Server v. Nation Star Mortgage, LLC
ORDER granting 7 Motion to Dismiss for Lack of Jurisdiction pursuant to the attached decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 07/20/2017. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RALPH SERVER, JR.,
NATION STAR MORTGAGE, LLC,
CASE NO. 3:16-cv-1582 (VLB)
July 20, 2017
MEMORANDUM OF DECISION GRANTING MOTION TO DISMISS [DKT. 7]
This case seeks relief from an order rendered in and relief obtainable in a
foreclosure action currently pending in the Connecticut Superior Court.
Complaint does not allege that Plaintiff Ralph Server, Jr. (“Server, Jr.”) has sought
relief from the Connecticut Appellate or Supreme Courts. See [Dkt. 1 (Compl.)].
The Connecticut Judicial Branch website does not reveal an appeal of the Superior
Court decision. Server, Jr. seeks declaratory judgment and rescission of the note
and mortgage under TILA and an injunction prohibiting Defendant Nation Star
Mortgage, LLC (“Nation Star”) from foreclosing on his property. See id. ¶¶ 1, 11. 1
Server, Jr. also claims to have state law claims, “including but not limited to
Although Server, Jr. claims jurisdiction is valid under the Fair Debt Collections
Act (“FDCA”) and the Federal Trade Commission Act (“FTCA”), see [Dkt. 1 ¶2], he
does not state any claims under these Acts. He instead generally “reserves causes
of action” under the FDCA, TILA, the FTCA, and the Real Estate Settlement
Procedures Act (“RESPA”) against Bank of America, Community Home Equity
Conversion Corp., Nation Star and Champion Mortgage, and Does 1-50. See id. ¶
12. Server, Jr. also “reserves his right to amend and to assert derivative claims
under the Connecticut Commercial and Consumer Protection Statutes, as well as
state laws prohibiting Deceptive Trade Practices, among others.” Id. ¶ 13. The
Court does not address any actions vaguely reference but not asserted in the
determination of status as holder in due course under Conn. Gen. Stat. § 47-31 on
the one hand, and equitable action for quiet title in Chancery Court. . . .” Id. ¶ 2.
Nation Star has moved to dismiss this case in its entirety for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) and, in the alternative, for failure to state
a claim under Fed. R. Civ. P. 12(b)(6). For the following reasons, the Court GRANTS
this motion for Server, Jr.’s failure to establish subject matter jurisdiction.
Server, Jr. entered into a mortgage and a promissory note with the
Community Home Equity Conversion Corporation (“CHECC”) on July 1, 2009. See
[Dkt. 1 ¶ 1; Dkt. 7 (Mot. Dismiss) at 32-50 of PDF]. The property is located in
Wallingford, Connecticut. [Dkt. 1 ¶ 1]. CHECC later endorsed the note to Bank of
America, which then in 2012 assigned the note to Nation Star. Id. ¶ 4. Nation Star
is a debt collector incorporated in Texas with its principle place of business located
in that state. Id. ¶ 8.
In March 2015, Nation Star instituted a foreclosure action against Server, Jr.
in Connecticut state court. [Dkt. 7 at 24 of PDF].2 Judge Cronan of the Superior
Court in the Judicial District of New Haven at Meriden determined that Nation Star
was the proper party in the foreclosure action as the possessor of the original
The Court takes judicial notice that all documents related to the state court
litigation are publicly available by searching the Civil/Family/Housing directory
through Server, Jr.’s name.
