Saddler v. Amec Foster Wheeler Environment and Infrastructure, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LARRY SADDLER,

Plaintiff,

v.

Civil Action No. 16-1582 (RDM)

AMEC FOSTER WHEELER

ENVIRONMENT & INFRASTRUCTURE,

INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

In order to construct a streetcar line in northeast Washington, D.C., the District of

Columbia contracted with Dean-Facchina, LLC (“Dean-Facchina”) to provide general

contracting services and with Defendant AMEC Foster Wheeler Environment & Infrastructure,

Inc. (“AMEC”) to provide construction management services. AMEC’s responsibilities

included, among other things, twice-daily inspections of the streetcar construction site to ensure

that it was safely maintained. On September 26, 2013, Plaintiff Larry Saddler tripped and fell

over a construction sign that had been placed on a sidewalk, resulting in serious injuries. Saddler

filed a personal injury complaint against the District of Columbia and Dean-Facchina in D.C.

Superior Court in 2015. Dkt. 1 at 2 (Compl. ¶ 4); Dkt. 4-4 at 4. Then, a year later, invoking this

Court’s diversity jurisdiction, he filed a separate complaint against AMEC arising from the same

incident. Dkt. 1. In that complaint, Saddler alleges that AMEC failed to use reasonable care in

maintaining the safety of the streetcar construction site and that its negligence caused his

injuries.

AMEC now moves to dismiss the present action. Dkt. 4. It argues that, under Federal

Rules of Civil Procedure 12(b)(7) and 19, Saddler has failed to join two indispensable parties—

the District of Columbia and Dean-Facchina; that joining of the District of Columbia would

destroy diversity jurisdiction; and that, accordingly, the Court should dismiss the action in

“equity and good conscience” because the action cannot fairly “proceed among the existing

parties.” Fed. R. Civ. P. 19(b); Dkt. 4-1 at 8–18. In the alternative, AMEC asserts that the Court

should abstain from exercising jurisdiction over this matter under the Colorado River doctrine.

See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). AMEC argues

that, because the D.C. Superior Court is already exercising jurisdiction over a parallel suit

involving the same operative facts, this Court should, in the interest of comity, defer to the

Superior Court and decline to hear the case, or, at the very least, should stay the present case

pending the outcome of the Superior Court action. Dkt. 4-1 at 18–25.

As explained below, the Court disagrees and will, accordingly, deny AMEC’s motion to

dismiss on both grounds.

I. BACKGROUND

For purposes of the pending motion to dismiss, the Court will assume the truth of the

following facts, which are taken from Saddler’s complaint. See Dentons US LLP v. Republic of

Guinea, 208 F. Supp. 3d 330, 334 (D.D.C. 2016) (citing Am. Nat’l Ins. Co. v. FDIC, 642 F.3d

1137, 1139 (D.C. Cir. 2011)).

As noted above, the District of Columbia awarded Dean-Facchina, a corporate citizen of

Florida and Maryland, Dkt. 4-1 at 9, a contract to build a streetcar line, and awarded AMEC, a

corporate citizen of Nevada and Georgia, Dkt. 1 at 2 (Compl. ¶ 6); Dkt. 4-1 at 8–9, a contract to

provide construction management services for the project, Dkt. 1 at 3 (Compl. ¶¶ 7–8). The

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streetcar line was to run, in part, along Benning Road from 21st to 26th Streets, and, as Dean-

Facchina worked on that segment of the line, it “erected barriers and placed signs around the

construction site.” Dkt. 1 at 3 (Compl. ¶ 9). AMEC’s role in the project, Saddler alleges, was to

inspect the construction site, equipment, and signage for “safety [or] hazardous conditions,” to

“document and report” any “deviations” to Dean-Facchina or the District of Columbia, and to

“ensure that [any] deviations were remedied.” Id. (Compl. ¶ 11). Similarly, AMEC was charged

with monitoring the safety of the “streets and sidewalks in and around the streetcar

construction,” and it was required to report “any deviations from maintenance of traffic

guidelines” to Dean-Facchina or the District of Columbia, and, again, to “ensure that [any]

deviations were remedied.” Id. Saddler alleges that AMEC was required to accomplish these

tasks by performing “twice[-]daily inspections of the construction project and sites.” Id. (Compl.

