                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               SEP 25 2000
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                     Clerk

 WILLIAM A. JONES,

          Plaintiff-Appellant,
 v.
                                                             No. 99-6428
                                                      (D.C. No. CIV-99-1003-T)
 GREAT SOUTHERN LIFE
                                                    (Western District of Oklahoma)
 INSURANCE COMPANY,

          Defendant-Appellee.


                                 ORDER AND JUDGMENT*


Before KELLY, Circuit Judge, HOLLOWAY, Senior Circuit Judge, and
McWILLIAMS, Senior Circuit Judge.**



      Commencing on or about January 27, 1997, William A. Jones (“Jones”), a resident

of Oklahoma, served as a general agent for Great Southern Life Insurance Company

(“Great Southern”), a Texas insurance company with its principal place of business in

Dallas County, Texas, selling life insurance policies issued by Great Southern pursuant to

      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause
is therefore ordered submitted without oral argument.
a general agent’s contract and an advance addendum signed by both parties. On June 7,

1999, Great Southern filed suit in a state court in Dallas County, Texas, against Jones and

other of its agents, seeking to recover over $1,000,000.00 in commission advances paid

under their contract and addendum thereto. One week later, on June 14, 1999, Jones filed

a petition against Great Southern in the state district court for Oklahoma County,

Oklahoma, asserting several tort claims arising out of their business relationship. More

specifically, Jones alleged that Great Southern had been negligent in advising insureds of

non-payment of monthly premiums, as required by the contract between the parties, and

that, in connection with their contract dispute, certain employees of Great Southern

threatened him thereby causing emotional distress and the like. On or about July 9, 1999,

Jones filed an answer and an objection to venue and a motion to dismiss for forum non

conveniens in the Texas proceeding. In his answer, Jones alleged, as an affirmative

defense, that Great Southern had failed to provide timely notice of cancellation to

insureds whose policies had lapsed and that it had utilized “wrongful acts” to collect

payment of monies allegedly due it by Jones. The motion to dismiss based on forum non

conveniens has not yet been heard.

       Back to the Oklahoma proceeding. On July 6, 1999, Great Southern, the defendant

in that action, filed a motion to dismiss or abate. In that motion Great Southern asked the

Oklahoma state court to dismiss or abate the proceeding before it, “pending resolution of

the Dallas Lawsuit.” On July 13, 1999, Great Southern filed a notice of removal of the


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proceeding from the state district court in Oklahoma County to the United States District

Court for the Western District of Oklahoma, based on diversity of citizenship, 28 U.S.C.

§1332(a). On July 20, 1999, Great Southern filed an answer and counterclaim, “without

waiver or prejudice” to its pending motion to dismiss or abate. On July 26, 1999, Jones

filed a response to Great Southern’s motion to dismiss or abate, and on August 12, 1999,

filed an answer to Great Southern’s counterclaim.

           On August 27, 1999, Great Southern filed a motion for abstention, asking that the

federal district court either dismiss Jones’ petition, or, alternatively, stay the proceeding

until the Texas proceeding was concluded. Jones filed a response to that motion on

September 13, 1999. On September 20, 1999, the United States District Court for the

Western District of Oklahoma granted Great Southern’s request for abstention, and stayed

further proceedings in the Oklahoma case until “resolution” of the Texas proceeding.1 On

September 30, 1999, Jones filed a motion for a new trial, and Great Southern filed a

response thereto. October 27, 1999, the district court denied that motion. Jones filed a

notice of appeal on November 24, 1999.

       In staying the proceedings in the United States District Court for the Western

District of Oklahoma until the Texas proceeding was resolved, the district court

recognized all the factors bearing on the question of whether a federal district court


       1
        By its order, the district court stayed proceedings in the federal district court. It
did not dismiss Jones’ petition. In this connection, see Allen v. Board of Educ., 68 F.3d
401, 403 (10th Cir. 1995).

