Opinion
No. CV-F-05-00873 REC TAG.
November 4, 2005
ORDER DENYING DEFENDANT'S MOTION TO DISMISS, OR IN THE ALTERNATIVE TO STAY PENDING OUTCOME OF PARALLEL STATE ACTION, (Doc. 16).
On October 31, 2005, the Court heard Defendant County of Kern's motion to dismiss or stay based on the principles of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) orColorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976).
I. Background
Robert Oglesby was arrested following a domestic disturbance and taken to jail. While incarcerated by County of Kern (the "County"), he suffered a broken leg. After treatment at Kern Medical Center, which the County owned and operated, he was eventually discharged from custody. He received subsequent medical care at other facilities. The broken leg eventually became infected and was amputated.
On June 18, 2004, Mr. Oglesby and Lorene Oglesby, his wife, filed a tort claim with the County alleging that it violated Mr. Oglesby's civil rights by using excessive force and providing deficient medical care and claiming loss of consortium. On September 30, 2004, Mr. and Mrs. Oglesby filed suit in Superior Court of California, County of Kern (the "Superior Court") against the County, Kern County Sheriff's Department, Sheriff Mack Wimbish, and Kern Medical Center (collectively "Defendants"). Oglesby v. County of Kern, No. S-1500-CV 253871 AEW (Kern County Super. Ct. Sept. 30, 2004); see Mot. Ex. A. The complaint sought relief for various constitutional violations under 42 U.S.C. section 1983, assault and battery, negligence, intentional infliction of emotional distress, and failure to summon medical care.
On November 9, 2004, Mr. Oglesby died of cardiopulmonary arrest caused by a stroke, aggravated by various factors. A new tort claim was presented to the County on November 18, 2004. On May 17, 2005, Mrs. Oglesby and four of Mr. Oglesby's children (collectively "Plaintiffs") filed another suit in Superior Court against Defendants. Oglesby v. County of Kern, No. S-1500-CV 255515 AEW (Kern County Super. Ct. May 17, 2005); see Mot. Ex. B. The complaint sought recovery on various theories under section 1983 and for wrongful death. Defendants timely answered the complaint.
In all, Plaintiffs are Mrs. Oglesby, Mark Randall Oglesby, Christine Susanne Hinkle, Wayne William Oglesby, and Julie Michelle Hay.
On June 13, 2005, the Superior Court consolidated the twoOglesby cases. Opp'n Ex. D. Subsequently, Defendants propounded form and special interrogatories and requests for admissions from Plaintiffs.
On July 1, 2005, Plaintiffs filed a request for dismissal with the Superior Court. Later in the day, Plaintiffs filed suit in this Court. The federal complaint alleges causes of action under section 1983 relating to excessive force and failure to provide adequate medical care, as well as causes of action for assault and battery, negligence, failure to summon medical care, and wrongful death.
On July 6, 2005, the Superior Court rejected Plaintiffs' request for dismissal on the ground that the request was incomplete. Plaintiffs corrected the defect and both actions were dismissed on July 14, 2005. Plaintiffs did not immediately notify Defendants that they had dismissed the action. Defendants thus filed a motion to compel in Superior Court on August 9, 2005, even though the cases were dismissed almost one month before.
Defendants filed this motion on August 18, 2005. Plaintiffs did not notify Defendants of the voluntary dismissal until August 22, 2005, after they filed this Motion. Woods Supp. Decl. at 2.
II. Discussion
A. Younger Abstention
In Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Supreme Court held that federal courts should not enjoin pending state criminal prosecutions absent extraordinary circumstances. The Court held, based on principles of equity and comity, that "a proper respect for state functions" requires a federal court to generally decline to hear such a case. Id. at 432. The Court subsequently extended the principles it enunciated in Younger to certain types of civil cases. New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans ("NOPSI"), 491 U.S. 350, 367-68, 109 S. Ct. 2506, 105 L. Ed. 298 (1989). The Younger principles apply to actions for damages under section 1983. Gilbertson v. Albright, 381 F.3d 965, 983 (9th Cir. 2004). "Abstention is appropriate in favor of a state proceeding if (1) the state proceedings are ongoing; (2) the proceedings implicate important state interests; and (3) the state proceedings provide an adequate opportunity to raise federal questions." Fresh Int'l Corp. v. Agric. Labor Relations Bd., 805 F.2d 1353, 1357-58 (9th Cir. 1986) (citingMiddlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S. Ct. 2515, 73 L. Ed. 2d 116 (1982)).
