                                    United States Court of Appeals,

                                              Fifth Circuit.

                                              No. 92-3498.

                  The TRAVELERS INSURANCE COMPANY, Plaintiff-Appellant,

                                                    v.

         LOUISIANA FARM BUREAU FEDERATION, INC., et al., Defendants-Appellees.

                                             July 29, 1993.

Appeal from the United States District Court for the Middle District of Louisiana.

Before JOHNSON, GARWOOD, and JONES, Circuit Judges.

          JOHNSON, Circuit Judge:

          On April 21, 1992, after two years of litigation and the resolution of the Travelers Insurance

Company's claims against eighteen of nineteen defendants, the district court dismissed the Company's

cause of action against the remaining defendant, Miss Ashley Claire Hurdle. Finding support in

Torch, Inc. v. LeBlanc, 947 F.2d 193 (5th Cir.1991), the court decided to abstain in this declaratory

judgment action. The Travelers Insurance Company ("Travelers") appeals. Finding that the district

court abused its discretion in dismissing Travelers' suit against Miss Hurdle, we reverse.

                                    I. Facts and Procedural History

          Effective January 1, 1982, Travelers issued an annual health and accident insurance policy to

the Louisiana F.B. Service Company, Inc. ("Farm Bureau"). The policy provided benefits to those

Farm Bureau members and dependents who were enrolled in the plan. Travelers provided an annual

policy which the Farm Bureau renewed each year through 1989, when Travelers decided to

discontinue coverage of Farm Bureau members. Members and dependents who had been diagnosed

with terminal illnesses were highly displeased with Travelers' decision. Believing that Louisiana law

prohibited Travelers from unilaterally terminating their insurance policy,1 many of the

   1
       Louisiana Revised Statutes provide:

                 No group, family group, or blanket health insurer shall unilaterally cancel a policy
                 after the insurer has received any covered claim or notice of any covered claim for
                 a terminal, incapacitating, or debilitating condition. The insurer may cancel the
members—Louisiana and Mississippi residents—retained counsel and sent demand letters to

Travelers. They insisted that Travelers not terminate their medical coverage. Several members also

filed lawsuits.2

        On December 4, 1989, Ashley Claire Hurdle, a dependent of a Farm Bureau member, also

filed suit against Travelers in the 18th Judicial Court in Iberville Parish. Ashley had been diagnosed

with acute myelogenous leukemia in March of that year. Like the other Farm Bureau members who

had filed suit against Travelers, Ashley filed a declaratory judgment action in state court, petitioning

that court to define her rights under Travelers' insurance policy in light of section 22:228 of the

Louisiana Revised Statutes. In response, Travelers, invoking the court's diversity of citizenship

jurisdiction, initiated this declaratory act ion in federal district court for the Middle District of

Louisiana. Travelers sought to bring all of the potential claimants, including the Louisiana Farm

Bureau Federation, Inc., Louisiana F.B. Service Co., Inc., and seventeen individual defendants, under

the umbrella of one action so that all of the claims could be resolved consistently and completely. For

two years, the parties actively engaged in litigation, and by December 13, 1991, the claims against

all of the defendants except for Ashley Hurdle were resolved.3

        On November 15, 1991, Travelers filed a motion for summary judgment against Miss Hurdle.

Both parties agreed that no material issues of fact existed in the case and that summary

judgment—for one or the other party—was appropriate. Instead of ruling on the summary judgment

motion, however, the district court, sua sponte, raised the issue of abstention. Reviewing the then


                   policy, as otherwise provided by law, after the claimant's terminal, incapacitating,
                   or debilitating condition has concluded and no further claims for that condition are
                   expected, provided there has been no other covered claim, or notice of claim,
                   made by any member of the group for a terminal, incapacitating, or debilitating
                   condition.

