Kenneth Ackerman v. ExxonMobil Corporation
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:11-cv-03442-WDQ. [999167667]. [12-1103]
Kenneth Ackerman v. ExxonMobil Corporation
Appeal: 12-1103
Doc: 47
Filed: 08/07/2013
Pg: 1 of 42
Doc. 0
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1103
KENNETH ACKERMAN; JAMES ACKERMAN; APRIL ACKERMAN; MARY
ACKERMAN, Individually and as Personal Representative of
the
Estate
of
Thomas
Ackerman;
CHARLES
V.
ADAMS;
CHRISTIANNE M. ADAMS; JOHN ALEXIS; CHARLES J. ARKINS; LULA
M. ARKINS; THOMAS J. ARNO; AMY H. ARNO, Both individually
and as next friends of A.A. and E.A.; ROBERT A. ASKIN;
HELEN V. ASKIN; RICK G. ASTARITA; PATSY L. ASTARITA, Both
individually and as next friends of A. N.A. and G.M.A.,
E.A., Individually; LIONEL J. BANE; LOU ANN BANE; TIMOTHY
BANKS; SUSAN E. BANKS; KRISTIN E. BANKS; DEBRA L. BARE;
LARRY G. BARE; CODY BARE; TONTA FREUND; THOMAS J. BARGER;
KRISTIN C. BARGER, Both individually and as next friends of
K.B., F.B., G.B., N.B.; SEBASTIANO BARRESI; STEVE BAVETT;
ANNA M. BAVETT, As next friend of N.L. and as next friends
of M.B.; GRACE BAYNE; DANIEL BEAUCHEMIN; STELLA E.
BEAUCHEMIN; JOANN K. BELLINGTON, Individually and as
Personal Representative of the Estate of William B.
Bellington; JOHN G.BERGER; DANNY L. BLANKENSHIP; RENEE D.
BLANKENSHIP; MARY BLEVINS; MICHAEL D. BLEVINS; TIMOTHY R.
BLEVINS; JENNIFER M. BLEVINS, Both individually and as next
friends of S.A.B.; JOSHUA R. BLEVINS; HOWARD H. BOND;
RONALD BONNER; RUTH M. BONNER; KENNETH M. BRADLEY; CAROL J.
BRADLEY; BERNADETTE M. BRANNON; RAYMOND E. BREHM, JR.;
CONSTANCE M. BREHM; LOIS J. BRODOWSKI; PAUL J. BROOKS;
MICHELLE D. BROOKS, Both individually and as next friends
of S.D.B.; ZACHARY T. BROOKS, Individually; ALEXANDER M.
BROOKS, Individually; PEEBLE M. BROWNLEE; DONALD C. BURKE;
LISA A. BURKE; JULIA BURKE; MATTHEW BURKE; EDWARD C.
BURTON, JR.; CANDY L. HOBSON-BURTON, Both individually and
as next friends of M.H-B.; MARK A. BURTON, Individually;
CHARLES D. BURTON, Individually; MARCIA BYRNE; PAUL P.
BYRNE; URSULA CAIN-JORDAN; DALE B. JORDAN; JOHN F.
CALLAHAN; DOROTHY H. CALLAHAN; LUKE J. CANFIELD; JANELLE M.
CANFIELD, Both individually and as next friends of S.A.C.;
MARK S. CANHAM; individually and as next friend of M.C.;
JAMES M. CANNELLA; MARCIE G. CANNELLA; CHARLES DAVID CAYCE,
IV; RANDY LOUGHRY, Individually and as next friends of
C.S.L., C.D.L.; KIMBERLEE A. LOUGHRY; RONALD A. CLARK;
Dockets.Justia.com
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CAROL F. CLARK; ALBERT P. CLASS; CAROLYN L. CLASS; MICHAEL
COFIELL; DARLENE S. COFIELL; NANCY L. CONNOLLY; MARY D.
CONWAY; CHARLES H. COON, JR.; DEBORAH A. COON; LAUREN COON;
JORDAN COON; JAMESON COOPER; KATHERINE A. COOPER, Both
individually and as next friends of I.C., E.C., R.C.; JOHN
L. COUNCILMAN; DEBORAH J. COUNCILMAN; COLLEEN CRAVEN; HARRY
F. CRAVEN; ELIZABETH A. D'ANGELO; ROBERT F. D'ANGELO;
CAROLINE DASCHER, individually and as next friends of M.D.,
E.D. and N.D.; KENNETH W. DASCHER, JR.; JESSE L. COLEMAN;
PATRICIA H. COLEMAN; JOHN C. COLT; FRANCES H. COLT; JOHN S.
COMBS; SEA UN COMBS; OWEN CONNOLLY; DONNA J. DAVIDS; JOHN
H. DAVIDS; EMILY GLASER; MARK GLASER; DOUGLAS W. TOWNSLEY,
POA for Helen A. Crowe; JOHN T. DITILLO; RICHARD W. DOYLE;
SHIRLEY A. DOYLE; ALBERT K. DUNSTAN; ALEXANDER A. DUNSTAN;
CELESTE
DUNSTAN;
CHRISTIE
E.
DUNSTAN;
GLORIA
DAVIS,
individually and as next friend of C.D.; WILLIAM F. DAVIS,
individually and as next friend of C.D.; CHRISTOPHER
P.DELVECCHIO; individually and as next friend of J.D.;
PAMELA A. DELVECCHIO, individually and as next fried of
J.D.; JEFFREY DIFATTA, Individually; TERESA L. DIFATTA,
individually and as next friend of S.D.; TIMOTHY DIFATTA,
Individually; VINCENT DIFATTA, individually and as next
friend of S.M.D.; DAVID P. DIGIORGIO, individually and as
next friend of P.A.D. and M.L.G.; MALLORY S. LEGGEDIGIORGIO, individually and as next friend of P.A.D. and
M.L.D.; BARBARA DUVALL; JAMES R. EAVERS; PATSY A. EAVERS;
ELAINE H. EHRHARDT; JESSICA CARLOZO; JOSEPH CARLOZO; NICOLE
CARLOZO; LARRY L. ELLIOTT; LAURA ELLIOTT; PAULA A. ELLIOTT;
BEATRICE ELMO; PETER ELMO; ERNESTO ERCOLANO; PHYLLIS
ERCOLANO; CYRUS R. ETEMAD-MOGHADAM, individually and as
next friend of F.R.E-M. and R.A.E-M.; MELODY A. ETEMADMOGHADAM, individually and next friend of F.R.E-M.and
R.A.E-M.; ANASTASIA FAKAS, individually and as next friend
of N.F.; JOHN FAKAS, Individually; WILLIAM J. FAKAS,
individually and next friend of N.F.; JOAN L. FALANGA;
JEROME K. FERRARA, as next friend of K.P.F. and N.J.F.;
KRISTINA FERRARA, as next friend of J.L. and K.H.; CAROL L.
FIALKOWSKI; GEORGE V. FIALKOWSKI; DEMETRIOS FILIPIDIS,
individually and as next friend of G.F.; ROBIN L.
FILIPIDIS, individually and as next friend of G.F.; AILEEN
FLANAGAN, as next friend of G.F.; JOHN S. FLANAGAN, as next
friend of G.F.; DAMION M. FORD; RICHARD A. FORD, III;
KATHLEEN FOX; RONALD L. FOX; SODUS CYNTHIA, individually
and as next friend of G.G. and A.G.; RALPH M FRENCH; GERARD
FREY; JOHN P. FRIES; BARRY G. GABLER, individually and as
next friend of G.G. and A.G.; AUDREY GALLO; ROBERT A.
GALLO; LYNNE M. SCHMIDT-FRIES; JO ANN E. GEARE; CHELSEA
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GEBHARDT; FRED C. GEBHARDT, individually and as Personal
Representative of the Estate of Teri J. Gebhardt; JOCELYN
GEBHARDT, Individually; PETER C. GEORGOPOULOS; SUSAN E.
GEORGOPOULOS; BETTE L. GILL; ROXANNA M. GUINAN; JEFFREY
GUINAN; FALLON GUINAN; WILLIAM GILL; JAMES D. GILPATRICK;
MICHAELE A. GILPATRICK; SCOTT M. GOLLY; JUDITH H. GOULD;
THOMAS H. GOULD; BONNIE L. GRANT; ROBERT F. GRANT; EILEEN
M. GRETES; WILLIAM G. GRETES; MELISSA GRIFFITH; MICHAEL
GRIFFITH; MILTON GRIFFITH; MICHAEL A. GUZMAN, individually
and as next friend of T.G.; STACEY L. GUZMAN, individually
and as next friend of T.G.; SHIRLEY HALL; STEVEN HALL;
THELMA E. HAMEL; MICHAEL HARMON, POA for William B. Harmon
and individually and as next friend of Z.H.; DAWNE JABOBS,
individually and as next friend of Z.H.; PATRICIA O'NEILL,
Personal Representative of the Estate of Elizabeth C.
