Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161 (10th Cir. 1982). · Go Syfert
Search
Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161 (10th Cir. 1982). Cases Citing This Book View Copy Cite
G Cite
cited 5× by 5 distinct cases, 1999–2021 · 5 courts · …simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case. at p. 1164 ✓ Topic ↗
cited 4× by 2 distinct cases, 2014–2019 · 2 courts · …the existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum. at p. 1163 ✓
cited 3× by 3 distinct cases, last quoted 2010 · 3 courts · …it is well established in this circuit that where the jurisdiction of a federal district court has first attached, that right cannot be arrested or taken away by proceedings in another federal district court. at p. 1163 ⚠ not in text
106 citation events (86 in the last 25 years) across 31 distinct courts.
Strongest positive: Foremost Insurance Company Grand Rapids, Michigan v. Montoya (nmd, 2021-03-22)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Foremost Insurance Company Grand Rapids, Michigan v. Montoya
D.N.M. · 2021 · quote attribution · 1 verbatim quote · confidence high
when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case
discussed Cited as authority (verbatim quote) Foremost Insurance Company Grand Rapids, Michigan v. Montoya
D.N.M. · 2021 · quote attribution · 1 verbatim quote · confidence high
when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case
discussed Cited as authority (quoted) Presidential Hospitality, LLC v. Wyndham Hotel Grp., LLC
D.N.M. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
the first court in which jurisdiction attaches has priority to consider the case.
discussed Cited as authority (rule) MidCentral Equipment Services, LLC v. Indian Creek Fabricators, Inc.
S.D. Ohio · 2025 · confidence medium
The First-To-File Rule When faced with two concurrent federal proceedings, the Tenth Circuit noted “[a]s a starting point, courts should apply the first-to-file rule.” Wakaya Perfection, LLC v. Youngevity Intl., Inc., 910 F.3d 1118, 1124 (10th Cir. 2018) (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982)). “[T]he first to file rule ‘permits, but does not require, a federal district court to abstain from exercising its jurisdiction in deference to a first-filed case in a different federal district court.’” Quint v. Vail Resorts, Inc., 89 F.4th 803, 814…
discussed Cited as authority (rule) MidCentral Equipment Services, LLC v. Indian Creek Fabricators, Inc.
W.D. Okla. · 2025 · confidence medium
The First-To-File Rule When faced with two concurrent federal proceedings, the Tenth Circuit noted “[a]s a starting point, courts should apply the first-to-file rule.” Wakaya Perfection, LLC v. Youngevity Intl., Inc., 910 F.3d 1118, 1124 (10th Cir. 2018) (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982)). “[T]he first to file rule ‘permits, but does not require, a federal district court to abstain from exercising its jurisdiction in deference to a first-filed case in a different federal district court.’” Quint v. Vail Resorts, Inc., 89 F.4th 803 , 81…
discussed Cited as authority (rule) Steadfast Insurance Company v. Medina Homes LLC
W.D. Okla. · 2025 · confidence medium
The Tenth Circuit has counseled that when presented with parallel federal proceedings, the district court “should apply the first-to-file rule.” Wakaya Perfection, LLC v. Youngevity Int’l, Inc., 910 F.3d 1118, 1124 (10th Cir. 2018) (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982).
discussed Cited as authority (rule) Rasmussen v. Burnett
D. Colo. · 2025 · confidence medium
The First-to-File Rule The Tenth Circuit has adopted the “first-to-file rule,” which means, “when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982) (citation omitted).
discussed Cited as authority (rule) Fink v. Merit Energy Company, LLC
D. Kan. · 2024 · confidence medium
Based on principles of comity and judicial economy, the so-called “first-filed” rule provides that “when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982); see also US Telecom, Inc. v. 535 Live, Inc., No. 91-2281-L, 1992 WL 134156 , at *1 (D.
cited Cited as authority (rule) Adams v. PSP Group, LLC
E.D. Mo. · 2023 · confidence medium
