     Case: 13-30617   Document: 00512682236    Page: 1   Date Filed: 06/30/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                No. 13-30617                           FILED
                                                                   June 30, 2014
                                                                  Lyle W. Cayce
AFRICAN METHODIST EPISCOPAL CHURCH,                                    Clerk

                                         Plaintiff-Appellee
v.

WILLARD LUCIEN, JR.; ROGER KENNEDY; SAINT JAMES MISSION
CHURCH; GEORGE GATON, SR.; THOMAS J. HOGAN,

                                         Defendants-Appellants


SAINT JAMES MISSION CHURCH,

                                         Plaintiff-Appellant
v.

ANNUAL CONFERENCE OF THE AFRICAN METHODIST EPISCOPAL
CHURCH IN MISSISSIPPI AND LOUISIANA; CARLTON GALMON, SR.;
JAMES MARTIN; OTIS LEWIS,

                                         Defendants-Appellees



                Appeal from the United States District Court
                   for the Eastern District of Louisiana



Before SMITH, WIENER, and PRADO, Circuit Judges.
WIENER, Circuit Judge:
      This appeal concerns a dispute over church property between a dissident
local congregation (“Saint James”) and the national church (“AME”) with
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                                     No. 13-30617
which it had been affiliated for many decades. Saint James filed an action in
the City Court of Hammond, Louisiana, to evict several AME officeholders who
had changed the church’s locks and taken over the premises. AME countered
by filing its own action in federal district court several weeks later, seeking a
declaration that in fact it was the members of the congregation’s dissident
majority who, by severing ties with AME, had disassociated themselves from
the true Saint James congregation and thereby relinquished any rights to
ownership and control of the disputed property. Two days later, AME removed
Saint James’s eviction action to the same federal court. 1 Saint James then
followed with a motion to have its eviction action remanded to state court and
now seeks reversal of the district court’s denial of its remand motion or,
alternatively, reversal of that court’s summary judgment granted to AME in
its federal action. We hold that the district court lacked subject matter
jurisdiction over Saint James’s first-filed state court eviction action, and that
federal precedent mandates that the district court abstain from the exercise of
jurisdiction over AME’s federal complaint for declaratory and injunctive relief
while the remanded eviction action is pending in state court. We therefore
vacate the rulings of the district court and remand with instructions for it to
remand Saint James’s eviction action to state court and to stay AME’s federal
action during the pendency of the state proceedings.


                         I. FACTS AND PROCEEDINGS
      This appeal comprises two proceedings that were consolidated in the
district court. The first commenced on September 27, 2011, when Saint James
filed a Rule to Evict Occupants (the “eviction proceeding” or the “rule to evict”)



      1 The Eastern District of Louisiana’s case number for the federal action is 11-2656.
The case number for the removed eviction action is 11-2660.
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                                       No. 13-30617
in the City Court of Hammond, Louisiana. The premises from which Saint
James sought to evict the defendants in rule (the “property”) is located in
Hammond, Louisiana. Named as defendants in rule were the Annual
Conference of the African Methodist Episcopal Church in Mississippi and
Louisiana (the “Annual Conference,” a regional division of AME), Carlton
Galmon, Sr. (Saint James’s pastor until the time that the congregation split),
Otis Lewis (the presiding bishop of the Annual Conference), and James Martin
(one of but a few members of Saint James’s congregation who had remained
loyal to AME). On October 24, 2011, roughly four weeks after the eviction
proceeding was filed in state court, AME removed that action to the district
court for the Eastern District of Louisiana on behalf of the defendants-in-rule,
asserting diversity jurisdiction.
       Two days before it removed the Saint James eviction proceeding from
state court, however, AME had instituted the second proceeding (the “federal
action”) by filing a petition for declaratory and injunctive relief in the same
federal district court. In that action, AME named as defendants Saint James,
its attorney (Thomas J. Hogan, Jr.), and three of its trustees (Willard Lucien,
Jr., George Gaten, Sr., and Roger Kennedy), alleging diversity jurisdiction. 2
AME sought, inter alia, (1) a declaration that the defendants’ acts in
purporting to transfer title to the property and in obstructing AME’s access to
it were illegal, and (2) an injunction prohibiting further interference.



