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. e du/thir dc ir c uit_1997/117Filed 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

2OPINION OF THE COURT

NYGAARD, Circuit Judge

.

Tara Ryan appeals from the district court's decisio n to dismiss her diversity action under the doctrine set forth in
Colorado River Water Conservation District v. Unite d 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 own ed by Charles and LouAnn Johnson and rented for the summer to the remaining defendants. The exterior, s econdfloor deck of the house suddenly collapsed, injurin g 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 distric t court, alleging that the defendants negligently caused her injuries. The remaining sixteen plaintiffs, however, were non diverse
from the defendants and filed their suits in the Ne w 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 C olorado
River , arguing that the presence of parallel state and f ederal proceedings involving the same issues counseled in favor of abstention. The district court, in an unreported op inion, agreed and granted the motion, primarily to avoid "piecemeal litigation" and because the case was lik ely to involve complex state law issues. This appeal follo wed.

II.

It is axiomatic that federal courts have a "virtual ly unflagging obligation . . . to exercise the jurisdi ction given

3them" 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 Jus tice Marshall, stated:

It is most true that this Court will not take jurisdiction if it should not: but it is equally tr ue, that it must take jurisdiction if it should. . . . We ha ve no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. Th e one or the other would be treason to the constitution.

This principle is no less true in cases where, as h ere, there is a parallel litigation in a state court. "T he rule is well recognized that the pendency of an action in t he state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . ." C olorado
River , 424 U.S. at 817, 96 S. Ct. at 1246 (quoting McCle llan
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. P eat
Marwick Main & Co ., 923 F.2d 265, 275-76 (3d Cir. 1991) ("The general rule regarding simultaneous litigatio n 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 considerat ions of "wise judicial administration, giving regard to con servation 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 exceptiona l circumstances where the order to the parties to rep air 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 t hat no one

4factor 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 th e state
court assumed in rem

jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirab ility 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 w hether the district court properly applied this narrow exc eption to jurisdiction on the facts of the present case.

A.

A threshold issue that must be decided in any Color ado
River abstention case is whether the two actions are "parallel." If they are not, then the district cour t 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 join ed the
architects and builders of the beach house as third -party defendants, and that such joinder might not be poss ible in the federal litigation because one of those parties might successfully avoid service of process. She also ass erts that "John Doe" defendants have been joined in state cou rt, tolling the statute of limitations, but that this j oinder is likely to be impossible in federal court because th e statute of limitations will have run by the time these defe ndants' true identities are discovered. This is far too spe culative 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 cas es, while otherwise involving the same facts and issues, have different plaintiffs and the federal plaintiff is not joined in the state litiga tion. There is some question whether, in the absence of identical plain tiffs, 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 improp er on this basis; thus, the issue is not before us and we express no opinion on it.

5B.

1.

Once the state and federal cases are found to be pa rallel, the next inquiry is whether the district court abus ed its discretion when it decided to abstain, an inquiry w hich is
conducted under the factors set forth in Colorado R iver 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 it s 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 jud gment of its water rights in that region. Shortly thereaf ter, one of
the federal defendants filed an action in state cou rt, seeking to join the United States as a party under the McCa rran Amendment, 43 U.S.C. § 666, which allows such joind er 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 dismi ss the federal action, the Supreme Court focused its atten tion on what it considered the most important factor on the record before it: avoiding piecemeal litigation. The extra ordinary nature of the McCarran Amendment, which allows the United States to be deprived of its right to adjudi cation in a federal forum, see 28 U.S.C. § 1346, was evidence of a clear federal policy that the state court systems w ere the preferred means for avoiding the piecemeal adjudica tion of water disputes. Colorado River , 424 U.S. at 819, 96 S. Ct.
at 1247.2

___________________________________________________ ______________

2. Regarding the other factors, the Court stated th at the fact that no proceedings of substance had occurred in the distri ct 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.