See State of Conn. Judicial Branch,
http://civilinquiry.jud.ct.gov/PartySearch.aspx. The state court litigation involving
Server, Jr. and Nation Star is docket number NNI-CV-15-6008087-S. Accordingly,
the Court refers to and cites any exhibits filed by Nation Star that are publicly
promissory note. See id. at 27 of PDF.3 On December 2, 2015, Server, Jr. filed an
Answer and Special Defenses. Id. at 25 of PDF. Then on February 25, 2016, Server,
Jr. filed a Motion to Dismiss / Motion to Strike and after the parties completed
briefing Judge Cronan issued a decision denying Server, Jr.’s motion. See id. at
25. With respect to procedure, Judge Cronan ruled that Server, Jr. waived his right
to file a motion to strike after filing the answer and special defenses on December
2, 2015. Id. at 30 of PDF. Judge Cronan then addressed the merits of the motion
and found that under Jesinoski v. Countrywide Home Loans, Inc., 135 S. Ct. 790
(2015), rescission is effected when a borrower notifies the creditor of his or her
intention to rescind so long as the notice is provided within three years of the
transaction, but that in the present case Server, Jr. did not timely rescind the
mortgage because he issued the notice on September 21, 2015, well over three
years after the transaction in July 2009. Id. at 31 of PDF. The following week Server,
Jr. filed a Motion to Reargue / Reconsider, which Judge Cronan denied on May 25,
2016. Id. at 25 of PDF. As noted above, Server, Jr. does not appear to have
appealed the ruling. To date the matter remains pending.
After receiving the Order denying Server, Jr.’s Motion to Dismiss / Motion to
Strike, Server, Jr. filed the instant action with this Court in September 2016. Server,
Jr. contends that any debt owed to any party is due to the presently unknown but
“true holder in due course” of the note, not Nation Star as it is not in privity with
Server, Jr. [Dkt. 1 ¶¶ 4, 7]. Server, Jr. also believes that he has a right to rescind
Although the Order claims “defendant” possesses the original promissory note,
the Court has assessed the associated briefing on the docket and determined the
ruling instead pertains to the plaintiff, Nation Star.
the mortgage and note simply by providing notice despite having unsuccessfully
litigated the issues in state court. Id. ¶ 10.
“Federal courts are courts of limited jurisdiction. . . .” Gunn v. Minton, 568
U.S. 251, 256 (2013). Subject matter jurisdiction is not waivable, and a lack of
subject matter jurisdiction may be raised at any time, by a party or the court sua
sponte. See Gonzalez v. Thaler, 565 U.S. 134, 141 (2012); see also Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013) (“Objections to a tribunal’s
jurisdiction can be raised at any time, even by a party that once conceded the
tribunal’s subject-matter jurisdiction over the controversy.”).
If a court lacks
subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3).
A “district court must take all uncontroverted facts in the complaint [ ] as
true, and draw all reasonable inferences in favor of the party asserting
jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239,
243 (2d Cir. 2014). However, “where jurisdictional facts are placed in dispute, the
court has the power and obligation to decide issues of fact by reference to evidence
outside the pleadings. . . .” Id. “In that case, the party asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it
A. Rooker-Feldman Doctrine
Under the Rooker-Feldman doctrine, federal district courts may not exercise
subject matter jurisdiction over suits that are, in substance, appeals from state
court judgments. Rooker v. Fidelity Trust Co., 263 U.S. 413, 414-15 (1923); District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Gonzalez v. Ocwen
Home Loan Servicing, 74 F. Supp. 3d 504, 513 (D. Conn. 2015) (stating the RookerFeldman doctrine depends on “the causal relationship between the state-court
judgment and the injury of which the party complains in federal court,” not the
similarity between the claims) (quoting McKithen v. Brown, 481 F.3d 89, 97-98 (2d
The doctrine is limited to “cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp.,
544 U.S. 280, 284 (2005). There are four requirements for the application of the
Rooker-Feldman doctrine: (1) the party raising the claim must have lost in state
court; (2) that party’s injuries must be caused by the state court judgment; (3) that
party’s claims must invite the district court to review and reject the state court
judgment; and (4) the state court judgment must have been rendered prior to the
commencement of the federal court proceedings. See Vossbrinck v. Accredited
Home Lenders, Inc., 773 F.3d 423, 426 (2d Cir. 2014); Hoblock v. Albany Cty Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005) (interpreting the requirements set forth by
Exxon Mobil Corp. as a four-factor test).
