1The Honorable Michael J. Melloy, United States District Judge for the Northern

District of Iowa, sitting by designation.

2The Honorable E. Richard Webber, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-2968

___________

State of Missouri, ex rel. Jeremiah *

W. (“Jay”) Nixon, Attorney General *

of Missouri, *

* Appeal from the United States

Appellant, * District Court for the

* Eastern District of Missouri

v. *

*

Prudential Health Care Plan, Inc., * [TO BE PUBLISHED]

Community Plan, *

*

Appellee. *

___________

Submitted: April 9, 2001

Filed: August 8, 2001

___________

Before HANSEN and BYE, Circuit Judges, and MELLOY,1 District Judge.

___________

BYE, Circuit Judge.

The State of Missouri filed two actions against Prudential Health Care Plan, Inc.,

pertaining to a single contract dispute. The State appeals the district court’s2 ruling
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dismissing the first of those actions because of a defective complaint, Fed. R. Civ. P.

12(b)(6). We dismiss the State’s appeal for two reasons. First, the State’s appeal is

wholly duplicative of its pending second action. The federal courts strongly oppose

such duplication for it promotes wasteful use of scarce judicial resources. Second, the

State seeks review of an isolated question whose disposition would not impact the

ultimate resolution of this action. The State challenges an interlocutory ruling denying

remand to state court, but not the Rule 12(b)(6) dismissal which terminated the action

in Prudential’s favor. As we explain below, we decline to exercise our jurisdiction to

review the State’s appeal.

I

The Missouri Department of Social Services contracts with health maintenance

organizations (HMOs) to provide health insurance to qualified Medicaid recipients. In

June 1997, Prudential, an HMO, contracted with the State to provide Medicaid

coverage. Federal law requires Medicaid providers to screen a percentage of young

children for lead poisoning at regular intervals, so the parties incorporated federal leadtesting regulations as terms in Prudential’s contract along with various other federal

requirements.

Some time after Prudential began providing Medicaid services under the

contract, the Missouri Patient Care Review Foundation audited Prudential’s compliance

with federal law. The Foundation’s review allegedly revealed that Prudential was

failing to provide adequate lead poisoning testing for enrolled children. It concluded

that Prudential had failed to test the proper percentage of infants for lead poisoning as

required by its contract with the State.

On November 30, 1999, the State sued Prudential in state court for violating its

obligation to test infants for lead poisoning at the rates prescribed by the contract. The
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State’s complaint stated two separate breach of contract claims as well as a fraud

claim.

Prudential promptly removed the action to federal district court. The State then

moved to remand the action to state court. The State argued that removal had been

improper because its complaint raised no issues of federal law and the parties were

non-diverse. The State acknowledged that the parties’ contract incorporated federal

law in its express terms. But the State argued that the language of federal law was part

and parcel of the contract, and therefore subject only to state-law contractual

interpretation doctrines. Prudential opposed remand on the ground that the State’s

complaint implicated a federal question. According to Prudential, the district court

would necessarily resort to interpreting federal regulations to assess whether the

contract’s terms had been breached. The district court ultimately agreed with

Prudential and denied the State’s motion to remand.

Prudential then moved to dismiss the State’s complaint under Fed. R. Civ. P.

12(b)(6) for failure to state cognizable claims. The district court granted the motion on

June 28, 2000. The court held that the State’s contract claims were pleaded

insufficiently because the State had failed to allege, as a condition precedent required

by the parties’ contract, that it had notified Prudential of its breach before filing suit.

The court also dismissed the fraud claim because the State had not pleaded the facts

substantiating fraud with the particularity demanded by Fed. R. Civ. P. 9(b). The court

dismissed the State’s complaint without prejudice, but did not enter a judgment in

accord with Fed. R. Civ. P. 58.

The State immediately appealed from the district court’s order dismissing its

complaint. The State did not challenge the court’s basis for dismissal—the pleading

defects identified in the court’s order. The State challenged only the district court’s

refusal to remand its action to state court.
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In addition to filing an appeal, the State formally notified Prudential of its

purported breach of contract, as suggested by the district court’s dismissal order. The

State then filed a new action, with a new complaint, in state court on July 26, 2000.

The new complaint ameliorated the apparent defects in the initial complaint. And then

history repeated itself. Prudential removed the second action to federal district court,

where the matter is stayed awaiting our decision in the appeal from the first action.

Both the State and Prudential have described the second action as “substantially

identical” to the first action.

II

A party may generally appeal from an adverse final decision of a district court.