                                             -3-
should stay its proceedings until a parallel state action is first resolved, as such are

enumerated in, for example, Colorado River Water Conservation District v. United

States, 424 U.S. 800 (1976), Moses H. Cone Memorial Hospital v. Mercury Construction

Corp., 460 U.S. 1 (1983) and Fox v. Maulding, 16 F.3d 1079 (10th Cir. 1994). The court

noted that the general rule is that federal jurisdiction should not be surrendered unless

there be “exceptional circumstances” and there be “the clearest of justifications” therefor.

In his brief in this court, Jones’ counsel summarized the district court’s order of

abstention as follows:

                 The order was based on the district court’s determinations:
              that the federal and state actions were “duplicative, not
              piecemeal;” that the state court could promptly and adequately
              “resolve the case;” that the factor of “comprehensive
              disposition of litigation” weighed in favor of staying the
              action “pending resolution of the parallel proceeding;” and
              that “judicial economy concerns may justify deferral of a
              federal suit when pending state litigation will resolve the
              issues presented in the federal case.”

       In addition to the foregoing summary of the district court’s order, we would add

that the court also observed that apparently many of the potential witnesses resided in

Texas and that “the bulk of the sales underlying the commission dispute occurred in

Texas or states other than Oklahoma.” The district court also noted that the advance

addendum provided that Texas law should govern.2


       2
        The present case involves no federal question. In DeCisneros v. Younger, 871
F.2d 305, 309 (2nd Cir. 1989), the Second Circuit noted that it had previously held that
although the absence of a federal issue did not require the surrender of jurisdiction, it did

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       On appeal, Jones’ counsel frames the only issue for review by us as follows:

                 Did the district court improperly surrender federal
              jurisdiction and staying the federal suit to allow the state court
              to proceed to judgment where the district court specifically
              did not find the existence of exceptional circumstances and
              the clearest of justifications, which this Court and the United
              States Supreme Court have steadfastly required to justify the
              surrender of such federal jurisdiction.

       Before considering whether the district court acted improperly in granting Great

Southern’s motion for abstention, we should first consider whether the so-called

“Oklahoma proceeding” and the “Texas proceeding” are “parallel.” In Allen v. Board of

Education, 68 F.3d 401, 403 (10th Cir. 1993), we said that “[s]uits are parallel if

substantially the same parties litigate substantially the same issues in different forums,”

citing Fox v. Maulding, 16 F.3d 1079, 1081 (10th Cir. 1994). In this regard, the district

court concluded that “[b]ecause the same parties will be litigating substantially the same

issues in different forums, the suits are parallel.” We agree. Great Southern’s claim in

the Texas proceeding is identical to its counterclaim in the Oklahoma proceeding. Jones’

claim in the Oklahoma proceeding has not been asserted as a counterclaim in the Texas

proceeding. However, we note, as the district court did, that in his answer filed in the

Texas proceeding Jones alleged, as an affirmative defense, that Great Southern had failed

to give timely notice of cancellation to its insureds and therefore it was not entitled to any




favor abstention when the bulk of the litigation concerned state law, citing General
Reinsurance Corp. v. CIBA-GEIGY Corp., 853 F.2d 78, 82 (2nd Cir. 1988).

                                             -5-
repayment of advance premiums and further that Great Southern was guilty of “wrongful

acts” in its efforts to collect payment of monies alleged due it by Jones. Such was the

factual basis of Jones’ cause of action filed in the Oklahoma state court.

       There remains, of course, the issue of whether the district court acted properly in

granting Great Southern’s motion for abstention. Our standard of review is whether in so

doing the district court abused its discretion. In this regard, see DeCisneros v. Younger,

871 F.2d 305, 307 (2nd Cir. 1989). In other words, the district court had discretion, and

we must determine whether, under the circumstances of the case, the district court abused

that discretion. We conclude it did not.

