EDGE INVESTMENT, LLC v. DISTRICT OF COLUMBIA et al

Filing 52

MEMORANDUM OPINION AND ORDER granting in part Defendant District of Columbia Water and Sewer Authority's 23 and Defendant George S. Hawkins' 28 Motions to Stay or Dismiss. The case is hereby stayed until further order of the Court. See Opinion for details. Signed by Judge Timothy J. Kelly on 3/30/2018. (lctjk3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EDGE INVESTMENT, LLC,
Plaintiff,
v.

Civil Action No. 17-621 (TJK)

DISTRICT OF COLUMBIA et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This case involves a dispute between Plaintiff Edge Investment, LLC (“Edge”), a
building construction company, and Defendants, various District of Columbia entities and their
contractors. Defendants razed a building constructed by Edge, claiming that the building had
damaged an underground sewer. A lawsuit addressing the same dispute and many of the same
claims as this case is well into discovery in the Superior Court of the District of Columbia (the
“Superior Court”). Before the Court are Defendant District of Columbia Water and Sewer
Authority’s (“D.C. Water”) and Defendant George S. Hawkins’ Motions to Stay or Dismiss. For
the reasons described below, the Court will grant these motions in part and stay the case pursuant
to the Colorado River doctrine.
Background
A.

Factual Background

For purposes of these motions, the Court assumes the truth of the facts set forth in Edge’s
complaint. The Northeast Boundary Tunnel Sewer (the “NEBTS”) is an underground waste and
storm sewer. ECF No. 1 (“Compl.”) ¶¶ 15, 28. D.C. Water is authorized to operate the NEBTS
on behalf of the District of Columbia (the “District”). Id. ¶¶ 15-16.

On April 10, 2013, the D.C. Department of Consumer and Regulatory Affairs (“DCRA”)
issued a building permit authorizing construction of a three-story residential building on a lot
(the “Lot”) located near the H Street corridor. Id. ¶¶ 3, 24. The NEBTS runs approximately
thirteen feet below the Lot. Id. ¶ 18. In May 2013, Edge purchased both the Lot and the
approved building permit. Id. ¶ 39. Prior to doing so, Edge obtained a title report, which did not
identify any easement granting authority to access or operate an underground sewer tunnel on the
Lot. Id. ¶ 38.
On May 22, 2013, one of Edge’s construction managers placed a call, as required by the
Underground Facilities Protection Act (“UFPA”), D.C. Code § 34-2701 et seq., to the District of
Columbia’s “one-call center” to provide notice about upcoming excavation on the Lot and
request information about any conflicts. Id. ¶¶ 46, 49. A contractor for D.C. Water, Pinpoint
Underground, LLC (“Pinpoint”), subsequently provided a “Clear/No Conflict” response to
Edge’s request. Id. ¶¶ 52-54, 56-58. Having been given the green light, Edge began
construction on the new building (the “Building”). Id. ¶ 67.
In November 2013, a third party submitted paperwork to D.C. Water to obtain approval
for water and sewer service at the Building on the Lot. Id. ¶ 72. On December 2, 2013, a D.C.
Water employee responded via email that construction over the NEBTS would be very costly.
Id. ¶ 73. That was when Edge first learned that the NEBTS ran under the Lot. Id.
In light of this development, the parties hired experts to assess what harm, if any, the
Building might cause to the NEBTS. Edge submitted engineering reports to D.C. Water in
December 2013 and March 2014, which concluded that the Building did not present any danger
to the NEBTS. Id. ¶ 98. And D.C. Water had inspectors visit the site on July 31, 2014, who
reported no damage to the NEBTS under the Lot. Id. ¶ 103. But D.C. Water claims that later

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inspections revealed a crack in the NEBTS, and that an engineering firm it hired concluded that
demolition of the Building was one way to protect the NEBTS. Id. ¶¶ 108-109.
Edge alleges that, on or around December 2014, D.C. Water, DCRA, and others formed a
conspiracy to quickly raze the Building without providing Edge adequate due process. Id. ¶ 111.
On January 8, 2015, DCRA issued a Notice to Revoke the permits for the Building. Id. ¶ 118.
Next, DCRA issued a Notice of Intent to Raze a Residential Structure on January 22 (which was
later withdrawn), id. ¶¶ 122-133; another on January 29 (also later withdrawn), id. ¶¶ 126, 151;
and, finally, another on April 22, 2015, id. ¶ 152. The Building was razed on May 18, 2015, by
Celtic Demolition, Inc. (“Celtic”), a contractor for D.C. Water. Id. ¶ 156. Edge alleges that D.C.
Water lacked the authority to raze the Building and that it did not receive adequate due process
before the Building was razed. See id. ¶¶ 158-160, 166-174.
In September 2015, after the Building had been razed, DCRA placed two liens totaling
approximately $3.65 million on the Lot, which represented the costs of demolishing the Building
and repairing the NEBTS. Id. ¶¶ 204-213.
B.

Procedural Background
1.