28 U.S.C. § 1291. We have consistently held that a district court’s dismissal without

prejudice is one such “final decision.” See, e.g., Kolocotronis v. Holcomb, 925 F.2d

278, 280 (8th Cir. 1991); Tatum v. State of Iowa, 822 F.2d 808, 809 (8th Cir. 1987)

(per curiam). In addition, we have held that an order dismissing a complaint without

leave to amend is presumptively final. Quartana v. Utterback, 789 F.2d 1297, 1299-

1300 (8th Cir. 1986). The district court’s June 28, 2000 order dismissed the State’s

first action without prejudice, and without leave to amend. Thus, under our settled

precedent, the district court’s order formed a proper basis for the State’s appeal.

We note in passing that the district court did not issue a separate Rule 58

judgment, yet an appeal may only be taken from a judgment set forth on a separate

document. See Fed. R. Civ. P. 58; Fed. R. App. P. 4(a)(1)(A). The defect is not fatal

in this case. The Supreme Court has held that an appellant’s failure to obtain a separate

judgment from the district court may be waived if the appellee does not object, and if

the district court’s order actually disposes of all issues in the action. Bankers Trust Co.

v. Mallis, 435 U.S. 381, 387-88 (1978) (per curiam). Prudential has waived any

objection to the lack of a Rule 58 judgment, and the district court resolved the entirety

of the issues presented for its consideration, so the absence of a Rule 58 judgment does
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not preclude our consideration of the State’s appeal. See Hall v. Bowen, 830 F.2d 906,

911 n.7 (8th Cir. 1987) (applying Bankers Trust). We have jurisdiction to consider this

appeal.

III

The existence of jurisdiction usually compels its exercise. The Supreme Court

has noted a “virtually unflagging obligation” on the part of federal courts to exercise

their jurisdiction. Colorado River Water Conservation Dist. v. United States, 424 U.S.

800, 817 (1976). Hence federal courts need rarely grapple with the propriety of

exercising their jurisdiction. In the ordinary case, a federal court moves immediately

to consider the merits of a controversy once its jurisdiction is determined.

Federal courts have nevertheless recognized several prudential limits upon the

exercise of the jurisdiction bestowed by Congress. The present controversy between

the State and Prudential embodies one such limitation: the principle that federal courts

may decline to exercise their jurisdiction in order to prevent duplicative litigation.

Although we have concluded that the State’s appeal falls within our jurisdiction, we

believe that this appeal presents an exceptional case in which we should decline to

exercise that jurisdiction.

A 

Concerns of federalism and efficiency undergird the few limitations on the

exercise of extant jurisdiction. These limitations invariably arise when parties

undertake litigation in multiple fora. Because litigation ensues in more than one venue,

a federal court’s decision not to exercise its jurisdiction does not deprive the parties of

a forum in which to air their grievances. The parties may resolve their differences

elsewhere.
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The best-known prudential limits on the exercise of jurisdiction are the

abstention doctrines. These doctrines permit (and sometimes require) federal courts

to decline their jurisdiction in favor of certain parallel state proceedings. See R.R.

Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941) (permitting abstention in a case

presenting a federal constitutional issue which might be mooted or presented in a

different posture by a state court determination of pertinent state law); Burford v. Sun

Oil Co., 319 U.S. 315 (1943) (permitting abstention when the exercise of federal

review would disrupt state efforts to establish a coherent policy with respect to a matter

of substantial public concern); Younger v. Harris, 401 U.S. 37 (1971) (requiring

abstention—in most instances—when federal jurisdiction is invoked to restrain state

criminal proceedings).

The abstention doctrines offer limited guidance for present purposes because

they operate when state and federal proceedings are concurrent. In contrast, the case

at hand entails concurrent federal cases. But the abstention doctrines do point our

analysis in the proper direction.

The abstention doctrines are cousins to an additional prudential limitation on the

exercise of federal jurisdiction. The Supreme Court has identified a general policy that

duplicative litigation in federal courts should be avoided. See Colorado River, 424

U.S. at 817. In Colorado River, the Court held that in truly exceptional circumstances,

a federal court could dismiss a properly-filed action in favor of concurrent, identical

state-court litigation. Id. at 818-20. By its own terms, Colorado River applies only to

concurrent state and federal litigation. But the Court’s opinion discussed concurrent

federal litigation as well. The Court carefully contrasted its holding—that federal

courts could in rare cases abstain in deference to highly similar state litigation—to

circumstances involving concurrent federal cases.

Generally, as between state and federal courts, the rule is that the

pendency of an action in the state court is no bar to proceedings
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concerning the same matter in the Federal court having jurisdiction. As

between federal district courts, however, though no precise rule has

evolved, the general principle is to avoid duplicative litigation.

