Opinion
No. C 00-4038-MWB
August 21, 2000
This matter comes before the court pursuant to the plaintiffs' July 10, 2000, motion to abstain and/or stay or in the alternative to dismiss this lawsuit in favor of parallel litigation in state court. Defendant Thermogas Company resisted the plaintiffs' motion to abstain or stay on July 24, 2000. This matter also comes before the court pursuant to defendant Thermogas Company's August 8, 2000, request for expedited relief on its resistance to plaintiffs' motion to abstain and/or stay or in the alternative to dismiss and on its own motion for summary judgment. The court heard telephonic oral arguments on these motions on August 18, 2000, and these matters are now fully submitted.
I. INTRODUCTION
The plaintiffs filed the present action on April 10, 2000, a year-and-a-half after they filed a similar action in Iowa District Court in and for Buena Vista County on November 6, 1998. They have now moved to stay the present federal action in favor of the state action, which is scheduled to proceed to trial on September 19, 2000, on the ground that the state action will presumably result in complete adjudication of this case. The plaintiffs add that, as a result of a mediation in the state court action, held on June 19 and 20, 2000, a complete settlement was reached with all parties to this action, including third-party defendants, with the exception of defendant Thermogas. The plaintiffs contend that, pursuant to Iowa Code Ch. 668, this settlement extinguishes all claims by and between all parties to the present litigation, with the exception of claims and counterclaims between the plaintiffs and Thermogas. In these circumstances, the plaintiffs contend that the present action should be stayed in favor of the much more advanced state court action, which will soon proceed to trial, in the interest of wise judicial administration and economies to the parties. Defendant Thermogas resists the motion to stay or abstain on the ground that the state and federal actions are not "parallel," in light of additional counterclaims, third parties, and third-party claims in this lawsuit that were barred from consideration in the state court action by rulings of the state court judge. Thermogas further asserts that the factors relevant to so-called " Colorado River abstention" do not weigh in favor of abstention in this case. Finally, Thermogas contends that no ruling in state court has yet precluded any issue presented in these proceedings.
Indeed, defendant National Propane has moved to dismiss this action pursuant to Rule 41 of the Federal Rules of Civil Procedure, noting that the court's disposition of the Rule 41 motion is only required because defendant Thermogas has refused to consent to the dismissal of the present action.
II. LEGAL ANALYSIS A. Colorado River Abstention
The United States Supreme Court recently reiterated that "federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress," see Quackebush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (citing, inter alia, Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 821 (1976)), but "[t]his duty is not . . . absolute." Id. (citing Canada Malting Co. v. Paterson S. S., Ltd., 285 U.S. 413, 422 (1932)). For example, the Court noted that abstention is warranted, among other reasons, pursuant to Colorado River Water Conservation District v. United States, in the interest of "`wise judicial administration'" where a federal case is duplicative of a pending state proceeding. Id. at 716-17 (quoting Colorado River, 424 U.S. at 817).
Nevertheless, abstention pursuant to Colorado River requires a showing of "exceptional circumstances." See, e.g., Capitol Indemnity Corp. v. Haverfield, ___ F.3d ___, ___, 2000 WL 968527, *1 (8th Cir. July 14, 2000); Prudential Ins. Co. of Am. v. Doe, 140 F.3d 785, 788-89 (citing Colorado River, 424 U.S. at 818-20). "Exceptional circumstances" must be shown, because "abstention is an extraordinary and narrow exception to the `virtually unflagging obligation' of federal courts to exercise the jurisdiction given them.'" In re Burns Wilcox, Ltd., 54 F.3d 475, 476 (8th Cir. 1995) (quoting Colorado River, 424 U.S. at 817), overruled on other grounds, Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996). As the Eighth Circuit Court of Appeals explained in In re Burns Wilcox, Ltd., Colorado River set forth four factors to weigh in determining whether such exceptional circumstances exist. Colorado River, 424 U.S. at 817-18]. Moses H. Cone [Mem. Hosp. v. Mercury Constr. Corp. added two more factors. 460 U.S. [1,] 23-27 [(1983)].