Superior Court Proceedings

On January 8, 2016, D.C. Water brought suit in Superior Court (the “Superior Court
Action”) seeking damages for harm caused to the NEBTS. See D.C. Sup. Ct. Case No. 2016 CA
000187 B (“Sup. Ct. Dkt.”). In its complaint, D.C. Water asserted negligence claims against
nine defendants, including Edge and the District of Columbia. Compl. ¶ 216. Several
defendants moved to dismiss in February and March 2016; those motions were denied, and D.C.
Water filed an amended complaint with leave of the court on April 18, 2016. See ECF No. 23 at
6; Sup. Ct. Dkt. Again, several defendants moved to dismiss the amended complaint, and Edge
filed both a partial motion to dismiss and a motion for partial summary judgment. Sup. Ct. Dkt.
3

In June 2016, Edge’s motion for partial summary judgment was denied, and discovery
proceeded. Id. In September 2016, the Superior Court granted the District’s motion to dismiss,
but all other motions to dismiss were denied, at least in part. Id. In December 2016, the District
of Columbia removed the Superior Court Action to federal court. See D.C. Water & Sewer Auth.
v. First Hand Land, LLC et al., No. 1:16-cv-02456-ABJ (D.D.C.) (“Removed Case Dkt.”). After
D.C. Water filed a motion to remand, the District of Columbia notified the court it did not
oppose remand, and the court remanded the case to Superior Court in March 2017. Removed
Case Dkt., ECF No. 32.
Multiple parties have filed counterclaims and third-party complaints in the Superior
Court Action. On October 24, 2016, Edge filed counterclaims against D.C. Water. Id. On
February 1, 2017, Edge filed amended counterclaims, alleging violations of substantive due
process and procedural due process, conspiracy to violate Edge’s due process rights, an
unconstitutional taking, trespass, negligence under the UFPA, and inverse condemnation under
the Fifth Amendment to the U.S. Constitution. See Removed Case Dkt., ECF No. 22. Also, on
November 7, 2016, Edge filed a third-party complaint against the District, asserting many of the
same claims. See Removed Case Dkt., ECF No. 11 at 162-78. Edge filed an amended thirdparty complaint on February 2, 2017, alleging violations of substantive due process and
procedural due process, conspiracy to violate Edge’s due process rights, an unconstitutional
taking, trespass, inverse condemnation under the Fifth Amendment to the U.S. Constitution, and
action to quiet title. Removed Case Dkt., ECF No. 23; Sup. Ct. Dkt.1 The District filed an

1

On April 17, 2017, Edge filed a motion in the Superior Court Action to stay its counterclaims
pending their resolution in federal court. Sup. Ct. Dkt. On September 1, 2017, that motion was
denied. Id.
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answer on October 15, 2017. Sup. Ct. Dkt. D.C. Water also filed a complaint against Pinpoint
that was consolidated with the Superior Court Action. Id.
On November 17, 2017, Superior Court Judge John Mott issued an order on D.C. Water’s
motion to dismiss Edge’s amended counterclaims. Id. Judge Mott dismissed Edge’s claim for
negligence under the UFPA, but denied the motion as to the other six claims. Id. On January 12,
2018, Judge Laura Cordero, to whom the case had been reassigned, issued a revised Scheduling
Order that set deadlines for expert reports (May 4 and July 6, 2018), the close of discovery
(September 14, 2018), deciding dispositive motions (November 9, 2018), and the conclusion of
mediation (November 20, 2018). Id.
2.

The Instant Case

On April 6, 2017, Edge filed this complaint against the District of Columbia, D.C. Water,
Celtic, and a number of individuals employed by D.C. Water and DCRA. See Compl. ¶¶ 4-14.
The complaint alleges 13 causes of action against one or more of the Defendants: violation of
substantive due process and procedural due process; conspiracy to violate due process rights; an
unconstitutional taking; inverse condemnation; two counts alleging violations of the Racketeer
Influenced and Corrupt Organizations (“RICO”) Act; a request for a declaratory judgment;
negligent supervision; negligence under the UFPA; trespass; action to quiet title; and a request
for injunctive relief. Id. ¶¶ 251-370. Edge had already brought most, but not all, of these causes
of action in the Superior Court Action; its new causes of action include the two RICO claims.
Edge’s complaint in this case also adds Celtic and a number of D.C. Water and DCRA
employees in their personal capacities as defendants.

