FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

R.R. STREET & CO. INC.; NATIONAL 

UNION FIRE INSURANCE COMPANY OF

PITTSBURGH, PA, individually and

No. 10-55361 as subrogee of R.R. Street & Co.

Inc., D.C. No.  Plaintiffs-Appellants, 2:09-cv-06045-CASv. FMO

TRANSPORT INSURANCE COMPANY,

Defendant-Appellee. 

TRANSPORT INSURANCE COMPANY, a 

corporation,

Plaintiff-Appellee, No. 10-55404

v. D.C. No.  2:09-cv-08368-CAS- R.R. STREET & CO. INC., a

FMO corporation; NATIONAL UNION FIRE

INSURANCE COMPANY OF OPINION

PITTSBURGH, PA, a corporation,

Defendants-Appellants. 

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted

June 7, 2011—Pasadena, California

Filed September 2, 2011

16763
Before: Robert R. Beezer, Stephen S. Trott, and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Beezer

16764 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
COUNSEL

Eric Grant, Hicks Thomas LLP, Sacramento, California, for

plaintiff-defendant-appellant R.R. Street & Co. Inc.; Bryan G.

Schumann, Lewis Brisbois Bisgaard & Smith LLP, Chicago,

Illinois, for plaintiff-defendant-appellant National Union Fire

Insurance Company of Pittsburgh, Pennsylvania. 

Michael W. Wong (briefed) and Ray L. Wong (argued),

Duane Morris LLP, San Francisco, California, for the

defendant-plaintiff-appellee.

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16767
OPINION

BEEZER, Circuit Judge:

This dispute emerges from a web of state and federal litigation over liability for damages and defense costs in certain

environmental tort suits. The appeal before us concerns two

cases that mirror each other: (1) an action for damages that

the Appellants brought in federal court and (2) a declaratory

judgment action that the Appellee brought in state court,

which Appellants later removed to federal court. The district

court declined to entertain these actions, by dismissing the

former and remanding the latter, in light of a related third

action that had been pending for several years in state court.

We must examine the propriety of this decision. 

Considering the particular circumstances of this case, we

conclude that the district court had discretion under Wilton v.

Seven Falls Co., 515 U.S. 277, 289-90 (1995), and Brillhart

v. Excess Ins. Co. of Am., 316 U.S. 491 (1942), to remand the

declaratory judgment action, and that the action for damages

fell within the scope of Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800 (1976). We therefore

affirm.

I

BACKGROUND

Vulcan Materials Company (“Vulcan”) manufactures a drycleaning solvent called perchloroethylene (“PerSec”).1

Between the 1960s and the 1990s, R.R. Street & Co. Inc.

(“Street”) distributed PerSec. During this time, Vulcan named

Street as an additional insured under its insurance policies,

including an excess liability coverage policy that Transport

Insurance Company (“Transport”) issued to Vulcan in 1981

1Vulcan is not a party to either of the cases on appeal. 

16768 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
(the “1981 Policy”). Since the 1990s, a number of lawsuits

have been filed against Vulcan and Street alleging damage

caused by the sale, distribution, use or handling of PerSec

(collectively the “Tort Actions”). Street and Vulcan separately

defended these actions. Since 2005, the companies and their

insurers have engaged in an ongoing dispute over liability for

damages and defense costs in the Tort Actions. 

A. The Vulcan Action

In January 2005, Transport filed a lawsuit in the Los Angeles County Superior Court seeking a declaration of its coverage obligations to Vulcan under four consecutive insurance

policies, including the 1981 Policy. In August 2006, two other

insurance carriers filed similar actions against Vulcan and its

primary insurers in the same court. In January 2007, these

cases were consolidated into a single complex proceeding (the

“Vulcan Action”) in Los Angeles County Superior Court. 

In the meantime, Street sought reimbursement from Vulcan

for defense costs and damages in the Tort Actions. In February 2008, Street and its insurer, National Union Fire Insurance

Company of Pittsburgh, PA (“National Union”), filed a

breach of contract and indemnity action against Vulcan in the

Northern District of Illinois to recover these amounts (the “Illinois Action”). See R.R. Street & Co. v. Vulcan Materials

Co., 569 F.3d 711 (7th Cir. 2009). (We refer to Street and

National Union collectively as “Street/National Union.”) In

the Illinois Action, Street/National Union claimed that Vulcan

was liable to Street based on an indemnification provision in

the parties’ distribution contract. Id. at 713. 

In April 2008, Vulcan filed the state court equivalent of a

third-party complaint against Street/National Union in the

Vulcan Action; Vulcan hoped to resolve all indemnification

claims related to the Tort Actions in a single proceeding. Vulcan’s complaint against Street/National Union mirrored the

Illinois Action; in addition, Vulcan sought a declaration that

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16769
its insurers were liable for any obligation Vulcan owed to

Street/National Union. 

With the same claims pending in an Illinois federal court

and a California state court, Vulcan and Street/National Union

waged a battle to determine which court would hear the

claims between them.2 The state court agreed to stay the

claims against Street/National Union in the Vulcan Action

and decide them at a later stage of the litigation. 

At no point did Transport intervene in the Illinois Action,

and prior to the cases on appeal, no claims had been filed

between Street and Transport in the Vulcan Action or elsewhere.3

 Nevertheless, the parties and the court were aware of

the dormant claims between Street and Transport. In a January 2009 supplemental brief on preliminary issues in the Vulcan Action, National Union argued that the superior court’s

initial determinations would not apply to any of Street’s

potential claims under the 1981 Policy because Street was in

a different position than Vulcan. 