        LA.REV.STAT.ANN. § 22:228(A) (West Supp.1993).
   2
    Irma Simoneaux Vial filed suit in the 24th Judicial District Court in Jefferson Parish.
Defendants William Parker, Alois Reiners, Allotes Leigh Thistlethwaite and Eloise Ortego
Thistlethwaite filed suit in the 27th Judicial District Court in St. Landry Parish.
   3
    The district court entered default judgments against five defendants, granted summary
judgment against one defendant, and dismissed two other defendants. The ten remaining
defendants agreed to settle their claims against Travelers.
newly-released opinion in Torch, Inc. v. LeBlanc, 947 F.2d 193 (5th Cir.1991), the court directed

the parties to present briefs on whether it should abstain from deciding the substantive issues in the

case. Travelers argued against abstention. Miss Hurdle neither supported nor opposed it. 4 The

court, without analyzing the facts of this case in light of the pertinent abstention factors, dismissed

Travelers' cause of action against Miss Hurdle on April 21, 1992—more than two years after

Travelers had initiated the suit. Arguing that the court abused its discretion by dismissing the case,

Travelers appeals.

                                              II. Discussion

A. Availability of Declaratory Judgment

           Prior to determining whether the district court abused its discretion by failing to review the

merits of this case, this Court must first determine whether the district court had authority to grant

a declaratory judgment here. The Fifth Circuit has decided that when a state lawsuit is pending, more

often than not, issuing a declaratory judgment will be tantamount to issuing an injunction—providing

the declaratory plaintiff an end run around the requirements of the Anti-Injunction Act.5 Texas

Employers' Ins. Ass'n v. Jackson, 862 F.2d 491, 506 (5th Cir.1988) (en banc), cert. denied, 490 U.S.

1035, 109 S.Ct. 1932, 104 L.Ed.2d 404 (1989). Thus, as a general rule, the district court may not

consider the merits of the declaratory judgment action when 1) a declaratory defendant has previously

filed a cause of action in state court against the declaratory plaintiff, 2) the state case involves the

same issues as those involved in the federal case, and 3) the district court is prohibited from enjoining

the state proceedings under the Anti-Injunction Act. Jackson, 862 F.2d at 506; see also, Samuels

   4
    Miss Hurdle merely explicated the pertinent law and suggested, without urging, that the
district court had the power to abstain. She further explained that if the court chose not to
abstain, it would have to rule on Travelers' summary judgment motion. She then went on to
oppose that motion.
   5
       The Anti-Injunction Act provides:

                  A court of the United States may not grant an injunction to stay proceedings in a
                  State court except as expressly authorized by Act of Congress, or where necessary
                  in aid of its jurisdiction, or to protect or effectuate its judgments.

          28 U.S.C. § 2283. The parties do not contend that any of the exceptions to the act are
          applicable in this case.
v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971). The Court has found that

the issuance of a declaratory judgment in such situations would be antithetical to the noble principles

of federalism and comity. See Jackson, 862 F.2d at 505.

        However, we believe that the case sub judice is in a very small class of highly distinguishable

cases which are exceptions to the broad rule announced in Jackson. First, unlike the normal

declaratory plaintiff—and, indeed, the declaratory plaintiff in Jackson6—Travelers brought this action

in federal court neither to nullify Miss Hurdles' advantage in first bringing suit in Louisiana State

Court nor to change forums.7 Travelers brought this action to avoid a multiplicity of suits in various

forums throughout Louisiana and possibly Mississippi.8 Travelers explained in its original complaint

that it brought suit so that the one pertinent issue, which involved seventeen Farm Bureau members

who could have brought suit in multitudinous forums in Louisiana and Mississippi, could be resolved

consistently in one, rather than multiple, forums. Such a goal, unlike that of changing forums or

subverting the real plaintiff's advantage in state court, is entirely consistent with the purposes of the

Declaratory Judgment Act.9 Crosley Corp., 122 F.2d at 930 (stating that the intent of the