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Presently before the Court are motions to stay the case pursuant to the Colorado River
abstention doctrine or, alternatively, to dismiss the case, filed by D.C. Water, ECF No. 23, and
Defendant George S. Hawkins, ECF No. 28.2
Legal Standard
Even if other abstention doctrines do not apply, “a district court may nonetheless exercise
its discretion and decline to hear a case that is otherwise properly before it based on the
principles the Supreme Court set forth in Colorado River.” Atkinson v. Grindstone Capital, LLC,
12 F. Supp. 3d 156, 161 (D.D.C. 2014). “In Colorado River, the Supreme Court explained that
where there are two courts with concurrent jurisdiction over the same matter, the decision to
abstain from an exercise of jurisdiction may sometimes rest on considerations of ‘[w]ise judicial
administration, giving regard to conservation of judicial resources and comprehensive
disposition of litigation.’” Id. (alteration in original) (quoting Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976)).3
2

In considering these motions, the Court evaluated Edge’s Complaint, Compl.; D.C. Water’s
Motion to Stay or Dismiss, ECF No. 23 (“D.C. Water Stay Mot.”); George S. Hawkins’ Motion
to Stay or Dismiss, ECF No. 28; Plaintiff’s Corrected Combined Opposition to the Motion to
Stay/Dismiss Filed by D.C. Water and George Hawkins, and to the Motion to Dismiss Filed by
the District Defendants, ECF No. 38 (“Edge Opp.”), D.C. Water’s Reply, ECF No. 40; and
Hawkins’ Reply, ECF No. 41. Celtic and the District of Columbia also have motions to dismiss
for failure to state a claim pending. See ECF Nos. 21, 24.

3

Edge’s complaint seeks damages, injunctive relief, and declaratory relief. Compl. ¶¶ 251-370.
While Colorado River controls when plaintiffs seek damages or injunctive relief, some courts
have applied a different test if plaintiffs seek declaratory relief: “a district court has broad
discretion to stay the federal action as long as the necessary parties have been joined in the state
court proceeding and the claims of all parties in interest can satisfactorily be adjudicated by that
tribunal.” Mass. Biologic Labs. of the Univ. of Massachusetts v. MedImmune, LLC, 871 F. Supp.
2d 29, 33 (D. Mass. 2012) (citing Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942);
Wilton v. Seven Falls Co., 515 U.S. 277, 281-90 (1995)). The circuits are split, and the D.C.
Circuit has not spoken, on which test—Colorado River or Brillhart/Wilton—governs when
plaintiffs seek both forms of relief, as here. Id. at 33-35 (reviewing the split). The Court need
not wade into this morass because it concludes that abstention is appropriate under the more
stringent Colorado River test.
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In most circuits, “[i]n order to decide whether the Colorado River doctrine applies to a
particular case, [a court] must first determine whether the concurrent state and federal lawsuits
are parallel.” TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 591 (7th Cir. 2005); see also
Ambrosia Coal & Const. Co. v. Pages Morales, 368 F.3d 1320, 1330 & n.21 (collecting cases).
The D.C. Circuit “has yet to address” whether this threshold inquiry is required in this Circuit
and, if so, the standard for it. Saddler v. AMEC Foster Wheeler Env’t & Infrastructure, Inc., 253
F. Supp. 3d 210, 219 (D.D.C. 2017). Nevertheless, the Court will assume that this requirement
applies. If actions are deemed parallel, then a district should consider the following factors
“when deciding whether it will abstain in favor of letting the case proceed in the other forum: [1]
which court first obtained jurisdiction over the property in dispute, if any; [2] any inconvenience
that might result from litigating in a federal forum; [3] which court first obtained jurisdiction
over the case; [4] the desirability of avoiding piecemeal litigation; [5] whether federal or state
law controls; and [6] whether the state law forum will adequately protect the interests of the
parties.” Atkinson, 12 F. Supp. 3d at 161.
“In the district court’s analysis, ‘[n]o one factor is necessarily determinative; [but] a
carefully considered judgment taking into account both the obligation to exercise jurisdiction and
the combination of factors counselling against that exercise is required.’” Handy v. Shaw,
Bransford, Veilleux & Roth, 325 F.3d 346, 353 (D.C. Cir. 2003) (alterations in original) (quoting
Colo. River, 424 U.S. at 818-19). “[O]nly truly ‘exceptional circumstances’ will allow a federal
court to stay or dismiss a federal action in favor of a concurrent action before a state court.” Id.
(quoting Hoai v. Sun Ref. & Mktg. Co., 866 F.2d 1515, 1518 (D.C. Cir. 1989)). Indeed, the
balance is “heavily weighted in favor of the exercise of jurisdiction” because “the federal courts
have a ‘virtually unflagging obligation . . . to exercise the jurisdiction given them.’” Moses H.

7

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15-16 (1983) (quoting Colo. River,
424 U.S. at 817).
The Court will first address the threshold question of whether these proceedings are
“parallel,” and then evaluate each of the Colorado River factors.
A.

Parallel Proceedings

While the D.C. Circuit has not addressed how similar two cases must be to support
abstention under Colorado River, several other circuits have answered this question by requiring
that the “federal and state proceedings involve substantially the same parties and substantially
the same issues.” Ambrosia Coal, 368 F.3d at 1330 & n.21 (collecting cases). “This does not
mean that the suits must be ‘identical,’ or that ‘the mere presence of additional parties or issues
in one of the cases will . . . necessarily preclude’ application of Colorado River abstention.”
Saddler, 253 F. Supp. 3d at 219 (quoting AAR Int’l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510,
518 (7th Cir. 2001)).
Here, although Edge adds some new claims and parties to its federal court complaint, the
Court concludes that the cases are “substantially the same” for the purposes of Colorado River
abstention.
1.

