Amerada Petroleum Corp. v. Bettye M. Marshall, 381 F.2d 661 (5th Cir. 1967). · Go Syfert
Amerada Petroleum Corp. v. Bettye M. Marshall, 381 F.2d 661 (5th Cir. 1967). Cases Citing This Book View Copy Cite
“that amerada's petition for declaratory judgment apparently was in anticipation of the new york suit is an equitable consideration which the district court was entitled to take into account.”
77 citation events (22 in the last 25 years) across 29 distinct courts.
Strongest positive: Cisco Systems, Inc. v. Ramot at Tel Aviv University Ltd. (ded, 2022-11-14)
Treatment trajectory · 1967 → 2026 · click a year to view as-of
1967 1996 2026
Top citers, strongest first. 36 distinct citers.
examined Cited as authority (verbatim quote) Cisco Systems, Inc. v. Ramot at Tel Aviv University Ltd. (2×)
D. Del. · 2022 · quote attribution · 2 verbatim quotes · confidence high
that amerada's petition for declaratory judgment apparently was in anticipation of the new york suit is an equitable consideration which the district court was entitled to take into account.
cited Cited as authority (rule) Walsh v. Peterson
E.D. Tex. · 2022 · confidence medium
Tex. Nov. 4, 2005) (citing Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967)).
discussed Cited as authority (rule) Guntersville Breathables Inc v. Twenty-Six Designs LLC
N.D. Ala. · 2022 · confidence medium
The Eleventh Circuit has held that one compelling circumstance that the court may consider is whether the first- filed “action was filed in apparent anticipation of the other pending proceeding.” Manuel, 430 F.3d at 1135–36; Ven-Fuel, Inc. v. Dep’t of the Treasury, 673 F.2d 1194, 1195 (11th Cir. 1982); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967).1 But “this consideration does not transmogrify into an obligatory rule mandating dismissal.
discussed Cited as authority (rule) Pontchartrain Partners, LLC v. Tierra de Los Lagos, LLC
E.D. La. · 2022 · confidence medium
Miss. 1991), aff'd, 958 F.2d 1078 (5th Cir. 1992) (suit purely in anticipation of another is subject to dismissal under the compelling circumstances test, citing 909 Corp.); Excel, 1996 WL 5708 , at *6 (“The party filing suit in anticipation of a suit in another forum should not be rewarded for what amounts to forum shopping”). 48 See Mission Insurance v. Puritan Fashions Corp., 706 F.2d 599, 602 (5th Cir. 1983) (involving a letter extending the right of the first-filed action defendant to sue within 30 days) (emphasis added); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir…
cited Cited as authority (rule) In re: Toyota Hybrid Brake Litigation
E.D. Tex. · 2020 · confidence medium
Tex. Nov. 4, 2005) (citing Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967)).
discussed Cited as authority (rule) Epic Tech, LLC v. Arno Resources, LLC (2×) also: Cited "see"
W.D. Tex. · 2020 · confidence medium
Consistent with these principles, in Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 664 (5th Cir. 1967), the Fifth Circuit affirmed the district court’s stay of a declaratory judgment action filed in anticipation of a lawsuit filed in a different forum.
discussed Cited as authority (rule) John S. Stritzinger v. Christiana Trust, a Division of Wilmington Savings Fund Society, FSB
Tex. App. · 2016 · confidence medium
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.
discussed Cited as authority (rule) Waguespack v. Medtronic, Inc.
M.D. La. · 2016 · confidence medium
Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967) (affirming the district court’s ruling, which concluded that "the filing of the declaratory judgment action ... was triggered by the letter stating that Amerada would be sued by Mrs. Marshall if it did not appear in the District of Columbia as party defendant along with Continental and Marathon” (emphasis added)).
discussed Cited as authority (rule) Morgan Drexen, Inc. v. Consumer Financial Protection Bureau (2×)
D.C. Cir. · 2015 · confidence medium
Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746 , 749–50 (7th Cir. 1987); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967).
discussed Cited as authority (rule) United States ex rel. Brown Minneapolis Tank Co. v. Kinley Construction Co.
D.N.M. · 2011 · confidence medium
Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 749 (7th Cir.1987)(stating that, where declaratory judgment action is filed in anticipation of trademark infringement action, the “infringement action should proceed, even if filed” after the declaratory judgment action); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967).
discussed Cited as authority (rule) Intersearch Worldwide, Ltd. v. Intersearch Group, Inc.