       2 AME also alleged federal question jurisdiction, based on the First and Fourteenth
Amendments. On appeal, however, AME makes no arguments in support of federal question
jurisdiction, and the district court did not address that issue. There is no federal question
jurisdiction here: We simply note in passing that the Free Exercise Clause enshrines AME’s
right to practice its religion free from interference by the government, but does not create a
cause of action against Saint James or any of the individuals whom AME sued. See Am. Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (stating that neither the Fourteenth
Amendment nor 42 U.S.C. § 1983 reaches “merely private conduct, no matter how
discriminatory or wrongful”).
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                                        No. 13-30617
       The parties do not dispute the material facts relevant to whether there
is federal diversity jurisdiction over the rule to evict, viz., that Saint James and
all of its members are citizens of Louisiana; that AME is an incorporated
religious denomination and a citizen of Pennsylvania 3; that Carlton Galmon,
Sr., Otis Lewis, and James Martin (collectively, “forum defendants”) are
citizens of Louisiana; and that the property includes land and improvements
located in Louisiana, as well as associated movables and bank accounts, the
total value of which exceeds $75,000.
       Similarly, although the parties dispute the relevance of the facts and
circumstances of the property’s ownership, they do not dispute the existence of
those facts: Saint James holds record title to the property 4; AME is a
“hierarchical, connectional religious society” governed by The Book of
Discipline of the African Methodist Episcopal Church, which includes specific
provisions relating to the ownership of property by local churches, and which
governed the relationship between AME and Saint James, at least up until the
time of the split.
       The split was made official by a letter dated July 15, 2011 from Saint
James to the Bishop of the Eighth Episcopal District, in which Saint James
announced its decision “to no longer be a part of the African Methodist
Episcopal Organization and . . . to disassociate from the denomination. . . .
From this point on, our church name shall be returned to Saint James African
Methodist Episcopal Mission Church.” Again, the parties dispute the legal
effect of this letter, but not its existence. The same is true of a record document


       3   The Annual Conference is a religious corporation and a Mississippi citizen.
       4 Although the record contains a warranty deed executed in 1924 and purporting to
transfer some of the property from the “St. James A.M.E. Mission Church” to the “St. James
African Methodist Episcopal Church, Inc.,” the parties agree that the latter corporation was
never certified by the Secretary of State and therefore agree that “[t]itle to the property
remained vested in Saint James A.M.E. Mission Church, an unincorporated association.”
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                                      No. 13-30617
that was executed after the split and purports to transfer the property from
“Saint James AME Mission Church, Inc., successor in interest to Saint James
A.M.E. Mission” to “Saint James Mission Church – Airport Road”: the parties
dispute the legal effectiveness of this document, but not its existence.
       On October 25, 2011, one day after removal of the eviction proceeding,
Saint James filed a motion in the district court seeking remand of that action
to state court. It insisted that the federal court lacked subject matter
jurisdiction because of (1) the absence of a federal question, and (2) the lack of
complete diversity of citizenship among the parties. Saint James followed that
filing a week later with a motion to dismiss the federal action, again asserting
the lack of subject matter jurisdiction.
       The district court consolidated Saint James’s rule to evict and AME’s
federal action on November 23, 2011. Both the remand motion and the
dismissal motion were under submission when, five days later, the
consolidated case was transferred to Section “G.” 5 The following May, the court
denied the remand motion, holding that it could properly exercise diversity
jurisdiction over the rule to evict. 6 Saint James filed a motion for
reconsideration of the denial of its remand motion, but the district court denied
it.
       In the meantime, Saint James had answered AME’s complaint in the
federal action and filed a counterclaim in which it sought (1) a declaration that
it (Saint James) is the rightful owner of the property and (2) damages for
AME’s interference. In early March 2013, AME moved for summary judgment
in the federal action. On March 19, 2013, Saint James filed an opposition styled


       5 Honorable Nannette Jolivette Brown, United States District Judge (Eastern District
of Louisiana).
       6The district court also denied the motion to dismiss, a ruling which Saint James does
not challenge on appeal.
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                                        No. 13-30617
“Opposition . . . and Cross Motion for Partial Summary Judgment.” As the
court’s existing scheduling order required that all motions for summary
judgment be filed and served by March 12, 2013, however, AME responded
with a motion to strike Saint James’s cross-motion for summary judgment. The
following month, the district court entered an Order and Reasons (1) granting
AME’s motion for summary judgment, (2) denying Saint James’s cross-motion,
and (3) denying as moot AME’s motion to strike Saint James’s cross motion.
Saint James timely filed its notice of appeal.