Plaintiffs contend that abstention is inappropriate because the first and second Younger requirements are not met.
1. Ongoing State Proceedings
Plaintiffs argue that the first requirement for Younger abstention, that "state proceedings are ongoing," is not met because here the state court case has been dismissed without prejudice. See Chapman Decl. at ¶ 10. The critical question for determining whether proceedings are ongoing is whether the state proceedings were underway before the federal proceedings began.Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir. 1987) (citingFresh Int'l, 805 F.2d at 1358); see Gilbertson, 381 F.3d at 969 n. 4 ("The critical date for purposes of deciding whether abstention principles apply is the date the federal action is filed."). In Kitchens, defendants in state court proceedings paternity proceedings challenged certain AFDC regulations in federal court. Id. at 1338. Even though certain defendants' state proceedings were complete when the federal suit commenced, the prior state proceedings were sufficient to meet the "ongoing" requirement. Id. at 1341.
Here, Plaintiffs filed the federal complaint on July 1, 2005. The Superior Court did not dismiss the state action until July 14, 2005. Not only had Plaintiffs filed a suit in state court prior to the "critical date" of July 1, 2005, the state suit overlapped with the federal suit. Therefore, the requirement of "ongoing" state proceedings is met.
Plaintiffs' counsel points out that he attempted to voluntarily dismiss the state case on July 1, 2005, prior to filing the federal complaint. Chapman Decl. at ¶ 7; see Chapman Decl. Ex. E. This first dismissal request was rejected on July 6, 2005, based on a flaw in the application. Chapman Decl. Ex. G.
2. Important State Interests
The second requirement for Younger abstention is that the proceedings implicate important state interests. Fresh Int'l, 805 F.2d at 1358. The importance of the state interest can be shown in noncriminal proceedings by their close relationship to criminal proceedings, or where the proceedings are necessary to vindicate important state policies or for the functioning of the state judicial system. Gilbertson, 381 F.3d at 973 (citingMiddlesex, 457 U.S. at 432); see Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S. Ct. 1200, 43 L. Ed. 2d 482 (1975) (state public nuisance proceedings); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376 (1977) (state contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct. 1911, 52 L. Ed. 2d 486 (1977) (state civil enforcement action).
Generally, the state's interest is shown by the fact that the state instituted the state proceedings. Fresh Int'l, 805 F.2d at 1360 n. 8. Some courts have ruled out abstention on the ground that the plaintiff in the state proceeding is also the federal plaintiff. See Crawley v. Hamilton County Comm'rs, 744 F.2d 28, 30 (6th Cir. 1984) (holding abstention appropriate where state plaintiffs filed the federal action and were not attempting to use the federal courts to shield themselves from state court enforcement efforts); Ky. W. Va. Gas Co. v. Pa. Pub. Util. Comm., 791 F.2d 1111, 1117 (3d Cir. 1986) (denying Younger abstention on the grounds that "`where Congress has granted concurrent jurisdiction, a plaintiff is free to bring a suit in both the state and federal forums for the same cause of action'"). Though Younger abstention does not ordinarily apply when a federal plaintiff is also the plaintiff in state court, more important to the analysis is whether the plaintiff filed the state case voluntarily or was compelled to do so by state law.Fresh Int'l, 805 F.2d at 1360 n. 8 (applying Younger principles where plaintiff filed the state case in response to an agency order against it).
Here, the Plaintiffs filed the state case to obtain relief for injuries that Defendants allegedly inflicted. Defendants contend that this case implicates a number of important state interests that require abstention. First, Defendants point to the state interest in administration of its jails. Second, the case concerns, in part, medical malpractice, which California regulates under its Medical Injury Compensation Reform Act, sections 3333.1 and 3333.2 of the California Civil Code. Mr. Oglesby's death, allegedly caused by the malpractice, also implicates California's wrongful death statute, California Civil Procedure Code section 377.60. Defendants further allege that the case involves a determination of the degree to which the County has statutory immunity to Plaintiffs' suit, under California Government Code sections 840 through 845.6. State procedural requirements may also bar Plaintiffs' claims.
Defendants claim that the state law involved in this case implicates a state interest and requires abstention. In support, Defendants cite Middlesex, 457 U.S. 423, for the proposition that a federal action containing federal and state claims should be dismissed "where the state claims predominate." Middlesex made no such holding. To the contrary, the Middlesex Court focused instead on the nature of the state claims and whether they were closely analogous to criminal proceedings or were necessary to vindicate state policies or for the functioning of the judicial system. Middlesex, 457 U.S. at 432.