Gendimenico; MEGAN HEAGY; MICHAEL HEAGY; PATRICIA A. HEAGY;
STEVEN M. HEAGY, JR.; STEVEN M. HEAGY, SR.; LISA R.
HESSELTINE, individually and as next friend of K.H.; MARK
C. HESSELTINE, individually and as next friend of K.H.;
BARBARA A. HOLLER; JIMMY J. HOLLER; LARRY W. HOOPER; PAMELA
E. HOOPER; GWYN HOUSTON, as next friend of D.M.; JANICE A.
HOUSTON, as next friend of D.M.; RITA HOWARTH, as next
friend of P.H.; STEVEN E. HOWARTH, as next friend of P.H.;
DAWNE JABOBS, as next friend of K.H.; DAVID J. HOYT,
individually and as next friend of E.E.H. and L.M.H.;
KETHLEEN H. HOYT, individually and as next friend of E.E.H.
and L.M.H.; VIRGINIA A. HOYT, individually; ALLISON L.
HUNTER; BONNIE L. HUNTER; JAMES D. HUNTER; JEFFREY M.
HUNTER; JAMES D. HUNTER, JR.; SCOTT IANNANTUONO, as next
friend of B.I., J.I. and M.I.; KIMBERLY S. IANNANTUONO, as
next friend of B.I., J.I. and M.I.; CHRISTOPHER JAMISON, as
next friend of C.J., Jr.; MICHELE R. JAMISON, as next
friend of C.J., Jr.; HARRY J. CIMBOLO; ARLENE E. JANUARY;
GLENN K. JANUARY; STEPHEN D. JANUARY; MICHAEL C. JANUS,
individually and as next friend of A.J. and A.J.; TAMMY L.
JANUS, individually and as next friend of A.J. and A.J.;
GREGORY B. JOHNSON, as next friends of R.J. and H.J.;
JENNIFER JOHNSON, as next friends of R.J. and H.J.; BARBARA
A. JUNG; WALTER G. JUNG; HARRIET F. KAHL; HENRY V. KAHL;
TRAVIS BOWEN, individually; ALP A. KAYABASI, individually
and as next friend of C.A.K. and A.D.K.; CHRISTY L.
KAYABASI, individually and as next friend of C.A.K. and
A.D.K.; LOURDES Z. KEISER; RANDALL S. KEISER; COLLEEN
KELLY; JOAN M. KELLY; MICHAEL KELLY; CHRISTINA M. KING,
individually and as next friend of L.K.; JACQUELINE M.
KING; MARK B. KING, individually and as next friend of
L.K.; SUSAN KLUGE, as next friend of R.K. and M.K.; BRENDAN
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C. KLUGE, III, individually; BRENDAN C. KLUGE, JR., as next
friend of R.K. and M.K.; CAROLE A. KLUNK, Individually and
as Personal Representative of the Estate of Joseph A.
Klunk; STERLING LYTLE, Personal Representative of Estate of
Harold J. Kelly; DEVIN PORTZKO; KELLY PROTZKO; RYAN
PROTZKO; LEAH LANGRILL CHILDS; ERIKA KOLAKOWSKI; GLEELA D.
KOLAKOWSKI; JAN E. KOLAKOWSKI; EDWARD D. KOSIBA; JUDITH A.
KOSIBA; KENNETH E. KRAUSZ; MARIE C. KRAUSZ; JOHN F. KRESS;
SHARON J. KRESS; KEVIN J. KRIVACSY, Individually and as
Personal Representative of the Estate of Ruth A. Krivacsy;
JAMES P. KUHLMAN, individually and as next friend of S.A..;
JULIE C. KUHLMAN, individually and as next friend of
S.A.K.; SCOTT C. KUHLMAN, Individually; MARY M. LANGRALL;
CLARKE JR. LANGRALL; JOHN S. LANGRILL; JOSHUA LANGRILL;
LINDA D. LANGRILL; FRANCIS X. LAUER; JUDITH A. LAUER;
ROBERT
S.
LINDSAY,
Individually
and
as
Personal
Representative of the Estate of Sharon V. Lindsay; HOPE
LOOKINGLAND;
MICHAEL
LOOKINGLAND;
CARL
R.
LUPICA,
individually and as next friend of A.C.L. and V.J.L.; DAWN
L. LUPICA, individually and as next friend of A.C.L. and
V.J.L.; ANNABEL E. LUSARDI, individually and as next friend
of M.L., N.L. and C.L.; THOMAS J. LUSARDI, individually and
as next friend of M.L., N.L. and C.L.; ALICIA LYNCH;
MICHAEL J. LYNCH; JOSEPH E. MACATEE; SAMUEL MACATEE; BETH
G. MACMILLAN, individually and as next friend of K.M., J.M.
and J.M.; PAUL MACMILLAN, individually and as next friend
of K.M., J.M. and J.M.; FREDERICK C. MANFRA; MARLENE F.
MANFRA; STEPHANIE J. MANFRA; JOHN W. MARSHALL, individually
and as next friends of O.G-M.; PAULA M. MARSHALL,
individually and as next friends of L.G-M. and M.G-M.;
BRIAN R. MASTERSON; LYNN M. MASTERSON, Both individually
and as next friends of C.M., L.M.; LINDA MAZZIOTT; VINCENT
T. MAZZIOTT; EVELYN J. MCDERMOTT; TYLER M. MCDERMOTT;
KATHLEEN P. MCGRAW, Both individually and as next friends
of J.W.M.; LAUREN A. MCGRAW; ROBERT S. MCGRAW; CARL WAYNE
MELLOTT; JOAN B. MIRARCHI; RALPH J. MIRARCHI; BARBARA L.
MOORE; CHARLES J. MOORE, III; DENNIS J. MORRISON; NINA
MORRISON; JAMES MOULSDALE; PAMELA S. MOULSDALE, Both
individually and as next friends of M.G.M.; ISA MUFAREH;
RUTH E. MUFAREH; KAREN NICKEL, Both individually and as
next friends of G.N.; SCOTT D. NICKEL; SCOTT DENNIS NICKEL,
Personal Representative of the Estate of Celina M. Rossini;
LAURA NOCAR; JAMES M. NORMAN; EMILY C. NOVAK, Both
individually and as next friends of R.S.N., Jr., J.D.N.,
C.R. N.; RONALD S. NOVAK; FRANCES NOWACKI; LOUIS M.
NOWACKI; DAVID O'NEIL; FATEMEH O'NEIL; SEAN RODGERS OWENS;
KATHERINE W. PARRIS; WAYNE H. PARRIS; LANELL W. PATRICK,
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Both individually and as next friends of R.L.P., III;
ROBERT L. PATRICK, JR.; MARGARET PEACH; WILLIAM PEACH;
JESSICA SIMMS; SUSAN C. MARSHALL, Recovable Trust; GERTRUDE
R. PEARSON; HENRY R. PEARSON, JR.; ANTHONY PERFETTI; SHARON
A. PERFETTI, Individually and as next friends of M.P., G.P.
and M.P.; NORMA M. PERRIELLO; PATRICK J. PERRIELLO; THE
PATRICK AND NORMA PERRIELLO LIVING TRUST; NICOLE M. BORYSPIROZZI, individually and as next friend of D.D.P., A.E.P.,
A.F.P.,
I.S.P.
and
X.K.P.;
M.
JEORGEA
C.
PETERS,
Individually and as next friend of M.V.P.; STEVEN G.
PETERS, Individually; KURT PETERSON, As next friend of
S.P., C.P., R.P. and J.P.; MARY B. PETERSON, As next friend
of S.P., C.P., R.P. and J.P.; JUDY R. PETRALIA; ANTHONY
PETRALIA, JR.; JANE L. PHILPOT; JOHN W. PHILPOT, SR.; LEE
G. PIERCE; CYNTHIA M. PIRACCI; FRANCIS L. PIRACCI; RALPH J.
PIROZZI, individually and as next friend of D.D.P., A.E.P.,
A.F.P., I.S.P. and X.K.P.; ASHLEY PLACK, Individually;
HARRY J. PLACK, individually and as next friend of H.J.P.,
III, E.P. and T.P.; MARY C. PLACK, individually and as next
friend of H.J.P., III, E.P. and T.P.; AVRIL D. PLUNKETT,
individually and as next friend of C.P. and N.P.; MICHAEL
H. PLUNKETT, individually and as next friend of C.P. and
N.P.; ALEXANDRA PONERES; CHRISTOS PONERES; ELIAS PONERES;
EVANGELOS PONERES; DONNA L. POTTER, individually and as
next friend of .B.M.P.; ROBERT K. POTTER, individually and
as next friend of B.M.P.; MARGARET PUSATERI, Individually
and as Personal Representative of the Estate of James
Pusateri; DAVID A. RAINEY; ELIZABETH S. AINEY; LEWIS
RAMAGE; NANCY C. RAMAGE; NACHLAPPAN RAMAN; VIMALA RAMAN;
CAITLIN
RAMSEY,
Individually;
CATHERINE
A.