In Capitol Indemnity Corp., the Eighth Circuit Court of Appeals noted that the Supreme Court decided in Wilton v. Seven Falls Co., 515 U.S. 277, 282-89 (1995), that the "exceptional circumstances" test under Colorado River is not applicable to the stay or dismissal of a federal declaratory judgment action in favor of a parallel state court proceeding; a stay of a federal declaratory judgment action is instead governed by the discretionary standard set forth in Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942), a case upon which the plaintiffs here have relied. However, the present federal action is not one for declaratory judgment. Thus, the Brillhart "discretionary" standard is not applicable here.
In Quackenbush, the Supreme Court rejected the conclusion of the Eighth Circuit Court of Appeals in In re Burns Wilcox, Ltd., 54 F.3d 475, 477 n. 7 (8th Cir. 1995), that an abstention-based remand order is not appealable, and relief must instead be sought by seeking a writ of mandamus. Quackenbush, 517 U.S. at 710-11.
In re Burns Wilcox, Ltd., 54 F.3d at 477. However, analysis of the present motion to abstain or stay does not begin with consideration of these six factors.
1. The "parallelism" prerequisite
Instead, in In re Burns, the Eighth Circuit Court of Appeals held that, before weighing the six Colorado River/Moses H. Cone factors, the court must determine whether the party moving to stay or abstain has shown the existence of "a parallel state court proceeding" as the "necessary prerequisite" to abstention. Id. Thermogas contends that this "necessary prerequisite" is lacking here, because there are parties, counterclaims, and third-party claims in this litigation that were barred from consideration in the state court action when the state court judge denied Thermogas's motions for leave to amend its answer to assert a counterclaim against plaintiff Nehring and to implead additional parties.
Although the Supreme Court has not specifically explained what degree of "parallelism" is required between the federal and state actions before Colorado River abstention may be considered, the Court did explain in Moses H. Cone Memorial Hospital that "the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses." Moses H. Cone Mem. Hosp., 460 U.S. at 28. Some courts have read the "parallelism" requirement to mean that the state litigation must involve the same parties and issues and that it will completely and finally resolve the issues between the parties. See, e.g., Michelson v. Citicorp Nat'l Servs., Inc., 138 F.3d 508, 515 (3d Cir. 1998) (quoting Marcus v. Township of Abington, 38 F.3d 1367, 1371 (3d Cir. 1994)); Exxon Corp. v. St. Paul Fire Marine Ins. Co., 129 F.3d 781, 785 (5th Cir. 1997). Clearly, the fact that "a pending state court action involv[es] the same subject matter" is not enough. See Federated Rural Elec. Ins. Corp. v. Arkansas Elec. Coops., Inc., 48 F.3d 294, 297 (8th Cir. 1995) ("This obligation [to exercise jurisdiction] does not evaporate simply because there is a pending state court action involving the same subject matter."). However, other courts have also observed that "we look not for formal symmetry between the two actions, but for a substantial likelihood that the state litigation will dispose of all claims presented in the federal case." Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 695 (7th Cir. 1984) (emphasis added); see also McLaughlin v. United Virginia Bank, 955 F.2d 930, 935 ("`Suits are parallel if substantially the same parties litigate substantially the same issues in different forums.'") (quoting New Beckley Mining Corp. v. International Union, UMWA, 946 F.2d 1072, 1073 (4th Cir. 1991), cert. denied, 503 U.S. 971 (1992)) (emphasis added); Jackson Hewitt, Inc. v. J2 Financial Servs., Inc., 901 F. Supp. 1061, 1066 (E.D.Va. 1995) (quoting Lumen). "Substantial likelihood" that the state litigation will dispose of all claims presented in the federal case, as the result of the "substantial" identity of parties and issues, as the measure of "parallelism," is borne out by the Supreme Court's observation in Moses H. Cone Memorial Hospital that, "assuming that for some unexpected reason the state forum does turn out to be inadequate in some respect . . . [a party] could seek to return to federal court if it proved necessary," despite a stay or dismissal pursuant to Colorado River, adding that "[i]t is highly questionable whether this Court would have approved a dismissal of a federal suit in Colorado River (or in any of the abstention cases [cited]) if the federal courts did not remain open to a dismissed plaintiff who later demonstrated the inadequacy of the state forum." Moses H. Cone Mem. Hosp., 460 U.S. at 28. Thus, the state and federal actions need not be "mirror images." Jackson Hewitt, Inc., 901 F. Supp. at 1066.