Defendants have not explained how applying various principles of state law in a case brought by a private party implicates a state interest on par with criminal proceedings. At issue is whether Defendants must compensate Plaintiffs for certain injuries. Defendants do have an interest in prevailing in the law suit, but this interest is not what the Middlesex Court contemplated. Rather the focus is on the character of the state proceedings and the state's general interest. See Middlesex, 457 U.S. at 432; NOPSI, 491 U.S. at 365 (holding that state's initiation of regulatory proceedings evinced a "general interest" in regulation relevant to a Younger analysis, but its interest in prevailing in the particular proceeding was immaterial).
The state proceedings began when Plaintiffs sought recovery based on certain actions by Defendants. The suit only seeks to vindicate Plaintiffs' interests in recovery. Defendants have not affirmatively pursued any of their interests against Plaintiffs. Defendants are only involved in this case because Plaintiffs haled them into court. Thus the state suit is in all respects voluntary. Defendants did not file or order this suit to protect any interest. See Fresh Int'l, 805 F.2d at 1360 n. 8. Instead, its sole role is to defend itself from Plaintiffs' charges. That the federal court claimant is also the state court claimant is strong evidence that the state lacks sufficient interest for Younger abstention in this case.
The rationale that underlay Younger and its progeny, seems to be starkly absent here. No government entity has undertaken in the state proceeding to enforce its laws, regulate any entity, vindicate important state policies, or carry out any functions of its judicial system. See Middlesex, 457 U.S. at 432. A decision by a federal court in this case would not have a similar effect to the injunction against a state criminal proceeding inYounger. Rather, any such decision would simply resolve in federal court a claim voluntarily brought by private entities against a government entity. This claim does not involve any important state interests necessary to apply Younger principles to a civil proceeding.
Therefore, Defendants' motion to stay or abstain based onYounger principles is DENIED. B. Stay or Dismissal under Colorado River
"`The Colorado River doctrine is not technically an abstention doctrine,' Holder v. Holder, 305 F.3d 854, 867 n. 4 (9th Cir. 2002); therefore, a district court's decision declining to exercise federal jurisdiction pursuant to Colorado River is more properly referred to as a stay or dismissal, as the case may be." Smith v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028, 1032 (9th Cir. 2005).
In Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), the Supreme Court enunciated a theory by which federal courts could refuse to exercise their jurisdiction based on "considerations of `wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'" Id. at 817. Federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." Id. Because of this obligation, a federal court may decline to hear cases under its jurisdiction "`only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.'" Moses H. Cone, 460 U.S. at 14 (quoting Colorado River, 424 U.S. at 813).
In deciding whether to stay or dismiss a case based on theColorado River rationale, a court should consider such factors as:
(1) whether the state court first assumed jurisdiction over property;
(2) inconvenience of the federal forum;
(3) the desirability of avoiding piecemeal litigation;
(4) the order in which jurisdiction was obtained by the concurrent forums;
(5) whether federal law or state law provides the rule of decision on the merits;
(6) whether the state court proceedings are inadequate to protect the federal litigant's rights;
(7) whether exercising jurisdiction would promote forum shopping.Holder v. Holder, 305 F.3d 854, 870-71 (9th Cir. 2002) (citingMoses H. Cone, 460 U.S. at 15-16, 23, 26; Travelers Indem. Co. v. Madonna, 914 F.2d 1364, 1367 (9th Cir. 1990)). A court's decision to decline jurisdiction "does not rest on a mechanical checklist," but rather depends on "a careful balancing of the important factors as they apply in a given case." Moses H. Cone, 460 U.S. at 16.
The obligation of a federal court to hear cases under its jurisdiction is "particularly weighty" where the federal plaintiffs seek relief under section 1983. Attwood v. Mendocino Coast Dist. Hosp., 886 F.2d 241, 244 (9th Cir. 1989) (quotingTovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1979)). "Under such circumstances conflicting results, piecemeal litigation, and some duplication of judicial effort is the unavoidable price of preserving access to the federal relief which section 1983 assures." Id.
1. Adequacy of State Court Proceedings
An important consideration under a Colorado River analysis is whether, in the case of stay or dismissal, the state court proceedings will be an adequate forum for Plaintiffs' claims.Moses H. Cone, 460 U.S. at 26-27. Stay or abstention is inappropriate where "substantial room for doubt" exists as to whether the state court can provide relief. Id.