Substantially Similar Issues

The vast majority of the claims that Edge asserts in federal court were also asserted in the
Superior Court Action. Compare Compl., with Removed Case Dkt., ECF Nos. 22, 23. But its
federal complaint adds two RICO claims, a negligent supervision claim, and a request for a
declaratory judgment that various state laws and federal constitutional rights were violated.
Compl. ¶¶ 293-328, 335-342. It also asserts an action to quiet title against D.C. Water and the
District, even though it only asserted that claim against the District in the Superior Court Action.
See id. ¶¶ 361-365; Removed Case Dkt., ECF Nos. 22, 23.
8

Despite these new claims, the Court concludes that the issues the two cases present are
substantially similar. Both cases arise from the same core set of facts—D.C. Water’s and
DCRA’s actions leading up to the razing of Edge’s Building. And both the Superior Court
Action and this case share the same central questions, including what process Edge received
before the Building was razed, whether there was an agreement between DCRA and D.C. Water
to harm Edge, and whether DCRA had the authority to raze the Building. Compl. ¶¶ 251-285,
329-334. Although the claims in the federal case are not identical to those in the Superior Court
Action, the Court nevertheless concludes that the cases raise similar issues, and therefore are
parallel, because they “will be resolved largely by reference to the same evidence.” Tyrer v. City
of S. Beloit, 456 F.3d 744, 752-53 (7th Cir. 2006); see also Freed v. Friedman, 215 F. Supp. 3d
642, 649 (N.D. Ill. 2016) (finding actions parallel where the claims differed but “the underlying
factual disputes overlap considerably”).
Edge’s new RICO claims do not render the cases dissimilar for the purposes of Colorado
River abstention because “the RICO claim is based on many of the same facts at issue in the state
action.” Foxfield Villa Assocs., LLC v. Regnier, 918 F. Supp. 2d 1192, 1198 (D. Kan. 2013); see
also Waddell & Reed Fin., Inc. v. Torchmark Corp., 180 F. Supp. 2d 1235, 1240 (D. Kan. 2001)
(finding cases parallel where the federal case “includes a RICO claim against [defendant], but
that claim arises from many of the same facts as the claims asserted in the [state] case”).
It is also worth noting that Edge could have brought its RICO, negligent supervision, and
declaratory judgment claims in the Superior Court Action, but chose not to do so. See Tafflin v.
Levitt, 493 U.S. 455, 460 (1990) (federal and state courts have concurrent jurisdiction over civil
RICO claims); McIntosh v. Washington, 395 A.2d 744, 749 (D.C. 1978) (“The Superior Court
has authority to award declaratory judgments in cases within the jurisdiction of that court.”).

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Many courts have held that parties cannot create non-parallel actions for purposes of a Colorado
River analysis by choosing not to bring counterclaims in state court and saving them for their
federal action. See, e.g., Compass Bank v. Eager Rd. Assocs., LLC, No. 4:10-cv-413, 2011 WL
3794257, at *3 (E.D. Mo. Aug. 25, 2011) (“[T]he Court agrees with Defendants that Compass’
failure to allege a compulsory counter-claim in the State Action does not preclude application of
the Colorado River abstention doctrine here.”); CFI of Wis., Inc. v. Wilfran Agric. Indus., Inc.,
No. 2:99-cv-1322, 1999 WL 994021, at *2 (E.D. Pa. Nov. 2, 1999) (“Courts have held that two
actions are parallel even though a party must amend its pleadings in the state court to raise all
claims.”) (collecting cases); Allied Nut & Bolt, Inc. v. NSS Indus., Inc., 920 F. Supp. 626, 630
(E.D. Pa. 1996) (“[W]hen a defendant in a state-court action fails to assert . . . a counterclaim
based upon the same transaction or occurrence as the claim against them[], and instead brings
that claim in federal court, the two cases are generally not meaningfully different.”) (collecting
cases).
2.

Substantially Similar Parties

The parties to the actions are also similar. Specifically, Edge, D.C. Water, and the
District are the central parties to Edge’s claims in both of the actions. In its federal complaint,
however, Edge adds Celtic and a number of D.C. Water and DCRA employees, sued in their
individual capacities, as defendants.
The Court finds that these differences, too, are insufficient to defeat parallelism. Merely
adding government employees, even if sued in their individual capacities, to a lawsuit against a
city is not enough to avoid application of Colorado River. See Tyrer, 456 F.3d at 752 n.9
(“Significantly, the City of South Beloit is a defendant in both the state and the federal action;
that [plaintiff] also named the City Council members as defendants [in their individuals
capacities] in his state suit does not undermine the conclusion that [plaintiff’s] federal suit raises
10

