RANDOLPH D. MOSS, United States District Judge.
In order to construct a streetcar line in northeast Washington, D.C., the District of Columbia contracted with Dean-Facchina, LLC ("Dean-Facchina") to provide general contracting services and with Defendant AMEC Foster Wheeler Environment & Infrastructure, Inc. ("AMEC") to provide construction management services. AMEC's responsibilities included, among other things, twice-daily inspections of the streetcar construction site to ensure that it was safely maintained. On September 26, 2013, Plaintiff Larry Saddler tripped and fell over a construction sign that had been placed on a sidewalk, resulting in serious injuries. Saddler filed a personal injury complaint against the District of Columbia and Dean-Facchina in D.C. Superior Court in 2015. Dkt. 1 at 2 (Compl. ¶ 4); Dkt. 4-4 at 4. Then, a year later, invoking this Court's diversity jurisdiction, he filed a separate complaint against AMEC arising from the same incident. Dkt. 1. In that complaint, Saddler alleges that AMEC failed to use reasonable care in maintaining the safety of the streetcar construction site and that its negligence caused his injuries.
AMEC now moves to dismiss the present action. Dkt. 4. It argues that, under Federal Rules of Civil Procedure 12(b)(7) and 19, Saddler has failed to join two indispensable parties — the District of Columbia and Dean-Facchina; that joining of the District of Columbia would destroy diversity jurisdiction; and that, accordingly, the Court should dismiss the action in "equity and good conscience" because the action cannot fairly "proceed among the existing parties." Fed. R. Civ. P. 19(b); Dkt. 4-1 at 8-18. In the alternative, AMEC asserts that the Court should abstain from exercising jurisdiction over this matter under the Colorado River doctrine. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). AMEC argues that, because the D.C. Superior Court is already exercising jurisdiction over a parallel suit involving the same operative facts, this Court should, in the interest of comity, defer to the Superior Court and decline to hear the case, or, at the very least, should stay the present case pending the outcome of the Superior Court action. Dkt. 4-1 at 18-25.
As explained below, the Court disagrees and will, accordingly, deny AMEC's motion to dismiss on both grounds.
For purposes of the pending motion to dismiss, the Court will assume the truth of the following facts, which are taken from Saddler's complaint. See Dentons US LLP v. Republic of Guinea, 208 F.Supp.3d 330, 334 (D.D.C. 2016) (citing Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)).
As noted above, the District of Columbia awarded Dean-Facchina, a corporate citizen of Florida and Maryland, Dkt. 4-1 at 9, a contract to build a streetcar line, and awarded AMEC, a corporate citizen of Nevada and Georgia, Dkt. 1 at 2 (Compl. ¶ 6); Dkt. 4-1 at 8-9, a contract to provide construction management services for the project, Dkt. 1 at 3 (Compl. ¶¶ 7-8). The streetcar line was to run, in part, along Benning Road from 21st to 26th Streets, and, as Dean-Facchina worked on that segment of the line, it "erected barriers and placed signs around the construction site." Dkt. 1 at 3 (Compl. ¶ 9). AMEC's role in the project, Saddler alleges, was to inspect the construction site, equipment, and signage for "safety [or] hazardous conditions," to "document and report" any "deviations" to Dean-Facchina or the District
On September 26, 2013, Saddler, a resident of the District of Columbia, was walking on the Benning Road sidewalk near the corner of Benning and 21st Street, N.E., "when he tripped and fell over a dangerously placed sign." Id. at 4 (Compl. ¶ 12). Saddler alleges that the "skinny rods at the base protruding" from the sign "t[ook] up nearly half of the sidewalk;" that "two poles on the street corner ... obscur[ed]" part of the sign from view; and that the sign was "placed [on] the sidewalk facing the street" rather than facing "oncoming pedestrians." Id. (Compl. ¶¶ 13-15). The sign, Saddler asserts, had been in this "dangerous position" for "at least [four] days prior to" his fall, and he alleges that, during this four-day period, "AMEC had made multiple inspections of the site" but failed to remedy the situation. Id. (Compl. ¶¶ 16-17). Saddler claims that, as a result of the fall, he "suffered serious injury" that "required numerous surgeries" and necessitated a "long period of recovery" and "ongoing therapy." Id. at 5 (Compl. ¶¶ 20-22).