6Several years later, the Supreme Court further refi ned

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 proceed ings arising out of a building construction dispute in w hich a hospital sued a contractor in state court and the c ontractor sought enforcement of a contractual arbitration cla use against the hospital in federal district court. The re, the
Court reiterated the narrowness of the Colorado Riv er 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 re quires piecemeal adjudication of certain disputes when nec essary 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 res pect to that issue, the court noted that the Arbitration Ac t, 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 tas k is to ascertain whether there exist "exceptional" circumstances, the "clearest of justifications," th at can
suffice under Colorado River to justify the surrender

of that jurisdiction. Although in some rare circumstan ces 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 requ ire a state court to issue an order compelling arbitration, the Court fo und that this factor weighed against abstention. Id. at 26-27, 103 S. Ct. at 942-43.

7We 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 c ourt. One of the companies then filed a federal diversity act ion against an individual defendant as guarantor of the other
business' debt. The district court dismissed the fe deral suit, but we reversed, holding that none of the factors t hat justified abstention in Colorado River was present. Id. at
1127.

On the other hand, we upheld the use of Colorado Ri ver abstention in Ingersoll-Rand Fin. Corp. v. Callison , 844 F.2d 133 (3d Cir. 1988). There, the holder of a notefile d a diversity suit against its maker. Already pending i n Texas state court was a securities fraud action by the fe deral defendant against the federal plaintiff. Under 15 U .S.C. § 77v, the securities case was nonremovable even th ough it
arose under federal law. We held that that statute was evidence of a strong federal policy against pieceme al litigation:

The mandate of § 77v cannot be effectuated if the plaintiff in a securities case brought in state cou rt may be thwarted in his choice of forum by being forced to litigate simultaneously his claims as defenses in f ederal

court.

Id. at 137. Thus, it is evident that the "avoidance of piecemeal litigation" factor is met, as it was in C allison and
Colorado River

itself, only when there is evidence of a strong federal policy that all claims should be tried in t he state courts. See Kentucky West Virginia Gas Co. v. Penns ylvania 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 M cCarran
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. Pern sley , 755 F.2d 338, 345 (3d Cir. 1985) (similar)).

A recent decision of this court, however, has recen tly applied a broader standard to the "avoidance of pie cemeal

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

class action sounding in negligence against his dia lysis center and several of its suppliers, which he alleg ed injured him and the other members of the class. Another par ty had already filed a similar action in state court. This person successfully intervened in the federal action, afte r 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 is sues 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 congre ssional policy against piecemeal litigation in the specific conte xt of the case under review. See, e.g. , Colorado River , 424 U.S. at 819, 96 S. Ct. at 1247 ("The clear federal policy e vinced by [the McCarran Amendment] is the avoidance of piecem eal 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 fi eld of water rights is one peculiarly appropriate for comprehensive treatment in the forums having the greatest experti se and experience." (Emphasis added.)) The presence of gar denvariety state law issues has not, in this circuit, been considered sufficient evidence of a congressional p olicy to consolidate multiple lawsuits for unified resolutio n in the state courts. See Kentucky West Virginia Gas Co. , 791 F.2d at 1118 (requiring congressional legislation); Harr is , 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 conce rn for

9avoiding piecemeal adjudication is met only where i t "gives

rise to special complications[,]" not in straightfo rward 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 Ma ryland

, Colorado River , McClellan and Sherwood that "the pendency of an action in the state court is no bar to procee dings concerning the same matter in the Federal court hav ing jurisdiction . . . ." Colorado River , 424 U.S. at 817, 96 S. Ct. at 1246. If this were the law, it is difficult to c onceive of any parallel state litigation that would not satisfy th e "piecemeal adjudication" factor and militate in favor of Color ado River abstention. If that is true, then the "virtually un flagging obligation of the federal courts to exercise the ju risdiction 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 pres ume 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 b ound 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 ou r 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 present s special considerations justifying finding the "piec emeal adjudication" factor satisfied. Relying on the reas oning of the district court, they invite us to hold that the presence of a limited fund may constitute a special circumst ance beyond the mere presence of parallel state-federal litigation. Specifically, they point to the limited fund of ins urance available to satisfy the claims of the dozens of pe ople who were injured in the deck collapse. Were both the st ate and federal actions to proceed, appellees argue, the fe deral

10plaintiff might obtain a judgment first and collect a disproportionate sum, leaving a greatly depleted "p ot" for the other claimants. Although we are not unmindful of that concern, we nevertheless hold that it does not supp ort
Colorado River

abstention.