the same claims against the City that are being litigated currently in his state action.”); Foxfield,
918 F. Supp. 2d at 1197 (“Plaintiffs cannot avoid application of the Colorado River doctrine
simply by adding additional parties in the federal suit—especially when the additional parties are
so closely affiliated with the defendant present in both cases.”).
Moreover, that Edge chose not to file a third-party complaint against Celtic, despite
having the ability to do so, should not be a basis to find the cases are not parallel. See Knight v.
DJK Real Estate Grp., LLC, No. 1:15-cv-5960, 2016 WL 427614, at *5 (N.D. Ill. Feb. 4, 2016)
(finding parallelism where differences between parties were due to “unilateral choice” of
plaintiff). Indeed, “[i]f the rule were otherwise, the Colorado River doctrine could be entirely
avoided by the simple expedient of naming additional parties.” Romine v. Compuserve Corp.,
160 F.3d 337, 340 (6th Cir. 1998) (quoting Lumen Constr., Inc. v. Brant Constr. Co. Inc., 780
F.2d 691, 695 (7th Cir. 1985)).
B.

The Colorado River Factors

Having concluded that the Superior Court Action and this case are parallel, the Court
turns to the Colorado River factors. While the Court recognizes that it has a “virtually
unflagging obligation” to exercise its jurisdiction, Colo. River, 424 U.S. at 817, it concludes that
this case presents “exceptional circumstances” justifying a stay. See Handy, 325 F.3d at 351.
1.

Which Court First Obtained Jurisdiction over the Property in Dispute

The parties agree that this factor is irrelevant because the case does not involve in rem
jurisdiction over property. D.C. Water Stay Mot. at 9; Edge Opp. at 26.4

4

Some circuits have held that factors that are “irrelevant” or “neutral” should weigh in favor of
the federal court exercising jurisdiction, while others have not. Compare Woodford v. Cmty.
Action Agency of Greene Cty., Inc., 239 F.3d 517, 522 (2d Cir. 2001) (“[T]he facial neutrality of
a factor is a basis for retaining jurisdiction, not for yielding it.”), with Rajaratnam v. Bd. of Trs.
of Leland Stanford Junior Univ., No. 16-cv-07413, 2017 WL 2840716, at *3 (N.D. Cal. July 3,

11

2.

Any Inconvenience That Might Result from
Litigating in a Federal Forum

The parties also agree that this factor is neutral because the Superior Court and this Court
are located across the street from one another. D.C. Water Stay Mot. at 9; Edge Opp. at 26; see
Saddler, 253 F. Supp. 3d at 220 (explaining this factor “does not support abstention” because
“the physical distance between this Court and the D.C. Superior Court is closer to 300 feet than
300 miles”) (emphasis omitted).
3.

Which Court First Obtained Jurisdiction over the Case

This factor weighs heavily in favor of abstention. The Superior Court Action was filed
first. D.C. Water filed it on January 1, 2016, and Edge filed its counterclaims on October 24,
2016. Sup. Ct. Dkt. The instant action was not filed until April 6, 2017, thirteen months after
the Superior Court Action and about six months after Edge filed its counterclaims in that case.
The Court acknowledges that once the Superior Court Action was remanded back to Superior
Court, Edge filed this action soon afterward. Nonetheless, the fact remains that the Superior
Court Action was filed first.
More importantly, the Supreme Court has instructed that this factor “is to be applied in a
pragmatic, flexible manner with a view to the realities of the case at hand,” and “priority should

2017) (noting “courts in the Ninth Circuit have treated neutral factors as irrelevant” to question
of whether to retain jurisdiction) (collecting cases). The D.C. Circuit has not spoken on the
issue. Consistent with other district courts in this Circuit, the Court does not treat factors that are
neutral or irrelevant as weighing in favor of exercising jurisdiction. See, e.g., Atkinson, 12 F.
Supp. 3d at 162 (“[T]he parties agree that their dispute does not concern property, and as a result,
that the first factor is irrelevant to the Court’s abstention decision.”); 1443 Chapin St., LP v. PNC
Bank, Nat’l Ass’n, 718 F. Supp. 2d 78, 83 n.2 (D.D.C. 2010) (“As this case does not involve in
rem jurisdiction, this factor is irrelevant to the Court’s inquiry.”); Foster-el v. Beretta U.S.A.
Corp., 163 F. Supp. 2d 67, 71 (D.D.C. 2001) (“[T]his first factor does not weigh in favor of or
against abstention.”). And even if these neutral or irrelevant factors must be deemed to tip
slightly in favor of exercising jurisdiction by default, the Court concludes that they are
outweighed by factors three through five, which, taken together, provide a strong case for
abstention.
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not be measured exclusively by which complaint was filed first, but rather in terms of how much
progress has been made in the two actions.” Moses H. Cone, 460 U.S. at 21. Here, not only was
the Superior Court Action filed first, it is significantly ahead of this case. On November 17,
2017, Judge Mott issued a decision on D.C. Water’s motion to dismiss Edge’s amended
counterclaims, denying it as to six of the seven counterclaims. Sup. Ct. Dkt. And on January 12,
2018, Judge Cordero issued a revised Scheduling Order that established deadlines over the next
year for expert disclosure, the end of discovery, dispositive motions, and mediation. Id. Expert
reports, to take one example, are due in little over a month from now. Id. Thus, the Superior
Court Action is well ahead of this case, which is still at the motion to dismiss stage. As such,
this factor weighs strongly in favor of abstention.
4.