                              II. STANDARD OF REVIEW
       We “review de novo a denial of remand to state court.” 7 A court must
remand a case “if at any time before final judgment it appears that the district
court lacks subject matter jurisdiction over a case removed from state court.” 8
A federal court may exercise subject matter jurisdiction over a state action
when the amount in controversy suffices and when there is complete diversity
of citizenship between the properly joined parties. 9 The removing party must
bear the burden of showing that removal is proper. 10 Any “doubts regarding
whether removal jurisdiction is proper should be resolved against federal
jurisdiction.” 11




       7Vantage Drilling Co. v. Hsin-Chi Su, 741 F.3d 535, 537 (5th Cir. 2014) (per curiam)
(quoting Rodriguez v. Sabatino, 120 F.3d 589, 591 (5th Cir. 1997) (per curiam)).
       8 Int’l Primate Protection League v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 87
(1991) (quoting 28 U.S.C. § 1447(c)) (internal quotation marks and alterations omitted).
       9   28 U.S.C. § 1332(a); Vantage Drilling, 741 F.3d at 537.
       10   Vantage Drilling, 741 F.3d at 537.
       11   Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000).
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                                             No. 13-30617
                                           III. ANALYSIS
   A. Applicable law
          A removing party may establish federal diversity jurisdiction by
demonstrating that the state court plaintiff “improperly joined” all forum
defendants. 12 To establish improper joinder, the removing party must prove
either “(1) actual fraud in the pleading of jurisdictional facts, or (2) [the]
inability of the plaintiff to establish a cause of action against the non-diverse
party in state court.” 13 We have explained that “the test for fraudulent joinder
is whether the defendant has demonstrated that there is no possibility of
recovery by the plaintiff against an in-state defendant, which stated differently
means that there is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state defendant.” 14 A mere
theoretical possibility of recovery in state court will not preclude a finding of
improper joinder. 15 The federal court’s inquiry into the reasonable basis for the
plaintiff’s state-court recovery is a “Rule 12(b)(6)-type analysis,” although the
court retains discretion to pierce the pleadings and conduct summary
proceedings, including limited jurisdictional discovery. 16 Ultimately, “[t]he
burden is on the removing party; and the burden of demonstrating improper




          12   Smallwood v. Ill. Cent. R. Co., 385 F.3d 568, 572-73 (5th Cir. 2004) (en banc).
          13   Id. at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)).
          14   Id.
          15   Id. at 573 n.9 (citing Badon v. RJR Nabisco, Inc., 236 F.3d 282, 389 n.4 (5th Cir.
2000)).
         Id. at 573-74 (cautioning that a district court’s allowance of too-extensive discovery
          16

risks entangling it in the merits and observing that “inability to make the requisite decision
in a summary manner itself points to an inability of the removing party to carry its burden”).
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                                        No. 13-30617
joinder is a heavy one.” 17 We repeat for emphasis that “any contested issues of
facts and any ambiguities of state law must be resolved” in favor of remand. 18
   B. The parties’ positions
       1. Saint James
       Saint James contends that the district court erred in failing to remand
the eviction proceeding because the forum defendants were properly joined:
Absent AME’s removal, there is a reasonable basis for predicting that Saint
James would have succeeded in evicting the forum defendants. Saint James
emphasizes its allegations that (1) it owns the property, (2) the defendants-in-
rule occupied the property, and (3) they failed to vacate the property after
receiving the required notice. As its pleadings comply with Louisiana’s
statutory requirements, argues Saint James, the proper state court would have
evicted all of the defendants-in-rule, including the forum defendants, from the
property. 19
       2. AME
       AME makes no effort to support the district court’s decision to exercise
jurisdiction over the eviction proceeding. Instead, AME emphasizes that Saint
James did not challenge the federal court’s diversity jurisdiction over the
federal action. AME further asserts that the City Court of Hammond did not
have jurisdiction over the rule to evict because (1) that action involved a
dispute over ownership of immovable property and (2) the value of that
property exceeded the City Court’s jurisdictional limit.



       17   Cuevas v. BAC Home Loans Servicing, LP, 648 F.3d 242, 249 (5th Cir. 2011).
       18   Id.
        Saint James’s initial brief includes a footnote suggesting that AME waived its right
       19