At a March 2009 status hearing, the parties discussed

Street’s status as an additional insured under the 1981 Policy.

Street indicated that it had made a demand for coverage under

2Vulcan filed a motion to dismiss the Illinois Action based on its new

claims in the Vulcan Action. See R.R. Street & Co., 569 F.3d at 714. As

in this case, the district court refused to exercise jurisdiction over the Illinois Action based on the Vulcan Action; however, in that case the court

relied solely on its discretion under the Declaratory Judgment Act. Id. at

714. The Seventh Circuit held that the district court abused its discretion

by applying Wilton/Brillhart to claims for damages, but the court refrained

from deciding whether Colorado River would have justified dismissal of

the action for damages. Id. at 717 & n.10. 

3Since 2006, National Union has been a defendant in the Vulcan Action

in its capacity as Vulcan’s insurer, but National Union has consistently

distinguished between its capacity as Vulcan’s insurer and its capacity as

Street’s insurer. We do not consider National Union’s involvement as Vulcan’s insurer in our analysis of this case. 

16770 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
the 1981 Policy, which Transport had rejected, but it had not

yet filed any claims against Transport in court because the

underlying Tort Actions were still pending. Street argued that

any coverage decisions regarding Vulcan should not apply to

Street because Street was covered by different primary insurance policies, was in a different position than Vulcan in relation to the Tort Actions and had not participated in discovery

or case management related to Transport’s claims against

Vulcan. The state court postponed this issue, stating that it

would decide later whether Street would be bound by a decision regarding Vulcan’s coverage under the 1981 Policy. 

In April 2009, the state court issued an order in the Vulcan

Action deciding three preliminary legal issues concerning the

scope of Transport’s liability to Vulcan under the 1981 Policy. The court determined the scope of Transport’s duty to

defend under the policy, interpreted the phrase “underlying

insurance,” and addressed whether horizontal exhaustion

applied to Vulcan’s claims under the policy. The court’s interpretation of the 1981 Policy favored Transport’s position, so

Vulcan appealed the decision to the California Court of

Appeals.

B. The Federal and Removed Actions

On August 18, 2009, while Vulcan’s appeal was pending,

Street/National Union filed an action for damages against

Transport (the “Federal Action”) in the Central District of

California. In the Federal Action, Street/National Union

asserted claims for breach of contract, subrogation, equitable

contribution and unjust enrichment under the 1981 Policy,

seeking damages and defense costs incurred in the Tort

Actions. 

A few days later, on August 20, 2009, Street/National

Union and Vulcan agreed to dismiss the claims between them

in the Vulcan Action. As of that date, Street was no longer a

party to the Vulcan Action. Upon learning that Street/National

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16771
Union had filed the Federal Action and had been voluntarily

dismissed from the Vulcan Action, the state court judge urged

Transport to either amend its complaint to name

Street/National Union as defendants in the Vulcan Action or

file a separate action against Street/National Union that could

be consolidated with the Vulcan Action. 

On November 10, 2009, Transport filed a declaratory judgment action against Street and National Union in Los Angeles

County Superior Court (the “Removed Action”). Transport’s

action mirrors the Federal Action. Transport also filed in the

state court a notice stating that its declaratory judgment action

is related to the Vulcan Action. 

On November 12, 2009, Transport filed in the district court

a motion to stay or dismiss the Federal Action in light of the

Vulcan Action and the Removed Action, which were then

separately pending in state court. On November 16, 2009,

before the district court ruled on Transport’s motion and

before the state court consolidated the Removed Action with

the Vulcan Action, Street removed Transport’s action to federal court. A few weeks later, the state court entered an order

relating the cases in the event that the Removed Action was

remanded to state court. 

The Federal Action and the Removed Action were assigned

to the same judge, and Transport quickly moved for remand

of the Removed Action as well as dismissal of the Federal

Action. On February 8, 2010, the district court granted both

of Transport’s motions. Noting the similarities between the

two actions in federal court and the Vulcan Action, the district

court exercised its discretion under the Declaratory Judgment

Act to remand the Removed Action, and the court dismissed

the Federal Action pursuant to the principles announced in

Colorado River Water Conservation Dist. v. United States,

424 U.S. 800 (1976). Based on the Rooker-Feldman doctrine,

the court also concluded that it lacked jurisdiction to decide

16772 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
any issues addressed in the state court’s April 2009 order in

the Vulcan Action. 

Street and National Union timely appealed the remand and

the dismissal, and this court consolidated the appeals. Both

the remand and the dismissal are appealable decisions. See

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712-13, 715

(1996). The district court had jurisdiction under 28 U.S.C.

§ 1332(a)(1), based on diversity of citizenship, and we have

jurisdiction to consider the appeals under 28 U.S.C. § 1291.

II

TRANSPORT’S MOTION TO DISMISS

Before examining the district court’s decision, we must

address a preliminary question — whether to dismiss

Street/National Union’s appeal of the remand order. Transport

argues that Street/National Union waived their right to “reremove” the Removed Action to federal court when they filed

a cross-complaint in the Vulcan Action. In some cases, a

defendant may waive the initial right to removal if “the defendant takes actions in state court that manifest his or her intent

to have the matter adjudicated there.” Resolution Trust Corp.

v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1994).