The Desirability of Avoiding Piecemeal Litigation

Courts have explained that “[p]iecemeal litigation occurs when different tribunals
consider the same issue, thereby duplicating efforts and possibly reaching different results.”
Saddler, 253 F. Supp. 3d at 221 (quoting Foster-el, 163 F. Supp. 2d at 71); see also Hurley v.
Heilig, 28 F. Supp. 2d 33, 35 (D.D.C. 1998) (“Having the parties litigate identical questions of
law applied to identical facts in two separate forums could result in contradictory or, at a
minimum, irreconcilable rulings.”). Other courts have noted that,“for this factor to weigh in
favor of abstention, something more than duplicative litigation must exist.” Atkinson, 12 F.
Supp. 3d at 164 (collecting cases). Indeed, “[t]here must be an actual risk of piecemeal litigation
if the matter proceeds in two locations, such as when the parallel actions involve different parties
or claims,” not just cases that “are ‘mirrors’ of one another.” Id. (quoting Johnston Lemon & Co.
v. Smith, 882 F. Supp. 4, 5 (D.D.C. 1995)); see also Dalzell Mgmt. Co. v. Bardonia Plaza, LLC,
923 F. Supp. 2d 590, 599-600 (S.D.N.Y. 2013) (“‘[T]he mere potential for conflicting
outcome[s] between the two actions does not justify abstention under the piecemeal litigation
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factor.’ . . . Abstention is ‘more appropriate’ when the parties to the state and federal actions are
‘not identical’ as there is a ‘possibility that the parties who are not bound by the prior judgment
may cause inconsistent judgments in subsequent lawsuits.’” (quoting Shields v. Murdoch, 891 F.
Supp. 2d 567, 582-83 (S.D.N.Y. 2012))).
Here, the Court concludes that permitting the Superior Court Action and this case to
proceed in tandem will result in piecemeal litigation, and thus this factor strongly favors
abstention. All of the counterclaims that Edge asserted in the Superior Court Action were also
asserted as claims in this case. Compare Compl., with Removed Case Dkt., ECF No. 22. Given
that Judge Mott has already ruled on a motion to dismiss Edge’s counterclaims, deciding D.C.
Water’s motion to dismiss in this Court would involve “different tribunals consider[ing] the
same issue, thereby duplicating efforts and possibly reaching different results.” Saddler, 253 F.
Supp. 3d at 221 (quoting Foster-el, 163 F. Supp. 2d at 71). Moreover, that Edge added RICO
claims to its federal case also does not lessen the risk of duplication between proceedings. See
Foxfield, 918 F. Supp. 2d at 1199 (“Granted, plaintiffs have added new defendants and a RICO
claim to this litigation; nonetheless, the issues and factual circumstances in both cases are nearly
identical. Duplication of proceedings would waste the resources of both the parties and the
court.”).
In fact, Edge’s decision to add some new claims (RICO, declaratory judgment, negligent
supervision) and defendants (Celtic, individual D.C. Water and DCRA employees) to this case
increases the risk of piecemeal litigation because the Superior Court Action and this case are not
just “mirrors” of one another. As a result, there is a significant risk of piecemeal litigation
because the cases “pose[] a risk of inconsistent outcomes not preventable by principles of res
judicata and collateral estoppel.” First Keystone Consultants, Inc. v. Schlesinger Elec.

14

Contractors, Inc., 862 F. Supp. 2d 170, 189 (E.D.N.Y. 2012) (citing Woodford, 239 F.3d at 524).
For example, the Superior Court’s conclusion as to whether Edge can maintain a quiet title claim
against the District of Columbia may not have preclusive effect on its quiet title claim against
D.C. Water in this Court. Similarly, the Superior Court’s holding as to whether Edge stated a
counterclaim for trespass against D.C. Water and the District of Columbia may not resolve that
same claim against Celtic, who is not a party to the Superior Court Action, in this case.
Ultimately, the desirability of avoiding piecemeal litigation weighs strongly in favor of
abstention.
5.