to remove the eviction proceeding by attaching exceptions to its notice of removal filed in the
City Court of Hammond. As we hold that the district court should have remanded the
removed eviction proceeding, we need not address the issue of waiver.
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                                 No. 13-30617
      3. Saint James’s reply
      In response, Saint James insists that AME’s attack on the jurisdiction of
the City Court applies with equal force to all defendants, both diverse and non-
diverse, and therefore does nothing to support the exercise of federal
jurisdiction. Saint James also claims that it successfully named the forum
defendants as defendants-in-counterclaim in the federal action, thereby
importing them from the state eviction proceeding into the federal action. Saint
James thus insists that there is no diversity in either case.
   C. The district court’s reasoning
      The district court initially denied the remand motion by concluding that
the forum defendants were only nominal parties whose citizenship could be
ignored for jurisdictional purposes. The court’s basis for this conclusion is
unclear. It first stated that the forum defendants “do not fit” the category of
“occupants” amenable to eviction under Louisiana law. Then the court
reasoned that “any occupancy by the [forum] Defendants has not been claimed
on their own behalf; instead the occupancy to be considered here is that of
[AME].” The court concluded that “it is clear that whatever actions the [forum]
Defendants took, they were done on behalf of [AME] and that [AME] is, in fact,
the only alleged ‘occupant.’”
      Next, on reconsideration, the district court suggested that Saint James’s
motion for remand included factual assertions—namely, descriptions of each
forum defendant’s office within AME—which supported the court’s conclusion
that the forum defendants acted solely on behalf of AME. Finally, in its order
and reasons denying reconsideration, instead of reasserting that the forum
defendants were not “occupants,” the court relied entirely on its theory that
the forum defendants acted solely as agents of AME.




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                                       No. 13-30617
   D. Discussion
       Construing the jurisdictional statutes narrowly in favor of remand and
resolving any ambiguity in fact or state law in favor of remand, we hold that
the district court erred in refusing to remand the eviction proceeding. As
described above, the district court verbalized at least two distinct reasons for
refusing to remand the eviction action: (1) The forum defendants were not
“occupants”; and (2) they could not be evicted because they occupied the
property only as agents of AME. The district court cites no authority for either
proposition, and our research reveals none. Rather, Saint James’s rule to evict
stated a claim against the forum defendants that complied with Louisiana’s
statutory requirements.
       The relevant Louisiana definition of “occupant,” 20 which the district
court did not analyze, confirms that Saint James did allege that the forum
defendants were occupants under Louisiana law. Saint James’s rule to evict
alleged that the defendants-in-rule, “as occupants, are occupying” the
property. 21 Saint James also alleged that it has always been the sole owner of
the property, and that the forum defendants used the property only at its




       20See La. Code Civ. Proc. art. 4704 (“ ‘occupant’ includes a . . . former owner; and any
person occupying immovable property by permission or accommodation of the owner, former
owner, or another occupant. . .”).
     Saint James’s pleading states the following, under the heading “RULE TO EVICT
       21

OCCUPANTS”:
               ON MOTION OF PLAINTIFF, and on suggesting to the court that
       defendants, as occupants, are occupying the premises located at 43483 S
       Airport Rd Hammond LA 70403("the property"); that plaintiff is an
       unincorporated association, represented by its Trustees; that plaintiff is the
       owner of the property; that the property is located within the territorial
       jurisdiction of this Court; that the plaintiff has notified the defendants to
       vacate the premises more than five days ago; and defendants have failed to
       vacate the premises.
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                                         No. 13-30617
sufferance during Saint James’s long association with AME. Accordingly, Saint
James alleged that the forum defendants were occupants. 22
      Whether the forum defendants occupied the property only as agents of
AME is irrelevant. The Louisiana statutes that create the summary eviction
proceeding do not require or imply the need for an inquiry into the identity of
the one or ones on whose behalf property is occupied. 23 Stated differently, the
question before a Louisiana court in a rule to evict is a simple one: Has the
owner satisfied the statutory requirements, including giving the occupant
adequate notice? 24 Any delving into the possible agency relationship between
the forum defendants and AME is without either statutory or jurisprudential
support under Louisiana law.
      The district court’s opinion includes a reference to the parties’ competing
ownership claims. The court did not identify the significance that it saw in the
ownership dispute within the context of the jurisdictional question. The court’s
reference implies, however, that it believed that it needed to decide the
ownership issue to decide whether the forum defendants were improperly
joined. In other words, the court appears to have believed that, because a state
court likely would have needed to resolve the ownership question before
deciding whether or not to evict, it (the district court) had to resolve the
ownership question before deciding whether to remand.
      This analytical approach might have had special allure to the district
court, given that it also had to adjudicate—in the same consolidated
proceeding—an action seeking resolution of the ownership question, in which


