Central Iowa Water Association v. City of Dubuque
Filing
17
ORDER granting 10 Motion to Dismiss. All proceedings in this case are stayed pending final resolution of the State Case, that is, City of Dubuque, Iowa v. Iowa Regional Utilities Association d/b/a Central Iowa Water Association, No. CVCV119397 (Ja sper County Dist. Ct. 2015); The Clerk of Court is directed to close this case for administrative purposes; The parties are directed to notify the court immediately upon the conclusion of the State Case; and upon receiving an appropriate motion to reopen the case, the court will commence further proceedings. Signed by Chief Judge Linda R Reade on 9/15/15. (ksy)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
CENTRAL IOWA WATER
ASSOCIATION,
Plaintiff,
No. 15-CV-1017-LRR
vs.
ORDER
CITY OF DUBUQUE,
Defendant.
____________________
TABLE OF CONTENTS
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . 2
A.
B.
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III.
SUBJECT MATTER JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . 4
IV.
ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A.
B.
C.
The Abstention Doctrines at Issue . . . . . . . . . . . . . . . . . . . . . . . . 4
1.
Colorado River abstention . . . . . . . . . . . . . . . . . . . . . . . . 5
2.
Wilton/Brillhart abstention . . . . . . . . . . . . . . . . . . . . . . . 8
3.
The Scottsdale abstention factors . . . . . . . . . . . . . . . . . . . 11
The Applicable Abstention Doctrine . . . . . . . . . . . . . . . . . . . . . . 12
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1.
Parallel proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.
The Wilton/Brillhart analysis . . . . . . . . . . . . . . . . . . . . . 17
3.
The Scottsdale factors analysis . . . . . . . . . . . . . . . . . . . . 20
a.
Usefulness of the declaratory judgment . . . . . . . . . . 20
b.
Whether the declaratory judgment affords
relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
c.
The strength of the state’s interest . . . . . . . . . . . . . . 20
d.
Whether the issues are more efficiently
resolved in state court . . . . . . . . . . . . . . . . . . . . . . 21
D.
V.
e.
Unnecessary entanglement . . . . . . . . . . . . . . . . . . .
f.
Procedural fencing . . . . . . . . . . . . . . . . . . . . . . . .
g.
Balance of findings . . . . . . . . . . . . . . . . . . . . . . .
4.
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dismissal or Stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
22
23
24
25
25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
I. INTRODUCTION
The matter before the court is Defendant City of Dubuque’s (“Dubuque”) “Motion
to Dismiss (Abstain or Stay) Proceedings” (“Motion”) (docket no. 10).
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Parties
Plaintiff Central Iowa Water Association (“CIWA”) is a non-profit rural water
association with its principal place of business in Newton, Iowa. Defendant City of
Dubuque is a city organized and existing under the laws of the State of Iowa.
B. Dispute
In December 2011, CIWA acquired the assets of Vernon Water Company’s public
water system. The Vernon water system is within two miles of the city limits of Dubuque.
CIWA borrowed money from the United States Department of Agriculture, Rural
Economic Community Development Service to invest in infrastructure in the rural
Dubuque County region. After acquiring the loan, CIWA has provided service to former
Vernon customers and has contracted with additional rural residents to provide water
service.
On April 16, 2015, Dubuque filed a petition for declaratory judgment in the Iowa
District Court for Jasper County (“State Case”), case no. CVCV119397 against CIWA.1
1
On July 2, 2015, Dubuque filed a Request for Judicial Notice along with all docket
filings in the State Case (docket no. 11). The court takes judicial notice of the State Case.
(continued...)
2
In the State Case, Dubuque seeks a declaratory judgment to prevent CIWA from providing
water service within two miles of Dubuque pursuant to Iowa Code § 357A.2. On May 18,
2015, CIWA filed an answer in the State Case and raised the following affirmative
defenses: (1) Dubuque fails to state a claim upon which relief can be granted; (2)
Dubuque’s claims are preempted by federal law; (3) Dubuque’s claims are barred by the
Iowa Constitution; (4) Dubuque’s claims are barred by the doctrines of laches, estoppel
and waiver; and (5) Dubuque’s claims are barred by the doctrine of unclean hands. In its
answer, CIWA also counterclaimed against Dubuque for: (1) a declaratory judgment
stating that CIWA is exempted from Iowa Code § 357A.2; and (2) a ruling that Iowa Code
§ 357A.2 violates the Iowa Constitution’s contracts clause.