Transport cites no authority extending this waiver principle to

the appeal of a remand order, but even if we extended it to

this case, Transport’s argument would fail. “A waiver of the

right of removal must be clear and unequivocal.” Id. (internal

quotation marks omitted). Here, there is no evidence that

Street/National Union intended to waive their right to appeal

the district court’s order. Street/National Union merely sought

to preserve their claims in state court pending the outcome of

this appeal; they have indicated at every step of the way that

they intended to pursue the appeal. 

Further, Street’s post-remand filings do not deprive us of

jurisdiction to review the remand order. The case is not moot

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16773
because an “actual controversy” still exists between Transport

and Street/National Union. See Alvarez v. Smith, ___ U.S.

___, 130 S. Ct. 576, 580-81 (2009). For these reasons, we

deny Transport’s motion to partially dismiss the appeal, and

we review the district court’s decision in its entirety.

III

STANDARD OF REVIEW

We review application of the Rooker-Feldman doctrine de

novo. Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir.

2010). We review the district court’s decision to refrain from

deciding a declaratory judgment action for abuse of discretion. Wilton v. Seven Falls Co., 515 U.S. 277, 289-90 (1995).

We also review a district court’s decision to stay or dismiss

an action based on Colorado River for abuse of discretion;

however, this standard is stricter “than the flexible abuse of

discretion standard used in other areas of law” because “discretion must be exercised within the narrow and specific limits prescribed by the [Colorado River] doctrine.” Holder v.

Holder, 305 F.3d 854, 863 (9th Cir. 2002) (internal quotation

marks omitted). Thus, “[w]hether the facts of a particular case

conform to the requirements for a Colorado River stay or dismissal is a question of law which we review de novo.” Smith

v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028, 1032

(9th Cir. 2005).

Although the parties have filed a number of motions asking

us to consider recent developments in the state court proceedings, we examine the district court’s decision based on the

state of affairs at the time of that decision. We judge “the propriety of the district court’s assumption of jurisdiction” in a

declaratory judgment action “as of the time of filing, not the

time of appeal.” Emp’rs Reinsurance Corp. v. Karussos, 65

F.3d 796, 800 (9th Cir. 1995), overruled in part on other

grounds by Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220 (9th

Cir. 1998) (en banc). Although we have not explicitly

16774 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
addressed the scope of review for a grant of a Colorado River

motion, when reviewing the district court’s denial of a Colorado River motion to stay or dismiss, we previously have held

that we consider only “the then-available facts.” Smith, 418

F.3d at 1033 n.5. We see no reason to adopt a different rule

in this case. As we noted in Smith, “ ‘[d]ocuments or facts not

presented to the district court are not part of the record on

appeal.’ ” Id. (quoting United States v. Elias, 921 F.2d 870,

874 (9th Cir. 1990)). We therefore deny the parties’ motions

requesting judicial notice, motions to supplement the record

and motions to file supplemental briefs because these motions

relate to events that occurred after the district court remanded

the Removed Action and dismissed the Federal Action. We

proceed by reviewing the district court’s decision in light of

the circumstances at the time of that decision.

IV

ROOKER-FELDMAN

[1] The district court concluded that Rooker-Feldman prohibited the court from considering any of Street/National

Union’s allegations that were contrary to findings in the superior court’s April 2009 order.4

 We disagree. The Supreme

Court has confined Rooker-Feldman to the narrow range of

“cases brought by state-court losers complaining of injuries

caused by state-court judgments rendered before the district

court proceedings commenced and inviting district court

review and rejection of those judgments.” Exxon Mobil Corp.

v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). 

[2] Here, there is simply “no state court judgment from

which” Street/National Union seek relief. Vacation Vill., Inc.

v. Clark Cnty., 497 F.3d 902, 911 (9th Cir. 2007) (emphasis

added). Even if we considered the April 2009 order a judg4The April 2009 order decided stipulated legal questions without entering a judgment. 

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16775
ment, the order did not apply to Street/National Union.

Rooker-Feldman therefore does not deprive the district court

of jurisdiction over the claims in the Federal Action or the

Removed Action. See Johnson v. De Grandy, 512 U.S. 997,

1005-06 (1994) (noting that Rooker-Feldman does not apply

to claims that have not yet been litigated); Carmona, 603 F.3d

at 1052 (concluding that Rooker-Feldman did not apply to a

claim against a new party “even though [the claim] raise[d]

the same legal issue” as claims against prior parties).

V

DISCRETION OVER ENTERTAINING THE

ACTIONS

[3] Having determined that the district court had jurisdiction to consider the claims in the Federal Action and the

Removed Action, we must now decide whether the district

court had discretion to refrain from exercising that jurisdiction. Although courts usually avoid duplicative litigation

when similar cases are pending in two different federal courts,

“[g]enerally, as between state and federal courts, the rule is

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

proceedings concerning the same matter” in a federal court.

Colorado River, 424 U.S. at 817 (emphasis added) (internal

quotation marks omitted). In this case, the district court relied

on two doctrines that provide exceptions to the general rule

concerning concurrent state and federal proceedings. The

court remanded the Removed Action based on the Wilton/Brillhart doctrine, and it dismissed the Federal Action

pursuant to Colorado River. We consider these doctrines in

turn.