Whether Federal Law or State Law Controls

The Supreme Court has explained that “[a]lthough in some rare circumstances the
presence of state-law issues may weigh in favor of . . . surrender, the presence of federal-law
issues must always be a major consideration weighing against surrender.” Moses H. Cone, 460
U.S. at 26 (citation omitted). “Such a rarity may arise where the state-law issues ‘present
particularly novel, unusual or difficult questions of legal interpretation’ that are best left to state
court resolution.” Nazario-Lugo v. Caribevision Holdings, Inc., 670 F.3d 109, 118 (1st Cir.
2012) (quoting Elmendorf Grafica, Inc. v. D.S. Am. (E.), Inc., 48 F.3d 46, 52 (1st Cir. 1995)).
This source-of-law factor has “less significance” when “the federal courts’ jurisdiction . . . is
concurrent with that of the state courts.” Moses H. Cone, 460 U.S. at 25.
Here, Edge’s federal complaint asserts a mix of federal and state law claims, including
RICO claims that are only asserted in its federal action. Compl. ¶¶ 251-370. Although Edge’s
federal claims would normally be “a major consideration weighing against surrender,” Moses H.
Cone, 460 U.S. at 26, the Court concludes that this factor favors abstention for two reasons.
First, the Superior Court has concurrent jurisdiction over all of Edge’s federal claims,
which are brought under the U.S. Constitution and RICO. See Bates v. Van Buren Twp., 122 F.
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App’x 803, 807 (6th Cir. 2004) (“[S]tate and federal courts have concurrent jurisdiction over
federal constitutional issues.”); Tafflin, 493 U.S. at 460 (concurrent jurisdiction over civil RICO
claims). As such, this reduces the importance of Edge’s federal law claims in the abstention
analysis. Indeed, courts have been willing to abstain under Colorado River in cases involving
RICO and federal constitutional claims. See, e.g., Mahbod v. N.Y. Life Ins. Co., No. 05-cv-3266,
2006 WL 2513423, at *4 (E.D. La. Aug. 25, 2006) (“[W]hile the presence of RICO claims is an
important factor, its significance is seriously diminished in light of the circumstances.” (internal
quotation marks omitted)); Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 815 F. Supp. 127,
132 (S.D.N.Y. 1993) (finding presence of RICO claims “has little significance” because plaintiff
can pursue them in state court); Canaday v. Koch, 608 F. Supp. 1460, 1474 (S.D.N.Y. 1985) (“In
an appropriate case, even the presence of a federal constitutional issue does not prevent
Colorado River abstention. . . . In this case, it is plain that the primary battleground is state law,
and unsettled state law at that. Clarification of that state law may well obviate the need for
decision of a constitutional issue.”), aff’d sub nom. Cannady v. Valentin, 768 F.2d 501 (2d Cir.
1985). That is particularly true when, as here, Edge brought its federal constitutional claims as
counterclaims in state court first. Cf. Tyrer, 456 F.3d at 757 (federal claims do not weigh in
favor of abstention where plaintiff “chose to bring his federal claims first in a state forum”).
Second, this is a “rare” case involving highly unusual state-law issues. Elmendorf
Grafica, 48 F.3d at 52. Edge’s complaint and the parties’ motion-to-dismiss briefing raise a
number of “novel, unusual, or difficult” questions of state law. Id. These include, for instance,
whether D.C. Code § 6-801 and D.C. Code § 42-3131, the two statutes cited in the raze notice of
April 22, 2015, provided the requisite authority to raze the Building, Edge Opp. at 36, 37 & n.13;
whether the Mayor properly delegated her legal authority to raze the Building to DCRA under

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D.C. Code §§ 6-801(a) and 42-3131.01(c), Compl. ¶¶ 156-160, 192, 331; whether D.C. Code
§ 6-801(a) required DCRA to conduct an examination of either the Building or the NEBTS
before razing the Building, Compl. ¶ 334(b); whether Edge is a member of the protected class
envisioned by the UFPA, D.C. Water Stay Mot. at 23-24 (an issue Judge Mott has already
decided in his November 17, 2017 Order, Sup. Ct. Dkt.); and whether the “public duty” doctrine
bars Edge’s negligent supervision claim against the District, ECF No. 24 at 35-36. These are
hardly “garden-variety” state-law issues. Saddler, 253 F. Supp. 3d at 220. Indeed, the Court was
unable to locate any published opinions addressing the legal issues flowing from the factual
scenario at issue here: a decision by the District of Columbia to raze a brand new building
shortly after approving its construction.
There are also state law issues embedded in many of Edge’s federal claims, such as
whether D.C. Water’s status under District of Columbia law as an independent authority shields
it from a federal constitutional takings claim, Edge Opp. at 47; whether Edge received proper
notice under D.C. Code § 6-903 when the condemnation order was recorded, Edge Opp. 35 at
n.11; and whether Edge has properly pleaded common law fraud, one of the predicate acts
alleged in the RICO claims, Compl. ¶¶ 301, 304. These too point in favor of abstention. See,
e.g., Godfrey v. Branstad, 56 F. Supp. 3d 976, 985-86 (S.D. Iowa 2014) (finding source-of-law
factor weighs “heavily” in favor of abstention because despite “federal constitutional claims . . .
[that] will be analyzed under the federal constitutional framework,” plaintiff’s due process
claims require interpreting state statutes “to determine whether [plaintiff] has a protected
property interest”). Thus, “[b]ecause this matter involves difficult—and perhaps novel—
questions of local law and policy, the source-of-law factor favors abstention.” Foster-el, 163 F.
Supp. 2d at 73; see also Arkwright-Boston Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205,

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211 (2d Cir. 1985) (abstaining under Colorado River in case involving “the construction of state
and municipal building, safety, and fire codes”).
6.