On June 9, 2015, CIWA filed a Complaint (docket no. 2) against Dubuque for: (1)
a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 that CIWA is protected
by 7 U.S.C. § 1926(b); (2) a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and
2202 that 7 U.S.C. § 1926(b) preempts Iowa Code § 357A.2 or, alternatively, that
CIWA’s service is exempted from application of Iowa Code § 357A.2; (3) injunctive relief
enjoining Dubuque from providing water in the disputed territory; (4) attorney’s fees
pursuant to 42 U.S.C. § 1988 for violating 7 U.S.C. § 1926(b), applied to Dubuque via
42 U.S.C. § 1983; and (5) attorney’s fees pursuant to 42 U.S.C. § 1988 for violating the
Contracts Clause of the United States Constitution, applied to Dubuque via 42 U.S.C.
§ 1983. On July 2, 2015, Dubuque filed the Motion. On July 16, 2015, CIWA filed a
Resistance (docket no. 15). Dubuque asks for oral argument, but the court finds that oral
argument is not necessary. The Motion is fully submitted and ready for decision.
1
(...continued)
See Stutzka v. McCarville, 420 F.3d 757, 760 n.2 (8th Cir. 2005) (recognizing that court
“may take judicial notice of judicial opinions and public records”).
3
III. SUBJECT MATTER JURISDICTION
The court has federal question jurisdiction over the claims because they arise under
the United States Constitution and the United States Code. See 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”).
IV. ANALYSIS
In the Motion, Dubuque asks the court to dismiss, abstain or stay the instant action.
Dubuque argues that abstention is appropriate because of the pending State Case. CIWA
argues that abstention is not appropriate because the State Case and the instant action are
not parallel and the Colorado River factors weigh against abstention. The court first
discusses the legal principles governing abstention. The court then considers which
abstention doctrine is applicable to this case. Finally, the court applies the appropriate
abstention framework.
A. The Abstention Doctrines at Issue
Dubuque argues that the court should abstain from this action under the doctrine
proclaimed by the Supreme Court of the United States in Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800 (1976). Motion at 3. It also suggests in passing that,
due to the declaratory nature of the relief sought by CIWA, the court has discretion to
refuse to entertain a claim under the Supreme Court’s decision in Wilton v. Seven Falls
Co., 515 U.S. 277 (1995). Brief in Support of Motion (docket no. 10-1) at 10. CIWA
addresses Colorado River in its Resistance, but it does not respond to Dubuque’s allegation
that the court can refuse to hear its claims under the so-called Wilton/Brillhart abstention
doctrine. See Resistance at 5-11 (addressing Colorado River but not Wilton/Brillhart).
However, because Colorado River and Wilton/Brillhart have been raised, the court will
consider both doctrines in rendering its decision.
4
1.
Colorado River abstention
In Colorado River, the Supreme Court outlined the principles that govern federal
abstention due to pending state court proceedings. 424 U.S. at 817. The Court explained
that, “[g]enerally, as between state and federal courts, the rule is that the pendency of an
action in the state court is no bar to proceedings concerning the same matter in the
[f]ederal court having jurisdiction[.]” Id. (citation and quotation marks omitted). This
rule “stems from the virtually unflagging obligation of the federal courts to exercise the
jurisdiction given them.” Id. Accordingly, “the circumstances permitting the dismissal
of a federal suit due to the presence of a concurrent state proceeding for reasons of wise
judicial administration are considerably more limited than the circumstances appropriate
for abstention.” Id. at 818. The Court identified considerations a federal court should
weigh when confronted with a request to abstain due to pending state proceedings:
It has been held, for example, that the court first assuming
jurisdiction over property may exercise that jurisdiction to the
exclusion of other courts. . . . In assessing the appropriateness
of dismissal in the event of an exercise of concurrent
jurisdiction, a federal court may also consider such factors as
the inconvenience of the federal forum; the desirability of
avoiding piecemeal litigation; and the order in which
jurisdiction was obtained by the concurrent forums.
Id. (citations omitted).