A. Wilton/Brillhart

[4] The Declaratory Judgment Act uses permissive language. See 28 U.S.C. § 2201(a) (stating that federal courts

“may declare the rights and other legal relations of any inter16776 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
ested party” in a declaratory judgment action (emphasis

added)). Based on the permissive nature of the Declaratory

Judgment Act, in Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), the Supreme Court held that a district court has discretion to dismiss a federal declaratory

judgment action when “the questions in controversy . . . can

better be settled in” a pending state court proceeding. Id. at

495. The Court reaffirmed this principle in Wilton, holding

that a district court may decline to entertain a federal declaratory judgment action when state court proceedings “present[ ]

opportunity for ventilation of the same state law issues.” 515

U.S. at 290. The Court has not yet delineated “the outer

boundaries” of the so-called Wilton/Brillhart doctrine, id., but

we have allowed district courts broad discretion as long as it

furthers the Declaratory Judgment Act’s purpose of enhancing

“judicial economy and cooperative federalism,” Dizol, 133

F.3d at 1224.

[5] In Brillhart, the Court articulated three factors that

courts should consider when examining the propriety of entertaining a declaratory judgment action: avoiding “needless

determination of state law issues”; discouraging “forum shopping”; and avoiding “duplicative litigation.” See Dizol, 133

F.3d at 1225. Although courts may also consider a number of

other factors, the three “Brillhart factors remain the philosophic touchstone” for the Wilton/Brillhart analysis, id., and

they served as the basis for the district court’s decision in this

case. The district court found that the claims in the Removed

Action involved state law issues that had been or could be

considered in the Vulcan Action; that Street had engaged in

forum shopping by filing the Federal Action and removing the

Removed Action; and, most significantly, that the Removed

Action was duplicative of the Vulcan Action.

1. Determination of State Law Issues

[6] There is no question that retaining jurisdiction over the

Removed Action would have required the district court to

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16777
decide basic issues of state law. In prior cases, we have recognized that needless determination of state law issues alone

may support remand. See Huth v. Hartford Ins. Co. of the

Midwest, 298 F.3d 800, 802-04 (9th Cir. 2002) (affirming

remand of a declaratory judgment action to avoid needless

determination of state law issues even in the absence of a similar state court proceeding). We do not end our analysis here,

however, because the presence of the Federal Action raises

other considerations in this case. 

2. Forum Shopping

Street/National Union argue that the district court abused

its discretion by remanding the Removed Action instead of

staying or consolidating it with the Federal Action because

Transport’s Removed Action was “reactive.” We have

instructed that “federal courts should generally decline to

entertain reactive declaratory actions.” Dizol, 133 F.3d at

1225. For example, we held that when an insurer filed a

declaratory judgment action in federal court “during the pendency of a non-removable state court action presenting the

same issues of state law,” and the insurer did so merely to

obtain “a tactical advantage from litigating in a federal

forum,” the “defensive or reactive” nature of the insurer’s

action warranted dismissal. Continental Cas. Co. v. Robsac

Indus., 947 F.2d 1367, 1371-72 (9th Cir. 1991), overruled in

part on other grounds by Dizol, 133 F.3d at 1220. 

[7] The declaratory judgment action in Robsac was “an

archetype” of “ ‘reactive’ litigation,” id. at 1372, but this case

is distinguishable from Robsac. In Robsac, it was clear that

the insurance company was forum-shopping merely for strategic purposes, and all of the Brillhart factors pointed in the

same direction. See id. at 1371-73. Here, Transport concedes

that it filed the Removed Action in response to the Federal

Action, but it did so not merely to seek a favorable forum but

also to seek a forum that could resolve all issues related to the

1981 Policy in one comprehensive proceeding. Additionally,

16778 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
in contrast to Robsac, both parties appear to have engaged in

some defensive maneuvering or “procedural fencing.”

5

The mere fact that the district court’s decision preserved

the later-filed Removed Action instead of the earlier-filed

Federal Action is of no consequence. Although courts generally give preference to the first-filed case among concurrent

federal court proceedings, this “is not a rigid or inflexible rule

to be mechanically applied,” but rather one that yields “to the

dictates of sound judicial administration.” Pacesetter Sys.,

Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982). Timing is only one consideration when deciding whether to entertain a declaratory judgment action, and the Wilton/Brillhart

factors sometimes compel a court to decline to entertain an

earlier-filed action in favor of a later-filed action. See Wilton,

515 U.S. at 280-82 (affirming dismissal of a federal action in

light of a later-filed state action); Huth, 298 F.3d at 802-04

(affirming dismissal of an earlier-filed declaratory action but

remanding a later-filed one). 

3. Duplicative Litigation 

If the Removed Action had been the only case pending

before the district court, there would be no question that the

court properly remanded the case. Retaining jurisdiction over

the Removed Action would have required the district court to

address the same issues of state law and policy interpretation

that the state court had been grappling with for several years

in the Vulcan Action, leading to duplicative litigation. In this

case, however, the district court had to consider not only the

Removed Action, which requests only declaratory relief, but

also the Federal Action, which includes claims for damages.

We have held that if the same action contains claims for

both monetary and declaratory relief, “the district court

5We provide a more lengthy discussion of “forum shopping” in our Colorado River analysis below. 

