ACCEPTED 03-16-00761-CV 13800262 THIRD COURT OF APPEALS AUSTIN, TEXAS 11/15/2016 1:42:07 PM JEFFREY D. KYLE CLERK

Texas A&M University School of Law RECEIVED IN 3rd COURT OF APPEALS Texas A&M Law Scholarship AUSTIN, TEXAS 11/15/2016 1:42:07 PM Faculty Scholarship JEFFREY D. KYLE Clerk 1999 Parallel Litigation James P. George Texas A&M University School of Law, [email protected] Follow this and additional works at: http://scholarship.law.tamu.edu/facscholar Part of the Law Commons Recommended Citation James P. George, Parallel Litigation, 51 Baylor L. Rev. 769 (1999). Available at: http://scholarship.law.tamu.edu/facscholar/427 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. PARALLEL LITIGATION' James P. George- TABLE OF CONTENTS I. PARALLEL LAWSUITS--AN OVERVIEW ............................................... 773 A. ParallelLitigation Defined and Distinguished............................ 773 B. The Milieu--FourDistinct Settings for ParallelLitigation.......... 776 C. The Remedies: Five Responses to ParallelLitigation................. 777 1. Do Nothing ............................................................................. 777 2. Transfer and Consolidation .................................................... 777 3. Dismissals and Stays (and Abatements) ............................... 778 4. Antisuit Injunctions ................................................................ 780 D. The Common Doctrines: Six Themes in ParallelLitigation ....... 782 1. The First-Filed Case ............................................................... 782 2. In Rem Cases .......................................................................... 782 3. Declaratory Actions ............................................................... 782 4. Degree of Similarity ................................................................ 783 5. Discretionary Standard ........................................................... 783 6. Com ity .................................................................................... 783 E. The Slow Development ofPrecedent and FederalCourt Prom inence................................................................................... 784 F. Unitary Discussions...................................................................... 785 *G. Terminology.................................................................................. 785 II. INTRAJURISDICTIONAL LITIGATION ................................................... 785 A. Intra-FederalParallelLitigation................................................. 785 1. Who filed first? .......................................... . . .. . .. . . .. . . .. . . .. . . .. . . .. . 788 2. In rem cases ............................................................................ 788 3. Statutory Preemption ............................................................ 788 4. Which court decides? .................................... . . . .. . .. . . .. . . .. . . .. . . . .. 789 B. Transfer and Consolidation.......................................................... 789 1. Consolidation Within the Same Division .............................. 789 2. Move to Another Division Within the District ...................... 789 3. Move to Another Division or District to Correct Venue ....... 790 4. Transfers Based on Forum Selection Agreement .................. 791 *The author is grateful to Professors Anna Teller and Susan Phillips, and law librarian Wendy Law, for significant help in researching and rewriting this article, and to attorneys Brian Stagner, Lu Pham, Albon Head, and Jeff Bragalone for valuable editorial suggestions. -Professor of Law, Texas Wesleyan University School of Law. 770 BA YLOR LA WREVIEW [Vol. 51:4 5. Inconvenient Forum Transfers ............................................... 792 6. Multidistrict Transfer of Multiple Cases for Consolidated Pretrial Proceedings .............................................................. 795 C. Dismissal...................................................................................... 796 1. Voluntary Dismissals and The "Two Dismissal Rule" ......... 796 2. Involuntary Dismissals ........................................................... 797 D. Stays in Favor of OtherFederalCourt Litigation........................ 799 C. Stays and DismissalsBased on the Abstention Doctrines............ 1. Colorado River Abstention: Economy, Convenience and "Wise Judicial Administration" ........................855 a. Moses Cone and Wilton Refine the Test .................

b. OtherFederal Tests for State-FederalParallels...........

2. Dismissals or Stays Based on Federalism-The Other Abstention Doctrines ................................ 864 a. Pullman Abstention-- Unclear State Law with ConstitutionalImplications.........................864 b. BurfordAbstention--Avoiding Conflict With Complex State Regulatory Systems ...........................

c. Thibodaux Abstention: Difficult Questions of State Law ........................................ 872 3. Abstention Procedure: Reserving Rights to a Federal F orum .......................................... 874 D. Enjoining the State Action ............................... 875 1. The Younger/Pennzoil Doctrine and Equitable Abstention... 876 a. The Younger and Pennzoil Cases..................... 876 b. Younger's Application in Civil Cases...................

c. Perfecting a Younger Objection...................... 881 2. Statutory Abstention: The Anti-Injunction Act ...............

a. "ExpresslyAuthorized" Injunctions................... 882 b. Injunctions "In Aid of Its Jurisdiction"..................

c. Injunctions to Prevent Relitigation... * ...... 888 E. Summary of Limits on FederalCourtsEnjoining State Court L itigation .......................................... 896 VI. 897 STATE COURTS AND PENDING FEDERAL LITIGATION ................... A. "Transfers "from State to FederalCourt: FederalRemoval.....

B. Dismissing or Staying the State Case........................

1. Forum Selection Clauses ..............................898 2. O ther Grounds................................... 898 3. Enjoining the Federal Litigation .........................

VII. FEDERAL COURTS AND FOREIGN LITIGATION ........................

A. Dismissingor Staying the FederalAction .....................

1. The General In Personam Tests: Landis and Colorado R iver .................................... 905 a. The First-to-JudgmentRule, the Laissez-Faire Approach .................................... 909 b. Comity as a stand-alone test........................

2. Dismissals Based on Forum Selection Agreements .............

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a. Five FoundationalCases................................................ 913 i. The Bremen v. Zapata Off-Shore Company .............. 913 ii. Scherk v. Alberto-Culver Co ..................................... 916 iii. MitsubishiMotors Corp. v. Soler Chrysler- Plymouth, Inc............................................................ 918 iv. Stewart Organization,Inc. v. Ricoh Corp................. 920 v. Carnival CruiseLines, Inc. v. Shute ......................... 921 b. Divergence as to Governing Law ................................... 923 c. IntrajurisdictionalCases................................................ 925 d. Interstate Cases.............................................................. 926 e. State-FederalCases........................................................ 926 f InternationalCases ........................................................ 928 i. Federal Question Cases ............................................. 929 ii. Diversity Cases Applying Federal Law to the Forum Clause ............................................................ 931 iii. Diversity Cases Applying State Law to the Forum Clause ........................................................................ 935 iv. Undecided as to Which Law Governs in Diversity Cases ......................................................................... 936 g. What Law Governs Interpretation?................................ 937 h. The ProrogationDistinction........................................... 938 i. Form ofMotion and Standardof Review .............. 941 j. Ensuringthe Case's Survival ......................................... 941 3. Forum non conveniens dismissals ......................................... 942 a. Generally........................................................................ 942 b. Removal to FederalCourt to Obtain Different Forum Non Conveniens Law ...................................................... 946 c. EnjoiningRepetitive Litigation of ForeignClaims PreviouslyDismissed on Forum Non Conveniens Grounds.......................................................................... 949 4. Dismissal or Stay of In Rem Cases ........................................ 950 B. FederalInjunctionsAgainst ForeignLitigation .......................... 953 1. Historical Development ......................................................... 953 2. Current Law ........................................................................... 955 3. M iscellaneous Points .............................................................. 966 VIII. STATE COURTS AND FOREIGN LITIGATION ......................................... 969 A. Transferringthe Case................................................................... 970 B. Dismissing or Staying the Local Case.......................................... 970 1. Comity .................................................................................... 971 2. Forum Selection Agreements ................................................. 974 3. Forum Non Conveniens ......................................................... 975

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4. Another Dismissal Ground: Due Process and the Fair Play and Substantial Justice Test ........................................... 979 C. Enjoiningthe ForeignLitigation.................................................. 981 1. The B asic Standard ................................................................ 981 2. Anti-Antisuit Injunctions ....................................................... 986

I. PARALLEL LAWSUITS--AN OVERVIEW The keynote speaker at Fort Worth's 1999 bar awards banquet, Dee Kelly, has stories about people and places in a career that began on Speaker Sam Rayburn's congressional staff. Some of the audience no doubt would have preferred his recollections to the intense address he delivered. His choice--"What To Do When Your State Court Action is Collaterally Attacked in Federal Court"--arose from the four lawsuits generated by the airport dispute in Dallas and Fort Worth. This dispute is not the first to generate duplicative litigation,, and the airport fight is not Texas's most sensational example. That distinction may belong, at least for the moment, to the Dallas Cowboys' decision to promote Pepsi and Nike alongside the NFL's promotion of Coca Cola and Adidas, leading to mirror-image lawsuits in New York. Outside of Texas, the Beatles did their version in a management dispute that led to twin billings in New York and England.^[2] So have Elvis,, Disney 4 and Caruso,5 to name only a few. Although the tactics involved may be as old as litigation itself, their- increasing high-stakes use have made parallel litigation a timely topic.

A. ParallelLitigationDefined and Distinguished Parallel litigation-a dispute generating multiple lawsuits-is not a new phenomenon and is not limited to celebrities or sensational controversies. Besides the publicity-generating lawsuits noted above, divorce actions have a long history of parallel lawsuits and conflicting judgments. Recent years have seen an expansion both in the incidence and the subject matter of parallel lawsuits, perhaps fueled by the traditional motivations of home-

'See Southwest Airlines Co. v. Texas Int'l Airlines, 546 F.2d 84, 87-89 (5th Cir. 1977) (involving suits between Southwest Airlines and Dallas, filed in both federal and state courts). 2 See Abkco Indus., Inc. v. Lennon, 377 N.Y.S.2d 362 (N.Y. App. Div. 1975) 3 See Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 217 (2d Cir. 1978). 4 See Muller v. Walt Disney Prod., 822 F. Supp. 1033, 1034 (S.D.N.Y. 1993). 5 See Caruso v. Caruso, 143 A. 771, 772 (N.J. Ch. 1928), rev'd 148 A. 882 (N.J. 1930).

BAYLOR LAWREVIEW [Vol. 51:4 court advantage and differing laws, along with the expansion of personal jurisdiction rules in the past fifty years.^[6] In spite of this increase, the vocabulary remains imprecise and ambiguous. Parallel litigation would seem to mean identical or mirror image lawsuits between identical parties, but is often used when the lawsuits are not identical. Duplicative litigation has been defined as the "simultaneous prosecution of two or more suits in which some of the parties or issues are so closely related that the judgment in one will necessarily have a res judicata effect on the other.", Earlier discussion have noted three categories of parallel litigation: (1) repetitive actions: multiple suits on the same claim by the same plaintiff against the same defendant; (2) reactive suits: a separate suit filed by a defendant in the first action against the plaintiff in the first action, seeking a declaratory judgment that he is not liable under the conditions of the first action or asserting an affirmative claim that arises out of the same transaction or occurrence as the first suit; and (3) separate actions by class members on the same cause of action raised in the class action, seeking to represent the same or a similar class. These categories are perfectly parallel and clearly subject to claim and issue preclusion, along with arguments that simultaneous prosecution is inefficient and wasteful., A distinct fourth category is "related litigation": separate suits involving similar parties or issues to which claim preclusion may not apply, but eligible for issue preclusion and to a lesser extent, subject to the same arguments as to wasteful litigation. Treatment here includes all four categories, with distinctions drawn as to their differing treatment in varying jurisdictions. In discussing these cases and their remedies, this Article will use the terms "parallel" and "duplicative" interchangeably, in reference both to identical and mirror image lawsuits, as well as substantially similar lawsuits with common questions of law or fact between substantially-but not always perfectly-identical parties. This Article discusses (1) repetitive suits by the same plaintiff against the same or similar defendants, 9 (2) reactive suits filed by the defendant in the first action when abated, is absolutely dead." This distinction may have been lost with the merger of law and equity in federal and most state courts. Whatever the reason for the conflicting usage, this Article will avoid the term "abatement" where possible, using dismissal or stay as indicated in the specific case. Where the case refers to "abatement," this Article will note such usage and attempt to describe whether the effect was a stay or dismissal. One other distinction must be made between stays and dismissals. Logically, dismissals are preferred over stays for duplicative litigation within the same jurisdiction, while stays are preferred over dismissals (if a remedy is available at all) for parallel cases in multiple jurisdictions. The

2 Bowles v. Wilke, 175 F.2d 35, 37-38 (7th Cir. 1949). 2BLACK'S LAW DICTIONARY 4 (6th ed. 1990).(quoting Carver v. State, 398 S.W.2d 719 (1966)). 3ld. at 1151 (citing United States v. Brodson, 234 F.2d 97, 99 (7th Cir. 1956)). 2 See Miles v. Ford Motor Co., 914 S.W.2d 135, 139 (Tex. 1995). 25 See TEx. Bus. & COM. CODE ANN., § 17.505(d)(Vemon Supp. 1999). 26 Pringle v. Sizer, 2 S.C. 59, 68 (1870) (quoting JOSEPH STORY, COMMENTARIES ON EQUITY PLEADING § 354 (C.C. Little & J. Brown 1848)).

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use of dismissals for local duplication is more economical, while the use of stays for interjurisdictional conflicts reflects courts' greater reluctance to extinguish a case and expose the local plaintiff to the mercy of a distant forum. Stays provide the protection of reviving the case in the event of problems in the other forum. Where dismissals are available in interjurisdictional conflicts the test is a heightened one, often linked to forum non conveniens analysis.17 The test for stays, on the other hand, may be as simple as the "first-filed rule."2 One exception to the no-dismissal rule involves in rem cases, where courts will generally dismiss in deference to the court first assuming control over the property.^[2] 9 4. Antisuit Injunctions A fourth option is to ask the court to enjoin the opposing party from pursuing the other case. 0 This option is especially appropriate when the other court may not grant a motion to stay its own action." The injunction applies only to the party being enjoined; it does not apply to the court or judge presiding over the parallel case.,2 In other words, courts of original jurisdiction may not enjoin each other." However, an appellate court with jurisdiction over a trial court may freeze the litigation in the lower court where a court improperly denied a motion for stay. One treatise describes four applications for antisuit injunctions: (1) stopping litigation of the same dispute in another forum; (2) consolidating related-but-not-identical claims in the moving party's preferred forum, (3) stopping the relitigation of a completed case in another forum, and (4) a counter-injunction, or anti-antisuit injunction to prevent the opponent from seeking an antisuit injunction in another forum.^[3] Stays and dismissals may achieve the same objectives, however, antisuit injunctions may be most effective when the "other" forum is unlikely to grant the stay or dismissal. The antisuit injunction remedy began as an intrajurisdictional device in fifteenth century England, where common law courts issued writs of

"See, e.g., White Light Prods., Inc. v. On The Scene Prods., Inc., 660 N.Y.S.2d 568 (1997); RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 84 cmt. e (1971). 28 See infra text accompanying notes 63-85. 29 See id. 3°See 16 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 3923 (2d. ed. 1996). 3 'See id. 32See id. 33See id. 34 See id. 3'BORN, INTERNATIONAL CIVIL LITIGATION, supra note 6, at 475.

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prohibition to undermine the expansion of ecclesiastical courts' jurisdiction.36 The chancery courts adopted the remedy, using their equitable power to restrain parties from bringing related suits in common law courts. Antisuit injunctions were eventually used to enjoin foreign proceedings, which Professor Bermann cites as its most common use in English courts today.,8 Today, state courts have the power to enjoin litigation (1) within the same state, pursuant to that state's law, with no constitutional or international law hurdles to clear;19 (2) in sister state courts under the common law doctrine of comity;40 and (3) in foreign countries.41 State courts may not enjoin federal litigation absent extraordinary circumstances such as maintaining the court's in rem jurisdiction.42 A federal court's power is similar. A federal court may restrain federal litigation,'4 state litigation where the effect would be to defeat or impair the jurisdiction of the federal court,"4 and foreign litigation under the doctrine of comity and the limits discussed in Gau Shan Co., Ltd. v. Bankers Trust Co. ^[1] Injunction is the most controversial of the remedies for parallel litigation because it interferes with another court's power, often in another state or country. As noted above, the injunction is against the party, not against the other court.46 Some courts and commentators, however, suggest that this is a meaningless distinction and that the other forum may perceive that its powers are being challenged or compromised.^[4] 36 See George A. Bermann, The Use of Anti-Suit Injunctions in InternationalLitigation, 28 COLUM. J. TRANSNAT'L L. 589, 593 (1990) (hereinafter Bermann, Anti-Suit Injunctions). 3"See id. at 593-94. 38 See id.; see also Hartley, Comity and the Use of Antisuit Injunctions in International Litigation, 35 AM. J. COMP. L. 487, 489 (1987). 39 See Gannon v. Payne, 706 S.W.2d 304, 305-06 (Tex. 1986). 4°See Christensen v. Integrity Ins. Co., 719 S.W.2d 161, 163 (Tex. 1986). 41 See Gannon, 706 S.W.2d at 305-06 (noting that this power is accompanied by a "caveat of limited use"). 42 See Donovan v. City of Dallas, 377 U.S. 408,412 (1964); cf University of Tex. v. Morris, 344 S.W.2d 426, 428 (Tex. 1961). 4 3See Municipal Energy Agency of Miss. v. Big Rivers Elec. Corp., 804 F.2d 338, 343 (5th Cir. 1986). 44See Kline v. Burke Constr. Co., 260 U.S. 226, 229 (1922). 4 1See Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1354-55 (6th Cir. 1992). "'See Gannon, 706 S.W.2d at 306. 47 1d. at 306-07(citing Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C. Cir. 1984)); see also Total Minatome Corp. v. Santa Fe Minerals, Inc., 851 S.W.2d 336, 339 n.5 (Tex. App--Dallas 1993, no writ); BORN, INTERNATIONAL CIVIL LITIGATION, supra note 6 at 476 nn. 39-40; Trevor C. Hartley, Comity and the Use of Antisuit Injunctions in

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D. The Common Doctrines: Six Themes in ParallelLitigation Six points transcend these remedies, some with consistent applications and some varied according to the setting and the law of a specific jurisdiction. ^[1]. The First-Filed Case In intrajurisdictional conflicts, there is a heavy presumption favoring the first-filed case, but it may be overcome by a party's misconduct (such as forum shopping) or important state interests. The first-filed rule appears irregularly in other settings, varying from a mere element of a larger test to the same presumptive strength it has in intrajurisdictional settings. ^[2]. In Rem Cases The first-filed presumption is stronger for in rem cases, which almost invariably defer to the first-filed action as noted in PrincessLida of Thurn and Taxis v. Thompson . In many jurisdictions, the presumption is weaker to non-existent for parallel case conflicts involving another jurisdiction, including state-federal conflicts within the same territory. Because of the dominance of the first-filed rule for in rem cases, readers should assume that cases discussed herein are in personam unless stated otherwise. ^[3]. Declaratory Actions Declaratory actions are suspect when they are mirror images of the other suit, but that alone will not cause one to be dismissed. In many jurisdictions, a second-filed declaratory action is dismissed as a matter of law if it seeks no greater relief than the first-filed action. In some jurisdictions, this applies to first-filed declaratory actions under certain circumstances, such as a perception that the first plaintiff was merely forum shopping.

(2) the relative progress of the two cases; (3) the existence of a forum selection clause;0 (4) a plaintiff's need to litigate that claim individually rather than join a class;69 (5) the need to consolidate related actions; ° (6) multidistrict litigation transfer for pretrial purposes; ' (7) lack of notice of the first-filed claim;72 (8) having jurisdiction over necessary or desirable parties;71

61See 800-Flowers, Inc. v. Intercontinental Florists, Inc., 860 F. Supp. 128, 133 (S.D.N.Y. 1994); Igloo Prods. Corp. v. Mounties, Inc., 735 F. Supp. 214, 218 (S.D. Tex. 1990). "See Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950-51 (5th Cir. 1997) (transferring first suit to second forum). But see Congress Credit Corp. v. AJC Int'l, Inc., 42 F.3d 686, 689-90 (1st Cir. 1994) (quoting Thermal Dynamics Corp v. Union Carbide Corp., 214 F. Supp. 773, 776 (S.D.N.Y. 1963) for the proposition that suits "must be materially on all fours with the other," and "must have such an identity that a determination in one action leaves little or nothing to be determined in the other"); Computer Assocs. Int'l v. Altai, Inc., 893 F.2d 26, 29 (2d Cir. 1990) (stating that it is improper to enjoin related proceedings where the claim therein would not have been a compulsory counterclaim). "See Cooperative Centrale Raiffeisen-Boerenleen Bank B.A. v. Northwestern Nat'l Ins. Co., 778 F. Supp. 1274, 1279 (S.D.N.Y. 1991) (denying stay of second suit). SSee International Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112 (5th Cir. 1996); In re Fireman's Fund Ins. Co., 588 F.2d 93 (5th Cir. 1979); Texas Source Group, Inc. v. CCH, Inc., 967 F. Supp. 234 (S.D. Tex. 1997) (holding that the forum selection clause was valid in spite of allegations of breach of underlying contract); American Airlines, Inc. v. Rogerson ATS, 952 F. Supp. 377 (N.D. Tex. 1996); Wellons v. Numerica Say. Bank, FSB, 749 F. Supp. 336 (D. Mass. 1990). "See Savidge v. Fincannon, 784 F.2d 186 (5th Cir. 1986) (denying transfer of individual suit for consolidation with class). 70 See Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir. 1978) (denying transfer to first forum because of later filing in second forum of related actions against other defendants for the same tort of misappropriation of Elvis Presley's likeness); Davidson v. Exxon Corp., 778 F. Supp. 909, 912 (E.D. La. 1991) (transferring later-filed class action to district with more than 100 actions already on file). "See In re Antibiotic Drugs Antitrust Litig., 355 F. Supp. 1400, 1402 (J.P.M.L. 1973). 72 See Employers Ins. of Wausau v. Prudential Ins. Co. of America, 763 F. Supp. 46, 49-50 (S.D.N.Y. 1991) (denying dismissal and transfer of second suit).

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(9) discouragement of forum shopping;74 (10) the bad faith filing of a declaratory judgment action;" and (11) "state interest" of the second forum.7 The burden of proving special circumstances is, of course, on the party challenging the first-to-file rule." 1. Who filed first? Closely filed actions may be deemed filed simultaneously. The most extreme example of this was simultaneous electronic filing that was alleged to be four-tenths of a second apart; the two courts selected the forum by a coin toss. ^[8] In removed cases, the state court filing date controls.7 2. In rem cases While the "special factors" exceptions make the first-to-file rule flexible, the rule is rigid for in rem cases. That is, the first court to acquire jurisdiction of the res has priority to the exclusion of other courts. 0 3. Statutory Preemption The "first-filed" presumption yields to statutory overrides such as mandatory venue,8' exclusive jurisdiction statutes such as 28 U.S.C. § 1346(b) giving federal district courts exclusive jurisdiction over claims 1

73See Span-Eng. Assoc. v. Weidner, 771 F.2d 464, 470 (10th Cir. 1985) (addressing the opportunity to add defendants); see also Chiron Corp. v. Advanced Chemtech, Inc., 869 F. Supp. 800, 802 (N.D. Cal. 1994). 7"See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967) (staying first- filed action); S-Fer Int'l, Inc. v. Paladion Partners, Ltd., 906 F. Supp. 211, 217 (S.D.N.Y. 1995) (denying transfer of first suit, and granting injunction against second suit); Johnson Bros. Corp. v. Int'l Bhd. of Painters, 861 F. Supp. 28, 30 (M.D. La. 1994) (dismissing first suit). 71See Commercial Union Ins. Cos. v. Torbaty, 955 F. Supp. 1162, 1163-64 (E.D. Mo. 1997)

(dismissing first suit). 7'See Muller v. Walt Disney Prods., 822 F. Supp. 1033, 1034-40 (S.D.N.Y. 1993) (denying defendant's motions to stay or transfer based on balance of convenience and the second forum's greater interest in the litigation). 'See Hanson PLC v. Metro-Goldwyn-Mayer, Inc. 932 F. Supp. 104, 106-08 (S.D.N.Y. 1996) (holding that burden was met and first suit was dismissed). 71See Mobil Oil Exploration Co. v. Federal Energy Regulatory Comm'n, 814 F.2d 998, 1001(5th Cir. 1987). 'gSee Igloo Prods. Corp. v. Mounties, Inc., 735 F. Supp. 214, 217 (S.D. Tex. 1990).

separate forums. As Ginsey noted, section 1404(a) limits transfer to "a district where the action might have been brought," requiring that the transferee court must have personal jurisdiction over all parties.128 In ContinentalAirlines, Inc. v. American Airlines, Inc., a Galveston federal court denied defendant's motion to transfer venue to Dallas, where much of the witnesses and documents were, or failing that, to Houston on the grounds that Galveston lacked direct air service and Houston was more accessible.29 The court soundly rejected the notion that its location fifty miles from Houston amounted to the level of inconvenience contemplated by section 1404(a).130 The court denied a section 1404(a) transfer in Muller v. Walt Disney Productions,where the executor of Leopold Stokowski's estate sued Walt Disney Productions regarding royalties on the video cassette of Fantasia.- Disney had already sued in Pennsylvania, and moved to stay or transfer

12'Id. at 80-81. "I1d. at 80 (citing Hoffman v. Blaski, 363 U.S. 335, 342-43 (1960)); see also Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1148 (5th Cir. 1984) (applying the Hoffman standard, overruled on othergrounds, In re Air Crash Disaster Near New Orleans, LA, 821 F.2d 1147 (5th Cir. 1987)). .29805 F. Supp. 1392, 1394 (S.D. Tex. 1992). "OSee id. at 1400-01. 822 F. Supp. 1033, 1040 (S.D.N.Y. 1993).

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this action there.- The court denied the motions, finding that the balance of convenience and New York interest favored the New York forum. 1" First-filed actions do not always prevail on choice of forum. Factors Etc., Inc. v. Pro Arts, Inc., was part of a two-case dispute in federal courts in Ohio and New York regarding exclusive ownership of Elvis Presley's likeness. ' The Second Circuit upheld the trial court's refusal to transfer the second-filed case to the Ohio federal court, where convenience favored the second district. When both venue and personal jurisdiction are improper, section 1406136 is the authority for transfer.'7 But where venue is proper and personal jurisdiction is lacking, some courts still use section 1406, in spite of its application only in cases where venue is improper. ^[8] Other courts-and sometimes other appellate panels-have held that section 1404(a) is appropriate here."19 6. Multidistrict Transfer of Multiple Cases for Consolidated Pretrial Proceedings The multidistrict litigation statute, 28 U.S.C. § 1407, provides for the transfer of multiple civil actions from different districts with "one or more common questions of fact" to be transferred to a common forum for pretrial proceedings only.140 Unlike transfers under sections 1404(a), 1404(b) or 1406, which may be consolidated with a parallel action under Federal Rule of Civil Procedure 42(a) ("Rule 42"), this may not be done the transferor district court. In re Aviation Products Liability Litigation is an early case distinguishing between cases that should be transferred for pretrial proceedings and those that should not.146 The panel considered twenty related lawsuits in various federal districts, for defective design, manufacture and installation of helicopter engines.'' 7 Another instructive example is In re the Upjohn Co. Antibiotic "Cleocin" Products Liability Litigation, holding that discovery orders made prior to the multidistrict transfer may be modified by the transferee judge. 148

C. Dismissal 1. Voluntary Dismissals and The "Two Dismissal Rule" Federal Rule of Civil Procedure 41(a) ("Rule 41(a)") provides for plaintiffs unilateral dismissal, or nonsuit, by notice if filed before defendant answers or files a motion for summary judgment.'"4 If defendant has answered or filed a dispositive motion, voluntary dismissal is still

'4 'See Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 38 (1998) (holding that a court may not use section 1404 to retain a case for trial after obtaining the case under section 1407). 142521 F.2d 1354, 1355 (2d Cir. 1975). "14 See id. at 1356. '"See id. at 1359. 1028 U.S.C. § 1407 (1993). 146347 F. Supp. 1401, 1404-06 (J.P.M.L. 1972). ' 47See id. at 1402. 148450 F. Supp. 1168, 1170 (J.M.P.L. 1978), affld 664 F.2d 114 (6th Cir. 1981). For other examples, see In re Asbestos Litigation, 963 F. Supp. 247, 251 (S.D.N.Y. 1997); In re Air Crash Disaster at Lockerbie, Scotland, 709 F. Supp. 231, 232 (J.P.M.L. 1989), aff'd, In re Pan Am Corp., 16 F.3d 513, 517 (2d Cir. 1994). "9Fed. R. Civ. P. 4 1(a).

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available by stipulation signed by all parties.'1° A crucial feature of Rule 41(a) is the "two dismissal rule:" the first voluntary dismissal is without prejudice, that is, it is not an adjudication on the merits unless otherwise stated in the dismissal order.," The second dismissal is with prejudice, that is, when a voluntary dismissal is filed "by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim."'" The rule's rigidity is illustrated in Lake at Las Vegas Investors Group, Inc., v. PacificMalibu Development Corp., where the first dismissal, in state court, was not a dismissal as to all defendants, and was required because the plaintiff was an unregistered foreign corporation.' 2. Involuntary dismissals If the plaintiff will not file a notice of dismissal or agree to a stipulated dismissal, the court may involuntarily dismiss the case. This is not authorized by Rule 41, in spite of Rule 41(b)'s provisions for involuntary dismissals, they are expressly directed to the plaintiff's failure to prosecute or comply with a court order or the Federal Rules of Civil Procedure.11 No cases were found dismissing a duplicate lawsuit under Rule 41. Federal Rule of Civil Procedure 12 ("Rule 12"), which authorizes dismissals on seven grounds, also does not apply to parallel litigation although it has been applied to motions to enforce a forum selection clause.' 5 No other statute or rule authorizes dismissal for grounds other than those in Rules 12 and 41. Federal law no longer provides for pleas in abatement,S6 and as just stated, nothing in the federal rules or statutes authorizes its equivalent. However, federal common law and the doctrine of comity do provide for dismissal on other grounds. 157

'See id. l5 11d. 15'Id. (emphasis added); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 394-95 (1990). 11933 F.2d 724, 726-28 (9th Cir. 1991). '"4Fed. R. Civ. P. 41(b). 'See infra Part VII.A.^[2].i. '-See Fed. R. Civ. P. 7(a),(c). 'See Ulmet v. United States, 888 F.2d 1028, 1031 (4th Cir. 1989); 800-Flowers, Inc. v. Intercontinental Florists, Inc., 860 F. Supp. 128, 135-36 (S.D.N.Y. 1994); Johnson Bros. Corp. v. Int'l Bhd. of Painters, 861 F. Supp. 28, 29 (M.D. La. 1994); Commercial Union Ins. Cos. v. Torbaty, 955 F. Supp. 1162, 1163 (E.D. Mo. 1997); Brower v. Flint Ink Corp., 865 F. Supp. 564, 567 (N.D. Iowa 1994); see also Michael Wells, The Role of Comity in the Law of Federal Courts, 60 N.C. L. REv. 59, 61 n.5 (1981).

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One federal rule that may impact, parallel cases is the compulsory counterclaim rule stated in Federal Rule of Civil Procedure 13(a). In Adam v. Jacobs, the court reversed the lower court's denial of Jacobs' motion to dismiss the second-filed New York federal case in deference to his first- filed Michigan federal case.158 The Second Circuit held that although Adam had not technically violated Rule 13(a) by filing the second federal action instead of a counterclaim in the first action in Michigan, the district court abused its discretion in not dismissing or transferring Adam's second-filed claim for consolidation with Jacobs' first action. 59 Although the court recognized that filing a second lawsuit instead of a compulsory counterclaim in the first did not violate Rule 13(a), Adam was taking a chance.16° If Jacobs' first-filed action came to final judgment first, Adam's compulsory counterclaim would then be precluded.'6 ' Courts are often reluctant to dismiss lawsuits for which there is valid personal and subject matter jurisdiction. 162 In addressing duplicate litigation, trial courts are more inclined to use the other remedies: stay of the immediate case in that court; enjoining a party from pursuing the parallel case; or, where appropriate, moving the immediate action to be consolidated with the parallel case.163 Forum selection clauses are one area providing for dismissals. The motion is raised under Federal Rule of Civil Procedure 12(b)(6), failure to state a claim, rather than Rule 12(b)(3), improper venue. '6 The problem of parallel federal adjudication also arises between federal courts and federal administrative agencies. 165 Congress may assign certain matters, for example, the granting of a federal permit to operate a hazardous waste processor, to' a federal agency along with adjudicatory authority as to parties who challenge the agency's decision.'" In these cases, the agency may continue the litigation even when a party files suit in an Article III court; that is, the lawsuit does not divest the agency of

158950 F.2d 89, 90 (2d Cir. 1991). 59 ' See id. at 94. '"See id. at 93. 16'See id. " 2 See EEOC v. Univ. of Pa., 850 F.2d 969, 972 (3d Cir. 1988) (affirming the trial court's refusal to dismiss the EEOC's second-filed lawsuit seeking enforcement of a subpoena against the University of Pennsylvania for peer review records). ' 63See id. at 976 n.4. '"See, e.g., Lambert v. Kysar, 983 F.2d 1 110, 1112 n.l (lst Cir. 1993). 16'See, e.g., Marine Shale Processors, Inc. v. EPA, 81 F.3d 1371, 1376 (5th Cir. 1996). 6See id.

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jurisdiction.167 This was the result when Marine Shale Processors, Inc., applied to the Environmental Protection Agency ("EPA") for a permit to dispose of hazardous waste."68 The EPA denied the permit, and Marine Shale appealed within the agency's administrative review structure. 169 In the meantime, the United States sued Marine Shale in federal district court for burning waste without a permit.'7" In the federal lawsuit, Marine Shale immediately challenged the EPA's continuing jurisdiction over the permit application, arguing that by invoking the power of an Article III court, the United States ended the EPA's adjudicatory authority.'-' The Fifth Circuit disagreed, observing by comparison that, State courts are not Article III courts, yet nothing in Article III prevents a state court from litigating the same controversy pending before a district court. In such cases, if the state court reaches final judgment first, its disposition may preclude further litigation in the [federal] district court without violating Article III.'"7

D. Stays in Favor of Other FederalCourt Litigation 1. The Landis Case In Landis v. North American Co., Justice Cardozo described a court's inherent power to stay its own case. 17 Landis is not often cited by courts addressing intrafederal parallels, apparently because its formulation of a first-impression test has been superseded by later, more definitive cases. 74 It nonetheless established an important point. The Landis opinion arises from two cases. 17 In understanding Cardozo's ruling, it is important to note that the plaintiffs in the two cases are distinct, although the issues were apparently identical.' 76 The plaintiff in each of the two actions was a holding company described in the opinion

"67See id. at 1377. 68See id. at 1374. 169See id. at 1374-75. '70See id. 'See id. at 1376-77. at 1377 (citation omitted). 172ld. '17299 U.S. 248, 254 (1936). 174See SEC v. Downe, 1993 WL 22126, at "12 (S.D.N.Y. Jan. 26, 1993). See Landis, 299 U.S. at 249 (consolidating Landis v. North Amercan Co. and Landis v. American Water Works & Elec. Co.) "76See id. at 249.