      22 Even if a narrow reading of the statutory definition could have produced ambiguity
as to whether the forum defendants were occupants, any such ambiguity in fact or in state
law must be construed in favor of remand. See Cuevas, 648 F.3d at 249.
      23   See La. Code Civ. Proc. art. 4702.
      24   See id.; see also La. Code Civ. Proc. art. 4704.
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                                       No. 13-30617
the court’s jurisdiction was all but unchallenged. We have cautioned the
district courts against becoming entangled in the merits at the jurisdictional
stage, however, noting that an “inability to make the requisite decision in a
summary manner itself points to an inability of the removing party to carry its
burden.” 25
       AME’s contentions on appeal are unavailing because—simply put—they
are irrelevant. First, AME insists that Saint James has not challenged the
district court’s diversity jurisdiction over the federal action. AME is correct
insofar as Saint James did not appeal the district court’s denial of its Rule
12(b)(1) motion to dismiss the federal action. 26 But the fact that the district
court’s diversity jurisdiction over the federal action stands unchallenged is
irrelevant to the threshold question on appeal: Could the federal court properly
exercise diversity jurisdiction over the eviction proceeding?
       Likewise, AME’s attack on the Hammond City Court’s jurisdiction is
irrelevant to the question of remand. We express no opinion whether the
Hammond City Court was deprived of subject matter jurisdiction over the
eviction proceeding when AME filed exceptions that would place the ownership
or control of the property in dispute. 27 After all, even AME does not contend—
nor could it—that no Louisiana court could have exercised jurisdiction over
Saint James’s eviction rule. The lack of jurisdiction of a particular state court
cannot serve to vest a federal court with jurisdiction. When inquiring into its
jurisdiction, a federal court must assess whether there exists a reasonable


       25   Smallwood, 385 F.3d at 573-74.
       26 Moreover, Saint James has waived this issue because it challenged the district
court’s diversity jurisdiction over the federal action for the first time in its reply brief.
Linbrugger v. Abercia, 363 F.3d 537, 542 n.1 (5th Cir. 2004) (citing Morin v. Moore, 309 F.3d
316, 328 (5th Cir. 2002)).
       27See La. Code Civ. Pro. art. 4847(A) (“Except as otherwise provided by law, a . . . city
court has no jurisdiction in . . . [a] case involving title to immovable property. . . .”).
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                                         No. 13-30617
basis to predict that the party seeking remand might obtain relief from a state
court—any state court—not which state court would have been the more
appropriate forum in which to file or the one best suited to render a judgment. 28
       For the foregoing reasons, we reverse the district court’s denial of Saint
James’s motion to remand the eviction proceeding, and we remand this issue
to that court with instructions for it to remand the case to the state court from
which that proceeding was improvidently removed, namely, the City Court of
Hammond, Louisiana.
   E. Abstention
       Our decision to remand the eviction proceeding does not complete our
task. We must now address whether the district court should abstain from
exercising its jurisdiction over the remaining portion of the consolidated case,
viz., the federal action. We conclude that the Colorado River – Moses Cone
doctrine of abstention (“Colorado River abstention”) applies in this case and
that the district court must abstain by staying the federal action during the
pendency of the state eviction proceedings. 29




       28 See Smallwood, 385 F.3d at 573. Even if it were relevant, AME’s attack on the
jurisdiction of the Hammond City Court applies with equal force to all the defendants-in-
rule, as Saint James points out. Consequently, if AME’s argument had any weight, it would
favor remand.
       29 A purely declaratory action “affords a . . . court broad discretion” to defer to a parallel
state proceeding. New England Ins. Co. v. Barnett, 561 F.3d 392, 394 (5th Cir. 2009).
“However, when an action involves coercive relief, the . . . court must apply the abstention
standard set forth in Colorado River Water Conservation District v. United States,” under
which the “court’s discretion to dismiss is ‘narrowly circumscribed’ and is governed by a
broader ‘exceptional circumstances’ standard.” Id. at 394-95 (internal citation and quotation
marks omitted). AME’s complaint seeks injunctive relief in addition to a declaratory
judgment, and therefore the more discretionary approach is not available. See Sw. Aviation,
Inc. v. Bergen Aviation, Inc., 23 F.3d 948, 951 (5th Cir. 1994) (“Inclusion of these coercive
remedies [for the breach of a contract in the form of damages, attorney’s fees, and injunctive
relief] indisputably removes this suit from the ambit of a declaratory judgment action.”).
Colorado River thus governs this case.
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                                       No. 13-30617
       Colorado River abstention is a narrow exception to a federal court’s
“virtually unflagging” duty to adjudicate a controversy that is properly before
it. 30 Under this doctrine, a federal court may abstain only under “exceptional
circumstances.” 31 Our abstention decision must be based on considerations of
“[w]ise judicial administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.” 32
       1. Parallelism
       As an initial step prior to application of the Colorado River factors,
identified below, we address whether Saint James’s eviction proceeding and
AME’s federal action are sufficiently parallel to make consideration of
abstention proper. We have previously held that a federal court may stay an
action pending disposition of a state court action when the state and federal
actions are “parallel.” 33 We have identified parallel actions as those “involving
the same parties and the same issues,” 34 but we have also noted that “it may
be that there need not be applied in every instance a mincing insistence on
precise identity” of parties and issues. 35 In light of our duty to consider wise
judicial administration, conservation of judicial resources, and comprehensive




        Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 16 (1983); Colo.
       30

River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976).
       31 Brown v. Pacific Life Ins. Co., 462 F.3d 384, 394 (5th Cir. 2006) (quoting Kelly Inv.
Inc. v. Cont’l Common Corp., 315 F.3d 494, 497 (5th Cir. 2002)).
       32Colo. River, 424 U.S. at 817 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co.,
342 U.S. 180, 183 (1952)).
       33 Exxon Corp. v. St. Paul Fire & Marine Ins. Co., 129 F.3d 781, 785 (5th Cir. 1997);
see also RepublicBank Dallas Nat. Ass’n v. McIntosh, 828 F.2d 1120, 1121 (5th Cir. 1987) (per
curiam).
        Id. (citing PPG Indus., Inc. v. Cont’l Oil Co., 478 F.2d 674, 682 (5th Cir. 1973) and
       34

Mendiola v. Hart, 561 F.2d 1207, 1208 (5th Cir. 1977) (per curiam)).
       35   RepublicBank, 828 F.2d at 1121.
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                                       No. 13-30617
disposition of litigation, we look both to the named parties and to the substance
of the claims asserted in each proceeding. 36
       As noted at the outset, Saint James’s state court rule to evict names the
Annual Conference and three individuals as defendants. AME intervened in
that proceeding by filing its Notice of Removal and Exceptions “on behalf of”
the defendants-in-rule. On the other hand, AME’s federal action names Saint
James and four individuals as defendants, three of whom (Willard Lucien, Jr.,
George Gaten, Jr., and Roger Kennedy) acknowledge that they are proper
representatives of Saint James; the fourth, Thomas J. Hogan, Jr., is Saint
James’s attorney at law, and he disputes whether he has any exposure in his
personal capacity. To be sure, those named as parties in the two actions are
not precisely identical, but the record is clear that there are only two sides in
this dispute: The interests of all of the parties named in either action align
undisputedly, either with Saint James’s interest or with AME’s. 37
       AME’s federal action focuses exclusively on the property’s ownership and
on whether those named as defendants in the federal action forwent the legal
right to represent Saint James when they split from AME. Saint James’s
eviction proceeding will undoubtedly require it to prove that it holds title to
the property; Saint James will also have to prove that its notice was adequate
and that the defendants-in-rule were “occupants.” Thus, the eviction
proceeding will necessarily dispose of all claims asserted by AME in the federal



       36 Lumen Const., Inc. v. Brant Const. Co., Inc., 780 F.2d 691, 695 (7th Cir. 1985) (“In
analyzing whether a dismissal or stay will further the interest in avoiding piecemeal
litigation, we look not for formal symmetry between the two actions, but for a substantial
likelihood that the state litigation will dispose of all claims presented in the federal case.”)
       37See Canaday v. Koch, 608 F. Supp. 1460, 1475 (S.D.N.Y. 1985) (“Where the interests
of the plaintiffs in each of the suits are congruent, Colorado River abstention may be
appropriate notwithstanding the nonidentity of the parties.”), aff’d sub nom. Canaday v.
Valentin, 768 F.2d 501 (2d Cir. 1985).
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action. We are comfortable that the eviction proceeding and the federal action
are sufficiently parallel.
       2. Colorado River factors
       With that preliminary matter laid to rest, we turn to the application of
Colorado River. There are six factors that the court must balance on a case-by-
case basis to determine whether exceptional circumstances warrant
abstention:
       1) assumption by either court of jurisdiction over a res, 2) relative
       inconvenience of the forums, 3) avoidance of piecemeal litigation,
       4) the order in which jurisdiction was obtained by the concurrent
       forums, 5) to what extent federal law provides the rules of decision
       on the merits, and 6) the adequacy of the state proceedings in
       protecting the rights of the party invoking federal jurisdiction. 38

