Sto Corp. v. Lancaster Homes, Inc. , 11 F. App'x 182 ( 2001 )


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  •                          UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    STO CORPORATION, individually and       
    as Assignee and Subrogee of J.
    Kent Pepper and Martha N. Pepper,
    Plaintiff-Appellant,
            No. 00-1475
    v.
    LANCASTER HOMES, INCORPORATED,
    Defendant-Appellee.
    
    Appeal from the United States District Court
    for the Eastern District of North Carolina, at Wilmington.
    W. Earl Britt, Senior District Judge.
    (CA-99-213-7-BR)
    Argued: January 23, 2001
    Decided: April 27, 2001
    Before WILLIAMS and MICHAEL, Circuit Judges, and
    Claude M. HILTON, Chief United States District Judge for
    the Eastern District of Virginia, sitting by designation.
    Affirmed in part, reversed in part, and remanded with instructions by
    unpublished per curiam opinion.
    COUNSEL
    ARGUED: Charles Lyman Becker, WOMBLE, CARLYLE, SAN-
    DRIDGE & RICE, Raleigh, North Carolina, for Appellant. Rodney
    Allen Dean, DEAN & GIBSON, L.L.P., Charlotte, North Carolina,
    2                   STO CORP. v. LANCASTER HOMES
    for Appellee. ON BRIEF: Robert E. Fields, III, Mary S. Pollard,
    WOMBLE, CARLYLE, SANDRIDGE & RICE, Raleigh, North Car-
    olina, for Appellant. Christopher J. Culp, DEAN & GIBSON, L.L.P.,
    Charlotte, North Carolina; Julie Goodman, Steven Embry, BROWN,
    TODD & HEYBURN, P.L.L.C., Lexington, Kentucky, for Appellee.
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Sto Corporation (Sto) brought a diversity action against Lancaster
    Homes, Inc. (Lancaster) in federal court, alleging state law claims of
    breach of warranty, breach of contract, and contribution. These same
    claims are the subject of ongoing litigation in North Carolina state
    court. The district court abstained from exercising jurisdiction under
    the principles articulated in Colorado River Water Conservation Dis-
    trict v. United States, 
    424 U.S. 800
     (1976). Because we agree that this
    case presents exceptional circumstances warranting abstention, we
    affirm the district court’s decision to abstain. However, the resolution
    of the state court proceedings may not completely dispose of Sto’s
    claims in federal court. We therefore reverse the district court’s order
    dismissing this case and remand for entry of a stay order pending the
    disposition of the case in state court.
    I.
    In November 1996 J. Kent and Martha Pepper instituted an action
    in North Carolina Superior Court. The Peppers sued Lancaster, a gen-
    eral contractor; Sto, a manufacturer of insulation; and Prime South
    Homes, a subcontractor who installs insulation. Their complaint
    alleged state law claims of negligence, breach of contract, breach of
    express warranty, and breach of implied warranty. The suit arose out
    of the construction of their house, which occurred in 1993. The Pep-
    STO CORP. v. LANCASTER HOMES                         3
    pers maintained that faulty application and defective manufacture of
    the exterior insulation finish system caused water damage to the struc-
    ture.
    Sto filed a cross-claim against Lancaster, alleging that if Sto was
    liable to the Peppers, Sto was entitled to indemnification or contribu-
    tion from Lancaster. Lancaster brought third-party claims against
    Western Cedar Roofs, Inc. (the roofer), Coastal Window & Door
    Center (the window distributor), and Lincoln Wood Products, Inc.
    (the window manufacturer). After almost two years of discovery a
    jury trial commenced in state court on September 28, 1998. The case
    was tried for six weeks. Then, on November 6, 1998, after the Pep-
    pers and Lancaster had rested their case, the Peppers entered into a
    settlement agreement with Sto. On that same day the Peppers orally
    moved to dismiss all of their claims, including those against Lancaster
    and Prime South Homes. The judge granted the motion from the
    bench and dismissed the jury. However, the judge did not make any
    findings, and he never entered a written order of dismissal. A week
    later, on November 13, the Peppers assigned to Sto "all claims and
    causes of action against any person or entity . . . for damages to [the
    Pepper] house."