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as "the apex of a pyramid which includes subsidiary holding companies as well as subsidiary operating companies, these last being engaged as public ' 77 utilities in supplying gas and electricity to consumers in different states.' In addition to these two primary actions, other plaintiffs had filed forty- seven similar suits in thirteen federal districts.17 Defendants filed motions to stay in each of the two cases, hoping to use only one forum to resolve the central issue of the constitutionality of the registration requirement. 7 9 The district court granted the stay, but the D.C. Circuit reversed.1SO On review, the Supreme Court limited the question to a court's right to stay cases pending the resolution of a related case.-1 This focus led to Cardozo's often quoted statement: Viewing the problem as one of power, and of power only, we find ourselves unable to assent to the suggestion that before proceedings in one suit may be stayed to abide the proceedings in another, the parties to the two causes must be shown to be the same and the issues identical ... Apart, however, from any concession, the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. True, the suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both. Considerations such as these, however, are counsels of moderation rather than limitations upon power. ^[1] somewhat distinct rules. ^[1] The Second Circuit uses a heavy presumption favoring the first-filed case, with Semmes Motors, Inc. v. Ford Motor Co., as a leading example.216 That presumption is qualified by the fact that Semmes was a repetitive parallel case, that is, both cases were filed by the same party. 27 It might not be as strong in reactive cases in which each party has made a bona fide choice of forum. The two cases arose from Ford's audit of Semmes's Ford dealership in New York, which included the investigation of warranty repairs and led to claims that the auditors randomly contacted customers.21 1 In the audit, Ford found several instances of warranty refunds charged to Ford where no work was done, and recommended remedial measures to Semmes.219 In response, Semmes sued Ford in New Jersey state court; Ford removed that claim to federal court, where the judge denied Semmes's request for a temporary injunction against Ford's actions and possible franchise termination.220 Semmes then sued Ford in a New York federal court, still seeking the temporary injunction to stop Ford from terminating the franchise.221 The New York federal court denied Ford's motion to stay the New York action and granted Semmes's injunction against Ford.m On appeal, the Second Circuit held the New Jersey action had priority as the first filed, that the New Jersey federal court would have been justified in enjoining Semmes from prosecuting the New York federal action, and that the result should not differ where Ford chose instead to seek a stay from the New York federal court. 23 The Second Circuit thus stayed the New York action, but did leave in effect the New York Court's injunction against Ford (that is, enjoining Ford from terminating Semmes's

2 'See, e.g., William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d Cir. 1969) (discussing the "customer action" factor). 216429 F.2d 1197, 1202 (2d Cir. 1970).. 21 See id. at 1198-99, 1202. "'See id. at 1200. 219 See id. 220 See id. at 1200 n.5. 221 See id. 2 USee id. at 1201. 2 2See id. at 1202.

806 BAYLOR LAW REVIEW [Vol. 51:4 dealership), even though the injunction had been denied by the New Jersey federal court which would subsequently try the case. ' The D.C. Circuit has significantly altered its rule for parallel federal actions. As recently as 1980, it had applied a "discretionary" rule that was phrased in dispositive terms in Washington Metropolitan Transit Authority v. Ragonese: "Where two cases between the same parties on the same cause of action are commenced in two different Federal courts, the one which is commenced first is to be allowed to proceed to its conclusion first." ' Further underscoring the rule, the court stated that "[c]onsiderations of comity and orderly administration of justice dictate that two courts of equal authority should not hear the same case simultaneously." ' In applying 226 the seemingly rigid first-filed rule, the D.C. Circuit's approach was, by 1997, that "in strictly limited circumstances, we have sometimes held that comity may warrant dismissal of [a pending] action."227 The Ninth Circuit has a more discretionary approach, observing "a generally recognized doctrine of federal comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district." 228 The court added that "this 'first to file' rule is not a rigid or inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates ' of sound judicial administration."229 The Tenth Circuit offers a case that illustrates the need for a stay pending appeal of a possibly dispositive second case. 230 In O'Hare International Bank v. Lambert, the bank originally sued Lambert in the Northern District of Illinois on a guarantee agreement.23 When the federal trial court initially ruled that it lacked personal jurisdiction, the bank sued again in the Western District of Oklahoma (and in federal courts in Texas and Arkansas) to protect its claim before the limitations period ran. 232 The 2 4 See id. at 1204. 225617 F.2d 828, 830 (D.C. Cir. 1980) (quoting Speed Products Co. v. Tinnerman, 171 F.2d 727, 729 (D.C. Cir. 1948) (upholding a dismissal in deference to a Virginia federal case)). 226 1d. [emphasis added](citing Hilton Hotels Corp. v. Weaver, 325 F.2d 1010, 1010 (D.C. Cir. 22 1963) 7 (per curiam)). Northwest Forest Resource Council v. Dombeck, 107 F.3d 897, 901 (D.C. Cir. 1997). 22 Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982) (citing Church of Scientology of Cal. v. United States Dep't of the Army, 611 F.2d 738, 749 (9th Cir. 1979)). 229 Pacesetter,678 F.2d at 95. 23 °See O'Hare Int'l Bank v. Lambert, 459 F.2d 328, 329 (10th Cir. 1972). 2 Id. at 329. 232 See id. at 329-30.

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bank then moved to stay the second action while appealing its first action; however, the Oklahoma federal court rejected the stay and granted summary judgment for the defendant on grounds unstated in the opinion.23 Meanwhile, the Seventh Circuit reversed the Illinois federal court decision on personal jurisdiction, and remanded the case for litigation on the merits.234 The bank now faced its loss in the Oklahoma federal court. 23s On appeal, the Tenth Circuit held that the Oklahoma federal court abused its discretion when it failed to stay the second-filed action while awaiting the appeal in the Seventh Circuit.23 The Tenth Circuit's test included both a strong first-filed presumption, countered by "the general rule . . . that where the judgment sought is strictly in personam, courts having concurrent jurisdiction may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other."27 3. Stay of Derivative Suits As noted in the introduction, this discussion focuses on "true" parallel cases to the possible exclusion of derivative cases that arise out of the original dispute but involve subsequent issues that may be determined in the underlying lawsuit. A California federal case provides an example of how the test for staying derivative suits can differ from that for ordinary parallel actions.ns MD. Sass Investors Services, Inc. v. Reliance Insurance Co. was a diversity case regarding an insurance bad faith claim, filed by Sass, an investment advisor who was being sued in five other federal actions by pension fund clients for losses on bond investments recommended by Sassy 9 These actions were consolidated by the Multidistrict Panel on Litigation for pretrial proceedings in the Eastern District of Louisiana. 240 Sass then sued Reliance in this case for a declaration of coverage and bad faith for Reliance's denial of coverage.^[2] 4 ' Subsequently, Sass moved for a stay pending the resolution of the five

233See id. at 330 234See id. 23 'see id. 236 See id. at 331. 23 1Id. (citing Princess Lida v. Thompson, 305 U.S. 456 (1939)). 239 See M.D. Sass Investors Servs., Inc. v. Reliance Ins. Co., 810 F. Supp. 1082, 1086 (N.D. Cal. 1992) 2 9Id. at 1083-84. 24°See id. at 1084. 24 'See id.

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underlying lawsuits.12 The court noted the Ninth Circuit had no law on point displaying the criteria for staying a derivative case regarding insurance coverage pending a decision in the primary case.^[2] 43 The court then borrowed the following list of five factors from the Third Circuit: (1) the likelihood that the declaration will resolve the uncertainty of obligation which gave rise to the controversy; (2) the covenience of the parties; (3) the public interest in the settlement of the uncertainty of obligation; (4) the availabililty and convenience of other remedies; and (5) whether the same factual question lies at the heart of both the insurance coverage dispute and the underlying action.244 The court granted the stay after precisely evaluating these factors, which differ somewhat from the Ninth Circuit's test for routine intra- federal parallel cases. ^[1] 4. Enjoining Other Federal Litigation The standard for intra-federal antisuit injunctions is almost identical to that of dismissals of duplicative litigation, with a strong first- filed presumption. That is, federal law favors dismissal of all but first-filed suits, unless there are special circumstances or the balance of convenience favors the latter suit.46 The enjoining court need not be of coordinate jurisdiction with the court where the action is enjoined. For example, 24 7 bankruptcy courts may enjoin actions in federal district courts. William Gluckin & Co. v. International Playtex Corp., is a good example of rejecting the presumption favoring the first-filed case, based on the balance of convenience of the second forum.241 Playtex is a Delaware corporation with its principal place of business in New York and three of its five manufacturing plants in Georgia.249 F. W. Woolworth & Company 242 See id. at 1085. 243 See id. at 1089. 244 1d. (citing Terra Nova Ins. Co. v. 900 Bar, Inc., 887 F.2d 1213, 1224-25 (3d Cir. 1989)). 245 See Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982); see also supra text accompanying notes 228-29. 246 See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1202 (2d Cir. 1970); see also Municipal Energy Agency v. Big Rivers Elec. Corp., 804 F.2d 338, 343 (5th Cir. 1986). 247 See Steelman v. All Continent Corp., 301 U.S. 278, 288-91 (1937); In re North Am. Oil & Gas Co. v. Fidelity & Deposit Co., 130 B.R. 482, 489 (W.D. Tex. 1991). 248407 F.2d 177, 180 (2d Cir. 1969). 249 See id. at 178.

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("Woolworth") is a New York corporation with its principal place of business in New York, though it operates retail stores throughout the nation.250 Gluckin is a New York corporation with its principal place of business in New York City.^[2] 51 Even though these were federal question cases, these facts are pertinent to the "balance of convenience" calculation. On April 25, 1968, Playtex sued Woolworth in federal court in the Northern District of Georgia for selling a brassiere manufactured by the Gluckin Company, which Playtex alleged infringed on a Playtex patent.^[2] 12 Gluckin was not registered to do business in Georgia, and according to the court in this case, not amenable there."3 On May 28, 1968, Gluckin sued Playtex in the Southern District of New York for a declaratory judgment of non-infringement or patent invalidity.254 On Gluckin's motion, the New York federal court enjoined Playtex from proceeding in the Georgia suit.55 Playtex then appealed the injunction.256 The Second Circuit began its analysis by noting its parallel case rule that "as a principle of sound judicial administration, the first suit should have priority, 'absent the showing of balance of convenience in favor of the second action,' . . . or unless there are special circumstances which justify giving priority to the second."257 The court then noted two special circumstances: (1) the "customer action" exception, "where the first-filed suit is against a customer of the alleged [patent] infringer while the second involves the infringer himself," and (2) "where forum shopping alone motivated the choice of the situs for the first suit."258 The second did not apply; the district court had made no finding of forum shopping, and the appellate court was unable to inferit.29 The district court, however, did utilize the first special circumstance, the "customer action" exception, to enjoin the first-filed action.^[2] 0 overwhelmingly pointing to New York and the second-filed action.21 Readers should note that the "customer exception rule" is limited to patent cases like Gluckin. On the other hand, the special circumstances test applies generally to parallel cases in federal courts. The Fifth Circuit has a two-part test for enjoining federal duplicative litigation: "(1) are the two pending actions so duplicative that one court should decide the subject matter of both actions; and if so, (2) which of the two courts should take the case?" 265 In Superior Savings Association v. Bank of Dallas, the plaintiff was a judgment creditor which had filed related garnishment actions against various law firms in Dallas, Texas and Cleveland, Ohio, seeking unused fees held by the garnishee firms.26 Applying the two-part test, the court first observed that in considering antisuit injunctions, "the customary rules governing the grant of injunctive

26 'See id. at 178-79. 262 See id. at 179. 263 1d. at 179 (quoting Kerotest Mfg. Co. v. C-O Two Fire Equip. Co, 342 U.S. 180, 183-84 (1951)). 2 'See id. at 179-80. 265 Superior Sav. Ass'n v. Bank of Dallas, 705 F. Supp 326, 328-29 (N.D. Tex. 1989) (citing Coumbia Plaza Corp. v. Security Nat'l Bank, 525 F.2d 620, 628-29 (D.C. Cir. 1975); Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 407-08 (5th Cir. 1971)). 266 See id.at 327-28.

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relief are of 'secondary significance. "'267 The court denied the defendants' motion to enjoin the Ohio litigation, finding that the two post-judgment actions were not sufficiently duplicative to require that one be stopped.268 Additionally, special concerns arise when enjoining repetitive litigation in the United States for claims arising outside the United States that have been dismissed on forum non conveniens grounds. Injuries and deaths in foreign countries often end up as claims in state or federal courts in the United States, if there is a basis for personal jurisdiction. Whether our courts should provide a forum for such claims is controversial.269 These claims are sometimes dismissed on forum non conveniens grounds,270 but claimants are not always deterred by the first or second dismissal. Plaintiffs in these repetitive suits may be enjoined from refiling the claims in any state or federal court in the United States, assuming that the United States as a whole was found inconvenient.21 Compulsory counterclaims can be another problem. Where a party elects to file a second federal action rather than bring a compulsory counterclaim, and where the parties in the two actions are the same, the second action should be enjoined.272 The scope of the antisuit injunction may present special issues as well. In Wood v. Santa Barbara Chamber of Commerce, Inc., photographer Wood sued several defendants for copyright infringement under federal law.273 The district court dismissed Wood's claims for lack of personal jurisdiction over many of the defendants, and the running of the limitations periods as to some claims.74 Because Wood had already been litigious on these issues, the court permanently enjoined Wood from relitigating these claims, or any claims remotely connected, and the Ninth Circuit

267 1d. at 328 (citing Columbia Plaza Corp.,525 F.2d at 622 n.3 (D.C. Cir. 1975)); see also S- Fer Int'l, Inc. v. Paladion Partners, Ltd., 906 F. Supp. 211,213-14 (S.D.N.Y. 1995). 268 See id. at 331. 269 See David W. Robertson & Paula K. Speck, Access to State Courts in Transnational PersonalInjury Cases: Forum Non Conveniens and Antisuit Injunctions, 68 TEX. L. REv. 937, 938-975 (1990) [hereinafter Robertson & Speck, Access to State Courts]; infra Part IV.B.^[4].; see also Carl Scherz Comment, Section 71.051 of the Texas Civil Practiceand Remedies Code-The Texas Legislature'sAnswer to Alfaro: Forum Non Conveniens in Personal Injury and Wrongful Death Litigation, 46 BAYLOR L. REv. 99 (1994) [hereinafter Legislature's Answer to Alfaro]; see infra Part IV.B.^[4]. 2"See De Melo v. Lederle Lab., 801 F.2d 1058, 1064 (8th Cir. 1986). "'See Villar v. Crowley Maritime Corp., 990 F.2d 1489, 1498-99 (5th Cir. 1993). "2 See Columbia Plaza Corp. v. Security Nat'l Bank, 525 F.2d 620, 626 (D.C. Cir. 1975). 273705 F.2d 1515, 1518 (9th Cir. 1983). 274 See id.

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affirmed. ^[5] As might be expected, this ruling does not reflect the norm as to injunctions against future litigation. Albeit in a somewhat different setting, federal antisuit injunctions against state litigation, the Supreme Court has held that injunctions against future litigation must be narrowly drawn and limited to matters actually decided in the federal action.216 Honoring the injunction may also be problematic since the court in which the action has been enjoined is not always inclined to agree. In at least one noteworthy case, Schauss v. Metals Depository Corp., the Fifth Circuit did honor a New York federal injunction despite sufficient justification to ignore it.277 In Schauss, defendant Metals Depository Corporation ("MDC") was sued in two Texas federal courts and several Texas state courts. 278 MDC was also a defendant in a New York federal action brought by the Commodity Futures Trading Commission, in which a receiver was appointed and all creditors were joined.279 The New York federal court then enjoined the creditors from prosecuting any further actions against MDC.^[8] 0 One of the two Texas federal courts stayed its action temporarily, in accordance with the New York injunction, to learn what effect the New York injunction had on the Texas proceeding.2-1 The New York receiver, however, failed to correspond with the Texas action, even though he was a party and aware of the proceedings.28 2 The two Texas actions were consolidated, and the Texas parties agreed on a settlement and final judgment was entered.213 The New York receiver, a non-participating party, appealed.214 The Fifth Circuit set aside the Texas federal court's judgment, which was in violation of the New York injunction, even though the New York receiver's inaction was a significant 25 cause. ^[1] reversible error. ' e. MultidistrictTransfer Rule 11 of the Texas Rules of Judicial Administration provides a multidistrict litigation procedure similar to the federal one, authorizing the transfer of cases with "material questions of fact and law in common with another case pending in another court in another county .... ,"3o Like the federal version, the transfer is limited to pretrial proceedings including summary judgment. The Rule has no provisions for consolidation, and provides to the contrary that the assignment "under this rule terminates

302 TEx. Civ. PRAC. & REM. CODE ANN. § 15.002(b) (Vernon Supp. 2000).

For the convenience of the parties and witnesses and in the interest of justice, a court may transfer an action from a county of proper venue under this subchapter or Subchapter C to any other county of proper venue on motion of a defendant filed and served concurrently with or before the filing of the answer, where the court finds: (1) maintenance of the action in the county of suit would work an injustice to the movant considering the movant's economic and personal hardship; (2) the balance of interests of all the parties predominates in favor of the action being brought in the other county; and (3) the transfer of the action would not work an injustice to any other party. Id. 30328 U.S.C. § 1404(a) (1993). 304 S TEX. Civ. PRAC. & REM. CODE ANN. § 15.002(c) (Vernon Supp. 2000). 305TEX. R. JUD. ADMIN. 11.1, reprinted in TEX. GoV'T CODE ANN., tit. ^[2], subtit. F app. (Vernon 1998).

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when ... all pretrial proceedings are completed . . . ."06 Whether a party could then use Texas Civil Practice and Remedies Code section 15.002(b) as the basis for an inconvenient forum transfer to the common forum for consolidation for trial is unclear. That result is not permitted in the equivalent federal practice under 28 U.S.C. § 1407.307

B. Stays, Dismissals and Injunctions: Texas and Other States 1. General Principles Where transfer is unavailable, Texas follows the common law presumption against duplicative litigation in the same jurisdiction, that is, in other Texas state courts, and in favor of the first-filed suit °s The second-filed case is either dismissed,09 or stayed, which is an "abatement" in Texas.l 0 In Miles, the Texas Supreme Court discussed the options of dismissal or abatement without providing guidelines as to which action is preferable, other than to state that abatement offers certain benefits, such as protecting a party's right to proceed in the second-filed forum if the first- filing party has filed as a sham with no intent to proceed." Consistent with federal practice, and no doubt with common law, Texas recognizes an exception to the favoring of the first-filed suit when a party is guilty of such inequitable conduct that he is estopped from using the first-filed suit to abate the second.312 Inappropriate conduct includes misrepresentations regarding the status of negotiations and intentions to file suit.-' Failing to file a timely objection or motion waives the presumption of the first-filed forum's dominant jurisdiction, allowing both actions to proceed until one reaches final judgment and possibly precludes the other.^[14]

3 Id. at 11.3(f). 307 See infra Part II.B.^[6]. 3 .SeeCleveland v. Ward, 116 Tex. ^[1], 285 S.W. 1063, 1071 (1926). 3 "See, e.g., id.; Mower v. Boyer, 811 S.W.2d 560, 563 n.2 (Tex. 1991); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). 3 "See Miles v. Ford Motor Co., 914 S.W.2d 135, 139 (Tex. 1995); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988). 31 1914 S.W.2d at 139. 312 See Johnson v. Avery, 414 S.W.2d 441,443 (Tex. 1966). 3 13 See id.; see also Curtis, 511 S.W.2d at 267; V.D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, 800-01 (1937); Russell v. Taylor, 121 Tex. 450, S.W.2d 733, 736 (1932). 3 14 See Mower, 811 S.W.2d at 563 n.2 (citing Estate of Maxey, 559 S.W.2d 458, 460-61 (Tex. Civ. App.-Texarkana 1977, writ refrd n.r.e.)).

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The degree of similarity in the two lawsuits is a matter of interpretation. Cases approaching exact duplication require, as a matter of law, dismissal of the second action.'" Similar, but not identical, cases may be discretionarily stayed with the inquiry being "the practical results to be obtained, dictated by a consideration of the inherent interrelation of the subject matter of the two suits," that is, whether a determination of the issues in one case will resolve all the issues in the other.36 Texas has a distinct rule for a declaratory judgment action that mirrors a first-filed lawsuit.,17 "As a general rule, an action for declaratory judgment will not be entertained if there is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involved in the declaratory action."', Texas law also allows for injunctions against parallel litigation. 319 Because the typical procedure is for the objecting party to file a plea in abatement, or stay, in the second suit, unless there is a reason to stay the first-filed suit2o few reported instances of in-state injunctive relief being granted exist. Texas practice is indicative of that in other states. California has a "rule of exclusive concurrent jurisdiction" giving presumptive priority to the first-filed case, provided that the first court has jurisdiction over the subject matter and the parties.321 The rule resembles the statutory plea in abatement but is more expansive in application, not requiring absolute identity of the parties or remedies.322 Like the plea in abatement, the rule of exclusive concurrent jurisdiction is mandatory.323 California has a similar 3 "See Wyatt, 760 S.W.2d at 248; see also TEx. R. Civ. P. 39, 97(a). 316 Dolenz v. Continental Nat'l Bank, 620 S.W.2d 572, 575 (Tex. 1981) (quoting North Texas Coach Co. v. Morten, 92 S.W.2d 263, 266 (Tex. Civ. App.-Austin 1935, no writ). 3 "See Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970). 3 18 1d. 319 See Cleveland v. Ward, 116 Tex. ^[1], 285 S.W. 1063, 1073 (1926); Galveston, Harrisburg & San Antonio Ry. Co. v. Dowe, 70 Tex. ^[5], 7 S.W. 368, 371 (1888); Gulf, Colorado & Santa Fe Ry. Co. v. Pearlstone Mill & Elevator Co., 53 S.W.2d 1001, 1003 (Tex. Comm'n App. 1932, holding approved) (enjoining Pearlstone's attempt to file ninety-seven separate small claims suits, "from which no appeal will lie and in which the court costs and attorney's fees will be out of proportion to the amounts involved"). "2See, e.g., McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56, 59 (Tex. Comm'n App. 1934, judgm't adopted). 2 People ex rel. Garamendi v. American Autoplan, Inc., 25 Cal. Rptr. 2d 192, 197 (Ct. App. 1993). 32 See id. at 198. 32 See id.

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rule for derivative actions that grow out of other lawsuits. In Adams v. Paul, the California Supreme Court stayed an attorney malpractice claim pending the outcome of the underlying action which was being dismissed on limitations grounds. ^[2] Although the court would seemingly stay the derivative lawsuit, the legal grounds may differ from routine stays of parallel actions. Thus, while California has developed a "rule of conclusive concurrent jurisdiction" related to the plea in abatement for true parallel actions, it stays derivative suits under the court's inherent authority. New York statutorily authorizes discretionary stays "in a proper case, upon such terms as may be just."325 Stays apply to local parallel actions and to other settings as well26 In spite of the statute's vague language, case law has imposed a requirement of "complete identity of parties, cause of action and judgment sought."321' Further, case law disregards judicial economy by noting that the "possibility or actuality of two trials is not of ' importance."328 Two New York cases refer to a "special circumstances" exception that would permit litigation of the second-filed action, but the cases involved probate matters first raised in the surrogate court's that were also raised in the Supreme Court, which has concurrent jurisdiction 32 9 over such matters. Similar to New York, Ohio case law provides for dismissal of a second- filed in personam action, but requires that the claims be identical. 310 Pennsylvania appears to be in this camp, authorizing a stay in one action that may be resolved or made moot by the resolution of another case."' In contrast, California's identity rule is much looser, requiring only that the

324904 P.2d 1205, 1211 (Cal. 1995); see also Montrose Chem. Corp. v. Superior Court, 861 P.2d 1153, 1162 (Cal. 1993) (staying a declaratory action on insurance coverage, noting that "a stay of the declaratory relief action pending resolution of the third party suit is appropriate when the coverage question turns on facts to be litigated in the underlying action"). 121N.Y. C.P.L.R. 2201 (McKinney 1991). 126See, e.g., 660 Riverside Drive Aldo Assoc. L.L.C. v. Marte, 681 N.Y.S.2d 436, 438 (Civ. Ct. 1998) (granting stay of state case that was related to pending federal administrative action). 327 Pierre Assocs., Inc. v. Citizens Casualty Co., 304 N.Y.S.2d 158, 160 (App. Div. 1969) (quoting Corporate Investing Co. v. Mt. Vernon Metal Prods. Co., 200 N.Y.S. 372, 374 (App. Div. 1923)). 3281d 32 9 See Lupoli v. Lupoli, 613 N.Y.S.2d 423,424 (App. Div. 1994); In re Moody's Will, 176 N.Y.S.2d 1, 2 (App. Div. 1958). 33 0 See State ex reL. Judson v. Spahr, 515 N.E.2d 911, 913 (Ohio 1987). 33 'See Gwynedd Properties, Inc. v. Board of Supervisors, 635 A.2d 714, 718 (Pa. Commw. Ct. 1993).

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two actions grow out of the same transaction.32 Illinois cases provide for a discretionary stay and have drawn authority from the Landis test."3 Louisiana ordinarily dismisses a second-filed case, but will stay it when class action status is pending in the other suit, thus affecting the plaintiffs presence in that action."3 Georgia law authorizes discretionary stays but not mandatory dismissals? 2. Statutory Dismissal At least two states, Illinois and New Jersey, have statutes providing for involuntary dismissal of the local action in deference to a parallel action. For both states, these dismissal remedies are in addition to stay remedies for parallel actions. The Illinois statute applies when "there is another action pending between the same parties for the same cause."'16 Dismissal is available upon defendant's motion and may be supported by affidavit to establish the existence of the parallel action. Also, dismissal applies to all parallel actions in or out of Illinois, in state, federal, and foreign courts, and gives preference, though not absolute, to the first-filed case. The court has the discretion to stay the action to allow for the possibility of claim and party joinder in the other action that would then justify dismissal.117 New York has a more restrictive statute, Which provides for discretionary dismissal of a parallel action in a New York court and "a court of any state or the United States."'3 The statute also applies to conflicts between a New York court and a court in another state or a federal court, but it does not apply to actions in foreign courts.^[3] 39

" 2See Lord v. Garland, 168 P.2d 5, 10 (Cal. 1946); Lawyers Title Ins. Corp. v. Superior Court, 199 Cal. Rptr. ^[1], 2 (Ct. App. 1984). a3 See Kaden v. Pucinski, 635 N.E.2d 468, 471 (111.App. Ct. 1994) (denying plaintiffs motion to stay one of many taxpayer claims she had filed against county clerks of courts); First Nat'l Bank v. Fabbrini, 627 N.E.2d 356, 358 (I11.App. Ct. 1993) (granting stay despite lack of perfect identity between the two actions involving lender fraud and foreclosure). 4 11 See Perkins v. Mobil Oil Corp., 621 So. 2d 899, 901 (La. Ct. App. 1993). 3 " See International Telecomm. Exch. Corp. v. MCI Telecomm. Corp., 448 S.E.2d 71, 73 (Ga. Ct. App. 1994); accord Graham v. Graham, 648 So. 2d 814, 816 (Fla. Dist. Ct. App. 1995) (discretionary stay of second-filed divorce action). 336735 ILL. COMP. STAT. 5/2-619(a)(3) (West 1992). 337 See Quantum Chem. Corp. v. Hartford Steam Boiler Inspection and Ins. Co., 616 N.E.2d 686, 690 (Ill. App. Ct. 1993). a3 iN.Y. C.P.L.R. 321 i(a)(4) (Consol. 1994); see also supra notes 325-29 and accompanying text (discussing New York's statute governing stays of parallel cases). 319 See Abkco Indus., Inc. v. Lennon, 377 N.Y.S.2d 362, 368 (N.Y. App. Div. 1975) (holding that parallel actions in New York and England regarding contract dispute between the Beatles and their management company does not support dismissal).

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IV. INTERSTATE PARALLEL LITIGATION Parallel litigation in an interstate setting involves slightly more rigid rules and less willingness on the part of courts to subordinate a local action to a foreign one, whether "foreign" means a sister state or another country. The United States Constitution's strong full faith and credit mandate, which compels states to recognize the "public Acts, Records, and judicial Proceedings" of sister states,3 40 does not apply to pending litigation.341 Rather, the "authority" in this setting is the non-binding comity doctrine, which leaves state courts free to maintain local preferences and prejudices. Nonetheless, rules have developed that favor judicial economy and fairness to the parties.

A. "Transfers " to a Sister State Transfers to a sister state are not yet recognized. The Uniform Law Commission has proposed a Uniform Transfer of Litigation Act ("Act") that provides for an interstate transfer "to serve the fair, effective, and efficient administration of justice and the convenience of the parties and witnesses" based on "all relevant factors, including the interest of each plaintiff in selecting a forum and the public interest in securing a single litigation and disposition of related matters." 342The transferor court does not have to have personal or subject matter jurisdiction.34 3 A transferee court with subject matter jurisdiction, but lacking personal jurisdiction under its own long arm statutes, may accept the case if the transferor court had both subject matter and personal jurisdiction, although the transferee court may not exercise personal jurisdiction inconsistent with due process. ^[4] 4 The proposed Act has choice of law provisions for specific areas such as limitations, '14 pending proceedings, 3' 6 and attorney-client agreements.^[3] 7 The Act does not include provisions for selecting the governing substantive law, but contemplates that this could be resolved in

34 0 U.S. CONST. art. IV, § 1. 341 See Texas Employers' Ins. Ass'n v. Jackson, 820 F.2d 1406, 1421-22 (5th Cir. 1987). 342 UNIF. TRANSFER OF LITIG. ACT § 104, 14 U.L.A. 194 (Supp. 1999). 343 See id. 344 See id. § 102. 34 'See id § 209. 34 6 See id. § 211. Proceedings must be completed after transfer under the procedural rules of the transferring court. See id. 347 See id. § 213.

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the transfer order. 48 The transfer motion may be made by a party, or on the court's motion' 4 9 The proposed Transfer of Litigation Act was approved in 1991 but has not yet been adopted by any state. Even without the proposed Act, most states have a rough approximation of an interstate transfer, common law forum non conveniens. Generally patterned after the Supreme Court's decision in GulfOil Corp. v. Gilbert,"0 forum non conveniens allows a forum to dismiss an action that is significantly inconvenient for a defendant, balanced against the plaintiffs and the affected state's interests, conditioned on the defendant's agreement to waive any objections to the refiling of the case in the convenient jurisdiction. The dismissing forum typically conditions the dismissal on successful refiling and an opportunity to litigate on the merits in the second forum. The significant difference between this practice and a venue transfer within a single jurisdiction is that venue transfers are statutory and not dependent on a vague doctrine like comity, on which forum non conveniens is based. In spite of comity's vagueness, the movement of cases from one forum to another by forum non conveniens is now common and governed by reasonably uniform standards, such as those found in Gilbert."'

B. Dismissingor Staying the Local Action Historically, states ignored actions in other states. For example, in 1812, when plaintiffs Bowne and Seymour filed an action in assumpsit in New York, defendant Joy pleaded the pendency of the same action in Massachusetts.Y The New York court responded with a borrowed English rule."' The rules states, "The pendency of a suit in a foreign court, by the same plaintiff against the same defendant, for the same cause of action, is no stay or bar to a new suit instituted here."114 The Bowne case did not necessarily hold that the court lacked the discretion to stay the duplicate action.'' Rather, the case stated that the defendant's responsive pleading

148See id. § 208. '49See id. § 105. See generally Thomas D. Rowe, Jr., Jurisdictionaland TransferProposals for Complex Litigation, 10 REv. LITIG. 325, 354-58 (1991) (covering interstate transfers). 350330 U.S. 501, 508 (1947). 31'See infra Part VII.A.^[2]. 3"See Bowne & Seymour v. Joy, 9 Johns. 221, 221 (N.Y. 1812). 3"3See id. 4 31 1d. (citing Maule v. Murray 101 Eng. Rep. 1081 (K.B. 1798). 355Id.

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did not set up a defense as a matter of law.356 In any event, neither this opinion nor any of its contemporaries offer so much as a discretionary 357 stay. Lynch v. Hartford Fire Insurance Co., provides a review of the early precedents, from early holdings supporting dismissal to a clearly- established contrary rule that "a plea of lis alibi pendens is not good when the litigation is in a court of foreign jurisdiction."' In prescient dictum, the court added that courts in the future would "hold that they may attain the same end through their power of postponing actions and suspending judgments." ' 59 That prediction proved true over time as stays tended to become available. However, the rule of no dismissal for foreign actions, at one time "almost an unbroken rule in the courts of the American states," remains valid in many states. 360 To the extent that a general rule may be derived from relatively few cases, stays are discretionarily available today in many jurisdictions under varying tests and presumptions, with a general preference for first-filed actions and an almost routine dismissal of a local case in deference to a first-filed in rem action. A few states, as discussed below, grant dismissals in deference to in personam actions. Texas courts will dismiss a local action in deference to an action in another state in three instances: (1) when a second-filed declaratory action could be resolved in the first-filed suit; (2) when the parties have a valid forum selection agreement designating another state; and (3) on forum non conveniens grounds. ^[1]. Dismissal Under the First-Filed Rule One often cited rule is that, in an interstate setting, mere duplication of actions is not grounds for dismissal.361 Thus, a court usually will not dismiss its own action in deference to a parallel action in another state, based on nothing more than the sequence of filing. A New York case offers an explanation for the disfavor of dismissals on this ground in an United States, and gives priority to the first-filed case. Although Alabama apparently diminishes its deference to sister state parallel actions, it dismisses claims that should have been filed as compulsory counterclaims in a first-filed action in another state.^[3] 74 In Martin v. Robbins, Stephanie Robbins sued her former husband, Howard Robbins, in regard to a closely held company they owned.375 Apparently in league with Mrs. Robbins, Jeanette Martin sued Howard Robbins in Tennessee on a related claim, based on Martin's status as a shareholder in the Robbins company. 76 Howard Robbins filed a third party claim against Martin in the Alabama action and obtained a default judgment177 On appeal, Martin asked the Alabama Supreme Court to dismiss Howard Robbins's claim against her on the ground that it was a compulsory counterclaim in the Tennessee action.17, The court disagreed and held that the comity owed to Tennessee did not require dismissal in Alabama merely 3 79 because the claim could be raised in the Tennessee action. Although Texas law does provide for the dismissal of a local action that duplicates another Texas lawsuit,380 it distinguishes between intrastate conflicts and those with sister states or foreign countries. For example, Williamson v. Tucker noted that abatement, apparently meaning "dismissal," of a duplicative case applies only where "[b]oth courts had been created by the same sovereign," and in some cases was a matter of right, while staying an action in deference to a foreign action is discretionary.^[3] Thus, "[t]he fact that a plaintiff in a Texas case had prior to filing such case in Texas, filed a suit, that still pends, against the same relationship to the forum state. New York statutorily endorses certain forum agreements in section 5- 1402(1) of the General Obligation Laws, requiring that state courts honor forum clauses in transactions of one million dollars or more that are subject to New York law.429 New York's civil procedure rules supplement this protection for forum clauses by providing that courts may not stay or dismiss an action on inconvenient forum grounds if: (1) the suit arises

42 SSee id. at 643 (citing DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 681 (Tex. 1990)). 426 See Bakhsh v. JACRRC Enters., Inc., 895 P.2d 746, 747 (Okla. Ct. App. 1995) (enforcing a Texas forum clause, citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 187 (1969)). 427 See Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, 350 (Ala. 1997) (overruling a longstanding Alabama ban on forum clauses); Societe Jean Nicolas et Fils v. Mousseux, 597 P.2d 541, 542 (Ariz. 1979); Bancomer, S.A. v. Superior Court, 52 Cal. Rptr. 2d 435, 439 (Ct. App. 1996) (noting presumptive validity and the challenger's heavy burden of proving unreasonableness); Tuttle's Design-Build, Inc. v. Florida Fancy, Inc., 604 So. 2d 873, 873-74 (Fla. Dist. Ct. App. 1992); Brinson v. Martin, 469 S.E.2d 537, 538 (Ga. Ct. App. 1996); Dace Int'l, Inc. v. Apple Computer, Inc., 655 N.E.2d 974, 977 (Ill. App. Ct. 1995); Brooke Group Ltd. v. JCH Syndicate 488, 663 N.E.2d 635, 637-38 (N.Y. 1996); Kennecorp Mortgage Brokers, Inc. v. Country Club Convalescent Hosp., Inc., 610 N.E.2d 987, 990 (Ohio 1993); Bakhsh v. JACRRC Enterps., Inc., 895 P.2d 746, 747 (Okla. Ct. App. 1995); Leasefirst v. Hartford Rexall Drugs, Inc., 483 N.W.2d 585, 587 (Wis. Ct. App. 1992); see also Central Ohio Graphics, Inc. v. Alco Capital Resource, Inc., 472 S.E.2d 2, 3 (Ga. Ct. App. 1996); Woodmen of the World Life Ins. Soc. v. Yelich, 549 N.W.2d 172, 175 (Neb. 1996); Reeves v. Chem Indus. Co., 495 P.2d 729, 732 (Or. 1972). But see Dailey v. Dallas Carriers Corp., 51 Cal. Rptr. 2d 48, 51 (Ct. App. 1996) (holding that a forum clause is enforceable only if it has reasonable basis and the forum state's law does not conflict with fundamental California policy). 428 See, e.g., Vanier v. Ponsoldt, 833 P.2d 949 (Kan. 1992). 429 N.Y. GEN. OBLIG. LAW § 5-1402(1) (Consol. 1998).