2. "Parallelism" here
Thermogas relies on McLaughlin v. United Virginia Bank, 955 F.2d 930 (4th Cir. 1992), as supporting its contention that the present action and the state court action are not "parallel," because the present action includes Thermogas's counterclaim against plaintiff Nehring as well as third-party claims never presented in the state action, because the state court judge denied Thermogas leave to amend to assert those claims in the state action. McLaughlin does indeed stand for the proposition that the actions are not "parallel" if there are not now claims in the state proceeding that would protect a party's rights, or there are claims in the federal action that have never been pending in the state proceeding. See McLaughlin, 955 F.2d at 935. However, McLaughlin does not require the conclusion that the present state and federal actions are not "parallel."
As the plaintiffs point out, they have now settled with all of the parties in the present action, with the exception of Thermogas, including all of the third-party defendants on Thermogas's third-party claims for contribution. Thus, the plaintiffs contend, Thermogas's third-party claims in this action are extinguished pursuant to Iowa Code § 668.7. That provision of the Iowa Code provides as follows:
A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount of the released person's equitable share of the obligation, as determined in section 668.3, subsection 4.
Iowa Code § 668.7 (emphasis added). This statute "extinguishes the non settling party's right to contribution [against a settling party] following settlement." Biddle v. Sartori Mem. Hosp., 518 N.W.2d 795, 798 (Iowa 1994); see also Thomas v. Solberg, 442 N.W.2d 73, 75 (Iowa 1989) ("[T]he enlightened approach is to recognize that the settling defendant must be discharged from all liability for contribution. [Citation omitted.] Our comparative fault statute is in accord with this approach. See Iowa Code § 668.7 (release, covenant not to sue, or similar agreement between claimant and a liable party discharges liable party from liability for contribution)."). Thus, Thermogas's third-party claims, which admittedly were absent from the state proceedings, cannot afford Thermogas any more protection in this federal action as it now stands than is available to Thermogas in the state proceedings, because the "different" claims against "different" parties have been extinguished under Iowa's Comparative Fault Act by virtue of the settlement of those "different" parties with the plaintiffs. See Iowa Code § 668.7; Biddle, 518 N.W.2d at 798; Thomas, 442 N.W.2d at 75.
Consequently, the only purportedly "different" claim still at issue in these proceedings is Thermogas's counterclaim for contribution against plaintiff Nehring, which alleges that Nehring's gross negligence, as the fire chief directing the plaintiff firefighters, caused the plaintiffs' injuries. See First Amended Answer, First Amended Counterclaim, and First Amended Third-Party Complaint of Defendant Thermogas Company and Jury Demand, First Amended Counterclaim vs. Bruce Nehring, ¶¶ 50(a)-(c) (allegations of gross negligence of Nehring) Prayer (seeking judgment against Nehring for his equitable share of any judgment against Thermogas, in the event judgment in favor of the plaintiffs is rendered against Thermogas). The state court judge denied Thermogas's motion to add a similar claim, in part because adding the claim would require the jury to distinguish between Nehring's negligence for purposes of comparative fault and his gross negligence for purposes of contribution. See Nehring, et al. v. Thermogas Co. of Storm Lake, et al., No. LACV024854, "Ruling on Various Motions," slip op. at 2 (Ia. Dist. Ct. Feb. 18, 2000) (attached to defendant Thermogas's original resistance to plaintiffs' motion to abstain and/or stay). Nevertheless, the state court judge also recognized that Nehring's gross negligence, as alleged by Thermogas, would be considered in the state proceedings in the jury's determination of comparative fault, so that denial of leave to amend would not prejudice Thermogas. Id. The state judge also recognized that the state action was proceeding along two separate lines, liability and contribution, and that resolution of the contribution issue would require subsequent proceedings. See id. at 1-2. Thus, the state action will address Thermogas's claims that Nehring's gross negligence caused the plaintiffs' injuries and consideration of Thermogas's contribution claim against Nehring in subsequent proceedings in state court is not foreclosed — in the event a jury finds Nehring in some degree liable for the plaintiffs' injuries and Thermogas discharges Nehring's share of the judgment. Thus, notwithstanding Thermogas's counterclaim against Nehring in these proceedings, and the absence of such a counterclaim from the state action, the issues raised in the federal counterclaim are substantially present in both lawsuits.