    Seven months later, on June 11, 1999, Sto filed a motion in state
    court to amend its pleadings to assert the assigned claims against Lan-
    caster and Western Cedar Roofs. Lancaster opposed the motion to
    amend. Lancaster’s principal argument was that Sto cannot assert the
    Peppers’ claims because they were dismissed with prejudice. Sto’s
    motion to amend is still pending in state court.
    On November 5, 1999, five months after filing its motion to amend
    with the state court, Sto brought an action against Lancaster in federal
    court. Sto asserts its assigned claims — breach of express warranty,
    breach of implied warranty, and breach of contract — in the federal
    action. In the alternative, Sto alleges that it is entitled to contribution
    from Lancaster. Lancaster filed a motion to dismiss or stay the case,
    arguing that the district court should abstain from exercising jurisdic-
    tion pursuant to Colorado River Water Conservation District v.
    United States, 
    424 U.S. 800
     (1976).1 The district court granted the
    1
    "Although not technically a doctrine of abstention, the Colorado
    River doctrine has become known as such . . . ." Al-Abood v. El-Shamari,
    
    217 F.3d 225
    , 232 n.3 (4th Cir. 2000).
    4                   STO CORP. v. LANCASTER HOMES
    motion and dismissed the case. Sto then filed a motion for reconsider-
    ation, asking the district court to stay the action instead of dismissing
    it. The district court denied the motion for reconsideration. Sto
    appeals.
    II.
    We start with the premise that "[a]bstention from the exercise of
    federal jurisdiction is the exception, not the rule." Id. at 813. The fed-
    eral courts have a "virtually unflagging obligation . . . to exercise the
    jurisdiction given them." Id. at 817. However, Colorado River held
    that in certain exceptional circumstances, a federal court should
    abstain in the face of a state court’s contemporaneous exercise of
    jurisdiction. See id. at 818. Colorado River abstention rests on "con-
    siderations of wise judicial administration, giving regard to conserva-
    tion of judicial resources and comprehensive disposition of litigation."
    Id. at 817 (internal quotation marks and citations omitted).
    In order for a federal court to abstain under the Colorado River
    doctrine, two conditions must be satisfied. First, there must be parallel
    proceedings in state and federal court. "Suits are parallel if substan-
    tially the same parties litigate substantially the same issues in differ-
    ent forums." New Beckley Mining Corp. v. Int’l Union, UMWA, 
    946 F.2d 1072
    , 1073 (4th Cir. 1991). Second, exceptional circumstances
    warranting abstention must exist. The Court in Colorado River
    announced several factors that are relevant in determining whether a
    particular case presents such exceptional circumstances. A federal
    court should consider whether a state court has assumed jurisdiction
    over property. In addition, such factors as "the inconvenience of the
    federal forum; the desirability of avoiding piecemeal litigation; and
    the order in which jurisdiction was obtained by the concurrent
    forums" should be considered. Colorado River, 
    424 U.S. at 818
     (cita-
    tions omitted). In Moses H. Cone Mem’l Hosp. v. Mercury Constr.
    Corp., 
    460 U.S. 1
     (1983), the Supreme Court added two additional
    factors: whether state or federal law is implicated and whether the
    state court proceedings are adequate to protect the parties’ rights. See
    
    id. at 23, 26
    .
    We review a district court’s abstention on Colorado River grounds
    for abuse of discretion. See New Beckley, 
    946 F.2d at 1074
    . "The dis-
    STO CORP. v. LANCASTER HOMES                       5
    trict court must nevertheless exercise its discretion in accordance with
    the Colorado River ‘exceptional circumstances test.’" 
    Id.
    A.