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from a contract governed by section 5-1402; and (2) the contract has a New York choice of law clause.410 States also vary in the exceptions to forum clause enforcement. Some, for example, readily enforce the public policy exception.4' In Iowa, forum clauses are not enforceable per se, but are considered as one factor when determining whether to exercise jurisdiction.412 New Jersey will generally enforce forum clauses,' 41 but forum clauses in franchise agreements are presumptively invalid. 44 Utah requires that it have some state interest in the dispute.415 At least one Ohio case has held it reversible error to dismiss following the enforcement of a forum clause and required that the case be stayed pending recommencement in the proper court. Some states still reject forum selection clauses, or severely limit them. Until 1994, North Carolina enforced forum clauses under common law standards similar to most other states.^[4] ' In 1993, the North Carolina legislature statutorily overruled this precedent with the following language: Except as otherwise provided in this section, any provision in a contract entered into in North Carolina that requires the prosecution of any action or the arbitration of any dispute that arises from the contract to be instituted or heard in another state is against public policy and is void and unenforceable. This prohibition shall not apply to non-consumer loan transactions or to any action or arbitration of a dispute that is commenced in another state pursuant to a forum selection provision with the consent of arises. 11 Delaware courts have held that forum clauses must be raised as affirmative defenses in the derogating forum, thereby denying plaintiff's request in the second forum for an antisuit injunction.419 While this rule is logically sound, its result is that a party filing an action contrary to a forum clause will have the benefit of having its chosen forum decide the validity of the forum clause. ^[4]. Interstate Forum Non Conveniens Texas has three sources of forum non conveniens law: two statutes and a common law model based on Gulf Oil Corp. v. Gilbert. ° The first statute, Texas Civil Practice and Remedies Code section 71.051, applies only to wrongful death and personal injury claims."' The statute was enacted in 1993 to legislatively overrule Dow Chemical Co. v. Afaro,42 which had read the wrongful death statute as pre-empting traditional forum " non conveniens objections. 41 Section 71.051 distinguishes between plaintiffs who are not legal United States residents and those who are. As to non-United States residents, section 71.051(a) authorizes a discretionary application of traditional forum non conveniens, without specifying criteria other than "in the interests of justice." 4" Under section 71.051(b), plaintiffs who are United States residents may obtain a stay or dismissal, in whole or in part, by proving by a preponderance of the evidence that: (1) an alternative forum exists; (2) it provides an adequate remedy; (3) litigation in Texas "would work a substantial injustice to the moving party"; (4) the other forum has jurisdiction over all proper defendants; (5) the balance of the private and public interests favor litigation in the other forum; and (6) the "stay or dismissal would not result in unreasonable duplication or

438 N.C. GEN. STAT. § 22B-3 (1996). See generally Joseph E. Smith, Note, Civil Procedure- Forum Selection-NC. GEN. STAT. § 22B-3 (1994), 72 N.C. L. REv. 1608 (1994). 43 gSee El Paso Natural Gas Co. v. Transamerican Natural Gas Corp., 669 A.2d 36, 40 (Del. 1995) (denying plaintiffs request for an antisuit injunction against a related Texas action in violation of the parties' Delaware forum clause). 440330 U.S. 501 (1947). 441 TEx. Civ. PRAC. & REM. CODE ANN. § 71.051 (Vernon 1997). 442786 S.W.2d 674 (Tex. 1990). " 3See Legislature'sAnswer to Alfaro, supra note 269, at 101-02. 444 TEX. Civ. PRAC. & REM. CODE ANN. § 71.051(a).

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proliferation' of litigation.""' Section 71.051(e) provides that if Texas plaintiffs are joined with foreign plaintiffs, whether United States residents or not, the action may not be stayed or dismissed under the test in section 71.051(b) if the action arose from a single occurrence, although dismissal is mandatory under section 71.05 1(e) if a party was joined solely to create Texas jurisdiction, that is, to avoid forum non conveniens.4' The remainder of section 71.051 sets out other procedural requirements and deadlines." 7 The second statute, Texas Civil Practice and Remedies Code section 71.052, addresses asbestosis claims filed by persons who were not residents at the time their claims arose and requires dismissal of claims that did not arise in Texas and are filed after January 1, 1997.-1 For claims filed after January 1, 1995, a plaintiff must elect whether to: (1) abate the claim for 180 days while attempting to obtain another forum; or (2) retain the claim in Texas, but agree to limitations on punitive damages." 9 If the plaintiff opts for another forum, the defendant in the Texas court must waive the right to object to limitations on cases that were timely filed in Texas and must agree that discovery responses in Texas may be used in the other forum.450 To date, no case on this 1997 statute exists. All other causes of action are governed by common law forum non conveniens, which has an erratic history in Texas. The Texas Supreme Court has recently cited Flaiz v. Moore as the "embracing" of Gulf Oil's analysis.5I Flaiz, however, does not compel the conclusion that the Texas Supreme Court embraced any notion of forum non conveniens. Instead, the opinion reveals the court was reluctant to endorse forum non conveniens in any particular form and unwilling, in the circumstances of that case, to affirm the lower court's forum non conveniens dismissal.411 As noted above, in Dow Chemical Co. v. Alfaro, the Texas Supreme Court also construed the Texas wrongful death statute as precluding forum non conveniens dismissals. 411 The case was then legislatively overruled by the

44Sld. § 71.051(b). 446See id. § 71.051(e). 7 " See id. § 71.05 1(0-(i). "I81d. § 71.052 (Vernon Supp. 1999). "See id. § 71.052(c). 4"See id. § 71.052(e), (f). 45'See In re Smith Barney, Inc., 975 S.W.2d 593, 596 (Tex. 1998) (citing Flaiz v. Moore, 359 S.W.2d 872, 874 (Tex. 1962)). 4 See Flaiz, 359 S.W.2d 872. 41'786 S.W.2d 674, 677-79 (Tex. 1990).

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amendment to the wrongful death statute. 414 However, Texas continues to follow common law forum non conveniens except where statutorily modified.41 In a further development, the Texas Supreme Court recently changed the law as to foreign corporations authorized to do business in Texas.^[5] 6 A 1941 Texas appellate case, H. Rouw Co. v. Railway Express Agency, had held that properly registered foreign corporations were entitled to maintain actions in Texas courts, without regard to forum non conveniens, based on two statutes that gave Texas corporations the power to maintain and defend lawsuits.^[4] 7 From this, the appellate court concluded that because Texas corporations had an absolute right to sue in Texas, properly registered foreign corporations did as well. 451 The Texas Supreme Court adopted the opinion merely by refusing appellate review, 419 creating a precedent that was reluctantly followed for years.^[4] 60 In 1998, the Texas Supreme Court rejected Rouw's reasoning, finding that the power to maintain a suit was not the same as the right to do so, that Gulf Oil v. Gilbert had rejected this very concept, and that, in fact, "[i]t simply makes no sense to allow foreign corporations an absolute right to sue non-residents in Texas courts when 4' 61 individuals have never been accorded the same right." In 1993, the Texas Supreme Court considered whether the act of refiling in another state rendered the plaintiff's local appeal of a forum non conveniens dismissal moot.462 Forum non conveniens dismissals are always determined by comparing the immediate forum to another and are based on a finding that the immediate forum is significantly less 454 See Smith Barney, 975 S.W.2d at 597. 455 See id. at 596; see also Sarieddine v. Moussa, 820 S.W.2d 837, 840 (Tex. App.-Dallas 1991, writ denied) (recognizing that forum non conveniens is not precluded by a forum selection clause); Seguros Commercial America S.A. De C.V., v. American President Lines, Ltd., 966 S.W.2d 652, 656 (Tex. App.-San Antonio 1998, no writ) (apIlying forum non conveniens in insurance cases). 456 See Smith Barney, 975 S.W.2d at 598. 457154 S.W.2d 143, 145 (Tex. Civ. App.-El Paso 1941, writ ref'd) (interpreting and applying the statutes formerly codified as TEX. REV. CIv. STAT. ANN. art. 1320 (Vernon 1925) and TEX. REv. Civ. STAT. ANN. art. 1532 (Vernon 1925), which provided properly registered foreign corporations "all the rights and privileges conferred by the laws of this State on corporations organized under the laws of this State"). 45See id. 45 9 See TEX. R. APP.P. 56.1(c). 4"See '21' Int'l Holdings, Inc., v. Westinghouse Elec. Corp., 856 S.W.2d 479, 481 (Tex. App.-San Antonio 1993, no writ). "'Smith Barney, 975 S.W.2d at 597-98. 462 VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) (per curiam).

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convenient than the other.46 3 When the plaintiffs first choice of forum is undone by a forum non conveniens dismissal, the plaintiff must file again in the forum thought to be more convenient, and presumably this must be done within a reasonable time. The plaintiff's appeal of the first forum's dismissal does not necessarily eliminate the need for a timely filing in the second forum. An important question is whether the plaintiff's filing in the second forum renders the appeal of the forum non conveniens dismissal in the first moot. The Texas Supreme Court answered the question in the negative in VE Corp. v. Ernst & Young. 46 VE Corporation ("VE") sued Ernst & Young for accounting malpractice for work performed in California.'6 The district court granted Ernst & Young's forum non conveniens dismissal motion and VE appealed.46 Pending appeal of the dismissal, VE filed an identical suit in California.467 Ernst & Young argued on appeal that the California action indicated VE's acquiescence to California as the forum of convenience and thus rendered the Texas appeal moot.^[4] 68 The court of appeals agreed and'dismissed for mootness,469 but the Texas Supreme Court reversed: Generally, an appeal is moot when the court's action on the merits cannot affect the rights of the parties. The court's action in this case does affect the rights of the parties. Identical suits may be pending in different states. In such a situation, the principle of comity generally requires the later-filed suit to be abated. Merely filing suit in California does not affect moot [sic] the issue of whether Texas is a proper forum for VE's suit against Ernst & Young, nor does it, without more, indicate VE's agreement that California is the forum of convenience. The court of 4 0 appeals erred in dismissing the appeal as moot.

3 46 See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). 464860 S.W.2d at 84. 46SSee id. 'See id. 4 See id. 4 8See id. 469 VE Corp. v. Ernst & Young, 860 S.W.2d 116, 117 (Tex. App.-Ft. Worth 1993), rev'd, 860 47 S.W.2d 0 83 (Tex. 1993). VE Corp., 860 SW.2d at 84 (citations omitted).

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Most states apply some version of the forum non conveniens doctrine, generally resembling the Gulf Oil v. Gilbert test, although some codify the doctrine.4' North Carolina's statute requires a stay of the local action instead of dismissal and further provides a five year "jurisdictional" period over the stayed case, after which the case must be dismissed.412 The statute does not provide a test, but case law does enumerate relevant factors that North Carolina courts may consider, including: (1) the nature of the case, (2) witness convenience; (3) availability of compulsory process for witnesses; (4) relative access to sources of proof; (5) the applicable law; (6) the burden of litigating matters not of local concern; (7) the desirability of litigating matters of local concern in local courts; (8) convenience and access to another forum; (9) plaintiff's choice of forum; and (10) all other practical considerations.41, Alabama did not have forum non conveniens doctrine, under statutory or common law, until 1987 .474 In that year, the state legislature adopted a statutory provision that considers "the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice" and calls for dismissal if the factors suggest "that there exists a more appropriate forum."4' 71 Georgia appears not to subscribe to forum non conveniens lawY4 Louisiana has a doctrine far more restrictive than the federal one.47 7

471 See Robertson & Speck, supra note 269, at 950 n.74. This appears to be the most complete recent attempt at assessing state forum non conveniens laws. Whether the authors' narrow focus on personal injury and wrongful death actions affects the accuracy of their state compilations in regard to commercial and other non-injury actions is unclear. Recent illustrative cases include Beckman v. Thompson, 6 Cal. Rptr. 2d 60 (Ct. App. 1992) (noting the California presumption against forum non conveniens if the plaintiff is a forum resident); Vinson v. Allstate, 579 N.E.2d 857 (Ill. 1991) (dismissing a case for indemnification in favor of Missouri courts); Sturman v. Singer, 623 N.Y.S.2d 883 (App. Div. 1995) (dismissing the case in favor of refiling in Delaware); Cheung v. General Slicing, Inc., 618 N.Y.S.2d 304 (App. Div. 1994) (finding that New Jersey was the appropriate forum). 472 See N.C. GEN. STAT. § 1-75.12 (1999). 47 See Motor Inn Management, Inc. v. Irvin-Fuller Dev. Co., 266 S.E.2d 368, 371 (N.C. Ct. App. 1980). 474 See Employers Ins. v. Alabama Ins. Guaranty Assoc., 590 So. 2d 888, 892 (Ala. 1991) (denying forum non conveniens dismissal despite parallel, but not identical, California case). 475 Ala. Code § 6-5-430 (1993). 476 See Smith v. Board of Regents, 302 S.E.2d 124, 126 (Ga. Ct. App. 1983). 477 See Miller v. American Dredging Co., 595 So. 2d 615, 617 (La. 1992) (rejecting the federal forum non conveniens law in favor of the more restrictive Louisiana law in maritime case), afd, 510 U.S. 443 (1994). The Supreme Court's opinion in American Dredgingv. Miller established the important point that state courts are free to apply their own forum non conveniens law, or read more narrowly, that federal law does not preempt statute forum non conveniens law

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Finally, Montana has provided a personal jurisdiction twist for the effect of parallel cases on convenience balancing.478 The constitutional test for personal jurisdiction over non-residents has, over time, developed a convenience-balancing prong strongly resembling Gulf Oil's test.^[4] 79 In ColumbiaFallsAluminum Co., the court dismissed a second-filed Montana action in favor of a prior California action, but instead of using traditional comity and first-filed preferences, the court dismissed for lack of personal jurisdiction under the due process clause.48o Specifically, the court found that jurisdiction failed on the "fair play and substantial justice" test, a five- factor balancing test from a series of Supreme Court cases.^[4] 8' Interestingly, the court found that without the California litigation, Montana would have had jurisdiction, but that when comity was added to the jurisdictional test, California was the more appropriate forum."' 5. Staying the Local Action If a challenge to the parallel Texas action is not premised on its being a second-filed declaratory action, or based on a forum selection clause or a forum non conveniens motion, then the challenger will likely have to be satisfied with a stay of the local action. A stay allows the local action to remain pending, awaiting the outcome of the other litigation. At that time, the other action may be given preclusive effect, and any issues not precluded may be tried. As noted in Part III.B. ^[1], Texas courts do not dismiss Texas actions in deference to parallel actions in sister states.^[4] 3 The related suit may, opposing litigants Merritt and Brosseau.^[4] 0 Other states are generally aligned with Texas in providing for discretionary stays and rejecting dismissals for second-filed local actions. New Jersey applies comity which requires that "the court which first acquires jurisdiction has precedence in the absence of special equities."' 9 California's underlying policy for staying interstate parallel actions includes comity, the prevention of multiple and vexatious litigation, judicial economy, forum state interests, and party convenience.492 Delaware law presumes against an identical second-filed Delaware case, calling for the trial court's discretion to "be exercised freely in favor of the stay when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the would make the trial of the case easy, expeditious, and inexpensive."4 4 Conversely, first-filed local cases will survive except in rare cases where the defendant establishes that litigating in Delaware will cause "undue hardship and inconvenience."", 9 In comparison, the discretion of a Colorado court may be guided by considerations, such as: (1) whether the subsequent action was filed solely to harass; (2) the nature of the actions; (3) which court could provide complete relief, if the actions are not identical; (4) where the cause of action arose; (5) which state's law will apply; (6) expense and inconvenience; (7) witness availability; (8) the cases respective progress; and (9) delay in obtaining trial.^[4] 96 New York provides for stays but requires a "complete identity of the parties, causes of action and relief sought."491 Some courts will deny stays because of a perceived procedural defect in the other forum.498 Other cases provide for a stay without announcing a test, or simply invoking comity.4" North Carolina has used its forum non conveniens statute to stay parallel cases.^[5] ® adequate remedy at law; and (3) a likelihood of success on the merits. The court then found that "[e]quity unquestionably permits an injunction to prevent a multiplicity of suits" and that such cases offered no adequate remedy at law, but that the mere existence of a related action did not justify the injunction.-s~ To prevail, the party seeking an injunction would have to show the other action to be vexatious or some other injury showing irreparable harm.56 Although Santa Fe did make such distinctions, the court held that they did not warrant the imposition of an injunction on the Montana action .10 breach of the settlement agreement. El Paso Gas filed its claim in Delaware, requesting an injunction against the Texas lawsuit and specific performance of the forum clause.58 The Delaware Chancery Court

558731 F.2d 909, 926-45 (D.C. Cir. 1984). "59652 F.2d 852, 855 (9th Cir. 1981); see also infra Part VII.B.^[2]. '60179 N.W.2d 683, 686 (Mich. Ct. App. 1970). 56194 P.2d 341, 342 (Kan. 1939). 562 See id. "'See id. at 344. 5 64See El Paso Natural Gas Co. v. Transamerican Natural Gas Corp., 669 A.2d 36 (Del. 1995). 5 'See id. at 38. 5 6See id. 7 56 See id. 8 " See id.

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dismissed the case, and the Delaware Supreme Court affirmed, holding that Transamerican had an adequate remedy at law to raise the forum clause as a defense in the Texas case.^[5] 69 3. Refusal to Recognize Another State's Injunction Although the Full Faith and Credit Clause requires states to honor "judicial proceedings" from sister states, the Supreme Court has held that it does not apply to antisuit injunctions70 Professor Bermann has expressed surprise at this by stating, "Curiously, although sister-state anti-suit injunctions plausibly constitute just the sort of denial of full faith and credit to 'Judicial Proceedings' in courts of other states that the Clause means to forbid, the Supreme Court has held that the Clause does not pose a bar to their issuance."'1 Bermann also stated that while "other courts whose proceedings have been targeted by sister-state anti-suit injunctions have accorded recognition to those decrees, in some instances reinforcing them with their own orders of prohibition and in others simply dismissing the action in question;" often courts ignore such injunctions, and "American law provides no satisfactory solution to the problem."71 Where this ' happens, "the suit in question presumably will proceed to judgment."171 In Great Global Assurance Co. v. McFarlin,the court refused to honor a "stay" order from an Arizona court which had appointed a receiver for Great Global.574 The court stated, "The injunctive clauses designed to discontinue or enforce any suit proceeding against appellant [Great Global] certainly could by no stretch of the imagination be binding on the 88th District Court of Hardin County, Texas, until and unless the latter had notice of it, if then."171 In fact, the Arizona "stay" order had no effect in Texas. The order's only effect was in Arizona as to Great Global, which could face sanctions for violating the injunction.

V. FEDERAL COURTS AND PENDING STATE LITIGATION

Conflicts with parallel state lawsuits are handled with four very distinct approaches in federal courts: (1) dismissal based on forum selection

s11See id. at 41. s"'See Cole v. Cunningham, 133 U.S. 107, 112 (1890). 57'Bermann, supra note 36, at 599.

s721ld at 600-01. 3 17 1d at 601. s..728 S.W.2d 401, 402-03 (Tex. App.-Beaumont 1987, writ ref'd n.r.e.). S7T1d. at 402 (emphasis added).

850 BAYLOR LAWREVIEW [Vol. 51:4 agreement;5 76 (2) abstention, dismissal or stay, under the Colorado River doctrine, based on judicial economy or "wise judicial administration";1 (3) abstention, dismissal or stay, based on federalism under the Pullman, Burford and Thibodeaux doctrines; 178 and (4) injunctions against the state action under the strict limits of the Younger doctrine and the Anti- Injunction Act.57 9 Other remedies such as transfer and forum non conveniens have only an incidental presence in this setting.

A. Transferringthe FederalCase to State Court At least one state, Pennsylvania, has a law authorizing the transfer to its courts of a federal case with non-federal claims over which the court had, but now lacks, jurisdiction.so The Third Circuit has approved this procedure, holding that "the state could authorize transfer of cases even though Congress had not spoken on the issue by analogy to procedures adopted by states for certifying questions of state law."', Importantly, the Third Circuit based its holding on two important factors: (1) the federal court's jurisdiction over the state law claims that were later transferred; and (2) the presence of Pennsylvania's enabling legislation, similar to state legislation authorizing certified questions from federal court to a state supreme court., The First Circuit rejected a similar argument based on a Maine "savings statute" that permitted transfer when the original action fails "for any matter of form."' Although the First Circuit distinguished its case from the Third Circuit's Weaver on several grounds, it questioned the Third Circuit's position that a court "bereft of jurisdiction has an 'inherent power' to transfer a case."584 In this questioning, the First Circuit apparently intended the term "bereft of jurisdiction" to mean a court that currently lacks jurisdiction whether it 576 See International Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir. 1996). 577 See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818 (1976). 57 8 see CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS § 52, at 303-12 (1983). 579 See id. § 52A, at 320-26. 5a°See Electronic Lab Supply Co. v. Cullen, 782 F. Supp. 1016, 1021 (E.D. Pa. 1991) (citing 42 PA. CONS. STAT. ANN. § 5103(b)(1) (West 1991)), aff'd, 977 F.2d 798 (3d Cir. 1992). 'Id. (citing'Weaver v. Marine Bank, 683 F.2d 744, 747-48 (3d Cir. 1982)); cf Rehberg v. Glassboro State College, 745 F. Supp. 1113, 1117 (E.D. Pa. 1990) (acknowledging 42 PA. CONS. STAT. ANN. § 5103(b), but refusing to utilize it in a transfer to a New Jersey Court). 582 See Weaver, 683 F.2d at 746-47. 5t3 Mills v. State of Maine, 118 F.3d 37, 51-52 (1st Cir. 1997) (citing ME. REV. STAT. ANN. tit. ^[14], § 855 (West 1980)). 584 1d. at 52 n.4 (quoting Dantes v. Western Found Corp., 614 F.2d 299, 301 n.2 (1st Cir. 1980)).

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once existed or not. Although the cases cited in the First Circuit's Mills opinion were all being considered for intra-federal transfers, the First Circuit's analogy is appropriate. 85 The American Law Institute ("ALI") has proposed a more significant possibility for inter-system transfer86 The ALI's Complex Litigation Project has designed a series of procedures for transfer and consolidation between various courts, both state and federal, for the more efficient adjudication of duplicative litigation. The proposal calls for removal of state court cases by using supplemental jurisdiction under 28 U.S.C. § 136757 for cases "transactionally related" to ones in federal court, for consolidation there.88 The ALI also calls for the availability of antisuit injunctions to suspend proceedings in the transferor court. 89 Interestingly, the proposal also calls for the availability of state courts as transferee courts for consolidation of actions that would include cases "transferred" from federal courts. 90°

B. Dismissingthe FederalAction Based on a Forum Selection Agreement When contracting parties designate a state court in a forum clause and a subsequent lawsuit is filed in federal court in derogation of that clause, what law governs the clause's interpretation and enforceability? Enforcing forum selection clauses in a state-federal setting is complicated by an Erie doctrine issue, the determation of what law governs the forum clause's interpretation and enforceability. The Fifth Circuit resolved this issue and surveyed other circuit's laws, in International Software Systems, Inc. v. Amplicon, Inc.", The choices for governing law are more complicated than merely choosing federal or state law. Federal law on this issue may be

'"5Cf Moravian Sch. Advisory Bd. v. Rawlins, 70 F.3d 270, 274-76 (3d Cir. 1995) (rejecting plaintiff's various theories for transferring her action brought under territorial law to the local courts). 5 'See American Law Institution, Complex Litigation Proposal: Statutory Recommendations and Analysis, § 5.01 (1994). 58728 U.S.C. § 1367 (1994). "' 8See American Law Institution, supra note 586, § 5.01. . 89See id. § 5.04. 5 9°See id. § 4.01; Sherman, Antisuit Injunction and Notice of Intervention and Preclusion: Complementary Devices to Prevent Duplicative Litigation, 1995 B.Y.U. L. REv. 925 (1995); Symeon Symeonides, The ALls Complex Litigation Project: Commencing the NationalDebate, 54 LA. L.J. 843, 844 (1994). 59177 F.3d 112 (5th Cir. 1996).

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subdivided into federal common law, enunciated in the Bremen case,592 and federal statutory law,5 3 which though not intended for a federal-state forum conflict, may be applied by analogy. After reviewing the options, the Fifth 59 4 Circuit choose federal common law under Bremen. In InternationalSoftware, International leased property from Amplicon, with lease agreements designating "the California Superior Court for the County of Orange" as the forum for any resulting lawsuits."9 When International later decided that the leases were fraudulently induced, it sued Amplicon in Texas state court.596 Amplicon removed the case to federal court based on diversity jurisdiction and then filed a motion to dismiss based on the leases' forum clause.197 The district court dismissed, enforcing the forum clause under the Bremen test.598 On appeal, the Fifth Circuit identified two issues: (1) whether a federal court may dismiss, as opposed to transfer, based on a forum selection clause designating a state court, where personal jurisdiction and venue are proper; and (2) what test determines whether dismissal is appropriate if the federal court has the power to dismiss. The court found that dismissal was available under 28 U.S.C. § 1406 to enforce a forum clause choosing a non-federal court, under both Fifth Circuit precedent ® and implicitly in the Supreme Court's CarnivalCruise Lines decision.601 Choosing the applicable test was more problematic. The Fifth Circuit first noted the Supreme Court's decision to apply the 59 2 The Bremen v. Zapata Off-Shore Co., 407 U.S. ^[1] (1972); see also infra Part VII.A.^[3].a. 593 See 28 U.S.C. § 1404(a) (1993). 594 See InternationalSoftware, 77 F.3d at 115. 595 ld. at 113-14. 596 See id. at 113. 59 7 See id. 59 'See id. at 114. 5 99See id. 'See, e.g., Zapata Marine Serv. v. O/Y Finnlines, Ltd., 571 F.2d 208, 209 (5th Cir. 1978) (affirming Texas district court's dismissal to enforce forum selection clause). Despite the court's reliance on section 1406, a federal district court in Texas has used Federal Rule of Civil Proceedure 12(b)(3) regarding improper venue to dismiss a case to enforce a forum clause. See Kessman & Assoc., Inc. v. Barton-Aschman Assoc., Inc., 10 F. Supp. 2d 682, 687 (S.D. Tex. 1997). 601 See InternationalSoftware, 77 F.3d at 114. In Carnival Cruise Lines, Inc. v. Shute, the Court upheld the dismissal of a federal action in Washington state that had ignored the contract's choice of Florida forum. 499 U.S. 585, 595 (1991). The Court acted on personal jurisdiction grounds, thus failing to utilize dismissal under 28 U.S.C. § 1406. See id. at 593-95. The Fifth Circuit nonetheless noted that this was an implicit approval of using dismissal to enforce a forum clause. See InternationalSoftware, 77 F.3d at 114.

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balancing test in 28 U.S.C. § 1404(a) to forum clause conflicts between two federal courts.602 The Fifth Circuit would have preferred the same test for this case, that is, a forum clause conflict between a federal and a state court, but felt obliged to follow other federal courts' decisions and apply Bremen.63 The important distinction is that Bremen tends to favor the enforcement of forum clauses as matters of contract, while the section 1404(a) balancing test merely treats the forum clause as one of several factors to be considered in a forum non conveniens analysis that tends to favor the plaintiff s non-contractual choice of forum. Interestingly, having decided that Bremen applies, the Fifth Circuit then enforced the forum clause, but under an analysis that more resembles section 1404(a) than Bremen in its discussion of burdens and convenience.6°4 Forum clauses are discussed fully in the International section of this Article.05 The Fifth Circuit's statement in InternationalSoftware that it wished to follow other federal courts 606 indicated some agreement on the issue of which law should govern the interpretation and enforceability of forum clauses that designate a non-federal, state or foreign, forum. To the contrary, federal courts are split. The Second and Fifth Circuits, for example, apply federal common law as expressed in Bremen.-°7 The Third and Fourth Circuits use state law.601 The Eight Circuit has applied both 6o9 and in the same case. Nonparties raise another issue dealing with how close someone must be to the contract to be covered by the forum clause. This is illustrated in 2 See InternationalSoftware, 77 F.3d at 114-15 (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). ' 3 See id. at 115 ("We choose to join the other courts rather than make a circuit split and further complicate this area of the law."). 'See id. at 114-16. 6°"See infra Part VII.A.^[3]; see also American Airlines, Inc. v. Rogerson ATS, 952 F. Supp. 377, 379, 383-84 (N.D. Tex. 1996) (enforcing the parties' agreement to submit to the jurisdiction of "the courts of the State of Texas," and further retaining jurisdiction over challenges by a nonsignatory to the contract containing the forum selection clause); Roberts & Schaefer Co. v. Merit Contracting, Inc., 99 F.3d 248, 254 (7th Cir. 1996) (holding that the trial court committed "clear error" in finding no forum selection clause). 60677 F.3d at 115. 607 See id.; Jones v. Weibrecht, 901 F.2d 17, 18-19 (2d Cir. 1990). 60 8See Nutter v. Rents, Inc., 1991 WL 193490, at *5 (4th Cir. 1991); In re Diaz Contracting, Inc., 817 F.2d 1047, 1050 (3d Cir. 1987); accord, Rindal v. Seckler Co. 786 F. Supp. 890, 892 (D. Mont. 1992). 'See Farmland Indus. v. Frazier-Parrott Commodities, 806 F.2d 848, 852 (8th Cir. 1986) (finding federal law and Missouri law applied to deny the clause's selection of Illinois state courts); infra Part VII.A.^[3].

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Kessman & Assoc. v. Barton-Aschman Assoc., where defendant Parsons, a.k.a Barton-Aschman, obtained a contract with the Nevada Department of Transportation ("NDOT") to upgrade the Las Vegas Area Traffic Computer System.^[6] 1 1 Parsons in turn subcontracted with plaintiff Kessman regarding an aspect of the NDOT contract.^[6] 11 Parsons' primary contract with NDOT included a clause providing that any disputes with subcontractors would be submitted to an NDOT referee.62 The clause did not appear expressly in the Parsons-Kessman subcontract.613 A dispute arose and Kessman sued in federal court in Houston. 614 Parsons moved to dismiss for improper venue." 5 The court upheld the NDOT forum clause, holding that it was incorporated by reference from Parsons's primary NDOT contract. 616 The court also disallowed plaintiffs argument that the dispute arose from work done subsequent to the expiration of the NDOT contract." 7 The court dismissed the case under Federal Rule of Civil Procedure 12(b)(3), improper venue, for refiling with NDOT or in a Nevada state court.

C. Stays and Dismissals Based on the Abstention Doctrines Four abstention doctrines exist by most accounts, although the count varies both in Supreme Court opinions and scholarship. Professor Wright identifies these doctrines as Pullman, Burford, Younger, and Colorado River, but suggests that their number is irrelevant.619 Some discuss a "Thibodeaux" abstention as a separate doctrine20 while Wright treats Thibodeaux as a Burford variant though noting its failure to fit neatly within either the Pullman or Burford doctrines.61 While most abstention discussions begin with Pullman, it is appropriate to begin with ColoradoRiver as the doctrine most pertinent to state-federal

61010 F. Supp. 2d 682, 684 (S.D. Tex. 1997). 6'See id. 612 See id. at 689-90. 6 "See id. at 689. 614 See id. at 687. 61 See id. 616 See id. at 692. 617 See id. at 692-93. 61 'See id. at 693. 619 See 17A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2d § 4241, at 28 (1988). 62 °See, e.g., Weinberg, FEDERAL COURTS 598-99 (1994). 62 1 17A WRIGHT, supra note 619, § 4244, at 89-90 n.1 1.

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parallel litigation and the only doctrine not based primarily on federalism. Pullman and Burford impose limits on federal courts' attempts to resolve matters of substantive law that are better left to the states. This article deals separately with the Younger doctrine, which involves a different limit on federal courts. That limit being interference with the state litigation process by issuing an antisuit injunction. The Younger discussion is followed by a brief summation of the Anti-Injunction Act, which combines with Younger to provide strict limits on federal courts enjoining parties from pursuing state litigation. Recurring themes include whether a particular doctrine calls for stay or dismissal and whether it is imposed on a discretionary standard or as a matter of law. All but ColoradoRiver may be raised at any time, including on appeal, and may be raised by the court.'22 The Tenth Circuit has ruled that Colorado River abstention requires a timely objection, since its purpose is to prevent excessive litigation, which will occur anyway if no timely objection is raised.613 1. ColoradoRiver Abstention: Economy, Convenience and "Wise Judicial Administration" Colorado River v. United States provides the essential state-federal parallel doctrine.624 The case arose from a water rights dispute that would seem to implicate federal interests to the degree of requiring a federal forum, but did not because of a federal statute providing for state litigation of federal water interests.625 Responding to increasing water rights claims, several southwestern states created procedures for allocating water rights and resolving conflicting claims.626 One such state was Colorado, which in

22 6 See Grimes v. Crown Life Ins. Co., 857 F.2d 699, 706-07 (10th Cir. 1988) ("(U]nder Colorado River, once a federal court has tried the case on the merits, it would be rare that the judicial resources would be conserved by abstaining on appeal."); Waldron v. McAtee, 723 F.2d 1348, 1351 (7th Cir. 1983) (finding court has the power and in the appropriate case the duty to order abstention, if necessary for the first time at the appellate level, even though no party requests it); Naylor v. Case & McGrath, Inc., 585 F.2d 557, 563 (2d Cir. 1978) (noting Colorado River abstention may be raised sua sponte); AFA Distrib. Co. v. Pearl Brewing Co., 470 F.2d 1210, 1213 (4th Cir. 1973) (noting that abstention may be raised on appeal); Urbano v. Board of Managers, 415 F.2d 247, 254 n.20 (3d Cir. 1969) (concluding abstention may be raised on appeal). 23 ' See New Mexico v. Molybdenum Corp. of Am., 570 F.2d 1364, 1367 (10th Cir. 1978). 64424 U.S. 800 (1976). "2 See id. at 804-806. 6 See id. at 804 n.2.