RAMSEY,
individually and as next friend of A.R.; DAVID K. RAMSEY,
individually and as next friend of A.R.; EMILY RAMSEY,
Individually; JUDY C. RAMSEY; KIMBERLY B. RAMSEY; KRISTIN
D. RAMSEY; TYLER RAMSEY, Individually; WILLIAM J. RAMSEY;
ROMAN E. RATYCH; BETH A. RHUDY, individually and as next
friend of P.R., G.R. and H.R.; PHILLIP RHUDY, individually
and as next friend of P.R., G.R. and H.R.; CHARLES A.
RITCHEY, individually and as next friend of C.A.R. and
C.A.R.; JOELL L. RITCHEY, individually and as next friend
of C.A.R. and C.A.R.; PATRICIA A. RITTER; DAVID P.
STOLLERY; CAITLIN DAIL; SHELLEY DISHAROON, as next friend
of C.D.; ANITA E. HANSEN, Individually; GAYLEN D. ROBERTS;
RONALD H. ROBERTS; JANE A. RODANO; SALVATORE J. RODANO;
ELLEN M. ROMANKO; THOMAS A. ROMANKO; KATHY ROUBAL; CHELSEA
ROUSE; STEPHEN R. ROUSE; GLENN O. RUBEL, individually and
as next friend of M.R. and C.R.; MARIA L. RUBEL,
individually and as next friend of M.R. and C.R.; MICHAEL
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E. RUDASILL, individually and as next friend of C.R.;
BARBARA RUGGIERO; MARK A. RUGGIERO; JANICE MEYER; LINDA C.
RUTH; RICHARD A. RUTH; BERNEATHA J. SAMPLE; DALE H. SAMPLE;
GREGORY H. SAMPLE, individually and as next friend of H.S.,
J.S. and A.S.; HARVEY F. SAMPLE; SCOTT A. SAMPLE; STEVEN D.
SAMPLE; TINA SAMPLE, individually and as next friend of
H.S., J.S. and A.S.; ALEXANDER SAPIENZA; ANGELINA SAPIENZA;
NICHOLAS SAPIENZA; SALVATORE SAPIENZA; AMANDA R. SCHABDACH;
BRUCE J. SCHABDACH; MARY M. SCHABDACH; BETH F. SCHEIR,
individually and as next friend of E.S. and A.S.; SCOTT W.
SCHEIR, individually and as next friend of E.S. and A.S.;
JOHN G. SCHENK; PATRICIA F. SCHENK; FRANK SCHLOSSER; GLORIA
R. SCHLOSSER; ROBERT SCHMID; JOYCELYN B. QUARANTA; MARIA
SCHMIDT, individually and as next friend of A.S. and A.S.;
MICHAEL T. SCHMIDT, individually and as next friend of A.S.
and A.S.; CHRISTINE M. SCHUELER; ROBERT W. SCHUELER, JR.;
CLIFFORD E. SCHULTE; FRANCINE SCOTT, individually and as
next friend of T.S. and A.S.; JEREMY SCOTT, individually
and as next friend of T.S. and A.S.; KATHLEEN D. SCOTT;
PAUL C. SCOTT; GREGORY N. SELTZER; JUDITH A. SELTZER;
ANDREW D. SHAFF; MARISA SHAFF; NATALIE A. SHAFF; WAYNE D.
SHAFF; IRMA C. SHANAHAN; JOSEPH V. SHANAHAN; KENNETH M.
SIMMONS, individually and as next friend of S.M.S.; MICHAEL
R. SIMMONS, individually; VICTORIA B. SIMMONS, individually
and as next friend of S.M.S.; VINCENT B. SIMMONS,
individually; CHARLES B. SINGLETON; VIRGINIA L. SINGLETON;
CAITLIN M. SONN; JONATHON D. SONN; LETITIA A. SONN; LINDA
KAY FISHER, as Personal Representative of the Estate of
Edward S. Stifler and Co-Personal Representative of the
Estate of Katherine L. Stifler; MICHAEL HENLEY; MILISSA
LESTER; THERESE M. SORRENTINO; MARC A. SPATARO; TERRI
SPATARO; ARMAND M. ST. CROIX; BARBARA A. ST. CROIX; HENRY
STANLEY, individually and as next friend of J.S.; JOANNE
STEPHEN, individually and as next friend of B.S. and S.S.;
HARRY C. STEPHEN, JR., individually and as next friend of
B.S. and S.S.; LESTER E. STEWART, individually and as next
friend of A.A.S.; CYNTHIA L. WARNER, as Co-Personal
Representative of the Estate of Katherine L. Stifler;
ALICIA C. WOODMAN, individually and as next friend of
A.A.S.; COLLEEN B. MCDONOUGH; CAROL LEE STORY; RICHARD W.
STORY; CAROL A. SWAM; HENDRIK J. THEUNS; SUSAN L. THEUNS;
DUREL C. THOMAS; PATRICIA L. THOMAS; ELAINE THOMPSON,
individually and as next friend of J.T. and G.T.; JEFFREY
THOMPSON, individually and as next friend of J.T. and G.T.;
WAYNE
PAUL
THOMPSON,
JR.;
CATHERINE
C.
THRAPPAS,
individually and as next friend of A.T. and L.T.; VINCENT
J. THRAPPAS, individually and as next friend of A.T. and
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L.T.; JOSEPH R. TITO; MARY ELLEN TRACEY; ALLEN ROGER
TRACEY, JR.; CAROLYN M. TURNER, individually and as next
friend of G.T.; STEVEN E. TURNER, individually and as next
friend of G.T.; JOSEPH R. TWANMOH; VALERIE H. TWANMOH;
ANDREA L. TYMINSKI; JOSEPH J. TYMINSKI; TINA M. VALMAS,
individually and as next friend of F.G.V.; THEODORE P.
VALMAS, IV, individually and as next friend of F.G.V.;
THEODORE P. VALMAS, V, Individually; HEATHER L. WARNER;
STANLEY B. WARNER; LIDIA J. GUZMAN; DINA N. VENDELIS,
individually and as next friend of J.V., A.V. and C.V.;
MANUEL A. VENDELIS, individually and as next friend of
J.V., A.V. and C.V.; PAT VILLAVICENCIO; ELEANOR M.
VOLLERTHUM; WILLIAM VOLLERTHUM; STEPHEN WAGNER, as next
friend of J.W. and T.W.; TRACI A. WAGNER, as next friend of
J.W. and T.W.; COURTNAY WALKER, individually and as next
friend of G.W. and K.W.; KENNETH D. WALKER, individually
and as next friend of G.W. and K.W.; STEPHEN E. WALTERMYER;
THERESA K. WALTERMYER; JOHN J. WALTERS; PATRICIA J.
WALTERS;
KAREN
WASIELEWSKI;
THEODORE
M.
WASIELEWSKI;
GERALYN WEINBERGER; RICHARD WEINBERGER; MAIJA WENTWORTH;
MICHAEL E. WENTWORTH, JR.; MICHAEL C. WHITACRE; VERNA
BILLINGSLEA WHITE; KELLY STRACKE, individually and as next
friend of M.C.; NOVELLA WIEGAND, individually and as next
friend of K.L.W. and J.W.; TONY M. WIEGAND, individually
and as next friend of K.L.W. and J.R.W.; HOWARD WILLIS,
individually and as next friend of K.W.; MARGARET S.
WINKELMAN, individually and as next friend of K.W.; WILLIAM
R. WINKELMAN, individually and as next friend of K.W.;
CHARLES D. WINKLER; LYNN A. WINKLER; DONNA M. WOLFF; JOHN
P. WOLFF, JR.; MARK D. WOLLENWEBER, individually and as
next friend of M.W., Jr. and M.W.; MARY C. WOLLENWEBER,
individually and as next friend of M.W., Jr. and M.W.;
CYNTHIA WURSTA; JAY P. WURSTA; EILEEN M. YANCONE; VICTOR
YANCONE; CHING CHU YEH; HOMER REN YEH; SHERWOOD YELTON,
JR., individually and as next friend of N.Y. and D.Y.,
Plaintiffs - Appellees,
v.
EXXONMOBIL CORPORATION, f/k/a Exxon Corporation, d/b/a
Crossroads Exxon; JOHN R. HICKS, d/b/a Crossroads Exxon,
Defendants - Appellants.
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Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:11-cv-03442-WDQ)
Argued:
January 30, 2013
Decided:
August 7, 2013
Before TRAXLER, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.
Affirmed by published opinion.
Chief Judge Traxler wrote the
opinion, in which Judge Gregory concurred. Judge Duncan wrote a
separate opinion concurring in the judgment.
ARGUED: Andrew Gendron, VENABLE, LLP, Baltimore, Maryland, for
Appellants.