¶ 8).

On September 26, 2013, Saddler, a resident of the District of Columbia, was walking on

the Benning Road sidewalk near the corner of Benning and 21st Street, N.E., “when he tripped

and fell over a dangerously placed sign.” Id. at 4 (Compl. ¶ 12). Saddler alleges that the “skinny

rods at the base protruding” from the sign “t[ook] up nearly half of the sidewalk;” that “two

poles on the street corner . . . obscur[ed]” part of the sign from view; and that the sign was

“placed [on] the sidewalk facing the street” rather than facing “oncoming pedestrians.” Id.

(Compl. ¶¶ 13–15). The sign, Saddler asserts, had been in this “dangerous position” for “at least

[four] days prior to” his fall, and he alleges that, during this four-day period, “AMEC had made

multiple inspections of the site” but failed to remedy the situation. Id. (Compl. ¶¶ 16–17).

Saddler claims that, as a result of the fall, he “suffered serious injury” that “required numerous

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surgeries” and necessitated a “long period of recovery” and “ongoing therapy.” Id. at 5 (Compl.

¶¶ 20–22).

“[I]n connection with this incident,” Saddler brought a personal injury suit in D.C.

Superior Court against the District of Columbia and Dean-Facchina in September 2015. Id. at 2

(Compl. ¶ 4); Dkt. 4-4 at 4. A year later, invoking this Court’s diversity jurisdiction under 28

U.S.C. § 1332(a), Saddler filed the present action, asserting claims for negligence and negligence

per se against AMEC arising from the same incident. See Dkt. 1. AMEC has moved to dismiss

the complaint under Rule 12(b)(7), or, in the alternative, for the Court to abstain from exercising

its jurisdiction under the Colorado River doctrine. See Dkt. 4-1.

II. ANALYSIS

A. 12(b)(7) Motion to Dismiss

AMEC first argues that the Court should dismiss Saddler’s complaint because he has

“failed to join indispensable parties” under Rules 12(b)(7) and 19. Dkt. 4 at 1. AMEC

acknowledges that a suit between Saddler and AMEC satisfies 28 U.S.C. § 1332(a)’s diversity

requirement—Saddler is a resident of the District of Columbia, AMEC is a corporate resident of

Nevada and Georgia, and more than $75,000 is at stake. See Dkt. 4-1 at 8–9. It argues, however,

that under Rule 19(a), the District of Columbia and Dean-Facchina “must be joined” as

defendants, Fed. R. Civ. P. 19(a)(1), and that joinder of the District would destroy diversity

jurisdiction, Dkt. 4-1 at 9. According to AMEC, this requires dismissal of the action under Rule

19(b), because the case cannot proceed with the District of Columbia as a party, yet, “in equity

and good conscience,” Fed. R. Civ. P. 19(b), ought not proceed among the existing parties

without the District, Dkt. 4-1 at 11–12. The Court disagrees.

Rule 12(b)(7) permits a defendant to move to dismiss a complaint for “failure to join a

party under Rule 19.” Rule 19, in turn, “establishes a two-step procedure for determining

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whether an action must be dismissed because of the absence of a party needed for a just

adjudication.” Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489, 1495–96 (D.C. Cir. 1997).

First, the Court “must determine whether the absent party is ‘necessary’ to the litigation

according to the factors enumerated in Rule 19(a); if so, the [C]ourt must order that the absent

party be joined.” Id. at 1496. “If a necessary party cannot be joined”—because, for example,

doing so would deprive the Court of jurisdiction—the Court “must turn to the second step,

examining the factors in Rule 19(b) to ‘determine whether in equity and good conscience, the

action should proceed among the parties before it, or should be dismissed, the absent person

being regarded as indispensable.’” Id. (quoting Fed. R. Civ. P. 19(b)).1 Here, the Court need not

proceed to the second step of the Rule 19 analysis because AMEC’s challenge fails at the first

step.