A judgment is final for Rooker-Feldman purposes where “the state
proceedings [have] ended.” Exxon Mobil Corp., 544 U.S. at 291. While RookerFeldman’s timing requirement “will usually be straightforward,” the present case
falls within the category of cases which “present difficult questions as to whether
‘the state proceedings have ‘ended’ within the meaning of Rooker-Feldman on the
federal questions at issue.’”
Hoblock, 422 F.3d at 89 (quoting Federacion de
Maestros de P.R. v. Junta de Relaciones del Trabajo de P.R., 410 F.3d 17, 25 (1st
Cir. 2005)). Indeed, while the Second Circuit has traditionally applied the RookerFeldman doctrine to interlocutory state court orders, much of this case law has
been abrogated because the Exxon Mobil Corp. ruling confined the RookerFeldman doctrine to a narrower set of cases than previously interpreted by many
circuit courts including our own. See Green v. Mattingly, 585 F.3d 97, 101 (2d Cir.
Here, prior to the commencement of this action, the Connecticut Superior
Court made two critical rulings. First, Judge Cronan determined that Nation Star
was a proper party in the action. See [Dkt. 7 at 27 of PDF]. Second, Judge Cronan
denied Server, Jr.’s Motion to Dismiss / Motion to Strike for improper procedure
and for failure to rescind the mortgage within the three-year statute of limitations,
and thus he allowed foreclosure proceedings to go forward. See id. at 31 of PDF.
Thus, the Superior Court ruled on the holder in due course and TILA claims
presented in this case. Server, Jr. filed a Motion to Reargue/Reconsider, which
Judge Cronan denied on March 25, 2016. Id. at 25 of PDF. There is no indication
from the docket that he appealed either ruling, the foreclosure action remains
pending, and there is indeed still the possibility that Server, Jr. could raise any and
all defenses which may exist against the foreclosure and prevail in state court
despite these two factual findings made by Judge Cronan. The Court finds that
given the ongoing nature of the proceedings there is considerable doubt under
Exxon Mobil Corp. that the Rooker-Feldman doctrine applies.
abstention doctrine does apply and warrants dismissal of this case.
B. Colorado River Doctrine
This matter falls more properly within the Colorado River abstention
doctrine. Although the parties have not addressed this doctrine, it is of no moment
because a district court may sua sponte challenge subject matter jurisdiction,
including through abstention principles. See Thaler, 565 U.S. at 141; F.D.I.C. v.
Four Star Holding Co., 178 F.3d 97, 100 n.2 (2d Cir. 1999) (finding that a district
court or appellate court could sua sponte address subject matter jurisdiction and
applying Colorado River abstention principles).
A federal court may, in certain exceptional circumstances, abstain from
exercising jurisdiction over a claim properly brought before it, but the abstention
doctrine “comprises a few extraordinary and narrow exceptions to a federal court’s
duty to exercise its jurisdiction . . . .” Niagara Mohawk Power Corp. v. Hudson
River-Black River Regulating Dist., 673 F.3d 84, 100 (2d Cir. 2012) (quoting
Woodford v. Cmty. Action Agency of Greene Cnty., Inc., 239 F.3d 517, 522 (2d Cir.
2001)). One narrow exception to the general obligation to exercise jurisdiction is
when a parallel state court action is pending.
See Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). In Colorado River,
the Supreme Court held that a “federal court may abstain from exercising
jurisdiction when parallel state-court litigation could result in ‘comprehensive
disposition of litigation.’” Niagara Mohawk Power Corp., 673 F.3d at 100 (quoting
Colorado River, 424 U.S. at 817-18). When determining whether to abstain from
exercising jurisdiction, courts are required to consider the following factors:
(1) whether the controversy involves a res over which one of the
courts has assumed jurisdiction; (2) whether the federal forum
is less inconvenient than the other for the parties; (3) whether
staying or dismissing the federal action will avoid piecemeal
litigation; (4) the order in which the actions were filed, and
whether proceedings have advanced more in one forum than in
the other; (5) whether federal law provides the rule of decision;
and (6) whether the state procedures are adequate to protect the
plaintiff’s federal rights.
