of her deceased mother, Aileen Sheehan, commenced this action
against her former attorney, Joseph H. Koonz, Jr., for
negligence, legal malpractice, and breach of contract during his
representation of plaintiff in a medical malpractice suit. After
completing some preliminary discovery of defendant Koonz and one
of his law partners, plaintiff sought leave to amend the
complaint to allege counts of fraud, deceit, and
misrepresentation in connection with defendant's representation.
The Court denied plaintiff's Motion for Leave to File an Amended
Complaint without prejudice to refiling the motion after
additional discovery. Plaintiff now claims that subsequent
investigation indicates that defendant Koonz engaged in prior
acts of fraud, deceit, and misrepresentation and that defendant
and some of his law partners allegedly conspired to hide past and
present unethical conduct from plaintiff and the Court.
On June 10, 1999, plaintiff filed a lawsuit in the Superior
Court of the District of Columbia that names defendant and eleven
additional parties, including nine attorneys who were partners in
defendant's law firm at the time he represented plaintiff. The
lawsuit alleges, inter alia, nine counts of fraud, deceit,
misrepresentation, and conspiracy. On June 18, 1999, this Court
issued an Order to Show Cause why this case should not be
dismissed without prejudice in light of the recently filed
lawsuit in the Superior Court of the District of Columbia.
Plaintiff responded by stating that the joinder of indispensable
and necessary parties would destroy the diversity that provided
this Court with subject matter jurisdiction. Moreover, plaintiff
also stated that the discovery that has proceeded has been
minimal and that no prejudice to either party would result from
dismissal without prejudice of this case. Defendant opposes a
stay or dismissal on the ground that plaintiff has not
demonstrated the exceptional circumstances required by the
Supreme Court in Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483
(1976) [hereinafter Colorado River], and Moses H. Cone Mem'l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74
L.Ed.2d 765 (1983) [hereinafter Moses H. Cone]. Defendant's
arguments are not persuasive.
I. Federal Jurisdiction
Acting pursuant to its power under Article III of the United
States Constitution, Congress has mandated that federal district
courts shall have original jurisdiction over civil actions where
the matter in controversy exceeds $75,000 and is between citizens
of different states. See 28 U.S.C. § 1332(a). As a general
rule, federal district courts have a "virtually unflagging
obligation . . . to exercise the jurisdiction given them."
Colorado River, 424 U.S. at 817, 96 S.Ct. 1236. The Supreme
Court has emphasized that "the pendency of an action in the state
court is no bar to proceedings concerning the same matter in the
Federal court having jurisdiction." Id. (citations omitted).
Despite the district court's obligation to exercise
jurisdiction, the Supreme Court has, however, articulated five
exceptions where a court can abstain from jurisdiction: first,
"in cases presenting a federal constitutional issue which might
be mooted or presented in a different posture by a state court
determination of pertinent state law," County of Allegheny v.
Frank Mashuda Co., 360 U.S. 185, 189, 79 S.Ct. 1060, 3 L.Ed.2d
1163 (1959); see also Railroad Comm'n of Texas v. Pullman Co.,
312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); second, in cases
"where there have been presented difficult questions of state law
bearing on policy problems of substantial public import whose
importance transcends the result in the case then at bar,"
Colorado River, 424 U.S. at 814, 96 S.Ct. 1236; see also
Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25,
S.Ct. 1070, 3 L.Ed.2d 1058 (1959); third, in cases whose
resolution could lead to needless interference in complex state
administrative procedures, see Burford v. Sun Oil Co.,
319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); fourth, in cases where
the federal court's resolution would interfere with the pending
state criminal prosecutions, see Younger v. Harris,
401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); and finally, in cases
such as the one at bar, where resolution of a similar action
pending between the parties in state court may effectively
resolve the dispute between the parties. See Colorado River,
424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483.
III. Colorado River Abstention
In contrast to the other four types of abstention, Colorado
River abstention is not based upon "considerations of proper
constitutional adjudication and regard for federal-state
relations," but on considerations of "wise judicial
administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation." Colorado
River, 424 U.S. at 817, 96 S.Ct. 1236 (citations omitted). Given
the district court's obligation to exercise its jurisdiction and
the absence of these weightier considerations, the situations
that are appropriate for dismissal "for reasons of wise judicial
administration are considerably more limited than the
circumstances appropriate for abstention." Id. at 818, 96 S.Ct.
1236. In determining whether a case is appropriate for Colorado
River abstention, the court should not look for substantial
reasons to exercise jurisdiction. Rather, "the task is to
ascertain whether there exist `exceptional' circumstances, the
`clearest of justifications,' that can suffice under Colorado
River to justify the surrender of that jurisdiction." Moses H.
Cone, 460 U.S. at 25-26, 103 S.Ct. 927; see also Hoai v. Sun
Refining & Marketing Co., 866 F.2d 1515, 1518, 1520-21 (D.C.Cir.
1989) (discussing circumstances justifying stay or dismissal of
federal cases because of concurrent state proceedings).