“The decision whether to dismiss a federal action because of parallel state-
court litigation 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.” 39
       Here, the first Colorado River factor weighs heavily in favor of
abstention. This property dispute implicates the longstanding “rule that once
a court, state or federal, has assumed jurisdiction over an in rem or quasi in
rem proceeding, then that court may exercise its jurisdiction to the exclusion
of any other court[,] and the res in question is withdrawn from the jurisdiction
of any other court.” 40 The first Colorado River factor incorporates this ancient
rule. That opinion cites previous United States Supreme Court decisions which


       38   Stewart v. W. Heritage Ins. Co., 438 F.3d 488, 491 (5th Cir. 2006).
       39   Moses H. Cone Mem. Hosp., 460 U.S. at 16.
       40 Smith v. Humble Oil & Ref. Co., 425 F.2d 1287, 1288 (5th Cir. 1970) (citing Princess
Lida of Thurn and Taxis v. Thompson, 305 U.S. 456 (1939); Penn Gen. Cas. Co. v.
Pennsylvania, 294 U.S. 189 (1935); Kline v. Burke Constr. Co., 260 U.S. 226 (1922); Palmer
v. Texas, 212 U.S. 118 (1909)).
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held “that the court first assuming jurisdiction over property may exercise that
jurisdiction to the exclusion of other courts.” 41 Saint James, by filing its rule to
evict, invoked the Louisiana court’s jurisdiction over a Louisiana res, the
church’s immovable property. 42 The federal court’s exercise of jurisdiction in


        41Colo. River, 424 U.S. at 818 (citing cases). Examples similar to the instant appeal
can be found at least as early as 1909, when the Fourth Circuit reversed the trial court’s
judgment, reasoning that the exercise of jurisdiction over a federal suit seeking an injunction
against interference with a particular property was inappropriate in light of a state action
seeking possession of the same property. Westfeldt v. N. Carolina Min. Co., 166 F. 706, 711
(4th Cir. 1909). The Fourth Circuit explained:
                In the present case there is a specific property in controversy, the title
        to which and the possession of which are involved. A principal object of the
        action in the state court was the possession of the land in dispute. If the federal
        court could, after commencement of the action in the state court, take control
        of the controversy and decide that plaintiffs in the state court had no title, it
        would be impossible thereafter for the state court to proceed with the action
        before it, and, if it so found, adjudge title in the plaintiffs and recovery of
        possession. Hence the decree in the Circuit Court was an injunction in terms
        and effect on appellants from proceeding with their litigation before the state
        court, and consequently a prohibition on the state court to adjudge the title to
        be in plaintiffs in the suit pending therein, or to take possession of that
        property for plaintiffs. The institution of the action in the state court looking
        to the taking of possession of the specific property in litigation was in effect the
        assertion of the right of control over that property. The action in the state court
        required the control and dominion of the property involved, or it was ineffective
        for all purposes. Obviously the object of the action in the United States court
        was the transfer to that court of the very matters that stood for judgment in
        the state court, to wit, the title to the lands in dispute and the right to its
        possession.
Id.
        42 The eviction proceeding is an action in rem under Louisiana law. Article 8 of the
Louisiana Code of Civil Procedure states that “[a] court which is otherwise competent under
the laws of this state has jurisdiction to enforce a right in, to, or against property having a
situs in this state, claimed or owned by a nonresident.” La. Code Civ. Pro. art. 8. The official
comment to Article 8 explains that jurisdiction over the property is a natural result of the
situs of the property and attaches irrespective of the contemporaneous operation of personal
jurisdiction:
        The language of this article does not expressly include the case of an action in
        rem against property in this state owned by a Louisiana domiciliary, as such a
        case presents no jurisdictional problem. Not only would the court have
        jurisdiction over the property, but the defendant may be served with process
        personally, thus giving the court jurisdiction over him personally.
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                                          No. 13-30617
the subsequently filed, parallel federal action would present a significant risk
of inconsistent rulings as to the ownership of the property.
       The second factor, relative inconvenience of the fora, weighs in favor of
abstention, but only slightly. We have explained that this factor “primarily
involves the physical proximity of [each] forum to the evidence and
witnesses.” 43 Traveling by car, the property is approximately five minutes from
Hammond City Court, half an hour from the Tangipahoa Parish Courthouse
in Amite (the closest of three divisions of the Louisiana Twenty-First Judicial
District Court, which district includes Hammond), and just under an hour from
the federal courthouse in New Orleans where the Eastern District of Louisiana
is located. The record does not contain addresses for many of the witnesses,
but, with the exception of two witnesses who reside in Georgia and Mississippi,
respectively, it appears that all witnesses reside in or near Hammond,
Louisiana. Moreover, the documentary evidence necessary to resolution of
these disputes is not voluminous, and most if not all such documents are
already before both the state and the federal courts. The additional half-hour’s
drive makes the federal forum only slightly less convenient, and this
inconvenience is minor compared to the 300-mile distance found “significant”
in Colorado River, a case involving over one thousand defendants. 44