Niagara Mohwak Power Corp., 673F.3d at 101 (quoting Woodford, 239 F.3d at 522).
However, a court’s decision to decline jurisdiction “does not rest on a mechanical
checklist,” but rather depends on “a careful balancing of the important factors as
they apply in a given case.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 16 (1983). Therefore, in addition to the six criteria, courts consider a
wide variety of factors when conducting the abstention analysis.
Before analyzing the specific factors, “a court must make a threshold
determination that the federal and state court cases are ‘parallel.’” Dalzell Mgmt.
Co., Inc. v. Bardonia Plaza, LLC, 923 F. Supp. 2d 590, 597 (S.D.N.Y. 2013) (quoting
Dittmer v. Cnty. of Suffolk, 146 F.3d 113, 118 (2d Cir. 1998)). “Federal and state
proceedings are ‘parallel’ for abstention purposes when the two proceedings ‘are
essentially the same,’ meaning that ‘there is an identity of parties, and the issues
and relief sought are the same.’” Id. (quoting Shields v. Murdoch, 891 F. Supp. 2d
567, 577 (S.D.N.Y. 2012)). However, to be parallel the proceedings need not be
identical. “Lawsuits are considered ‘parallel’ if ‘substantially the same parties are
contemporaneously litigating substantially the same issue’ in both forums.” First
Keystone Consultants, Inc. v. Schlesinger Elec. Contractors, Inc., 862 F. Supp. 2d
170, 182 (E.D.N.Y. 2012) (quoting Dittmer, 146 F.3d at 118). Therefore, “[c]omplete
identity of parties and claims is not required; the parallel litigation requirement is
satisfied when the main issue in the case is the subject of already pending
litigation.” GBA Contracting Corp. v. Fid. & Deposit Co., No. 00-cv-1333(SHS), 2001
WL 11060, at *1 (S.D.N.Y. Jan. 4, 2001).
Here, the parties are identical to those involved in the state court action,
although their roles are reversed. The state case is a foreclosure action brought
by Nation Star involving the same property in this federal case. Server, Jr., as
defendant in the state action, sought to dismiss the case based on his prior notice
of rescission under TILA. See Motion to Strike and/or Dismiss Plaintiff’s Complaint
(Dkt. 124.00), Nationstar Mortgage LLC v. Server Jr., Ralph et al., Superior Court,
judicial district of Meriden, Docket No. NNI-CV15-6008087-S (Feb. 25, 2016).4 The
state court denied the motion, ruling that the statute of limitations had run
regarding his right to rescission under TILA and therefore Server, Jr. did not timely
rescind the mortgage. See [Dkt. 7 at 31 of PDF]. The case remains pending. The
federal case is essentially identical. Although framed as a TILA rescission action,
Server, Jr. seeks enforcement of rescission under TILA and an injunction from
foreclosure of the property. [Dkt. 1 ¶¶ 1, 11]. Server, Jr.’s contention that the FDCA
and FTCA confer jurisdiction, and his reservation of rights of claims under these
Acts as well as other state claims including Conn. Gen. Stat. § 47-31 do not
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distinguish the state and federal actions. The principle reason is because the
“main issue” is still identical: foreclosure of Server, Jr.’s property. The secondary
reason is because this laundry list of federal and state regulations, without more,
are not sufficient to distinguish the two cases. Accordingly, the Court will now
analyze each factor required under the Colorado River doctrine.
The first factor weighs in favor of abstention because the Connecticut state
court exercised jurisdiction over the res when the state foreclosure action began.
See Bromfield v. Lend-Mor Mortgage Bankers Corp., No. 3:15-cv-1103 (MPS), slip
op. at *4 (D. Conn. Feb. 17, 2016) (finding the first factor to weigh in favor of
abstention where foreclosure actions began in state court); c.f. Credit-Based Asset
Servicing and Securitization, LLC v. Lichtenfels, 658 F. Supp. 2d 355, 361-62 (D.