"[I]n connection with this incident," Saddler brought a personal injury suit in D.C. Superior Court against the District of Columbia and Dean-Facchina in September 2015. Id. at 2 (Compl. ¶ 4); Dkt. 4-4 at 4. A year later, invoking this Court's diversity jurisdiction under 28 U.S.C. § 1332(a), Saddler filed the present action, asserting claims for negligence and negligence per se against AMEC arising from the same incident. See Dkt. 1. AMEC has moved to dismiss the complaint under Rule 12(b)(7), or, in the alternative, for the Court to abstain from exercising its jurisdiction under the Colorado River doctrine. See Dkt. 4-1.
AMEC first argues that the Court should dismiss Saddler's complaint because he has "failed to join indispensable parties" under Rules 12(b)(7) and 19. Dkt. 4 at 1. AMEC acknowledges that a suit between Saddler and AMEC satisfies 28 U.S.C. § 1332(a)'s diversity requirement — Saddler is a resident of the District of Columbia, AMEC is a corporate resident of Nevada and Georgia, and more than $75,000 is at stake. See Dkt. 4-1 at 8-9. It argues, however, that under Rule 19(a), the District of Columbia and Dean-Facchina "must be joined" as defendants, Fed. R. Civ. P. 19(a)(1), and that joinder of the District would destroy diversity jurisdiction, Dkt. 4-1 at 9. According to AMEC, this requires dismissal of the action under Rule 19(b), because the case cannot proceed with the District of Columbia as a party, yet, "in equity and good conscience," Fed. R. Civ. P. 19(b), ought not proceed among the existing parties without the District, Dkt. 4-1 at 11-12. The Court disagrees.
Rule 12(b)(7) permits a defendant to move to dismiss a complaint for "failure to join a party under Rule 19." Rule 19, in turn, "establishes a two-step procedure for determining whether an action must be dismissed because of the absence of a party needed for a just adjudication." Cherokee
As an initial matter, the Court cannot accept AMEC's premise that joining the District of Columbia as a defendant would defeat diversity jurisdiction. AMEC's argument appears to presume that the District of Columbia is itself a "citizen" of the District of Columbia, and that joinder of the District in a case brought by Saddler, who is a D.C. resident, would thus defeat diversity. See Dkt. 4-1 at 9 ("[T]he Government of the District of Columbia shares citizenship in the District of Columbia with Plaintiff."). It has been established for over a century, however, "that a State is not a `citizen' for purposes of the diversity jurisdiction." Moor v. Alameda Cty., 411 U.S. 693, 717, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). The same holds true, moreover, for the District of Columbia, see Long v. District of Columbia, 820 F.2d 409, 414 (D.C. Cir. 1987), which constitutes a "State[]" for purposes of § 1332, see 28 U.S.C. § 1332(e). As the D.C. Circuit has explained:
Long, 820 F.2d at 414. The District of Columbia, accordingly, is not the type of entity that is ever subject to § 1332, and therefore joinder of the District does not defeat diversity jurisdiction in the same sense that joinder of an individual defendant who resides in the same State as the plaintiff would. That is, joinder of the District of Columbia would not result in "litigants from the same [S]tate" appearing on "opposing sides" of the case. See Saadeh v. Farouki, 107 F.3d 52, 55 (D.C. Cir. 1997) (quoting Prakash v. Am. Univ., 727 F.2d 1174, 1178 n.25 (D.C. Cir. 1984)).
That rule makes eminent sense; without it, litigants could easily evade "the two statutory limitations on invocation of diversity jurisdiction — the complete diversity rule and the amount in controversy." 13D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3567.2 (3d ed. 2008) ("Wright & Miller"). It is far from clear, however, how the final clause of § 1367(b) was intended to apply in a case like this one, in which the party to be joined (here, the District of Columbia) is not a citizen of any State for purposes of § 1332 and thus joinder would not work any obvious circumvention of the complete diversity (or amount in controversy) requirements of § 1332. In other words, joinder of the District of Columbia would not introduce a non-diverse party — thereby defeating diversity of citizenship — because the District of Columbia is not a citizen of any State.