Id. (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982)).
discussed Cited as authority (rule) Aerospace Turbine Rotables, Inc. v. 818 Aviation, Inc.
D. Kan. · 2022 · confidence medium
The Tenth Circuit has instructed “that the court which first obtains jurisdiction should be allowed to first decide issues of venue.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir. 1982).
discussed Cited as authority (rule) Aerospace Turbine Rotables, Inc. v. 818 Aviation, Inc.
C.D. Cal. · 2022 · confidence medium
The Tenth Circuit has instructed “that the court which first obtains 4 Case 2:22-cv-06929-DSF-JC Document 18 Filed 09/26/22 Page 5 of 13 Page ID #:259 jurisdiction should be allowed to first decide issues of venue.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir. 1982).
discussed Cited as authority (rule) Aga v. Meade County
D.S.D. · 2022 · confidence medium
COMITY It is a well-recognized rule in cases of concurrent jurisdiction that “the doctrine of federal comity permits a court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.” Orthmann v. Apple River Campground, Inc., 765 F.2d 119, 121 (8th Cir. 1985). “[C]ourts follow a ‘first to file’ rule that where two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.” Id. (citing Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 94…
discussed Cited as authority (rule) COGNIZANT TECHNOLOGY SOLUTIONS CORPORATION v. FRANCHITTI
D.N.J. · 2022 · confidence medium
(ECF No. 14 at 12-17). * In determining whether the assertion of personal jurisdiction comports with “fair play and substantial justice,” a court considers: “the burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies.” Rudzewicz, 471 U.S. at 477 (internal quotation marks omitted). 11 The …
discussed Cited as authority (rule) Early v. Henry Thayer Company Inc.
E.D. Mo. · 2021 · confidence medium
Known as the first-to-file rule, the Eighth Circuit held “where [there are] two courts [with] concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.” Id. (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982)).
discussed Cited as authority (rule) Cochran v. Hewlett-Packard Company
D. Colo. · 2021 · confidence medium
Under this rule, generally, “when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982).
discussed Cited as authority (rule) GWACS Armory, LLC v. KE Arms, LLC
N.D. Okla. · 2021 · confidence medium
Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982) (rejecting argument that case in which defendant was served first should have 10 priority and clarifying that the filing of the complaint is the event used to establish priority of cases).
discussed Cited as authority (rule) Art of Manliness, LLC v. UrbanDaddy, Inc.
N.D. Okla. · 2020 · confidence medium
Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578 , 582 (10th Cir. 1997). 15 “The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982).
discussed Cited as authority (rule) Art of Manliness, LLC v. UrbanDaddy, Inc.
S.D.N.Y. · 2020 · confidence medium
Corp. v. 1111 Prospect Partners, L.P., 105 F.3d 578 , 582 (10th Cir. 1997). 15 “The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982).
discussed Cited as authority (rule) Digitalira.com, LLC v. The Kingdom Trust Company
D.S.D. · 2019 · confidence medium
See also Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93 , 96 n.3 (9th Cir. 1982); Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982); Barber Greene Co. v. Blaw-Knox Co., 239 F.2d 774, 778 (6th Cir. 1957); Fat Possum Records, Ltd. v. Capricorn Records, Inc., 909 F. Supp. 442, 445 (N.D.
discussed Cited as authority (rule) SleepBit, LLC v. Push Software Interactions, Inc.
N.D. Okla. · 2019 · confidence medium
“The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982).
examined Cited as authority (rule) Wakaya Perfection, LLC v. Youngevity International (3×) also: Cited "see"
10th Cir. · 2018 · confidence medium
The Chronology of Events To determine chronology, we have recognized that "the first court in which jurisdiction attaches has priority to consider the case" and jurisdiction "relates back to the filing of the complaint." Hospah Coal Co. , 673 F.2d at 1163 (citation omitted). 3 As a result, determining the chronology of events typically requires only a comparison of the two filing dates. 4 *1125 But what if one of the complaints was filed initially in state court?