The court therefore concludes that the substantial similarity of issues and parties, and the substantial likelihood that the state proceedings will fully protect Thermogas's interest, see Lumen Constr., Inc., 780 F.2d at 695; McLaughlin, 955 F.2d at 935; Jackson Hewitt, Inc., 901 F. Supp. at 1066, make the two actions "parallel" for purposes of consideration of Colorado River abstention. See In re Burns Wilcox, Ltd., 54 F.3d at 477 (a "parallel state court proceeding" is a "necessary prerequisite" to Colorado River abstention). Moreover, a stay in these proceedings will not foreclose Thermogas from returning to federal court in the event Thermogas can later demonstrate that the state proceedings have indeed been "inadequate in some respect." Moses H. Cone Mem. Hosp., 460 U.S. at 28.
3. The six-factor test
As mentioned above, once the "necessary prerequisite" of a "parallel state court proceeding" has been demonstrated, the court must weigh the six Colorado River/ Moses H. Cone factors to determine whether "exceptional circumstances" are presented that justify a stay of this federal action in favor of the parallel state litigation. See In re Burns Wilcox, Ltd., 54 F.3d at 477; see also Federated Rural Elec. Ins. Corp., 48 F.3d at 297; Darsie v. Avia Group Int'l, Inc., 36 F.3d 743, 745 (8th Cir. 1994); United States Fidelity Guar. Co. v. Murphy Oil USA, 21 F.3d 259, 263 (8th Cir. 1994). The Eighth Circuit Court of Appeals has summarized these factors as follows:
(1) whether there is a res over which one court has established jurisdiction, (2) the inconvenience of the federal forum, (3) whether maintaining separate actions may result in piecemeal litigation, unless the relevant law would require piecemeal litigation and the federal court issue is easily severed, (4) which case has priority — not necessarily which case was filed first but a greater emphasis on the relative progress made in the cases, (5) whether state or federal law controls, especially favoring the exercise of jurisdiction where federal law controls, and (6) the adequacy of the state forum to protect the federal plaintiff's rights.Federated Rural Elec. Ins. Corp., 48 F.3d at 297 (quoting Murphy Oil USA, 21 F.3d at 263); Darsie, 36 F.3d at 745. However, the Eighth Circuit Court of Appeals has also cautioned,
These factors are not intended to be exhaustive, nor are they to be mechanically applied. Rather, they are to be pragmatically applied in order to advance the "clear federal policy" of avoiding piecemeal adjudication. Moses H. Cone, 460 U.S. at 16, 21, 103 S.Ct. at 937, 939-40.
Federated Rural Elec. Ins. Corp., 48 F.3d at 297; Darsie, 36 F.3d at 745 ("[C]ourts must remain mindful `that the balancing test "is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand."'") (quoting Fiedler by Fiedler v. Reliance Elec. Co., 823 F.2d 269, 270 (8th Cir. 1997), in turn quoting Moses H. Cone Mem. Hosp., 460 U.S. at 21). Moreover,
In examining these factors, "the balance [is] heavily weighted in favor of the exercise of jurisdiction." Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937. And:
we emphasize that our task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction by the district court; 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. at 942 (emphasis in original).
Federated Rural Elec. Ins. Corp., 48 F.3d at 297. Therefore, "[b]earing these instructions in mind, [this court] turn[s] to the Colorado River/Moses H. Cone factors to determine whether this case presents `the clearest of justifications [that alone] will warrant' abstention." Id. (quoting Colorado River, 424 U.S. at 819).
4. Weighing the factors here
The court agrees with Thermogas that neither this court nor the state court has established jurisdiction over "a res," the first factor in the Colorado River/Moses H. Cone abstention analysis. See id. This is a personal injury action, not a property action. Cf. id. (the declaratory judgment action before the federal court was an in personam action that did not involve a res). However, while Thermogas argues that this factor consequently "militates against dismissal of the federal suit," the Eighth Circuit Court of Appeals has stated that, where an "action does not involve a res . . . this factor does not weigh into the `exceptional circumstances' calculation." Id. Thus, consideration of the first Colorado River/Moses H. Cone factor provides no guidance here.