Plaintiffs argue that an order of this Court dismissing their action might result in their claims being barred by the statute of limitations. See Cal. Gov't Code § 945.6 (Deering 2005) (six month statute of limitations for suits against a public entity). Defendants do not dispute that the limitations period applies, but rather assert that the state court can set aside the dismissal of Plaintiffs' state claims. California Civil Procedure Code section 473(b) provides:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.
The state court entered the order of voluntary dismissal on July 14, 2005. Therefore, Plaintiffs would be entitled to seek such relief until February 14, 2006. It is not, however, a foregone conclusion that the state court would grant this relief. Section 473(b) allows the court to act "upon any terms as may be just." The state court seems free to determine whether justice would require reinstating the suit. This Court can speculate that, if the federal suit were dismissed, the state court might decide that Plaintiffs were surprised or mistaken by the circumstances following dismissal. Nonetheless, "substantial room for doubt" as to the existence of a state forum exists.
Defendants contend that Plaintiffs should be barred from invoking the inadequacy of the state forum to the extent that they are responsible for rendering the forum inadequate. Defendants provide no authority for this position, nor has the Court discovered a case that supports it. On the other hand, another circuit has denied Colorado River dismissal on the ground that, following multiple voluntary dismissals by plaintiff, no state proceeding could protect plaintiff's rights.McLaughlin v. United Va. Bank, 955 F.2d 930, 935-36 (4th Cir. 1992). McLaughlin held that absent a finding of bad faith, courts should seek to efficiently and justly dispose of disputes before them. Id. Despite an overlap with various state suits, "principles of res judicata, collateral estoppel, and equitable stay will help minimize the potential for undue waste." Id. at 936.
The absence of a state forum can weigh heavily against dismissal, requiring the federal court to retain jurisdiction despite other factors weighing against it. Where the state case has been dismissed, Colorado River relief can be improper even if state litigation has been long and eventful and the plaintiff's forum choice is strategic. FDIC v. Nichols, 885 F.2d 633, 634-35 (9th Cir. 1989). In Nichols, the state litigation had been proceeding for five years, discovery had occurred, and at least three motions had been decided. Id. In reversing the district court's dismissal of the federal suit on the basis of forum shopping, the court of appeals based its ruling on the fact that the state suit had previously been dismissed without prejudice.Id. at 638. Despite the time and effort invested in the state suit and the lower court's finding of forum shopping, the Ninth Circuit held that the district court abused its discretion by dismissing the federal suit when no concurrent or pending state court suit existed. Id.
Here, the state case has been voluntarily dismissed and potentially could be barred. Because a federal court has a "virtually unflagging obligation" to exercise jurisdiction, the Court finds that the "substantial room for doubt" concerning the adequacy of the state forum weighs heavily against dismissal.
2. Forum Shopping
In deciding whether to dismiss or stay, a court may also consider whether the federal plaintiff is engaged in "forum shopping" or seeks to avoid adverse state court rulings.Nichols, 885 F.2d at 637; Nakash v. Marciano, 882 F.2d 1411, 1417 (9th Cir. 1989). Federal courts may not decline to exercise jurisdiction on this ground alone. Nichols, 885 F.2d at 637.
Plaintiffs all but concede that they are filing the federal lawsuit for forum shopping purposes. Plaintiffs acknowledge that the Supreme Court of California has rejected the interpretation of federal law that they prefer. Opp'n at 16 n. 4; see County of L.A. v. Super. Ct., 21 Cal. 4th 292, 307 (1999) (holding that pain and suffering damages are not available to survivors where a section 1983 plaintiff dies while his suit is pending). Plaintiffs argue:
When Plaintiffs filed their first State Court Complaint, they believed that the Superior Court of the State of California was an equally appropriate forum, and that they had no reason to file suit in Federal Court. However, Robert Oglesby's unfortunate death after the initiation of the State Court action forced Plaintiffs to properly reevaluate the appropriateness of a State Court forum in this matter.
Opp'n at 13-14 (emphasis in original).