       We gather from counsel’s framing of the only issue raised by him on appeal that he

is of the view that before staying a federal court proceeding until resolution of a parallel

state court proceeding, a federal district court must, in so many words, “find the existence

of exceptional circumstances and the clearest of justifications” and that the failure of the

district court in the present case to so find, in hæc verba, so to speak, in and of itself

dictates reversal. In any event, we do not agree. The district court at the outset of its stay

order stated that its “task is not to find some substantial reason for the exercise of federal

jurisdiction, rather the task is to ascertain whether there exist exceptional circumstances,

the clearest of justifications, that can suffice under Colorado River to justify the surrender

of the jurisdiction,” citing Rienhardt v. Kelly, 164 F.3d 1296, 1303 (10th Cir. 1999). The

district court then went on to list the reasons why it was going to stay federal proceedings


                                              -6-
and allow the state court proceedings to be first resolved, thereby quite obviously

concluding that “exceptional circumstances” or “clearest of justifications” were present

in the case at hand.

       We have held that under Colorado River and Cone3 the factors to be considered in

determining whether a federal court proceeding should be stayed pending resolution of a

parallel state court proceeding do not constitute a “mechanical check list,” that “no single

factor is dispositive,” and that a court should undergo a “careful balancing of the

important factors as they apply to a given case,” at the same time recognizing that such

balancing is “heavily weighted in favor of the exercise of jurisdiction.” Rienhardt v.

Kelly, 164 F.3d 1296 (10th Cir. 1999); Allen v. Board of Educ., 68 F.3d 401 (10th Cir.

1995); Fox v. Maulding, 16 F.3d 1079 (10th Cir. 1994).

       So, the ultimate question here to be resolved is whether the district court in staying

the federal proceeding abused its discretion. We approach that question, as did the

district court, recognizing that, under applicable cases, the “balancing test,” i.e.

considering “both the obligation to exercise jurisdiction and the combination of factors

counseling against that exercise . . .” is “heavily weighted in favor of the exercise of


       3
          In Colorado River, the district court dismissed the plaintiff’s suit. On appeal, we
reversed. United States v. Akin, 504 F.2d 115 (10th Cir. 1974). On certiorari, the
Supreme Court reversed us and held that the district court properly dismissed the suit. In
Cone, the district court stayed the proceeding. On appeal, the Fourth Circuit reversed the
district court. Mercury Constr. Corp. v. Moses H. Cone Mem’l Hosp., 656 F.2d 933 (4th
Cir. 1981). On certiorari, the Supreme Court affirmed the Fourth Circuit and held that
the district court erred in staying the action.

                                             -7-
jurisdiction.” Colorado River, 424 U.S. at 818-819; Fox v. Maulding, 16 F.3d at 1082.

Even though it may be “heavily weighted,” that does not mean that a federal district court

should never stay its case in deference to a parallel state court proceeding. So, the district

court still had “discretion” in the matter.

       All things considered, we do not believe the district court abused its discretion in

staying the proceeding in its court until resolution of the parallel state court proceeding.

It took into consideration all of the applicable “factors” that should be considered. In no

sense did it act arbitrarily or capriciously.4 In a review of this sort, an appellate court

should be careful that it does not simply substitute its judgment on the matter for that of a

district court. In Finova Capital Corp. v. Ryan Helicopter, 180 F.3d 896, 900 (7th Cir.

1999), a case which also involved a stay of federal court proceedings in deference to a

parallel state court proceeding, the Seventh Circuit, in affirming the district court’s stay

order, observed that “while we may part company with the district court on these discrete

issues, it is not our task simply to substitute our own perspective.”




       4
        “A district court abuses its discretion when it renders ‘an arbitrary, capricious,
whimsical, or manifestly unreasonable judgment.’” Coletti v. Cudd Pressure Control,
165 F.3d 767, 777 (10th Cir. 1999), citing FDIC v. Oldenburg, 34 F.3d 1529, 1555 (10th
Cir. 1994).

                                              -8-
Judgment affirmed.

                     Entered for the Court,

                     Robert H. McWilliams
                     Senior Circuit Judge




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