discussed Cited as authority (rule) Aqua-Care Marketing LLC v. Hydro Systems, Inc.
S.D. Iowa · 2015 · confidence medium
Airlines, Inc., 989 F.2d 1002, 1007 (8th Cir.1993) (concluding that the District Court of Minnesota did not abuse its discretion by applying the first-filed rule and enjoining the defendant from proceeding with its parallel litigation in a different state); Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 844 (9th Cir.1986) (concluding that a Montana district court did not abuse its discretion by enjoining a second-filed parallel action in Illinois); Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.1982) (“[T]he court which first obtains jurisdiction should be allo…
cited Cited as authority (rule) Sinclair Cattle Co. v. Ward
M.D. Penn. · 2015 · confidence medium
Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir. 1982).
discussed Cited as authority (rule) TUCKER v. THE COCHRAN FIRM-CRIMINAL DEFENSE BIRMINGHAM L.L.C.
Okla. · 2014 · confidence medium
Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982) (''The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum."); SBKC Serv.
examined Cited as authority (rule) TUCKER v. THE COCHRAN FIRM-CRIMINAL DEFENSE BIRMINGHAM L.L.C. (3×)
Okla. · 2014 · confidence medium
Hospah Coal Co. v. Chaco Energy Co. , 673 F.2d 1161, 1163 (10th Cir.1982) ("The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum."); SBKC Serv.
discussed Cited as authority (rule) Anderson Living Trust v. WPX Energy Production, LLC (2×) also: Cited "see"
D.N.M. · 2014 · confidence medium
Anderson Consolidation Response at 2-3 (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982)).
examined Cited as authority (rule) United States ex rel. Brown Minneapolis Tank Co. v. Kinley Construction Co. (3×)
D.N.M. · 2011 · confidence medium
However, “simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.1982).
discussed Cited as authority (rule) Research Automation, Inc. v. Schrader-Bridgeport International, Inc.
7th Cir. · 2010 · confidence medium
See Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir.2000) (noting that the first-filed action is “generally preferred”), quoting Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7 (1st Cir.1987); Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.1982) (holding that “the court which first obtains jurisdiction should be allowed to first decide issues of venue,” but that this “does not necessarily mean that it should decide the merits of the case”).
cited Cited as authority (rule) Rural Media Group, Inc. v. Performance One Media, LLC
D. Neb. · 2010 · confidence medium
Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.), cert. denied, 456 U.S. 1007 , 102 S.Ct. 2299 , 73 L.Ed.2d 1302 (1982)....
discussed Cited as authority (rule) City of Raton v. Arkansas River Power Authority (2×) also: Cited "see"
D.N.M. · 2008 · confidence medium
ARPA argues that “‘simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case.’” Motion at 13 (quoting Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.1982)).
cited Cited as authority (rule) RK Dixon Co. v. Dealer Marketing Services, Inc.
S.D. Iowa · 2003 · confidence medium
Med-Tec Iowa, Inc. v. Nomos Corp., 76 F.Supp.2d 962 , 968 n. 3 (N.D.Iowa 1999) (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982)).
discussed Cited as authority (rule) Central States Industrial Supply, Inc. v. McCullough
N.D. Iowa · 2002 · confidence medium
This court most recently considered the first-filed rule in Wells’ Dairy, Inc., 89 F.Supp.2d at 1057-58 , construing the phrase “separate courts,” according to the Eighth Circuit Court of Appeals’ interpretation in Orthmann v. Apple River Campground, Inc., 765 F.2d 119, 121 (8th Cir. *1093 1985) (citing Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982)), as meaning only federal courts of concurrent jurisdiction and declined to apply the rule where one suit was a federal declaratory judgment action and the other, a state court action.
discussed Cited as authority (rule) MSK Insurance, Ltd. v. Employers Reinsurance Corp.
S.D.N.Y. · 2002 · confidence medium
