LANCE M. AFRICK, District Judge.
Before the Court is defendant Dash Building Material Center, Inc.'s ("Dash") motion
This declaratory action arises out of an insurance contract dispute between Dash and the plaintiffs, BITCO General Insurance Corporation and BITCO National Insurance Company (collectively, "BITCO"). On May 9, 2018, Don Fontenelle ("Fontenelle"), who is not a party to this lawsuit, filed a petition for damages against Dash in Louisiana state court, alleging that Dash and other defendants caused him to be exposed to asbestos which, in turn, caused him to contract mesothelioma.
On January 29, 2019, the plaintiffs in the state court proceeding filed a third supplemental and amending petition, adding BITCO as a defendant in its capacity as Dash's insurer.
As a threshold matter, the parties disagree about which abstention doctrine applies. The Brillhart/Wilton doctrine applies only to cases that are exclusively declaratory in nature. See Southwind Aviation, Inc. v. Bergen Aviation, Inc., 23 F.3d 948, 951 (5th Cir. 1994). "[W]hen an action involves coercive relief, the district court must apply the abstention standard set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800, 817. . . (1976)" instead. New England Ins. Co. v. Barnett, 561 F.3d 392, 394-95 (5th Cir. 2009). Unlike other circuits, the Fifth Circuit has adopted a bright-line rule: any claim for coercive relief requires application of the Colorado River doctrine.
Having reviewed the parties' briefing on the matter, the Court concludes that the action is not purely declaratory because "it involves a request for monetary . . . relief." American Guarantee & Liability Co. v. Anco Insulations, Inc., 408 F.3d 248, 250-51 (5th Cir. 2005). In American Guarantee, the plaintiff-insurer sought a declaration that it did not owe a duty to the defendants to defend them in a separate lawsuit in state court. See id. at 251. However, because the plaintiff also sought restitution for amounts that it had paid to defend the defendants in state court, the Fifth Circuit held that the application of the Colorado River standard was appropriate. Id. This case is nearly identical: as a corollary to BITCO's alternative claim for declaratory relief, it seeks reimbursement from Dash for any defense costs it incurs in the state court proceeding.
Indeed, in American Guarantee, the Fifth Circuit noted that the Colorado River doctrine applied even if the plaintiff's restitution claim was "merely ancillary" to its claim for declaratory relief. Id. at 251 n.15; see also Black Sea Inv., Ltd. v. United Heritage Grp., 204 F.3d 647, 652 (5th Cir. 2000). Because BITCO's complaint includes a request for reimbursement, application of the Brillhart/Wilton doctrine is inappropriate. See Diamond Offshore Co. v. A&B Builders, Inc., 302 F.3d 531, 539-40 (5th Cir. 2002), overruled on other grounds, 589 F.3d 778 (5th Cir. 2009); see also Scottsdale Ins. Co. v. A3M Co., Inc., No. 07-3346, 2008 WL 754693, at *2 (E.D. La. Mar. 19, 2008) (Vance, J.) (holding that, because the plaintiff asserted a claim for restitution in addition to its claim for declaratory relief, the Colorado River abstention analysis applied).
In its order requesting briefing on the issue of which abstention doctrine applies, the Court specifically asked the parties to argue the relevance and significance of Massachusetts Bay Insurance Company v. Lewis, No. 10-585, 2011 WL 1261145 (M.D. La. Mar. 31, 2011)—a case with facts similar to this one.
Having determined that the Colorado River doctrine applies, the Court must decide whether abstention is proper. Typically, "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction" because the federal court's obligation to exercise its given jurisdiction is "virtually unflagging," Colorado River, 424 U.S. at 817. Accordingly, "[u]nder the Colorado River standard, [a] district court's discretion to dismiss is `narrowly circumscribed.'" New England, 561 F.3d at 395 (quoting Colorado River, 424 U.S. at 817). A federal court may only abstain from exercising its jurisdiction "based on considerations of `[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'" Murphy v. Uncle Ben's, Inc., 168 F.3d 734, 737-38 (5th Cir. 1999) (quoting Colorado River, 424 U.S. at 817).
The Colorado River abstention analysis is only available, however, if the state and federal court proceedings are parallel. American Guarantee, 408 F.3d at 252; Stewart v. Western Heritage Ins. Co., 438 F.3d 488, 491 & n.3 (5th Cir. 2006). As a general rule, proceedings are parallel when "they involv[e] the same parties and the same issues." Diamond Offshore, 302 F.3d at 540 (quoting RepublicBank Dallas Nat'l Ass'n v. McIntosh, 828 F.2d 1120, 1121 (5th Cir. 1987)); see also American Guarantee, 408 F.3d at 252. The Fifth Circuit has acknowledged that "`it may be that there need not be applied in every instance a mincing insistence on precise identity' of parties and issues." African Methodist Episcopal Church v. Lucien, 756 F.3d 788, 797 (5th Cir. 2014) (quoting McIntosh, 828 F.2d at 1121). To determine whether the proceedings are sufficiently parallel to warrant a Colorado River analysis, courts "look both to the named parties and to the substance of the claims asserted in each proceeding." Id.; see also Air Evac EMS, Inc. v. Texas, Dep't of Ins., Div. of Workers' Comp., 851 F.3d 507, 520 (5th Cir. 2017).
Here, the state court proceeding is primarily a personal injury lawsuit.
Accordingly,
Kelly Inv., Inc. v. Continental Common Corp., 315 F.3d 494, 497 (5th Cir. 2002).