Paul D. Raschke, LAW OFFICES OF PETER G. ANGELOS,
Baltimore, Maryland, for Appellees.
ON BRIEF: Michael J. De
Vinne, VENABLE, LLP, Baltimore, Maryland, James F. Sanders, NEAL
& HARWELL, PLC, Nashville, Tennessee, for Appellant Exxon Mobil
Corporation; Paul W. Ishak, April C. Ishak, STARK AND KEENAN,
P.A., Bel Air, Maryland, for Appellant John R. Hicks.
H.
Russell Smouse, Joyce R. Lombardi, LAW OFFICES OF PETER G.
ANGELOS, Baltimore, Maryland, for Appellees.
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TRAXLER, Chief Judge:
ExxonMobil
(together,
Corporation
“Defendants”)
(“Exxon”)
appeal
a
and
John
Hicks
court
district
R.
order
abstaining from exercising jurisdiction under the Colorado River
doctrine in a case brought against Defendants.
See Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800
(1976).
Finding no reversible error, we affirm.
I.
In June 2004, hundreds of residents of Fallston, Maryland,
filed
a
putative
Defendants
several
in
state
class
Maryland
law
action
state
causes
of
(the
“Koch”
court.
action
The
for
action)
against
complaint
alleged
the
contamination
of
their properties by gasoline and the gasoline additive methyl
tertiary-butyl
(“MTBE”)
from
an
Exxon
station
that
Hicks
operated.
Exxon later removed the case by invoking federal officer
jurisdiction, see 28 U.S.C. § 1442(a), and it was transferred to
the Multidistrict Litigation Panel and assigned to the Southern
District of New York.
See In re MTBE Prods. Liab. Litig., 399
F. Supp. 2d 340, 344 (S.D.N.Y. 2005).
However, in May 2007, the
United States Court of Appeals for the Second Circuit determined
in an unrelated case that the history of MTBE production and
marketing did not support federal officer removal.
MTBE
Prods.
Liab.
Litig.,
488
F.3d
9
112,
130
(2d
See In re
Cir.
2007)
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(holding
that
support
Filed: 08/07/2013
the
removal
federal
because
Pg: 10 of 42
officer
“the
removal
defendants
statute
have
not
did
met
not
their
burden of providing ‘candid, specific and positive’ allegations
that they were acting under federal officers when they added
MTBE” (citation omitted)).
Accordingly, Koch was remanded to
the Harford County Circuit Court.
In February 2010, the state-court judge granted the Koch
Plaintiffs’ request for class certification.
On June 16, 2011,
however, the judge reconsidered sua sponte his earlier grant of
certification and decertified the class.
On October 26, 2011,
the state-court judge met with counsel in chambers and asked the
Koch
Plaintiffs
to
file
a
new
action
for
the
former
class
members so that he could consolidate it with the existing one
and thereby adjudicate the claims of the named plaintiffs in
Koch as well as the former class members.
As a result, on
November 2, 2011, more than 750 former class members filed a new
action in the Harford County Circuit Court.
The new action (the
“Ackerman” action) alleged the same facts and state law claims
as Koch.
That same day, the Koch Plaintiffs informed the judge
that they planned to amend their complaint.
On November 18, 2011, the court informed the parties that
it
would
“issue,
at
some
point,
some
sort
Consolidation” that combined the two cases.
of
an
J.A. 136.
Order
of
Ten days
later, the court told counsel that it had delayed issuing the
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consolidation
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order
only
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because
it
was
still
considering
certain questions concerning the logistics of trial.
On
November
29,
2011,
Defendants
removed
Ackerman
from
state court under authority of the Energy Policy Act of 2005,
Pub L. No. 109-58, § 1503, 119 Stat. 594, 1076 (2005), which
authorizes the removal of MTBE-related claims and actions filed
after August 8, 2005.
then
amended
individual
complaint
On December 1, 2011, the Koch Plaintiffs
their
state-court
plaintiffs
was
named
amended
to
in
add
complaint
to
Ackerman.
the
add
After
Ackerman
all
the
the
Koch
plaintiffs,
the
Defendants did not remove Koch or ask the state court to strike
the amendment.
The same day the Koch Plaintiffs amended their state-court
complaint, the Ackerman Plaintiffs filed a motion in federal
court seeking to remand that case to state court, arguing that
removal was time-barred and that the Defendants waived their
right to remove by litigating for several years in state court.
Alternatively,
the
Ackerman
Plaintiffs
requested
that
the
district court abstain under the Colorado River doctrine, which
permits
federal
courts,
under
exceptional
circumstances,
to
refrain from exercising jurisdiction in deference to pending,
parallel state proceedings.
See Colorado River, 424 U.S. at
817-18.
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The district court denied the remand motion, see Ackerman
v. ExxonMobil Corp., 821 F. Supp. 2d 811, 814-15 (D. Md. 2012),
but
granted
the
motion
to
abstain.
When
concluding
that
abstention was proper, the district focused in large part on the
length of time that the Koch action had been pending in state
court and the progress that had been made on the case in the
state system.
See id. at 820.
As the district court noted, the
Koch case had proceeded in state court for years before the
Ackerman
claims
were
extracted
and
separately
re-filed,
and
extensive discovery efforts had been conducted over the course
of
those
parties
years.
have
Document
since
discovery
conducted
began
numerous
in
2006,
depositions,
and
the
including
depositions of named and proposed class representatives; served
and
responded
produced
to
hundreds
photographs.
numerous
of
thousands
Balancing
factors
against
district
court
its
interrogatories;
these
own
duty
ultimately
of
pages
facts
and
to
of
the
exercise
concluded
that
requested
and
documents
and
other
relevant
jurisdiction,
“this
the
litigation
presents the rare, exceptional circumstances when wise judicial
administration counsels abstention.”
Id. at 821.
The court
therefore stayed Ackerman pending the resolution of the Koch
proceedings in state court.
The Defendants now appeal, arguing that the district court
erred
by
granting
the
Plaintiffs’
12
motion
to
abstain.
The
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Plaintiffs have not cross-appealed the denial of the motion to
remand. 1
II.
“Despite
what
may
judicial
resources,
pendency
of
proceedings
an
appear
the
action
concerning
to
rule
in
result
is
in
well
a
recognized
the
state
court
same
the
duplication
matter
in
is
the
that
no
the
bar
Federal
of
to
court
having jurisdiction.”
McLaughlin v. United Va. Bank, 955 F.2d
930,
1992)
934
(4th
Cir.
alteration omitted)).
(internal
quotation
marks
and
“Indeed, with regard to parallel state
and federal proceedings, the Supreme Court has held, over and
over, as have we, that in the usual case the federal courts must
hear the cases that fall within their jurisdiction.”
Colorado
River,
unflagging
424
U.S.
obligation
at
of
the
817
(emphasizing
federal
courts
the
to
Id.; see
“virtually
exercise
the
jurisdiction given them”).
The
duty
absolute;
exercise
“federal
jurisdiction,
denying
to
a
courts
in
otherwise
federal
forum
countervailing interest.”
jurisdiction,
may
decline
exceptional
would
clearly
however,
to
is
not
exercise
their
circumstances,
where
serve
an
important
Quackenbush v. Allstate Ins. Co., 517
1
Upon learning of the proceedings in this case, the state
court sua sponte stayed all proceedings in Koch pending
resolution of this appeal.
13
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U.S.
Doc: 47
706,
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716
omitted).
(1996)
The
Pg: 14 of 42
(citation
Supreme
and
Court
internal
has
quotation
identified
marks
various
circumstances where abstention may be warranted, including cases
where
exercising
federal
jurisdiction
would
interfere
with
a
pending state criminal proceeding, see Younger v. Harris, 401
U.S. 37 (1971), and cases involving complex state administrative
procedures, see Burford v. Sun Oil Co., 319 U.S. 315 (1943).
At issue in this case is the form of abstention approved by
the
Court
in
Colorado
River
Water
Conservation
District
v.
United States, 424 U.S. 800 (1976) – abstention in favor of
ongoing,
parallel
state
proceedings
in
cases
where
“considerations of wise judicial administration, giving regard
to
conservation
of
judicial
resources
and
comprehensive
disposition of litigation” clearly favor abstention.
Id. at 817
(alteration and internal quotation marks omitted).
The
threshold
question
in
a
Colorado
River
inquiry
whether the pending state and federal suits are parallel.
is
See
Chase Brexton Health Servs., Inc. v. Maryland, 411 F.3d 457, 463
(4th Cir. 2005).
If parallel suits exist, the district court
must then “carefully balance several factors, with the balance
heavily weighted in favor of the exercise of jurisdiction.”
(internal quotation marks omitted).
inquiry
include
“the
relative
Id.
The factors relevant to the
inconvenience
of
the
federal
forum, the relative order of the two suits, the source of law in
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the case, and the relative progress of the two proceedings.”