Areas Pension Fund, 677 F.Supp. 220 , 222 n. 1 (S.D.N.Y.1988) (“[t]he ‘first-service’ rule is not the law of this circuit”); see Interwood, 1990 WL 209432 , at *3 (opining that this rule “makes practical sense, because the time of filing is easily ascertained by reference to the court’s docket sheet, while the time of service may be the subject of dispute between the parties”) (citing Horn & Hardart Co. v. Burger King Corp., 476 F.Supp. 1058 , 1059 n. 1 (S.D.N.Y.1979)). 4 .In an Order dated July 16, 2002, the Kansas court demonstrated its familiarity with this rule, stating: [A]s…
discussed Cited as authority (rule) Med-Tec Iowa, Inc. v. Nomos Corp.
N.D. Iowa · 1999 · confidence medium
In Orthmann , the court of appeals cited to the Tenth Circuit Court of Appeals’ decision in Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.), cert. denied, 456 U.S. 1007 , 102 S.Ct. 2299 , 73 L.Ed.2d 1302 (1982).
discussed Cited as authority (rule) Buzas Baseball, Inc. v. Board of Regents
10th Cir. · 1999 · confidence medium
However, “simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case.” Hospah Coal Co. v. Chaco Energy Co. , 673 F.2d 1161, 1164 (10th Cir. 19 82).
discussed Cited as authority (rule) Republic Insurance v. Sinclair Oil Corp.
D. Utah · 1992 · confidence medium
The Tenth Circuit has expressed disdain for the use of the declaratory judgment action “as yet another weapon in a game of procedural warfare.” Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164-65 (10th Cir.1982), cert. denied, 456 U.S. 1007 , 102 S.Ct. 2299 , 73 L.Ed.2d 1302 (1982) (citing Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180 , 72 S.Ct. 219 , 96 L.Ed. 200 (1952)).
discussed Cited as authority (rule) James Pouncy, Jr. v. E. Murray, Director F.L. Finkerbiner, Warden Lt. Ray Nurse Wagoner
4th Cir. · 1986 · signal: cf. · confidence medium
Cf. Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.) (jurisdiction attaches upon filing of complaint and court which first obtains jurisdiction should decide venue issues), cert. denied, 456 U.S. 1007 (1982); Fed.R.Civ.P. 3. 5 Pouncy's other objection is that the district court failed to observe Evans, supra, when it declined to permit Pouncy to pay the filing fee under an installment plan.
discussed Cited as authority (rule) Span-Eng Associates v. Stephen M. Weidner (2×) also: Cited "see, e.g."
10th Cir. · 1985 · signal: cf. · confidence medium
Cf. Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164-65 (10th Cir.), cert. denied, 456 U.S. 1007 , 102 S.Ct. 2299 , 73 L.Ed.2d 1302 (1982).
cited Cited as authority (rule) Orthmann v. Apple River Campground, Inc.
8th Cir. · 1985 · confidence medium
Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.), cert. denied, 456 U.S. 1007 , 102 S.Ct. 2299 , 73 L.Ed.2d 1302 (1982).
cited Cited as authority (rule) Orthmann v. Apple River Campground, Inc.
8th Cir. · 1985 · confidence medium
Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.), cert. denied, 456 U.S. 1007 , 102 S.Ct. 2299 , 73 L.Ed.2d 1302 (1982).
discussed Cited "see" Zeavision, LLC v. Bausch & Lomb Incorporated
E.D. Mo. · 2021 · signal: see · confidence high
See id. (citing, inter alia, Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161 , 11 1163 (10th Cir. 1982) (holding that, as between two courts presented with duplicative litigation, the court in which the action was first filed “should be allowed to first decide issues of venue”).
discussed Cited "see" Cherokee Nation, the v. Nash
D.D.C. · 2010 · signal: see · confidence high
See Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir. 1982) (explaining “general rule that when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case”); O'Hare Int’l Bank v. Lambert, 459 F.2d 328, 331 (10th Cir. 1972) (“It is well established in this Circuit that where the jurisdiction of a federal district court has first attached, that right cannot be arrested or taken away by proceedings in another federal district court.”) (holding that district court erred by denying motion to stay second-filed…
discussed Cited "see" Cherokee Nation v. Nash
N.D. Okla. · 2010 · signal: see · confidence high