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1969 enacted a law dividing the state into seven Water Divisions.627 Each division encompassing one or more entire drainage basins had adjudication occurring continuously in state courts.628 Although not yet joined as a party, the United States claimed water rights in Division 7 relating to Indian reservations and other federal lands, such as national parks and forests.629 On November 14, 1972, the Government sued in federal district court in Denver, 300 miles from Division 7.630 The federal action asserted rights 6 1 under federal and state law, and was against some 1,000 water users. ' The United States had earlier adjudicated non-Indian claims and other water claims based on state law in state courts in Water Divisions 4, 5, and 6.32 This litigation continued at the time of this suit.633 A defendant in the federal suit then joined the United States in the state action in Division 7 under the McCarran Amendment.64 Several defendants and intervenors in the federal proceeding then moved to dismiss the federal action for lack of jurisdiction, citing to the McCarran Amendment.63 5 The federal district court granted the motion and dismissed on abstention grounds.66 On appeal, the Tenth Circuit Court of Appeals reversed, holding that the suit of the United States was within district court jurisdiction under 28 U.S.C. § 1345 and that abstention was inappropriate. The Supreme Court granted certiorari to consider whether the McCarran Amendment terminated jurisdiction of federal courts to adjudicate federal water rights and "whether, if that jurisdiction was not terminated, the District Court's dismissal in this case was nevertheless appropriate.637 The Court found that: (1) 28 U.S.C. § 1345 created federal

627 See id. at 804 628 See id. 629 See id. at 805. 630 See id. 63 'See id. 632See id. at 806. 633 See id. 634 See id. The McCarran Amendment (also known as the McCarran Water Rights Suit Act), consents to the United States being joined as a defendant in state or federal court "in any suit (I) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit." 43 U.S.C. § 666 (1994). 635 See Colorado River, 424 U.S. at 806. 636 See id. 637 1d.

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jurisdiction over the case; 38 (2) the state court had jurisdiction over Indian water rights under the Amendment;619 and (3) none of the federal abstention doctrines warranted dismissal.6o The Court then considered another basis for dismissal." Although this case falls within none of the abstention categories, there are principles unrelated to considerations of proper constitutional adjudication and regard for federal-state relations which govern in situations involving the contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state and federal courts. These principles rest on considerations of "[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation." Generally, as between state and federal courts, the rule is 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. . . ." As between federal district courts, however, though no precise rule has evolved, the general principle is to avoid duplicative litigation. This difference in general approach between state-federal concurrent jurisdiction and wholly federal concurrent jurisdiction stems from the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them. Given this obligation, and the absence of weightier considerations of constitutional adjudication and state- federal relations, the circumstances permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration are considerably more limited than the circumstances appropriate for abstention. The former circumstances, though exceptional, do nevertheless exist. It has been held, for example, that the court first assuming jurisdiction over property may exercise that jurisdiction to the exclusion of other courts. This has been true even where the Government was a claimant in

6 'Seeid. at 809. 639 See id. "64Seeid. at 813. 6"See id. at 817-20.

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existing state proceedings and then sought to invoke district-court jurisdiction under the jurisdictional provision antecedent to 28 U.S.C. § 1345. In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider 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. No 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. Only the clearest of justifications will warrant dismissal.-2 Applied to the facts, the Court first found an overriding federal policy in the McCarran Amendment for the avoidance of "piecemeal adjudication of water rights," which the Court likened to the first-filed rule for in rem cases. 43 Apart from federal policy and applying the eclectic multi-factor test, the Court found that: (1) the federal action had not progressed; (2) a significant interest in the underlying action existed; (3) the 300-mile distance between the District Court in Denver and the court in Division 7 was inconvenient; and (4) an ongoing participation by the United States in other water rights actions in Colorado state courts undercut the federal government's argument that it required a federal forum.64 Notably, the Court did not stay the case, as is common in some abstention doctrines, but affirmed the decision to dismiss it.64 In doing so, the Court emphasized ' that it did "not overlook the heavy obligation to exercise jurisdiction."6 From this, we have a strong presumption favoring ongoing jurisdiction in a federal case with a state parallel, but with a multi-faceted test that provides, in extraordinary circumstances, for dismissal. The decision was not easily derived, with a strong dissent by Justice Stewart with whom Justices Blackmun and Stevens joined.647 The Colorado River test is obviously derived from the factors used in dealing with intra-federal parallel actions. One important difference is the preference for dismissal

62 1d. at 817-19 (citations omitted). "3See id. at 819. 14See id. at 820. 64SSee id. at 821. 646 1d. at 819. "7 See id. at 821.

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or transfer in a pure federal conflict,S contrasted with the presumption favoring the exercise of jurisdiction in state-federal conflicts.^[6] 9 Of course, the ColoradoRiver opinion was not the first approach to this problem6s 0 and understanding the current doctrine requires a brief look at Colorado River's forebears. Most prominent is Brillhart v. Excess InsuranceCo., in which the Supreme Court dismissed a federal declaratory judgment action paralleling a state action on the grounds that a district court is "under no compulsion" to exercise jurisdiction that overlaps a pending state action.^[5] This "under no compulsion" standard was

6"See Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183 (1952). ""See Colorado River, 424 U.S. at 817, 820. But see Wilton v. Seven Falls Co., 515 U.S. 277, 279 (1995) (discussed infra at Part V.C. l.a). 0 1SIllinois federal court had a distinct approach prior to Colorado River, applying an Illinois statute that permitted involuntary dismissal where "there is another action pending between the same parties for the same cause." 735 ILL. COMP. STAT. 5/2-619(a)(3) (West 1992). See, e.g., Seaboard Fin. Co. v. Davis, 276 F. Supp. 507, 518 (N.D. Ill. 1967). Even though the Illinois statute would seem procedural and therefore inappropriate in federal court, the practice was arguably justified under the Erie Doctrine since federal law was relatively undeveloped at the time and no direct conflict existed. Later federal cases have rejected its use, in part because of the body of law developed under ColoradoRiver. See Basic v. Fitzroy Engineering, Ltd., 949 F. Supp. 1333, 1336 (N.D. 11. 1996); W.E. O'Neil Const. Co. v. National Union Fire Ins. Co., 721 F. Supp. 984, 990 (N.D. 11. 1989). 61 316 U.S. 491, 494 (1942). PPG Indus., Inc. v. Continental Oil Co. depicts the Brillhart- based standard prior to Colorado River for dealing with second-filed federal actions that duplicated state lawsuits. 478 F.2d 674 (5th Cir. 1973). In that case, the Fifth Circuit stayed a Louisiana diversity action regarding a gas sale contract that paralleled an action in Texas state district court in Harris County. See id. at 697. The court found that federal case law "made manifest a policy against dual litigation which applies with equal force to declaratory actions and ordinary equity suits." Id. at 679 (providing for "discretionary power in the federal courts to stay proceedings in equity suits" in reliance on Brillhart. In PPG,the decision was simplified by two factors. First, both actions were in rem, qualifying for an almost mandated stay of the second- filed action under the Princess Lida doctrine. See supra Part I.D. Second, this parallelism was not the first in the dispute. Prior to filing the federal diversity action in Louisiana, which the Fifth Circuit later stayed, PPG Industries had filed a duplicative action in Louisiana state court that, because of the in rem issues, led to the Texas state court's issuing an antisuit injunction against PPG, which effectively ended the Louisiana state case. See PPG Indus., Inc. v. Continental Oil Co., 492 S.W.2d 297, 301 (Tex. Civ. App.-Houston [lst Dist.] 1973, writ ref'd n.r.e.). When PPG then filed the same action in a Louisiana federal court, Conoco could not use the Texas state court to enjoin that action. See Donovan v. City of Dallas, 377 U.S. 408 (1964) (discussed infra at Part VI.B.^[3]). Accordingly, Conoco had to ask the federal court to stay its own action. See Continental,492 S.W.2d at 305. The standards cited in PPG Industries for dealing with parallel state-federal litigation resemble those in Colorado River, with the significant difference of lacking a strong presumption favoring the continuation of both parallel actions to judgment.

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seemingly overruled by ColoradoRiver's "unflagging obligation" standard for jurisdiction, but two years after ColoradoRiver, the Court resuscitated Brillhart in greatly expanding Colorado River-type abstention in Will v. Calvert FireInsurance Co. 52 Will was a second-filed federal declaratory judgment action, seeking to litigate a securities claim that was an affirmative defense in a state court action.653 Four justices relied on ' Brillhart's "no compulsion standard,"654 and Justice Blackmun concurred based on ColoradoRiver's "exceptional circumstances" test, believing that the facts overcame the strong presumption favoring jurisdiction.615 The four dissenters agreed that Colorado River governed, and that exceptional circumstances were not present.65 6 Will thus appeared to greatly relax the federal standard for staying or dismissing a federal case paralleling a state case, although the expanded standard was limited on its facts to federal declaratory judgment actions. a. Moses Cone and Wilton Refine the Test Moses H. Cone Memorial Hospital v. Mercury Construction Corp. retreated from and distinguished Will more narrowly defining the concept of abstention in duplicative state-federal litigation.61 In the initial state court action, the plaintiff, Moses Cone Hospital, sought declaratory relief to avoid arbitration in a dispute with a builder and architect.68 Mercury Construction then filed a federal diversity action to compel arbitration under the Federal Arbitration Act.69 The federal district court stayed its action in deference to the prior state litigation, citing ColoradoRiver, and the court of appeals reversed, finding Colorado River abstention inappropriate. 660 The Supreme Court upheld the appellate court, underscoring the point that parallel litigation was not per se inappropriate and that Colorado River abstention required exceptional circumstances missing in this dispute.661 federal court action was vexatious or filed in bad faith.^[6] Although the first four factors are treated as primary considerations, the language in both Colorado River and Moses Cone suggests that none has priority, 6 that any one factor might stand out in a given case,66 and that there is a need for case-specific balancing rather than using the factors as a checklist.6s Moses Cone expressly avoids any decision as to whether a stay or dismissal "should ordinarily be the preferred course of action" when Colorado River abstention is appropriate, but notes that both are refusals to exercise jurisdiction.669 Presumably, then, the district court would select the appropriate remedy for the case-stays where the court has reason to retain the case and dismissals otherwise. Several federal actions have now opted for a stay. ^[1] Wilton v. Seven Falls Co. clarified the confusion surrounding the Colorado River/Moses Cone standard, under which federal courts must exercise jurisdiction except in exceptional circumstances, and Brillhart/Will, which endorsed a broad discretionary standard without

"'2 See id. at 19-28. 'See id. at 15 (quoting Colorado River v.United States, 424 U.S. 800, 818 (1976)). 'Colorado River, 424 U.S. at 820 (providing factors 1-4 and 7); see Moses Cone, 460 U.S. at 21-26 (providing factors 5 and 6). "1460 U.S. at 17 n.20. '" See id. at 15 (stating they are merely "some of the factors"). "7See id. at 16; ColoradoRiver, 424 U.S. at 818-19. "'See Moses Cone, 460 U.S. at 15-16. " 91d. at 28. 670 See, e.g., Trent v. Dial Medical of Florida, Inc., 33 F.3d 217 (3d Cir. 1994); LaDuke v. Burlington Northern R.R. Co., 879 F.2d 1556 (7th Cir. 1989); Allen v. Louisiana State Bd. of Dentistry, 835 F.2d 100 (5th Cir. 1988); Lumen Const., Inc. v. Brant Const. Co., 780 F.2d 691 (7th Cir. 1986). See also 17A WRIGHT ET AL., supra note 619, § 4247 n.83.

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Colorado River's balancing test.- Upholding the stay of an insurer's federal declaratory judgment action, Wilton held that Brillhartis valid, but limited to staying federal declaratory judgment actions that parallel state actions.612 From these cases, it appears that a federal court may: (1) apply the Brillhart/Will standard to stay a federal declaratory judgment action that parallels a state action; or (2) apply the more rigorous Colorado River/Moses Cone balancing test to stay or dismiss a federal action, whether it seeks declaratory relief or not. Having stated the current Colorado River doctrine, other issues are ongoing. For example, when are actions parallel enough? In Exxon Corp. v. St. Paul Fire and Marine Insurance Co., the court refused to stay the federal action because it was not sufficiently similar to the related state case.^[6] 74 The court identified the necessary similarity as involving "the same parties and the same issues," and noted that in the instant case, the state court proceeding did not have the same precise claims before it.675 Another issue, in light of the number of Colorado River abstentions granted, is how difficult the standard is in practice, that is, how often is the doctrine declined? As discussed above, the ColoradoRiver standard is a difficult one; cases are rejected, although if the standard were as tough as its rhetoric sounds, more cases would be refused. Tucker v. First Maryland Savings & Loan, Inc., is one example of a strict application of Colorado River's "'virtually unflagging obligation' to exercise jurisdiction.."676

671515 U.S. 277 (1995). 672 1d. at 289. For an example of a denial of a stay motion under Wilton, see Exxon Corp. v. St. Paul Fire and Marine Insurance Co., 129 F.3d 781 (5th Cir. 1997). 673 For examples of stays, rather than dismissals, granted under Colorado River, see Lumen Construction, Inc. v. Brant Conststruction Co., 780 F.2d 691, 698 (7th Cir. 1985); Garber v. Sir Speedy, Inc., 930 F. Supp. 267, 271 (N.D. Tex. 1995), aff'd, 91 F.3d 137 (5th Cir. 1996); Morisada Corp. v. Beidas, 939 F. Supp. 732, 741 (D. Haw. 1995). 674129 F.3d 781, 788 (5th Cir. 1997). For additional cases discussing the necessary degree of parallelism, see Ryan v. Johnson, 115 F.3d 193, 196 (3d Cir. 1997); Trent v. Dial Medical of Florida, Inc., 33 F.3d 217, 223-24 (3d Cir. 1994); Schneider National Carriers Inc. v. Carr, 903 F.2d 1154, 1156 (7th Cir. 1990). 67 5 Exxon Corp., 129 F.3d at 785. 676942 F.2d 1401, 1407 (9th Cir. 1991) (quoting Colorado River Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)); see also Ryan v. Johnson, 115 F.3d 193 (3d Cir. 1997) (reversing the trial court's dismissal under Colorado River); St. Paul Insur. Co. v. Trejo, 39 F.3d 585, 591 (5th Cir. 1994) (reversing the trial court's dismissal under Colorado River); Bums v. Watler, 931 F.2d 140, 147-48 (lst Cir. 1991) (reversing the district court's stay); In re Chicago Flood Litigation, 819 P. Supp. 762, 767 (N.D. III. 1993) (denying abstention in damage suit for river flooded downtown tunnel); National Union Fire Ins. Co. v. Texaco Ref. & Mktg., Inc., 803

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When the doctrine is declined, which standard of review is appropriate? The abstention doctrines are discretionary, but some exercises of discretion are greater than others. In Doctor'sAssociates., Inc. v. Distajo, the Second Circuit affirmed the district court's refusal to abstain in an action to compel arbitration and enjoin numerous state court actions by Subway restaurant franchisees.^[6] 77 The court noted that the standard of review for declining abstention was less rigorous than for exercising abstention.617 b. Other Federal Tests for State-FederalParallels Apart from reliance on Brillhart or ColoradoRiver, a distinct approach to dealing with federal declaratory judgment actions that parallel state actions is to highlight the Declaratory Judgment Act's discretionary nature. In Travelers Insurance Co. v. LouisianaFarm Bureau FederationInc., the Fifth Circuit held that a federal court has discretion to adjudicate or dismiss a declaratory judgment action under factors that include, but are not limited to, (1) whether there is a pending state action in which all of the matters in controversy may be fully litigated, (2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the defendant, (3) whether the plaintiff engaged in forum shopping in bringing the [federal] suit, (4) whether possible inequities in allowing the declaratory plaintiff to gain precedence in time or to change forums exist, (5) whether the federal court is a convenient forum for the parties and witnesses, and (6) whether retaining the lawsuit in federal court would serve the purposes ofjudicial economy. Some federal courts have continued to use the first-filed rule in federal- state parallel actions without referring to Colorado River or any of the other cases discussed above.610 This statement is especially true of in rem cases. As in other settings, the Princess Lida rule giving absolute priority to the first filed in rem case applies here:

F. Supp. 1247, 1251 (S.D. Tex. 1992) (a thorough application of Colorado River/Moses Cone factors, denying motion to dismiss first-filed federal claim in favor of parallel state action). 677107 F.3d 126, 136-38, 139 (2d Cir. 1997). 678 See id. at 138. 679996 F.2d 774, 778 (5th Cir. 1993) (citations omitted). 680 See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675 F.2d 1169, 1173 (11 th Cir. 1982); Commercial Union Ins. Cos. v. Torbaty, 955 F. Supp. 1162, 1163 n.1 (E.D. Mo. 1997) (denying dismissal of second-filed federal case because of plaintiff's bad faith conduct).

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To avoid unseemly and disastrous conflicts in the administration of our dual judicial system, and to protect the judicial processes of the court first assuming jurisdiction, the principle, applicable to both federal and state courts, is established that the court first assuming [in rem] jurisdiction over the property may maintain and exercise that jurisdiction to the exclusion of the other.",

2. Dismissals or Stays Based on Federalism-The Other Abstention Doctrines While state-federal parallel litigation is best addressed by Colorado River abstention and its derivatives, the other federal abstention doctrines may be useful to parties who: (1) wish to reinforce a Colorado River argument; or (2) were contemplating a state court action when the opponents filed a federal case first and otherwise meet certain requirements discussed below. These other doctrines have vague boundaries that have prompted calls for a more comprehensive and succinct statement of this important federalism concept. 682 While Pullman is thought of as authorizing a stay and Burford a dismissal, these are not necessarily rigid. Dismissals have been granted in Pullman abstentions, '6 3 as stays have in Burford abstentions.84 a. Pullman Abstention-UnclearState Law with ConstitutionalImplications The Pullman abstention doctrine comes from Railroad Commission of Texas v. Pullman Co., which began with an administrative ruling from the Texas Railroad Commission that "no sleeping car shall be operated on any 61'United States v. $270,000 in United States Currency, Plus Interest, I F.3d 1146, 1147-48 (IIth Cir. 1993) (quoting Penn Gen. Casualty Co. v. Commonwealth, 294 U.S. 189, 195 (1935)); see also Cassity v. Pitts, 995 F.2d 1009, 1012 (10th Cir. 1993) (citing Princess Lida v. Thompson, 305 U.S. 456, 466 (1939)); Scarabin v. Drug Enforcement Admin., 966 F.2d 989, 995 (5th Cir. 1992) (finding that an initial state action regarding the forfeiture of alleged drug proceeds had priority over the federal agency's subsequent actions in federal court). 2 68 See generally 17A WRIGHT ET AL., supra note 619, § 4241, at 28; BT Inv. Mgrs., Inc., v. Lewis, 559 F.2d 950 (5th Cir. 1977). 683See Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 383-84 (1949); Roe v. Rampton, 535 F.2d 1219, 1221 (10th Cir. 1976); Henson v. Atchley, 453 F. Supp. 555, 556 (E.D. Tenn. 1978). 6"4See Ankenbrandt v. Richards, 504 U.S. 689, 706 n.8 (1992); Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S. 593, 594 (1968) (per curiam); Feige v. Sechrest, 90 F.3d 846, 851 (3d Cir. 1996); see also 17A WRIGHT ET AL, supra note 619, § § 4243, 4245.

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line of railroad in the State of Texas ... unless such cars are continuously in the charge of an employee ... having the rank and position of Pullman conductor."6s' The order had been requested by Pullman conductors who disagreed with the decision by the Railroad Commission to require a conductor on trains having only one Pullman sleeping car. ^[6] 6 These cars would have otherwise been left in the charge of one Pullman porter.687 The conductors were white and the porters were black, so the railroads, no doubt, had a purely economic motive in keeping the lower paid porters.^[6] The Pullman Company and the railroads sued in federal court to enjoin the Commission's order.689 The Pullman porters were allowed to intervene as complainants, and the Pullman conductors intervened in support of the order.690 Plaintiffs argued that the Commission's order violated both Texas law and the federal Constitution.691 The Commission's decision was based on a Texas statute that charged it with general regulatory oversight, although nothing in the statute addressed this particular issue.692 Because the underlying Texas statute was ambiguous on this point and because the Commission's order had not been reviewed for its conformity to Texas law, the Supreme Court ordered the federal district court to defer further adjudication pending a state court review of the matter "to be brought with reasonable promptness.693 The Supreme Court reasoned that if the Texas court found the Commission's order to be a violation of Texas law, then the federal constitutional issue would be moot, and if the Texas court upheld the order, then the federal court could adjudicate the constitutional issues.694 From this comes the doctrine that federal courts should defer, or stay, litigation regarding constitutional challenges to unresolved issues of ambiguous state law, where the state's resolution of the question might moot the constitutional issue. The test for Pullman abstention, that is, how to recognize an appropriate abstention setting is as vague as the state statutes it protects from premature constitutional scrutiny. Pullman clearly, requires: (1) a vague

685312 U.S. 496, 497-98 (1941). 686 See id. at 498. 687 See id. 688 See id. at 497. 6"gSee id. at 498. 69°See id. 691See id. 692See id. at 498-99. 693 1d. at 501-02. 694 See id. at 501.

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or ambiguous question of state law that is one of first impression in that state's courts and under attack on constitutional grounds; and (2) a reasonable possibility that the state court's construction of the question will avoid the need for federal constitutional review, or at least materially change the inquiry.695 Beyond that, the Supreme Court has not provided a clear test for the variety of fact settings that come under Pullman scrutiny. Various circuits have developed their own tests. The Second Circuit has a three-part test for Pullman abstention: (1) unclear state law; (2) a constitutional issue based on the construction of the unclear state law; and (3) the unclear state law susceptible to a reasonable interpretation that would avoid the constitutional issue.696 The Third Circuit also has a three part test, with the first two elements embracing the Cuomo test, and a third directed to "state interest": (1) unclear state law underlying federal constitutional claims; (2) subject to state court interpretation that would obviate the need for, or substantially narrow the scope of, federal adjudication; and (3) where an erroneous federal court decision on state law would disrupt important state policies.697 The Ninth and Tenth Circuits' test mirrors that of the Third Circuit: (1) uncertain state law; (2) for which a definitive ruling would obviate the need for constitutional adjudication in the federal court; and (3) which touches on a sensitive area of state social policy.698 The Fifth Circuit also adopted a three-part test that was used in three cases from 1980 to 1984, but it was an erroneous statement of Pullman precedentsY.69 High 01' Times, Inc. v. Busbee, held that Pullman abstention is appropriate if any one of the following, factors is present: (1) if the "disposition of a question of state law can eliminate or narrow the scope of the federal constitutional issue"; (2) if the "state law question presents difficult, obscure or unclear issues of state law"; or (3) if "a federal decision could later conflict with subsequent state court resolutions

695 See Bellotti v. Baird, 428 U.S. 132, 147 (1976); Baggett v. Bullitt, 377 U.S. 360, 375-77 (1964). 6 "See United Fence & Guard Rail Corp. v. Cuomo, 878 F.2d 588, 594 (2d Cir. 1989). 697 See Presbytery of New Jersey of the Orthodox Presbyterian Church v. Whitman, 99 F.3d 101, 106 (3d Cir. 1996). 69 See Cedar Shake & Shingle Bureau v. City of Los Angeles, 997 F.2d 620, 622 (9th Cir. 1993); Lehman v. City of Louisville, 967 F.2d 1474, 1478 (10th Cir. 1992). 699 See Mireles v. Crosby County, 724 F.2d 431, 433 (5th Cir. 1984); Pietzsch v. Mattox, 719 F.2d 129, 131 (5th Cir. 1983); High 01' Times' Inc. v. Busbee, 621 F.2d 135, 139-40 (5th Cir. 1980); Note, Pullman Abstention: Reconsidering the Boundaries 59 TEMPLE L. Q. 1243, 1255- 57 (1986).

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concerning the same regulatory program or scheme, thus engendering more confusion."700 A better statement of Fifth Circuit law is found in BT Investment Managers,Inc. v. Lewis, which states that the Pullman case "teaches that in certain federal constitutional challenges to state statutes a federal district court should exercise its discretion01 to stay its action pending interpretation of the challenged statute by the courts of the enacting state and thereby avoid an unnecessary federal constitutional decision," based on the doctrines of comity and federalism. 7 2 This somewhat broader test mirrors the Supreme Court's reluctance to define the Pullman doctrine in terms of distinct elements. This broader definition, however, narrows in two later cases. Nissan Motor Corp. in U.S.A. v. Harding held that "a federal court must find that the case presents a difficult, obscure, or unsettled issue of state law, the resolution of which could eliminate or substantially narrow the scope of the federal constitutional issue.."703 Then in 1993, Word of Faith World Outreach Center Church, Inc. v. Morales, held that "Pullman abstention ... is addressed to the inappropriateness of federal court resolution of difficult or unsettled questions of state law and the undesirability of reaching constitutional questions that might be mooted by the application of state law." 704 Again in 1995, the Fifth Circuit deemed Pullman "appropriate only when there is an issue of uncertain state law that is 'fairly subject to an interpretation [by a state court] which will

"°621 F.2d at 139; see also Pietzch, 719 F.2d at 131; Mireles, 724 F.2d at 433. The third factor seems to invoke Burford abstention concepts. See infra Part V. C. ^[2]. b. During the 1980s, the Fifth Circuit issued at least one Pullman ruling without applying anything more than a basic definition. See O'Hair v. Hill, 641 F.2d 307, 310 (5th Cir. 1981). In O'Hair v. Hill, the plaintiff Madalyn Murray O'Hair filed a federal action asking for an injunction against the continued prosecution of four civil suits in Texas state courts, on the grounds that under Texas law, prospective jurors would be asked to "acknowledge the existence of a Supreme Being." Id. The Fifth Circuit upheld the lower court's denial, citing Pullman, to which the court referred to as mandating the "avoidance of a decision which would be based upon a tentative interpretation of state law." Id. 701 559 F.2d 950 (5th Cir. 1997). Pullman's discretionary nature is another unresolved issue, or at least one at variance. The Supreme Court has held that Pullman abstention was a matter of law. See, e.g. City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 640 (1959). The Court has also held that it was discretionary. See Baggett v. Bullitt, 377 U.S. 360, 375 (1964). The Fifth Circuit deems it discretionary as well. See Louisiana Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1491 (5th Cir. 1995). See also 17A WRIGHT ET AL., supra note 619, § 4241, 8 n.l1. 702 Lewis, 559 F.2d at 953. 703739 F.2d 1005, 1008 (5th Cir. 1984). 7-986 F.2d 962, 967 (5th Cir. 1993).

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render unnecessary or substantially modify the federal constitutional question.' '"705 The Fifth Circuit would seem, then, to have a two part test: (1) a constitutional challenge to a difficult, obscure, or unsettled question of state law; (2) whose resolution may eliminate or substantially narrow the scope of the federal constitutional issue. Other circuits seem to act as the Fifth, citing broader and more general descriptions of the Pullman doctrine and declining consistent distinct-element tests.Y0 The Pullman doctrine has seen cyclical use in the Supreme Court, and, to a large extent, the doctrine has been supplanted by the time and cost- saving practice of certifying unresolved questions of state law to state supreme courts.707 This shift in.favor of utilizing certified questions applies mostly to cases with no parallel lawsuit. Pullman abstention remains appropriate for staying a federal case involving a novel question of the constitutionality of state law where the same issue is being litigated in a parallel state case. To the extent that Pullman cases arise, one recurring question is the degree of uncertainty or ambiguity required for abstention. Baggett v. Bullitt held that mere constitutional challenges to state law does not call for abstention unless there is a substantial likelihood that the state court's ruling will avoid the need for a federal constitutional review.701 In so holding, Baggett distinguished between two categories of statutory vagueness: (1) vagueness as to whom the statute applies, which is grounds for abstention; and (2) vagueness as to conduct required by the statute, which is not grounds for abstention.9 This requirement may be better illustrated in cases rejecting Pullman abstention for lack of ambiguity. In HawaiiHousing Authority v. Midkiff, the Court found that a state law that condemned privately held property in an effort to redistribute land ownership was not subject to Pullman

7 °Baran v. Port of Beaumont Navigation Dist., 57 F.3d 436, 442 (5th Cir. 1995) (quoting Louisiana Debating and Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1492 (5th Cir. 1995) (quoting Harman v. Forssenius, 380 U.S. 528, 534-35 (1965)). 7 °6See generally 17A WRIGHT ET AL., supra note 619, §§ 4242-4243 (2d ed. 1988) (giving examples of the various interpretations of the Pullman doctrine by the circuits). 77 ° See Arizonans for Official English v. Arizona, 520 U.S. 43, 76 (1997); see generally 17A WRIGHT ET AL., supra note 619, §§ 4242-4243 (2d ed. 1988) (discussing the Pullman abstention doctrine and state certification procedures). 708377 U.S. 360, 376 n.12 (1964); see also Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 306 (1979) (holding that the state law must be "fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question" to justify abstention.) (quoting harman v. Forssenius, 380 U.S. 528, 535 (1965)). 7 "See id. at 375-78; see also, Procunier v. Martinez, 416 U.S. 396, 401 & n.5 (1974).

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abstention because the state law was clear on its face, even though the Hawaii courts had not had an opportunity to review it.71o Similarly, City of Houston v. Hill held that when a statute is not ambiguous, the federal courts do not need to abstain even if the state courts have never interpreted the statute.7 1 The Court has also held that the availability of certification to the state supreme court is not by itself sufficient to justify abstention?.1 Where ambiguity does exist, it may be appropriate to resort to state court if two other important issues emerge regarding the need for, or viability of, a parallel case. First, state court resolution of ambiguous questions is not an exhaustion of the remedies requirement. 7 3 The second issue is the problem of delay seriously harming constitutional rights. Where awaiting the state court resolution will seriously harm constitutional rights, the court may refuse otherwise appropriate abstention.714 These rulings provide guidance not only to the federal court ruling on a Pullman motion, but for parties contemplating a parallel state action and state courts ruling on the appropriateness of a stay there. Although Pullman may be applicable without parallel state and federal cases (where only a federal case has been filed), it is applicable in parallel cases.71 5 In fact, the Supreme Court has emphasized that a pending state court action makes Pullman abstention more likely.7'6 In Employers Association, Inc. v. United Steelworkers of America, the Eighth Circuit withdrew its opinion when it learned that the Minnesota Supreme Court

7'467 U.S. 229, 236-37 (1984). 7t"482 U.S. 451, 468-69 (1987); see also Wisconsin v. Constantineau, 400 U.S. 433,438-39 (1971); Peyote Way Church of God, Inc. v. Smith, 742 F.2d 193, 199 (5th Cir. 1984); Johnson v. American Credit Co. of Georgia, 581 F.2d 526, 529-30. 7 2 1 See Hill, 482 U.S. at 470. 7"See Constantineau, 400 U.S. at 433. At issue in this case was the constitutionality of a Wisconsin statute permitting a police chief to post a person's picture in liquor stores to prohibit his purchase of alcohol for one year. See id. at 434-35. Three dissenting justices viewed this as appropriate for Pullman abstention to give Wisconsin courts a chance to review it under Wisconsin's due process clause, which was identical to the federal clause. The majority disagreed, holding that Pullman abstention was not appropriate merely to give a state court the chance to declare the state statute unconstitutional. See id. at 439. The Court reasoned that such a requirement would undermine the federal courts' role as the constitutional watchdog. 7 4 "See Nissan Motor Corp. v. Harding, 739 F.2d 1005, 1011 (5th Cir. 1984); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 628 (1974). 7 "See Word of Faith World Outreach Center Church, Inc. v. Morales, 986 F.2d 962, 969 n.l 1 (5th Cir. 1993). 716 See Arizonans for Official English v. Arizona, 520 U.S. 43, 79-80 (1997); see also Morales, 986 F.2d at 969 n.12.

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had already issued an opinion on state law." The state opinion did not eliminate the constitutional question, and the federal court ruled that it would hold the case on its docket pending the United States Supreme Court's review of the certiorari petition.,s The federal court stated that it 71 9 would consider the merits of the constitutional claim later, if necessary. b. Burford Abstention--Avoiding Conflict With Complex State Regulatory Systems The Burford abstention doctrine, from Burford v. Sun Oil Co., requires dismissal of federal actions involving questions governed by a complex state regulatory scheme that raises a constitutional issue.720 The case involved the Texas Railroad Commission's regulation of drilling permits.71 Sun Oil filed suit in federal court challenging the validity of the Commission's decision granting Burford permission to drill four oil wells on a small plot of land in an East Texas oil field.722 The action was based both on diversity of citizenship and Sun Oil's due process claim.723 If Sun Oil had sought judicial review within the Texas courts, it would have been required to file its claim in the courts of Travis County, the location of the state capitol724 As do many states, Texas had created a centralized judicial review system for complex regulatory areas, such as oil and gas. 725 This judicial review system was designed to enhance judicial expertise in Travis County regarding oil and gas regulation.76 Moreover, oil and gas fields require regulation as a single unit, necessitating a consistency in judicial review that was provided by the centralized appeal process.7 27 To allow federal court review of the Commission's orders would disrupt this centralized process. 72 Accordingly, the Supreme Court upheld the District Court's dismissal of the action, resulting in a doctrine that federal courts should completely abstain by dismissal from interference with complex

71723 F.3d 214, 215 (8th Cir. 1994). 71 See id. 719 See id. 720319 U.S. 315, 331-334 (1943). 72 1 See id. at 317. 722 See id. 723 See id. 24 7 See id. at 326. 725See id. 726 See id. at 327. 727 See id. at 333-34. 72 'See id. at 332.

1999] PARALLEL LITIGATION state regulatory schemes that would disrupt state efforts to establish a coherent policy with respect to a matter of substantial public concern. In New Orleans PublicService, Inc. v. Council of New Orleans, Justice Scalia summarized the Burford doctrine: Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar"; [sic] or (2) where the ''exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of ' 71 substantial public concern." 0 Quackenbush v. Allstate Insurance Co., clarified Burford's test, describing it as balancing the federal interest in retaining jurisdiction against the "concern for the 'independence of state action,"' which, it ' But as with Pullman abstention, noted, "only rarely favors abstention."71 the Court has been reluctant to offer a test with distinct elements, cautioning that there is no "formulaic test for determining when dismissal under Burford is appropriate."3 Quackenbush also emphasized that Burford abstention is not limited to equity cases, but instead applies to "all cases in which a federal court is asked to provide some form of discretionary relief."' 7 1 The Court added that in this damages action, which is neither equitable nor discretionary, a stay might have been more appropriate than dismissal.714 A Burford abstention resulting in remand to state court is immediately appealable under both 28 U.S.C. § 1291 and the collateral order doctrine of Cohen v. Beneficial IndustrialLoan Corp.75 Until Quackenbush, the Fifth Circuit based Burford abstention on two distinct situations, either of which justifies abstention:

729 See id. at 332-34. 730491 U.S. 350, 361 (1989) (quoting Colorado River water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976)). 711517 U.S. 706, 728 (1996) (quoting Burford, 319 U.S. at 334). 73 1d. at 727. 3 7 Id. at 730. 734 See id. at 730-31. 735337 U.S. 541, 545-547 (1949).

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(1) when there are "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar"or (2) where the "exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a ' matter of substantial public concern."736 The Fifth Circuit appears to have abandoned those standards because of Quackenbush's "no formulaic test" language. 17 With Quackenbush's caveat in mind, an attempted synthesis is: Burford abstention requires that federal courts abstain from diversity jurisdiction in matters where a state has a unified scheme for review of its administrative order, and federal adjudication would be disruptive of the state's efforts to establish consistent and coherent policy in matters of substantial public concern. 7 38 The balancing of federal and state interests should only rarely result in abstention. When it does, dismissal is appropriate in equity cases and matters of discretion, while damages actions require stays. Unlike Pullman, Burford does not necessarily require an unclear or ambiguous state law.^[1] Although Burford does not M pending (not necessarily parallel) state case. ^[1]

742320 U.S. 228, 234 (1943). 743 Louisiana Power & Light Co. v. City of Thiboaux, 360 U.S. 25 (1959). 744 County of Allegheny v. Frank Mashuda Co., 360 U.S. 185 (1959). 745360 U.S. 25, 25-26 (1959). 746 See id. at 25-3 1. 747360 U.S. 185, 191-96 (1959). 74 See id at 196. 749 See Thibodeaux, 360 U.S. at 30. 750420 U.S. 77, 83-84 (1975); see also United Servs. Life Ins. Co. v. Delaney, 328 F.2d 483, 489 (5th Cir. 1964). "'See McNeese v. Board of Educ. for Community Unit Sch. Dist. No. 187, 373 U.S. 668, 671-73 & n.5 (1963); Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 816(1976). 72 See Lehman Bros. v. Schein, 416 U.S. 386, 391-92 (1974). 75'See Federated Rural Elec. Ins. Corp. v. Arkansas Elec. Coops., Inc., 48 F.3d 294, 299 (8th Cir. 1995) (cited at 17A WRIGHT ET AL, supra note 619, § 4246 n.3 (2d ed. Supp. 1998)).