Al-Abood v. El-Shamari, 217 F.3d 225, 232 (4th Cir. 2000).
Because
Colorado
River
abstention
is
premised
on
consideration of “wise judicial administration” rather than the
“weightier
considerations
state-federal
of
relations”
constitutional
underpinning
adjudication
other
and
abstention
doctrines, Colorado River, 424 U.S. at 818, its application is
proper in a “more limited” range of circumstances, id.
When
courts consider requests to abstain, the task “is not to find
some substantial reason for the exercise of federal jurisdiction
by the district court; rather, our task is to ascertain whether
there
exist
exceptional
Moses H. Cone Mem’l Hosp. v. Mercury Constr.
1,
25-26
justify
(1983)
the
surrender
(internal
of
of
jurisdiction.”
U.S.
to
clearest
.
460
.
the
justifications,
Corp.,
.
circumstances,
quotation
that
marks
omitted).
III.
The Defendants challenge the court’s decision to abstain,
arguing that the district court erred by finding the Koch and
Ackerman actions parallel.
The Defendants challenge only the
district court’s threshold determination that the Koch action
was parallel to Ackerman.
They do not challenge the court’s
balancing of the Colorado River factors, and they concede that
if this court concludes that the state and federal actions are
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parallel, then the district court’s decision to abstain should
be affirmed.
See Brief of Appellants at 42-43 & n.135.
State and federal actions are parallel “if substantially
the
same
parties
litigate
different forums.”
as
amended
the
same
issues
in
Chase Brexton, 411 F.3d at 464 (internal
quotation marks omitted).
action
substantially
on
The Defendants agree that the Koch
December
1,
2011,
is
parallel
to
the
Ackerman action, given that almost-the-same plaintiffs 2 are suing
the
same
defendants
on
the
same
state-law
claims.
The
Defendants argue, however, that the amendment itself is void,
and that the Ackerman action and the pre-amendment Koch action
are not parallel.
According to the Defendants, the amendment is
void ab initio by operation of 28 U.S.C. 1446(d) and because the
amendment
could
have
been
enjoined
under
the
“expressly
authorized” exception to the Anti-Injunction Act, 28 U.S.C. §
2283.
2
All of the plaintiffs in Ackerman are plaintiffs in Koch,
but the seven named plaintiffs in Koch are not plaintiffs in
Ackerman. Because the claims of all plaintiffs can be resolved
in the state proceeding, the fact that the federal action
includes seven fewer plaintiffs than the state action does not
prevent the actions from being parallel for Colorado River
purposes.
See Chase Brexton Health Servs., Inc. v. Maryland,
411 F.3d 457, 464 (4th Cir. 2005) (concluding that actions were
not parallel where, inter alia, five federal plaintiffs were not
parties to the underlying state proceedings and noting that “the
parties involved [must] be almost identical”).
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A.
Under § 1446(d), removing defendants must promptly provide
written notice of the removal to opposing parties and to the
state court.
See 28 U.S.C. § 1446(d).
The statute specifies
that removal is effected by the filing of the notice of removal
with
the
state-court
clerk,
at
which
point
“the
State
court
shall proceed no further unless and until the case is remanded.”
Id. (emphasis added).
any
post-removal
Defendants argue that under § 1446(d),
action
taken
by
the
state
court
is
void.
Although the Defendants have not sought an order invalidating
the amendment from the state court or the district court, they
argue that, even absent any injunction, the amendment to the
Koch complaint was void ab initio because “[t]he § 1446(d) bar
is self-acting.”
Brief of Appellants at 32.
Because § 1446(d) explicitly states that “the State court
shall proceed no further” once removal is effected, 28 U.S.C. §
1446(d), we agree with the Defendants that the statute deprives
the state court of further jurisdiction over the removed case
and that any post-removal actions taken by the state court in
the removed case action are void ab initio.
v.
Moore,
447
F.2d
1067,
1072-73
(4th
See South Carolina
Cir.
1971);
accord
Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 880 (1st
Cir. 1983) (“[A]ny action taken by the Puerto Rico court after
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removal was effected was a nullity anyway, with or without the
order against further proceedings.”).
Section
1446(d),
removed case.
however,
speaks
only
in
terms
of
the
See 28 U.S.C. § 1446(d) (“Promptly after the
filing of such notice of removal of a civil action . . . .”
(emphasis
further
added)).
added));
unless
and
id.
(“[T]he
until
the
State
case
court
is
shall
remanded.”
proceed
no
(emphasis
Because the statute focuses only on the removed case,
it deprives the state court of jurisdiction and restricts the
state court’s actions only as to the removed case.
See Kansas
Pub. Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc. (“KPERS”),
77 F.3d 1063, 1069 (8th Cir. 1996) (“[T]he removal statute only
commands the state court to stay the case that was actually
removed . . . .” (emphasis added)); Lou v. Belzberg, 834 F.2d
730, 740 (9th Cir. 1987) (“[A] federal court may enjoin the
continued prosecution of the same case in state court after its
removal.” (emphasis added)).
There simply is no language in the
statute that reasonably can be interpreted as constraining the
state court’s authority over any case other than the case that
was removed to federal court.
Section 1446(d) may be self-
acting, in that improper post-removal actions are void whether
or not a court has so declared, see Polyplastics, 713 F.2d at
880, but it acts only within its reach.
prohibition
against
post-removal
18
Because § 1446(d)’s
proceedings
does
not
extend
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beyond the removed case, § 1446(d) does not render void the
December 1 amendment of the Koch action.
B.
Contrary to the Defendants’ argument, our conclusion that §
1446(d) does not invalidate the amendment of the Koch complaint
does not change when the Anti-Injunction Act is added to the
mix.
Before addressing the merits of this argument, we will
first sketch out the basics of the Anti-Injunction Act and the
district court’s approach to the issue.
(1)
The Anti-Injunction Act provides that “[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 Act “is an
absolute prohibition against enjoining state court proceedings,
unless
the
injunction
falls
within
specifically defined exceptions.”
one
of
[the]
three
Atlantic Coast Line R.R. Co.
v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 286 (1970).
Because
the
Act
reflects
and
respects
“the
fundamental
constitutional independence of the States and their courts, the
exceptions
should
construction.”
not
be
enlarged
Id. at 287.
19
by
loose
statutory
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At issue in this case is the Act’s “expressly authorized”
exception.
A federal statute expressly authorizes an injunction
of state-court proceedings when the statute creates “a specific
and uniquely federal right or remedy, enforceable in a federal
court of equity, that could be frustrated if the federal court
were not empowered to enjoin a state court proceeding.”
v. Foster, 407 U.S. 225, 237 (1972).
Mitchum
Section 1446(d), with its
“proceed no further” directive, has generally been understood to
expressly authorize injunctions of state courts ignoring that
directive.
See id. at 234 & n.12; Fulford v. Transport Servs.
Co., 412 F.3d 609, 612 (5th Cir. 2005).
Although this court has yet to address the issue, other
courts
have
concluded
that,
under
certain
circumstances,
§ 1446(d) also authorizes injunctions against separate “copycat”
actions – actions involving essentially the same parties and
claims
that
are
original action.
filed
in
state
court
after
removal
of
the
See Quackenbush v. Allstate Ins. Co., 121 F.3d
1372, 1378 (9th Cir. 1997); KPERS, 77 F.3d 1070-71; Frith v.
Blazon-Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir. 1975);
see also Davis Int’l, LLC v. New Start Group Corp., 488 F.3d
597, 605 (3d Cir. 2007) (“Courts considering the question have
unanimously
subvert
the
held
that
removal
a
plaintiff’s
statute
20
fraudulent
implicates
the
attempt
to
‘expressly
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authorized’ exception to the Anti-Injunction Act and may warrant
the granting of an anti-suit injunction.”).
As the Ninth Circuit has observed, “[i]t would be of little
value to enjoin continuance of a state case after removal and
then permit the refiling of essentially the same suit.”
834 F.2d at 741.
1446(d)
Accordingly, these courts have held that §
authorizes
separate,
Lou,
the
state-court
issuance
copycat
of
an
injunction
proceedings
commenced
against
for
the
purpose of subverting federal jurisdiction over a removed case.
See,
e.g.,
plaintiff
KPERS,
cannot
77
file
F.3d
at
1069
essentially
(“[A]fter
same
the
removal
in
case
a
the
second
state action to subvert federal jurisdiction.”); Lou, 834 F.2d
at 741 (“[W]here a second state court suit is fraudulently filed
in an attempt to subvert the removal of a prior case, a federal
court may enter an injunction.”).
The
district
abstention
with
parallel,
which
court
the
here
began
question
turned
on
of
its
whether
whether
analysis
the
the
of
actions
Koch
the
were
Plaintiffs
successfully amended their complaint or whether the amendment
was void ab initio.
See Ackerman, 821 F. Supp. 2d at 816.
When
considering the validity of the amendment, the district court
noted
that
it
had
not
proceedings
and
that
injunction.