    We agree with the district court that the state and federal cases are
    parallel proceedings.2 The issues are the same in the two forums. In
    state court Sto asserted an indemnity or a contribution claim against
    Lancaster. In addition, in state court Sto seeks to assert against Lan-
    caster the causes of action that the Peppers assigned to Sto. In federal
    court Sto’s claims include the assigned claims from the Peppers as
    well as a claim for contribution against Lancaster. Sto argues that
    because the state court has not yet ruled on its motion to amend, the
    assigned claims have not entered the state court case. Thus, although
    there is a potential for parallel proceedings after the state court rules
    on the motion, Sto claims that the lawsuits as they currently stand are
    not parallel. We disagree. The federal court and the state court are in
    essentially the same position because Sto seeks to assert the same
    causes of action in both courts, namely, contribution/indemnity and
    the Peppers’ substantive claims that have been assigned to Sto. There-
    fore, we hold that Sto is attempting to litigate the same issues in both
    the state and federal forums.
    We recognize that although the issues are identical, the parties are
    not exactly the same in the two courts. Additional parties were
    involved in the state court suit at its inception, including Prime South
    Homes and the third-party defendants against which Lancaster
    asserted claims. In contrast, Sto chose to sue only Lancaster in the
    federal forum. However, the parties only need to be substantially the
    same for the Colorado River abstention doctrine to apply. Sto and
    Lancaster are the only parties that are both original defendants and
    involved in Sto’s motion to amend. Furthermore, Prime South Homes,
    Coastal Window & Door Center, and Lincoln Wood Products may no
    longer be involved in the state case because of the Peppers’ dismissal.
    2
    Sto argues that in reviewing the district court’s determination of
    whether there are parallel proceedings, we should adopt a de novo or
    more rigorous abuse of discretion standard of review. We do not need to
    reach this question because even under a de novo standard of review our
    result would be the same.
    6                   STO CORP. v. LANCASTER HOMES
    That leaves Western Cedar Roofs as the only party in the state suit
    that is missing from the federal suit. The absence of this one party
    does not defeat the parallel nature of the lawsuits. See Nakash v. Mar-
    ciano, 
    882 F.2d 1411
    , 1417 (9th Cir. 1989) ("We should be particu-
    larly reluctant to find that the actions are not parallel when the federal
    action is but a ‘spin-off’ of more comprehensive state litigation.").
    Accordingly, in addition to the identical nature of the issues, the
    parties in the two forums are now substantially the same. Thus, we
    hold that the first condition of the Colorado River doctrine is satis-
    fied.
    B.
    We also hold that the district court did not abuse its discretion by
    concluding that this case presents the exceptional circumstances
    allowing for Colorado River abstention. We recognize, of course, that
    not all of the factors favoring abstention are present. This case does
    not involve property, and the federal court is just as convenient for the
    parties as the state court. However, a decision to abstain does not
    require the presence of all of the factors. Instead, the factors are to be
    applied "in a pragmatic, flexible manner with a view to the realities
    of the case at hand." Moses H. Cone, 
    460 U.S. at 21
    . When the
    remaining factors are examined in this case, two factors slightly favor
    abstention and one overwhelmingly favors it.
    First, because of the presence of at least one other party in the state
    suit, there is a possibility of piecemeal litigation.3 The threat of incon-
    sistent results and judicial inefficiency, without more, does not satisfy
    this factor. See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 
    915 F.2d 7
    , 13, 16 (1st Cir. 1990). Exercising federal jurisdiction in this
    case would present a problem in addition to the inherent inefficiency
    3
    In Colorado River the federal law at issue created a clear policy of
    avoiding piecemeal adjudication with respect to river system water
    rights. Therefore, abstention was appropriate. See 
    424 U.S. at 819
    . In
    contrast, the Federal Arbitration Act requires piecemeal litigation if nec-
    essary to effectuate an arbitration agreement. Therefore, abstention was
    inappropriate in Moses H. Cone. See 
    460 U.S. at 20
    . In this case there
    is no federal law or policy at issue.
    STO CORP. v. LANCASTER HOMES                        7
    of parallel litigation. Sto’s state court motion to amend seeks to
    include claims against Western Cedar Roofs as well as Lancaster.
    However, Western Cedar Roofs is not a defendant in the federal suit,
    and a federal court ruling that Lancaster is liable to Sto may not
    resolve the issue of Western Cedar Roofs’s liability. In other words,
    an issue might be left for resolution in state court. Cf. Am. Bankers
    Ins. Co. v. First State Ins. Co., 
    891 F.2d 882
    , 885 (11th Cir. 1990)
    (the presence of an additional party in state court weighs slightly in
    favor of abstention because piecemeal litigation may result).