Conn. 2009) (citing same principle and applying to a quasi in rem proceeding).
Because the Second Circuit has held that jurisdiction over the res may be
dispositive, the Court finds this factor weighs heavily in favor of abstention.
F.D.I.C., 178 F.3d at 102 (stating that a foreclosure action is an in rem proceeding
and the court with custody over the property, i.e. where proceedings in rem occur,
has exclusive jurisdiction of the case).
Inconvenience of Federal Forum
The “inconvenience refers to the geographical relation of the respective
courthouses.” Credit-Based Asset, 658 F. Supp. 2d at 364 (citing Arkwright-Boston
Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205, 210-11 (2d Cir. 1985)); First
Keystone Consultants, Inc., 862 F. Supp. 2d at 187 (finding the federal courthouse’s
location in Brooklyn and the Queens County courthouse location was “of little
consequence” and weighed slightly against abstention). Due to the relatively close
proximity of the two courthouses, the Court finds this factor weighs slightly against
Avoiding Piecemeal Litigation
As in many Colorado River abstention cases, one of the most important
factors is the desirability of avoiding piecemeal litigation. Arkwright-Boston, 762
F.2d 205 at 210-211 (noting “[a]s in Colorado River, the danger of piecemeal
litigation is the paramount consideration.”). As the Second Circuit noted, “[t]he
existence of such concurrent proceedings creates the serious potential for
spawning an unseemly race to see which forum can resolve the same issues first .
. . .” Id. at 211. “The spectre of piecemeal litigation implicates both, combining the
impracticality of wasting judicial resources with the legal dilemmas posed by the
possibility of inconsistent results in two identical or virtually identical cases.” Gen.
Star Intern. Indem. Ltd. v. Chase Manhattan Bank, No. 01-civ-11379(AGS), 2002 WL
850012, at *7 (S.D.N.Y. May 3, 2002).
This factor undoubtedly favors abstention. The foreclosure action pending
before the state court is essentially identical to the case before this Court. Judge
Cronan previously considered evidence and ruled that Nation Star is a proper party
in the action because it possesses the original promissory note. See [Dkt. 7 at 27
of PDF (addressing Server, Jr.’s Motion to Dismiss (Dkt. 116.00))]. Judge Cronan
also ruled that Server, Jr. did not file his notice of rescission within three years of
the transaction and therefore did not properly rescind the mortgage under TILA.
Id. at 32 of PDF. Here, the Complaint alleges that Nation Star does not have
standing to enforce the mortgage and note, and it seeks rescission and an
injunction against foreclosure. Server, Jr. is essentially relitigating these issues in
federal court while his state action remains pending. This potential for inconsistent
results is exactly the type of piecemeal litigation that should be avoided.
Order in Which Jurisdiction Was Obtained and Progress
“The fourth Colorado River factor looks at the point in time at which the
respective actions were filed, however, a court must engage in more than a simple
comparison of dates.”
L. Harbert, Inc. v. Aetna Cas. & Sur. Co., No. 96-civ-
8924(LAP), 1997 WL 539778, at *4 (S.D.N.Y. Aug. 28, 1997) (citing De Cisneros v.
Younger, 871 F.2d 305, 307 (2d Cir. 1989) (“[T]he inquiry is not so simplistic; the
relative progress of the federal and state proceedings must be carefully
examined.”)). Therefore, courts “look not only to which action was commenced
first, but rather to the relative progress of actions in the two forums.” Estee Lauder
Cos. Inc. v. Batra, 430 F. Supp. 2d 158, 168 (S.D.N.Y. 2006) (quoting Am. Alliance
Ins. Co., 961 F. Supp. at 659).
The state court action had been pending for one and a half years before
Server, Jr. filed his complaint with this Court in September 2016. At the time when
the federal action was filed, the parties had already engaged in foreclosure
mediation, exchanged discovery, as well as litigated a Motion to Dismiss, a Motion
for Default, a Motion to Strike, and two Motions to Reargue/Reconsider.