As to the second factor, the inconvenience of the federal forum, id., the plaintiffs assert baldly that the federal forum is less convenient than the state forum, but they do not explain why. Moreover, the plaintiffs cannot make a convincing argument that the federal forum is so inconvenient as to present an "exceptional circumstance" where the plaintiffs filed both the state and federal actions. Thermogas contends that the federal forum, with court held in Sioux City, is, if anything, more convenient for a significant number of witnesses than the state forum, which holds court in Storm Lake. This court concludes that, as in Federated Rural Electric Insurance Corporation, "there is no appreciable difference in the level of inconvenience between the two fora. Thus, this factor is also irrelevant to the existence of exceptional circumstances." Id.
Thermogas argues that, as to the third factor — whether maintaining separate actions will result in piecemeal litigation — the risks of duplicative litigation weigh only modestly in favor of a stay or dismissal, or abstention pursuant to Colorado River would be the rule, not the exception. However, the Eighth Circuit Court of Appeals has stated that the risk of piecemeal litigation "is the predominant factor." See id. (citing Moses H. Cone Mem. Hosp., 460 U.S. at 16 21). Moreover, "[t]he policies underlying Colorado River abstention are `considerations of "[w]ise judicial administration," giving regard to conservation of judicial resources and comprehensive disposition of litigation.'" Id. at 297-98 (quoting Colorado River, 424 U.S. at 817). Therefore, the Eighth Circuit Court of Appeals has "advanced this policy by favoring the most complete action." Id. at 298 (citing Murphy Oil USA, 21 F.3d at 263, and Employers Ins. of Wausau v. Missouri Elec. Works, 23 F.3d 1372, 1375 (8th Cir. 1994)).
Thermogas argues that both suits involve routine questions of state negligence, warranty, and strict liability law, lessening the chances of contradictory results. While probably true, this argument misses the focus of the Eighth Circuit Court of Appeals on "the most complete action." Id. The "most complete action" here is undoubtedly the state action, even in the absence of the third-party defendants present here but excluded from the state action. The state action already involves ten lawsuits arising from the fire and explosion that gave rise to the plaintiffs' claims, and in those ten lawsuits, the parties are represented by at least fifteen different attorneys or law firms, and a comprehensive plan for pre-trial and trial management has been established in the state action. See Nehring, et al. v. Thermogas Co. of Storm Lake, et al., No. LACV024854, "Ruling on Various Motions to Bring in New Parties," slip op. at 3 (Ia. Dist. Ct. Dec. 2, 1999) (attached to defendant Thermogas's original resistance to plaintiffs' motion to abstain and/or stay); and compare Federated Rural Elec. Ins. Corp., 48 F.3d at 298-99 (finding that the more complete or "inclusive" action was the federal action, which involved all of the relevant insurance policies, as opposed to the state action, which could resolve issues relating to only one policy). Furthermore, as noted above, the present action now provides no advantage for consideration of Thermogas's claims against additional parties, where those parties have settled with the plaintiffs, see Iowa Code § 668.7, so that any appearance of greater "inclusiveness" of this federal action is illusory. Although Thermogas invites this court to rule on various issues on a complete record that have been addressed in state court only at the motion to dismiss phase, this court sees a real risk of "piecemeal" litigation of such issues, should this court enter rulings that will be duplicative of — and potentially in conflict with — rulings the state court must necessarily make before or during trial next month. Thus, this "predominant" factor, see Federated Rural Elec. Ins. Corp., 48 F.3d at 297, weighs very heavily in favor of staying the present action in favor of the state action.
It is apparent to the court that Thermogas hopes to use rulings of this court as a "sword" of res judicata to preempt possible unfavorable rulings in state court during trial. "[W]ise judicial administration," Colorado River, 424 U.S. at 817, and any conception of comity would counsel against this court racing to rule on matters the state court will necessarily address very soon.