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But Thibodaux may have a special purpose in parallel litigation. Although Thibodeaux's use may have been minimized by the Supreme Court allowing certification of unclear state law questions to that state's supreme court, that procedure is very likely undermined where a state court action is pending. Thibodeaux abstention would seem ideal to permit the state judiciary to answer the question. That answer would preclude further federal inquiry if all claims were resolved in the state court action. But where claims remained in the federal action, the state court answer would then permit the resumption of federal litigation, under the same circumstances as having a certified question answered. While Colorado River may also apply here, the Thibodaux doctrine has fewer elements and perhaps a lesser presumption for continuing the federal litigation. ^[3]. Abstention Procedure: Reserving Rights to a Federal Forum In England v. LouisianaState Board of Medical Examiners,5 4 the Court clarified the means of ensuring access to federal court when faced with abstention. The Supreme Court held that if a party is required to seek a ruling from a state court, the party may either submit all issues to the state court (which would very likely resolve the case under preclusion principles) or make a reservation of the federal issues. The reservation is made by notifying the state court that it is including the federal issues only as a matter of information and that it reserves their resolution for the federal court.7 5 The holding was rendered in a Pullman-type case, but should apply to any exercise of abstention by stay or deferral. Babbitt v. United Farm Workers National Union added to this protection by providing that in cases where enforcement of state law during abstention will cause serious harm to the federal plaintiff, the federal court may provide appropriate interim relief to protect the plaintiff until the case is either resolved in the state court or reactivated in federal court. Texas federal courts have a special procedure on this point. Texas law bars advisory opinions, and this bar is implicated when a federal court retains jurisdiction, even over nothing more than the federal claims. ^[1] Because of this, the Fifth Circuit practice is to dismiss the federal case without prejudice rather than staying it.711

754375 U.S. 411 (1964). 755 See id. at 418-22. 756442 U.S. 289, 312 n.18 (1979). 7 7 1 See United Servs. Life Ins. Co. v. Delaney, 396 S.W.2d 855, 863-64 (Tex. 1965). 75 S5ee Harris County Comm'r Court v. Moore, 420 U.S. 77, 88-89 & n.14 (1975).

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In contrast, the Eighth Circuit provides for stays. Employers Association, Inc. v. United Steelworkers of America, concerned Minnesota's attempt to enforce a state law prohibiting employers from hiring permanent replacements for striking workers, and Employers attempt to enjoin its enforcement by federal injunction. 719 The federal district court had ruled that the National Labor Relations Act preempted the state law. 760 The Eighth Circuit then stayed that ruling pending the Minnesota Supreme Court's ruling on the state law.61 Two months later, the Eighth Circuit withdrew the stay upon learning that the Minnesota Supreme Court had already issued its opinion.76 The state opinion did not eliminate the constitutional question, and the federal court ruled that it would hold the case on its docket pending the United States Supreme Court's review of the certiorari petition. Then, if necessary, the federal court would litigate the merits of the constitutional claim.76 Apparently the certiorari petition was never filed, and the Eighth Circuit upheld the original federal district court ruling that federal law preempted the Minnesota labor law.7"

D. Enjoiningthe State Action Antisuit injunctions against parallel litigation can be effective, but it can also be the most difficult remedy to obtain. In any setting a domestic or international movant must meet rigid standards to persuade the court to enjoin an action in another court. The highest hurdles, however, are found in the federal-state setting where a movant must meet not only comity standards, but narrow federalism standards as well.765, Attorneys seeking the help of federal courts to delay or stop pending state court litigation must clear two significant hurdles." The Younger/Pennzoil doctrine is equitable and is basically nothing more than a rigid application of the equity test for injunctive relief, which requires that the party show: (1) irreparable harm, and (2) no adequate remedy at law in the state court

71919 F.3d 405, 405-06 (8th Cir. 1994), withdrawn, 23 F.3d 214 (8th Cir. 1994). 7 6"See id. at 406. 76 'See id. at 408. 762 Employers Ass'n, Inc. v. United Steelworkers of America, 23 F.3d 214, 215 (8th Cir. 1994). 76323 F.3d at 215. 7"See id. 76 'See Younger v. Harris, 401 U.S. 37, 44 (1971). 7 "See First Alabama Bank of Montgomery v. Parsons Steel, Inc., 825 F.2d 1475, 1482-83 (11th Cir. 1987).

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action.167 The other hurdle is statutory: the Anti-Injunction Act,76 8 the Tax Injunction Act,6 9 and the Johnson Act.70 Although these separate grounds may at times seem to interact or overlap, they are distinct barriers that must be satisfied independently before a federal court may enjoin state court litigation.7' Before examining the limitations on federal antisuit injunctions against state litigation, an examination of the authority for those injunctions is 77 2 helpful. Congress provided such authority through the All Writs Act. The Act is a jurisdictional grant for injunctions against potential, but not pending state court actions under the same grounds as the "in aid of jurisdiction" exception to the Anti-Injunction Act. "3 It reads: (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.77 As stated, these two requirements apply only to pending state litigation; federal courts may enjoin future state court litigationwithout clearing these hurdles.77 1. The Younger/Pennzoil Doctrine and Equitable Abstention

a. The Younger and Pennzoil Cases Equitable abstention began with Younger v. Harris, 77 dictating that a federal court may not enjoin a pending state criminal proceeding absent a showing of (1) bad faith, (2) irreparable harm, and (3) no adequate remedy

7 67 1 See Pennzoil Co. v. Texaco, Inc., 481 U.S. ^[1], 10 (1987). 7 68 See 28 U.S.C.A. § 2283 (West 1994). 76 aSee id. § 1341 (West 1993). 77 0 See 28 U.S.C.A. § 1342 (West 1993). 771 See First Alabama Bank of Montgomery v. Parsons Steel, Inc., 825 F.2d at 1483 (stating the fact that because an injunction fits an exception to the Anti-Injunction Act does not mean the court should not also consider appropriateness under principles of Younger). 772See 28 U.S.C. § 1651 (1994). '7 See id. 774 1d. 775 See Dombrowski v. Pfister, 380 U.S. 479, 484 n.2 (1965). 776401 U.S. 37, 43-49 (1971).

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at law. Younger's earliest progeny highlighted three fact settings that implicate all three elements: an inadequate state forum,'" bad faith state prosecutions, 778 and patently unconstitutional state laws.779 From these criminal and quasi-criminal cases, the Younger Doctrine leapt into civil proceedings with Pennzoil v. Texaco, which extended Younger to civil cases involving important state interests. 10 In the Pennzoil case, the plaintiff had negotiated an agreement to purchase about three-sevenths of Getty Oil's outstanding shares for $110 a share.71 Late into the transaction, Texaco paid $128 a share and stepped into Pennzoil's shoes.782 Pennzoil sued Texaco in a Texas state court for tortious interference with contract, eventually winning a judgment of $7.53 billion in actual damages and $3 billion in punitive damages. 781 Under Texas law, Texaco was required to file a supersedeas bond for the entire judgment amount to stay execution pending appeal.114 It was clear that Texaco could neither get a bond for that amount nor post a cash bond."5 The judgment was so large that Texaco immediately began to suffer on the stock market, its bond rating was lowered, and creditors refused to sell it crude oil on customary terms.11 Texaco wished to challenge the constitutionality of the Texas bond and lien provisions, but it did so in a New York federal court instead of a Texas state or federal court.78 7 In fact, at no time did Texaco raise the supersedeas bond issue in the Texas state court that issued the judgment.71 In the New York federal court, and prior to the finality of the Texas state court judgment, Texaco sought to enjoin Pennzoil from its collection attempts on the Texas judgment.79 Texaco claimed the Texas proceedings 79 0 violated the Constitution and federal statutes.

777See Gibson v. Berryhill, 411 U.S. 564, 578-81 (1973). ..8 See Juidice v. Vail, 430 U.S. 327, 331-36 (1977). 779 See Trainor v. Hernandez, 431 U.S. 434, 447 (1977). 780481 U.S. 1 (1987). 71 See id. at 4. 8 7 2See id. 783See id. 784 See id. at 4-5. 785 See id. at 5. 76 " See id. 7 1TSee id. at 6. 7 1'See id. at 6 n.5. 789 See id. at 6. 7 9'See id. at 6 n.6.

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Pennzoil responded to the New York federal action with an objection under the Anti-Injunction Act and the Younger doctrine.7 9, The federal district court found that the Anti-Injunction Act did not apply because Texaco had sought the injunction under 28 U.S.C. § 1983, a statute the Supreme Court has interpreted as providing an express authorization for injunctive relief.792 The court further found that Younger did not apply because an injunction would not interfere with a state official's pursuit of a fundamental state interest .79 The New York federal court then issued the injunction.794 On Pennzoil's appeal, the Second Circuit upheld the injunction, finding that (1) Texaco did state a claim under § 1983 because execution necessarily involved state agent, and that because § 1983 is an exception to the Anti-Injunction Act, it did not apply; (2) common law abstention was unnecessary in that Pullman did not apply because the mere possibility that a court would find the Texas supersedeas law unconstitutional did not require abstention; and, (3) that Younger did not apply because the state interests required for Younger abstention differ in both kind and degree.9 The Second Circuit further found that Texas had failed to provide adequate procedures for adjudicating Texaco's federal 79 6 claims and that the balance of hardships favored Texaco. The Supreme Court reversed, finding a new, expanded role for abstention.9 In particular, the Court found that the bases for Younger in this civil case were (1) equity jurisprudence, specifically the injunction element of "adequate remedy at law,"719 (2) comity, which justifies abstention not only when the pending state proceedings are criminal (as in Younger), but also when certain categories of civil cases are pending "if the State's interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and National Govemment;" ' 99 and (3) avoiding unwarranted determinations of federal constitutional questions regarding state law.1°° Because federal interpretations of state law are not binding on state courts, they could be

791 See id. at 6-7. 2 79 See id. at 7 (citing Mitchum v. Foster, 407 U.S. 225 (1972)). 793 794 See id. See id. at 7-8. 79 5 See id. at 8-9. 796 See id. at 9. 797 See id. at 10. 79 8 1d 799 1d. at 11. '°°See id.

1999] PARALLEL LITIGATION 879 discredited by a state court's later clarification of the statute that would render it constitutional1l Texaco chose not to raise its constitutional claims in the Texas state court, thus making it impossible for the court to determine whether the Texas supersedeas and post judgment procedures violated the Constitution, as Texaco alleged.1°2 Moreover, the Court found that the Texas Constitution's "open courts" provision was more on point than the Due Process Clause of the Fifth and Fourteenth amendment.03 The Court noted that "[t]he common thread of [the Texas Supreme Court's] decisions construing the open courts provision is that the legislature has no power to make a remedy by due course of law contingent on an impossible condition."' ' 4 As a final note on this expansion of Younger, the Court emphasized a narrow reading of its opinion.805 In concurring opinions, Justices Brennan, Blackmun and Stevens agreed that the Younger doctrine should not be applied to purely civil proceedings.1°6 Pennzoil's application of Younger was merely an exercise in strict equity oversight to injunctive relief.8o1 That is, for a court to issue any injunction, the applicant must show irreparable harm and no adequate remedy at law.os A dimension added by Pennzoil is that the Younger Doctrine may overlap Pullman in its interest in avoiding constitutional litigation on ambigous state laws that the state has not had a chance to review 09 b. Younger's Application in Civil Cases Pennzoil may be read narrowly as holding that the enforcement of judgments is an important state interest in which federal courts may not interfere1lo It may also be read broadly as applying to all civil proceedings where the state is exercising some executive power, or where the state proceedings are capable of resolving the constitutional problem (with a corollary that a defendant who fails to exhaust those state procedures may 8 °-Seeid. at11-12. 802 See id. at11. 8 3 " See id.at11-12. °4Id. at 15 (quoting Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex. 1984)). 0 "°S ee id. at 17-18. "°Seeid. at 18-34. 8 7 1d. at 10 (noting that each court failed to apply the appropriate standard for injunctive relief). 80 SSee id. 8 "See id. at14-19. "' 0See id. at13.

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not resort to a federal court in order to interfere with the pending proceeding).' ' Subsequent case law has provided some guidance. For example, the New OrleansPublic Service Inc. v. City of New Orleans ("NOPSI") case clarified that the Younger/Pennzoil doctrine does not apply to all civil litigation, but only to those cases "involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions."' Furthermore, the doctrine does not require abstention to a "state judicial proceeding reviewing legislative or executive action.' ' 3 The Fifth Circuit has interpreted NOPSI as limiting Younger/Pennzoil abstention to antisuit injunctions against state civil cases involving an important state interest. '1 Current attempts to define Younger's parameters after its expansion into civil cases are at best obtuse. A better explanation is that the Younger/Pennzoil doctrine limits federal interference with important state executive power related to pending state adjudication. This explanation does not contradict NOPSFs statement that Younger does not apply to state courts reviewing executive action; rather, it suggests that Younger applies to federal interference with the state's performance of its executive power that would have an immediate impact because of the pending litigation." ' In Younger, the injunction interfered with the district attorney's executive function of prosecuting a criminal action against Harris. 81 In Trainor, the injunction interfered with the state attorney's executive function of recouping welfare benefits wrongfully paid to Hernandez.17 In Pennzoil, the injunction interfered with the sheriffs executive function to enforce Pennzoil's judgment against Texaco. ^[8] Thus, in each case the federal court was interfering with the state's performance of its executive function in pending state court litigation.8' 9 If Younger/Pennzoil is defined in this way, the definition simplifies determinations of its criminal and civil overlap and requires that the federal court identify a state executive

8 'See id. at 14-15. 812491 U.S. 350, 367-68 (1989). 8 13 1d. 8 14 See Louisiana Debating and Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1490 (5th Cir. 1995). "'See New Orleans Public Service, 491 U.S. at 367-68. 816 See Younger v. Harris, 401 U.S. 37, 38-39 (1971). 81 See Trainor v. Hernandez, 431 U.S. 434, 438 (1977). ...See Pennzoil Co. v. Texaco, Inc., 481 U.S. ^[1], 6 (1987). s19See Pennzoil Co., 481 U.S. at 6; Trainor,431 U.S. at 438; Younger, 401 U.S. at 38-39.

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function that will be affected by the injunction. If the injunction would affect a state interest other than its executive power, then Younger would not apply; however, the Anti-Injunction Act might. c. Perfectinga Younger Objection Younger always involves a pending state lawsuit that allegedly violates a constitutional right and the alleged victim of the constitutional injury seeking a federal injunction against the state action.^[1] ° To the extent that the state is a party, it may waive its Younger defense by arguing the merits of the constitutional issue to the federal court. It is unclear whether this waiver would apply in a Pennzoil situation involving only private parties in a civil case. On the one hand, a private party stands in the state's position when it submits the constitutional issue to the federal court, thus inviting the federal court to enjoin the state action in order to maintain the status quo pending the resolution of the constitutional issue. On the other hand, the Younger doctrine's very purpose is to protect certain state governmental interests from federal interference, an interest that can only be waived by the state itself21 2. Statutory Abstention: The Anti-Injunction Act Two federal statutes provide another layer of regulation for federal courts looking to enjoin state court lawsuits. The Anti-Injunction Act addresses the same problem as Younger; both restrict federal courts from interfering with states, but they use different guidelines.823 The statute reads: "A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. '824

V2 0See Louisiana Debating & Literary Ass'n v. City of New Orleans, 42 F.3d 1483, 1489-90 (5th Cir. 1995). 2 S lSee Ohio Bureau of Employment Serv. v. Hodory, 431 U.S. 471, 480 & n.10 (1977) (holding that a state's decision to submit constitutional issues to federal court waived the Younger doctrine objection to injunction against state action). 822 See generally Brian Stagner, Avoiding Abstention: The Younger Exceptions, 29 TEX. TECH. L. REv. 137 (1998) (describing generally the Younger doctrine and its purpose). 82 In considering an injunction against state court litigation, the Fifth Circuit stated, "Nevertheless, we are guided by the overarching principle that federal courts are to be cautious about infringing on the legitimate exercise of state judicial power." State of Texas v. United States, 837 F.2d 184, 186 (5th Cir. 1988) (citing Younger, 401 U.S. 37, 44-45 (1971)). 82428 U.S.C. § 2283 (1994).

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The Act thus provides three exceptions that allow injunctions: (1) expressly authorized, (2) in aid of jurisdiction, or (3) to protect or effectuate its judgments.25 These exceptions are exclusive and may not be expanded by judicial interpretation or federal common law.26 The Act does not apply if the injunction issues before the state court action is filed.127 However, if a state official is the party to be enjoined, the movant must also satisfy the Eleventh Amendment.- On the other hand, the Act does not apply to suits brought by the United States12 1or federal agencies.83 ° The Fifth Circuit has noted the difficulty of meeting one of the exceptions: These statutory exceptions "are narrow and are not [to] be enlarged by loose statutory construction,". and are the exclusive exceptions under the act; "the prohibition [of section 2283] is not to be whittled away by judicial improvisation." Furthermore, under the Anti-Injunction Act, the presumption is that state courts are the best arbiters of state court jurisdiction; thus, state proceedings "should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately [the Supreme] Court." Thus, "any doubts are to be resolved in favor of allowing the state court action to proceed." This holds true even when the state proceedings "interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear."83 The exceptions require further explanation. a. "Expressly Authorized" Injunctions Mitchum v. Foster held that the "expressly authorized" exception does not require express reference to the underlying federal statute.112 Thus, 42 .2 See id. 826 See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630 (1977). 827 See Dombrowski v. Pfister, 380 U.S. 479, 484 n.2 (1965). 828 See Pennhurst State Sch. and Hosp. v. Haldeman, 465 U.S. 89, 106 (1984). 829 See Leiter Minerals, Inc. v. United States, 352 U.S. 220, 226 (1957). 83 See N.L.RB. v. Nash-Finch Co., 404 U.S. 138, 146 (1971). 83 Total Plan Serv., Inc. v. Texas Retailers Ass'n., Inc., 925 F.2d 142, 144 (5th Cir. 1991) (citations omitted). 132407 U.S. 225, 237 (1972).

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U.S.C. § 1983, with no express authorization to enjoin state lawsuits, nonetheless indicates a congressional intent to do so under its general power for injunctive relief.833 In Mitchum, the prosecuting attorney of Bay County, Florida, sued to close down Mitchum's bookstore as a public nuisance.134 The state court entered a preliminary order prohibiting continued operation of the bookstore.835 After further inconclusive proceedings in the state courts, Mitchum filed a complaint in the United States District Court for the Northern District of Florida, alleging that the actions of the state judicial and law enforcement officials were depriving him of First and Fourteenth Amendment rights.136 Under 42 U.S.C. § 1983,837 he requested injunctive and declaratory relief against the state court proceedings on the ground that the state court unconstitutionally applied Florida laws and caused irreparable harm.^[3], The language of § 1983 does not provide for an antisuit injunction to remedy violations of civil rights. In inferring one, the Supreme Court articulated the test as "whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be ' given its intended scope only by the stay of a state court proceeding."839 This reduces to a two-prong test for a non-express statute to meet the "expressly authorized" exception: (1) whether the statute in question provided for equitable relief, and (2) whether legislative history established that the statute was enacted due to a mistrust of state court ability or willingness to protect federal constitutional rights. In finding that § 1983 actions provide an exception to the Anti-Injunction act, the Court recalled its holding a year earlier in Younger v. Harris that equity and comity also prevent federal courts from enjoining state criminal proceedings.40 Thus, a

33 1See id. at 242-43. 834 1d. at 227. 35 See id. 836 See id. 837 See id. at 227-28 & n.5. Federal jurisdiction was based upon 28 U.S.C. § 1343(3) (1994). The statute states in relevant part: The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person... (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States ... 838 1d. at 227. 839 1d. at 238. "0 See id. at 243.

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federal court injunction against a state criminal prosecution must clear two hurdles: the Anti-Injunction Act and the Younger doctrine. While Mitchum illustrates that "expressly authorized by Congress" does not mean expressed in the statute, Total Plan Services, Inc. v. Texas Retailers Assoc., Inc., illustrates the converse, that is, express injunction language in a federal statute may not overcome the strong presumption against federal courts enjoining state litigation.^[14] The dispute began in state court, where the Texas Retailers Association sued regarding pension claims.^[2] The Texas Retailers Assocation obtained a preliminary state court ruling that the Employee Retirement Income Security Act (ERISA) did not preempt its claims; Total Plan Services, the state court defendant, immediately sued in federal court for a contrary declaratory judgment and an injunction against further state court proceedings.141 The federal trial court dismissed the action for failure to state a claim, and the Fifth Circuit affirmed over Total's objection that ERISA expressly provided for the injunction.44 Specifically, Total relied on 29 U.S.C. § 1132(a)(3)45 which allows a civil action to be brought "to enjoin any act or practice which violates any provision of this subchapter .... ,"846 Evaluating the legislative intent, the Fifth Circuit found that "act or practice" did not apply to lawsuits, and that Congress had not created a federal right in ERISA which "could be given its intended scope only by the stay [read "enjoining"] of a state court proceeding. ''s" There are examples of "expressly authorized" exceptions where the language is express and it means what it says. Under the federal interpleader statute,8 48 an interpleader plaintiff may obtain an injunction under a corollary statute8 49 against the prosecution of pending state actions so as to protect the limited fund that is a predicate to interpleader practice.1s Similarly, in admiralty and maritime law a vessel owner may file a petition in federal court seeking protection under the Limitation of

841925 F.2d 142, 144 (5th Cir. 1991). 8 42 See id. at 143. 84 3 See id. at 143. 844 See id. 845 Id. at 144. 84629 U.S.C. § 1132(a)(3) (1994). 847 See Total, 925 F.2d at 144 (quoting Mitchum v. Foster, 407 U.S. 225, 238 (1972)). 84828 U.S.C. § 1335 (1994). 84928 U.S.C. § 2361 (1994). "' 0See State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 524 (1967).

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Vessel Owner's Liability Act,",l and upon depositing security in the value of the vessel and its freight, the court may use Federal Rule of Civil Procedure Supp. R. F(3) to enjoin claimants from filing or prosecuting actions in other courts. Vendo Co. v. Lektro- Vend Corp. established that "expressly authorized" may turn on plurality votes.853 In Vendo, a five vote plurality held that Section 16 of the Clayton Act did not expressly authorize a federal injunction against state court action.114 Justices Rehnquist, Stewart and Powell found that Section 16 did not under any circumstance expressly authorize federal injunctions against state court litigation.855 Justices Blackmun & Burger held that it did if certain factors are present which were not present here.116 Justices Stevens, Brennan, White and Marshall argued that Section 16 did in all cases expressly authorize the injunction.", Compulsory counterclaims may also qualify as "expressly authorized" exceptions. In Seattle Totems Hockey Club, Inc. v. The National Hockey League, the Ninth Circuit noted that Federal Rule of Civil Procedure 13(a) (compulsory counterclaims) was not an expressly authorized exception, and that "accordingly, a federal court is barred by § 2283 from enjoining a party from proceeding in state court on a claim that should have been pleaded as a compulsory counterclaim in a prior federal suit. '' 858 b. Injunctions "In Aid of Its Jurisdiction" Congress amended the Anti-Injunction Act in 1948 in response to the Supreme Court's holding in Toucey v. New York Life Insurance Co. that the Act did not empower a federal court to enjoin a state court from relitigating a case already litigated in federal court.859 After Toucey, Congress amended the Anti-Injunction Act to include the words "to protect or effectuate its judgments," enabling federal courts to enjoin the relitigation of cases in state courts.86 0 The phrase "in aid of its jurisdiction"

85146 U.S.C.A. app. § 183(a) (1999). 852 See Beiswenger Enterprises Corp. v. Carletta, 86 F.3d 1032, 1033-34 (11 th Cir. 1996). 853433 U.S. 623, 626, 643 (1977). 854 Id. at 630-45. 855 See id. at 630-43. 856 See id. at 643-45 (Blackmun, J., concurring). 85 See id. at 647-66 (Stevens, J., dissenting). 858652 F.2d 852, 855 n.5 (9th Cir. 1981) (referencing Nolen v. Hammet Co., Inc., 56 F.R.D. 361, 362 (D.S.C. 1972), and 6 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE, § 1418, at 106) (2d ed. 1988). 859314 U.S. 118, 137-141 (1941). 86028 U.S.C. § 2283 (1994).

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was added to make clear the already recognized power of federal courts to stay proceedings in state courts that have been removed to a federal 61 court. The leading case is Kline v. Burke Construction Co.s62 Burke Construction, a Missouri paving company, contracted with the city of Texarkana, Arkansas to repave city streets. 63 In a subsequent dispute on the contract, Burke filed a diversity claim against Kline (a Texarkana city board member) in federal district court in Arkansas, seeking damages. " Kline then filed a parallel equity action against Burke in an Arkansas chancery court. 65 Both actions were in personam, and both sought money damages." Kline removed the state action to federal district court, but it was remanded.67 The federal court lawsuit ended in a mistrial.^[6] Pending retrial, Burke asked the federal district court to enjoin Kline from proceeding with the state action, citing the "in aid of its jurisdiction" exception to the Anti-Injunction Act.86 9 The federal district court denied the injunction, and the Eighth Circuit reversed the district court decision and remanded the case, ordering the issuance of an injunction. 7° The Supreme Court held that the Act's "in aid of its jurisdiction" exception was for in rem actions in which the federal court had assumed jurisdiction over the res, and that it did not extend to in personam actions such as this one. ' In Texas v. United States, the Interstate Commerce Commission (ICC) disagreed with the State of Texas about jurisdiction over a series of in-state truck shipments."' Reeves was transporting carpet made by Armstrong Carpets in Arlington, Texas to other points in Texas Y3 The State of Texas sought to regulate this as an intrastate shipment and began an investigation. Upon petition by Reeves seeking a declaratory ruling an administrative action, seeking to regulate the carpet shipments as interstate because some joined in the first action. ' Another aspect of the anti-suit injunction's breadth is that it applies to fully adjudicated issues as well as claims. The Fifth Circuit, in Quintero v. Klaveness Ship Lines, held that a plaintiff whose federal action was dismissed on forum non conveniens grounds may not relitigate in a later state court action the choice of law issue that was an element of the federal court's decision to dismiss.942 The Fifth Circuit has established more than its share of precedents on this point941 Other less than fundamental examples illustrate the variety of issues arising under the relitigation exception. One example is enjoining the relitigation of amenability. In Foyt v. ChampionshipAuto Racing Teams, Inc., a federal court in Houston dismissed the plaintiffs' antitrust claims for lack of personal jurisdiction in Texas. 944 Plaintiffs then filed a related claim in a Texas state court arguing tortious interference instead of antitrust, with slightly different parties, but including Championship Auto Racing Teams ("CART"). 941 CART asked the federal court to enjoin the second action, which it argued was an attempt to thwart the first court's ruling on CART's non-amenability in Texas. 941 The court agreed and enjoined plaintiffs from suing CART "in any state or federal court in the State of Texas."' 947 The

93715 F.3d 506 (5th Cir. 1994). 938 See id. at 511-13. 939 See id. at 513. " 90 " See 94 1 id. at 523-24. See id. at 523-25. Cf Wood v.Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523-26 (9th Cir. 1983) (holding that the plaintiff was enjoined from relitigating the just- dismissed claims, or any remotely related to them). 942914 F.2d 717, 720-22, 726 (5th Cir. 1990). 943 See Royal Ins. Co. of American v. Quinn-L Capital Corp., 960 F.2d 1286, 1297-1301 (5th Cir. 1992); 17 WRIGHT MILLER & COOPER, supra note 619, § 4226 n.12. 944947 F. Supp. 290, 295 (S.D. Tex. 1996) 94 5 See id. at 292. 946 See id. 947 1d. at 295.

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court rejected plaintiffs argument that the Anti-Injunction Act, forbade this anti-suit injunction because (1) the state action had been removed to federal court, and (2) even if it had not, the injunction was authorized under § 2283's relitigation exception. 94s Declaratory judgment actions also fall under the exception. Litigants sometimes file federal declaratory judgment actions seeking a resolution on the merits of a pending state court case. Because the declaratory judgment could have preclusive effect in the state action, this practice has been deemed an attempt to make "an end run around the requirements the Anti-Injunction Act.."94 9 Accordingly, courts have held that declaratory judgment actions in these circumstances must satisfy the requirements of § 2283.950 Tax injunctions have their own specific federal bar. The Tax Injunction Act provides that "[t]he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." 91' Fox River Valley Railroad sued the Wisconsin Department of Revenue for civil rights violations under color of state law for setting a tax assessment as the purchase price of another railroad it had purchased.952 Specifically, Fox sued for a declaration that the tax assessment method was unconstitutional and for an injunction against collection. 913 In dismissing the case, the federal court noted that the underlying principle against enjoining state taxation had been around "[1]ong before the passage of § 1341 ." 9 4 The court invoked the Supreme Court's recognition of the importance of a government's ability to levy taxes unimpeded by outside forces, and the resulting comity owed the states.955 discretionary stay. At least one Texas appellate court has applied the first-filed rule in a state-federal conflict to justify its refusal to stay or dismiss its action in deference to a second-filed declaratory judgment action in a New York federal court. 9 5 This rule was applied in the federal court's favor in Alpine Gulf, Inc. v. Valentino,976 in which the court reversed the trial court and granted a stay of the Texas second-filed action in favor of the first-filed New York federal action. Dismissals may be available in Texas in two instances: where the federal action is a first-filed in rem case,977 and, at least in Texas, where the state action is a second-filed declaratory judgment action. 97 Presumably, forum non conveniens is not a grounds in regard to federal courts in Texas.

8 % 969 1d. See id. 970 See id. 97 t See id. at 66. 972 See id. 97 3 See id. at 65-66. 974 See Williamson v. Tucker, 615 S.W.2d 881, 886 (Tex. App.--Dallas 1981, writ ref'd n.r.e.). 97 See '21' Int'l Holdings, Inc. v. Westinghouse Elec. Corp., 856 S.W.2d 479, 484-85 (Tex. App.--San Antonio 1993, no writ) (noting the "mere pendency" rule). 976563 S.W.2d 358, 259-60 (Tex. Civ. App.--Houston [14th Dist.] 1978, writ ref d n.r.e.). 977 See '21' International Holdings, 856 S.W.2d at 484 (negative inference from statement that mere pendency of second action is not grounds for abatement of an in personam action). 97 8 See Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex. 1970).

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For federal courts outside of Texas, the analysis is presumably the same as that for interstate forum non conveniens. Other states' practices vary, often applying similar rules for both instate and interstate parallel cases. Florida has one of the older cases dealing directly with state federal parallels, providing a presumption for the stay of a second-filed Florida case. 90 The current Florida test is stated in City of Miami Beach v. Miami FraternalOrder of Police; it is a presumptive dismissal in deference to a first-filed federal case unless outweighed by factors such as a congested federal docket.9 8' New York, however, requires, consistent with its treatment of all parallel cases, a complete identity of the parties and claims, or alternatively, a showing that a determination in the federal action would necessarily dispose of all issues in both actions. 982Absent this, neither stay nor dismissal is available.^[3] Many states, however, will at least stay a state case that is sufficiently similar to a federal one. Delaware has what may be the most multi-faceted rules for parallel conflicts. It treats state-federal parallel conflicts the same as interstate conflicts, providing that comity and judicial economy ordinarily call for a stay of a second-filed Delaware case.985 The Delaware Supreme Court has included "similar claims" in this provision, 98 6 but has also stated the requirement as cases 'involving the same parties and the same issues.'"987 Conversely, for first-filed local cases, "a motion to stay or dismiss should 979 See supra Part IV.B.^[4]. 98 See Wade v. Clower, 114 So. 548 (Fla. 1927). 98"619 So. 2d 447, 448 (Fla. Dist. Ct. App. 1993). See also State v. Harbour Island, Inc., 601 So. 2d 1334, 1335 (Fla. Dist. Ct. App. 1992) (granting stay for non-identical cases because resolution of first-filed federal action would determine many issues in state case); Ricigliano v. Peat, Marwick, Main & Co., 585 So. 2d 387, 387 (Fla. Dist. Ct. App. 1991) (staying of second- filed Florida action in deference to substantially similar federal case). ..2 See Guilden v. Baldwin Sec. Corp., 189 A.2d 716, 592 N.Y.S.2d 725, 726 (N.Y. App. Div. 1993) (denying stay for lack of complete identity); Hope's Windows v. Albro Metal Prods. Corp., 460 N.Y.S.2d 580, 581 (N.Y. App. Div. 1983). 9 3 " See Guilden, 592 N.Y.S.2d at 726. 984 See Kaselaan & D'Angelo Assoc. v. Soffian, 675 A.2d 705, 707 (N.J. Super. Ct. App. Div. 1996); Caiafa Prof'l Law Corp. v. State Farm Fire & Cas. Co., 19 Cal. Rptr. 2d 138, 139-40 (Cal. Ct. App. 1993); Polaris Pub. Income Funds v. Einhom, 625 So. 2d 128, 129 (Fla. Dist. Ct. App. 1993); see also Tonnemacher v. Touche Ross & Co., 920 P.2d 5, 8-10 (Ariz. Ct. App. 1996) (holding that discretionary stay is available, although dismissal is not). 85 ' See Local Union 199, Laborers' Int'l Union v. Plant, 297 A.2d 37, 38-39 (Del. 1972). 986 See Prezant v. De Angelis, 636 A.2d 915, 919-20 (Del. 1994). 9 'Aciemo v. New Castle County, 679 A.2d 455, 458 (Del. 1996) (quoting McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng'g Co., 263 A.2d 281, 283 (Del. 1970)).

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be granted only in a rare case, after defendant has established that litigating in Delaware will cause undue hardship and inconvenience."' 981 After stating these guidelines, the Acierno court refused to stay the state action on different groundsY8 9 Determining the first-filed case was difficult because of the parties' race to the courthouse indicated filings minutes apart.990 The court disregarded the first-filed status and held that the nature of the dispute, the denial of a building permit, was a distinctly local government issue, and thus worthy of on-going litigation in a Delaware state court.99' Delaware law, however, is not clear as to how far from identical two cases may be to qualify for these tests and presumptions. ^[3]. Enjoining the Federal Litigation State courts may not enjoin parties from pursuing federal litigation, parallel or otherwise, as explained in the less-than-unanimous Donovan v. City of Dallas.92 James P. Donovan had filed a pro se federal class action suit against the City of Dallas and others to stop the construction of a new runway at Love Field, the primary Dallas airport at that time. ^[3] The action had already been litigated and lost through the Texas Supreme Court, including a certiorari denial by the United States Supreme Court.94 Following the state court loss, Donovan filed in federal court in Dallas, seeking to relitigate the claim which included injunctive relief to stop construction and a declaration that the fund-raising bonds were illegal and void."' Under Texas law, the bonds could not be issued while the litigation was pending." 6 The City of Dallas answered in federal court, but also applied to the state court of appeals for a writ of prohibition barring plaintiffs from the federal action. 997 The state appellate court denied the writ on the grounds that it lacked the power to enjoin federal litigation991 The Texas Supreme Court reversed and directed the lower court to issue

9 "Id. at 458 (citing Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd., 669 A.2d 104, 107 (Del. 1995)); see also supra Part IV.B.^[5] for additional aspects of Delaware's test. 99 1 See Acierno, 679 A.2d at 458. '9See id. at 457. 99'See id. at 458. 99377 U.S. 408 (1964). 3 99See id. at 408-09. 194See id. at 409. 5 " See id. 996See id. 997 See id. at 409-10. "'See id.