The Court is unaware of any precedent addressing whether the joinder of a party that is not a citizen of any State (or is not the subject of a foreign state) "would be inconsistent with the jurisdictional requirements of [§] 1332," and would thus run afoul of the final clause of § 1367(b). See Westra Constr., Inc. v. U.S. Fid. & Guar. Co., 546 F.Supp.2d 194, 198 (M.D. Pa. 2008) ("Few courts have attempted to define the contours of the final requirement of § 1367(b)."). The meaning of the final clause of § 1367(b), moreover, is "far from clear;" indeed, if the clause merely meant that the claims subject to joinder under Rule 19 must satisfy all of the requirements of § 1332, "there would be no need for supplemental jurisdiction." 13D Wright & Miller § 3567.2. Because neither party has briefed this issue, and because the Court must, in any event, deny AMEC's motion on other, well-settled grounds, the Court will not endeavor to define the scope of the final clause of § 1367(b) here.
Unlike the meaning of the final clause of § 1367(b), that question is easily answered. As the Supreme Court has explained, "[i]t has long been the rule that it is not necessary [under Rule 19(a)] for all joint tortfeasors to be named as defendants in a single lawsuit." Temple v. Synthes Corp., Ltd., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (emphasis added); see also Park v. Didden, 695 F.2d 626, 631 (D.C. Cir. 1982) (Ginsburg, J.) ("An almost unbroken line of federal decisions holds that persons whose liability is joint and several may be sued separately in federal court."). In Temple — a case much like this one — a tort plaintiff sued a medical device company in federal district court, alleging that he sustained severe injuries when "the device's screws broke off inside [his] back." 498 U.S. at 6, 111 S.Ct. 315. Subsequently, he also sued the doctor who surgically implanted the device in his back and the hospital where the surgery was performed, but did so in state court. Id. The Supreme Court reversed the district court's order mandating joinder of the doctor and hospital in the federal court action, holding that it "was error to label joint tortfeasors as indispensable parties," id. at 7, 111 S.Ct. 315, and that "a tortfeasor with the usual `joint-and-several' liability is merely a permissive party to an action against another with like liability," id. (quoting Fed. R. Civ. P. 19(a), Advisory Committee Notes). Because the doctor and hospital, as putative joint tortfeasors, were not necessary parties to the action between the plaintiff and the medical device company, the Supreme Court held that the plaintiff had failed to satisfy the "threshold requirements of Rule 19(a)," and that, accordingly, "no inquiry under Rule 19(b) [wa]s necessary." Id. at 8, 111 S.Ct. 315.
The same logic holds here. Saddler's suit in D.C. Superior Court alleges that the District of Columbia and Dean-Facchina are responsible for the injuries he suffered on September 26, 2013, and his suit in this Court alleges that AMEC is responsible for those same injuries. Under D.C. law, the "general rule is that [putative] joint tortfeasors" like the District of Columbia, Dean-Facchina, and AMEC are "jointly and severally liable for compensatory damages" awarded to a plaintiff, Faison v. Nationwide Mortg. Corp., 839 F.2d 680, 685 (D.C. Cir. 1987) (citing Hill v. McDonald, 442 A.2d 133, 137 (D.C. 1982)), and, as both the Supreme Court and the D.C. Circuit have explained, tortfeasors that are allegedly jointly and severally liable for a plaintiff's injuries do not need to be sued in a single proceeding, see Temple, 498 U.S. at 7, 111 S.Ct. 315; Park, 695 F.2d at 631.
AMEC seeks to avoid this line of reasoning by recasting Saddler's tort suit as an action sounding in contract. See Dkt. 9 at 7 (noting that Saddler's complaint indicates that "it [wa]s AMEC's role as a construction manager that g[ave] rise to [its] duty" of care and arguing that "the scope of services AMEC was to provide as a construction manager [is] an issue of contractual interpretation ... that cannot be resolved without both contracting parties"). Whether Saddler can establish that AMEC breached a duty to him that was borne out of its performance of contractual duties owed to the District of Columbia is a good question. But AMEC did not bring a Rule 12(b)(6) or Rule 56 motion to test the legal sufficiency of Saddler's theory of liability. Rather, its motion is premised on Rule 12(b)(7) alone, and nothing that the Court holds, if and when it is required to address the source and scope of any duty
Accordingly, because AMEC has not demonstrated that the District of Columbia is an indispensable party that the Court "must ... join[]" under Rule 19(a), its motion to dismiss under Rule 12(b)(7) fails.