Nationstar Mortgage LLC, Superior Court, judicial district of Meriden, Docket No.
NNI-CV15-6008087-S (Feb. 25, 2016).5 The most recent matter filed with the state
court is a Motion for Continuance filed on October 5, 2016, which does not appear
to have been ruled upon. By contrast, Nation Star filed its Motion to Dismiss with
this Court shortly on October 7, 2016, and the parties have raised no additional
issues with the Court. The Court assumes discovery commenced in accordance
with Fed. R. Civ. P. 26 and remains ongoing. This factors weighs slightly in favor
of abstention due to the breadth of issues already litigated in state court.
Law that Provides the Rule of Decision
The fifth factor involves the substantive law governing the merits of the case.
Typically, federal law issues weigh in favor of surrender and state law issues weigh
in favor of abstention. See Arkwright-Boston, 762 F.2d at 211; De Cisneros, 871
F.2d 305, 308-09 (2d Cir. 1989).
Server, Jr. seeks an injunction from foreclosure, which applies state law.
However he also seeks rescission under TILA, a federal statute. Section 1640(e)
allows both state and federal courts to preside over TILA actions. 15 U.S.C. §
1640(e). In circumstances where there is concurrent jurisdiction between both
state and federal law, policy favors abstention. See Beepot v. J.P. Morgan Chase
Nat. Corporate Servs., Inc., No. 3:10-cv-423-J-34TEM, 2011 WL 4529604, at *9 (M.D.
Fla. Sept. 30, 2011) (“TILA provides for concurrent jurisdiction in the state and
federal courts, 15 U.S.C. § 1640(e), evincing a policy favoring abstention.”) (citing
Ambrosia Coal and Constr. Co. v. Pages Morales, 368 F.3d 1320, 1331 (11th Cir.
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2004)); Blake v. Wells Fargo Bank, NA, 917 F. Supp. 2d 732, 738 (S.D. Ohio 2013)
(“The Plaintiff’s TILA claims belong, for the moment, in state court and should be
adjudicated there.”); see also Colorado River, 424 U.S. at 818 (finding that a court
exercising jurisdiction over property may do so at the exclusion of other courts
even where there exists concurrent jurisdiction); c.f. L. Harbert, Inc., 1997 WL
539778, at *4 (“[A] decision to abstain may be supported by the fact that ‘the bulk
of the litigation would necessarily revolve around the state-law . . . rights of . . .
parties.’”) (quoting General Reins. Corp. v. Ciba-Geigy Corp., 853 F.2d 78, 82). The
Court finds the main dispute is centered on the state law issue, i.e. the foreclosure,
and thus favors abstention.
Adequacy of the State Forum to Protect the Plaintiff’s
The last factor is whether “the parallel state-court litigation will be an
adequate vehicle for the complete and prompt resolution of the issues between the
parties.” Moses H. Cone, 460 U.S. at 28; Niagara Mohawk Power Corp., 673 F.3d at
103 (citing this principle as the sixth factor); Gen. Star Intern. Indem., Ltd. v. Chase
Manhattan Bank, 57 F. App’x 892, 893 (2d Cir. 2003) (stating the sixth factor is
“whether the state procedures are adequate to protect the plaintiff’s federal rights”)
(emphasis added). Generally, the last factor is given little weight unless it weighs
in favor of federal jurisdiction. See Zemsky v. City of New York, 821 F.2d 148, 153
(2d Cir. 1987) (finding the sixth factor weighed in favor of exercising jurisdiction
because certain individuals were parties only in the federal action). Here, state
court is an appropriate vehicle for complete resolution because § 1624(e) entitles
a state court to adjudicate TILA claims, the TILA issue has already been decided in
state court, and the foreclosure matter is one for the state. See Credit-Based Asset,
658 F. Supp. 2d at 365-66 (finding the plaintiff “has the ability to vindicate its right
to foreclose in state court, and thus the state court proceedings adequately protect
[plaintiff’s] rights”). Although there does not appear to be any set state court date
in the near future, there is no indication that litigation would not proceed in a timely
fashion as it has before and accordingly there is reason to believe proceedings
would lead to a full and prompt resolution. Moreover, these cases involve identical
parties and therefore all federal parties will be able to resolve their issues in state
court. See F.D.I.C., 178 F.3d at 102 (acknowledging with respect to the sixth factor
that “RBS, the true party in interest, is not a party to the state action” and would
therefore not have its rights protected outside of federal court). Aside from Server,
Jr.’s disagreement with the state court ruling, which he can but has not appealed,
Server, Jr. has not shown any basis for this Court to conclude that his rights cannot
receive adequate consideration and resolution in state court proceedings.