As an initial matter, the Court cannot accept AMEC’s premise that joining the District of

Columbia as a defendant would defeat diversity jurisdiction. AMEC’s argument appears to

presume that the District of Columbia is itself a “citizen” of the District of Columbia, and that

joinder of the District in a case brought by Saddler, who is a D.C. resident, would thus defeat

diversity. See Dkt. 4-1 at 9 (“[T]he Government of the District of Columbia shares citizenship in

the District of Columbia with Plaintiff.”). It has been established for over a century, however,

“that a State is not a ‘citizen’ for purposes of the diversity jurisdiction.” Moor v. Alameda Cty.,

411 U.S. 693, 717 (1973). The same holds true, moreover, for the District of Columbia, see

1

Cherokee Nation quotes the 1987 version of Rule 19(b). In 2007, Rule 19 was “restyl[ed]” to

be “more easily understood,” and the Rule’s “traditional terminology” that “the absent person

being . . . regarded as indispensable” was “discarded as redundant” because it was “used only to

express a conclusion reached by applying the tests of Rule 19(b).” See Fed. R. Civ. P. 19,

Advisory Committee Notes. The 2007 amendments were “intended to be stylistic only” and do

not change the substance of the rule as cited in the D.C. Circuit’s decision in Cherokee Nation.

Id.

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Long v. District of Columbia, 820 F.2d 409, 414 (D.C. Cir. 1987), which constitutes a “State[]”

for purposes of § 1332, see 28 U.S.C. § 1332(e). As the D.C. Circuit has explained:

The only “State” of which the District could conceivably be a citizen is the District

itself; thus, the District is subject to diversity jurisdiction only if the District is a

citizen of itself. We cannot subscribe to such a bizarre characterization of the

District of Columbia. As we have noted, the Supreme Court has held repeatedly

that the fifty states are not citizens of themselves . . . . We can think of no reason

for holding that the fifty states are not citizens of themselves, but the District is a

citizen of itself. The rationale underlying the Supreme Court’s teaching is that a

whole cannot be a citizen of the whole. This rationale applies as well to the District

of Columbia as to any of the fifty states. We therefore think the conclusion

inescapable that the District, like the fifty states, is not subject to diversity

jurisdiction.

Long, 820 F.2d at 414. The District of Columbia, accordingly, is not the type of entity that is

ever subject to § 1332, and therefore joinder of the District does not defeat diversity jurisdiction

in the same sense that joinder of an individual defendant who resides in the same State as the

plaintiff would. That is, joinder of the District of Columbia would not result in “litigants from

the same [S]tate” appearing on “opposing sides” of the case. See Saadeh v. Farouki, 107 F.3d

52, 55 (D.C. Cir. 1997) (quoting Prakash v. Am. Univ., 727 F.2d 1174, 1178 n.25 (D.C. Cir.

1984)).

This, of course, does not resolve the question whether the Court would have subject

matter jurisdiction over the District of Columbia for purposes of the common-law torts alleged in

Saddler’s complaint. As to that question, the only evident source of federal jurisdiction is 28

U.S.C. § 1367, which confers “supplemental jurisdiction” on a federal court to consider “claims

that are so related to claims” over which the court already has “original jurisdiction” that the

supplemental claims “form part of the same case or controversy under Article III of the United

States Constitution.” 28 U.S.C. § 1367(a). That conferral of jurisdiction, however, comes with

an important caveat: In cases in which the sole source of the district court’s original jurisdiction

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is diversity of citizenship under § 1332, the court’s supplemental jurisdiction will not extend to

“claims by persons proposed to be joined as plaintiffs under Rule 19 . . . when exercising

supplemental jurisdiction over such claims would be inconsistent with the jurisdictional

requirements of [§] 1332.” 28 U.S.C. § 1367(b).

That rule makes eminent sense; without it, litigants could easily evade “the two statutory

limitations on invocation of diversity jurisdiction—the complete diversity rule and the amount in

controversy.” 13D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 3567.2 (3d ed. 2008) (“Wright & Miller”). It is far from clear, however, how the final clause

of § 1367(b) was intended to apply in a case like this one, in which the party to be joined (here,

the District of Columbia) is not a citizen of any State for purposes of § 1332 and thus joinder

would not work any obvious circumvention of the complete diversity (or amount in controversy)

requirements of § 1332. In other words, joinder of the District of Columbia would not introduce

a non-diverse party—thereby defeating diversity of citizenship—because the District of

Columbia is not a citizen of any State.