N.D. Cal. · 2008 · confidence medium
Co., 706 F.2d 599, 600, 602-03 (carrier told insured, facing policy deadline for suit, to hold suit until carrier provide written opinion regarding dispute, but instead ran to court and sued insured); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 662-64 (5th Cir.1967) (on receipt of letter indicating plaintiff would sue in one district, unless recipient waived personal jurisdiction in another, recipient immediately sued sender).
discussed Cited as authority (rule) Mohr v. Margolis, Ainsworth & Kinlaw Consulting, Inc.
D. Kan. · 2006 · confidence medium
Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 749 (7th Cir. 1987) (where declaratory judgment action is filed in anticipation of trademark infringement action, “infringement action should proceed, even if filed” after the declaratory judgment action); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967).
discussed Cited as authority (rule) Inherent. Com v. Martindale-Hubbell
N.D. Cal. · 2006 · confidence medium
In order for a court to find that the initial suit was anticipatory, the plaintiff in the first action must have been in receipt of “specific, concrete indications that a suit by defendant was imminent.” Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D.Cal.1994) (Whyte, J.) (citing Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967) (where the court found the filing of a declaratory action by plaintiff anticipatory when it followed receipt of defendant’s letter stating that defendant would sue plaintiff in another forum where it could properly serve plaintiff, if plainti…
discussed Cited as authority (rule) Guthy-Renker Fitness, L.L.C. v. Icon Health & Fitness, Inc. (2×) also: Cited "see"
C.D. Cal. · 1998 · confidence medium
See Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D.Cal. 1994); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967).
discussed Cited as authority (rule) Fidelity Bank v. Mortgage Funding Corp. of America (2×) also: Cited "see"
N.D. Tex. · 1994 · confidence medium
Although such a conclusion could justify a departure from the first to file rule, see Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968), such a departure is not required, and the court’s inquiry does not end there.
discussed Cited as authority (rule) Gates Construction Corp. v. Koschak
S.D.N.Y. · 1992 · confidence medium
Brillhart, 316 U.S. at 495 , 62 S.Ct. at 1175 ; see Sturge, 772 F.Supp. at 186 ; see also Yen-Fuel, Inc. v. Dep’t of Treasury, 673 F.2d 1194, 1195 (11th Cir. *337 1982); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967) (“That Amerada’s petition for declaratory judgment apparently was in anticipation of the New York suit is an equitable consideration that the district court was entitled to take into account."), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968).
cited Cited as authority (rule) Stack v. Whitney National Bank
S.D. Miss. · 1991 · confidence medium
Cargill, 751 F.2d 801 , 804 (5th Cir.1985); Mission, 706 F.2d at 602 ; Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967).
discussed Cited as authority (rule) Granite State Insurance v. Tandy Corp. (2×) also: Cited "see"
S.D. Tex. · 1991 · confidence medium
Cargill, 751 F.2d 801 , 804 (5th Cir.), cert. denied, 474 U.S. 909 , 106 S.Ct. 279 , 88 L.Ed.2d 244 (1985); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968).
cited Cited as authority (rule) 909 Corp. v. Village of Bolingbrook Police Pension Fund
S.D. Tex. · 1990 · confidence medium
See Mission Insurance, 706 F.2d at 602 ; Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968); E.F.
discussed Cited as authority (rule) Great American Insurance v. Houston General Insurance
S.D.N.Y. · 1990 · confidence medium
Ven-Fuel, Inc. v. Department of Treasury, 673 F.2d 1194, 1195 (11th Cir. 1982), citing Hollis v. Itawamba County Loans, 657 F.2d 746, 750 (5th Cir.1981) (pending state action); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968) (pending federal action).
discussed Cited as authority (rule) State Farm Fire & Casualty Co. v. Taylor
M.D.N.C. · 1988 · confidence medium
Co. v. Puritan Fashions Corp., 706 F.2d 599 , 602 & n. 3 (5th Cir.1983) (anticipatory suits are disfavored; affirmed dismissal of declaratory action); 8 See also Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967) (anticipation of state suit is an equitable consideration; affirmed dismissal of declaratory action).
cited Cited as authority (rule) Bausch & Lomb Inc. v. Alcide Corp.
W.D.N.Y. · 1987 · confidence medium
Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967).
discussed Cited as authority (rule) Yoder v. Heinold Commodities, Inc.