The Court cautioned that “[n]o one factor is necessarily
determinative[.]” Id. “[A] carefully considered judgment taking into account both the
obligation to exercise jurisdiction and the combination of factors counseling against that
exercise is required.” Id. at 818-19. “Only the clearest of justifications will warrant
dismissal.” Id. at 819. In Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., the
Court explained two additional factors that should be addressed under Colorado River
abstention: whether federal or state law controls the dispute and the adequacy of the state
forum to protect the federal plaintiff’s rights. 460 U.S. 1, 23-27 (1983).
5
The Eighth Circuit Court of Appeals addressed Colorado River abstention in FruCon Constr. Corp. v. Controlled Air, Inc., 574 F.3d 527 (8th Cir. 2009). In Fru-Con, the
Eighth Circuit explained that, “[a]s a threshold matter, . . . there must be pending parallel
state and federal court proceedings before Colorado River is implicated.” Fru-Con, 574
F.3d at 535 (citing In re Burns & Wilcox, Ltd., 54 F.3d 475, 477 (8th Cir. 1995), limited
on other grounds by Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710-11 (1996)). The
Eighth Circuit observed that “[p]recedent establishing a comprehensive definition of
‘parallel proceedings’ for purposes of Colorado River abstention is scarce in this circuit.”
Id. “Although the [Eighth Circuit] has decided several cases involving such proceedings,
none has discussed the specific elements of parallelism.” Id. “The prevailing view is that
state and federal proceedings are parallel for purposes of Colorado River abstention when
substantially similar parties are litigating substantially similar issues in both state and
federal court.” Id. (emphasis in original). However, the Eighth Circuit concluded that
“[t]his circuit requires more precision” than other circuits. Id.
The pendency of a state claim based on the same general facts
or subject matter as a federal claim and involving the same
parties is not alone sufficient. Rather, a substantial similarity
must exist between the state and federal proceedings, which
similarity occurs when there is a substantial likelihood that the
state proceeding will fully dispose of the claims presented in
the federal court. This analysis focuses on matters as they
currently exist, not as they could be modified. Moreover, in
keeping with the Supreme Court’s charge to abstain in limited
instances only, jurisdiction must be exercised if there is any
doubt as to the parallel nature of the state and federal
proceedings.
Id. (citations omitted). “When any doubt exists as to the parallel nature of concurrent state
and federal proceedings, the district court cannot utilize Colorado River to refuse its
jurisdiction.” Cottrell v. Duke, 737 F.3d 1238, 1245 (8th Cir. 2013) (citing Fru-Con, 574
6
F.3d at 535). In addition, “when a party raises an exclusively federal claim, Colorado
River [abstention] is inappropriate.” Id. at 1248.
If there are pending parallel state and federal proceedings, a federal court may
divest itself of jurisdiction “only when . . . exceptional circumstances warrant abstention.”
Fru-Con, 574 F.3d at 534 (citing Colorado River, 424 U.S. at 817-18). The Eighth
Circuit delineated “[s]ix non-exhaustive factors [that] have been developed to determine
whether . . . exceptional circumstances warrant abstention.” Id. The court must consider:
(1) whether there is a res over which one court has established
jurisdiction, (2) the inconvenience of the federal forum, (3)
whether maintaining separate actions may result in piecemeal
litigation, unless the relevant law would require piecemeal
litigation and the federal court issue is easily severed, (4)
which case has priority—not necessarily which case was filed
first but a greater emphasis on the relative progress made in
the cases, (5) whether state or federal law controls, especially
favoring the exercise of jurisdiction where federal law
controls, and (6) the adequacy of the state forum to protect the
federal plaintiff’s rights.
Id. (quoting Mountain Pure, LLC v. Turner Holdings, LLC, 439 F.3d 920, 926 (8th Cir.
2006)).