   6
    This Court explained in Jackson "that the only purpose and effect of TEIA's federal suit was
to defeat Jackson's state suit against it and to, in effect, overrule the state trial court's denial of
TEIA's plea in bar." Jackson, 862 F.2d at 505 (emphasis in the original).
   7
    Using a declaratory judgment action to race to res judicata or to change forums is thoroughly
inconsistent with the purposes of the Declaratory Judgment Act and should not be countenanced.
Dresser Indus., Inc. v. Insurance Co. of North America, 358 F.Supp. 327 (N.D.Tex.1973), aff'd,
475 F.2d 1402 (5th Cir.1973); JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 57.08[5]
(2d ed. 1991); CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2758 (2d ed.
1983).
   8
    Travelers had already been sued in three different Louisiana district courts which sat in three
different Louisiana appellate circuits.
   9
    It is abundantly clear that multiple lawsuits on the same issue can result in differing and
conflicting decisions and do result in a waste of judicial time and resources. The Third Circuit
aptly explained more than fifty years ago:

                The economic waste involved in duplicating litigation is obvious. Equally
                important is its adverse effect upon the prompt and efficient administration of
                justice. In view of the constant increase in judicial business in the federal courts
                and the continual necessity of adding to the number of judges, at the expense of
                the taxpayers, public policy requires us to seek actively to avoid the waste of
                judicial time and energy. Courts already heavily burdened with litigation with
                which they must of necessity deal should therefore not be called upon to duplicate
Declaratory Judgment Act, then 28 U.S.C. § 400, the predecessor to 28 U.S.C. §§ 2201-2202, is to

avoid multiplicity of suits); Smith v. Transit Casualty Co., 281 F.Supp. 661, 670 (E.D.Tex.1968),

aff'd, 410 F.2d 210 (5th Cir.1969) (asserting that "[o]ne important function of a declaratory judgment

is to avoid multiplicity and circuity of actions"); 6A JAMES W. MOORE ET AL., MOORE'S FEDERAL

PRACTICE ¶ 57.08[6.—1] (2d ed. 1991); CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND

PROCEDURE § 2751 (2d ed. 1983).

          Further, under the facts of this case, we believe that Miss Hurdle has waived any right to

argue that the district court should have given priority to her state suit. Miss Hurdle filed a similar

declaratory judgment suit in Louisiana district court more than two years prior to the dismissal of this

federal declaratory action. However, that state action proceeded no further than the pleading stage

by the time the federal district court dismissed this case. Indeed, while the state case remained

stagnant, this federal case moved fairly quickly: the parties engaged in discovery for well over a year;

the court dismissed Travelers' claims against eighteen of nineteen defendants; Travelers and Miss

Hurdle reso lved all material fact issues, and the case proceeded to and was ripe for summary

judgment.

          The Court finds significant that even though Miss Hurdle had ample opportunity to so do, at

no time did she ask the district court to give precedence to her state court action. On July 6, 1990,

just five months after Travelers filed suit, the district court ordered "those defendants who have

contested jurisdiction and venue, or who believe that this court should transfer this matter to another

district, abstain or should stay this action, [to] file their motions raising these issues" by August 3,

1990. (emphasis supplied). The other four defendants who had brought suit against Travelers in

state forums10 responded to the court's order and filed motions urging the district court to defer to




                  each other's work in cases involving the same issues and the same parties.

          Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 930 (3d Cir.1941), cert. denied, 315
          U.S. 813, 62 S.Ct. 798, 86 L.Ed. 1211 (1942).
   10
        See supra note 2.
the state courts. Ashley Hurdle, though aware of the court's order and the parties' motions,11 filed

no such motion.

        Moreover, when the district court asked the parties to provide briefs on the abstention issue,

Ashley Hurdle responded with a brief which was thoroughly equivocal on the issue—it neither

advocated nor opposed abstention. It merely recited abstention law and urged the court to deny

Travelers' motion for summary judgment. By vigorously litigating the claims raised in the federal

declaratory judgment action rather than advocating abstention and by exerting literally no effort

whatever in her state case, Miss Hurdle, in essence, abandoned that state case.