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16779
should not, as a general rule, remand or decline to entertain

the claim for declaratory relief.” Snodgrass v. Provident Life

& Accident Ins. Co., 147 F.3d 1163, 1167 (9th Cir. 1998)

(internal quotation marks omitted). Snodgrass raises two considerations significant to this case. First, the discretionary Wilton/Brillhart standard does not apply to actions for damages,

and the court may not rely solely on this standard to dispose

of claims for damages. In Snodgrass, the district court on its

own motion used its broad discretion under the Declaratory

Judgment Act to remand the entire case even though “the

essence of” the case was “a suit for damages.” Id. We

reversed because “[c]laims that exist independent of the

request for a declaration are not subject to the Declaratory

Judgment Act’s discretionary jurisdictional rule” but instead

“invoke the ‘virtually unflagging’ obligation of the district

court to hear jurisdictionally sufficient claims.” Id. (quoting

Colorado River, 424 U.S. at 817).6

Second, if the district court must exercise jurisdiction over

claims for damages, the court should also retain similar claims

for declaratory relief to avoid piecemeal litigation. Given the

usual obligation to exercise jurisdiction over claims for damages, “[r]emanding only the declaratory component of . . . an

action will frequently produce piecemeal litigation, a result

which the Declaratory Judgment Act was intended to avoid,

rather than promote.” Id. (citations omitted); see also Dizol,

133 F.3d at 1225-26 (“If a federal court is required to determine major issues of state law because of the existence of

non-discretionary claims, the declaratory action should be

retained to avoid piecemeal litigation.”). 

[8] Although this case involves two separate actions, while

Snodgrass involved a single action with claims for both monetary and declaratory relief, the same basic principles apply.

If the district court must exercise jurisdiction over the Federal

6

In Snodgrass, the question whether Colorado River authorized a stay

or dismissal of the claims for damages was not before the court. 

16780 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
Action, then the court should also retain jurisdiction over the

Removed Action. The two actions involve identical issues, so

remanding the Removed Action while maintaining the Federal Action would not serve the Wilton/Brillhart goals of

avoiding duplicative litigation and needless determination of

state law issues. Cf. id.; Chamberlain v. Allstate Ins. Co., 931

F.2d 1361, 1367-68 (9th Cir. 1991) (noting that refusing to

issue a declaratory judgment may result in piecemeal litigation if the court retains jurisdiction over other claims).7

 In

short, we conclude the district court did not abuse its discretion by remanding the Removed Action as long as Colorado

River authorized dismissal of the Federal Action. We now

turn to Colorado River.

B. Colorado River

As we noted above, courts do not possess the same discretion over actions for damages that they possess over declaratory judgment actions. See Wilton, 515 U.S. at 286. Indeed,

when it comes to non-discretionary actions for damages, such

as the Federal Action, federal courts possess a “virtually

unflagging obligation . . . to exercise the jurisdiction given

them.” Colorado River, 424 U.S. at 817. Only in rare cases

will “the presence of a concurrent state proceeding” permit

the district court to dismiss a concurrent federal suit “for reasons of wise judicial administration.” Id. at 818. 

The Supreme Court recognized such a rare case in Colorado River. There, the federal government brought suit

against water users in federal court, seeking a declaration of

water rights in certain rivers and tributaries in Colorado. Id.

7Street/National Union rely heavily on Chamberlain, but this case is

distinguishable. Street/National Union assert that the district court abused

its discretion by remanding the declaratory judgment action, but in Chamberlain, we addressed whether the district court abused its discretion by

entertaining the action. 931 F.2d at 1366. Further, the district court in

Chamberlain did not invoke Colorado River, and we did not address it in

that case. See id. at 1366-68. 

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16781
at 805. Colorado had previously established seven water districts to adjudicate water rights in ongoing state court proceedings. Id. at 804. After the government filed its suit in

federal court, several of the defendants in that case filed an

application joining the government as a party in the state court

proceedings for the relevant water district. Id. at 806. The district court then dismissed the government’s federal suit in

light of the ongoing state court proceedings. On appeal, the

Supreme Court held that although none of the traditional

abstention doctrines applied, “considerations of [w]ise judicial administration, giving regard to conservation of judicial

resources and comprehensive disposition of litigation,” justified dismissal of the federal suit. Id. at 817 (alternation in

original) (internal quotation marks omitted). The Court noted

several factors that supported dismissal, relying particularly

on the “highly interdependent” relationship between the

claims in the state and federal proceedings and the federal

policy, embodied in the McCarran Amendment, of avoiding

piecemeal adjudication of water rights. Id. at 819-20. 

[9] The Court has carefully limited Colorado River,

emphasizing that courts may refrain from deciding an action

for damages only in “exceptional” cases, and only “the clearest of justifications” support dismissal. Id. at 818-19. In

Moses H. Cone Memorial Hospital v. Mercury Construction

Corp., the Court held that no exceptional circumstances justified the district court’s stay of an action to compel arbitration

under the Federal Arbitration Act. 460 U.S. 1, 19 (1983). The

Court noted that although a state court suit involving the

underlying claims was pending when the federal suit was

filed, the federal suit did not increase the risk of piecemeal litigation; substantial progress had already been made in the

federal suit; federal law provided the rule of decision on the

merits of the case; and there was substantial doubt as to

whether the state court could issue the remedy sought in federal court. Id. at 19-26.

16782 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
[10] To decide whether a particular case presents the

exceptional circumstances that warrant a Colorado River stay

or dismissal, the district court must carefully consider “both

the obligation to exercise jurisdiction and the combination of

factors counseling against that exercise.” Colorado River, 424

U.S. at 818. Drawing from Colorado River, Moses H. Cone

and subsequent Ninth Circuit cases, we have recognized eight

factors for assessing the appropriateness of a Colorado River

stay or dismissal:8 (1) which court first assumed jurisdiction

over any property at stake; (2) the inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; (4) the

order in which the forums obtained jurisdiction; (5) whether

federal law or state law provides the rule of decision on the

merits; (6) whether the state court proceedings can adequately

protect the rights of the federal litigants; (7) the desire to

avoid forum shopping; and (8) whether the state court proceedings will resolve all issues before the federal court.