These factors “are not intended to be exhaustive, nor are they to be mechanically
applied.” Federated Rural Elec. Ins. Corp. v. Ark. Elec. Coops., Inc., 48 F.3d 294, 297
(8th Cir. 1995). Instead, they should be “pragmatically applied in order to advance the
‘clear federal policy’ of avoiding piecemeal adjudication.” Id. (quoting Moses H. Cone,
460 U.S. at 16). The Eighth Circuit explained the proper application of the factors as
follows:
In examining these factors, “the balance [is] heavily weighted
in favor of the exercise of jurisdiction.” Moses H. Cone, 460
U.S. at 16. And: we emphasize that our task in cases such as
this is not to find some substantial reason for the exercise of
federal jurisdiction by the district court; rather, the task is to
7
ascertain whether there exist “exceptional” circumstances, the
“clearest of justifications,” that can suffice under Colorado
River to justify the surrender of that jurisdiction. Moses H.
Cone, 460 U.S. at 25-26 (emphasis in original).
Id. (alteration in original).
2.
Wilton/Brillhart abstention
In Brillhart v. Excess Ins. Co. of Am., the Supreme Court held that, although
district courts may have jurisdiction to hear declaratory judgment actions under the Federal
Declaratory Judgments Act, they were “under no compulsion to exercise that jurisdiction”
where similar state court proceedings are underway. 316 U.S. 491, 494 (1942). The
Court recognized that “[o]rdinarily it would be uneconomical as well as vexatious for a
federal court to proceed in a declaratory judgment suit where another suit is pending in a
state court presenting the same issues, not governed by federal law, between the same
parties.” Id. at 495. The Court warned against “[g]ratuitous interference” with state court
proceedings. Id. In doing so, the Court refused to enumerate a list of factors that district
courts should consider in exercising their discretion, but suggested that courts:
should ascertain whether the questions in controversy between
the parties to the federal suit, and which are not foreclosed
under the applicable substantive law, can better be settled in
the proceeding pending in the state court. This may entail
inquiry into the scope of the pending state court proceeding
and the nature of defenses open there. The federal court may
have to consider whether the claims of all parties in interest
can satisfactorily be adjudicated in that proceeding, whether
necessary parties have been joined, whether such parties are
amenable to process in that proceeding, etc.
Id. The Eighth Circuit considers the same factors in deciding whether to abstain under
Wilton/Brillhart. See, e.g., Royal Indem. Co. v. Apex Oil Co., 511 F.3d 788, 796 (8th
Cir. 2008) (quoting Brillhart); Scottsdale Ins. Co. v. Detco Indus., Inc., 426 F.3d 994,
997 (8th Cir. 2005) (quoting Brillhart); Evanston Ins. Co. v. Johns, 530 F.3d 710, 713
8
(8th Cir. 2008) (“The key consideration for the district court is ‘to ascertain whether the
issues in controversy between the parties to the federal action . . . can be better settled by
the state court’ in light of the ‘scope and nature of the pending state court proceeding.’”
(quoting Capitol Indem. Corp. v. Haverfield, 218 F.3d 872, 874 (8th Cir. 2000)).
Later, in Wilton v. Seven Falls Co., the Supreme Court considered whether
Colorado River and its progeny had supplanted the more discretionary Brillhart standard
in actions seeking declaratory judgments. 515 U.S. 277 (1995). The Court held that
Brillhart remained the appropriate standard. Id. at 287. The Court noted that “[d]istinct
features of the Declaratory Judgment Act [28 U.S.C. § 2201] . . . justify a standard
vesting district courts with greater discretion in declaratory judgment actions than that
permitted under the ‘exceptional circumstances’ test of Colorado River and Moses H.
Cone.” Id. at 286. The permissive language of the Declaratory Judgment Act indicates
the “statute’s textual commitment to discretion.” Id.; see also 28 U.S.C. § 2201(a)
(“[A]ny court of the United States, upon the filing of an appropriate pleading, may declare
the rights and other legal relations of any interested party seeking such declaration . . . .”
(emphasis added)). The Court also recognized its historical commitment to discretion
where declaratory judgments were before the court. Wilton, 515 U.S. at 287 (noting the
“breadth of leeway [the Court had] always understood [the Declaratory Judgment Act] to
suggest”). “In the declaratory judgment context, the normal principle that federal courts
should adjudicate claims within their jurisdiction yields to considerations of practicality and
wise judicial administration.” Id. at 288. In short, when faced with a question arising
under the Declaratory Judgments Act, a court has considerable discretion to abstain from
hearing the case pending resolution of a state court claim concerning the same parties and
subject matter.