Thermogas argues that the fourth factor, which considers which case has priority, id., is a dead heat. Thermogas contends that, although the state action was filed more than a year earlier, much of the discovery conducted in the state action is equally applicable to this federal action, keeping duplicative pre-trial activity to a minimum. The court agrees that "`priority should not be measured exclusively by which complaint was filed first.'" Id. at 298 (quoting Moses H. Cone Mem. Hosp., 460 U.S. at 21). Rather, the proper measure is "`how much progress has been made in the two actions.'" Id. (quoting Moses H. Cone). Unlike the situation in Federated Rural Electric Insurance Corporation, where the state action had been stayed for much of the time it was pending before and after the filing of the federal action, and the federal action was poised for final resolution without additional discovery, id. at 298-99, here, it is the state action that has proceeded through discovery and is now poised for final resolution at trial beginning September 19, 2000, while the present federal action has barely progressed beyond pleadings and lacks a discovery scheduling order or trial date. Even assuming that little additional discovery would be required in the present action, because discovery in the state action is applicable, and assuming that Thermogas's motion for summary judgment would dispose of this case in its entirety, it is highly unlikely that this court's present trial schedule would permit resolution of this action before the state action goes to trial. Moreover, it would seem wasteful of judicial resources for this court to attempt to address a summary judgment motion when trial preparations are proceeding in the state action, and there is no indication of why a comparable summary judgment motion has not been brought in state court. See Federated Rural Elec. Ins. Corp., 48 F.3d at 297 (the Colorado River/Moses H. Cone factors "are to be pragmatically applied in order to advance the `clear federal policy' of avoiding piecemeal adjudication") (citing Moses H. Cone, 460 U.S. at 16); Darsie, 36 F.3d at 745 ("[C]ourts must remain mindful `that the balancing test "is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand."'") (quoting Fiedler, 823 F.2d at 270, in turn quoting Moses H. Cone Mem. Hosp., 460 U.S. at 21). Thus, the priority of the state action, in terms of its much greater progress and the imminence of trial, weighs very heavily — and indeed may constitute a sufficiently "exceptional circumstance" alone — to justify staying the present action in favor of the state action.
The court recognizes that the fifth factor, whether state or federal law controls, id. at 297, "will weigh in favor of abstention only in rare circumstances," id. at 299 (citing Moses H. Cone Mem. Hosp., 460 U.S. at 26), and does not do so here. Although Iowa law is controlling on every aspect of this case, this court is familiar with the pertinent law and can apply it as well as the state district court. No party argues that there is some issue of first impression under Iowa law that might tip this factor in favor of the state forum, nor is there any question on which federal law controls, which would favor the exercise of federal jurisdiction. Federated Rural Elec. Ins. Corp., 48 F.3d at 297. Thus, this factor is irrelevant in this case.
Although Thermogas argues that the last factor, whether the state forum is adequate to protect the federal plaintiff's rights, see id. at 297, weighs strongly in favor of the federal forum, where Thermogas is the "federal plaintiff" on its counterclaim and third-party claims and the state court has foreclosed those claims in the state action, the court does not agree. The court discussed above, in consideration of whether the two actions are "parallel," the extent to which the state forum adequately protects Thermogas's rights. Again, the plaintiffs' settlement with the third parties in the mediation in state court extinguishes Thermogas's third-party contribution claims, and the state court's rulings barring Thermogas's motion to add its counterclaim for contribution against Nehring does not prejudice Thermogas, because Nehring's gross negligence is part of the comparative fault analysis that is the essence of the state action, and the state court contemplates consideration of contribution claims in subsequent proceedings, should they be necessary after trial of liability and damages issues. Thus, the "whole pie" of Thermogas's rights remains protected in the state proceedings. See id. at 299. Therefore, this factor, though relevant, is neutral in this case.
In addition to the six Colorado River/Moses H. Cone factors, the Eighth Circuit Court of Appeals considered in Federated Rural Electric Insurance Corporation "whether the federal or state suit is filed . . . for a vexatious, reactive or tactical reason." Id. (citing Moses H. Cone Mem. Hosp., 460 U.S. at 17). As in Federated Rural Electric Insurance Corporation, this court need not decide whether either party's present preference for one forum over the other is motivated by forum-shopping, although the court suspects that it is, id., because it is sufficiently clear that Thermogas is attempting to avoid unfavorable consequences of state-court rulings by taking advantage of the plaintiffs' strange decision to open litigation on a new front in federal court when their previously filed state action was well-advanced. Regardless of which party began the forum-shopping spree, there does not appear to be any necessity for resolution of this action in federal court apart from vexatious, reactive, or tactical reasons, so that "wise judicial administration" also counsels in favor of staying the present federal action, Colorado River, 424 U.S. at 817, at least where factors in the Colorado River/Moses H. Cone analysis already point so strongly in that direction. Cf. Federated Rural Elec. Ins. Corp., 48 F.3d at 299 (where a parties' hands were already soiled by forum-shopping, the court was "disinclined to view its request for abstention as anything more than a continuation of its forum selection strategy").
