23-912

Starr Indem. & Liab. Co. v. Exist, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 

New York, on the 9th 3 day of February, two thousand twenty-four.

4

5 PRESENT:

6 JOHN M. WALKER, JR.,

7 SUSAN L. CARNEY,

8 MICHAEL H. PARK,

9 Circuit Judges.

10 _____________________________________

11

12 Starr Indemnity & Liability Co.,

13

14 Plaintiff-Appellant,

15

16 v. 23-912

17

18 Exist, Inc.,

19

20 Defendant-Appellee.

21 _____________________________________

22

23 FOR PLAINTIFF-APPELLANT: KEVIN J.B. O’MALLEY, (John A.V. 

24 Nicoletti, on the brief), Nicoletti Hornig 

25 & Sweeney, New York, NY.

26

27 FOR DEFENDANT-APPELLEE: STEFAN SAVIC, Reinhardt Savic Foley 

28 LLP, New York, NY.

29

30
2

1 Appeal from a judgment of the United States District Court for the Southern District of 

2 New York (Liman, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

4 DECREED that the judgment of the district court is AFFIRMED.

5 Exist, Inc., is a Florida corporation that imports and sells clothing to American retailers. 

6 Starr Indemnity & Liability Co. is an insurance company, incorporated in Texas and with its 

7 principal place of business in New York. Exist held a marine cargo insurance policy from Starr, 

8 under which it submitted two notices of loss, one in July 2021 and another in January 2022. In 

9 January 2023, without first denying Exist’s claims, Starr sued Exist under the Declaratory 

10 Judgment Act for a declaration of nonliability. The district court dismissed Starr’s complaint. 

11 Starr now appeals. We assume the parties’ familiarity with the underlying facts, the procedural 

12 history of the case, and the issues on appeal.

13 The parties dispute the basis for the district court’s dismissal. The district court’s order 

14 states that it is dismissing Starr’s complaint “for failure to state a claim.” App’x at 108. But the 

15 text of the district court’s opinion demonstrates beyond doubt that its ruling squarely addressed

16 the court’s jurisdiction over Starr’s declaratory judgment claim, and turned on its decision 

17 declining to exercise that jurisdiction. We thus review its decision to decline jurisdiction for 

18 abuse of discretion. See Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359 (2d Cir. 2003).

19 District courts have “broad discretion” to decline jurisdiction in declaratory judgment 

20 actions. See Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 
3

1 F.3d 84, 105 (2d Cir. 2012). We have identified six factors that “should inform a district court’s 

2 exercise of [its] discretion,” “to the extent they are relevant in a particular case”:

3 (1) whether the declaratory judgment sought will serve a useful purpose in 

4 clarifying or settling the legal issues involved; (2) whether such a judgment would 

5 finalize the controversy and offer relief from uncertainty; (3) whether the proposed 

6 remedy is being used merely for procedural fencing or a race to res judicata; (4) 

7 whether the use of a declaratory judgment would increase friction between 

8 sovereign legal systems or improperly encroach on the domain of a state or foreign 

9 court; (5) whether there is a better or more effective remedy; and (6) whether 

10 concerns for “judicial efficiency” and “judicial economy” favor declining to 

11 exercise jurisdiction.

12 Admiral Ins. Co. v. Niagara Transformer Corp., 57 F.4th 85, 99-100 (2d Cir. 2023) (cleaned up). 

13 An abuse of discretion can occur when district courts fail to consider a “relevant factor that should 

14 have been given significant weight,” when they give significant weight to an irrelevant or improper 

15 factor, or when they otherwise commit clear error. Id. at 100.

16 Here, the district court acted within its discretion to decline jurisdiction. On the facts of 

17 the case, it was entitled to conclude that Starr’s declaratory judgment suit constituted “procedural 

18 fencing or a race to res judicata,” especially in light of Starr’s decision to inform Exist only via 

19 federal complaint that it had denied Exist’s insurance claims. Nor was it clear error for the district 

20 court to conclude that Starr’s suit served no “useful purpose” in that it was not necessary to

“finalize the controversy and offer relief from uncertainty.”1 21 Id. at 99-100. Starr’s requested 

22 declaration goes only to liability for past damages, not the avoidance of (nonspeculative) future 

1 Starr’s argument that a declaratory judgment serves a useful purpose by potentially allowing it to 

avoid administrative expenses and interest was neither made before the district court nor in its opening 

appellate brief, and Starr offers no justification for these failures. See App’x 113 (“[Starr] does not allege 

that it would incur any further potential costs [while waiting for Exist to file suit].”) Accordingly, this 

argument is waived. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008). 
4

1 damages. Liability for past damages can be addressed just as easily in an ordinary suit for breach 

2 of contract and, thus, an action for declaratory judgment yields no incremental benefit. 

3 Although the district court did not consider three of the Admiral Insurance factors, it acted 

4 within its discretion in doing so because the omitted factors are either irrelevant or deserve less 

5 than “significant weight” in this case. We consider each omitted factor in turn. 

6 First, the district court failed to consider “whether the use of a declaratory judgment would 

7 increase friction between sovereign legal systems or improperly encroach on the domain of a state 

8 or foreign court.” Id. at 100. But here, there was no preexisting state-court action. This factor 

was thus irrelevant to the Admiral Insurance analysis. 2 9 Second, the district court failed to 

consider “whether there is a better or more effective remedy.”3 10 Id. Starr is entitled to the same 

11 remedy—a declaration of nonliability—whether it presents its claims as the plaintiff in a 

12 declaratory judgment action or as a defendant in an action for breach of contract. Moreover, as 

13 the district court observed, Starr “is . . . not forced to incur any ‘additional harm’ by waiting for 

14 [Exist] to initiate suit.” App’x at 113. This factor is thus also irrelevant here. Finally, the 

15 district court did not explicitly consider “whether concerns for ‘judicial efficiency’ and ‘judicial 

2 To the extent that the risk of a future state-court action might factor into this analysis, we need 

not consider it here, where the parties are diverse and Starr would be entitled to remove a foreign statecourt action to federal court under 28 U.S.C. § 1441.

3 The district court implies that Exist’s filing of a breach-of-contract action, which it believed Exist 

intended to do, would be a superior remedy because Exist, the “natural plaintiff,” would be able to choose 

the forum and it would avoid a race to the courthouse. App’x 110, 115-16 & n.3. Given its rather brief 

reference to this factor, however, we assume for the purposes of this summary order that the factor was not 

fully considered. 
5

1 economy’ favor declining to exercise jurisdiction.” Admiral Ins. Co., 57 F.4th at 100. These

2 concerns, however, have no special relevance in this case. 

3 * * *

4 We have considered all of Starr’s remaining arguments and find them to be without merit. 

5 For the foregoing reasons, the judgment of the district court is AFFIRMED.

6

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe, Clerk of Court