The Court is unaware of any precedent addressing whether the joinder of a party that is

not a citizen of any State (or is not the subject of a foreign state) “would be inconsistent with the

jurisdictional requirements of [§] 1332,” and would thus run afoul of the final clause of

§ 1367(b). See Westra Constr., Inc. v. U.S. Fid. & Guar. Co., 546 F. Supp. 2d 194, 198 (M.D.

Pa. 2008) (“Few courts have attempted to define the contours of the final requirement of

§ 1367(b).”). The meaning of the final clause of § 1367(b), moreover, is “far from clear;”

indeed, if the clause merely meant that the claims subject to joinder under Rule 19 must satisfy

all of the requirements of § 1332, “there would be no need for supplemental jurisdiction.” 13D

Wright & Miller § 3567.2. Because neither party has briefed this issue, and because the Court

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must, in any event, deny AMEC’s motion on other, well-settled grounds, the Court will not

endeavor to define the scope of the final clause of § 1367(b) here.2 For present purposes, it

suffices for the Court to decline to embrace the first premise of AMEC’s motion and to turn to

the question whether the District of Columbia is, in any event, a “necessary” party within the

meaning of Rule 19(a). See Nanko Shipping, USA v. Alcoa, Inc., 850 F.3d 461, 464 (D.C. Cir.

2017) (noting that the first “question[]” in a “Rule 19 inquiry” is whether the absent party is

“necessary to the litigation”).

Unlike the meaning of the final clause of § 1367(b), that question is easily answered. As

the Supreme Court has explained, “[i]t has long been the rule that it is not necessary [under Rule

19(a)] for all joint tortfeasors to be named as defendants in a single lawsuit.” Temple v. Synthes

Corp., Ltd., 498 U.S. 5, 7 (1990) (emphasis added); see also Park v. Didden, 695 F.2d 626, 631

(D.C. Cir. 1982) (Ginsburg, J.) (“An almost unbroken line of federal decisions holds that persons

whose liability is joint and several may be sued separately in federal court.”). In Temple—a case

much like this one—a tort plaintiff sued a medical device company in federal district court,

alleging that he sustained severe injuries when “the device’s screws broke off inside [his] back.”

498 U.S. at 6. Subsequently, he also sued the doctor who surgically implanted the device in his

back and the hospital where the surgery was performed, but did so in state court. Id. The

Supreme Court reversed the district court’s order mandating joinder of the doctor and hospital in

2

For the same reasons, the Court will not address whether principles of sovereign immunity

might further frustrate efforts to join the District of Columbia to a claim brought in this Court

under D.C. common law. See, e.g., Morris v. Wash. Metro. Area Transit Auth., 781 F.2d 218,

219–20 (D.C. Cir. 1986) (“Congress has power to legislate for the District of Columbia and to

create an instrumentality that is immune from suit.”); Rieser v. District of Columbia, 563 F.2d

462, 474–75 (D.C. Cir. 1977) (discussing the development of sovereign immunity jurisprudence

as it relates to the District of Columbia); Ibrahim v. District of Columbia, 539 F. Supp. 2d 143,

148–49 (D.D.C. 2008) (discussing a statute by which the District of Columbia waives its

sovereign immunity as to certain claims).

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the federal court action, holding that it “was error to label joint tortfeasors as indispensable

parties,” id. at 7, and that “a tortfeasor with the usual ‘joint-and-several’ liability is merely a

permissive party to an action against another with like liability,” id. (quoting Fed. R. Civ. P.

19(a), Advisory Committee Notes). Because the doctor and hospital, as putative joint

tortfeasors, were not necessary parties to the action between the plaintiff and the medical device

company, the Supreme Court held that the plaintiff had failed to satisfy the “threshold

requirements of Rule 19(a),” and that, accordingly, “no inquiry under Rule 19(b) [wa]s

necessary.” Id. at 8.