The Supreme Court has articulated six factors that a district
court must consider in deciding whether the circumstances of a
particular case are exceptional: (1) whether one court has first
assumed jurisdiction over property; (2) the inconvenience of the
federal forum; (3) the desirability of avoiding piecemeal
litigation; (4) the order in which jurisdiction was obtained by
the concurrent forums; see Colorado River, 424 U.S. at 818, 96
S.Ct. 1236; (5) the source of the law that will provide the rules
of the decision; and (6) the adequacy of the state court
proceeding to protect the rights of the parties. See Moses H.
Cone, 460 U.S. at 24-26, 103 S.Ct. 927. A district court's
analysis of the above factors should not be mechanical, but
rather the district court should carefully balance the factors
that apply to the given case, "with the balance heavily weighted
in favor of the exercise of jurisdiction." Id. at 16, 103 S.Ct.
927. In addition, "[n]o one factor is necessarily determinative;
a carefully considered judgment taking into account both the
obligation to exercise jurisdiction and the combination of
factors counselling against that exercise is required." Colorado
River, 424 U.S. at 818-19, 96 S.Ct. 1236; see also Reiman v.
Smith, 12 F.3d 222, 224 (D.C.Cir. 1993) (citing Johns v.
Rozet, 770 F. Supp. 11 (D.D.C. 1991) as an example of a case that
properly engaged in balancing the Colorado River factors)).
A. Jurisdiction Over Property and Convenience of the Fora
In applying the Colorado River factors to the facts of this
case, the Court can deal with two of the factors expeditiously.
Because this case does not involve jurisdiction over property,
the first factor does not weigh in favor of or against
abstention. Next, because both the state and federal claims are
pending in the District of Columbia, the second factor is also
B. Avoidance of Piecemeal Litigation
The Court finds that the third factor, the avoidance of
weighs in favor of abstention. "Piecemeal litigation occurs when
different tribunals consider the same issue, thereby duplicating
efforts and possibly reaching different results." Travelers
Indemnity Co. v. Madonna, 914 F.2d 1364, 1369 (9th Cir. 1990)
(citations omitted).*fn1 In the instant case, plaintiff has
filed a lawsuit against defendant for legal malpractice during
his representation of her in a medical malpractice suit.
Plaintiff now claims that subsequent investigation indicates that
defendant Koonz engaged in prior acts of fraud, deceit, and
misrepresentation and that he and some of his law partners
allegedly conspired to hide illegally the past and present
unethical conduct from plaintiff and the Court.
In the Superior Court action, plaintiff is suing defendant and
nine attorneys who were partners in defendant's firm at the time
of his representation of plaintiff. Plaintiff claims that based
on previously conducted discovery, defendant's "law firm and law
partners knew that defendant Koonz had committed prior acts
involving fraud, deceit, misrepresentation, conversion of funds,
and/or other unethical acts involving moral turpitude, and
otherwise seriously violat[ed] his fiduciary duties owed to his
own clients, and the judicial system, and did absolutely nothing
about it." Pl. Eileen Sheehan's Reply to Def. Koonz's Opp'n to
Stay or Dismissal Without Prejudice at 3. Plaintiff believes that
"it was the official policy of the Koonz law firm to allow
defendant Koonz to continue to victimize clients, courts, and
insurance companies, and then to interpose an attorney/client
privilege objection should Koonz's acts of fraud and conversion
be questioned in legitimate discovery inquiries." Id. at 4.
The Court finds the facts of this case to be distinguishable
from the seeming majority of cases in which the defendant seeks
to dismiss or stay the federal action. See, e.g., Holman v.
Cook, 879 F. Supp. 113 (D.D.C. 1995) (defendants moved to dismiss
class action suit brought by insurers); Brinco Mining Ltd. v.
Federal Insurance Co., 552 F. Supp. 1233 (D.D.C. 1982) (insurer
moved to dismiss declaratory judgment brought by asbestos
manufacturer). But see Hastings v. Alexis, Civ. A. No.
89-3346-LFO, 1990 WL 91587 (D.D.C. June 19, 1990) (discussing
plaintiff's failure to demonstrate the exceptional circumstances
necessary to warrant dismissal). Here, plaintiff seeks to dismiss
the instant case and has brought a suit in Superior Court against
defendant, alleging claims identical to the ones pending in
federal court, and also against defendant's present and former
law firm partners, alleging additional claims of fraud. Some
courts have distinguished between the problems created by
piecemeal adjudication and the mere duplication of proceedings,
giving the most weight to this factor when piecemeal litigation
could severely prejudice one of the parties. See, e.g., Reiman
v. Smith, 12 F.3d at 224 (pointing out that the district court's
mere citation of its concern with the avoidance of piecemeal
litigation without balancing the factors in favor of dismissal
against its obligation to exercise jurisdiction is insufficient
to justify a stay or dismissal); Rojas-Hernandez v. Puerto Rico
Electric Power Auth., 925 F.2d 492, 496-97 (1st Cir. 1991)
(holding that because inconsistent results would unlikely lead to
further litigation, the possibility of piecemeal adjudication did
not justify surrender of federal jurisdiction).