        Hence, because Travelers' primary goal in bringing this declaratory judgment action in federal

court was to avoid a multiplicity of lawsuits in different forums and because Ashley Hurdle, in our

view, waived any right to assert that her state action took precedence over Travelers' federal action,

this case falls outside the broad parameters of Jackson. We therefore hold that although the district

court could not have enjoined Hurdle's state case under the Anti-Injunction Act, it was nonetheless

authorized to review the merits of Travelers' declaratory judgment claim.

B. Dismiss or Declare?

        The Court must now turn to the question of whether the district court abused its discretion

by abstaining from deciding the merits of this case. It is now well-settled in the Fifth Circuit that a

district court has discretion over whether to decide or dismiss a declaratory judgment action.12

Granite State Ins. Co. v. Tandy Corp., 986 F.2d 94 (5th Cir.1992), cert. dismissed, --- U.S. ----, 113

   11
     On August 3, 1990, defendants Allotes and Eloise Thistlethwaite filed a motion to dismiss,
transfer, or abstain. They filed a memorandum explaining and supporting that motion on August
8. Similarly, on August 21, 1990, defendants William Parker and Alois Reiners filed a motion to
stay or dismiss the proceedings or to remand or transfer the case to the 24th Judicial District
Court in Jefferson Parish. See supra note 2. Parker and Reiners filed a memorandum supporting
that motion on the same day. The district court issued no fewer than eight orders concerning
these motions during the course of the litigation. The record reflects that Miss Hurdle's counsel
was informed of each such motion and each such order.
   12
     This Court has made clear that the factors set out in Colorado River Water Conservation
District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and Moses H.
Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d
765 (1983), are inapplicable in declaratory judgment actions. Granite State Ins. Co. v. Tandy
Corp., 986 F.2d 94 (5th Cir.1992), cert. dismissed, --- U.S. ----, 113 S.Ct. 1836, 123 L.Ed.2d
463 (1983).
S.Ct. 1836, 123 L.Ed.2d 463 (1993); Torch, Inc. v. LeBlanc, 947 F.2d 193 (5th Cir.1991).

However, though the district court's discretion is broad, it is not unfettered. Courts may not dismiss

requests "for declaratory judgment relief "on the basis of whim or personal disinclination.' " Rowan

Cos., Inc. v. Griffin, 876 F.2d 26, 28-29 (5th Cir.1989) (quoting Hollis v. Itawamba County Loans,

657 F.2d 746, 750 (5th Cir.1981)). Further, unless the district court addresses and balances the

purposes of the Declaratory Judgment Act and the factors relevant to the abstention doctrine on the

record, it abuses its discretion. Id. at 30 (quoting In re Air Crash Disaster Near New Orleans, 821

F.2d 1147, 1166 (5th Cir.1987), vacated on other grounds sub nom. Pan American World Airways,

Inc. v. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400) (1989)).

        The relevant factors which the district court must consider include, but are not limited to, 1)

whether there is a pending state action in which all of the matters in controversy may be fully litigated,

Rowan Co., Inc., 876 F.2d at 29, 2) whether the plaintiff filed suit in anticipation of a lawsuit filed

by the defendant, Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 (5th Cir.1983), 3)

whether the plaintiff engaged in forum shopping in bringing the suit, Rowan Cos., Inc., 876 F.2d at

29, 4) whether possible inequities in allowing the declaratory plaintiff to gain precedence in time or

to change forums exist, id., 5) whether the federal court is a co nvenient forum for the parties and

witnesses, Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 (5th Cir.1983), and 6)

whether retaining the lawsuit in federal court would serve the purposes of judicial economy, see

Mission Ins. Co., 706 F.2d at 602.

        We note immediately that the district court summarily dismissed this case without providing
even a cursory analysis of the pertinent facts and law.13 Based upon the clear mandate of Rowan,14

we must find that the district court abused its discretion by failing to individualize its decision by

addressing the facts of this case in light of the above-listed abstention factors and the goals of the

Declaratory Judgment Act.

          While this Court is under no obligation to review the facts of this case in light of the relevant

factors, we believe that doing so would be judicious. So reviewing this case, this Court finds that the

district court should have reached the merits. First, there is no doubt that Ashley Hurdle filed suit

in the 18th Judicial District Court two months prior to Travelers' bringing suit in the federal court.