Alternatively, AMEC argues that the Court should abstain from exercising jurisdiction over this matter (or should at least stay proceedings) under the Colorado River doctrine.
Despite this "heavy obligation," Colorado River nevertheless recognized that, in certain "situations involving the contemporaneous exercise of concurrent jurisdictions ... by state and federal courts," abstention might be proper. 424 U.S. at 817, 820, 96 S.Ct. 1236. That narrow exception "rest[s] on considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation." Id. at 817, 96 S.Ct. 1236 (internal quotation marks and alteration omitted). In determining whether to invoke the doctrine, federal courts must consider a series of factors including the "inconvenience of the federal forum, the order in which the courts assumed jurisdiction, the desirability of avoiding piecemeal litigation, whether
As a threshold matter, Saddler argues that Colorado River abstention is inapplicable here because, unlike every Colorado River case cited by AMEC, this is not a case in which both parties before the federal court are also parties to the state court action; AMEC is party here but not in the D.C. Superior Court action.
There is considerable merit to Saddler's position, and, indeed, at least one decision from this district has reached the conclusion that Saddler urges. See Lawyers Title Ins. Corp. v. Merit Title Co., LLC, 549 F.Supp.2d 90, 92 (D.D.C. 2008) ("[T]he Colorado River doctrine of abstention requires that parallel litigation involve the same parties before both courts."). Moreover, although the D.C. Circuit has yet to address the question, a number of other circuit courts have reached similar conclusions. The Seventh Circuit, for example, has held that Colorado River abstention applies only if the federal and state actions are "parallel." AAR Int'l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001). This does not mean that the suits must be "identical," or that "the mere presence of additional parties or issues in one of the cases will ... necessarily preclude" application of Colorado River abstention. Id. But it does require that "`substantially the same parties are litigating substantially the same issues simultaneously in two fora.'" Id. (quoting Schneider Nat'l Carriers, Inc. v. Carr, 903 F.2d 1154, 1156 (7th Cir. 1990)). Other circuits, including the Third, Fourth, Sixth, Tenth and Eleventh Circuits, have applied the same standard. See Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1330 n.21 (11th Cir. 2004) (collecting cases). Some courts, moreover, go further, holding that "[t]he pendency of a state claim based on the same general facts or
Applying that principle here, the Court agrees with Saddler that AMEC cannot clear this hurdle. The sole defendant in this action is AMEC, and AMEC is not a party to the D.C. Superior Court action. Under these circumstances, the Superior Court action cannot possibly resolve the dispute between the parties to this action. That, alone, provides sufficient basis to deny AMEC's motion. But because the D.C. Circuit has yet to resolve this threshold question, the Court will go on to apply the Colorado River factors, which also tip decisively in favor of the Court exercising jurisdiction over this case.
The first factor asks whether "the federal forum is inconvenient for the parties involved." Foster-El v. Beretta U.S.A. Corp., 163 F.Supp.2d 67, 71 (D.D.C. 2001). In Colorado River, the Supreme Court concluded that "the 300-mile distance between the [federal court] and the [state] court," along with other factors, weighed in favor of abstention. 424 U.S. at 820, 96 S.Ct. 1236. Here, in contrast, the physical distance between this Court and the D.C. Superior Court is closer to 300 feet than 300 miles. This factor, accordingly, does not support abstention. See Foster-El, 163 F.Supp.2d at 71.