Holder, 305 F.3d at 870.9

The first two factors in Holder are irrelevant in this case

because the dispute does not involve a specific piece of property, and both the federal and state forums are located in Los

Angeles. We discuss each of the remaining six factors below,

mindful that “[a]ny doubt as to whether a factor exists should

8We generally require a stay rather than a dismissal. See Coopers &

Lybrand v. Sun-Diamond Growers of CA, 912 F.2d 1135, 1136 (9th Cir.

1990). But we do not consider this issue because Street/National Union

did not raise it on appeal. See Dream Games of Ariz., Inc. v. PC Onsite,

561 F.3d 983, 994-95 (9th Cir. 2009) (“We will not ordinarily consider

matters on appeal that are not specifically and distinctly argued in appellant’s opening brief.” (internal quotation marks omitted)). 

9The Court enumerated the first four factors in Colorado River. 424

U.S. at 818-19. The fifth and sixth factors are drawn from Moses H. Cone,

460 U.S. at 23-27, and the seventh and eighth factors emerged from subsequent Ninth Circuit cases, see Travelers Indem. Co. v. Madonna, 914 F.2d

1364, 1367-68 (9th Cir. 1990). In Holder, we explicitly listed the first

seven factors, but we also considered the eighth factor as a preliminary

matter. See Holder, 305 F.3d at 870. 

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16783
be resolved against a stay” or dismissal. Travelers, 914 F.2d

at 1369. As indicated below, some factors may weigh for or

against the exercise of jurisdiction while others primarily

serve as a bar to stay or dismissal. 

1. Piecemeal Litigation

“Piecemeal litigation occurs when different tribunals consider the same issue, thereby duplicating efforts and possibly

reaching different results.” Am. Int’l Underwriters, (Philippines), Inc. v. Cont’l Ins. Co., 843 F.2d 1253, 1258 (9th Cir.

1988). The mere possibility of piecemeal litigation does not

constitute an exceptional circumstance. See Travelers, 914

F.2d at 1369. Instead, the case must raise a “special concern

about piecemeal litigation,” id., which can be remedied by

staying or dismissing the federal proceeding. See Moses H.

Cone, 460 U.S. at 20-21 (noting that a stay of the federal suit

would not alleviate the possibility that some claims would be

subject to arbitration while others were decided in court). 

With the Removed Action in state court, there is no question that maintaining the Federal Action would result in piecemeal litigation. But it would be improper for a court to stay

or dismiss a case based on a possibility of piecemeal adjudication that the court could have avoided by other means.

Because the district court could have retained jurisdiction

over the Removed Action, the proper inquiry in this case is

whether maintaining jurisdiction over the Federal Action

would result in piecemeal litigation even if the Removed

Action were not in state court. Like the district court, we conclude that it would. 

[11] Even if the district court had stayed the Removed

Action, deciding the Federal Action and the Vulcan Action in

separate courts would result in duplication of efforts. Both the

Vulcan Action and the Federal Action are centered on

whether the 1981 Policy obligates Transport to cover damages

and defense costs in the Tort Actions. In Colorado River, the

16784 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
Court noted that the McCarran Amendment evidenced a clear

policy of avoiding “piecemeal adjudication of water rights in

a river system.” 424 U.S. at 819. Here, there is no explicit

policy of avoiding piecemeal adjudication, but like the government in Colorado River, Street asks the district court to

adjudicate rights that are implicated in a “ ‘vastly more comprehensive’ state action.” Travelers, 914 F.2d at 1369. The

state court consolidated multiple cases to create a comprehensive scheme for deciding coverage in the Tort Actions. There

was a “highly interdependent” relationship between the

claims in the Federal Action and the claims in the Vulcan

Action, Colorado River, 424 U.S. at 819, and although

Street/National Union had not yet brought their claims, the

state court contemplated these claims in its plans for proceeding in the Vulcan Action. The district court did not err by concluding that avoidance of piecemeal litigation weighs

significantly against jurisdiction, particularly in light of the

next factor. See Am. Int’l Underwriters, 843 F.2d at 1258

(upholding a Colorado River dismissal, in part to avoid piecemeal litigation).

2. Order of Jurisdiction

We next consider the order in which the forums obtained

jurisdiction. As a technical matter, Street is correct that the

district court was the first to exercise jurisdiction over the specific claims in the Federal Action. Prior to the Federal Action,

Vulcan had filed claims against Street/National Union in the

Vulcan Action, but no claims had been asserted between

Transport and Street/National Union. 

Our analysis does not end here, however. The Supreme

Court has instructed that instead of taking a mechanical

approach, courts must apply this factor “in a pragmatic, flexible manner with a view to the realities of the case at hand.”

Moses H. Cone, 460 U.S. at 21 (giving little weight to the

dates of filing when the same relative progress had been made

in the state and federal proceedings). Here, the state court was

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16785
the first to exercise jurisdiction over the subject matter

involved in the Federal Action. Although this might not be

relevant in every case, the progress of the Vulcan Action and

Street/National Union’s involvement in the Vulcan Action

make this an important consideration in this case. 