As under Colorado River abstention, a court applying Wilton/Brillhart abstention
principles must make an initial finding that there are “parallel proceedings” in both state
9
and federal court. See Lexington Ins. Co. v. Integrity Land Title Co., Inc., 721 F.3d 958,
968 (8th Cir. 2013). According to the Eighth Circuit, “[s]uits are parallel if ‘substantially
the same parties litigate substantially the same issues in different forums.’” Id. (quoting
Scottsdale, 426 F.3d at 997 (internal citation omitted)). The Eighth Circuit explained that:
[t]hese descriptions are necessarily imprecise given the wide
array of issues—and varying articulations of similar
issues—that may arise in arguably related litigation. As a
functional matter, though, state proceedings are parallel if they
involve the same parties or if the same parties may be subject
to the state action and if the state action is likely to fully and
“satisfactorily” resolve the dispute or uncertainty at the heart
of the federal declaratory judgment action. [Brillhart, 316 U.S.
at 495] (describing the inquiry as “whether the questions in
controversy . . . can better be settled in the proceeding
pending in state court”). [Federal courts] may therefore
consider the likelihood that a state court will resolve the issues
later presented in federal court, and [] may also consider the
likely completeness of any such state-court resolution when
assessing whether the earlier-filed actions involve
“substantially the same issues.” Scottsdale, 426 F.3d at 997
(citation and internal quotation marks omitted).
Id.2 If the suits are parallel, the Wilton/Brillhart analysis applies and courts are given
considerable discretion to abstain from the federal case to avoid inefficient, vexatious and
gratuitous interference with pending state court proceedings.
2
The court specifically notes that the Eighth Circuit appears not to apply the stricter
Fru-Con parallel proceedings standard to abstentions arising out of Wilton/Brillhart
because it did not do so in Lexington Ins. Co. even though it had the opportunity. Fru-Con
was decided in 2009 and Lexington Ins. Co. was decided in 2013. Furthermore, because
the court’s discretion to abstain under Wilton/Brillhart is broader than it is under Colorado
River, the court feels that application of a less exacting standard regarding parallel
proceedings is appropriate. But see Nat’l Music Museum: Am.’s Shrine to Music v.
Johnson, 72 F. Supp. 3d 980, 985 (D.S.D. 2014) (applying the Fru-Con parallel
proceedings standard to an abstention motion arising out of Wilton/Brillhart).
10
3.
The Scottsdale abstention factors
The Supreme Court in Wilton expressly limited the application of the
Wilton/Brillhart discretionary standard to those cases in which parallel proceedings are
pending in state court. Wilton, 515 U.S. at 290; accord Scottsdale, 426 F.3d at 996. The
Eighth Circuit, in Scottsdale Ins. Co. v. Detco Indus., Inc., declared the standard courts
will apply in deciding whether to abstain from a case requesting declaratory judgments
when there are no parallel state and federal proceedings for purposes of Wilton/Brillhart.
426 F.3d at 998. The Eighth Circuit held that the broad discretion granted under
Wilton/Brillhart was inappropriate where parallel federal and state proceedings did not
exist, but also declined to apply the more restrictive Colorado River “exceptional
circumstances” analysis. Id. Instead, the court must consider:
(1) whether the declaratory judgment sought will serve a useful
purpose in clarifying and settling the legal relations in issue;
(2) whether the declaratory judgment will terminate and afford
relief from the uncertainty, insecurity, and controversy giving
rise to the federal proceeding; (3) the strength of the state’s
interest in having the issues raised in the federal declaratory
judgment action decided in the state courts; (4) whether the
issues raised in the federal action can more efficiently be
resolved in the court in which the state action is pending; (5)
whether permitting the federal action to go forward would
result in unnecessary entanglement between the federal and
state court systems, because of the presence of overlapping
issues of fact or law; and (6) whether the declaratory judgment
action is being used merely as a device for procedural
fencing—that is, to provide another forum in a race for res
judicata or to achieve a federal hearing in a case otherwise not
removable.