La. Code Civ. Pro. art. 8 cmt. b. See also Fairfield Prop. Mgmt. Stone Vista Apartments v.
Evans, 589 So. 2d 83, 85 (La. Ct. App. 1991) (“Tacking [the statutory notice to the door of the
property] is a special procedure which may be utilized only under . . . special circumstances.
. . . It recognizes that the summary proceedings of eviction are in rem by nature, as their sole
concern is the [occupant’s] right of possession of the . . . property. . . .”); 1 La. Civ. L. Treatise,
Civil Procedure § 2:4 (2d ed.) (“The most common ‘in rem’ action under Article 8 is one for an
adjudication of an interest in property between the parties to the action. In Louisiana, many
of these ‘in rem’ actions are the subject of special proceedings, such as the petitory and
possessory actions and the eviction proceeding.”)
       43   Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185, 1191 (5th Cir. 1988) (Rubin, J.).
       44Colo. River, 424 U.S. at 820; see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511
(1947) (upholding dismissal based on forum non conveniens in part because of 400-mile
distance between fora).
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       Like the first factor, the third factor weighs heavily in favor of
abstention. “The real concern at the heart of the third Colorado River factor is
the avoidance of piecemeal litigation, and the concomitant danger of
inconsistent rulings with respect to a piece of property.” 45 If the federal action
should continue unabated, the district court and the state court would each
determine the same issues with respect to the same property. The risk of
inconsistent rulings would therefore be very real.
       The fourth factor, the sequence in which jurisdiction was obtained,
weighs only slightly in favor of abstention. As noted above, Saint James filed
the rule to evict almost a month before AME filed the federal action; however,
the priority element “should not be measured exclusively by which complaint
was filed first, but rather in terms of how much progress has been made in the
two actions.” 46 At the times of AME’s removal of the eviction proceeding and
Saint James’s motion seeking its remand, neither the eviction proceeding nor
the federal action had progressed beyond the initial pleading stage.
Nevertheless, the fact that the district court erroneously failed to remand the
eviction proceeding and proceeded to issue summary judgment does not weigh
against abstention.
       The fifth factor, whether and to what extent federal law controls the
merits decision, is neutral. Although the case involves only issues arising
under Louisiana law, we have assessed such cases—even some interpreting
recent decisions of a state’s highest court—as “at most neutral” under the fifth
factor. 47 Such is the case here; it weighs neither in favor of abstention nor
against it.

       45 Black Sea Inv., Ltd. v. United Heritage Corp., 204 F.3d 647, 650-51 (5th Cir. 2000)
(citing Evanston, 844 F.2d at 1192) (emphasis in original).
       46   Moses H. Cone, 460 U.S. at 21.
       47   Black Sea, 204 F.3d at 651.
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      The sixth factor, adequacy of the state proceedings to protect AME’s
rights, is likewise neutral. We have made clear that the sixth factor, like the
fifth, can only be neutral or weigh against abstention; it cannot weigh in favor
of abstention. 48 Here, there is no indication that AME would suffer from
inadequate protection of its interests in a Louisiana court. Indeed, AME has
already appeared voluntarily in the eviction proceeding by filing exceptions
and its notice of removal on behalf of the defendants-in-rule.
      To summarize, two of the six Colorado River factors are neutral, two
weigh slightly in favor of abstention, and two weigh heavily in favor of
abstention. As observed, the two neutral factors could only weigh against
abstention, but here they do not. Even though “[a]bstention from the exercise
of federal jurisdiction is the exception, not the rule,” 49 this case is the
embodiment of that rare exception. The exceptional circumstances present
here warrant abstention. Accordingly, our remand with instructions to the
district court that it remand the eviction proceeding to state court includes the
instruction to that court to stay the federal action before it pending final
resolution of those state proceedings.


                                    IV. CONCLUSION
      For the foregoing reasons, we VACATE the district court’s judgment and
REMAND with instructions to REMAND the eviction proceeding, Civil Action
11-2660, to the state court from whence it came, and to STAY the federal
action, Civil Action 11-2656, during the pendency of the eviction proceeding.




      48   Id. (citing Evanston Ins. Co., 844 F.2d at 1193).
      49   Colo. River, 424 U.S. at 813.
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