    At oral argument Sto suggested that any necessary parties could be
    joined in the federal suit. This suggestion does not change our conclu-
    sion. First of all, if Western Cedar Roofs is a nondiverse party, the
    federal court will have no jurisdiction. Furthermore, Sto was the one
    who chose to fashion its federal suit in the way that it did, and it has
    to accept those consequences. As the federal case stands now, the
    absence of a party may result in piecemeal litigation. This possibility
    lends some support for federal court abstention.
    Second, exercising jurisdiction would require the federal court to
    delve into complicated issues of North Carolina procedural law. The
    presence of state law issues in itself does not create a circumstance
    in which a federal court should surrender jurisdiction. After all, fed-
    eral courts sitting in diversity regularly grapple with questions of state
    law. See Evans Transp. Co. v. Scullin Steel Co., 
    693 F.2d 715
    , 717
    (7th Cir. 1982). However, in "rare circumstances" the presence of
    state law issues will serve as a factor in a federal court’s abstention
    decision. Moses H. Cone, 
    460 U.S. at 26
    . See also Gordon v. Luksch,
    
    887 F.2d 496
    , 498 (4th Cir. 1989) (refusing to abstain because the
    case required interpretation of state law issues that are "uncompli-
    cated and permit little legal disagreement"); Bethlehem Contracting
    Co. v. Lehrer/McGovern, Inc., 
    800 F.2d 325
    , 328 (2d Cir. 1986)
    (refusing to abstain because the case did not present "novel or unique"
    state law issues).
    Resolving this case requires an interpretation of North Carolina
    Rule of Civil Procedure 41(a)(2). That rule provides that after a plain-
    tiff rests her case, she is allowed to dismiss without prejudice only
    "upon order of the judge and upon such terms and conditions as jus-
    tice requires." The rule says nothing about whether the order has to
    8                   STO CORP. v. LANCASTER HOMES
    be in writing or what kind of findings are required. The trial judge in
    the state court case said he was dismissing without prejudice, but he
    issued no findings and no written order. Determining the nature of the
    Peppers’ dismissal will not be a straightforward inquiry. Therefore,
    the questions of North Carolina procedure are another reason to favor
    federal court abstention in this case.
    Finally, the most persuasive factor in favor of abstention is the
    order in which the forums assumed jurisdiction. In considering this
    factor, we look not only to which action was filed first but also to
    "how much progress has been made in the two actions." Moses H.
    Cone, 
    460 U.S. at 21
    . The state court action has made substantial
    progress. The state suit commenced three years before the federal one.
    There was extensive pretrial activity, including discovery and media-
    tion, as well as a six-week jury trial. After the state judge orally
    granted the Peppers’ motion to dismiss, Sto filed a motion to amend
    its pleadings (to assert the assigned claims), Lancaster filed a
    response, and a hearing was held. Cf. Nakash v. Marciano, 
    882 F.2d 1411
    , 1413 (9th Cir. 1989) (federal court abstention was proper where
    state court history consisted of 70 hearings, 100 depositions, and
    300,000 documents). This long, active history in state court stands in
    stark contrast to the brief history in federal court. After Sto filed its
    complaint in federal court, the activity there was essentially limited
    to consideration of whether that action should be dismissed or stayed.
    Sto’s status in both suits also bears on the filing sequence (or litiga-
    tion progress) factor. The fact that the same plaintiff files suit in fed-
    eral court after first filing in state court weighs in favor of abstention,
    according to several courts. See Villa Marina Yacht Sales, Inc. v. Hat-
    teras Yachts, 
    915 F.2d 7
    , 14 (1st Cir. 1990); LaDuke v. Burlington N.
    R.R. Co., 
    879 F.2d 1556
    , 1561 (7th Cir. 1989); Am. Int’l Underwrit-
    ers, (Phil.), Inc. v. Continental Ins. Co., 
    843 F.2d 1253
    , 1260-61 (9th
    Cir. 1988); Telesco v. Telesco Fuel & Masons’ Materials, Inc., 
    765 F.2d 356
    , 363 (2d Cir. 1985). In the state court action, which was
    instituted first, Sto filed a motion to amend its pleadings in order to
    stand in the place of the Peppers, the original plaintiffs. Thereafter,
    Sto (as plaintiff) instituted the federal action. This, we believe, offers
    some support for abstention.