Id. (quoting Aetna Cas. & Surety Co. v. Ind-Com Electric Co., 139 F.3d 419, 422 (4th
Cir. 1998) (per curiam)) (internal quotation marks and brackets omitted) (adopting the
Fourth Circuit’s factors analysis). Though the Eighth Circuit has not explicitly provided
guidance on the application of the Scottsdale factors, district courts are guided by the
11
general proposition that the Scottsdale analysis “allows the district court greater discretion
than the exceptional circumstances test, but less discretion than it would have under the
Wilton standard.” Id. Additionally, the Fourth Circuit, which developed the Scottsdale
factors, noted that the factors reflect overarching considerations of efficiency, procedural
fencing, federalism and comity. Ind-Com, 139 F.3d at 423.
B. The Applicable Abstention Doctrine
The court notes, at the outset, that CIWA invokes the Declaratory Judgment Act in
its Complaint. See Complaint at 6, 8, 11. It specifically requests a declaratory judgment
pursuant to 28 U.S.C. §§ 2201 and 2202 on several grounds. Id. This alone raises the
specter of Wilton/Brillhart and Scottsdale and suggests that the court apply these abstention
frameworks to the instant action. The court recognizes that, if for some reason application
of Wilton/Brillhart is inappropriate, then the more stringent Colorado River principles
apply. See, e.g., Royal Indem. Co., 511 F.3d at 793.
Though CIWA has sought injunctive relief and monetary damages in addition to its
request for declaratory judgment, this alone is not enough to transmogrify the instant action
into anything other than a request for declaratory judgment. The Declaratory Judgment
Act itself authorizes a court to grant “[f]urther necessary or proper relief based on a
declaratory judgment.” 28 U.S.C. § 2202. Furthermore, the Eighth Circuit has held that,
because courts have the authority to grant further necessary or proper relief, “a court may
still abstain in a case in which a party seeks damages as well as a declaratory judgment so
long as the further necessary or proper relief would be based on the court’s decree so that
the essence of the suit remains a declaratory judgment action.” Royal Indem. Co., 511
F.3d at 793-94 (citing Horne v. Fireman’s Ret. Sys. of St. Louis, 69 F.3d 233, 236 (8th
Cir. 1995)). The Eighth Circuit has recognized that “good faith claims for injunctive
relief” may take the action outside the Wilton/Brillhart analysis. Cedar Rapids Cellular
Tel., L.P. v. Miller, 280 F.3d 874, 879 (8th Cir. 2002). However, “a party cannot avoid
12
application of the Wilton and Brillhart abstention standard merely by artfully pleading
manufactured claims for injunctive relief.” Royal Indem. Co., 511 F.3d at 795 n.3. In
other words, a plaintiff seeking a declaratory judgment in federal court cannot invoke
Colorado River’s near-mandatory jurisdiction simply by requesting ancillary injunctive
relief or damages. The Wilton/Brillhart analysis is still appropriate where the further relief
a plaintiff requests is “not independent of the requested declaratory judgment, but [is]
closely linked with it.” Id. at 794; see also Horne, 69 F.3d at 236 (holding that, although
plaintiff sought a declaratory judgment, injunctive relief and damages, the plaintiff’s claim
was “most aptly characterized as one for declaratory judgment” where plaintiff claimed
employer’s policy of mandatory retirement was unlawful and sought an injunction
prohibiting defendants from removing him from his job, as well as damages for emotional
distress and costs).
In the instant action, CIWA seeks declaratory judgments declaring that it is
protected by 7 U.S.C. § 1926(b), that Dubuque acted in violation of such protection and
that Iowa Code § 357A.2 is preempted by 7 U.S.C. § 1926(b) or, alternatively, that
CIWA’s service falls within an exception in the Iowa Code. Complaint at 11. The nondeclaratory relief sought includes injunctive relief prohibiting Dubuque from supplying
water to the disputed area, injunctive relief prohibiting Dubuque from violating 7 U.S.C.