[12] Between the filing of the Vulcan Action in 2005 and

the filing of the Federal Action in 2009, the state court made

significant progress in the Vulcan Action. The court already

interpreted the relevant provisions of the 1981 Policy and was

positioned to fully adjudicate the broader coverage dispute

between Vulcan and Transport. The court had conducted discovery, initiated a phased approach to the litigation and issued

an order concerning foundational legal matters. In fact, much

of this progress occurred after Vulcan brought Street/National

Union into the action in 2008. Cf. Colorado River, 424 U.S.

at 820 (noting “the existing participation by the Government”

in similar state court proceedings). Additionally, both the parties and the court acknowledged Street/National Union’s unlitigated claims against Transport, and the state court expressly

reserved any decisions regarding these claims for a later phase

of the litigation. Considering the realities of this case, the district court properly concluded that the state court’s progress

in the Vulcan Action weighs against jurisdiction. 

3. Source of Law

[13] As with most insurance coverage disputes, state law

provides the rules of decision for all of Street/National

Union’s claims, but we consider this a neutral factor here.

“[A]lthough ‘the presence of federal-law issues must always

be a major consideration weighing against surrender’ [of

jurisdiction], the ‘presence of state-law issues may weigh in

favor of that surrender only ‘in some rare circumstances.’ ”

Travelers, 914 F.2d at 1370 (quoting Moses H. Cone, 460

U.S. at 26). This case does not present such “rare circumstances.” The complexity of the Vulcan Action and related

matters stems from the number of policies and insurers, not

16786 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
from the type of law involved in the action. Because the cases

here involve “routine issues of state law,” such as breach of

contract, indemnification and subrogation, this factor does not

weigh against jurisdiction. See id. (concluding the same where

the cases involved state law claims for misrepresentation,

breach of fiduciary duty and breach of contract).

4. Adequacy of State Court

A district court may not stay or dismiss the federal proceeding if the state proceeding cannot adequately protect the rights

of the federal litigants. For example, if there is a possibility

that the parties will not be able to raise their claims in the

state proceeding, a stay or dismissal is inappropriate. See

Moses H. Cone, 460 U.S. at 26 (emphasizing that the state

court might lack the power to enter the order that the plaintiff

was seeking in federal court); Holder, 305 F.3d at 869 n.5

(noting that the state court probably lacked jurisdiction to hear

the plaintiff’s federal ICARA claim). 

[14] Here, there is no question that the state court has

authority to address the rights and remedies at issue in this

case. In fact, Street/National Union concede that the state

court can adequately resolve the parties’ claims. Like source

of law, however, this factor “is more important when it

weighs in favor of federal jurisdiction.” Travelers, 914 F.2d

at 1370 (internal quotation marks omitted).

5. Forum Shopping

Forum shopping refers to “[t]he practice of choosing the

most favorable jurisdiction or court in which a claim might be

heard.” BLACK’S LAW DICTIONARY 726 (9th ed. 2009). To

avoid forum shopping, courts may consider “the vexatious or

reactive nature of either the federal or the state litigation.”

Moses H. Cone, 460 U.S. at 17 n.20. We have affirmed a Colorado River stay or dismissal when it was readily apparent

that the federal plaintiff was engaged in forum shopping. See

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16787
Nakash v. Marciano, 882 F.2d 1411, 1417 (9th Cir. 1989)

(plaintiff brought claims in federal court after three and a half

years of litigating in state court); Am. Int’l Underwriters, 843

F.2d at 1255-56 (after filing in state court, plaintiff brought

suit in federal court to avoid the state court’s unfavorable evidentiary rules). 

The district court did not expressly rely on this factor in its

brief Colorado River analysis, and given the circumstances of

this case, we do not believe this factor weighs significantly

for or against jurisdiction. Each party contends that the other

engaged in forum shopping. Transport argues that Street

engaged in forum shopping by filing the Federal Action

instead of filing its claims in the Vulcan Action. Indeed,

Street/National Union had been third parties in the Vulcan

Action since April 2008, but they filed the Federal Action

only after the superior court’s April 2009 order, which

favored Transport, and only after convincing Vulcan to dismiss Street/National Union from the Vulcan Action. On the

other hand, as of at least March 2009, Transport knew that

Street was a defendant in the Tort Actions and was listed as

an additional insured on the 1981 Policy, yet Transport never

filed any claims for declaratory relief against Street until after

Street filed the Federal Action. 

We decline the parties’ invitation to referee their fingerpointing match. The chronology of events suggests that both

parties took a somewhat opportunistic approach to this litigation, but we cannot classify either party’s actions as mere

forum shopping. As we noted in our Brillhart discussion

above, Transport sought a comprehensive forum, not merely

a favorable one. In this sense, Transport’s attempt to consolidate Street/National Union’s claims with the Vulcan Action is

no different than the application by the defendants in Colorado River to join the government as a party to state water

district proceedings. See Colorado River, 424 U.S. at 820

n.25. 

16788 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
[15] Neither can we say that Street/National Union were

merely forum shopping by filing the Federal Action. Prior to

filing the Federal Action, Street/National Union had not previously asserted their claims against Transport, and we are

cautious about labeling as “forum shopping” a plaintiff’s

desire to bring previously unasserted claims in federal court.

“[T]he desire for a federal forum is assured by the constitutional provision for diversity jurisdiction and the congressional statute implementing Article III.” First State Ins. Co. v.

Callan Assocs., Inc., 113 F.3d 161, 162 (9th Cir. 1997). In

this particular case, we cannot say that forum shopping

weighs significantly for or against jurisdiction. 