See id. at 817.
the
issued
an
Defendants
injunction
had
not
of
even
the
Koch
sought
an
As to whether an injunction would
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be
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under
the
Pg: 22 of 42
Anti-Injunction
Act,
the
court
concluded, consistent with the line of cases discussed above,
that
the
“expressly
authorized”
exception
would
permit
an
injunction in cases where the plaintiff “fraudulently files a
second state lawsuit to undermine the removal statutes.”
at 817 (internal quotation marks omitted).
Id.
The court indicated,
however, that the exception would not apply to the facts of this
case:
[T]he Defendants have not sought, nor has this
Court granted, an injunction of the Koch proceedings.
Thus, nothing prohibits the state court from amending
the Koch complaint to include the Plaintiffs here.
Although the Plaintiffs concede that Koch was amended
after the removal of this action “to blunt” the
perceived “dilatory tactics of the Defendants,” the
amendment was not an attempt to fraudulently undermine
the removal statutes.
The Plaintiffs told the state
court and the Defendants weeks before removal that
Koch would be amended. Koch was not amended to obtain
a favorable decision on an issue this Court has
already decided, nor have the Plaintiffs misled the
Court about the existence and amendment of Koch.
Absent fraud, a secondary state action should not be
enjoined.
The primary purposes of amending Koch were not to
fraudulently defeat this Court’s jurisdiction, but to
comply with the state court’s instructions and to ease
administration
of
the
litigation
after
class
decertification.
The parties had already extensively
litigated the matter in state court. . . . After
decertification, the state court asked the Koch
plaintiffs to amend Koch and file new actions for the
former class members, which the court planned to
consolidate after determining the budget, location,
and other logistics of trial.
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Id. at 817-18 (citations omitted).
The district court further
explained that, even if an injunction were permissible under the
Anti-Injunction Act, it would not exercise its discretion to
enjoin
proceedings
in
Koch:
“[E]ven
if
an
injunction
permissible, the Court would not be bound to issue it.
were
In light
of the unusual circumstances of this litigation, the Court finds
that enjoining the Koch amendment would undermine the important
goal of preserving an effective dual system of federal and state
courts.”
Id.
at
818
(citation
and
internal
quotation
marks
omitted)).
(2)
The
Defendants
complaint
was
a
contend
clear
that
attempt
the
by
amendment
the
of
Plaintiffs
the
to
Koch
subvert
removal jurisdiction and that an injunction barring proceedings
on
the
amended
“expressly
complaint
authorized”
would
exception
be
to
permissible
the
under
Anti-Injunction
the
Act.
And in the Defendants’ view, the fact that the amendment was
enjoinable means that the amendment is void:
[I]f a state-court proceeding is prohibited by §
1446(d), that proceeding is automatically null [and]
absolutely void, . . .
whether enjoined or not.
Thus, if a district court has the power to enjoin a
nearly-but-not-quite-identical action filed in state
court with intent to subvert the district court’s
jurisdiction over a previously removed action . . .
then
that
second action,
even
though
captioned
differently and assigned a different docket number,
must also be null [and] void . . . .
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Reply
Brief
Filed: 08/07/2013
at
6
Pg: 24 of 42
(emphasis
added;
footnotes
and
internal
quotation marks omitted).
We disagree.
As discussed above, § 1446(d) invalidates
post-removal actions taken in state court in the removed case,
but
it
does
not
reach
(and
therefore
does
not
invalidate)
actions taken in cases other than the removed case.
Section
1446(d) may serve as the statutory authority for an injunction
against a separately filed copycat action, see, e.g., KPERS, 77
F.3d
at
1069,
but
serving
as
the
source
of
authority
for
injunctions that might be issued from time to time is not the
same as invalidating from the get-go every action that might
someday be enjoined.
When an exception to the Anti-Injunction Act is present, a
district court may issue an injunction, but it is not required
to do so.
Because “principles of comity, federalism, and equity
always restrain federal courts’ ability to enjoin state court
proceedings,” In re Diet Drugs Prods. Liab. Litig., 369 F.3d
293,
306
(3d
proceedings
Cir.
2004),
is
always
whether
discretionary.
to
enjoin
See
Chick
state-court
Kam
Choo
v.
Exxon Corp., 486 U.S. 140, 151 (1988) (“Of course, the fact that
an injunction may issue under the Anti-Injunction Act does not
mean that it must issue.
On remand the District Court should
decide whether it is appropriate to enter an injunction.”).
discussed
above,
§
1446(d)
does
24
not
render
void
As
state-court
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actions taken in non-removed cases, and those actions may not be
treated as if they were void simply because a district court
might
have
elected
to
exercise
its
discretion
to
enjoin
the
state proceedings.
C.
For the reasons explained above, we reject the Defendants’
claim that the amendment of the Koch complaint was void, whether
by operation of § 1446(d) alone or by operation of § 1446(d) in
conjunction
with
the
“expressly
authorized”
exception
to
the
Anti-Injunction Act.
The
determination
that
the
Koch
amendment
effectively ends the inquiry into parallelism.
is
not
void
The Defendants
did not ask the state court or the district court to strike the
amendment or to enjoin the Plaintiffs from proceeding on the
amended Koch complaint, nor do they argue on appeal that the
district court should have enjoined the Koch proceedings sua
sponte.
Because the amendment is not void under § 1446(d), we
therefore have no basis to disregard the otherwise valid statecourt amendment of the Koch complaint.
Accordingly, because the
action now pending in state court is the Koch action as amended
to include the Ackerman plaintiffs, the district court properly
concluded that the actions are parallel for purposes of Colorado
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River abstention. 3
See Chase Brexton, 411 F.3d at 464
are
substantially
parallel
if
the
same
(“Suits
parties
litigate
substantially the same issues in different forums.” (internal
quotation marks omitted)).
And the determination that the Koch and Ackerman actions
are
parallel
decision
to
effectively
abstain.
ends
As
our
inquiry
previously
into
noted,
the
the
court’s
Defendants
explicitly do not challenge the district court’s balancing of
the
Colorado
River
factors
and
concede
that
if
the
Koch
amendment is not void, “the district court’s decision to abstain
and stay should be upheld.”
Brief of Appellant at 43 n.135.
IV.
In the course of arguing that the amendment of the Koch
complaint was void, the Defendants identify certain errors in
the district court’s analysis of the Anti-Injunction Act.
They
argue that the district court improperly required a tort-like
intent to deceive, when all that is required to enjoin a copycat
action is the intent to subvert removal jurisdiction, which the
Defendants
contend
was
Plaintiffs’
concession
conclusively
before
the
3
established
district
court
by
the
that
the
The Defendants understandably do not argue that the
temporary stay by the state court of proceedings in Koch pending
resolution of this appeal prevents Koch from being parallel to
Ackerman.
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amendment was intended to “blunt” the effect of the removal.
The
Defendants
thus
contend
that
the
court
clearly
erred
by
finding as a factual matter that the Plaintiffs had no intent to
subvert jurisdiction and erred by concluding that the “expressly
authorized” exception was inapplicable.
As the Defendants argue, the Plaintiffs’ conceded intent to
blunt
the
intent
to
removal
might
subvert
well
be
jurisdiction
sufficient
to
establish
the
necessary
to
authorize
an
injunction under the Anti-Injunction Act.
See, e.g., KPERS, 77
F.3d
in
at
1069-70
&
n.5
(explaining
that
federal
question
cases, a plaintiff attempts to subvert federal jurisdiction when
he seeks to have the claims in the removed case resolved in
state court rather than federal court).
The issue in this case, however, is a bit more complicated
than the Defendants would like it to be.
As the district court
noted, see Ackerman, 821 F. Supp. 2d at 818, there were some
“unusual
circumstances”
that
opened
the
door
to
federal
involvement in this case: a state-court action not requested by
the Koch Plaintiffs (the sua sponte decertification of the class
action) and the Plaintiffs’ compliance with the state court’s
request that it file the separate Ackerman complaint.
facts,
of
course,
would
not
preclude
a
Plaintiffs intended to subvert jurisdiction.
finding
that
These
the
Nonetheless, even
if the court’s determination that the Plaintiffs did not intend
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to
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subvert
court
Filed: 08/07/2013
jurisdiction
clearly
had
the
was
Pg: 28 of 42
clearly
discretion
erroneous,
to
consider
the
district
these
“unusual
circumstances” when determining the advisability of issuing an
injunction permitted under the Anti-Injunction Act.
Because the
Anti-Injunction Act’s “core message is one of respect for state
courts,” Smith v. Bayer Corp., 131 S. Ct. 2368, 2375 (2011), we
believe it was within the district court’s discretion to decide
that the unusual circumstances behind the federal involvement in
the matter would counsel against the issuance of an injunction.
See
id.
(“[A]ny
doubts
as
to
the
propriety
of
a
federal
injunction against state court proceedings should be resolved in
favor
of
permitting
the
state
courts
to
proceed.”