5. Summary
The court concludes that, of the Colorado River/Moses H. Cone factors, factors one (jurisdiction over a res), two (inconvenience of the federal forum), and five (whether state law controls) are irrelevant here; factors three (piecemeal litigation/most complete action) and four (priority/most advanced action) strongly weigh in favor of abstention, and indeed factor four may, by itself, present sufficiently "exceptional circumstances" to justify abstention; and factor six (whether the state forum is adequate to protect the federal plaintiff's rights), while relevant, is neutral here. This balance provides what the court finds to be the "`clearest of justifications,' that can suffice under Colorado River to justify the surrender of [its] jurisdiction." Federated Rural Elec. Ins. Co., 48 F.3d at 297 (quoting Moses H. Cone, 460 U.S. at 25-26).
Prior to oral arguments, the court clarified that it would not hear arguments concerning the merits of motions to dismiss filed in the interim by defendant National Propane and third-party defendants Terry Herrig, Craig Herrig, and Herrig Brothers, Inc. The parties acknowledged that ruling at the oral arguments, but the settling parties requested that any stay of this federal lawsuit that might be entered not apply to their motions to dismiss, on the ground that Thermogas had indicated it did not intend to resist their dismissal from this action. At the oral arguments, Thermogas reiterated that it did not resist, or concur in, the dismissal of the settling parties.
Therefore, plaintiffs' July 10, 2000, motion to abstain and/or stay or in the alternative to dismiss this lawsuit in favor of parallel litigation in state court will be granted to the extent that the present action will be dismissed as to the settling defendant National Propane and settling third-party defendants Terry Herrig, Craig Herrig, Herrig Brothers, Inc., and Troy Nielsen, and will be stayed as to the plaintiffs and defendant Thermogas pending resolution of the state proceedings.
B. The Motion For Expedited Relief
Also before the court is defendant Thermogas Company's August 8, 2000, request for expedited relief on its resistance to plaintiffs' motion to abstain and/or stay or in the alternative to dismiss and on its own motion for summary judgment. The present ruling constitutes the requested expedited relief on the plaintiffs' motion to stay or abstain. Prior to oral arguments on the motion for expedited relief, the court also clarified for the parties that the court would not take up the merits of Thermogas's motion for summary judgment, only Thermogas's request for expedited relief thereon. Because the court concludes that the present action should be stayed, as to the plaintiffs and Thermogas, in favor of the parallel state proceedings pursuant to Colorado River and Moses H. Cone Memorial Hospital, the court will deny Thermogas's motion for expedited relief as to Thermogas's motion for summary judgment.
III. CONCLUSION
The court finds that the state and federal actions at issue here have the requisite "parallelism" to make consideration of Colorado River abstention appropriate. Moreover, the court concludes that, upon balance, the Colorado River/Moses H. Cone factors pertinent to the abstention analysis weigh so strongly in favor of abstention that the plaintiffs have shown the "clearest of justifications" for this court to surrender its jurisdiction, at least temporarily, in favor of the parallel state action scheduled for trial to begin on September 19, 2000. Plaintiffs' July 10, 2000, motion to abstain and/or stay or in the alternative to dismiss this lawsuit in favor of parallel litigation in state court is granted to the extent that the present action is dismissed as to the settling defendant National Propane and settling third-party defendants Terry Herrig, Craig Herrig, Herrig Brothers, Inc., and Troy Nielsen, and stayed as to the plaintiffs and defendant Thermogas pending resolution of the state proceedings. Defendant Thermogas's August 8, 2000, request for expedited relief is granted, and such relief has been provided herein, as to plaintiffs' motion to abstain and/or stay or in the alternative to dismiss, but, because this action is stayed, in pertinent part, the motion for expedited relief is denied as to Thermogas's motion for summary judgment.
IT IS SO ORDERED.