See Hospah Coal Co. v. *1165 Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982) (explaining “general rule that when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case”); O’Hare Int’l Bank v. Lambert, 459 F.2d 328, 331 (10th Cir.1972) (“It is well established in this Circuit that where the jurisdiction of a federal district court has first attached, that right cannot be arrested or taken away by proceedings in another federal district court.”) (holding that district court erred by denying motion to stay second…
discussed Cited "see" Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc.
D. Kan. · 2010 · signal: see · confidence high
The Tenth Circuit applies the first-to-file rule, which “permits a district court to decline jurisdiction where a complaint raising the same issues against the same parties has previously been filed in another district court.” Buzas Baseball, Inc. v. Bd. of Regents of the Univ. of Ga., 189 F.3d 477 (table), 1999 WL 682883 , at *2 (10th Cir. Sept. 2, 1999); see Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1163 (10th Cir.1982); Cessna Aircraft Co. v. Brown, 348 F.2d 689 , 692 (10th Cir.1965).
cited Cited "see" Williston Basin Interstate Pipeline Co. v. Sheehan Pipe Line Construction Co.
D.N.D. · 2004 · signal: see · confidence high
See Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161 , 1163 (10th Cir.1982); Slidell, Inc. v. Archer Daniels Midland Co., No. Civ. 02-4841, 2003 WL 22050776 (D.Minn.
discussed Cited "see" Weber v. Basic Comfort Inc.
E.D. Pa. · 2001 · signal: see · confidence high
See Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.1982) (stating “our view that the court which first obtains jurisdiction should be allowed to first decide issues of venue.”) In light of this holding and the fact that this Court is evaluating whether venue is proper in the District of Colorado, the “first-to-file” rule does not affect the balancing of factors in deciding venue.
discussed Cited "see" Novello v. Randall
D.N.H. · 1996 · signal: see · confidence high
See Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161 , 1163 (10th Cir.), cert. denied, 456 U.S. 1007 , 102 S.Ct. 2299 , 73 L.Ed.2d 1302 (1982); Barber-Greene Co. v. Blaw-Knox Co., 239 F.2d 774, 778 (6th Cir.1957); American Modern Home Ins. v. Insured Accounts Co., 704 F.Supp. 128, 129 (S.D.Ohio 1988).
discussed Cited "see" Novello, M.D. v. Randall, M.D.
D.N.H. · 1996 · signal: see · confidence high
See Hospah Coal Co. v. Chaco Energy C o ., 673 F.2d 1161 , 1163 (10th Cir.), cert, denied, 456 U.S. 1007 (1982); Barber-Greene Co. v. Blaw-Knox Co . , 239 F.2d 774, 778 (6th Cir. 1957); American Modern Home Ins.
discussed Cited "see" Hill's Pet Products v. A.S.U., Inc. (2×) also: Cited "see, e.g."
D. Kan. · 1992 · signal: see · confidence high
See, e.g., Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692 (10th Cir.1965); see abo Hospah Coal Co. v. Chaco Energy Co., 673 F.2d 1161, 1164 (10th Cir.) (court that first obtains jurisdiction should be allowed to first decide issues of venue), ce rt. denied, 456 U.S. 1007 , 102 S.Ct. 2299 , 73 L.Ed.2d 1302 (1982).
discussed Cited "see, e.g." Storey v. Seipel
D. Utah · 2022 · signal: see also · confidence medium
Seipel acknowledges this fact but argues the rule’s principles may still apply: “[a]lthough the other, prior case, was filed in state court instead of federal court, the principles of comity, conserving judicial resources, and avoiding duplicative litigation and piecemeal litigation are present here as well.”23 In Wakaya Perfection, LLC v. Longevity International, Inc., the Tenth Circuit clearly stated that the “first-to-file” rule is the applicable rule to govern abstention when two federal suits are pending.24 In the same opinion, the Tenth Circuit acknowledged that the so-called 1…
Retrieving the full opinion text from the archive…
Hospah Coal Company, a Delaware Corporation, Santa Fe Industries, Inc., a Delaware Corporation, the Atchison, Topeka & Santa Fe Railway Company, a Delaware Corporation, and Santa Fe Mining, Inc., a Kansas Corporation
v.
Chaco Energy Company, a New Mexico Corporation, and Texas Utilities Company, a Texas Corporation
82-1149.
Court of Appeals for the Tenth Circuit.
Mar 29, 1982.
673 F.2d 1161
1982 U.S. App. LEXIS 20626
Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 57%
Citer courts: D. New Mexico (1)