The same logic holds here. Saddler’s suit in D.C. Superior Court alleges that the District

of Columbia and Dean-Facchina are responsible for the injuries he suffered on September 26,

2013, and his suit in this Court alleges that AMEC is responsible for those same injuries. Under

D.C. law, the “general rule is that [putative] joint tortfeasors” like the District of Columbia,

Dean-Facchina, and AMEC are “jointly and severally liable for compensatory damages”

awarded to a plaintiff, Faison v. Nationwide Mortg. Corp., 839 F.2d 680, 685 (D.C. Cir. 1987)

(citing Hill v. McDonald, 442 A.2d 133, 137 (D.C. 1982)), and, as both the Supreme Court and

the D.C. Circuit have explained, tortfeasors that are allegedly jointly and severally liable for a

plaintiff’s injuries do not need to be sued in a single proceeding, see Temple, 498 U.S. at 7; Park,

695 F.2d at 631.

AMEC seeks to avoid this line of reasoning by recasting Saddler’s tort suit as an action

sounding in contract. See Dkt. 9 at 7 (noting that Saddler’s complaint indicates that “it [wa]s

AMEC’s role as a construction manager that g[ave] rise to [its] duty” of care and arguing that

“the scope of services AMEC was to provide as a construction manager [is] an issue of

contractual interpretation . . . that cannot be resolved without both contracting parties”).

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Whether Saddler can establish that AMEC breached a duty to him that was borne out of its

performance of contractual duties owed to the District of Columbia is a good question. But

AMEC did not bring a Rule 12(b)(6) or Rule 56 motion to test the legal sufficiency of Saddler’s

theory of liability. Rather, its motion is premised on Rule 12(b)(7) alone, and nothing that the

Court holds, if and when it is required to address the source and scope of any duty AMEC may

have owed Saddler, will bind the District of Columbia. Indeed, the D.C. Circuit recently rejected

the same argument that AMEC presses, holding that Rule 19 does not require joinder merely

because a case calls for interpretation of an agreement to which a non-party is a signatory. See

Nanko Shipping, 850 F.3d at 464–65. As the Court of Appeals explained, the non-party’s right

to due process is protected because it cannot be “bound by any judgment rendered in its

absence,” id. at 465, and “the requirements of Rule 19(a) are not satisfied simply because a

judgment [in the pending action] might set a persuasive precedent in any potential future action,”

id. (quoting Huber v. Taylor, 532 F.3d 237, 250 (3d Cir. 2008)). That reasoning is dispositive

here.

Accordingly, because AMEC has not demonstrated that the District of Columbia is an

indispensable party that the Court “must . . . join[]” under Rule 19(a), its motion to dismiss under

Rule 12(b)(7) fails.

B. Colorado River Abstention

Alternatively, AMEC argues that the Court should abstain from exercising jurisdiction

over this matter (or should at least stay proceedings) under the Colorado River doctrine.3 Dkt. 4-

3

For purposes of the Colorado River doctrine, the District of Columbia is treated as a State. See

Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 351 (D.C. Cir. 2003) (“Although the

Superior Court [of the District of Columbia] is a congressionally created court and, thus,

‘federal’ in its creation, we have heretofore reviewed the district court’s discretionary dismissal

in favor of parallel proceedings in Superior Court under the standard applicable to a parallel state

court proceeding.”)

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1 at 18–24. As the Supreme Court explained in Colorado River, the “[g]eneral[] . . . rule is that

‘the pendency of an action in the state court is no bar to proceedings concerning the same matter

in the [f]ederal court having jurisdiction.’” 424 U.S. at 817 (quoting McClellan v. Carland, 217

U.S. 268, 282 (1910)). “Abstention from the exercise of federal jurisdiction,” the Court further

admonished, “is the exception, not the rule;” is “an extraordinary and narrow exception to the

duty of a District Court to adjudicate a controversy properly before it;” and is “justified . . . only

in the exceptional circumstances where [it] would clearly serve an important countervailing

interest.” Id. at 813 (internal quotation marks omitted). In short, federal courts have a “virtually

unflagging obligation” to exercise their lawful jurisdiction, id. at 817, and they may not decline

to adjudicate a suit “merely because a [s]tate court could entertain it,” id. at 814 (internal

quotation marks omitted); see also Hoai v. Sun Ref. & Mktg. Co., 866 F.2d 1515, 1520 (D.C. Cir.

1989) (“[T]he Supreme Court has clearly instructed that Colorado River may not be invoked as a

means of getting rid of cases that properly belong in federal court.”).