The Court seriously doubts how Plaintiffs' filing suit in another forum in order to avoid unfavorable precedent applicable only to the original forum is not garden-variety forum shopping.See Black's Law Dictionary 655 (6th Ed. 1990) ("Forum shopping. Such occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict."). Plaintiffs' actions appear to be for the sole reason of avoiding an unfavorable ruling, which would cripple their case, that is virtually inevitable in state court. Plaintiffs attempt to justify their second-choice of the federal forum by arguing that the issue is unresolved and should be settled by a federal court. Plaintiffs specify no authority that an unresolved federal question can affect the Court's finding of forum shopping in aColorado River analysis. The forum shopping factor is not dispositive, but weighs in favor of a stay or dismissal.
3. Applicable Law
Courts deciding whether to stay or dismiss on a Colorado River rationale consider whether the case concerns federal law issues. Defendants urge that the state law issues that underlie Plaintiffs' complaint counsel in favor of dismissal. The presence of state law issues is rarely sufficient to warrant a federal court to abandon its jurisdiction. Nakash, 882 F.2d at 1416. In fact, "the presence of federal-law issues must always be a major consideration weighing against surrender [of jurisdiction]."Id. (quoting Moses H. Cone, 460 U.S. at 26). Where state and federal courts have concurrent jurisdiction over a claim, this factor is less significant to a Colorado River determination.Id.
Plaintiffs here bring federal claims under section 1983 in addition to claims based solely on California law. California courts exercise concurrent jurisdiction over section 1983 claims.Ochoa v. Super. Ct., 39 Cal. 3d 159, 173 n. 10 (Cal. 1985);Miller v. County of Santa Cruz, 39 F.3d 1030, 1038 (9th Cir. 1994). Plaintiffs allege that this case rests on "a critical, unresolved issue of federal, and not state, law," which weighs in favor of this Court exercising jurisdiction. The Court finds no authority that counsels against Colorado River relief on the basis of the novelty of federal law issues. State courts are competent to decide federal law issues under section 1983, whether novel or mundane. The combination of state and federal claims in this case does not weigh for or against declining jurisdiction. Rather, the existence of concurrent jurisdiction in this case makes this factor unimportant to the decision to stay or dismiss.
The parties dispute whether the Ninth Circuit has precluded survivors in section 1983 cases from recovering for a decedent's pain and suffering. It is undisputed that the Supreme Court of California, interpreting federal law, has decided that such survivors are not entitled to recover. See County of L.A. v. Super. Ct., 21 Cal. 4th 292, 307 (1999).
4. Where Jurisdiction Was First Obtained
Another factor bearing on declining jurisdiction is whether jurisdiction was first obtained in state or federal court. The priority of the suits should be measured not solely by which case was filed first, but by comparing how far each suit has progressed. Moses H. Cone, 460 U.S. at 21. In Colorado River, "`the apparent absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss'" was a factor favoring dismissal. 424 U.S. at 820; see Moses H. Cone, 460 U.S. at 22. Where "substantive progress" has occurred in the state court litigation, "[h]aving elected state court, plaintiff should be bound by its choice absent compelling reasons to seek relief in another forum." Am. Int'l Underwriters, Inc. v. The Cont'l Ins. Co., 843 F.2d 1253, 1258-59 (9th Cir. 1988).
The mere existence of a state court suit, however, does not justify abstention. Herrington v. County of Sonoma, 706 F.2d 938, 940 (9th Cir. 1983). Courts regularly deny abstention where the state case is in its early stages. See, e.g., Easter v. Amer. W. Fin., 202 F. Supp. 2d 1150, 1155 (W.D. Wash. 2002) (denying abstention where action was in its initial stages and no discovery had taken place); Herrington, 706 F.2d at 940 (denying abstention where federal and state actions were filed almost simultaneously and the state action was not at "an advanced stage").
Since the state case was filed on September 30, 2004, the litigation has progressed in a number of ways, according to Defendants: Defendants have answered Plaintiffs' complaint, the County has propounded form and special interrogatories and requests for admissions, the County has conducted "an exhaustive investigation" and has collected medical and employment records, and, in connection with the discovery requests, Defendants have filed a motion to compel. A date has been set for a mandatory settlement conference, which has not been held. The trial was set for November 2005.
It is undisputed that the state case was pending for several months prior to the federal case, and was nearing a trial date. This passage of time does not itself create an impetus to stay or dismiss the case. The overall amount of judicial and attorney labor expended on the case is not such that "considerations of `wise judicial administration'" weigh in favor of dismissal. Defendants do not claim that the state court had made any important or time-consuming rulings, or expended any significant labor on the case. Defendants claim they have expended a substantial amount of effort answering the complaint, preparing discovery requests, investigating Plaintiffs' claim, and preparing a motion to compel. If the state case is as similar to the federal case as Defendants claim, then their previous efforts were not a total waste because they will further the defense of this federal action. The Court is aware that extra time and effort will be necessary to conform work product from the state case to meet federal specifications. Nevertheless, it does not appear that "substantive progress" has occurred at the state level to create the "exceptional circumstances" that justify dismissal or stay under Colorado River. See Am. Int'l Underwriters, 843 F.2d at 1258-59.