Whether the State Law Forum Will Adequately Protect the Interests
of the Parties

“The final Colorado River factor asks whether the state forum will adequately protect the
interests of the parties.” Atkinson, 12 F. Supp. 3d at 166; see also Moses H. Cone, 460 U.S. at 28
(factors asks whether “parallel state-court litigation will be an adequate vehicle for the complete
and prompt resolution of the issues between the parties”). “In other words, it questions whether
abstention will cause prejudice to a party’s rights.” Atkinson, 12 F. Supp. 3d at 166.
Edge argues that abstention will prejudice it for three reasons. It argues that it is entitled
to a federal forum, Edge Opp. at 31 (citing Hoai, 866 F.2d at 1520-21), that this Court has more
experience handling Edge’s federal claims, and that federal courts have enhanced subpoena
power that can reach third parties “outside the geographic reach” of a Superior Court subpoena,
id. at 31-32.
The Court finds these arguments unpersuasive. As to the first argument, the Superior
Court has concurrent jurisdiction over all of Edge’s federal claims. Bates, 122 F. App’x at 807;
Tafflin, 493 U.S. at 460. And many of the federal constitutional claims turn on state-law issues.
Moreover, “[s]tate courts, as much as federal courts, have a solemn obligation to follow federal
law.” Lumen, 780 F.2d at 697 (quoting Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S.
545, 571 (1983)); see also Ericksen v. Vill. of Willow Springs, 876 F. Supp. 951, 959 (N.D. Ill.
1995) (finding existence of concurrent jurisdiction over a Section 1983 claim “weighs strongly in
favor of abstention” because “[s]tate court action would have been adequate to protect
[plaintiff’s] federal rights”).

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As to the second argument, as explained above, this dispute largely turns on novel state
law questions that can be adequately addressed by the Superior Court. And most of Edge’s
federal claims are constitutional claims (such as due process, substantive due process, and
takings) that the Superior Court has concurrent jurisdiction over and frequently adjudicates.
Edge’s last argument is that it needs this Court’s “enhanced subpoena power” to reach
“foreign” companies that D.C. Water paid to repair and inspect the NEBTS. Edge Opp. at 31.
But Edge does not specify why the Superior Court process is inadequate, or provide any concrete
examples of entities that it cannot subpoena in the Superior Court Action. And because the
Court is only staying, not dismissing, the case, Edge retains the right to return to federal court if
necessary. See Mahaffey v. Bechtel Assocs. Prof’l Corp., D.C., 699 F.2d 545, 546-47 (D.C. Cir.
1983) (“[C]onsiderations of judicial economy are appropriately served by staying one of the
actions while the other progresses.”); Fox v. Maulding, 16 F.3d 1079, 1083 (10th Cir. 1994)
(“We think the better practice is to stay the federal action pending the outcome of the state
proceedings.”); Commercial Cas. Ins. Co. v. Swarts, Manning & Assocs., Inc., 616 F. Supp. 2d
1027, 1037 (D. Nev. 2007) (“[T]he choice of a stay rather than a dismissal will have no practical
effect if all the parties’ issues are resolved by the state proceeding. But if those issues are not
resolved, a stay ensures that the federal court will meet its unflagging duty to exercise its
jurisdiction in case the state proceedings do not reach the expected resolution.” (internal
quotation marks omitted)).
The Court also concludes that abstaining would not prejudice the Defendants. D.C.
Water has moved for a stay, and thus cannot argue that it would be prejudiced by abstention.
The District of Columbia did not oppose either D.C. Water’s request for a stay or its previous
motion to remand the Superior Court Action, suggesting that it does not feel that it will be

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prejudiced by litigating in Superior Court. And Celtic and the individual defendants, who are not
parties to the Superior Court Action, have not seen fit to explain why letting the Superior Court
Action proceed while this case is stayed will harm their interests.
Ultimately, the Court concludes that this factor is neutral because litigating this dispute
through the Superior Court Action will not prejudice the parties.
*

*

*

In sum, the Court concludes that factor one is irrelevant, factors two and six are neutral,
and factors three through five favor abstention. Thus, the Court concludes that this constitutes an
“exceptional circumstance” where abstention is warranted.
Conclusion and Order
For all of the above reasons, Defendants D.C. Water’s, ECF No. 23, and George S.
Hawkins’, ECF No. 28, Motions to Stay or Dismiss are GRANTED IN PART. The Court will
STAY this matter, pending further order of the Court, pursuant to the Colorado River abstention
doctrine. Of course, if circumstances materially change, any party to this action may move to lift
the stay.
SO ORDERED.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: March 30, 2018

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