However, Miss Hurdle does not deny that her state case proceeded no further than the filing of the

original pleadings. Thus, though the state court has precedence in time,15 that court is far behind the

federal court in resolving the issues at hand.16

          The second and third factors do not support abstention, for Travelers did not bring this suit

   13
        The district court's entire order asserted:

                           This suit was filed in this Court seeking a declaratory judgment. There is a
                  similar suit pending in the 18th Judicial District Court, which was filed by the
                  plaintiff. For reasons set forth in Torch, Inc. v. LeBlanc, 947 F.2d 193 (5th
                  Cir.1991) and Palmer v. Boucvalt, CA No. 90-774 [789 F.Supp. 211] (M.D.[ ]La.
                  April 1992), this suit is dismissed without prejudice. The state courts are well
                  equipped to handle the litigation between the parties.

                          Judgment shall be entered accordingly.
   14
     The Rowan Court held that in declaratory judgment cases, " "a district court abuses its
discretion when it summarily denies or grants a motion to dismiss without either written or oral
explanation' or "when it fails to address and balance the relevant principles and factors of the
doctrine.' " Rowan, 876 F.2d at 30 (quoting In re Air Crash Disaster Near New Orleans, 821
F.2d 1147, 1166 (5th Cir.1987) (en banc), vacated on other grounds, Pan American World
Airways, Inc. v. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989)).
   15
     Hurdle's contention that the Fifth Circuit looks only to the chronological order in which
lawsuits are filed is quixotic. If this Court had adopted such a strict chronological approach, we
clearly would not have enumerated six factors which must be considered, rather than one date of
filing factor. Moreover, the second abstention factor—requiring the court to consider whether
the declaratory suit was filed in anticipation of a lawsuit filed by the declaratory
defendant—inherently recognizes that in some cases where the declaratory plaintiff was, indeed,
the first to file, the court should nonetheless abstain.
   16
     Hurdle's state suit was a declaratory judgment action, so the type of relief sought in that case
would not have differed at all from the type of relief requested in this case. See Torch, 947 F.2d
at 196.
to race to res judicata, nor did it shop for a new forum or seek to thwart any advantage Miss Hurdle

may have gained by filing suit first in state court. On the contrary, Travelers' goal—consistent with

the purposes of the Declaratory Judgment Act—was to avoid multiple lawsuits in numerous different

forums. With respect to the fourth factor, Miss Hurdle has not pointed to any inequities which could

possibly flow from the district court's reaching the merits of this case. Additionally, Miss Hurdle

concedes that trying the case in the federal district court in Baton Rouge is no less convenient than

trying the case in the 18th Judicial District Court in Iberville Parish.

        The judicial economy factor, the last factor, overwhelmingly supports retention of the case.

As explained in part II-A of this opinion, the parties here have completed discovery and have resolved

all material fact issues. All that remains in this case is the resolution of one, solitary, legal question

on which the district court has already been thoroughly briefed. The district court simply needs to

make a decision. However, as has been noted repeatedly, if this case were dismissed, the state court,

duplicating the work already done in the federal court, would have to "start from scratch." Its

resolution of this case would necessarily be significantly delayed.

        Addressing the facts of this case in light of the applicable law makes it readily apparent that

abstention was inappropriate here. The district court abused its discretion in declining to review the

merits of this case.

                                            III. Conclusion

        The district court failed to apply existing Fifth Circuit law in any significant way to the facts

of the case sub judice. Had t he court pro perly analyzed the facts and the law, it would have

recognized that abstention was completely inappropriate here. Because the district court improperly

dismissed this case, we must REVERSE AND REMAND for that court to adjudicate the merits of

the case.

        GARWOOD, Circuit Judge, specially concurring:

        I concur in Judge Johnson's careful o pinion, and write separately only to emphasize my

underst anding that we do not thereby speak to what the result would be had not "Miss Hurdle, in

essence, abandoned" her "state case" and "waived any right to assert that her state action took
precedence over Travelers' federal action."