Additional Consideration: Forum Shopping
As noted above, courts in this circuit may consider other factors apart from
those outlined by the Second Circuit. One such factor is that which the Ninth
Circuit expressly considers: “whether exercising jurisdiction would promote forum
shopping.” Holder v. Holder, 305 F.3d 854, 870 (9th Cir. 2002). As a general matter,
a court will generally defer to the plaintiff’s choice of forum. See Gross v. British
Broadcasting Corp., 386 F.3d 224, 230 (2d Cir. 2004); Young Pharm., Inc. v.
Marchese, No. 3:15-CV-516(VLB), slip op. at *5 (D. Conn. Feb. 6, 2017). However,
with respect to the Colorado River doctrine courts within this circuit echo the Ninth
Circuit’s concern that plaintiffs should not be able to forum-shop, particularly when
it is in an effort to circumvent state court proceedings already underway. See, e.g.,
L. Harbert, Inc., 1997 WL 539778, at *4 (“The strong policy against allowing a
plaintiff to manipulate our system of parallel courts by filing in federal court once
he or she has already filed in state court also favors abstention. In this case,
Harbert's filing of a complaint in federal court appears to be a thinly veiled attempt
to remove its case to federal court, in violation of the well-established policy
against such forum-shopping tactics.”); DLJ Mortg. Capital, Inc. v. Kontogiannis,
No. 10-civ-9092 LTS, 2011 WL 611836, at *3 (S.D.N.Y. Feb. 17, 2011) (“The interests
of efficiency and judicial economy would clearly be served, and forum-shopping
(however indirect) discouraged, by remand of this action to state court for prompt
continuation of the previously-pending proceedings.”); Lorentzen v. Levolor Corp.,
754 F. Supp. 987, 993 (S.D.N.Y. 1990) (finding that “it was plaintiff who chose to
trigger the jurisdiction of the state court in this matter” and that filing in federal
court “appears to be an attempt by plaintiff to change his original choice of forum
in violation of the federal policy against plaintiff removal and forum-shopping”).
As the Supreme Court noted in the abstention context, “a party may not procure
federal intervention by terminating the state judicial process prematurely—
foregoing the state appeal to attack the trial court’s judgment in federal court.”
New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369
This is exactly what Server, Jr. has done.
Accordingly, Server, Jr.’s
apparent desire to bypass the state court proceedings and litigate in federal court
is the type of forum shopping that should not be encouraged.
In addition, for purpose of the choice of forum analysis, Nation Star and not
Sever, Jr., is the true plaintiff. Nation Star initiated the prior pending foreclosure
proceeding in state court. Sever Jr. seeks to circumvent that choice and the rulings
entered in Nation Star's chosen forum by filing this parallel case.
In weighing all the factors and taking into consideration the fact that the two
most important factors—the res, the need to avoid piecemeal litigation—weigh
heavily in favor of abstention, as well and forum shopping and abuse of judicial
process, the Court therefore abstains from exercising subject matter jurisdiction
over this case on Colorado River grounds. For the aforementioned reasons,
Defendant’s Motion for to Dismiss is GRANTED. The Clerk is directed to close this
IT IS SO ORDERED.
_ ______ /s/ ______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 20, 2017
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