Despite this “heavy obligation,” Colorado River nevertheless recognized that, in certain

“situations involving the contemporaneous exercise of concurrent jurisdictions . . . by state and

federal courts,” abstention might be proper. 424 U.S. at 817, 820. That narrow exception

“rest[s] on considerations of wise judicial administration, giving regard to conservation of

judicial resources and comprehensive disposition of litigation.” Id. at 817 (internal quotation

marks and alteration omitted). In determining whether to invoke the doctrine, federal courts

must consider a series of factors including the “inconvenience of the federal forum, the order in

which the courts assumed jurisdiction, the desirability of avoiding piecemeal litigation, whether

federal or state law controls[,] and whether the state forum will adequately protect the interests of

the parties.” Handy, 325 F.3d at 352–53 (citing Colorado River, 424 U.S. at 817–18). “No one

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factor is necessarily determinative;” rather, “a carefully considered judgment taking into account

both the obligation to exercise jurisdiction and the combination of factors counselling against

that exercise is required.” Colorado River, 424 U.S. at 818–19. The decision whether to abstain

“does not rest on a mechanical checklist, but on a careful balancing of the important factors,” and

the “weight to be given to any one factor may vary greatly from case to case, depending on the

particular setting of the case.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.

1, 16 (1983).

As a threshold matter, Saddler argues that Colorado River abstention is inapplicable here

because, unlike every Colorado River case cited by AMEC, this is not a case in which both

parties before the federal court are also parties to the state court action; AMEC is party here but

not in the D.C. Superior Court action.4 Because the comity and convenience interests that

underlie the doctrine are not implicated when a “party is absent from a separate suit pending

before another court,” Saddler argues, invocation of the Colorado River doctrine must “require[]

that [the] parallel litigation involve the same parties before both courts.” Dkt. 8 at 13 (emphasis

added).

There is considerable merit to Saddler’s position, and, indeed, at least one decision from

this district has reached the conclusion that Saddler urges. See Lawyers Title Ins. Corp. v. Merit

Title Co., LLC, 549 F. Supp. 2d 90, 92 (D.D.C. 2008) (“[T]he Colorado River doctrine of

4

AMEC cites a single case in its reply brief, Brinco Mining, Ltd. v. Federal Insurance Co., 552

F. Supp. 1233, 1241 (D.D.C. 1982), for the proposition that the “Court may abstain from hearing

a matter where concerns of duplicative litigation arise, even where the parties to the two actions

are not identical.” Dkt. 9 at 9. But in Brinco, the same plaintiff and defendant from the federal

court action were also present in the action before a Canadian court. See 552 F. Supp. at 1234.

Although AMEC is correct that there were additional defendants joined in the foreign action that

were not joined in the federal court action, the more important point is that the parties before the

federal court—the court that had to decide whether or not to invoke the Colorado River

abstention doctrine—were also both before the foreign court. That is not the case here.

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abstention requires that parallel litigation involve the same parties before both courts.”).

Moreover, although the D.C. Circuit has yet to address the question, a number of other circuit

courts have reached similar conclusions. The Seventh Circuit, for example, has held that

Colorado River abstention applies only if the federal and state actions are “parallel.” AAR Int’l,

Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001). This does not mean that the

suits must be “identical,” or that “the mere presence of additional parties or issues in one of the

cases will . . . necessarily preclude” application of Colorado River abstention. Id. But it does

require that “‘substantially the same parties are litigating substantially the same issues

simultaneously in two fora.’” Id. (quoting Schneider Nat’l Carriers, Inc. v. Carr, 903 F.2d 1154,

1156 (7th Cir. 1990)). Other circuits, including the Third, Fourth, Sixth, Tenth and Eleventh

Circuits, have applied the same standard. See Ambrosia Coal & Constr. Co. v. Pages Morales,

368 F.3d 1320, 1330 n.21 (11th Cir. 2004) (collecting cases). Some courts, moreover, go

further, holding that “[t]he pendency of a state claim based on the same general facts or subject

matter as a federal claim and involving the same parties is not alone sufficient;” in addition, the

cases must be so similar that “there is a substantial likelihood that the state proceeding will fully

dispose of the claims presented in the federal court.” See, e.g., Fru-Con Constr. Corp. v.

Controlled Air, Inc., 574 F.3d 527, 535 (8th Cir. 2009). At a minimum, however, all of these

courts agree that Colorado River abstention requires a “substantial” identity of the parties.