5. Avoiding Piecemeal Litigation
The danger of piecemeal litigation concerns the prospect that different courts might "consider the same issue, thereby duplicating efforts and possibly reaching different results."Am. Int'l Underwriters, 843 F.2d at 1258; Travelers Indem. Co., 914 F.2d at 1369. In American International Underwriters, the possibility of piecemeal litigation existed, despite a stay of the state litigation. 843 F.2d at 1258. This possibility existed because the state court had decided several substantive issues, such as whether plaintiff's loss fell within insurance policy terms. Id. Consequently, the district court would be forced to decide these issues anew, which would duplicate effort and threaten to create inconsistent results. Id.
No similar risk of piecemeal litigation exists here. The state court has made no substantive rulings in this case that a federal court might have to decide anew. There is no indication that the state suit will be reinitiated after the federal suit begins and then generate duplicative rulings. In any event, the state and federal courts adhere to "principles of res judicata, collateral estoppel, and equitable stay" that can ameliorate the potential for future waste of judicial resources. See McLaughlin, 955 F.2d at 936. This factor does not weigh in favor of dismissal.
Defendants contend that where the federal action is reactive and vexatious, the factor of avoiding piecemeal litigation is heavily weighted in favor of abstention. The Supreme Court has concluded the notion that the "vexatious or reactive nature" of litigation should weigh in favor of abstention "has considerable merit." Moses H. Cone, 460 U.S. at 17 n. 20.
Defendants claim that the federal action is reactive and vexatious because, in the state case, Plaintiffs have so far failed to produce discovery that supports their claims. Defendants assert that the federal case is therefore a delaying tactic.
Plaintiffs' refiling also requires Defendants to redo or revise certain tasks they completed according to state court procedure. Plaintiffs' choice to file in federal court has undoubtedly caused some inconvenience for Defendants. This was compounded by Plaintiffs' failure to inform Defendants that the state cases had been dismissed until over a month afterward. Woods Supp. Decl. at 2. This conduct, albeit perhaps discourteous, does not alter the Court's finding that the threat of piecemeal litigation is virtually nonexistent in this case.
6. Inconvenience of Federal Forum
The inconvenience of the federal forum can weigh in favor of dismissal or stay under Colorado River. Travelers Indem. Co., 914 F.2d at 1368. The issue is not whether the federal forum "is a `better' or `more convenient' forum," but rather "whether the inconvenience of the federal forum is so great that this factor points toward abstention." Id.
The Travelers Indemnity Co. court upheld the district court's finding that a 200 miles of extra travel required to reach the federal court did not weigh in favor of abstention. Id. The Court takes judicial notice of the fact that the distance from the Metropolitan Division of the Superior Court for County of Kern, the venue of the state suit, to the district courthouse in Fresno is substantially less than 200 miles. See Fed R. Evid. 201(b) (a court may take judicial notice of facts "not subject to reasonable dispute"). Even if the parties must travel to Fresno and obtain lodging, the inconvenience of the federal forum is relatively minor. The Court finds that this factor does not weigh in favor of stay or dismissal.
7. Balancing the Factors
On the facts of this case, only two of the aforementioned factors have any bearing on a determination of whether to stay or dismiss under Colorado River. The doubt regarding the adequacy of the state forum for this case weighs heavily in favor of retaining jurisdiction. See Nichols, 885 F.2d at 634-35;McLaughlin, 955 F.2d at 935-36. On the other hand, the only factor counseling against a stay is that Plaintiffs selected the federal forum in order to avoid unfavorable precedent binding only on the state court. Forum shopping alone, however, is not grounds for a stay or dismissal under Colorado River, especially where the state action has been dismissed. See Nichols, 885 F.2d at 637. Defendants have not met their particularly weighty burden to show that exceptional circumstances favor a stay or dismissal in this case. Defendants' motion to dismiss or stay on Colorado River grounds is DENIED. ACCORDINGLY, Defendants' motion to dismiss or stay is DENIED.
IT IS SO ORDERED.