The Court must also consider "whether federal or state law controls." Handy, 325 F.3d at 352. There is no dispute that Saddler's common-law tort claims are governed by D.C. law. But state or local law applies in all diversity actions,
Colorado River requires that the Court also consider "whether the state forum will adequately protect the interests of the parties." Handy, 325 F.3d at 352. In the present context, this factor overlaps with the threshold inquiry; as noted above, AMEC is a party only to this action and thus is not subject to the jurisdiction of the D.C. Superior Court. As the plaintiff in both actions, moreover, Saddler is a
The next Colorado River factor focuses on "the desirability of avoiding piecemeal litigation." Id. "Piecemeal litigation occurs when different tribunals consider the same issue, thereby duplicating efforts and possibly reaching different results." Foster-El, 163 F.Supp.2d at 71 (quoting Travelers Indemnity Co. v. Madonna, 914 F.2d 1364, 1369 (9th Cir. 1990)). Here, there is some risk of duplication of efforts, but no risk that AMEC — the moving party — will be required to duplicate its efforts. To the contrary, the D.C. Superior Court action will, if anything, save work for AMEC. Because that case is substantially further along, AMEC might be able to rely on findings that the D.C. Superior Court makes that are adverse to Saddler by asserting issue preclusion. See Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) ("Issue preclusion ... bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim." (internal quotation marks omitted)). But, as a non-party to that case, AMEC need not worry that any findings that are favorable to Saddler will bind it in this action. See id. at 892-93, 128 S.Ct. 2161 ("A person who was not a party to a suit generally has not had a full and fair opportunity to litigate the claims and issues settled in that suit," and, accordingly, the application of "issue preclusion to nonparties thus runs up against the deep-rooted historic tradition that everyone should have his own day in court." (internal quotation marks omitted)).
Moreover, to the extent this factor is intended to promote judicial efficiency, it weighs substantially against abstention. Most notably, the D.C. Superior Court action is ready for trial. If the Court were to abstain on the theory that Saddler should press his claims against AMEC in the Superior Court action, however, that court would need to postpone the trial and would need to reopen discovery and motions practice to provide AMEC with an opportunity to catch up. That would be inefficient and would substantially disrupt the Superior Court action. Accordingly, if anything, this factor weighs against abstention.
Finally, the Court is required to consider "the order in which courts assumed jurisdiction." Handy, 325 F.3d at 352. Ordinarily, the fact that a state court proceeding was brought before the federal court action was initiated might weigh in favor of abstention. See, e.g., Atkinson v. Grindstone Capital, LLC, 12 F.Supp.3d 156, 163-64 (D.D.C. 2014) (determining that, because the "state court obtained jurisdiction well in advance of [the federal court]" and had "overseen the progress of the litigation," the "scale [wa]s tipped in favor of abstention"). In Colorado River itself, for example, the Supreme Court relied on the fact that little had occurred in the federal district court before the abstention motion was filed. 424 U.S. at 820 & n.25, 96 S.Ct. 1236. Presumably, this conclusion was premised on the notion that little would be lost by requiring the federal court to defer to the state court proceeding; that is, abstention would not disrupt
In this case, however, AMEC urges one of two courses, neither of which would "conserv[e] judicial resources" or promote the "comprehensive disposition of litigation." Colorado River, 424 U.S. at 817, 96 S.Ct. 1236. First, the Court might dismiss this action and leave it to Saddler to seek to join AMEC in the D.C. Superior Court action. But, if this Court were to do so, it would do far more than disrupt this proceeding (which concededly is in its initial phase); it would, as explained above, risk disrupting the Superior Court proceeding, which is set for trial. Nor would judicial economy be served by dismissing this action, only to invite Saddler to bring an entirely new (and independent) action against AMEC in Superior Court. Second, the Court might simply stay this case pending resolution of the Superior Court action. It is unclear, however, what end a stay would serve. AMEC would still be subject to suit before this Court; the suit would merely be delayed. Such a delay, moreover, would likely work a substantial hardship on Saddler, who represents to the Court that he "is currently suffering from numerous serious health issues, including cancer." Dkt. 8 at 15. Any difficulty that might arise regarding the availability of counsel and witnesses, moreover, can easily be addressed through the Court's management of the pending proceeding.
The Supreme Court has reminded lower courts that "[t]his factor, as with the other Colorado River factors, is to be applied in a pragmatic, flexible manner with a view to the realities of the case at hand." Moses H., 460 U.S. at 21, 103 S.Ct. 927. That admonition is particularly apt here, where dismissal of this action would likely disrupt the Superior Court action, and where a stay of this action would not "secure the just, speedy, and inexpensive determination" of Saddler's claims, Fed. R. Civ. P. 1 Aware of its "heavy obligation to exercise" its lawful jurisdiction, Colorado River, 424 U.S. at 820, 96 S.Ct. 1236, the Court concludes that AMEC has failed to make the extraordinary showing necessary to obtain dismissal or a stay under the Colorado River doctrine.
For the foregoing reasons, AMEC's motion to dismiss, Dkt. 4, is hereby