Applying that principle here, the Court agrees with Saddler that AMEC cannot clear this

hurdle. The sole defendant in this action is AMEC, and AMEC is not a party to the D.C.

Superior Court action. Under these circumstances, the Superior Court action cannot possibly

resolve the dispute between the parties to this action. That, alone, provides sufficient basis to

deny AMEC’s motion. But because the D.C. Circuit has yet to resolve this threshold question,

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the Court will go on to apply the Colorado River factors, which also tip decisively in favor of the

Court exercising jurisdiction over this case.

1. Convenience of the Federal Forum

The first factor asks whether “the federal forum is inconvenient for the parties involved.”

Foster-El v. Beretta U.S.A. Corp., 163 F. Supp. 2d 67, 71 (D.D.C. 2001). In Colorado River, the

Supreme Court concluded that “the 300-mile distance between the [federal court] and the [state]

court,” along with other factors, weighed in favor of abstention. 424 U.S. at 820. Here, in

contrast, the physical distance between this Court and the D.C. Superior Court is closer to 300

feet than 300 miles. This factor, accordingly, does not support abstention. See Foster-El, 163 F.

Supp. 2d at 71.

2. Source of Law to Be Applied

The Court must also consider “whether federal or state law controls.” Handy, 325 F.3d at

352. There is no dispute that Saddler’s common-law tort claims are governed by D.C. law. But

state or local law applies in all diversity actions,5 and there is no reason to believe that this case

is likely to raise any unusually difficult or novel questions of D.C. law; to the contrary, it is a

garden-variety tort case. AMEC argues otherwise, noting that Saddler’s negligence per se claim

will “involve[] the application of certain [D.C.] public safety regulations” which “have not been

considered by the [Superior Court]” in any prior case. Dkt. 4-1 at 23. Reference to regulations

to establish a per se duty, however, is not unusual, see, e.g., Gadaire v. Orchin, 197 F. Supp. 3d

5, 13 (D.D.C. 2016) (discussing whether “the defendant has violated a statutory duty [under the

D.C. Trust Act] supporting a claim of ‘negligence per se’”), and the fact that the specific

5

Cf. Sheehan v. Koonz, 102 F. Supp. 2d 1, 5 (D.D.C. 1999) (“[T]he very existence of diversity

jurisdiction rests on a presumption that federal courts are competent to decide questions of state

law.” (internal quotation marks omitted)).

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regulations at issue have not been applied in a prior tort case does not introduce the type of

difficulty or novelty that would weigh substantially in the Colorado River calculus. This factor,

accordingly, provides little support for abstention.

3. Adequacy of State Court to Protect Rights

Colorado River requires that the Court also consider “whether the state forum will

adequately protect the interests of the parties.” Handy, 325 F.3d at 352. In the present context,

this factor overlaps with the threshold inquiry; as noted above, AMEC is a party only to this

action and thus is not subject to the jurisdiction of the D.C. Superior Court. As the plaintiff in

both actions, moreover, Saddler is a voluntary party to both the D.C. Superior Court action and

this action. As such, this is not a case in which abstention would risk subjecting either party to a

forum that might not adequately protect that party’s interests, and it is not a case in which the

failure to abstain risks forcing either party to litigate in such a forum. As a result, this factor

does not weigh in favor of, or against, abstention.

4. Piecemeal Litigation

The next Colorado River factor focuses on “the desirability of avoiding piecemeal

litigation.” Id. “Piecemeal litigation occurs when different tribunals consider the same issue,

thereby duplicating efforts and possibly reaching different results.” Foster-El, 163 F. Supp. 2d at

71 (quoting Travelers Indemnity Co. v. Madonna, 914 F.2d 1364, 1369 (9th Cir. 1990)). Here,

there is some risk of duplication of efforts, but no risk that AMEC—the moving party—will be

required to duplicate its efforts. To the contrary, the D.C. Superior Court action will, if anything,

save work for AMEC. Because that case is substantially further along, AMEC might be able to

rely on findings that the D.C. Superior Court makes that are adverse to Saddler by asserting issue

preclusion. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (“Issue preclusion . . . bars

successive litigation of an issue of fact or law actually litigated and resolved in a valid court

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determination essential to the prior judgment, even if the issue recurs in the context of a different

claim.” (internal quotation marks omitted)). But, as a non-party to that case, AMEC need not

worry that any findings that are favorable to Saddler will bind it in this action. See id. at 892–93

(“A person who was not a party to a suit generally has not had a full and fair opportunity to

litigate the claims and issues settled in that suit,” and, accordingly, the application of “issue

preclusion to nonparties thus runs up against the deep-rooted historic tradition that everyone

should have his own day in court.” (internal quotation marks omitted)).

