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Decided Sept. Mark E. Forstadt, Linda S. He based this dismissal upon the "exceptional circumstances" doctrine governing the exercise of concurrent federal Acorp V-325 state jurisdiction articulated in Colorado River Water Conservation District v.


United States, U. Cone Memorial Hospital v. Mercury Construction Corp. The underlying dispute arose out of a construction project converting the former Biltmore Hotel in New York City into an office building known as Bank of America Plaza. Bethlehem agreed to provide all labor, equipment, supervision, and administration Acorp V-325 to construct a structural steel and metal deck for the project. Bethlehem subsequently entered into subcontracts with Gem Steel Erectors, Inc. In lateGem allegedly threatened to withdraw its employees from the project, claiming that Bethlehem was not paying monies due under its subcontract. In order to avoid a work stoppage, Timko and Paul Milstein, Timko's president and director, arranged to make progress payments directly to Gem. This arrangement is the basis of the present action in which Bethlehem alleges, inter alia, breach of the contract between itself and Timko, and tortious interference by Milstein with the subcontract between Bethlehem and Gem.

Prior to the present action, however, there was a flurry of related activity in New York state court.

In OctoberGem and Polito filed notices of mechanic's liens in New York County against the construction project. In earlythe owner of the property, Builtland Partners "Builtland"petitioned in Supreme Court, New York County, to discharge the notices of lien. Meanwhile, on March 19,Gem and Polito commenced an action in the same court for foreclosure of the liens and for breach of contract Acorp V-325 connection with the work, labor, and supplies they had provided at the project. The fourteen defendants in the state litigation include Builtland, Timko, and Bethlehem, as well as eleven other entities that claim an interest in or liens on the construction project property.

Milstein, a partner in Builtland, is not a party to the state court action. After the New York Supreme Court granted Builtland's petition and discharged the notices Acorp V-325 lien as untimely and defective, Gem and Polito proposed a stipulated dismissal of all parties that had been named as defendants in the state litigation solely with respect to the lien foreclosure causes of action. Although Builtland and Timko agreed to this proposal, no further action was taken. Instead, several months later, counsel for Gem and Polito and counsel for Bethlehem jointly requested that Builtland and Timko stipulate to the dismissal of the state court action and agree to be sued by Bethlehem in federal court.

This request was rejected.

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Each side now accuses the other of conspiring to keep the state court action dormant. Whatever the cause, there is no dispute about the result: Jurisdiction was grounded on diversity of citizenship. During the same month, Timko and Milstein moved Acorp V-325 dismiss the entire action on the ground that a pending state court action raised substantially identical issues. Holding that "this case falls within the framework of the exceptional circumstances test," the district court dismissed the complaint. Decision and Order filed Nov.

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We reverse. Where, as here, a federal court properly has subject matter jurisdiction, it has a "virtually unflagging obligation" to exercise that jurisdiction, even if an action Acorp V-325 the same matter is pending in state court.


Colorado River, U. This obligation is subject to very limited exceptions, one of which is relevant to this case. A district court may decline to exercise its jurisdiction in "exceptional circumstances" based on "considerations of ' [w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation. See also Cone, U. Telesco Fuel and Masons' Materials, Inc. Fontana, F. Lewis, F. Colorado River identified several factors to be considered in applying the exceptional circumstances test: Cone elaborated upon this test and added two new considerations: In both cases the Court warned, however, that Acorp V-325 determination Acorp V-325 to defer to a state court under the exceptional circumstances test "does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.

The decision whether to stay or dismiss a federal suit under the Colorado River doctrine is committed to the discretion of the district court. We believe that in the present case the district court simply gave no weight to the heavy presumption favoring the exercise of jurisdiction and thereby abused its discretion in dismissing Bethlehem's suit. The district court stated that in determining the existence of exceptional circumstances, it "must consider" avoidance of piecemeal litigation, the order in which the courts obtained jurisdiction, whether state or federal law supplies the rule of decision, and whether the state court proceedings will adequately protect the rights of the party seeking to invoke federal jurisdiction.

Decision and Order at 4. It thus failed to consider the first two factors enunciated in Colorado River, both of which militate against dismissal because, the liens having been discharged, neither court presently has jurisdiction over any res or property, and the federal forum is not less convenient than the state forum. Although federal courts are not bound to give weight to each factor--indeed, we are warned by Cone to avoid applying a "mechanical checklist," U. Illinois Commerce Commission, Acorp V-325.

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Even considering only the factors relied on by the district court, that presumption precludes dismissal. First, allowing the federal action to proceed does not necessarily create piecemeal litigation that might be Acorp V-325 by dismissal. Download Acorp V driver for Video card software now.

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