673 F.2d 1161

1982-1 Trade Cases 64,635

HOSPAH COAL COMPANY, a Delaware corporation, Santa Fe
Industries, Inc., a Delaware corporation, The Atchison,
Topeka & Santa Fe Railway Company, a Delaware corporation,
and Santa Fe Mining, Inc., a Kansas corporation, Plaintiffs-Appellees,
v.
CHACO ENERGY COMPANY, a New Mexico corporation, and Texas
Utilities Company, a Texas corporation,
Defendants-Appellants.

No. 82-1149.

United States Court of Appeals,
Tenth Circuit.

March 29, 1982.

John R. Cooney of Modrall Sperling Roehl Harris & Sisk, Albuquerque, N. M. (Gus Svolos, Chicago, Ill., and Allen C. Dewey, Peter J. Adang, and John S. Thal of Modrall Sperling Roehl Harris & Sisk, Albuquerque, N. M., with him on the brief), for plaintiffs-appellees.

Gordon B. Spivack of Lord, Day & Lord, New York City (M. D. Sampels, Richard L. Adams, and Max E. Freeman II of Worsham, Forsythe & Sampels, Dallas, Tex., John N. McBaine, Jonathan M. Jacobson, Jonathan E. Clune, and Elinor R. Hoffmann of Lord, Day & Lord, New York City, James C. Ritchie and Rex Throckmorton of Rodey, Dickason, Sloan, Akin & Robb, P. A., Albuquerque, N. M., and Walter A. Steele of White & Steele, P. C., Denver, Colo., with him on the briefs), for defendants-appellants.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

[*~1161]1

This is an appeal from a grant of a preliminary injunction by the United States District Court for the District of New Mexico. The pertinent facts follow:

2

On December 18, 1981 Chaco Energy Company (Chaco) and Texas Utilities Company (TUC), defendants-appellants herein, filed suit in the United States District Court for the Northern District of Texas naming as defendants, among others with whom we are not now concerned, Santa Fe Industries, Inc. (SFI), the Atchison, Topeka and Santa Fe Railway Co. (SFR) and Santa Fe Mining, Inc. (SFM). The complaint in the Texas action alleged a conspiracy on the part of SFI, SFR, SFM and others amounting to a violation of the federal and New Mexico antitrust laws. The complaint further alleged common law fraud in the inducement and sought declaratory judgment, rescission of contracts, treble damages and injunctive relief.

3

Three days later, on December 21, 1981, SFI, SFR, SFM and Hospah Coal Company, a non-party defendant, co-conspirator in the Texas action, filed a declaratory judgment action in the United States District Court for the District of New Mexico, naming TUC and Chaco as defendants. The complaint in the New Mexico action requested a declaration that the plaintiffs had not violated the antitrust laws and it sought an injunction against TUC and Chaco to prohibit them from proceeding with the Texas action. The basis for the requested preliminary injunction was a venue selection clause in a certain coal lease placing venue in New Mexico for all suits "arising out of or relating to" the coal lease.[1] The coal lease was signed by Hospah Coal Company and Chaco. A surety agreement between TUC and Hospah purportedly adopted the venue selection clause of the coal lease. It should be noted that Hospah Coal Company, SFM and SFR are all subsidiaries of SFI. Chaco is a subsidiary of TUC.

4

Service of process was accomplished in the New Mexico action prior to service in the Texas action. In response to the filing of the New Mexico action, TUC and Chaco sought a temporary restraining order against SFM, SFR, SFI and Hospah in the Texas district court. The Texas court declined to issue the TRO.