First of all, limited fund problems are, unfortunat ely, not uncommon in tort litigation. That fact itself makes such cases unlikely candidates for abstention under Colo rado
River , given the Supreme Court's admonition that "only exceptional circumstances, the clearest of justific ations, . . . 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 importa ntly, it is Congress that granted plaintiffs like Ryan di versity jurisdiction under 28 U.S.C. § 1332, and it is evid ent from the cases reviewed supra

that only a congressional intent to require state-court adjudication, such as the McCar ran Amendment or 15 U.S.C. § 77v, will be sufficient to divest it. Cf. MCI Telecommunications Corp. v. Teleconcept s, Inc.

, 71 F.3d 1086, 1109 (3d Cir. 1995) (Nygaard, J., con curring) (noting that state law cannot divest a federal cour t of the jurisdiction conferred on it by Congress), cert. de nied , 117 S. Ct. 64 (1996). When Congress enacts a statute th at allows the United States to be joined as a defendan t in

state court or that forbids the removal of certain kinds of securities cases, it is making a strong statement t hat these cases either belong in state court or that the plai ntiff's choice of a state forum is a paramount interest. Th ere 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 pri ncipal factor on which the court justified its abstention decision: the presence of state law issues.

2.

The district court concluded that the presence of s tate law issues, including the construction of state and local building codes, counseled in favor of abstention. W e disagree. As Cone made clear, while the presence of federal

11issues militates against abstention, the converse c annot be

said; abstention cannot be justified merely because a case arises entirely under state law. 460 U.S. at 26, 10 3 S. Ct. at 942. On the other hand, the Cone Court did hint that, "in some rare circumstances[,]" state law issues co uld 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 ma ny businesses in Manhattan for several days. Some of t hose businesses recovered under their business interrupt ion policies, and the insurers filed subrogation action s in federal court against the allegedly negligent city and public utility companies. Meanwhile, Gimbel's Department S tore and several hundred other plaintiffs commenced a st ate court action against the same defendants, seeking t o recover those sums not covered by insurance. The co urt held that, because the case raised novel issues of state tort and construction law, the scales were tipped in fav or of
abstention. Id. at 211.4

Whatever its inherent persuasiveness, Arkwright-Bos ton is distinguishable from this case. Although a few d ozen people were injured by the deck collapse, this is h ardly a mass tort situation with hundreds of claims and par ties. It thus presents a far less compelling argument for ab stention than was present in Arkwright-Boston

.

We are also skeptical of Arkwright-Boston 's rationale, at least as applied to the straightforward state negli gence 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 federa l 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 diversit y case in which the law was not entirely settled. Nor do w e see any principled difference between the interpretation of state law generally and the construction of building codes. T hose laws and regulations are no more inherently complex or unsettled than any other state statute or regulatio n. We
therefore conclude that the district court erred wh en 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 protec t Ryan's rights militated in favor of surrendering jurisdict ion. It opined:

While plaintiff argues that "there are inherent dan gers in forcing a non-resident plaintiff from Massachuse tts to proceed at the local state level," this Court do es not find such arguments persuasive at this point in history. Beyond this general concern that a foreign litigant would be disfavored, plaintiff has identif ied no
reasons to believe that the state court would be inadequate to protect her rights. We therefore conc lude 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 t wo

reasons.

First, regardless of a district court's personal vi ews on the subject, it is the singular role of Congress to amend or repeal the diversity statute, 28 U.S.C. § 1332. Whi le this issue has generated much controversy and a number o f legislative proposals to do just that, none has yet been enacted. Until such time as that may happen, the fe deral courts have no choice but to apply the statute fait hfully
and in accordance with well-settled law.

Second, the mere fact that the state forum is adequ ate does not counsel in favor of abstention, given the heavy presumption the Supreme Court has enunciated in fav or of exercising federal jurisdiction. Instead, this fact or is

13normally relevant only when the state forum is in adequate.

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, a nd the Supreme Court weighed this factor against abstentio n. 460 U.S. at 26-27, 103 S. Ct. at 942-43. When the state court is adequate, however, the factor carries little wei ght. 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 pre sumption in favor of exercising jurisdiction over this case has not
been overcome.5 We will reverse and remand the caus e 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 t he subject of serious dispute, hence we need not address those factors he re.

14