would be 

inadequate to protect her rights. We therefore conclude 

that this factor supports a stay or dismissal. 

Ryan v. Johnson, No. 95-5789 (AET), typescript at 7 (D.N.J. 

June 13, 1996). This reasoning is problematic for two 

reasons. 

First, regardless of a district court's personal views on 

the subject, it is the singular role of Congress to amend or 

repeal the diversity statute, 28 U.S.C. § 1332. While this 

issue has generated much controversy and a number of 

legislative proposals to do just that, none has yet been 

enacted. Until such time as that may happen, the federal 

courts have no choice but to apply the statute faithfully 

and in accordance with well-settled law. 

Second, the mere fact that the state forum is adequate 

does not counsel in favor of abstention, given the heavy 

presumption the Supreme Court has enunciated in favor of 

exercising federal jurisdiction. Instead, this factor is 

 13 
normally relevant only when the state forum is inadequate. 

For example, in Cone, the federal plaintiff sought an order 

compelling arbitration. It was questionable whether the 

state court had the power to grant such an order, and the 

Supreme Court weighed this factor against abstention. 460 

U.S. at 26-27, 103 S. Ct. at 942-43. When the state court 

is adequate, however, the factor carries little weight. See

Bethlehem Contracting Co. v. Lehrer/McGovern, Inc. , 800 

F.2d 325, 328 (2d Cir. 1986). 

III. 

In conclusion, none of the Colorado River/ Cone factors 

weighs in favor of abstention. Thus, the strong presumption 

in favor of exercising jurisdiction over this case has not 

been overcome.5 We will reverse and remand the cause for 

further proceedings on the merits. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________ 

5. The district court's evaluation of the remaining factors, which did not 

weigh in favor of abstention in any event, is not the subject of serious 

dispute, hence we need not address those factors here. 

 14