[*~1162]5

Thereafter, on January 11, 1982, the New Mexico district court issued a preliminary injunction enjoining TUC and Chaco from proceeding further in the Texas action. On January 14, 1982, Hospah, SFI, SFM and SFR filed a motion to stay or in the alternative to dismiss the Texas action in the Texas court. They did so in light of the New Mexico injunction. The Texas court issued an order requiring TUC and Chaco to respond to the motion to stay. TUC and Chaco then filed in the New Mexico court a motion to suspend the preliminary injunction in order to allow them an opportunity to respond to the stay motion in the Texas action. The New Mexico court denied the motion to suspend the injunction. Thereupon, TUC and Chaco filed this appeal, together with a motion to stay the New Mexico injunction pending appeal and a motion to expedite hearing of the appeal. We granted the motion to stay the injunction pending appeal and we expedited the hearing.

6

Prior to the denial of the motion to suspend the injunction in the New Mexico court, TUC and Chaco filed another suit in the same New Mexico court raising the same allegations as those in the Texas action. TUC and Chaco also filed an answer and a counterclaim in the original New Mexico action. In all of their New Mexico filings, TUC and Chaco reserved their rights to object to venue.

7

The ultimate issue to be resolved is which court should exercise venue and hear the case. Thus, the issue before us is which court should make the determination on the ultimate issue of venue.

[*1163]8

Both parties recognize the general rule that when two courts have concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case. O'Hare International Bank v. Lambert, 459 F.2d 328 (10th Cir. 1972), and cases cited therein. The parties disagree, however, as to where jurisdiction first attached. TUC and Chaco contend that the Texas court obtained jurisdiction first because the complaint was filed in that court prior to the filing of the complaint in the New Mexico court. Hospah, SFI, SFR and SFM contend that because service of process was accomplished first in the New Mexico action, jurisdiction attached first in the New Mexico court.

9

This circuit has adopted the rule announced in Barber Greene Company v. Blaw-Knox Company, 239 F.2d 774, 778 (6th Cir. 1957) that, "in both in rem and in personam actions, jurisdiction relates back to the filing of the complaint." Accord, Product Engineering and Manufacturing, Inc. v. Barnes, 424 F.2d 42 (10th Cir. 1970). The rule that jurisdiction relates back to the filing of the complaint gives effect to Fed.Rules Civ.Proc. rule 3, 28 U.S.C.A., which provides that, "(a) civil action is commenced by filing a complaint with the court." Accordingly we must hold that jurisdiction over the parties and issues herein attached first in the Texas district court.

10

In O'Hare International Bank v. Lambert, supra at 331, we recognized this exception to the first-to-file rule: "(t)he only justification for employment of injunctive power by a court in a case such as this is to prevent a misuse of litigation in the nature of vexatious and oppressive foreign suits." The New Mexico district court ruled that the Texas action was vexatious, and the injunction was issued on that basis. Apparently, the New Mexico court perceived the Texas action as an attempt by TUC and Chaco to circumvent the venue selection clause in the coal lease.

11

The existence of a venue selection clause does not impose an absolute duty nor does it endow a party with an absolute right to have every dispute between the parties litigated in the named forum. The applicability of the venue selection clause is an issue of fact in and of itself. We do not consider it vexatious for a party to raise this issue in a forum other than the one designated in the venue selection clause.[2]

12

Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A., requires a party to assert a defense of improper venue by way of motion or responsive pleading. If we were to permit a party to object to venue by filing suit for injunctive relief in a separate forum, we would, in essence, be rendering rule 12(b) a nullity. The fact that a venue selection clause is involved does not negate the requirements of rule 12(b). Were it otherwise, a party to such a contract would be invading the province of the courts to decide issues of venue. Such an interpretation of the effect of a venue selection clause generated the initial dislike of the courts for such clauses. See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972).

13

In a similar vein, § 1404(a), 28 U.S.C.A. establishes a procedure whereby a party may request a change of venue. If we were to allow a party who desires or asserts a right to litigate his suit in a court other than that where the challenged suit is first filed, we would render the procedures outlined in § 1404(a) little more than an exercise in futility.