6. Parallel Suits

The final factor, and one that features prominently in this

appeal, is whether the state court proceeding sufficiently parallels the federal proceeding. Although we have not always

required “exact parallelism,” the two actions must be “substantially similar.” Nakash, 882 F.2d at 1416. We have held

that “ ‘the existence of a substantial doubt as to whether the

state proceedings will resolve the federal action precludes’ ”

a Colorado River stay or dismissal. Smith, 418 F.3d at 1033

(quoting Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d

908, 913 (9th Cir. 1993)). 

As Street/National Union note, prior to the cases on appeal,

there was doubt about whether the Vulcan Action would

resolve Street/National Union’s claims against Transport. No

claims had been filed between Transport and Street/National

Union, and the state court had expressly reserved the question

of whether collateral estoppel would apply to these claims

once the court entered a judgment concerning Vulcan’s

claims. See Intel Corp. 12 F.3d at 913 (concluding that there

was no parallel proceeding where the state court proceeding

would resolve all issues only if the state courts confirmed the

arbitration award and collateral estoppel applied to all other

claims based on that award). 

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16789
Nevertheless, even Street/National Union concede that the

Removed Action will resolve all issues raised in the Federal

Action. The question for us is whether the district court

abused its discretion by considering the Removed Action in

its Colorado River analysis. According to Street/National

Union, the district court erred by considering the Removed

Action because the action was not in state court at the time of

the district court’s decision. We disagree.

Courts generally rely on the state of affairs at the time of

the Colorado River analysis. See Moses H. Cone, 460 U.S. at

21-22 (considering the existence of a state court action that

was filed after the federal court proceeding). We think this

state of affairs includes the court’s discretion to remand the

Removed Action. To say that the district court could not consider the Removed Action because it was not pending in state

court at the specific moment the court dismissed the Federal

Action would be contrary to the Court’s instruction that the

Colorado River factors are “to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand.”

Id. at 20. It would also ignore the underlying purpose of the

Colorado River doctrine.

[16] The Colorado River doctrine promotes “wise judicial

administration.” Colorado River, 424 U.S. at 817. We require

a parallel suit to ensure “comprehensive disposition of litigation.” See id. Otherwise, a stay or dismissal will neither conserve judicial resources nor prevent duplicative litigation. For

example, in Holder, we reversed a Colorado River stay

because the plaintiff likely could not have brought his federal

claim in the state court proceeding. 305 F.3d at 868-70. Similarly, in Intel Corp., we concluded that a stay is inappropriate

when there is a good chance that the federal court would have

to decide the case eventually because the state proceeding will

not resolve all of the issues in the federal case. 12 F.3d at 913.

Here, there is no question that with the Removed Action in

state court, the state proceedings will resolve all issues, and

16790 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.
the goal of “comprehensive disposition of litigation” will be

met. 

Street/National Union compare this case to Kirkbride v.

Continental Casualty Co., 933 F.2d 729 (9th Cir. 1991), but

the facts distinguish this case from Kirkbride. In Kirkbride,

we held that Colorado River did not support the district

court’s remand of a case because “there was no concurrent or

pending state court proceeding when the appellees moved for

remand” since “the entire case” had been removed to federal

court. Id. at 734. In Kirkbride, there was only one action, and

the court relied on Colorado River to remand that action. Id.

There was no equivalent of the Vulcan Action and therefore

no concern about piecemeal adjudication. All related claims

were in a single proceeding that would be completely

resolved in either state or federal court. Id.

[17] As we noted above when examining the risk of piecemeal litigation, the Removed Action alone cannot justify dismissal of the Federal Action. Nevertheless, because other

factors affirmatively support dismissal, we do not think it was

improper for the court to consider its discretion to remand the

Removed Action for the limited purpose of determining

whether the Vulcan Action would resolve all claims between

the parties. Like the source of law and the adequacy of state

court proceedings, this factor may weigh in favor of jurisdiction, but it does not in itself weigh against it. Because the

combined Vulcan Action and Removed Action would resolve

all of the parties’ claims, this factor does not bar dismissal.10

[18] Ultimately, “the decision whether to dismiss a federal

action because of parallel state-court litigation” hinges on “a

careful balancing of the [relevant] factors . . . with the balance

heavily weighted in favor of the exercise of jurisdiction.”

10In this case, the district court could be certain that the Vulcan Action

and the Removed Action would be consolidated upon remand because the

state court had already issued an order to this effect. 

R.R. STREET & CO. v. TRANSPORT INSURANCE CO. 16791
Moses H. Cone, 460 U.S. at 16. Although Street/National

Union’s right to a federal forum for their unasserted claims

weighs in favor of jurisdiction, we conclude that the district

court did not err by declining jurisdiction over the Federal

Action. None of the factors that would preclude a Colorado

River stay or dismissal—issues of federal law, inadequacy of

the state court forum, or a possibility that the state court proceeding will not resolve the dispute—are concerns in this

case. Because the avoidance of piecemeal litigation and the

progress made in the Vulcan Action strongly weigh against

jurisdiction, we conclude that the district court did not err by

dismissing the Federal Action as an “exceptional” case under

Colorado River.

CONCLUSION

We do not take lightly the district court’s decision not to

entertain an action for damages. In this case, however, the district court did not abuse its discretion by deciding that the parties’ claims should be resolved in the more comprehensive

Vulcan Action. The district court had discretion under Wilton/Brillhart to remand the Removed Action, and the court’s

concerns about piecemeal litigation and interfering with the

progress made in the Vulcan Action sufficiently supported

dismissal under Colorado River. 

AFFIRMED.

16792 R.R. STREET & CO. v. TRANSPORT INSURANCE CO.