E.D. Va. · 1986 · confidence medium
Mission Insurance Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 (5th Cir.1983); Ven-Fuel, Inc. v. Department of the Treasury, 673 F.2d 1194, 1195 (11th Cir.1982); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968).
discussed Cited as authority (rule) Ven-Fuel, Inc. v. Department of Treasury
11th Cir. · 1982 · confidence medium
Hollis v. Itawamba County Loans, 657 F.2d 746, 750 (5th Cir. 1981) (pending state action); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968) (pending federal action); 6A Moore’s Federal Practice ¶ 57.08[6-1] (1979).
discussed Cited as authority (rule) Creighton Omaha Regional Health Care Corp. v. Lomas & Nettleton Co. (2×) also: Cited "see, e.g."
D. Neb. · 1980 · confidence medium
Factors, Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir. 1978), cert. den. 440 U.S. 908 , 99 S.Ct. 1215 , 59 L.Ed.2d 455 (1979); Amerada Petroleum Corporation v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967), cert. den. 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968); Columbia Pictures Industries, Inc. v. Schneider, 435 F.Supp. 742, 747 (S.D.
cited Cited as authority (rule) Factors Etc., Inc. And Boxcar Enterprises Inc. v. Pro Arts, Inc. And Stop and Shop Companies, Inc.
2d Cir. · 1978 · confidence medium
Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967).
cited Cited as authority (rule) Washington-Summers, Inc. v. City of Charleston
S.D.W. Va · 1977 · confidence medium
Amerada Petroleum Corporation v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967); Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937).
discussed Cited "see" William S. Manuel v. Convergys Corporation (2×) also: Cited "see, e.g."
11th Cir. · 2005 · signal: see · confidence high
See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967).
cited Cited "see" California Security Co-Op, Inc. v. Multimedia Cablevision, Inc.
E.D. Tex. · 1995 · signal: see · confidence high
See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967).
discussed Cited "see" Sturge v. Diversified Transport Corp.
S.D.N.Y. · 1991 · signal: see · confidence high
See Ven-Fuel, Inc. v. Department of Treasury, 673 F.2d 1194, 1195 (11th Cir. 1982) (citing Hollis v. Itawamba County Loans, 657 F.2d 746, 750 (5th Cir.1981) (pending state action) and Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968) (pending federal action)).
discussed Cited "see" Igloo Products Corp. v. Mounties, Inc.
S.D. Tex. · 1990 · signal: see · confidence high
See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661 (5th Cir.1967), cert. denied, 389 U.S. 1039 , 88 S.Ct. 776 , 19 L.Ed.2d 828 (1968); Merle Norman Cosmetics v. Martin, 705 F.Supp. 296, 299 (E.D.La.1988).
discussed Cited "see" NCC Sunday Inserts, Inc. v. World Color Press, Inc.
S.D.N.Y. · 1987 · signal: see · confidence high
See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661 (5th Cir.1967) (plaintiff advised by letter of defendant’s intention to sue prior to plaintiff’s filing); Factors, supra, 579 F.2d 215 (defendant’s declaratory judgment action triggered by notice letter from plaintiff).
cited Cited "see" E. F. Hutton & Co. v. Cook
S.D. Tex. · 1968 · signal: see · confidence high
See Amerada Petroleum Corp. v. Marshall, 381 F.2d 661 (5th Cir. 1967).
discussed Cited "see, e.g." Sally Holdings LLC v. BOARD Americas, Inc.
E.D. Tex. · 2023 · signal: see also · confidence medium
See also Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967) (finding anticipatory filing where declaratory judgment plaintiff filed suit three weeks after receiving a letter from defendant threatening litigation).
cited Cited "see, e.g." Youngevity International, Inc. v. Renew Life Formulas, Inc.
C.D. Cal. · 2014 · signal: see, e.g. · confidence medium
See, e.g., Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir.1967); Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D.Cal.1994); Alaris Med.
cited Cited "see, e.g." Dumas v. Major League Baseball Properties, Inc.
unknown court · 1999 · signal: see also · confidence medium
Id.; see also Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 668 (5th Cir.1967); Ward, 158 F.R.D. at 648 ; Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir.1978).
AMERADA PETROLEUM CORPORATION, Appellant,
v.
Bettye M. MARSHALL, Appellee
24019.
Court of Appeals for the Fifth Circuit.
Jul 31, 1967.
381 F.2d 661
James A. Pakenham, Joyce Cox, Houston, Tex., Cecil E. Munn, Fort Worth, Tex., Joseph W. Morris, Tulsa, Okl., for appellant., Albert I. Edelman, New York City, William H. White, Houston, Tex., for appellee.
Hutcheson, Goldberg, Dyer.
Cited by 51 opinions  |  Published
HUTCHESON, Circuit Judge:

This appeal is from an order of the district court refusing to hear a petition for declaratory judgment. We affirm.

In 1948 appellant Amerada Petroleum Corporation, Continental Oil Company, and Marathon Oil Company agreed to organize jointly Coronada Petroleum Corporation whose purpose would be to acquire oil properties outside the United States. One Arthur A. Curtice was employed as the president of Coronada and he received as compensation a participating interest in properties acquired by Coronada during his employment. Curtice assigned to appellee Bettye Marshall 10% of his participating interest as compensation for her job as his executive assistant. Coronada later acquired some oil properties in Libya. The instant case is part of the litigation which ensued when in September 1963 Mrs. Marshall informed Amerada, Continental, and Marathon of her intention to assert a claim to an interest in the Libyan production.

In 1964 Mrs. Marshall instituted suit in the United States District Court for the District of Columbia against Continental and Marathon, both doing business in that jurisdiction. Amerada, not amenable to service in the District of Columbia, could not be joined as party defendant in that action. Both Continental and Marathon moved to transfer the case to New York on the ground that it was a more convenient forum. The motion was denied.

Thereafter, on March 8, 1966, counsel for Mrs. Marshall wrote a letter to Amerada inviting it to appear voluntarily in the District of Columbia to the end that the litigation might be unified; Amerada was advised that if it chose not to appear, Mrs. Marshall would bring suit against it in a jurisdiction where it was subject to service. Approximately three weeks later Amerada filed the instant action for declaratory judgment in the Southern District of Texas. About 40 days later, Mrs. Marshall commenced suit against Amerada in the United States District Court for the Southern District of New York.

In response to the petition filed in the court below, Mrs. Marshall moved (a) to dismiss, (b) to transfer to the District[*663] of Columbia or the Southern District of New York, or (c) to stay the declaratory judgment action pending the outcome of the suit she had filed in New York. The first two motions were denied, but the motion to stay was granted.

The district judge noted that the sole issue before him was whether he should hear the petition and declare the rights of the parties. The judge felt that the essential question that he was called upon to decide was whether the proper forum for the litigation between the parties was the Southern District of Texas or the Southern District of New York. In deciding that the latter is the proper forum, he emphasized his conclusion that the filing of the declaratory judgment action in the court below was triggered by the letter stating that Amerada would be sued by Mrs. Marshall if it did not appear in the District of Columbia as party defendant along with Continental and Marathon. Thus he did not regard as controlling the fact that the instant action was filed by Amerada shortly before Mrs. Marshall filed her suit in New York. See Shell Oil v. Frusetta, 290 F.2d 689, 692 (9th Cir. 1961). Furthermore, New York was considered the more convenient forum on the grounds that it was the site of the execution of the contract, the work performed under the contract, and Coronada’s principal place of business. On the other hand, the judge was of the view that the Southern District of Texas has no connection with the controversy other than as the residence of Mrs. Marshall, who is willing to make herself available for deposition and discovery in New York.

This is the type of case of which the Supreme Court has said:

“The Federal Declaratory Judgments Act, facilitating as it does the initiation of litigation by different parties to many-sided transactions, has created complicated problems for coordinate courts. Wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation, does not counsel rigid mechanical solution of such problems. The factors relevant to wise administration here are equitable in nature. Necessarily, an ample degree of discretion, appropriate for disciplined and experienced judges, must be left to the lower courts.” Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-184, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1951). (emphasis added).

The district court clearly was vested with discretion in deciding whether to hear the declaratory judgment suit which involves the same parties and issues as Mrs. Marshall’s action filed in a court of coordinate jurisdiction. [1] There is sufficient evidence to support the judge’s finding that the instant action was filed by Amerada as the immediate result of the letter inviting it to appear in the District of Columbia. Amerada has been aware of Mrs. Marshall’s claim since September 1963, yet it apparently did not feel compelled to seek a determination of its rights for over two years. That Amerada’s petition for declaratory judgment apparently was in anticipation of the New York suit is an equitable consideration which the district court was entitled to take into account. Aetna Cas. & Sur. Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937); Seaboard Sur. Co. v. Texas City Ref., Inc., 109 F.Supp. 468 (D.Del.1952). Compare Crosley Corp. v. Westinghouse Elec. & Mfg. Co., 130 F.2d 474 (3d Cir.) cert, denied, 317 U.S. 681, 63 S.Ct. 202, 87, L.Ed. 546 (1942).

Moreover, Amerada is not in the position of one who cannot obtain an adjudication of its legal rights; the only question here is in which of two jurisdictions should the adjudication take place. We cannot say that the judge[*664] acted outside the limits of his discretion in considering the factors which favor New York as the proper forum.

For the reasons given by the district judge, we affirm.

In view of this disposition of the cause, Mrs. Marshall’s motion to dismiss is denied.

Affirmed.

1

. “The Declaratory Judgment Act was an authorization, not a command. It gave the federal courts competence to make a declaration of rights; it did not impose a duty to do so.” Public Affairs Assoeiates, Inc. v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 582, 7 L.Ed.2d 604 (1962). Accord Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942).