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the writ, which it did.99 The United States Supreme Court reversed and dissolved the injunction, noting the underlying premise regarding state injunctions against federal litigation as described by Justice Black.- ° Justice Black described a seemingly inviolable rule: "Early in the history of our country a general rule was established that state and federal courts would not interfere with or try to restrain each other's proceedings. That rule has continued substantially unchanged to this time."l ° Noting the sole exception of in rem cases in which the first-filed action has exclusive jurisdiction, the Court quoted the overriding rule that "'where the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other."'02 The Court then examined the role of res judicata, since a state court judgment had already been rendered. It may be that a full hearing in an appropriate court would justify a finding that the state-court judgment in favor of Dallas in the first suit barred the issues raised in the second suit, a question as to which we express no opinion. But plaintiffs in the second suit chose to file that case in the federal court. They had a right to do this, a right which is theirs by reason of congressional enactments passed pursuant to congressional policy. And whether or not a plea of resjudicatain the second suit would be good is a question for the federal court to decide.'- ° In spite of the apparent lack of controversy in the majority's statement of the law, a three-justice dissent argued that the question was narrower than the majority had described: The question presented by this case is not the general one stated by the Court at the outset of its opinion, but a much narrower one: May a state court enjoin resident state-court suitors from prosecuting in the federal courts vexatious, duplicative litigation which has the effect of thwarting a state-court judgment already rendered against 9 99See id. at 410. "'0°See id. at 411-12. 1001d. at 412 (citations omitted). "I21d.(quoting Princess Lida v. Thompson, 305 U.S. 456, 465-68 (1939)). 1 3 0 d.

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them? Given the Texas Supreme Court's finding, amply supported by the record and in no way challenged by this Court, that this controversy "has reached the point of vexatious and harassing litigation," I consider both the state injunction and the ensuing contempt adjudication to have been perfectly proper. 0 Justice Harlan's dissent correctly suggests that the rule is not absolute. Three years before the Supreme Court decided Donovan, the Texas Supreme Court upheld a state court injunction against a parallel action in a New Mexico federal court, where both lawsuits were in personam.05 The court of appeals had reversed the trial court's issuance of the injunction, but the supreme court reversed again, with an analysis that did not address any issues of federalism or treat the federal court in any manner other than an out of state court.' °° In Blanchard v. Commonwealth Oil Co., the Fifth Circuit upheld a dismissal of a federal action based on the state court's injunction against the federal litigation..0°7 The Fifth Circuit stated that while state courts may not enjoin federal proceedings per se, the following was offered by the court as a substitute: Nevertheless, under the proper equitable circumstances the parties to a suit in another state or in the federal courts may be enjoined from continuing to prosecute. Although the court need not heed such an injunction where jurisdiction has properly attached, it may.recognize the order of another court as a matter of comity and terminate the proceedings or stay them for the duration of the injunction. Where the two courts involved are a state and a federal court, special attention should be given to such an anti-suit injunction.10°s The court cited special concerns where the state and federal courts had concurrent territorial jurisdiction, where the claim arose under state law, and the need to avoid "an unseemly conflict between the state and federal Moses H. Cone Memorial Hospital v. Mercury Construction Corp. 10 The nine components are (1) which court first assumed jurisdiction over a res, if applicable; (2) the relative convenience of the alternative forums; (3) the desirability of avoiding piecemeal litigation; (4) which cases was first filed; (5) the relative progress of the two actions; (6) the extent to which federal law applies; (7) any other special factors1°23(in Colorado River, it was the government's willingness to litigate similar claims in state court); (8) the adequacy of the alternative forum in protecting the litigants' rights; and (9) whether the action in the immediate forum was vexatious or filed in bad faith.024 These factors may be summarized as federalism, comity, fairness to parties, and judicial economy. The original cases favored dismissal as a remedy, but some have now gone to stays, especially when dealing with foreign litigation.1025 The Landis case, an instance of intra-federal parallel litigation, is not often cited as authority in intra-federal parallel disputes.1026 The reason may be that the Landis text fails to provide clear standards to determine which case should have priority. More recent cases, primarily in the international setting, have provided those standards: they include (1) comity; (2) the adequacy of relief available in the other forum; (3) judicial efficiency; (4) the degree of identity of the parties and issues in the two cases; (5) the likelihood of prompt disposition in the other forum; (6) convenience to the parties, counsel, and witnesses; and (7) the possibility of prejudice if the stay or dismissal is granted. 027 Landis, like Colorado River, is discretionary. A key distinction, though is Landis' lack of a stated presumption favoring ongoing exercise of jurisdiction in both courts. The 02 1 Colorado River, 424 U.S. at 817. 1022460 U.S. ^[1] (1983). 023 See id. 1024See id. at 15-28. 1025See. e.g., Lumen Constr. Inc. v. Brant Constr. Co., Inc., 780 F.2d 691 (7th Cir. 1985). °26See supra Part II.D.^[1]. '0127See I.J.A., Inc. v. Marine Holdings, Ltd., 524 F. Supp. 197, 198 (E.D. Pa. 1981).

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original case favored a stay as the remedy rather than dismissal, but some courts now use Landis to grant dismissals, as discussed in the following cases. The two tests are similar in their elements, in their balancing approach, and in that they are discretionary. They are distinct in that ColoradoRiver raises federalism concerns and appears to have a higher burden for a party seeking dismissal. The two tests may be reconciled through agreement that Colorado River's dismissal remedy requires a higher burden than the Landis stay. This explanation is undermined, however, by the current tendency to use these cases somewhat interchangeably for both stays and dismissals. From this confusion, three arguments emerge as to which test is appropriate. The first is that Landis is clearly the appropriate standard for federal/foreign conflicts because federalism is not an issue in federal- foreign conflicts, as was the case in Landis which concerned parallel federal cases. The second is that Landis is clearly inappropriate because it over-emphasizes judicial economy, which gives too little weight in reactive litigation to each plaintiffs right to a forum. The Colorado River test therefore has the appropriate emphasis. Third, in spite of somewhat distinct language in Colorado River and Landis, the similarity of their tests, the discretionary standard, and their integrated use by the courts suggests that the tests are the same, and either may be used. There is no satisfactory answer at present, and some confusion results. Some cases rely on only one test, while others cite both with no specificity as to which one was followed. A reading of the cases may endorse Argument Three (the tests are the same in application), but caution suggests that courts subscribe to Argument Two. That is, use Colorado River to provide an appropriate emphasis on a plaintiff's right to choose a forum absent compelling reasons to intervene. Ingersoll Milling Machine Co. v. Grangerused a ColoradoRiver test to uphold the trial court's stay of the Illinois federal action, awaiting the outcome on appeal of a Belgian action regarding job termination benefits.102 Ingersoll had hired Granger in Illinois to work in its Brussels plant.1029 After that job ended (for unstated reasons), Granger sued Ingersoll in Belgium for benefits due under Belgian labor law.1030 He won at trial, but

1028833 F.2d 680, 685 (7th Cir. 1987). 029 ' See id. at 682. ' 30see id.

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while the Belgian action was on appeal, Ingersoll sued in federal court in Illinois.1031 The Illinois federal court stayed the action, and the Seventh Circuit upheld it.1032 Just two years before, the Seventh Circuit had occasion to apply the ColoradoRiver precedent to dismiss a federal action that paralleled a state court proceeding.1011 Noting that this situation involving a foreign action was "somewhat different," the court found that those factors could nonetheless "serve as a helpful guide" when faced with duplicative foreign litigation.104 The pertinent factors were (1) no strong federal interest in having a United States forum; (2) what interest the United States might have was countered by a very significant Belgian interest; (3) that the United States also had an interest in exercising international comity favoring deference to the Belgian action; (4) that judicial economy favored a stay pending the outcome of the Belgian appeal, since that action had been fully litigated; and (5) that in light of a careful balancing of these factors, the trial court's stay was "a common sense approach... clearly within the sound discretion of the trial court."1035 The same standards led to the reversal of the trial court's stay in Neuchatel Swiss General Insurance Co. v. Lufthansa Airlines1036 Emphasizing ColoradoRiver's "exceptional circumstances" language, the court held that this action for the loss of a sealed carton of gold and jewels, which became a bag of lead at the end of its transport to Switzerland, was an unexceptional commercial dispute.1037 A significant distinction from Ingersoll was that the Swiss action had not gone any further than the one in California.131 It is unclear which was filed first. Addressing the foreign aspect, the court found the distinction immaterial, rejecting "the notion that a federal court owes greater deference to foreign courts than to our own state courts."1039 While the Neuchatel case underscored Colorado River's emphasis on presuming against dismissal or stay, its facts did not warrant a stay under any test.' °40

'03 'See id. 1032See id. '033See Lumen Constr., Inc. v. Brant Constr. Co., 780 F.2d 691, 698 (7th Cir. 1985). 10341d. at 685. 1 35 ° 1d. at 686. (citing Landis, 299 U.S. at 254). See also Finova Capital Corp. v. Ryan Helicopters U.S.A., Inc., 1998 WL 698900 (N.D. 111.1998). 1036925 F.2d 1193, 1194 (9th Cir. 1991). 1037 See id. at 1194-5. 03 'See id. at 1195. 03 9 ' /d. ^[4] "°°See id.

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The Landis test, with the arguably lighter burden, has also been used in denying stays. In Itel Corp. v. MIS Victoria U, the Fifth Circuit vacated the trial court's stay in an action for breach of leases of cargo containers.' 4' The trial court had imposed the stay to permit a defendant to pursue its third party claim against Iran in the Iran-United States Claims Tribunal.1042 After citing Landis, the Fifth Circuit vacated the stay to permit the parties to litigate the remaining claims, observing that the Claims Tribunal lacked power to render effective relief as to all the claims in the local case. 43 On the other hand, courts granting dismissals have used Landis as well.044 Some courts use both Landis and Colorado River to justify a granting or denying of stay or dismissal requests. 01 45 a. The First-to-JudgmentRule, the Laissez-FaireApproach The Colorado River doctrine begins with a strong presumption against interfering with parallel litigation.10" The same principle is found in citations to Laker Airways'047 and China Trade,'o04 two cases involving antisuit injunctions. Language such as the following, referring to judicial reluctance to enjoin foreign litigation, is used by analogy to reject motions for dismissal or stay:

141710 F.2d 199, 204 (5th Cir. 1983). "'4 2See id. at 200. '043See id. at 203-04; see also Modem Computer Corp. v. Ma, 862 F. Supp. 938, 949 (E.D.N.Y. 1994) (denying stay because case in Taiwan would not resolve all the issues); Ronar, Inc. v. Wallace, 649 F. Supp. 310, 318-19 (S.D.N.Y. 1986) (denying stay and rejecting arguments of inconvenience and different West German discovery laws); I.J.A., Inc. v. Marine Holdings, Ltd., Inc., 524 F. Supp. 197, 198-99 (E.D. Pa. 1981) (denying stay because the Canadian litigation was in initial stages, and the claims and parties were not identical; thus the stay would not lead to preclusion and would not favor judicial economy). 44 1 See Continental Time Corp. v. Swiss Credit Bank, 543 F. Supp. 408,410 (S.D.N.Y. 1982)

(dismissing in favor of first-filed Swiss action). '045See, e.g., Caspian Inv., Ltd. v. Vicom Holdings, Ltd., 770 F. Supp. 880, 884 (S.D.N.Y. 1991) (dismissal in favor of Irish litigation, relying equally 6h Landis and Colorado River); Brinco Mining, Ltd. v. Federal Ins. Co., 552 F. Supp. 1233, 1240-42 (D.D.C. 1982) (deferring to Canadian action, citing comity, forum shopping, and judicial economy; relying more heavily on Colorado River). 046 ' See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817-18 (1976). "'4 7Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 926-27 (D.C. Cir. 1984); see also infra Part VII.B.^[2]. "'4 3China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33, 36-37 (2d Cir. 1987); see also infra Part VII.B.^[2].

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[p]arallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in which one can be plead as res judicata. The mere filing of a suit in one forum does not cut off the pre-existing right of an independent forum to regulate matters subject to its prescriptive jurisdiction.'4 9

While this "first-to-judgment" language has developed its own following, it is drawn from the ColoradoRiver presumption favoring the exercise of jurisdiction. 15 b. Comity as a stand-alonetest Apart from the Landis and ColoradoRiver tests, a few courts have used comity inappropriately based on too narrow an interpretation of Hilton v. Guyot.101 As discussed in the Introduction, comity is a broad doctrine with a number of variations.10°5 The use in Hilton was for the recognition of foreign judgments, either for preclusion or enforcement, providing the basic norm that international comity is "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation .... 01 But Hilton was directed to the preclusive effect of final judgments from foreign countries, which dictated a greater deference for comity as well as preclusion reasons. 0 5 4 Hilton's language and application alludes to the full faith and credit mandated for state and federal judgments in the United States, but reliance on this strong comity argument is inappropriate when applied to pending actions in foreign countries.1055 That is, a pending lawsuit is not a "legislative, executive or

"°9 Black & Decker Corp. v. Sanyei Am. Corp., 650 F. Supp. 406, 408 (N.D. II1. 1986) (quoting Laker Airways, 731 F.2d at 926-27); see also Madanes v. Madanes, 981 F. Supp. 241, 263-64 (S.D.N.Y. 1997) (rejecting dismissal related to parallel Swiss case and citing the "exceptional circumstances" test from Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. ^[1], 25-26 (1983)); H rbstein v. Bruetman, 743 F. Supp. 184, 188 (S.D.N.Y. 1990) (rejecting stay related to parallel Argentine case). 'O5 See Laker Airways Ltd., 731 F.2d at 926-27, n.48. (discussing the "first-to-judgment" concept and citing Colorado River Water Conservatory Dist. v. United States, 424 U.S. 800, 817 (1976)). 1051159 U.S. 113 (1895). ' 2See supra Part I.D. 1053159 U.S. at 164. 10 541d. at 114-15. "'55See id. at 181-82.

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judicial act" entitled to recognition. 056 ° Moreover, to the extent that Hilton's comity evokes comparisons to full faith and credit, the latter doctrine does not apply to pending, non-final lawsuits.011 This is not to say that comity is inappropriate in parallel litigation questions.058 To the contrary, it is a cited factor in countless instances of parallel litigation, and at all intersections: intrastate, interstate, state-federal and international.1009 While comity in its larger sense may be an appropriate consideration, the Hilton language, which mirrors the full faith and credit directive, should be irrelevant to the local effect of pending foreign litigation. Nonetheless, courts have cited Hilton in this setting, and at least one may have strayed in this direction by applying comity as an independent, stand-alone justification for dismissing or staying an action in deference to a pending parallel action in a foreign country, without regard to other factors such as convenience, fairness, or economy. °00 In Ensign-Bickford Co. v. ICIExplosives USA Inc., the court dismissed the case in deference to a pending Canadian case on the sole grounds of international comity.'1'0 The court noted the requirement of comity to defer to foreign judgments, and it articulated an additional requirement "that domestic courts take reasonable steps to prevent potential conflicts form ripening into overt confrontations with foreign tribunals."'0 In its analysis, the court observed the distinction between pending cases and final judgments, but held that comity applied to both. 36 ' The court then cited to two cases. The first, EEOC v. University of Pennsylvania, involved a refusal to dismiss the EEOC's lawsuit seeking enforcement of a subpoena against the University of Pennsylvania for peer review records.'- While subpoenas, as an exercise of executive power, might well call for comity, the point is lost since the court rejected dismissal.' °6 The second case cited by the Ensign Bickford court was, Timberlane Lumber Co. v. Bank of America National

0 56 1 1d. at 164. 0 ' 7See Texas Employers Ins. Ass'n v. Jackson, 820 F.2d 1406, 1422 (5th Cir. 1987) rev'd, 862 F.2d 491 (5th Cir. 1988). 0 S ee discussion supra Part I.D. 1059See id. "°See Ensign-Bickford Co. v. ICI Explosives USA Inc., 817 F. Supp 1018, 1032 (D. Conn. 1993). 1'6'See id. at 1031-32. 1062Id. at 1032.

" See id at 1031-33. 1-850 F.2d 969, 969 (3d Cir. 1988). '065See id. at 971-72.

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Trust & Savings Association.0 66 This case was dismissed for lack of subject matter jurisdiction, and the case involved the inapplicability of United States antitrust law, not parallel litigation. 1-7 Essentially, while comity might be an appropriate factor to consider along with other bases for dismissal, there appears to be very little authority for using comity as the sole determining factor. As illustrated here, cases using comity as exclusive authority for dismissal are either misconstruing it or using strained and inappropriate analogies. Basic v. Fitzroy Engineering, Ltd. is another case citing Hilton as an appropriate standard, though rejecting the stay or dismissal.1068 This case was dismissed for lack of subject matter jurisdiction, and the court stated that even if the court had subject matter jurisdiction, the case still would have been dismissed based on international comity toward the pending New Zealand action. 06 9 Other courts have avoided this excessive application of comity. For example, Sumitomo Corp. v. Parakopi Compania Maritima, S.A., acknowledged the Hilton standard but declined its application because until the foreign court issued a judgment, there was "no legislative, executive or judicial act of another nation... involved."1070 Conversely, in rem litigation may justify a pure comity dismissal based on the almost universal rule that defers to the court first assuming jurisdiction.107 , 2. Dismissals Based on Forum Selection Agreements Even more so than the other topics in this Article, a discussion of forum selection clauses requires a unitary treatment to understand both the basic doctrine and its variations. The unitary treatment is best placed in this international section where, as with forum non conveniens, its factors are the most exaggerated and best contrasted, and where its most important precedents have arisen.

motion to stay or dismiss that action.1086 Back in the United States, the Fifth Circuit upheld the lower federal court's ruling against Unterweser based on Carbon Black's holding that "agreements in advance of controversy whose object is to oust the jurisdiction of the courts are contrary to public policy and will not be enforced," on the in rem nature of Zapata's admiralty claim and the convenience of litigating in Florida near the site of the damage.'081 The Fifth Circuit later reaffirmed its holding in a sharply divided en banc s opinion, with eight judges favoring the prior holding and six opposed. lo8 The Supreme Court reversed, and in doing so restated the basic rules for forum selection clauses.' s9 The policy underlying the change was clear, with strong references to the "expansion of overseas commercial activities" and the demise of the "barrier of distance that once tended to confine a

"' 9Bremen v. Zapata Off-Shore Co., 407 U.S. ^[1],2 (1972). t SSee id. '"'8 See id. at 3. ' 8 2See id. at 3-4. '"See id. 4 "01 See id. at 6. '"See id. at 6-7. "0'6See id. at 4. ....Zapata Off-Shore Co. v. Bremen (in re Unterweser Reederei GMBH), 428 F.2d 888, 893 (5th Cir. 1970) (quoting Carbon Black Export, Inc. v. The SS Monrosa, 254 F.2d 297, 300-01 (5th Cir. 1958)). "°"Seeid. at 908. '°SSee Bremen, 407 U.S. at 8-20.

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business concern to a modest territory."'' 190 These changes required a legal endorsement of the necessary contractual obligations: The expansion of American business and industry will hardly be encouraged if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts .... We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts. 19' Applying this policy shift to the instant facts, the Court noted that the contracting parties were sophisticated companies from different countries, and that the contract was for a specific one-time service towing of "an extremely costly piece of equipment from Louisiana across the Gulf of Mexico and the Atlantic Ocean, through the Mediterranean Sea to its final destination in the Adriatic Sea." 092 The fact that the towing would pass through many distinct national jurisdictions, and that a problem could have occurred at any point along the way, was ample justification for the parties to agree on a forum: It cannot be doubted for a moment that the parties sought to provide for a neutral forum for the resolution of any disputes arising during the tow. Manifestly much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place where the Bremen or Unterweser might happen to be found. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in ° international trade, commerce, and contracting.' 19 The Court then generalized the new rule: [I]n the light of present-day commercial realities and expanding international trade we conclude that the forum clause should control absent a strong showing that it should be set aside .... [I]t seems reasonably clear that

"'9°See id. at 8. 1 I9'1d. at 9. 1092Id. at 13. '"3 Id. at 13 (emphasis in original).

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the District Court and the Court of Appeals placed the burden on Unterweser to show that London would be a more convenient forum than Tampa, although the contract expressly resolved that issue. The correct approach would have been to enforce the forum clause specifically unless Zapata could clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid for such reasons as fraud or overreaching.'10 Bremen also addressed a concern that, in some cases, the enforcement of a forum selection clause would subject a local party to an unfriendly forum or unfair law. The Court held that a forum clause "should be held unenforceable if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision."' 09 The Court embraced the dissenters' view from the Bremen appellate opinion, finding that the enforcement of the clause in Bremen did not violate public policy because the conduct occurred outside United States territory, and that "we should not invalidate the forum selection clause here unless we are firmly convinced that we would thereby significantly encourage negligent conduct within the boundaries of the United States."- ° The Court also suggested that an "unreasonable" forum clause would be unenforceable in situations where the chosen forum was "seriously inconvenient."'' 19 7 The Court placed the burden for establishing unreasonableness on the party challenging the clause, noting that "it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court."' 98 ii. Scherk v. Alberto-Culver Co. Arbitration clauses were the next step in expanding forum selections clauses. In Scherk, the Court considered whether the parties' freely- negotiated arbitration clause, designating the International Chamber of Commerce in Paris, should be enforced against a domestic corporation's

1094d. at 15. "'"5 1d. at 15 (citing Boyd v. Grand Trunk W.R. Co., 338 U.S. 263 (1949)). "'I1d. at 16 (quoting Zapata Off-Shore Co. v. Bremen (In re Unterweser Reeder GMBH), 428 F.2d 888, 907-08 (5th Cir. 1970)). "'97See id. at 16 (emphasis in original). ""See id. at 18.

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wish to litigate its securities fraud claim in the United States.'1 99 The case arose from Illinois-based Alberto-Culver's expansion into the European market.1"00 One of its initial moves was to contract with German businessman Fritz Scherk to acquire his rights to three interrelated business entities organized under German and Liechtenstein law.I0l Scherk's express warranty that he was conveying "the sole and unencumbered ownership of these trademarks" was overstated, and Alberto-Culver sued for securities fraud in federal court in Illinois.102 Scherk sought to enforce the contract's arbitration clause, but the lower courts denied Scherk's motion to dismiss on forum non conveniens grounds, drawing from the holding in Wilko v. Swan,1103 which stated that actions under the Securities Act of 1933 were exempt from arbitration clauses.1'1' The decision in Wilco was based on statutory language in the 1933 Act that barred "[a]ny condition, stipulation, or provision binding any person acquiring any ' 5 security to waive compliance with any provision of this subchapter." 1 The Wilko opinion noted the policy clash between this language and the policies underlying the United States Arbitration Act. As recounted in Scherk: The [Wilko] Court found that "[t]wo policies, not easily reconcilable, are involved in this case." On the one hand, the Arbitration Act stressed "the need for avoiding the delay and expense of litigation," and directed that such agreements be "valid, irrevocable, and enforceable" in federal courts. On the other hand, the Securities Act of 1933 was "[d]esigned to protect investors" and to require "issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale," by creating "a special right to recover for misrepresentation."'°0 arbitration of all claims."' The First Circuit reversed as to the antitrust claims, following American Safety Equipment Corp. v. J.P. Maguire & Co.,"2 0 which had held that antitrust claims were non-arbitrable.121 Focusing narrowly on the arbitrability of an antitrust claim arising in an international agreement, the Supreme Court reversed.,22 Recognizing that not "all controversies implicating statutory rights are suitable for arbitration,"123 the Court nonetheless found that the concerns raised in American Safety were insufficient in international cases to overcome the federal presumption favoring arbitration clauses.12, The majority further noted that where foreign arbitration did not, in hindsight, protect antitrust concerns, that the problem could be addressed at the award-enforcement stage even though this assumes that the award would be enforced in a United States court." As in Scherk v. Alberto-Culver Co., we conclude that concerns of international comity, respect for the capacities of foreign and transnational tribunals, and sensitivity to the need of the international commercial system for predictability in the resolution of disputes require that we enforce the parties' agreement, even assuming that a contrary result would be forthcoming in a domestic context"

". 5See id. at 616-17. 6 1' See id. at 617-18. "' 7 See id. at 618-19. "'.See id. at 619-20. 9 .. See id. at 620. 1120391 F.2d 821, 827-28 (2d Cir. 1968). "..See Mitsubishi,473 U.S. at 621-23. " 22 See id. at 640. "23/d.at 627. "24See id. at 629. 2 'See id. at 635-36. 6 1 1d. at 629.

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In a lengthy dissent, Justices Stevens, Brennan and Marshall contested the concept that "vague notions of international comity" compelled a different treatment for international disputes than for local ones regarding antitrust claims. ' 27 The dissent derided the majority's "repeated incantation of the high ideals of 'international arbitration' [that] creates the impression that this case involves the fate of an institution designed to ' 2 implement a formula for world peace.", 1 1 iv. Stewart Organization,Inc. v. Ricoh Corp. New Jersey-based Ricoh Corporation had a dealership agreement with Stewart Organization, a closely-held Alabama corporation, containing a choice of forum clause "providing that the courts in New York City, the Borough of Manhattan, would have 'exclusive jurisdiction over any case or controversy arising under or in connection with this Agreement and shall be a proper forum in which to adjudicate such case or controversy.' '' 129 In 1984, Stewart sued in federal court in Alabama for breach of contract and ° Invoking the forum related claims, as well as antitrust claims.""3 clause, Ricoh moved for a 28 U.S.C. § 1404(a) transfer to the Southern District of New York., 3 The federal district court denied the motion on the grounds that this was a contract issue controlled, under the Erie Doctrine, by Alabama law which disfavored forum clauses.-, The Eleventh Circuit reversed: it agreed that the Erie Doctrine applied, but determined that the issue was one of venue, not contract, and that for venue issues the Erie analysis favored federal law." In doing so, the appellate court obviously believed that section 1404(a) did not apply, and in the absence of federal law on point, the Eleventh Circuit applied the federal common law found 34 in Bremen. 11 The Supreme Court affirmed, but on very different grounds under the Erie Doctrine, setting the stage for a circuit split on what law governed forum clauses, in federal courts." 5 The Court agreed with the Eleventh

""Id. at 641 (Stevens, J., dissenting). 28 1d at 665 (Stevens, J., dissenting). "29Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066, 1067 (11 th Cir. 1987) (en banc) aff'd on other grounds, 487 U.S. 22 (1988). "'3See Stewart Org., Inc., 487 U.S. at 24 n.I. 31 1 See id. "32See id. 1133See Stewart, 810 F.2d at 1068. " 34See id. at 1069 (citing Bremen v. Zapata Off-Shore Co., 407 U.S. ^[1], 9-12 (1972)). 135See Stewart, 487 U.S. at 28.

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Circuit that this was a venue issue, but there was a federal statute on point, namely 28 U.S.C. § 1404(a).116 The Erie Doctrine flows from the Rules of Decision Act, which provides that state law is the rule of decision in federal courts, *"except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide." , " In this case, the Court determined that Congress had otherwise provided by enacting 28 U.S.C. § 1404(a), which the Court found on point."8 In doing so, the Court took care to highlight the difference between the Eleventh Circuit's analysis under Bremen and its own under 28 U.S.C. § 1404(a)." 39 Bremen enforces the parties' forum clause as a contractual obligation with comity as an additional consideration.1140 Section 1404(a) does not automatically enforce the forum clause, but uses it as a trigger for a § 1404(a) analysis, in which the parties' expectations, convenience, economy, and "those public- interest factors of systemic integrity and fairness ... under the heading of 'the interest of justice"' are elements.,4, All this is to be done in an "individualized, case-by-case consideration of convenience and fairness.",142 Thus, for intrafederal conflicts, Stewart holds that a forum clause may or may not be enforced, depending on the balancing of section 1404(a) factors. ' 3 In federal-foreign conflicts under Bremen, on the other hand, the federal court will honor the forum clause unless it is strongly contrary to public policy, or seriously inconvenient to the extent that the local plaintiff will be denied a fair trial. 44 The Supreme Court's affirmance on a different ground, that section 1404(a)'s role as a federal statute precluded Erie analysis, made no difference on the typical diversity case where the chosen forum was in the United States., 14 This holding had a significant impact, however, where the chosen forum was in a foreign country, for which transfers under 28 U.S.C. § 1404(a) are unavailable.1146 v. Carnival CruiseLines, Inc. v. Shute 6 11 See id. 17 28 U.S.C. § 1652 (1994). ""See Stewart, 487 U.S. at 29-32. ""See Stewart, 810 F.2d at 1068. 1""See id. at 1069. 4 1 'Stewart, 487 U.S. at 30. '" 21d. at 29 (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). 43 11 Id. at 29-30.

""See Bremen v. Zapata Off-Shore Co., 407 U.S. ^[1], 13-18 (1972). I"See id. at 15. 146See infra Part VII.A.^[3].

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The last of the five cases expanded the enforcement of forum clauses from Bremen's "freely negotiated agreement" standard to one honoring even fine print clauses in adhesion contracts."' The cruise began with the Shutes' purchase of tickets through a local Seattle travel agency for a Pacific cruise departing from Los Angeles. 148 Among other fine print in the three attached pages, the ticket included a clause requiring that all suits related to the cruise be litigated in Florida." 9 Mrs. Shute was injured in a fall aboard ship while off the west coast of Mexico, allegedly caused by Carnival's negligence.150 The Shutes filed suit in federal court in Washington state, which dismissed for lack of personal jurisdiction."" The Ninth Circuit reversed and further rejected Carnival's attempt to enforce the forum selection clause, finding that it was not freely negotiated and that the Shutes were physically and financially incapable of pursuing the litigation in Florida.' 52 The Supreme Court reversed the Ninth Circuit's holding, taking forum selection clauses to new extremes by holding that a non-freely-negotiated clause was sufficient to oust a court's otherwise valid jurisdiction and compel litigation in the selected forum, subject, of course, to judicial scrutiny for fundamental fairness. "" A brief summary is appropriate before examining the divergent law. In these five opinions, the Supreme Court held that: (1) forum selection clauses are enforceable unless they are unreasonable or violate public policy;"1' (2) adhesion contacts are not per se unreasonable;"', and (3) the burden to show unreasonableness is on the party challenging the clause.156 Thus, the Supreme Court has created a presumption favoring the enforcement of forum clauses. In international contracts, forum clauses calling for foreign arbitral tribunals are enforceable even for antitrust and securities claims that would not be arbitrable domestically."" Finally, forum selection clauses arising in federal courts, designating another federal courts as the proper forum for disputes are deemed venue contracts

"47See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 597-98 (1991). 114See id. at 587-88. 149See id. at 587-88.

""oSee id at 588. ""'See id. "152See id. at 589. ""See id. at 590-98. "14See Bremen v. Zapata Off-Shore Co., 407 U.S. ^[1], 15 (1972). "55See Carnival Cruise, 499 U.S. at 593. ""See Bremen, 407 U.S. at 15. ""See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth Inc., 473 U.S. 614, 640-41 (1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 519-20 (1974).

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and are to be evaluated under 28 U.S.C. § 1404(a), the inconvenient forum statute.'" 8 Stewart OrganizationInc. reversed an Eleventh Circuit opinion holding that the law governing forum clauses is an Erie question for which the answer may vary." 5 9 Additionally, Professor Lowenfeld concludes that the choice of law that may be made by the chosen forum is irrelevant. "Putting Zapata [Bremen], PiperAircraft, and Carnival Cruise together, it seems fairly clear that the 'heavy burden' required to overcome enforcement of a forum selection clause would not be satisfied by a showing by plaintiffs that if the clause were upheld they would be subject to a less favorable law .... ", Bremen, Scherk, and Mitsubishi Motors involved forum clauses choosing foreign tribunals.,61 Carnival Cruise and Stewart, on the other hand, are domestic.1162 While these first three cases seemingly turned on the issues surrounding the involvement of a foreign forum, subsequent cases often seem to apply precedents without weighing the foreign factor as heavily. Thus, Bremen is sometimes used for conflicts not involving a foreign court 61 3 while Stewart and Carnival Cruisehave been used in cases that do." ,6 b. Divergence as to GoverningLaw In spite of an apparently smooth synthesis in these five cases, a problematic question arises as to which law should be applied to forum clauses.116s This confusion gives rise to several issues. The first is which

115828 U.S.C. § 1404(a) (1994). See also Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1987). "'9487 U.S. 22, 28 (1988). "'Andreas F. Lowenfeld, INTERNATIONAL LITIGATION AND ARBITRATION 327 (West 1993). 116'MitsubishiMotors, 473 U.S. at 640; Sherk, 417 U.S. at 508; Bremen, 407 U.S. at 15. 1162499 U.S. 585, 587-88 (1991); 487 U.S. 22, 24 (1988). 1163See, e.g., International Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112, 113 (5th Cir. 1996) (following Bremen in state-federal conflict). ""See, e.g., Royal Bed and Spring Co. v. Famousssul Industria e Commercio de Moveis, Ltda., 906 F.2d 45, 50 (1st Cir. 1990) (applying Stewart to an international case). " 65 See BORN, INTERNATIONAL CIVIL LITIGATION, supra note 6, at 448-53 nn.l-12 (discussing various courts' approaches to the question of what law governs forum selection agreements); see also LAWRENCE W. NEWMAN & DAVID ZASLOWSKY, LITIGATING INTERNATIONAL COMMERCIAL DISPUTES, Ch. 6 (1996) (hereinafter "Newman & Zaslowsky, INTERNATIONAL COMMERCIAL DISPUTES"). See generally Comment, Your Place or Mine: The Enforceabilityof Choice-of-Law/Forum Clauses in InternationalSecurities Contracts, 8 DUKE J. COMP. & INT'L L. 469 (1998); Levin & Morrison, Kubis and the Changing Landscape of Forum Selection Clauses, 16 FRANCHISE L. J. 97 (1997); Comment, Forum Selection Clauses and

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law governs the clause's acceptability? In a federal court, the possibilities are (1) federal statutory law,"" (2) federal common law,,167 (3) state law under the Erie Doctrine, or (4) the law governing the contract. In a state court, the choices are (1) the forum state's law, (2) the law governing the contract, and (3) in international cases, federal common law under Bremen to promote national uniformity. The second issue: if forum clauses are acceptable under the governing law, which law governs the contract's validity, and which law governs its interpretation? The answer depends not only on which court considers the clause, but on the forum to which the case might move. This analysis breaks into the categories employed in this article: intrajurisdictional, interstate, state-federal, and international. This section will discuss the entire range of answers briefly, with cross references to other sections. A third important choice of law issue is the prorogation/derogation distinction. "Prorogation" is the conferral of jurisdiction by the agreement of the parties, for example, in the contract containing the forum selection clause." 61 "Derogation" occurs if the forum clause is exclusive, thatis, the forum clause is in derogation of other courts jurisdiction." 69 In prorogation instances, the question is whether the chosen forum will accept the parties' agreement as a conferral of jurisdiction on its court. ' 70 In derogation instances, where one party ignores the forum clause and files in a different forum, the question is whether a forum not selected by the parties will enforce the forum clause and subordinate its own jurisdiction to the chosen forum's.""11 There is an important difference in the applicable law. In derogation cases, as most of these are, the issue is whether the forum will enforce the forum clause under any of the theories discussed below., 72 But in prorogation cases where a party has filed in the chosen forum consistent with the parties' earlier agreement, and the other party challenges the clause, the issues may include amenability.' Although amenability may

Forum Non Conveniens in InternationalEmployment Contracts, 4 J. INT'L L. & PRAC. 117 (1995); Park, Bridging the Gap in Forum Selection: Harmonizing Arbitration and Court Selection, 8 TRANSNAT'L L. & CONTEMP. PROBS. 19 (1998); Rapore & Stockel, Selecting the ProperForum To Enforce One's Choice of Forum, 18 FRANCHISE L. J. 7 (1998). ""See 28 U.S.C. § 1404(a) (1994). "67See generally Bremen v. Zapata Off-Shore Co., 407 U.S. ^[1] (1972). ""6'See EUGENE SCOLES & PETER HAY, CONFLICTS OF LAW 361 (2d ed. 1992). 'S69Seeid. "170See id. 17'See id. 2 StTSee id. 117 See id.