Moreover, to the extent this factor is intended to promote judicial efficiency, it weighs

substantially against abstention. Most notably, the D.C. Superior Court action is ready for trial.

If the Court were to abstain on the theory that Saddler should press his claims against AMEC in

the Superior Court action, however, that court would need to postpone the trial and would need

to reopen discovery and motions practice to provide AMEC with an opportunity to catch up.

That would be inefficient and would substantially disrupt the Superior Court action.

Accordingly, if anything, this factor weighs against abstention.

5. Order of Jurisdiction

Finally, the Court is required to consider “the order in which courts assumed

jurisdiction.” Handy, 325 F.3d at 352. Ordinarily, the fact that a state court proceeding was

brought before the federal court action was initiated might weigh in favor of abstention. See,

e.g., Atkinson v. Grindstone Capital, LLC, 12 F. Supp. 3d 156, 163–64 (D.D.C. 2014)

(determining that, because the “state court obtained jurisdiction well in advance of [the federal

court]” and had “overseen the progress of the litigation,” the “scale [wa]s tipped in favor of

abstention”). In Colorado River itself, for example, the Supreme Court relied on the fact that

little had occurred in the federal district court before the abstention motion was filed. 424 U.S. at

820 & n.25. Presumably, this conclusion was premised on the notion that little would be lost by

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requiring the federal court to defer to the state court proceeding; that is, abstention would not

disrupt an ongoing federal proceeding in which the court and the parties had already invested

significant time and effort.

In this case, however, AMEC urges one of two courses, neither of which would

“conserv[e] judicial resources” or promote the “comprehensive disposition of litigation.”

Colorado River, 424 U.S. at 817. First, the Court might dismiss this action and leave it to

Saddler to seek to join AMEC in the D.C. Superior Court action. But, if this Court were to do

so, it would do far more than disrupt this proceeding (which concededly is in its initial phase); it

would, as explained above, risk disrupting the Superior Court proceeding, which is set for trial.

Nor would judicial economy be served by dismissing this action, only to invite Saddler to bring

an entirely new (and independent) action against AMEC in Superior Court. Second, the Court

might simply stay this case pending resolution of the Superior Court action. It is unclear,

however, what end a stay would serve. AMEC would still be subject to suit before this Court;

the suit would merely be delayed. Such a delay, moreover, would likely work a substantial

hardship on Saddler, who represents to the Court that he “is currently suffering from numerous

serious health issues, including cancer.” Dkt. 8 at 15. Any difficulty that might arise regarding

the availability of counsel and witnesses, moreover, can easily be addressed through the Court’s

management of the pending proceeding.

The Supreme Court has reminded lower courts that “[t]his factor, as with the other

Colorado River factors, is to be applied in a pragmatic, flexible manner with a view to the

realities of the case at hand.” Moses H., 460 U.S. at 21. That admonition is particularly apt here,

where dismissal of this action would likely disrupt the Superior Court action, and where a stay of

this action would not “secure the just, speedy, and inexpensive determination” of Saddler’s

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claims, Fed. R. Civ. P. 1. Aware of its “heavy obligation to exercise” its lawful jurisdiction,

Colorado River, 424 U.S. at 820, the Court concludes that AMEC has failed to make the

extraordinary showing necessary to obtain dismissal or a stay under the Colorado River doctrine.

CONCLUSION

For the foregoing reasons, AMEC’s motion to dismiss, Dkt. 4, is hereby DENIED.

AMEC is hereby ORDERED to answer Saddler’s complaint on or before June 16, 2017.

SO ORDERED.

/s/ Randolph D. Moss

RANDOLPH D. MOSS

United States District Judge

Date: May 26, 2017

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