(internal
quotation marks omitted)).
In the end, however, we do not think it necessary in this
case to decide whether the court clearly erred when concluding
that the Plaintiffs did not intend to subvert jurisdiction or
otherwise
erred
when
analyzing
the
scope
of
the
“expressly
authorized” exception to the Anti-Injunction Act, because the
asserted
errors
in
the
district
court’s
analysis
of
the
exception played no role in the district court’s resolution of
the issues raised on appeal.
Although the district court indicated that the “expressly
authorized” exception would not apply to this case, the court’s
analysis did not stop there.
The court also explained that even
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if an injunction were permissible under the Anti-Injunction Act,
it would decline to issue one.
See Ackerman, 821 F. Supp. 2d at
818 (“In light of the unusual circumstances of this litigation,
the
Court
finds
that
enjoining
the
Koch
amendment
would
undermine the important goal of preserving an effective dual
system of federal and state courts.”
omitted)).
Injunction
The
Act
district
question
court’s
therefore
(internal quotation marks
resolution
turned
not
of
on
the
the
Anticourt’s
arguably incorrect understanding of the “expressly authorized”
exception,
but
on
the
court’s
unchallenged-on-appeal
determination that an injunction would not be advisable even if
permissible.
Moreover, the errors identified by the Defendants have no
bearing on the only abstention issue the Defendants raise on
appeal – whether the Koch amendment was void, such that the
state and federal actions were not parallel.
that
§
1446(d)
authorizes
an
injunction
of
Even if we assume
separate
actions
filed for the purpose of subverting federal jurisdiction and
that the amendment here was indisputably an attempt to subvert
federal jurisdiction, those assumptions only establish that an
injunction would be permissible under the “expressly authorized”
exception to the Anti-Injunction Act.
But as we have already
explained, the abstract enjoinability of the Koch amendment does
not establish that the amendment was void.
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At bottom, this case is about abstention, not the AntiInjunction Act.
The Defendants did not ask the district court
to enjoin the Koch proceedings, do not argue on appeal that the
district court erred by not issuing an injunction sua sponte,
and do not ask us to issue an injunction of the state-court
proceedings.
The Anti-Injunction Act came into the case only
indirectly, when the Defendants opposed Plaintiffs’ abstention
request
by
arguing
that
the
amendment
was
void,
and
the
Defendants pursue the issue on appeal only in the context of
their claim that the enjoinability of the Koch amendment renders
it void.
Under these circumstances, we believe it prudent to
leave the questions about the precise scope and applicability of
the “expressly authorized” exception for another case where the
issues are properly presented.
V.
To summarize, we hold that 28 U.S.C. § 1446(d) affects only
the jurisdiction of the state court only with regard to the case
actually
removed
to
federal
court.
Because
Koch
was
not
removed, the state court maintained jurisdiction over it, and
the amendment to the complaint in that case was not void ab
initio.
That the district court might have had authority to
issue an injunction striking the amendment does not make the
amendment
injunction.
void
when
the
district
court
never
issued
an
The district court thus was correct to consider the
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amended
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Koch
Filed: 08/07/2013
complaint
in
Pg: 31 of 42
determining
whether
the
Koch
and
Ackerman actions were parallel, and the court did not abuse its
discretion
warranted
when
concluding
abstention
in
that
favor
of
exceptional
circumstances
the
Koch
pending
action.
Accordingly, for the foregoing reasons, we hereby affirm the
district court’s order.
AFFIRMED
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DUNCAN, Circuit Judge, concurring in the judgment:
I admire the majority’s deft circumnavigation of serious
errors of fact and law in pursuit of an ultimately defensible
result.
I write separately because the district court’s errors
were so many and of such significance that I cannot share the
majority’s
result.
not
confidence
that
they
did
not
contribute
to
that
More importantly, I believe that leaving those errors
only
unaddressed
but
unacknowledged
will
allow,
if
not
encourage, their repetition.
My fundamental concern with the majority’s opinion is that
in its magnanimity to a profoundly flawed disposition below, it
omits
critical
obligation
to
facts
at
exercise
the
the
expense
of
jurisdiction
our
well-established
that
we
have.
See
Colorado River Water Conservation Dist. v. United States, 424
U.S.
800,
813,
unflagging
817
(1976)
obligation”
“exceptional
(federal
to
courts
exercise
circumstances”).
For
have
a
“virtually
jurisdiction
example,
it
absent
fails
to
recognize the significance of the Energy Policy Act of 2005 in
its analysis; it cites the Act only once, and even then merely
in passing in explaining the procedural history of the case.
See Majority Op. at 11.
By
way
majority’s
of
further
conclusion
that
example,
the
I
removal
fully
agree
statute,
28
with
the
U.S.C.
§
1446(d), is not self-acting, and that the Koch amendment was not
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void ab initio.
Pg: 33 of 42
See Majority Op. at 17-18.
However, I feel
compelled to point out what the majority does not: the futility
of Defendants’ seeking an injunction to bar the amendment, when
the district court erroneously believed it lacked authority to
grant one.
Indeed, Defendants had no reason to request such an
injunction in advance of Plaintiffs’ motion, and instead had
every reason to believe there was no need to seek one because
the state court action had been stayed.
I concur in the judgment because of my respect both for my
colleagues and for our deferential standard of review.
However,
I set forth the district court’s errors in some detail here
because I believe it to be incumbent upon us to provide such
guidance
and
in
the
hope
that
it
will
discourage
their
reoccurrence.
I.
A. Error of Fact
I believe the district court’s finding of fact regarding
the propriety of Plaintiffs’ amendment of the Koch complaint is
clearly erroneous.
primary
purposes
The district court concluded that “[t]he
of
amending
Koch
were
not
to
fraudulently
defeat this Court’s jurisdiction, but to comply with the state
court’s
instructions
and
to
ease
administration
litigation after class decertification.”
33
of
the
821 F. Supp. 2d 811,
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818 (D. Md. 2012).
Pg: 34 of 42
However, Plaintiffs conceded all that need
be shown to establish an improper intent by stating that they
filed the amendment “to blunt the perceived dilatory tactics of
the Defendants,”--i.e., to subvert Defendants’ proper removal of
the Ackerman action.
See id.
Regardless of any other asserted
purposes, Plaintiffs have acknowledged that they acted with the
intent to defeat federal jurisdiction over their claims.
This
error is particularly significant because of the stringency with
which abstention analysis is to be applied.
B. Errors of Law
1.
I fully understand the majority’s preference for avoiding
dealing with the district court’s view of its authority (or lack
thereof) under the Anti-Injunction Act, 28 U.S.C. § 2283 (the
“AIA”).
I am far less sanguine that the court’s confusion in
that regard did not contribute to its ultimate conclusion.
I
therefore feel the issue requires consideration.
To start, nothing in the text of the AIA requires that a
defendant
exceptions.
request
an
injunction
issued
under
one
of
its
Rather, the AIA states simply: “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 (emphasis added).
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The plain meaning of this language is that one circumstance in
which the district court may enjoin a state court proceeding
arises when the court has been “expressly authorized” to do so
by Congress, 1 which generally has nothing to do with whether or
not a party explicitly sought the injunction.
As the Supreme Court has explained, the AIA “is a necessary
concomitant of the Framers’ decision to authorize, and Congress’
decision
to
implement,
a
dual
system
of
federal
courts.
It represents Congress’ considered judgment as to how
to balance the tensions inherent in such a system.”
Choo v. Exxon Corp., 486 U.S. 140, 146 (1988).
and
state
Chick Kam
It would seem to
me inconsistent with this careful scheme to render a federal
court’s
authority
to
enjoin
a
state
proceeding
entirely
dependent on strategic decisions made by the parties, rather
1
As the majority explains, it is well established that the
removal statute provides the necessary express authorization in
certain circumstances.
See Majority Op. at 19-20.
By
establishing that removal is effected by a defendant’s filing a
notice of removal in state court, and ordering that “the State
court shall proceed no further unless and until the case is
remanded,” 28 U.S.C. § 1446(d) expressly authorizes a federal
court to enjoin the continued prosecution of the same case in
state court after it is removed.
See Mitchum v. Foster, 407
U.S. 225, 234 & n.12 (1972); Vendo Co. v. Lektro-Vend Corp., 433
U.S. 623, 640 (1977) (plurality opinion).
The majority also
acknowledges, as did the district court (ostensibly), that many
courts have extended this express authorization to “copycat”
actions
filed
in
state
court
after
removal,
permitting
injunctions to prevent a plaintiff from filing exactly the same
case in state court after it is removed, particularly where the
latter is filed with the intent to subvert federal jurisdiction.
See Majority Op. at 20-21.
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than on the “considered judgment” of Congress embodied in the
AIA.