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have elements in common with some of the theories for enforcing forum clauses, the distinction could nonetheless be outcome determinative if, for example, a federal court in a diversity case would apply the state long arm statute, along with the due process test, to amenability questions, and federal law to forum selection questions.1174 c. IntrajurisdictionalCases Where both the considering court and the chosen court are federal, forum clauses are viewed as contractual venue choices, requiring the instant court to conduct a venue transfer analysis under 28 U.S.C. § 1404(a), in which the factors that are considered include the parties' 11 7 contractual choice of forum, convenience and economy. There are at least three instances where forum selection clauses are not governed by section 1404(a). The first is where the plaintiff files the suit in a federal court in the designated location, but the defendant challenges personal jurisdiction, and federal law differs from that state's law on whether a forum selection clause waives personal jurisdiction objections."7 The second is where the forum clause specifies a state court, making a section 1404(a) venue transfer irrelevant." 7 The third is where the designated forum is a foreign country.' 8 Where both courts are in the same state, the law will vary by state. Texas, for example, authorizes venue by agreement,1 179 which presumably applies to forum clauses, although no cases are reported111° acceptability and validity. Some states have yet to rule definitively on the issue. For example the Oklahoma Supreme Court, as of 1995, had not ruled on forum clauses' enforceabilty, even in an interstate setting. ^[8] 1 Until recently, Alabama maintained the older view that the clauses are an unacceptable ousting of jurisdiction,"" replacing that with a Bremen-based rule in 1997.1186 The issue of which law governs the enforcement issue is, for the most part, not discussed in these cases, but presumably forum law governed.,117 e. State-FederalCases Federal courts will enforce a forum clause that specifically designates a state court, dismissing the federal action for refiling in the chosen state court. 8" Here too, choice of law is an ongoing issue. In International Software Systems, Inc. v. Amplicon, Inc., the Fifth Circuit examined the circuit split, finding that other federal courts had considered the different possible choices of (1) federal common law under Bremen, (2) the "importing" of federal statutory law under section 1404(a), and (3) state law1'19 The court chose Bremen, explicitly rejecting the Fourth Circuit's choice of state law.1l90 The Second Circuit also applies federal law."''9

't8'See, e.g., Accelerated Christian Educ., Inc. v. Oracle Corp., 925 S.W.2d 66, 73-74 (Tex. App.--Dallas 1996, no writ). " 2See Greenwood v. Tillamook Country Smoker, Inc., 857 S.W.2d 654, 656 (Tex. App.-- Houston [lst Dist.] 1993, no writ); Sarieddine v. Moussa, 820 S.W.2d 837, 839 (Tex.App.-- Dallas 1991, writ denied); see also supra Part IV.B.^[3]. "8 3Greenwood, 857 S.W.2d at 656; Sarieddine, 820 S.W.2d at 839. 84 1 See Bakhsh v. JACRRC Enters., Inc., 895 P.2d 746 (Okla. Ct. App. 1995) (citing the RESTATEMENT (SECOND) OF CONFLICT OF LAWS, § 187 (1971)). 5 "" See White Spunner Constr., Inc. v. Cliff, 588 So. 2d 865 (Ala. 1991). " 6See Professional Ins. Corp. v. Sutherland, 700 So. 2d 347, 350 (Ala. 1997). "See supra Part IV.B.^[3] (listing states enforcing forum clauses under Bremen guidelines and others with qualifications). l11"See, e.g., International Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112 (5th Cir. 1996). ""See International Software Sys. Inc., 77 F.3d at 115. "19 See id; see also Nutter v. Rents, Inc., 945 F.2d 398 (4th Cir. 1991) (unpublished opinion).

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The Third Circuit, like the Fourth, applies state law to determine the enforceability of forum clauses that designate a state forum.1192 In re Diaz Contracting,Inc. used New Jersey law to enforce a contract's designation that "all actions arising under the contract be brought in the courts of the State of New York. ' ' 193 The court reiterated prior Third Circuit law rejecting Bremen's application to all forum selection issues." 94 Applying New Jersey law, the court found that Bremen applied anyway, because the parties had chosen New York law, which applied Bremen, and New Jersey also followed Bremen. ^[1] In FarmlandIndustries, Inc. v. Frazier-ParrottCommodities, Inc., the Eighth Circuit applied both federal law and Missouri state law to reject the clause's selection of Illinois state courts.11 96 The parties had entered a commodities futures trading agreement which included a clause providing that suits could be brought "only in courts located within Cook County, Illinois. . .. ""'l Plaintiff Farmland sued in the Western District of Missouri, alleging federal securities fraud as well as other state and federal claims.' '1 The court held that plaintiffs claims were broader than those contemplated by the agreement, and that "where a fiduciary relationship.. . is created by a contract tainted by fraud, the person defrauded can not [sic] be held to the contractual forum selection clause. ' '' 99 The court also stated that "consideration should be given to the public policy of Missouri forbidding forum clauses."' 200 Note that this case was decided prior to Stewart, when some federal courts were applying state law even to intra- federal conflicts. Kessman & Associates v. Barton-Aschman & Associates illustrates the application of a forum clause to a subcontractor whose contract did not expressly contain the clause,120° though this is countered by other cases that otherwise honor forum clauses.21 f InternationalCases State and federal courts in the United States will generally enforce forum clauses designating foreign courts under the same standards applied to domestic forum clauses; a forum clause will be applied unless it is unreasonable or violates forum public policy. Boiler plate clauses are not unreasonable, and the possibility of a less favorable governing law is not necessarily a violation of public policy.1204 In spite of this pro-forum clause standard, if the reasonableness and policy factors have any meaning at all, they are magnified by the prospect of litigation in a foreign forum. Thus, a non-western forum is more likely to raise local public policy concerns, directed both to procedural and substantive legal issues, as well as raising convenience issues undermining the clause's reasonableness.205 On the other hand, federal practice mandates the enforcement of foreign forum clauses in circumstances where they would not be enforced in a domestic conflict.206 This has led one treatise to compare the United States standard for enforcing foreign forum clauses to that of many other countries where business at Lloyd's." 214 Plaintiffs sued in the Southern District of California, alleging federal securities fraud and RICO violations, along with other state and federal claims.25 Defendants moved for dismissal to enforce the forum clause, which plaintiffs argued was overridden by the anti-waiver provisions of the 1933 Securities Act.' 2 6 The Ninth Circuit affirmed the lower court's dismissal, holding that Bremen applied to international contracts with forum clauses in spite of Congress' anti-waiver provisions in the 1933 Act.' 27 Richards and its forerunners seemingly extend the Scherk principle to non-arbitration cases requiring that federal securities fraud claims arising from international contracts are subject to forum clauses that designate non conveniens enunciated in Stewart and similar cases. Under this approach, the court observed that "the forum selection provision in the [parties' agreement] is not given dispositive effect. Rather, it is simply one of the factors that should be considered and ' balanced by the courts in the exercise of sound discretion."46 However, three years later in' Lambert v. Kysar, the First Circuit ignored this precedent and avoided the Erie choice of law questions entirely.1247 The Seventh Circuit applied Bremen to validate a forum clause in an international case in PaperExpress, Ltd. v. Pfankuch Maschinen GmbH.^[14] Although there was no choice of law discussion, the court cited Northwestern National Insurance Co. v. Donovan, in which Judge Posner observed the circuit split on governing law and held in dicta that federal law no doubt governs. 21 9 Similarly, the D.C. Circuit applied Bremen to validate a forum clause pointing to Italy in a diversity case, but without a choice of law analysis.1210 The Second Circuit has applied Bremen to an international contract in a diversity case, but the issue was interpretation and not validity.'2 ' There was no choice of law discussion, but if Bremen applies to forum clause interpretation in the Second Circuit, it would presumably apply to validity.

applying federal law to interpretation issues. 1'

The Seventh Circuit offers a different approach. In dicta, Judge Posner has stated that "[v]alidity and interpretation are separate issues, and it can 127219 F. Supp. 2d 1276, 1280 (M.D. Ala. 1998) (citing Professional Ins. Corp. v. Sutherland,

700 So. 2d 347, 350 (Ala. 1997)). 1271810 F.2d 1066, 1067 (1Ith Cir. 1987), aff'don other grounds, 487 U.S. 22 (1988). 274 See Northwestern Nat'l. Ins. Co. v. Donovan, 916 F.2d 372, 374 (7th Cir. 1990). 12756 F. Supp. 2d 1371, 1374 (N.D. Ga. 1998). 276 1 1d. at 1373.

.27 7See id. at 1374. 278 ' 1d. at 1374-75. 279 1 See id. 0 121See id. at 1374. 2 I S'See John Boutari and Son, Wines and Spirits, S.A. v. Attiki Importers & Distribs. Inc., 22 F.3d 51, 52-53 (2d Cir. 1994).

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be argued that as the rest of the contract in which a forum selection clause is found will be interpreted under the principles of interpretation followed by the state whose law governs the contract, so should that clause be." '2 2 That case applied Bremen to validity issues, and Posner's approach thus calls for federal common law to govern forum clause validity, and the law governing the contract to govern interpretation issues.'28 3 The Third Circuit followed this approach, without citation, in Instrumentation Associates, Inc. v. Madsen Electronic, holding that the parties' choice of Ontario law applied to interpretation of the forum clause as permissive or exclusive although it was a false conflict since Pennsylvania forum law would interpret it the same. 21 4 In Terra International, Inc. v. Mississippi Chemical Corp., the court avoided the issue and applied contract law from all three possibilities: federal common law, Iowa forum law, and Mississippi as the parties' chosen law.285 h. The ProrogationDistinction The forum clause cases discussed to this point have been derogation cases involving suits filed in forums other than the one chosen in the forum clause. These cases address whether the clause successfully derogated from the immediate court's jurisdiction. The issues and applicable law may differ in prorogationcases, where the plaintiff sues in the contracted- for forum, and the defendant challenges both the forum clause and personal ' jurisdiction. The Proudfoot case is a well-reasoned example. 286 Alexanander Proudfoot Company filed suit in Florida to enforce a non- compete agreement against a former employee, Thayer, who had worked at various locations in Brazil and Europe.287 The employment contract had a forum clause exclusively designating "the federal and state courts located in the state of Florida."'128 When Thayer resigned and took a job with a competitor in California, Proudfoot sued in Florida state court. ^[2] 9 Thayer removed the case to federal court and then challenged Florida's the meaning of those requirements and the standards that might attach.^[1] When using this test in a parallel litigation setting, as opposed to one in which no other lawsuit has been filed, there should be no difference in the argument or the analysis. The movant should bear the same burden of persuasion in both instances, and it should be understood that the mere fact of having a parallel case does not compel the dismissal of other cases. The court must apply just as strict an analysis under Gilbert as it would in the absence of a pending parallel case. 326 In that case, the court denied both a stay and a forum non conveniens dismissal of the United States action,137 noting that the defendant bears the burden of persuasion at all times.132,8 The court concluded that the defendant had not met that burden, and that

132'Gilbert, 330 U.S. at 508. 3 22 1 1d. at 508-09. 323 1 See In.re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, 205-06 (2d Cir. 1987). 324 1 See id. at 198. 132'See id. at 205-06. 326 1 See generally American Cyanamid Co. v. Picaso-Anstalt, 741 F. Supp. 1150 (D. N.J.

1990) (holding that dismissal under the doctrine of forum non conveniens is not warranted even if the French forum could not respolve the dispute). 327 1 See id. at 1159. 28 '1 See id. at 1155.

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the alternative French forum did not satisfy the public and private interests tests." 9 Moreover, plaintiffs should not rely on the fact that the other forum has already taken jurisdiction of the controversy. Rather, plaintiffs should insist that the dismissing court condition such dismissal upon the case being litigated on the merits in the other forum, with a fall back position that if the other case is resolved other than on the merits, the dismissing forum will reassume jurisdiction.1330 In spite of the Gilbert test's unquestioned dominance of international forum non conveniens in federal courts, not all issues are settled. One split among the United States courts of appeals concerns the application of forum non conveniens in antitrust cases involving foreign parties. In United States v. National City Lines, Inc., hereinafter National City I, the Supreme Court held that forum non conveniens could not be applied in antitrust suits involving domestic parties.33l National City I, was overruled in United States v. National City Lines Inc. due to the Court's interpretation of the then-recently-enacted 28 U.S.C. § 1404, as governing inconvenient forum transfers within the federal system. ^[3] 2 This resolved the question of forum non conveniens in domestic antitrust cases, but left open the international question. The Fifth Circuit held that National City I governs all instances of forum non conveniens, both domestic and international, and that National City II overruled it only in regard to intrafederal transfers.^[1] 33 The United States Courts of Appeals for the First and Second Circuits disagree with the Fifth Circuit, holding that National

1329See id. at 1157-58; accord Biblical Archaeology Soc'y v. Qimron, No. CIV.A.92-5590, 1993 WL 39572, at *4 (E.D. Pa. 1993); see generally Lacey v. Cessna Aircraft Co., 862 F.2d 38 (3d Cir. 1988) (dicussing the burden of proof for forum non conveniens dismissals). ""°See generally Rolls Royce (Canada), Ltd. v. Cayman Airways, Ltd., 617 F. Supp. 17 (S.D. Fla. 1985) (holding that in a suit against a Cayman Island defendant by a resident plaintiff in federal court, dismissal on grounds of forum non conveniens is appropriate). For other useful discussions of forum non conveniens in an international setting, though not necessarily a parallel litigation setting, see generally In re Air Crash DisasterNear New Orleans,La., 821 F.2d 1147 (5th Cir. 1987) (holding that the district court did not abuse its discretion in denying a motion to dismiss on grounds of forum non conveniens in a suit by Uruguayan plaintiffs); DeYoung v. Beddome, 707 F. Supp. 132 (S.D.N.Y. 1989) (dismissing on grounds of forum non conveniens and comity in light of pending Canadian litigation); MAURICE ROSENBERG, CONFLICT OF LAWS 189-92 (10th ed. 1996). 1331334 U.S. 573, 580 (1948). 3 2 a United States v. Nat'l City Lines, Inc., 337 U.S. 78, 83-84 (1949) (holding that 28 U.S.C. § 1404 overruled National City 1). .3 .See Industrial Inv. Dev. Corp. v. Mitsui & Co., 671 F.2d 876, 890 (5th Cir. 1982); accord Kempe v. Ocean Drilling & Exploration Co., 876 F.2d 1138, 1144-45 (5th Cir. 1989).

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City I did not consider international cases, which are therefore subject to forum non conveniens motions.' b. Removal to FederalCourt to Obtain Different Forum Non Conveniens Law Removal to federal court is one tactic in seeking a forum non conveniens dismissal. That is, defendants in state court cases based partly or wholly on foreign events, with claims arising under federal law or having the elements of diversity jurisdiction, may remove the case to federal court to file the forum non conveniens motion. Reasons for removing a case to federal court range from a perception of the federal court's more liberal application of Gilbert to an outright unavailability of forum non conveniens in the state court. Removing the case to federal court will not work if the desired forum is another state in the United States. ^[3] This is so because in American Dredging Co. v. Miller, the Supreme Court held that federal courts should apply state law in forum non conveniens issues in a domestic setting.1336 Although the Supreme Court has refrained from ruling on the same question involving a foreign setting, 1331 the negative implication in American Dredging nonetheless suggests a uniform federal law of forum non conveniens in cases involving some foreign parties. In spite of the Court's avoidance in Piper,this rule has been followed consistently and is clearly the appropriate choice according to Professor Wright.'" 8 The First, Fifth, Tenth and Eleventh Circuits have held that federal law applies to forum non conveniens motions in federal courts, 339 and that a federal court

may dismiss for forum non conveniens where a state court would not. Plaintiffs hoping to take advantage of state forum non conveniens law, or the lack thereof, will understandably attempt to avoid removal by restricting the prayer for damages to less than the diversity amount until

'334See Howe v. Goldcorp Inv., Ltd., 946 F.2d 944, 948-49 (1st Cir. 1991); Capital Currency Exch., N.V. v. National Westminster Bank PLC, 155 F.3d 603, 607-08 (2d Cir. 1998). See American Dredging Co. v. Miller, 510 U.S. 433,456 (1994). .... 33 6 1 1d" 33 7 1 See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248 n.13 (1981). 33 1 $See C. WRIGHT, FEDERAL PRACTICE & PROCEDURE § 3828, at n.42. 1339That is, those not governed by 28 U.S.C. § 1404. See supra Part II.B.^[4]. 134 0See Seguros Comercial Am. S.A. v. American President Lines, Ltd., 105 F.3d 198, 199 (5th Cir. 1996); Rivendell Forest Products, Ltd. v. Canadian Pac. Ltd., 2 F.3d 990, 993-94 (10th Cir. 1993); Royal Bed & Spring Co. v. Famossul Industria, 906 F.2d 45, 50 (1st Cir. 1990); Sibaja v. Dow Chem. Co., 757 F.2d 1215, 1216-17 (11 th Cir. 1985).

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the one year removal time has passed under 28 U.S.C. § 1446(b). Defendants will understandably try to establish the potential for a higher recovery. This forum-selection struggle was at issue in De Aguilar v. Boeing Co., a case involving a wrongful death claim in a Texas state court based on an airplane crash in Mexico.'1'1 Plaintiffs, or others with related claims, had filed at least four other lawsuits in state and federal courts in the United States, all dismissed either voluntarily, or on grounds of sovereign immunity or forum non conveniens.32 In this case, plaintiffs wished to restrict their damages to an amount less than the federal jurisdictional amount, $50,000 at the time, but were thwarted by Texas law which did not allow pleading for a specific amount of damages.11 3 When defendants removed the case to federal court, plaintiffs submitted affidavits ' stipulating their damages as less than the diversity jurisdiction amount. ^[14] The district court denied remand, and the Fifth Circuit affirmed.^[1] 41 Defendants then moved for a forum non conveniens dismissal.1346 The court noted that in wrongful death cases, forum non conveniens was unavailable in Texas at the time the action accrued,' 34 7 but because removal was valid, federal law governed forum non conveniens and the case was dismissed. Torres v. Southern Peru Copper Corp., provides an additional point on removal aimed at dismissal. 41 Torres involved a toxic tort claim by Peruvian citizens against the defendant, a Delaware corporation with its principal place of business in Peru.' 34 9 The government of Peru submitted a letter to the State Department urging dismissal on the grounds of adverse effects on foreign policy.1350 The Torres court first noted that it could not consider a forum non conveniens motion until it had resolved questions of subject matter jurisdiction.135 The court found questions as to subject matter juridiction under both federal question (federal common law regarding the case's implications to United States foreign policy) and

134147 F.3d 1404, 1406 (5th Cir. 1995). ' 34'See id. at 1406-07. 43 11 See id. at 1407. 344 1 See id. 1345See id. at 1408 346 1 See id. 347 D See id. 1141 13 F.3d 540, 542 (5th Cir. 1997). 349 1 d. at 541. 350 ' See id. at 542. 1 ""I 1d. at 542-43.

948 BAYLOR LAWREVIEW [Vol. 51:4

diversity jurisdiction (as a Delaware corporation with its principal place of business in Peru; the defendant was solely a Delaware citizen for diversity purposes, thus creating diversity with the Peruvian plaintiffs).'" Two conclusions flow from Torres. First, a state court defendant seeking a federal ruling on forum non conveniens dismissals must clearly establish federal removal jurisdiction. Second, removal jurisdiction in a typical state court action may exist not only on diversity grounds, but also as a federal question in cases where foreign policy is implicated by adjudication in the United States of a foreign dispute. Torres must be read, however, in light of the Supreme Court's recent holding in Ruhrgas AG v. Marathon Oil Co. 353 In Ruhrgas, the defendant removed a state action to federal court seeking dismissal on personal jurisdiction grounds, an issue that could have been decided in state court.'31 4 Plaintiff challenged the basis for removal, and in a nine to seven en banc opinion, the Fifth Circuit held that after removal from state court, a federal court must first resolve questions of subject matter jurisdiction before addressing dismissal on personal jurisdiction grounds.13-5 The Supreme Court reversed, holding that although questions of subject matter jurisdiction should ordinarily be decided first, a federal court has discretion to decide a straightforward question of personal jurisdiction first, if faced with a complex issue of subject matter jurisdiction that is "resolved" by dismissal on personal jurisdiction grounds.^[13] 6 Torres and Ruhrgas may be analogous in that both involved the defendant's removal to federal court for a dismissal motion rather than adjudication on the merits. The analogy is weakened in that forum non conveniens is a discretionary question while personal jurisdiction is a question of law. In other words, while it may be permissible to dismiss on legal grounds prior to resolving subject matter jurisdiction questions, it may not be permissible to dismiss on discretionary grounds without establishing subject matter jurisdiction. This point is underscored by the accepted view that forum non conveniens is inapplicable in a court that lacks either subject matter jurisdiction or personal jurisdiction. 357 Nonetheless, the Supreme Court's reversal in Ruhrgas raises questions about Torres.

13521d. at 543-44. 1153526 U.S. 574. 354 1 at 587-88. M1d. '355See Marathon Oil Co. v. A.G. Ruhrgas, 145 F.3d 211, 225 (5th Cir. 1998). '356See Marathon, 526 U.S. at 588. 357 1 See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (2d Cir. 1947).

1999] PARALLEL LITIGATION 949

c. EnjoiningRepetitive Litigation ofForeign Claims Previously Dismissedon Forum Non Conveniens Grounds Injuries and deaths in foreign countries often end up as claims in state or federal courts in the United States, if there is a basis for personal jurisdiction. Whether our courts should provide a forum for such claims is controversial.- , These claims are sometimes dismissed on forum non conveniens grounds, 359 but claimants are not always deterred by the first or second dismissal. Villar v. Crowley Maritime Corp., arose from Renerios Villar's drowning death in Saudi Arabia, where he worked for a Saudi corporation on a tug boat registered in Panama. 1360 The Philippino employment contract governing Villar's employment provided that any resulting injuries could be compensated either under Philippine law or Panamanian law.116 ' His survivors, all from the Phillipines, sued first in a California federal court, then in a California state court, then in a Texas state court.'3 62 The two California state courts dismissed the cases on forum non conveniens grounds, conditioned on defendants' agreement to litigate in the Philippines.1363 Plaintiffs did not sue in the Philippines, in Saudi Arabia, or in Panama, but instead brought a third claim in Texas

358 See generally George D. Brown, The Ideologies of Forum Shopping: Why Doesn 't a Conservative Court Protect Defendants?, 71 N.C. L. REV. 649 (1993)) (identifying inconsistencies in the Supreme Court's treatment of federal law vs. state law forum shopping and state law vs. state law forum shopping); Laurel E. Miller, Forum Non Conveniens and State Control of Foreign PlaintiffAccess to US. Courts in International Tort Actions, 58 U. CHI. L. REV. 1369 (1991) (stating that the federal courts' interpretation of the forum non coveniens doctrine has closed the federal courts' doors to foreign plaintiffs); William L. Reynolds, The Proper Forum for a Suit: Transnational Forum Non Conveniens and Counter-Suit Injunctions in the Federal Courts, 70 TEX. L. REV. 1663 (1992) (examining the effects of expansive interpretations of forum non conveniens on transactional litigation); David W. Robertson, The Federal Doctrine of Forum Non Conveniens: An Object Lesson in Uncontrolled Discretion, 29 TEX. INT'L L.J. 353 (1994); Linda J. Silberman, Developments in Jurisdiction and Forum Non Conveniens in International Litigation: Thoughts on Reform and a Proposal for a Uniform Standard, 28 TEX. INT'L L.J. 501 (1993) (discussing forum shopping as part of a responsible litigator's job as well as legislation in Texas that permits forum non conveniens dismissal where it was previously unavailable); Russell J. Weintraub, International Litigation and Forum Non Conveniens, 29 TEX. INT'L L.J. 381 (1994) (advocating understandable choice of law rules for liability issues). 1359See, e.g., De Melo v. Lederle Labs., 801 F.2d 1058, 1059 (8th Cir. 1986). '160990 F.2d 1489, 1492 (5th Cir. 1993). 6 litigation has been issued in a domestic setting limited to federal courts.' However, in a federal-state setting, litigation may be barred by the Anti- Injunction Act, under which the Supreme Court limits antisuit injunctions to matters actually decided in the federal action.' ' 4. Dismissal or Stay of In Rem Cases The requirements are somewhat clearer and more predictable for in rem litigation, that is, cases involving jurisdiction over property that is at least theoretically within the court's possession. In these cases, the first-filed rule is applied far more uniformly, with fewer exceptions based on misconduct and forum shopping. The general rule is that the court first obtaining jurisdiction over the property be allowed to adjudicate the matter without interference. 317 The doctrine is attributed to the Princess Lida case, involving a dispute over a trust in parallel domestic cases.' 373 The Court stated the rule broadly: We have said that the principle applicable to both federal and state courts that the court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, is not restricted to cases where property has been actually seized . . .but

""See id. at 1493. 365 1 See id. 13661d" 1 6'See id. at 1499. 136828 U.S.C. § 2283 (1994). See supra Part V.D.^[2]. 1369613 F.2d 114, 116 (5th Cir. 1980). 1370See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1518 (9th Cir. 1983). 17See Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 148 (1988); see also Deus v. Allstate Ins. Co., 15 F.3d 506, 524 (5th Cir. 1994). '372See Princess Lida v. Thompson, 305 U.S. 456, 466 (1939). 13731d.

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applies as well where suits are brought to marshal assets, administer trusts, or liquidate estates, and in suits of a similar nature where, to give effect to its jurisdiction, the court must control the property. The italicized phrase embraces quasi in rem jurisdiction, now disapproved in the United States to the extent that it authorizes jurisdiction based only on the presence of defendant's unrelated property in the forum.1371 In fact, in Princess Lida the state court's jurisdiction was described as quasi in rem, 3 76 even though the state court action related to a Pennsylvania trust and sought an accounting and specific performance by the trustee, all seemingly in rem matters. 377 Nevertheless, because of Shaffer's disapproval of quasi in rem jurisdiction, the rule should currently be read without the italicized phrase, but only in regard to parallel actions within the United States. Where the first-filed case is in a foreign forum that exercises quasi in rem jurisdiction, arguably, the Princess Lida rule mandates deference to that first-filed case, even though its language is limited to "federal and state courts.'"1 Princess Lida's rule for state and federal courts applies equally where one of the actions is foreign.137 In Dailey v. The National Hockey League, the Third Circuit dismissed a United States action in deference to a parallel Canadian action involving a trust, stating that the Princess Lida doctrine is "a 'mechanical rule' which requires that the court in which the second suit is brought yield its jurisdiction if the requisite 'property' showing is made." 1380 Dailey employed a two-part test from PrincessLida: "(1) the litigation in both the first and second fora are in rem or quasi in rem in nature, and (2) the relief sought requires that the second court exercise control over the property in dispute and such property is already under the ' control of the first court."1381 The most common examples are bankruptcy and receiverships, wherein the rule is statutory and perhaps more favorable to local creditors who need

'3741d. (emphasis added). 37 SSee Shaffer v. Heitner, 433 U.S. 186, 212 & n.39 (1977). 1376305 U.S. at 467. 13"Id. at 458. 13"ld. at 466. 37 ' 9See Dailey v. The National Hockey League, 987 F.2d 172, 176 (3d Cir. 1993). 8 13 °Id. (quoting PPG Industries, Inc. v. Continental Oil Co., 478 F.2d 674, 677 (5th Cir. 1973)). '381 Id. (citing Princess Lida, 305 U.S. at 466); see also Poseidon Schiffahrt v. M/S Netuno, 335 F. Supp. 684, 687 (S.D. Ga. 1972) (dismissing in favor of parallel Canadian action).

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protection. Federal law requires its courts to defer to foreign bankruptcy proceedings,112 "provided the foreign laws comport with due process and fairly treat claims of local creditors."'" s The Bankruptcy Code further authorizes the dismissal or suspension of a United States bankruptcy action if "there is pending a foreign proceeding" and certain factors are met.'4 For these purposes, a "foreign proceeding" is one "in a foreign country in which the debtor's domicile, residence, principal place of business, or principal assets were located at the commencement of such proceeding, for the purpose of liquidating an estate, adjusting debts by composition, extension, or discharge, or effecting a reorganization."-, 5 Under these and similar provisions, a number of federal courts have deferred to foreign proceedings."" There are exceptions, and United States courts need not invariably defer to foreign insolvency proceedings."7 In Underwood an involuntary bankruptcy petition filed in the United States was held not to violate an injunction by the High Court of Nevis (in Malaysia) against other insolvency proceedings., This holding is mitigated by the fact that the Nevis court had not formally obtained jurisdiction over the assets, and that its injunction was not operative against the United States creditors who filed the involuntary bankruptcy proceeding." 89 Nonetheless, the Underwood opinion notes that under the United States Bankruptcy Code, the court had the discretion to dismiss the local action, but was not required

82 . See 1IU.S.C. § 304 (1994). ' "Victrix S.S. Co. v. Salen Dry Cargo, 825 F.2d 709, 714 (2d Cir. 1987) (citing Canada S. Ry. Co. v. Gebhard, 109 U.S. 527, 539 (1883)). 138411 U.S.C. § 305(a)(2)(A)-(B) (1993). 138511 U.S.C. § 101(23) (1994); see also Underwood v. Hilliard, 98 F.3d 956, 960 (7th Cir. 1996). 1316See generally Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 1002 (2d Cir. 1993) (deferring to Australia); Cunard S.S. Co., v. Salen Reefer Servs., 773 F.2d 452, 461 (2d Cir. 1985) (deferring to Sweden); Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 165 B.R. 379, 386 (S.D.N.Y. 1994) (deferring to Peru); Lindner Fund, Inc. v. Polly Peck Int'l PLC, 143 B.R. 807, 810 (S.D.N.Y. 1992) (deferring to the United Kingdom); Caddel v. Clairton Corp., 105 B.R. 366, 368 (N.D. Tex. 1989) (dismissing district court claim in deference to Canadian bankruptcy proceeding); Daniels v. Powell, 604 F. Supp. 689, 698 (N.D. Ill. 1985) (deferring to Bermuda); Kenner Prods. Co. v. Societe Fonciere et Financiere Agache-Willot, 532 F. Supp. 478, 480 (S.D.N.Y. 1982) (deferring to France). The Pravin, Linder, and Caddel decisions, although reported in the Bankruptcy Reporter, are dismissals of district court claims in deference to foreign insolvency proceedings. " 87See Underwood v. Hilliard, 98 F.3d 956, 961 (7th Cir. 1996). 138SId. 9See id. ...

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to do so.^[3] 90 Similarly, in Elgin Sweeper Co. v. Melson Inc., the court held that the principle of comity and the parties failure to obtain permission from the Canadian court in a pending Canadian bankruptcy proceeding, could be sufficient grounds for dismissal of a related United States action for fraud. 1391 Forum selection agreements may provide other grounds to override in rem jurisdiction. For example, in Bremen, the Supreme Court vacated and remanded the Fifth Circuit's endorsement of an in rem admiralty case, based on a policy favoring forum selection agreements, thus dismissing the first-filed United States action in deference to a second-filed English action that fulfilled the parties' contractual choice of forum. ^[2]

B. FederalInjunctionsAgainst ForeignLitigation

1. Historical Development Authorities describe four circumstances for antisuit injunctions: (1) stopping litigation of the same dispute in another forum; 93 (2) consolidating related but not identical claims in the moving party's preferred forum; 1 94 (3) the prevailing party in a completed case, stopping the relitigation in the other forum; 119and (4) preventing the opponent from seeking an antisuit injunction in the other forum through an anit-antisuit injunction.'"9 As with federal antisuit injunctions against parallel state litigation, federal courts derive their injunctive authority from the All Writs Act, 97 although the power to enjoin foreign litigation may exist independently." 9, Unlike federal injunctions against state litigation, federal courts may enjoin parties from foreign litigation without regard to the

0 "9 d. at 960. 1391884 F. Supp. 641,650 (N.D.N.Y. 1995). " 9 2 Bremen v. Zapata Off-Shore Co., 407 U.S. ^[1], 15 (1972); supra Part VII.A.^[2].a. 3'See Compagnie des Bauxites de Guinea v. Insurance Co. of N. Am., 651 F.2d 877, 887 (3d Cir. 1981); Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 626 (5th Cir. 1996). 1394See Seattle Totems Hockey Club, Inc. v. National Hockey League, 652 F.2d 852, 854-55 (9th Cir. 1981). '-See Bethell v. Peace, 441 F.2d 495, 498 (5th Cir. 1971); Scott v. Hunt Oil Co., 398 F.2d 810, 811 (5th Cir. 1968). ""See Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 930 (D.C. Cir. 1984); Owens-Illinois, Inc. v. Webb, 809 S.W.2d 899, 902 (Tex. App.-Texarkana 1991, writ dism'd w.o.j.); see generally BORN, INTERNATIONAL CIVIL LITIGATION, supra note 6, at 475. 139728 U.S.C. § 1651 (1994). "39"SeeCole v. Cunningham, 133 U.S. 107, 124 (1890) (stating that courts of equity have power to enjoin parties within their jurisdiction from prosecuting actions in foreign countries).

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federalism concerns found in enjoining state court litigation. Those issues are replaced, however, by considerations of comity and deference to foreign policy that can result in an equally difficult standard. Because of the other disagreements in remedies for parallel litigation, it is no surprise that federal law is split on the requirements for issuing an antisuit injunction against foreign litigation. This split is best understood by briefly recounting the cases sequentially. One of the earlier reported cases is Gage v. Riverside Trust Co., in which defendants were restrained from an action in England on claims regarding loan securities pending in the California federal court.' 3" The court drew from Justice Story, among others, in finding authority to grant the antisuit injunction: But, although the courts of one country have no authority to stay proceedings in the courts of another, they have an undoubted authority to control all persons and things within their own territorial limits. When, therefore, both parties to a suit in a foreign country are resident within the territorial limits of another country, the courts of equity in the latter may act in personam upon those parties, and direct them, by injunction, to proceed no further in such suit. In such a case these courts act upon acknowledged principles of public law in regard to jurisdiction. They do not pretend to direct or control the foreign court, but, without regard to the situation of the subject-matter of the dispute, they consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by process in personam. ...It is now held that, whenever the parties are resident within a country, the courts of that country have full authority to act upon them personally, with respect to the subject of suits in a foreign country, as the ends of justice may require, and, with that view, to order them to take, or omit to take, any steps and proceedings in any other court of justice, whether in the same country, or in any foreign country.14°° respects.' 04

2. Current Law The modem discussion starts with a Fifth Circuit case, In re Unterweser Reederei, GMBH.1405 Zapata's drilling barge was damaged while being towed by Unterweser's tug.'140 Both parties sued in federal court in Florida, and Unterweser filed an action in the High Court of Justice in 1401 See id. at 985. 14 2 See infra notes 1488-1496. 1403441 F.2d 495, 497 (5th Cir. 1971). ' 14 Id. at 498 (quoting from EHRENZWEIG, CONFLICT OF LAWS 129-30 (1962)); see also American Home Assurance Co. v. Insurance Corp. of Ireland, Ltd., 603 F. Supp. 636, 643 (S.D.N.Y. 1984) (describing English action enjoined under two-part test: (I) the parties must be the same; and (2) the adjudication of one case must resolve the other); cf.Sperry Rand Corp. v. Sunbeam Corp., 285 F.2d 542, 546 (7th Cir. 1960) (reversing the trial court's injunction against foreign suit having different issues that would not be resolved in the United States action, and there was no evidence that the foreign suit was vexatious or harassing). '1405428 F.2d 888 (5th Cir. 1970), aff'd on reh "gen banc, 446 F.2d 907 (1971), rev 'd on other grounds sub nom. Bremen v. Zapata Off-Shore Co., 407 U.S. ^[1] (1972). Readers should note that the precedent here is the Fifth Circuit opinion in the Bremen case, and not its Supreme Court reversal on other grounds. See supra Part VII.A.^[2].a. for a full discussion of the Bremen case and its application to forum selection clauses. "'See Unterweser, 428 F.2d at 889.