Id. at 817 (internal citations and quotations omitted); cf. Kerotest Mfg. Co. v. C-O-Two

Fire Equip. Co., 342 U.S. 180, 183-84 (1952) (permitting a district court to stay a

declaratory judgment action in the District of Delaware in favor of an underlying patent

infringement action in the Northern District of Illinois to avoid duplicative litigation).

Three circuits have amplified the general policy against concurrent federal

litigation expressed in Colorado River. These circuits have explained that a district

court may, “for reasons of wise judicial administration,” dismiss one of two identical,

pending actions. Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993)

(quotation omitted); Zerilli v. Evening News Ass’n, 628 F.2d 217, 222 (D.C. Cir.

1980); Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en banc) (A plaintiff has

“no right to maintain two separate actions involving the same subject matter at the same

time in the same court and against the same defendant.”) (citations omitted).

Our own cases have not treated the precise scenario in which a plaintiff attempts

to maintain two actions against the same defendant in the same court. Yet we have

cautioned against similar attempts at duplicative litigation. For example, we have

affirmed a district court’s dismissal of one action when an apparently identical, second

action was filed in the United States District Court for the Southern District of Florida.

Anheuser-Busch, Inc. v. Supreme Int’l Corp., 167 F.3d 417, 418-19 (8th Cir. 1999).

Drawing upon Colorado River and the circuit decisions we have described

above, we discern a prudential limitation on the exercise of federal jurisdiction.

Plaintiffs may not pursue multiple federal suits against the same party involving the

same controversy at the same time. See Colorado River, 424 U.S. at 817 (“the general

principle is to avoid duplicative litigation”) (citations omitted). We join with other
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circuits in voicing opposition to duplicative federal litigation, and we now apply this

principle to the State’s appeal.

B

The State’s appeal concerns one of two apparently identical actions against

Prudential, and is therefore duplicative. The dispute between the State and Prudential

is analogous to Serlin, Zerilli, and Walton in all material respects. The sole difference

between those cases and the present case is the identity of the federal forum. In Serlin,

Zerilli, and Walton, a single district court faced two identical actions. In our case,

however, one action pends before the court of appeals while the other pends in the

district court. This distinction does not preclude application of the anti-duplicativelitigation principle here because there are economic and jurisprudential reasons to apply

the policy against duplicative litigation both to district-district duplication and districtcircuit duplication.

The policy against duplicative litigation is motivated largely by economic

concerns. It makes little sense to proscribe district-district duplication but not districtcircuit duplication, as both forms of duplication require the unnecessary expenditure of

scarce federal judicial resources. Any form of duplication requires the federal judicial

system (broadly speaking) to adjudicate two actions when one action will resolve the

parties’ controversy. Moreover, in some cases, district-circuit duplication will be

reincarnated as district-district duplication at a later stage of litigation. If a circuit court

reversed a district court decision and remanded for further proceedings, the district

court would then face the remanded action as well as the other pending

action—precisely the predicament encountered in Serlin, Zerilli, and Walton. Districtdistrict duplication and district-circuit duplication are so closely related that the federal

policy opposing the former practice ought properly to oppose the latter.
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In addition to the economic rationale advanced above, jurisprudential concerns

ground the federal policy opposing duplicative litigation. District-circuit duplication

requires a circuit court to consider unnecessary issues when the action pending in

district court would resolve the parties’ dispute to their mutual satisfaction. Even if the

district court action does not lead the parties to a mutually agreeable resolution, the

happenstance of subsequent settlement talks, strategic developments, and financial

concerns may obviate the need for an appeal. For this reason, federal appellate courts

resist deciding issues that may be mooted by subsequent events. Cf. City of Fort

Madison v. Emerald Lady, 990 F.2d 1086, 1089 n.7 (8th Cir. 1993) (refusing to

address an issue that “would be rendered academic” in light of subsequent proceedings

in the district court because of “the waste of judicial and party resources” thereby

entailed); see also Fogie v. Thorn Americas, Inc., 95 F.3d 645, 649 (8th Cir. 1996)

(preferring a single appeal that develops the full panoply of issues to piecemeal

appellate litigation); 15A Charles Alan Wright et al., Federal Practice & Procedure §

3907 (2d ed. 1992) (a single appeal “serves the more abstract interest of avoiding

unnecessary appellate lawmaking.”). Thus the wiser course, and the one we pursue

here, is to await an appeal in the second action, rather than deciding the (potentially

unnecessary) remand question posed in the State’s appeal from the first action. Cf. Fort

v. Roadway Express, Inc., 746 F.2d 744, 747-48 (11th Cir. 1984) (dismissing an appeal

for lack of jurisdiction on these grounds).

