     18‐2431‐cv(L)
     Arch Ins. Co. v. Pfizer, Inc.


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 6th day of June, two thousand nineteen.
 4
 5           PRESENT: GUIDO CALABRESI,
 6                    RAYMOND J. LOHIER, JR.,
 7                        Circuit Judges,
 8                    ANN M. DONNELLY,
 9                        District Judge.
10
11           ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
12           ARCH INSURANCE COMPANY,
13           U.S. SPECIALITY INSURANCE
14           COMPANY,
15
16                             Plaintiffs‐Appellants,
17
18                                      v.                                        Nos. 18‐2431‐cv(L),
19                                                                                18‐2432‐cv(CON)

     
      Judge Ann M. Donnelly, of the United States District Court for the Eastern District of
     New York, sitting by designation.
 1         PFIZER, INC.,
 2
 3                          Defendant‐Appellee.
 4         ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
 5         FOR APPELLANTS:                                           ERICA KERSTEIN, White and
 6                                                                   Williams LLP, New York, NY
 7                                                                   (Marissa Gerny, Skarzynski
 8                                                                   Black LLC, New York, NY, on
 9                                                                   the brief), for Arch Insurance
10                                                                   Company.
11
12                                                             Matthew Dendinger, Dykema
13                                                             Gossett P.L.L.C., Washington,
14                                                             DC, Scott A. Schechter,
15                                                             Kaufman, Borgeest & Ryan
16                                                             LLP, Valhalla, NY, on the brief,
17                                                             for U.S. Specialty Insurance
18                                                             Company.
19
20         FOR APPELLEE:                                       MARC T. LADD (Adam S.
21                                                             Ziffer, on the brief), McKool
22                                                             Smith, P.C., New York, NY.
23
24         Appeal from a judgment of the United States District Court for the

25   Southern District of New York (Katherine B. Forrest, Judge).

26         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

27   AND DECREED that the judgment of the District Court is AFFIRMED.

28         Arch Insurance Company and U.S. Specialty Insurance Company

29   (collectively, the “Excess Insurers”) appeal from a judgment of the District Court

                                                   2
 1   (Forrest, J.), granting Pfizer’s motion to dismiss the instant action (the “SDNY

 2   Morabito action”) in favor of a parallel action between the same parties pending

 3   in Delaware Superior Court (the “Delaware Morabito action”), and an order of

 4   the District Court denying the Excess Insurers’ motion for reconsideration. We

 5   assume the parties’ familiarity with the underlying facts and the record of prior

 6   proceedings, to which we refer only as necessary to explain our decision to

 7   affirm.

 8         The District Court initially relied on the “first‐filed” rule, “where an action

 9   is brought in one federal district court and a later action embracing the same

10   issue is brought in another federal court, the first court has jurisdiction to enjoin

11   the prosecution of the second action, unless there are special circumstances

12   which justify giving priority to the second action.” City of New York v. Exxon

13   Corp., 932 F.2d 1020, 1025 (2d Cir. 1991) (emphases added) (quotation marks

14   omitted). We agree with both parties on appeal that the first‐filed rule has no

15   application here because the Delaware Morabito action is in state court, not

16   federal court. On reconsideration the District Court clarified that it had




                                               3
 1   dismissed the SDNY Morabito action “in the interest of justice and judicial

 2   efficiency, as these cases should be adjudicated together.” Special App’x at 6.

 3         Since imposing judgment in this case, Judge Forrest resigned from the

 4   federal bench. As a result, remanding this matter may lead to a long delay

 5   while it is reassigned to a new District Judge unfamiliar with the procedural

 6   background. At oral argument, both parties urged that we could resolve this

 7   dispute on appeal. Because Brillhart/Wilton abstention is so clearly warranted

 8   and proper in this case, see Wilton v. Seven Falls Co., 515 U.S. 277 (1995);

 9   Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942); Youell v. Exxon Corp., 74

10   F.3d 373 (2d Cir. 1996), and to avoid further unnecessary delay under the

11   circumstances, we affirm the judgment on that ground.

12         We have considered the parties’ remaining arguments and conclude that

13   they are without merit. For the foregoing reasons, the judgment of the District

14   Court is AFFIRMED.

15                                          FOR THE COURT:
16                                          Catherine O=Hagan Wolfe, Clerk of Court




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