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London.'4 07 The Florida federal court enjoined Unterweser from proceeding in England.'40 8 The Fifth Circuit affirmed, holding that injunctions against foreign litigation were appropriate where the foreign action would "(1) frustrate a policy of the forum issuing the injunction; (2) be vexatious or oppressive; (3) threaten the issuing courts in rem or quasi in rem jurisdiction; or (4) where the proceedings prejudice other equitable considerations." ' 140 The court then noted that "allowing simultaneous prosecution of the same action in a foreign forum thousands of miles away would result in 'inequitable hardship' and 'tend to frustrate and delay the speedy and efficient determination of the cause."'410 The Supreme Court reversed on the grounds that the parties' contractual choice of forum designating England required the lower court to dismiss on forum non conveniens grounds unless the forum clause was unreasonable, unjust or invalid. '4' In spite of the Supreme Court reversal, the Fifth Circuit Unterweser opinion not only retained its vitality for cases not involving forum selection clauses, but picked up an endorsement from the Ninth Circuit in Seattle Totems Hockey Club, Inc. v. National Hockey League.^[1] 4 1 The owners of the Seattle Totems ice hockey team filed an antitrust action against the National Hockey League, Northwest Sports, and other defendants, alleging "unlawful monopolization of the ice hockey industry in North America."''41 The action also sought to void plaintiffs' executory agreement to sell the Totems to Northwest Sports.141 More than two years later, Northwest Sports sued the Totems' owners in Canada for damages for breach of the same agreement.^[1] 41 5 The district court enjoined Northwest from pursuing the Canadian action, noting that Northwest's claims were compulsory counterclaims in the United States action. 1416 Northwest responded that Canadian law governed under the contract's choice of law clause, and that their claims were permissive in Canada.1417 The Ninth

'4°See id. at 889-90. 1408See id. at 890. 4 1'09d. 1410 d. at 896. "'SeeBremen v. Zapata Off-Shore Co:, 407 U.S. ^[1], 15 (1972); supra Part VII.A.^[2].a. 142652 F.2d 852, 855-56 (9th Cir. 1981). 14"Id. at 853. 4 14 ' See id. 14tsSee id. 1416See id. 4 17 1 See id. at 853-54.

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Circuit upheld the district court's injunction on the grounds that: (1) the compulsory status of Northwest's claims was a procedural issue governed by forum law, and (2) the action should be litigated in one forum.48 In doing so, the Ninth Circuit observed that injunctions against foreign litigation should be used sparingly, but justified its use here because of party and witness convenience, the courts' interest in promoting the efficient administration of justice, and the lack of prejudice to Northwest. 1419 A significant change in reasoning occurred in the D.C. Circuit's opinion in Laker Airways Ltd. v. Sabena, Belgian World Airlines,1410 and current discussions of federal injunctions against foreign litigation turn on its stringent standards. The U.S.-English dispute involved the once-notorious Freddie Laker, perhaps the originator of the cut-rate transatlantic air fare.1421 When his business eventually failed, Mr. Laker filed an antitrust action against several airlines in a United States district court in Washington, D.C.^[14] 12 The defendant airlines went to an English court to obtain an injunction against Mr. Laker, an English citizen, to stop his United States antitrust action.1423 Laker then persuaded the United States district court to issue an anti-antisuit injunction against the American and remaining foreign litigants, countering the English injunction424 On appeal, the United States Court of Appeals for the D.C. Circuit rejected the relaxed standard fround in Unterweser and Seattle Totems, and held instead that antisuit injunctions could only be issued to protect the forum's jurisdiction or to prevent evasion of the forum's important public policies.1415 Finding these rigid criteria satisfied, the court upheld the injunction against the English antisuit injunction.1426 The Second Circuit adopted this narrow test in China Trade & Development Corp. v. M V. Choong Yong,' 427 and the D.C. Circuit reaffirmed its decision in Sea 1 428 ContainersLtd. v. Stena AB. ^[4] ' "See id. at 854-55. '4 9See id. at 855-56. 1420731 F.2d 909 (D.C. Cir. 1984). 421 1 See id. at 916-17. 141See id. at 917. 4 1 'See id. at 917-18. 424 1 See id. at 918-19.

two shipments in late October 1989. 1 Julien, however, had a momentary problem, a $20 million outstanding debt to LOR, Ltd. ("LOR"), for prior unpaid cotton acquisitions that undermined Julien's ability to acquire more cotton. 1435 Bankers Trust, which apparently worked quite closely with Julien, agreed that it would structure the Gau Shan deal so as to buoy Julien's finances.1436 Bankers Trust then advised Gau Shan that it could not advance the loan money to Julien (to acquire the cotton) unless Gau Shan signed a $20 million

issuing the injunction, (2) be vexatious, (3) threaten the issuing court's in rem or quasi in rem jurisdiction or (4) where the proceedings prejudice other equitable considerations.' Similarly, an injunction is appropriate if adjudication of the same issue in separate actions would result in 'unnecessary delay, substantial inconvenience and expense to the parties and witnesses, and where separate adjudications could result in inconsistent rulings or a race to judgment."' 538 F. Supp. 789, 798 (S.D.N.Y. 1984) (quoting Cargill, Inc. v. Hartford Accident & Indem. Co., 531 F. Supp. 710, 715 (D. Minn. 1982)). 1428890 F.2d 1205, 1214 (D.C. Cir. 1989). 1429956 F.2d 1349, 1349 (6th Cir. 1992). 143 Id. at 1351. 1431See id. 1432See id. '433See id. 434 1 See id. '433See id. 1436See id.

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promissory note payable to Bankers Trust.^[4] 3 7 Gau Shan agreed under protest, and signed the note which contained a New York choice of law clause. 1438 Bankers Trust then instructed Julien that Gau Shan would pre-pay for the cotton with the proceeds of the $20 million note.'4 '9 Bankers Trust would credit the $20 million to Julien's account, and then debit that account to pay the unrelated debt to LOR. 1440 LOR would then release cotton for shipment to Mocatta Fixtures Corporation ("Mocatta"), an unrelated transaction.'' Mocatta would, in turn, pay Julien for the cotton, which would be used to buy the Gau Shan cotton.^[4] 4 2 No one told Gau Shan of these aspects of the deal.'' 3 On October 26, 1989, Bankers Trust deposited $20 million in Julien's account, then wired the money to LOR.'4 The arrangement did not work out as planned from that point, resulting in Julien's shipment to China of only about 24% of the cotton agreed upon.' 1 Gau Shan thus only partially performed its contract with the People's Republic. 144 In February 1990, Gau Shan received Bankers Trust's demand on the $20 million note, with a warning that Bankers Trust would sue to collect in Hong Kong if payment was not received by February 26.'4 7 Gau Shan ignored the demand and instead filed suit in federal district court in Memphis, seeking rescission of the note and damages for fraud and negligence.'' 8 In addition, Gau Shan feared that if Bankers Trust were allowed to proceed in Hong Kong, it could take advantage of a local legal procedure called a "Deed of Charge," which would permit Bankers Trust "to appoint a receiver of its choice for Gau Shan without court approval," who would then have the power to seize Gau Shan's assets, discharge its employees, and abandon the Tennessee federal litigation, all without court oversight.' The Sixth Circuit analogized this to an "authorization to

1437See id. '438See id. '439See id. '"'See id. '"'See id. 1" 2See id. 3 14 See id.

"See id. I"'See id. 6 '" See id. 1"See id. at 1351-52. "'See id. at 1352. '"91d.at 1352, 1356.

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confess judgment," which was a violation of public policy under the controlling New York law.40 Gau Shan accordingly moved to enjoin Bankers Trust from suing in Hong Kong.45 l After a hearing on "international comity" issues, in which the federal district court determined that Gau Shan would suffer irreparable harm and that it would likely succeed on the merits because of Bankers Trust's lies both in the transaction and in the hearing, the court granted an antisuit injunction, which succeeded the temporary restraining order it had already granted. 14S2 Bankers Trust appealed. 141 The Sixth Circuit noted at the outset the opposing policies.^[14] 14 First, "American courts have the 'power to control the conduct of persons subject to their jurisdiction to the extent of forbidding them from suing in foreign jurisdictions."'14' This contrasts with the idea that "'parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one [jurisdiction] which can be pled as res judicata in the other."'1416 As to how to resolve these conflicting policies, the court noted that the circuits were split and that the Sixth Circuit had not addressed the question. 1457 The court analyzed the circuit split as follows: The Fifth and Ninth Circuit Courts hold that "' foreign litigation may be enjoined when it would (1) frustrate a policy of the forum issifing the injunction; (2) be vexatious or oppressive; (3) threaten the issuing courts [sic] in rem or quasi in rem jurisdiction, or (4) where the proceedings prejudice other equitable ' considerations."'148 On the other side of the split, the Second and D.C. Circuit Courts have a narrower view, holding that a foreign antisuit injunction may only be granted "(1) to protect the forum's jurisdiction, or (2) to prevent evasion of the forum's important public policies," and that "a duplication of the parties and issues, alone, is not sufficient to justify a the circumstances warranted such action. ^[1] The courts' willingness to ignore foreign parallel actions goes beyond commercial lawsuits to matters such as family law.522 On the other hand, some states will readily stay a local action in deference to an earlier filed foreign action. The pendency of an action in a court of competent jurisdiction will abate a later action filed in a court of like jurisdiction. Birnholz v. Steisel, 338 So. 2d 862 (Fla. 3d DCA 1976). Abatement is proper where the two pending

Iss See id. 11"9See discussion supra Part V.C. I. "2°Dayan v. McDonald's Corp., 382 N.E.2d 55, 58 (111.App. Ct. 1978) (affirming denial of stay in.an action to enjoin McDonald's from terminating restaurant franchise in France). '5 2 Pesquera del Pacifico v. Superior Court, 201 P.2d 553, 554-55 (Cal. Ct. App. 1949) (denying stay in action for damages for seizure of raw shelled clams); see also Mexican Cent. Ry. Co. v. Charman, 24 S.W. 958 (Tex. Civ. App. 1894, no writ) (holding that an in personam parallel foreign action is not grounds for abatement, citing Drake v. Brander, 8 Tex. 352 (1849)). 1522See, e.g., Farah v. Farah, 323 N.E.2d 361, 368-69 (I1. App. Ct. 1975) (denying stay in Illinois/Lebanon parallel divorce actions).

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actions involve the same parties and substantiallythe same causes of action.123 Florida's apparently strong language (parallel foreign action "will abate" a later-filed Florida action) is modified in Maraj v. Maraj: Generally, Florida courts will acknowledge priority in favor of foreign courts first exercising concurrent jurisdiction. However, here, we cannot say that the trial court's decision departed from the essential requirements of law. There remains a degree of trial court discretion in applying comity principles where supported, as here, by the record.1124 As with the cases presuming against stays, here too the subject matter goes beyond contract and tort to family law.,5 New York has statutory law providing for discretionary dismissal of parallel actions involving Courts within New York, as well as conflicts with sister-states' courts, and with United States federal courts.^[1] 26 The law does not apply to actions in foreign courts, 2 7 although New York courts may stay a local action that is identical to a foreign action.521 Illinois also statutorily provides an involuntary dismissal where "there is another action pending between the same parties for the same cause"19 which applies in deference to first-filed actions in foreign countries111° However, dismissal

52 Banco Bilbao Vizcaya, S.A. v. Naiz, S.A., 615 So. 2d 233, 234 (Fla. Dist. Ct. App. 1993) (emphasis added) (discussing actions for fraud in Florida and Spain; "abate" apparently means "stay"). 1524642 So. 2d 1103, 1104 (Fla. Dist. Ct. App. 1994) (involving parallel divorce actions in Florida and Trinidad-Tobago) (citations omitted). 1125See Mary F.B. v. David B., 447 N.Y.S.2d 375, 378 (N.Y. Fain. Ct. 1982) (involving parallel divorce actions in New York and France). '526 See N.Y. C.P.L.R. § 3211 (a)(4) (Consol. 1994). 5 27 1 See Abkco Industries, Inc. v. Lennon, 377 N.Y.S.2d 362, 367-68 (N.Y. 1975) (denying dismissal under Rule 3211 (a)(4) of parallel actions in New York and England regarding contract dispute between the Beatles and their management company); accord Mary F.B., 447 N.Y.S.2d at 377. '528See, e.g., American Marine Ins. Group v. Price Forbes, Ltd., 560 N.Y.S.2d 638, 639 (N.Y. App. Div. 1990) (affirming stay of local action pending outcome of English lawsuit). 1529735 ILL. COMP. STAT. ANN. 5/2-619(a)(3) (West 1992).

... See Kapoor v. Fujisawa Pharm. Co., 699 N.E.2d 1095, 1100 (111. App. Ct. 1998) (holding that the crucial test is whether the actions "arise out of same transaction or occurrence, not whether legal theory, issues, burden of proof or relief sought materially differ." Id.).

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is discretionary, and the foreign action is not an outright bar to the Illinois proceedings.l Interestingly, there are no Texas reported opinions dismissing or staying a local action in deference to one in a foreign country, although Texas courts have done so for interstate parallels.,", The applicable rule - that while a foreign action is not grounds for dismissal, it may be appropriate for a stay - would seemingly apply to foreign country actions. Another notable absence is a dismissal by any state court of a second- filed in rem case in deference to a foreign court's having assumed jurisdiction over the res. This apparent nullity is not caused by a non- occurrence of international parallel litigation concerning in rem issues. To the contrary, state courts have dismissed local cases in response to a foreign case that appears to be in rem, 5 33 but the opinions turn on traditional comity rules that could apply to in personam cases, rather than a more definitive "Princess Lida" rule requiring the dismissal of a second- filed in rem case.'5 34 Presumably that rule applies equally in this state- foreign setting, but when faced with the question, courts have chosen to act on a less stringent standard. Nonetheless, the rule does appear to be universal, as stated in a federal opinion involving a foreign conflict, "[a] long-standing exception to the usual rule tolerating concurrent proceedings has been recognized for proceedings in rem or quasi in rem, because of the threat a second action poses to the first court's basis for jurisdiction.."'113 The Second Circuit based this statement on two cases that did not involve a foreign conflict: Donovan v. City of Dallas 1536 a state-federal conflict, and Princess Lida v. Thompson,51 an interstate conflict. China Trade was a federal-foreign conflict, and the apparent cross-application of these precedents supports the notion that they apply equally to state courts faced with first-filed in rem cases in foreign courts. One ongoing issue that will vary from state to state is the degree of similarity required to grant a stay. As noted above, Florida case law

11 See Dayan v. McDonald's Corp., 382 N.E.2d 55, 58 (Il. App. Ct. 1978). 2 See supra Part II.B.^[5].; see, e.g., Project Eng'g USA Corp. v. Gator Hawk, Inc., 833 S.W.2d 716 (Tex. App.-Houston [Ist Dist.] 1992, no writ). I533See, e.g., Safety-Kleen v. Canadian Universal Ins. Co., 631 N.E.2d 475, 484 (Ill. App. Ct. 1994) (dismissing an Illinois case in deference to Canadian court's orders regarding receivership). 3 '11 See supra Part VII.A.^[4]. ""China Trade & Dev. Corp. v. M.V. Choong Yang, 837 F.2d 33, 36 (2d Cir. 1987). 1536377 U.S. 408, 408 (1964). 1537305 U.S. 456, 456 (1939); supra Part VII.A.^[4].

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provides for stays in parallel actions that are merely "substantially the same." '538 On the other hand, courts are likely to scrutinize allegations of t parallel lawsuits for differences that remove the parallelism.539 2. Forum Selection Agreements Many states now enforce forum selection clauses.540 Examples of enforcement involving foreign judicial or arbitral tribunals include 53 t54 California, 154 Florida,'5 42 Georgia 1 and Illinois. " New York statutorily endorses certain forum agreements, requiring that state courts honor forum clauses in transactions of $1 million or more that are subject to New York law. 51 New York civil procedure further protects forum clauses by providing that the court shall not stay or dismiss any action on the ground of inconvenient forum, where the action arises out of or relates to a contract, agreement or undertaking to which section 5-1402 of the general obligations law applies, and the parties to the contract have agreed that the law of this state shall govern their rights or duties in whole or in part. 1546 States using the Uniform Foreign Money Judgment Recognition Act (UFMJRA or "the Act") may provide another endorsement for forum clauses. 145 The Act is a means of filing a foreign judgment for collection

""See Banco Bilbao Vizcaya, S.A. v. Naiz, S.A., 615 So. 2d 233, 234 (Fla. Dist. Ct. App. 1993). ' 539See, e.g., Rocha Toussier y Asociados, S.C. v. Rivero, 457 N.Y.S.2d 798, 800 (App. Div. 1983) (denying stay in parallel actions in New York and Mexico regarding corporate management). 140 See supra Part IV.B.^[3]. 's54 See generally CQL Original Prods., Inc. v. National Hockey League Players' Ass'n, 46 Cal. Rptr. 2d 412, 416 (Ct. App. 1995) (enforcing Canada forum clause). '542See generally Colonia Ins. Co. v. Assuranceforeningen Skuld, 588 So. 2d 1009, 1011 (Fla. Dist. Ct. App. 1991) (enforcing Sweden forum clause). 543 See generally Bradley v. British Fitting Group, PLC, 472 S.E.2d 146, 149 (Ga. Ct. App. 1996) (enforcing England forum clause). 1144See generally Whirlpool Corp. v. Certain Underwriters at Lloyd's London, 662 N.E.2d 467, 469-71 (II1. App. Ct. 1996) (enforcing England forum clause). 1S4 See N.Y. GEN. OBLIG. LAW § 5-1402(1) (Consol. Supp. 1998). 1 546 N.Y. C.P.L.R. 327(b) (Consol. Supp. 1998). See also Gio, Buton, & C., S.p.A. v. Mediterranean Importing Co., Inc., 510 N.Y.S.2d 171, 172 (App. Div. 1986) (upholding dismissal based on forum clause designating the Court of Bologna, Italy). 547 1 UNIF. FOREIGN MONEY-JUDGMENTS RECOGNITION ACT § 3,13 U.L.A.265 (1986).

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without necessarily going through the motions (literally) of the common law enforcement method, which requires filing a new lawsuit using the foreign judgment as a basis for summary judgment. 114 The UFMJRA simplifies this somewhat, depending on the aspects of its adoption in a specific state. The Texas version of the Act enumerates seven grounds for nonrecognition, including that "the proceeding in the foreign country court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court. '" 1149 This would appear to apply to creditors who obtain judgments in violation of a forum clause designating any forum or arbitral tribunal other than the one issuing the judgment. To obtain this protection, however, a defendant or judgment debtor must attempt to enforce the forum clause. In Dart v. Balaam, judgment debtor Dart sought to avoid the Texas execution on an Australian judgment obtained in violation of a forum clause pointing to Vanuatu.'550 Both the trial and appellate courts rejected the defense because Dart made no attempt to enforce the forum clause.'" 3. Forum Non Conveniens This section will briefly cite to trends in other states' laws, followed by a closer look at Texas law."" In reviewing forum non conveniens cases, readers should note that states such as Texas distinguish between plaintiffs who are residents of the United States and foreign plaintiffs.-, Thus, readers should treat this discussion only as the brief overview that it is, without concluding anything specific about any state's law in an interstate or international setting. Almost all states now have a version of forum non conveniens law, and most are based on the federal model following Gulf Oil v. Gilbert,'55 4 as noted in a 1990 article.""5 Although the article's discussion is narrowly focused on personal injury and wrongful death, it appears to be the most complete recent attempt at assessing states' forum non conveniens laws. One significant event since that article's publication is the Florida Supreme

"48See, e.g., Interamerican Lambs Wool Prods., Ltd. v. Doxsee Food Corp., 642 S.W.2d 823, 825 (Tex. App.-Fort Worth 1982, writ ref'd n.r.e.). 1149TEX. CIv. PRAC. & REM. CODE ANN., § 36.005(b)(5) (Vernon 1997). "50953 S.W.2d 478, 479 (Tex. App.-Fort Worth 1997, no writ). '"See id. at 482. ""See supra Part VII.A.^[3].a. for a discussion of the history of forum non conveniens law. 553 See TEX. Civ. PRAC. & REM. CODE ANN. § 71.051(a)-(b) (Vernon 1997). 1'14330 U.S. 501, 501 (1947). ....See Robertson & Speck, supra note 269 at 950-51.

BAYLOR LAWREVIEW [Vol. 51:4 Court's adoption of the federal forum non conveniens approach in Kinney System, Inc. v. Continental Insurance Co., 556 which also enacted emergency Rule of Civil Procedure 1.061 to implement the change.' 557 No other significant changes since the article's publication were found, although there are updated cases in California's5" and New York. Georgia still does not subscribe to the forum non conveniens doctrine, and Louisiana has a restricted doctrine.^[1] 60 Of course, the doctrine's applications no doubt vary significantly from state to state, and several may have doctrines as restrictive as that of Louisiana. Texas has three sources of forum non conveniens law: two statutes and a common law model based on Gulf Oil v. Gilbert. The first statute, section 71.051 of the Texas Civil Practice and Remedies Code, applies only to wrongful death and personal injury claims, and distinguishes between plaintiffs who are legal United States residents, and plaintiffs who are not.'56' As to non-United States residents, section 71.051(a) authorizes a discretionary application of traditional forum non conveniens, as follows: if a court of this state, on written motion of a party, finds that in the interest of justice a claim or action to which this section applies would be more properly heard in a forum outside this state, the court may decline to exercise jurisdiction under the doctrine of forum non conveniens and may stay or dismiss the claim or action in whole or in part on any conditions that may be just.' 561

1556674 So. 2d 86, 93 (Fla. 1996). 7 ... See id. at 94-95 (quoting the text of that rule). .... See generally Stangvik v. Shiley, Inc., 819 P.2d 14 (Cal. 1991) (applying California's forum non conveniens statute to stay an action pending trials in two related cases in Sweden and " Norway in a products liability action for a defective heart valve). 1559See generally Brooke Group, Ltd. v. JCH Syndicate 488, 663 N.E.2d 635 (N.Y. 1996) (dismissing for refiling in England); Zelouf v. Republic Nat'l Bank, 640 N.Y.S.2d 15 (App. Div. 1996) (dismissing in favor of pending English action); State of Romania v. Former King Michael, 622 N.Y.S.2d 704 (App. Div. 1995) (granting dismissal in action by Romanian government against former king, for the return of art objects, based on claims under a 1899 will); Islamic Republic of Iran v. Pahlavi, 464 N.Y.S.2d 487 (N.Y. App.Div. 1983) (dismissing claim to seize assets from the estate of the former Shah of Iran). 56See Miller v. American Dredging Co., 595 So. 2d 615 (1992) (rejecting federal forum non conveniens law in favor of more restrictive Louisiana law in maritime case), aff'd, 510 U.S. 443 (1994). 56 'TEX. CIV. PRAC. & REM. CODE ANN. § 71.051 (Vernon Supp. 1999). 562 1 1d '

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Section 71.051 was a 1993 legislative overruling of Dow Chemical Co. v. Alfaro, in which the Texas Supreme Court held that the Texas wrongful death statute (section 71.031) did not permit forum non conveniens dismissals.563 Although this ruling has been clearly rejected by the enactment of section 71.051, one holdover case is the thoroughly-litigated claim by Philippine resident Chick Kam Choo for her husband's death in Singapore.' 64 Having suffered a forum non conveniens dismissal in federal court for her claims under federal and Texas law, Choo was left with only a claim under Singapore law, which she filed in a Texas state court in 1984.565 Exxon moved for dismissal on the grounds that her claim was governed by federal maritime law, which preempted Texas forum non conveniens law.I566 The trial court dismissed, but the court of appeals reversed. 567 The Texas Supreme Court affirmed and reinstated her case, based on the United States Supreme Court's ruling in American Dredging Co. v. Miller-, that federal law does not preempt state forum non conveniens law. 1569 Although the current Texas forum non conveniens law pertinent to Choo's claim would perhaps be identical to the federal maritime analysis, the fact that Choo had filed her claim prior to the 1993 enactment of section 71.051 meant that her claim was governed by the Alfaro holding, thus eliminating forum non conveniens.1570 Plaintiffs who are United States residents are considered in section 71.051(b), which statutorily recites Gilbert-like factors.'1"' If Texas plaintiffs are joined with foreign plaintiffs (whether United States residents or not), the action may not be stayed or dismissed under the test in section 71.051(b) if the action arose from a single occurrence, although dismissal is mandatory under section 71.05 1(e) if a party was joined solely to create 57 2 Texas jurisdiction, that is, to avoid forum non conveniens.' The second statute, section 71.052 of the Texas Civil Practice and Remedies Code, addresses claims for personal injury or wrongful death,

1563786 S.W.2d 674, 679 (Tex. 1990). 15 "See Exxon Corp. v. Choo, 881 S.W.2d 301, 301 (Tex. 1994). 's6SSee id. at 302-03. SSee id. at 303. 567 See id. 068510 U.S. 443, 447 (1994). '569See Exxon, 881 S.W.2d at 304. '170See id. '1'See supra Part IV.B.^[4]. 72 1s See Tex. Civ. Prac. & Rem. Code Ann. § 71.05 1(b),(e) (Vernon Supp. 2000).

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caused by asbestosis, filed by nonresidents. 5"" This statute was enacted in response to large numbers of claims from plaintiffs in other states in the United States and has little impact on foreign country residents.'17, All other causes of action are governed by common law forum non conveniens, which follows the Gulf Oil test. 575 A recent example is Seguros Commercial America S.A. v. American President Lines, Ltd., an action in Texas by the subrogated insurer against shipper for the loss of cargo that had been hijacked at gunpoint in Mexico.15 76 The shipment had originated in Hong Kong and was being shipped to Mexico City.'"77 The contact with Texas was that after receipt of the Cargo in Long Beach, California, it was shipped by rail to San Antonio and from there by truck to Laredo, Texas, where it went through customs. 78 Another shipper took over in Nuevo Laredo, and en route to Mexico City, the cargo was hijacked and stolen.'11 9 The insurer, Seguros, sued both the original shipper and the one who took over in Nuevo Laredo and was in possession at the time of 1 The plaintiff sued in Texas in spite of overwhelming contacts the theft. 580 with Mexico.- 8 ' Noting these contacts, the trial court dismissed for forum non conveniens, and the court of appeals affirmed in spite of plaintiffs argument that the Texas legislature had abolished forum non conveniens in cases involving foreign corporations with permits to do business in Texas, which plaintiff Seguros had. 82 The appellate court found that Texas general corporations law did permit foreign corporations to sue in Texas without worrying about forum non conveniens motions, but that plaintiff Seguros, as a foreign casualty insurer, was not governed by the Texas Business Corporations Act, but instead by the Texas Insurance Code, which made Seguros subject to a forum non conveniens motion.'5 3 limit access to courts.' 4. Another Dismissal Ground: Due Process and the Fair Play and Substantial Justice Test Another grounds for dismissal in cases involving foreign parties or events may be available from the constitutional test for personal jurisdiction. 90 That test is the subject of considerable disagreement, but a popular view is that it has two components. The first requires that a nonresident have some contact with the forum under one of several "contact theories."'' 9 The second component is that even with a contact, the forum may not exercise personal jurisdiction inconsistent with "traditional notions of fair play and substantial justice."' ' 12 Most cases in which personal jurisdiction is lacking result from the lack of sufficient

'1 4 See H. Rouw Co. v. Railway Exp. Agency, 154 S.W.2d 143, 145 (Tex. Civ. App.-El Paso 1941, writ ref'd), overruledby In re Smith Barney, Inc., 975 S.W.2d 593, 598 (Tex. 1998). '""5See In re Smith Barney, 975 S.W.2d at 595-98; see also discussion supra Part IV.B.^[4]. '586See, e.g., Torres v. Southern Peru Copper Corp., 113 F.3d 540, 541-42 (5th Cir. 1997). 7 158 See, e.g., De Aguilar v. Boeing Co., 47 F.3d 1404, 1414-15 (5th Cir. 1995) (holding that plaintiffs' attempt to restrict damages to less than $50,000 was ineffective to defeat removal of case to district court, where it was then dismissed for forum non conveniens). ' 3' See Clark v. Allen, 331 U.S. 503, 517 (1947); United States v. Pink, 315 U.S. 203, 230- 31(1942). '...See EUGENE SCOLES & PETER HAY, § 11.16 (2d ed. 1992); see also RESTATEMENT (SECOND) OF CONFLICT OF LAWS, § 84 comment i; Bermann, supranote 36 at 604-06. '""°See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). '5 9 'See id. at 319. ' 921d. at 316 (borrowing the term from prior cases and using it to form a new jurisdictional model).

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contacts. 51 93 Some, however, rest on the fair play and substantial justice test, a five-factor balancing test 594 that strongly resembles the Gulf Oil v. Gilbert forum non conveniens test. 595 The fair play and substantial justice test measures the parties' interests and convenience, as well as that of the affected states or countries, and includes a vague reference to "the interstate judicial system's interest in obtaining the most efficient resolution of controversies.."1596 This "interstate" interest was expanded, where appropriate, to include the "interests of other nations.' 597 Thus, the due process test for amenability has elements that may provide an additional opportunity (that must be exercised at the outset of litigation) for dismissal based on the existence of another pending case. Although there are no examples available of a pending parallel case being a factor in declining personal jurisdiction, it is conceivable that the parallel filing in a United States court could be challenged on the basis of fairness and convenience. One case that does offer support for this notion is Asahi, a product liability claim in California arising from a single motorcycle accident allegedly caused by a tire blowout119 The local plaintiff settled with the tire manufacturer, Cheng Shen of Taiwan.1199 But Cheng Shen wished to pursue its third party claim against Asahi, the Japanese valve manufacturer allegedly at fault.160 Although it was clear that California had personal jurisdiction over Cheng Shen, and reasonably clear that it would have had personal jurisdiction over Asahi if the plaintiff had sued Asahi, the Supreme Court upheld Asahi's challenge to California's personal jurisdiction, where the only remaining claim was that of a foreign party, Cheng Shen. 160' The Court reasoned that when the local plaintiff settled, the forum state's interest was negated, thus shifting the balance in Asahi's favor.62

593 1 See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980); Hanson v. Denckla, 357 U.S. 235, 254 (1958). 594 See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985) (citing World-Wide Volkswagen, 444 U.S. at 292). 1595330 U.S. 501, 508-09 (1947). 1596Burger King Corp., 471 U.S. at 477 (upholding personal jurisdiction based on fairness to the parties involved). 1597Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 115 (1987) (declining to find personal jurisdiciton because of a lack of forum state interest in the lawsuit). 15981d. at 105-06. 1599See id. at 106. ' 660OSee 1 id. . See id at 113-14. ' 60See id. at 114-16.

1999] PARALLEL LITIGATION

The Asahi analysis applies to a local case with multiple international parties and a foreign parallel case. If the local parties' claims are resolved, or if the local parties are significantly outnumbered by foreign parties, then the forum's interest may be sufficiently small such that personal jurisdiction is lacking. Interestingly, under Asahi it does not seem to matter that the underlying event occurred in the forum.11t ° While it is true that the fair play and substantial justice test resembles the test for forum non conveniens because both the elements and the underlying policies are substantially the same, the advantage in a personal jurisdiction argument is that it has constitutional underpinnings absent in forum non conveniens. Thus, a personal jurisdiction challenge can lead to Supreme Court review, while a forum non conveniens argument in state court cannot. The disadvantage in a personal jurisdiction challenge is that it must be made at the outset of the litigation. Having to wait for local parties to settle may mean losing the opportunity to make the argument. The personal jurisdiction argument should be equally applicable in federal court. 1604

C. Enjoiningthe ForeignLitigation

1. The Basic Standard Roscoe Pound observed the state's inherent power to enjoin foreign litigation, but cautioned against overuse: Undoubtedly a state may coerce its citizens not to sue abroad. It does not follow, however, that its courts of equity... ought to exercise such jurisdiction in every case where it exists. We have to ask: What are the legal rights of the plaintiff in equity, defendant abroad, and are the legal remedies which are open to him adequate to maintain those rights? We have then to ask, is the injustice and hardship upon the plaintiff such as to make it expedient for equity to act, in view of the delicate considerations involved in interference with legal proceedings in other states?,605

1 3 6"See id. at 105. 16°4See FED. R. Civ. P. 4(k)(1)(A); see, e.g., Bullion v. Gillespie, 895 F.2d 213, 215 (5th Cir. 1990). 6 °SRoscoe Pound, The Progressof the Law 1918-1919: Equity, 33 HARV. L. REv. 420, 426 (1920) cited in Bermann, supra note 36 at 594 & n.22.

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Despite this inherent power, there are few examples of state courts enjoining parties from pursuing cases in foreign courts and standard principles are difficult to derive. Texas is one of the states that has announced standards and has used them repeatedly to deny both interstate and international antisuit injunctions. Gannon v. Payne is the foundational case in Texas, drawing from both Laker Airways and Seattle Totems to impose a restrictive standard. 06 Robert Payne and Fred Gannon were partners in an oil and gas venture in Alberta Province.- 7 When Gannon unilaterally reduced Payne's profit share by five percent, Payne sued Gannon in Canada and obtained a judgment that became final6.60 Payne then sued Gannon again in Dallas County, and Gannon filed a parallel claim in Canada seeking a declaration that some of the issues in the Texas suit had been decided in the prior Canadian action."160 Next, Payne asked the Texas court to enjoin Gannon from the Canadian action."'6 0 While Payne was seeking the Texas injunction, Gannon was also seeking one in Canada although he later withdrew the request.6" The trial court granted Payne's injunction, noting the possibility of interference with its jurisdiction, the extra cost to Payne of the Canadian action, and the disfavor of multiple lawsuits and possible inconsistent judgments.1' The court of appeals affirmed."' 3 In its reversal, the Texas Supreme Court confirmed the power of Texas courts to enjoin parties from prosecuting parallel actions in Texas or sister states."1' 4 However, where sister states were concerned, necessarily involving a second sovereignty, "the power to enjoin proceedings pending in a foreign jurisdiction should be exercised sparingly and only by reason of very special circumstances.."'1 5 Moreover, "[w]hen the sovereigns involved are not sister states but a state and a foreign nation, the policy of allowing parallel every parallel case. Because Payne's facts did not satisfy any of the exceptional circumstances raised by the court, his injunction was reversed.626 More importantly, the Texas Supreme Court established that Texas courts could enjoin litigants from parallel litigation in foreign countries, but only under the strictest of standards.1627 Gannon noted the conflicting federal standards between Laker Airways and Seattle Totems but embraced neither. Instead, the court listed four aggregate factors that these opinions have used to justify foreign antisuit injunctions, and rather than stating them as standards under Texas law, merely held that the facts before the court were insufficient to meet any of the four standards.1628 A prior Texas decision,