IV

Concerns of duplication aside, the State’s appeal suffers from an additional

infirmity. The State effectively seeks an advisory ruling by requesting relief that would

have no application to the action presented for our consideration.

The State has not appealed the dismissal of its complaint for the reasons

identified in the district court’s June 28, 2000 order. The State’s failure to contest the

basis for that dismissal, coupled with the State’s subsequent conduct, evinces a
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reluctant acknowledgment that its complaint in the first action was defective. The State

did not simply regurgitate its first complaint when it filed a second action. The State

notified Prudential of its alleged breach and apparently fixed the alleged defects that

inhered in the complaint in the first action. At oral argument, the State essentially

conceded that it had no interest in litigating the dispute against Prudential under the first

complaint. Rather, the State hoped to obtain a favorable ruling on the remand question

in the context of the first action so that ruling could be applied to the pending second

action.

We acknowledge the possibility, perhaps even the probability, that our review

of the remand question in this appeal from the first action could be applied to the

second action. But we are reluctant to decide a question that the State admits has no

bearing on the disposition of the first action. Only the first action is presented for our

review in this appeal. By electing not to appeal from the Rule 12(b)(6) dismissal of the

first action, the State is bound by that ruling. Thus our review of the interlocutory

remand question would have no effect upon the ultimate disposition of the case before

us. See Erwin Chemerinsky, Federal Jurisdiction 53 (3d ed. 1999) (“[A] federal court

decision is purely advisory if it has no effect.”).

The State also urges us to resolve the remand issue it has briefed because of the

great importance it places on proceeding in its own court system. We recognize that

the State will not have the benefit of litigating this controversy on its own turf. But the

State may present the remand issue for our review at the culmination of its second

action, if the State does not prevail in the district court. We are unmoved by the State’s

desire for more expeditious review because plaintiffs are routinely denied immediate

review of the denial of remand. See 16 Moore’s Federal Practice § 107.44[1][a] (3d

ed. 2000) (explaining that an order denying remand of a removed case is not

independently appealable); cf. Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1240 n.2

(8th Cir. 1995) (implying the same). Our ruling will not deprive the State of appellate

review of this issue. If the State files its remand motion in the second action and it is
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denied, and if the State loses on the merits in its second action, the State may then

appeal the district court’s refusal to remand to state court.

* * * * *

Our decision not to decide this appeal rests upon the important principle that a

plaintiff may not simultaneously litigate two federal actions against the same defendant

involving the same controversy. We believe that the economic and jurisprudential

grounds for this decision trump the State’s desire for immediate review of the district

court’s decision not to remand its initial action to state court.

As a practical matter, our decision illustrates that a plaintiff whose action is

dismissed without prejudice by a district court faces an election. A plaintiff may stand

on his complaint and appeal its dismissal to the court of appeals. Alternatively, a

plaintiff may file a new action correcting the deficiencies in the first action. But a

plaintiff may not select both courses of action, for that approach begets the type of

duplicative litigation that we reject in this case.

We therefore dismiss the State’s appeal.

HANSEN, Circuit Judge, concurring specially.

I join the court's opinion with respect to Parts I and II, and I concur in those

portions of Part IV that address the issue of an advisory ruling, upon which, in my

view, this case turns. I also concur in the court's judgment. "Under Article III of the

Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.

It is of no consequence that the controversy was live at earlier stages in this case; it

must be live when we decide the issues." Doe v. LaFleur, 179 F.3d 613, 615 (8th Cir.

1999) (internal quotations omitted). Here, the State acknowledges that resolution of

the issue of remand has no effect because no further action can be taken in the case
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before us. As the court's opinion points out, the State does not contest the district

court's Rule 12(b) dismissal.

[A] federal court has neither the power to render advisory opinions nor to

decide questions that cannot affect the rights of litigants in the case before

them. Its judgments must resolve a real and substantial controversy

admitting of specific relief through a decree of a conclusive character, as

distinguished from an opinion advising what the law would be upon a

hypothetical state of facts. 

Preiser v. Newkirk, 422 U.S. 395, 401 (1975) (internal quotations omitted). Therefore,

I agree that we should decline to issue an advisory opinion with respect to how the

district court should handle an expected similar, future remand motion which may be

filed in the follow-up case now pending in the district court. However, I respectfully

decline to join Part III because, in my view, that part is unnecessary for our court's

holding.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.