    Because of the presence of three factors favoring abstention, we
    hold that the district court exercised its discretion within the bounds
    STO CORP. v. LANCASTER HOMES                        9
    of the Colorado River conditions. A federal court should be reluctant
    to decline to exercise its jurisdiction, but in the unique circumstances
    of this case abstention will promote the efficient and comprehensive
    resolution of the dispute.
    C.
    Sto argues that even if the district court did not err in abstaining,
    it should have stayed the federal case pending the resolution of the
    state court action. A federal court abstaining on Colorado River
    grounds should dismiss the case if "the determinative issues will
    unfailingly be resolved within the parameters of the state-court litiga-
    tion . . . as no further action by the district court is anticipated." Cox
    v. Planning Dist. I Cmty. Mental Health & Mental Retardation Servs.
    Bd., 
    669 F.2d 940
    , 943 (4th Cir. 1982). However, if the federal case
    has a chance of continuing even after the resolution of the state case,
    a stay pending the resolution of the state suit is the appropriate dispo-
    sition in federal court. See Kelser v. Anne Arundel County Dep’t of
    Soc. Servs., 
    679 F.2d 1092
    , 1094 (4th Cir. 1982).
    In this case the state court’s resolution of the pending motion may
    or may not completely dispose of the case. A state court decision that
    the Peppers’ dismissal was with prejudice will be conclusive because
    it will mean that the Peppers had nothing to assign to Sto and that Sto
    cannot revive the Peppers’ causes of action. Similarly, a state court
    decision to grant Sto’s motion to amend and proceed with the case
    will leave nothing for the federal court to do.
    On the other hand, the state court may deny Sto’s motion to amend
    because its cross-claims were dismissed when the Peppers’ claims
    were dismissed. See Jennette Fruit & Produce Co. v. Seafare Corp.,
    
    331 S.E.2d 305
    , 308 (N.C. Ct. App. 1985). Alternatively, the state
    court may deny Sto’s motion because it would not be in the interest
    of justice to grant it or because granting it would result in undue delay
    or prejudice. See N.C. R. Civ. P. 15(a); Outer Banks Contractors, Inc.
    v. Daniels & Daniels Constr., Inc., 
    433 S.E.2d 759
    , 762 (N.C. Ct.
    App. 1993). The presence of these options make it necessary for the
    federal court to retain the present case on its docket because otherwise
    the statute of limitations could bar Sto from refiling its claims against
    10                   STO CORP. v. LANCASTER HOMES
    Lancaster in any court.4 A stay of the federal action would avoid any
    potential statute of limitations problems. See Evans Transp. Co. v.
    Scullin Steel Co., 
    693 F.2d 715
    , 717-18 (7th Cir. 1982).
    III.
    We affirm the district court’s decision to abstain. However, we
    reverse the district court’s order to dismiss the case and remand with
    instructions that the court enter an order staying this action pending
    resolution of the state court case.
    AFFIRMED IN PART, REVERSED IN PART,
    AND REMANDED WITH INSTRUCTIONS
    4
    In North Carolina a defective construction claim must be brought
    within six years of the substantial completion of the improvement. See
    
    N.C. Gen. Stat. § 1-50
    (a)(5). The Peppers occupied their house on Janu-
    ary 4, 1994. Therefore, Sto, as an assignee of the Peppers, had to bring
    its claim by January 4, 2000, at the latest. Furthermore, North Carolina
    law provides that an action dismissed without prejudice must be refiled
    within one year of the dismissal. See N.C. R. Civ. P. 41(a). Since the trial
    court orally dismissed the Peppers’ claims on November 6, 1998, Sto
    might have had only until November 6, 1999, to refile its assigned
    claims. That same deadline would apply to Sto’s contribution claim,
    which has to be brought a year after the settlement agreement. See N.C.
    Gen. Stat. § 1B-3(d)(2).