Furthermore, interpreting the AIA in other contexts, the
Supreme Court has made clear that, where it is not barred by the
Act,
a
federal
court’s
authority
to
enjoin
a
state
court
proceeding is bounded only by the court’s sound discretion, not
by the precise procedural mechanism employed by a party to the
action.
See
McFarland
v.
Scott,
512
U.S.
849,
858
(1994)
(affirming the district court’s discretion to issue a stay of
execution under the AIA’s “expressly authorized” exception even
where
the
petition,
defendant
because
had
28
express authorization). 2
not
U.S.C.
filed
§
2251
a
formal
provides
habeas
the
corpus
requisite
Accordingly, unlike the district court,
I would not find Defendants’ failure to explicitly request an
2
Further support for viewing the district court’s authority
to enjoin a state proceeding, where the court is “expressly
authorized,” as inherent and independent rather than subservient
to a party’s request, may be found in the All-Writs Act, which
affirmatively grants federal courts license to “issue all writs
necessary
or
appropriate
in
aid
of
their
respective
jurisdictions and agreeable to the usages and principles of
law.”
28 U.S.C. § 1651(a).
In this context, courts have
recognized that injunctions exist outside of the traditional
injunction framework governed by Fed. R. Civ. P. 65. See In re
Baldwin-United Corp., 770 F.2d 328, 338-39 (2d Cir. 1985)
(contrasting the concerns motivating ordinary injunctions with
those underlying injunctions issued under the All-Writs Act “to
prevent . . . parties from thwarting the court’s ability to
reach and resolve the merits of the federal suit before it”).
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injunction in opposing Plaintiffs’ motion determinative, or even
persuasive, on the facts of this case.
The district court went on to say that even if it had the
authority to grant an injunction, it would not have done so.
Here, the district court’s analysis, although perhaps ultimately
defensible
in
its
conclusion,
is
troubling
because
it
misconstrues the removal statute and ignores the policy goals
behind that statute.
2.
This brings me to a second legal error apparent in the
district court’s reasoning.
removal
statute,
the
As part of its misreading of the
district
court
concluded,
in
my
view
erroneously, that the Ackerman claims as amended to the Koch
action would not be removable.
This was apparently relevant to
the district court’s analysis because it allowed the court to
distinguish the Koch amendment from what it “may appear to be,”
that is, “‘an end run around 28 U.S.C. § 1446(d),’” 821 F. Supp.
2d at 818 (citation omitted), and to downplay the import of
federal jurisdiction over the properly removed Ackerman action.
The court thus attributed this case’s presence in federal court
to bad luck, or perhaps bad strategy: “Had the Plaintiffs merely
amended
Koch--rather
than
filing
this
separate
action--the
Defendants would not have been able to remove these claims.”
Id.
37
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The
district
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court’s
Pg: 38 of 42
statements
do
not
comport
with
my
reading of the Energy Policy Act of 2005, which the majority
does not address at all.
As it relates to MTBE cases, the Act
memorializes certain Congressional findings regarding the role
of the Clean Air Act Amendments of 1990 in causing the fuel
industry to make investments in MTBE production capacity and
delivery of MTBE-containing gasoline to consumers.
No. 109-58, § 1502, 119 Stat. 594.
See Pub. L.
The Act also allows for the
removal of MTBE-related “claims and legal actions filed after
the date of enactment.”
Id. § 1503 (emphasis added). 3
This
right of removal must apply to the Ackerman claims because they
are MTBE-related claims filed after August 8, 2005, which is all
that § 1503 requires.
only
for
independent
If Congress intended to provide removal
legal
actions
filed
after
the
date
of
enactment, it would not have included the word “claims” in the
text of the Act, which is otherwise redundant given that any
claim that is removable must be contained within some sort of
legal action.
3
Initial drafts also included “a safe harbor provision
retroactively limiting or even eliminating liability for MTBE
producers and distributors.”
In re MTBE Prods. Liab. Litig.,
674 F. Supp. 2d 494, 498 (S.D.N.Y. 2009) (citing 149 Cong. Rec.
S15212 (daily ed. Nov. 20, 2003) (statement of Sen. Diane
Feinstein)).
Following objections from members of Congress, a
compromise was attained whereby the safe harbor was replaced by
§ 1503’s right of removal. Id.
38
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As
Filed: 08/07/2013
Pg: 39 of 42
as
the
property
all
of
soon
decertified,
Ackerman
class
the
non-named
Plaintiffs--were
involvement
in
that
of
owners
class
effectively
action.
in
Koch
members--the
severed
Whether
these
was
future
from
any
individuals
subsequently chose to file their claims as an amendment to the
Koch action, as more than 750 individual actions, or as one
separate action later consolidated with Koch, does not change
the fact that these were newly filed claims.
3.
Though the limitations period for the Ackerman Plaintiffs’
claims was tolled by the pendency of the putative class action
in Koch, their claims do not relate back to the original Koch
filing.
On this point the district court erred yet again.
821 F. Supp. 2d at 818-19.
new
causes
of
action
individualized harm.
See
The Ackerman Plaintiffs’ claims are
seeking
distinct
damages
based
on
See Grand-Pierre v. Montgomery Cnty., 627
A.2d 550, 553-54 (Md. Ct. Spec. App. 1993) (“When amendment is
sought to add a new party to the proceedings . . . any cause of
action as to that party is, of course, a new action. . . .
Unless the additional plaintiff[s] will merely be sharing in the
damage
award,
and
not
‘pyramiding’
the
original
requested, relation back will not be applied[.]”).
amount
Given that
the new claims were first filed as an independent legal action
in Ackerman, it is difficult to see how the district court could
39
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justify its finding that they merely sought to share in the Koch
Plaintiffs’ damages request.
Indeed, pursuant to 28 U.S.C. § 1446(b)(3), the thirty-day
removal window is revived for circumstances such as these, in
which it may be ascertained from a party’s filing that a case
has become newly removable.
Thus, the plain language of both
the Energy Policy Act of 2005 and the removal statute bolsters
the
conclusion
removable.
that
This
the
in
post-amendment
turn
supports
Koch
the
action
exercise
would
of
be
federal
jurisdiction over the Ackerman Plaintiffs’ claims.
Consequently,
contrary
to
the
district
court’s
determination, we cannot blame the creation of this procedural
quagmire on Plaintiffs’ accidental misstep, nor some instruction
of
the
state
request
an
Plaintiffs’
which
we
court,
nor
injunction.
deliberate
ultimately
Defendants’
Rather,
manipulation
permit,
but
failure
to
responsibility
of
federal
unfortunately
explicitly
lies
with
jurisdiction,
without
an
explanation of the serious concerns implicated.
II.
The removal process utilized by Defendants on the Ackerman
Plaintiffs’ claims is consistent with the principles of comity
embodied in the AIA, as well as the preference inherent in the
Energy Policy Act of 2005 to allow defendants to litigate MTBE
40
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Pg: 41 of 42
claims filed after August 8, 2005 in federal court if they so
choose.
from
We have explained that this right of removal resulted
extensive
Congressional
negotiations,
and
represents
a
concerted effort to provide some benefit to MTBE defendants in
recognition
of
Congress’s
prior
role
in
facilitating
the
widespread use of MTBE as a gasoline additive.
Unlike the majority, I am unable to conclude that these
errors in the district court’s analysis played no role in its
decision
to
abstain,
or
in
“the
issues
raised
on
appeal.”
Majority Op. at 28.
At the very least, if--as the majority
asserts--“this
case
is
a
about
abstention,
not
the
Anti-
Injunction Act,” Majority Op. at 29, then abstention ought to be
analyzed
thoroughly
and
presumptions that guide it.
with
due
consideration
for
the
After such an analysis, I believe
the district court would have exercised its discretion soundly
by declining to abstain from exercise of federal jurisdiction.
Nonetheless, as the majority recognizes, the issuance of an
anti-suit injunction is highly discretionary.
See Chick Kam
Choo, 486 U.S. at 151 (“Of course, the fact that an injunction
may issue under the Anti-Injunction Act does not mean that it
must issue.”).
feel
comfortable
I concur in the result here because I do not
ordering
the
district
injunction, despite its flawed analysis.
court
to
grant
an
Cf. Bryan v. BellSouth
Commc’ns, Inc., 492 F.3d 231, 242 (4th Cir. 2007) (“Because the
41
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decision
to
Filed: 08/07/2013
enjoin
a
state
Pg: 42 of 42
court
proceeding
.
.
.
is
a
discretionary one, our disagreement with the manner in which the
district
court
approached
the
question
.
.
.
given
the
particular circumstances of this case, [does not] prevent[] us
from affirming the court’s decision[.]”) (citation omitted).
Given
the
district
court’s
decision
not
to
enjoin
the
amendment in state court, I cannot conclude that its decision to
abstain
constitutes
an
abuse
of
discretion.
Because
of
the
narrow scope of our appellate review, I would affirm on the
narrowest possible grounds, and join only in the judgment of the
majority.
42
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