Especially in light of the fact that this case is one sounding
in legal malpractice, where plaintiff must prove a case within a
case, the proceedings in Superior Court are indubitably more
comprehensive than and "inextricably intertwined and inseparable"
from the proceedings before this Court. Moreover, the Court finds
that defendant would be prejudiced by having litigation proceed
against him solely in this court and that his rights would be
better protected by having all of the issues resolved by one
court-the Superior Court.
C. Order of Jurisdiction
The fourth factor, the order in which courts obtained
jurisdiction, weighs against abstention. Plaintiff filed her
complaint in this Court on May 7, 1998, and brought her case in
Superior Court on June 10, 1999. The Supreme Court has made clear
that the focus of this factor is not only the timing of the
filing of the complaint but also the progress that has been made
in each case. See Moses H. Cone, 460 U.S. at 21, 103 S.Ct. 927.
Considering that plaintiff brought the federal case first and has
conducted some discovery, albeit limited, the Court finds that
this factor weighs against abstention.
D. Source of Law
The fifth factor focuses on the source of law that provides the
rule of decision in the case. Plaintiff argues that her case is
founded solely on diversity and that because no federal law
issues exist, this factor weighs in favor of abstention. This
argument is not persuasive. The Court in Cottman Transmission
Systems v. Lehwald, Inc., 774 F. Supp. 919 (E.D.Pa. 1991), stated
it best in saying that:
The fact that there are no issues of federal law in
the present case . . . does not, by way of inverse
reasoning, demand the conclusion that abstention is
appropriate. . . . [T]here is no indication that the
state-law issues raised in this case are particularly
complex or unsettled; thus, there is no reason to
question the relative competence of the federal court
to adjudicate those issues. Indeed, the very
existence of diversity jurisdiction rests on a
presumption that federal courts are competent to
decide questions of state law.
Id. at 923; see also Johns v. Rozet, 770 F. Supp. at 16
(noting that where state law issues predominate, the source of
law is of diminished importance). Accordingly, the fifth factor
weighs against abstention.
E. Adequacy of State Court to Protect Rights
The last factor, which is concerned with the adequacy of the
Superior Court to protect the rights of the parties, weighs in
favor of abstention. In light of the more comprehensive nature of
the Superior Court proceedings and the destruction of complete
diversity if necessary and indispensable parties were joined in
this proceeding, the parties' rights can be protected only
through the litigation in Superior Court. Arguably, if plaintiff
had known prior to commencing the instant lawsuit that
defendant's law partners were allegedly involved in defendant's
alleged fraudulent activity, she could not have commenced her
lawsuit in this Court. Therefore, this factor is of extreme
importance and weighs in favor of abstention.
F. Forum Shopping
Defendant also accuses plaintiff of attempting to avoid her
failures through forum shopping. See Def.'s Resp. to Court's
Order to Show Cause at 3. Defendant cites a pair of Ninth Circuit
cases for the proposition that "[i]f there is any doubt as to
whether forum shopping exists or whether any other factor
considered in the analysis under Colorado River doctrine has
been effectively demonstrated, then all doubts should be resolved
against the stay." Id. (citing Travelers Indem. Co. v. Madonna
Construction Company, 914 F.2d 1364, 1369 (9th Cir. 1990)). In
Madonna, however, the Ninth Circuit found no evidence of
forum shopping that would have been considered improper in the
Colorado River context and determined this factor to be
neutral. Similarly, because defendant has provided this Court
with no evidence of forum shopping, the Court finds that this
factor is neutral with respect to Colorado River abstention.
G. The Balance
To determine whether a stay or dismissal is warranted, the
relevant factors must be balanced, "with the balance heavily
weighted in favor of the exercise of jurisdiction." Moses H.
Cone, 460 U.S. at 16, 103 S.Ct. 927. In this case the factors
that weigh in favor of dismissal are quite significant. The Court
finds that the avoidance of the inevitable piecemeal litigation
and the protection of the parties rights favor abstention of
jurisdiction and dismissal of the present case without prejudice.
Arguably, if plaintiff had known prior to commencing this lawsuit
that defendant's law firm partners were somehow involved in
defendant's alleged fraudulent activity, then she clearly could
not have brought this lawsuit in District Court.
For the foregoing reasons, the Court finds that exceptional
circumstances exist and that Colorado River abstention is
appropriate. Therefore, the Court dismisses the above-captioned
case without prejudice to proceedings in the Superior Court of
the District of Columbia.
Upon consideration of the parties' responses to the Court's
Order to Show Cause, it is hereby
ORDERED that the above-captioned case is DISMISSED WITHOUT
PREJUDICE; and it is
FURTHER ORDERED that defendant's motion for attorney fees and
costs [89-1 & 89-2] is DENIED. The Court will address this
issue once final judgment is entered in Superior Court.