14

Hospah, SFI, SFR and SFM chose to totally ignore the requirements of Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C.A. and failed to avail themselves to the procedures outlined in § 1404(a), 28 U.S.C.A. Instead they went directly to the New Mexico court and asked for an injunction.

15

The authorities relied upon by Hospah, SFI, SFR, and SFM to support their procedure, Columbia Plaza Corp. v. Security Nat. Bank, 525 F.2d 620 (D.C.Cir.1975), William Gluckin Co. v. International Platex Corp., 407 F.2d 177 (2d Cir. 1969), among others, in turn rely upon Kerotest Mfg. Co. v. C-0-Two Co., 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200 (1952) for the proposition that the first-to-file rule is not entitled to "mechanical application". We agree to the extent we find that Kerotest stands for the proposition that simply because a court is the first to obtain jurisdiction does not necessarily mean that it should decide the merits of the case. However, in Kerotest the Court pays great deference to the district court's ability to decide if it should accept venue.[3] We believe that Kerotest is in line with our view that the court which first obtains jurisdiction should be allowed to first decide issues of venue.

16

The manufacturer who is charged with infringing a patent cannot stretch the Federal Declaratory Judgments Act to give him a paramount right to choose the forum for trying out questions of infringement and validity. He is given an equal start in the race to the courthouse, not a headstart. If he is forehanded, subsequent suits against him by the patentee can within the trial court's discretion be enjoined pending determination of the declaratory judgment suit, and a judgment in his favor bars suits against his customers. If he is anticipated, the court's discretion is broad enough to protect him from harassment of his customers. If the patentee's suit against a customer is brought in a district where the manufacturer cannot be joined as a defendant, the manufacturer may be permitted simultaneously to prosecute a declaratory action against the patentee elsewhere. And if the manufacturer is joined as an unwilling defendant in a forum non conveniens, he has available upon an appropriate showing the relief provided by § 1404(a) of the Judicial Code. 62 Stat. 869, 937, 28 U.S.C. § 1404(a).

17

342 U.S. at pp. 185, 186, 72 S.Ct. at p. 222 (Emphasis supplied). (Footnotes omitted).

18

In summary, the declaratory judgment action cannot be used as a substitute for the rules of civil procedure in response to a pending lawsuit, Public Service Comm'n. v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952), Product Engineering and Manufacturing, Inc. v. Barnes, supra,[4] nor can declaratory judgment be used as yet another weapon in a game of procedural warfare. Kerotest Mfg. Co. v. C-0-Two Co., supra.

19

The motion to dismiss this appeal as moot filed February 19, 1982, by plaintiffs-appellees is denied. The motion to reinstate preliminary injunction pending appeal filed February 19, 1982, by plaintiffs-appellees is denied.

[*~1164]20

The cause is remanded to the district court with instruction to dismiss the preliminary injunction.

1

Hospah, SFI, SFR and SFM also asserted that the Texas action should not be allowed to proceed because Hospah was an indispensable party to that action. Inasmuch as the New Mexico court did not specifically address that issue, but rather issued the injunction upon finding that the venue selection clause controlled, we do not deem it necessary to address that issue. In any event, the defense of failure to join an indispensable party is properly the subject of a rule 12(b) motion, FRCP, 28 U.S.C.A

2

While we are not here in a position to rule on the applicability of the venue selection clause, we are of the view that the case presents a genuine issue of fact in that regard. In light of the fact that the Texas complaint alleges a conspiracy commencing on or about 1974 and the lease containing the selection clause was not entered into until 1977 it is not clear to us that the venue selection clause controls. Furthermore, it is not readily apparent to us that the lease is binding on parties to this lawsuit who are not parties to the lease. These are factors for the district court to consider

3

Hospah, SFI, SFM and SFR intimated throughout that because the outcome of this litigation would affect Texas consumers, their rights may not be adequately protected in the Texas courts. The Court in Kerotest addressed a similar argument. There, the Court said, "Such apprehension implies a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure." 342 U.S. at p. 185, 72 S.Ct. at p. 222

4

Although these cases involve federal-state relationships, the underlying principles are equally applicable to comity between the federal courts