§ 1926(b), injunctive relief prohibiting Dubuque “from taking any further action in
violation of the declaratory judgment granted herein” as well as costs and attorneys fees
pursuant to 42 U.S.C. § 1988 due to its claims under 42 U.S.C. § 1983 for violations of
7 U.S.C. § 1926(b) and the federal Constitution’s Contracts Clause. Id. at 9-11. This
exhaustive reiteration of CIWA’s claims only serves to clarify the reality of the nondeclaratory relief sought by CIWA—that it is wholly dependent on the declaratory relief
sought. The injunctive relief sought by CIWA can only be granted or denied after the
court adjudicates the merits of the declaratory relief sought. For example, if the court
13
were to reject CIWA’s contention that it is protected by 7 U.S.C. § 1926(b), an injunction
demanding that Dubuque cease violating Section 1926(b) would be meaningless. The fact
that CIWA seeks an injunction expressly prohibiting Dubuque from violating the terms of
the declaratory judgment sought only serves to further clarify the ancillary nature of the
injunctive relief sought. Likewise, the claims for attorney’s fees under 42 U.S.C. § 1988
would be meaningless if the court rejects CIWA’s request for a declaratory judgment that
7 U.S.C. § 1926(b) applies to it.
CIWA generally seeks declarations of the rights and responsibilities of the parties
involved in the lawsuit. Any ancillary relief would clearly arise out of the court’s
determination of such rights and responsibilities and would therefore constitute “further
necessary or proper” relief based on the declaratory judgment. The injunctive relief and
monetary awards sought by CIWA are not “independent” of the requested declaratory
judgment, but rather are “closely linked with it.” Royal Indem. Co., 511 F.3d at 794.
Accordingly, the court finds that the essence of this suit is one for declaratory judgment.
Therefore, given the nature of CIWA’s claims and the relief sought, the court finds that
application of the Wilton/Brillhart and Scottsdale analyses is more appropriate than
Colorado River principles.
C. Application
1.
Parallel proceedings
Dubuque points out that the parties and lawyers in both the State Case and the
instant action are exactly the same. Brief in Support of Motion at 8. The court agrees
with this assertion and CIWA appears not to contest that fact. Similarity between the
parties is necessary for a finding that the proceedings are parallel and the fact that the
parties and lawyers are identical here weighs in favor of finding that the State Case and the
instant action are parallel proceedings.
14
Dubuque also asserts that the claims in the two cases are “virtually the same,
although the particulars and order of presentation differ marginally.” Id. Unsurprisingly,
CIWA disagrees that the claims are similar and points to its assertion that Dubuque is
violating 7 U.S.C. § 1926(b) in the instant action, which it did not allege in the State Case.
Resistance at 7. CIWA contends that, in order to invoke the protection of 7 U.S.C.
§ 1926(b), it must prove: (1) that it is an “association” under the statute; (2) it has a
qualifying federal loan; and (3) it has provided or made service available to the disputed
area. Id.; see also Pub. Water Supply Dist. No. 3 of Laclede Cty., Mo. v. City of
Lebanon, Mo., 605 F.3d 511, 521 (8th Cir. 2010) (listing the three factor test). The third
part of the test depends on a further two-pronged inquiry: one prong governed by federal
law and CIWA’s physical ability to serve the disputed area (the “pipes-in-the-ground” test)
and the other prong governed by state law and the legal right to serve the disputed area.
Resistance at 7; see also Pub. Water Supply Dist., 605 F.3d at 521 (describing the twopronged test). Both parties agree that a determination as to the application of 7 U.S.C.
§ 1926(b) to the instant action requires application of Iowa Code § 357A.2 to determine
who has the legal right to serve the disputed area. Brief in Support of Motion at 10;
Resistance at 7-8. To which party Iowa Code § 357A.2 grants the legal right to serve is
the primary question in the state law case. The prerequisite nature of this finding, already
at issue in the pending State Case, suggests to the court that the statutory issues presented
before the courts are “substantially similar” for purposes of finding parallel proceedings.
The court further notes that in both the State Case and the instant action, CIWA alleges
that it is exempted from Iowa Code § 357A.2 and also that 7 U.S.C. § 1926(b) preempts
state law. These issues are not merely similar, they are identical, further suggesting that
the State Case and the instant action are parallel proceedings.
Courts are also directed to consider the likelihood that a state court resolution would
dispose of the claims at the heart of the federal action, as well as the likely scope of that
15
disposition. Lexington, 721 F.3d at 968. In the instant action, the State Case has the
potential to fully dispose of most of the claims presented to the court. For example, a
finding in the State Case that CIWA does not have the legal right to serve the area disposes
of CIWA’s claims under 7 U.S.C. § 1926(b). Alternatively, a finding that the Iowa Code
is or is not preempted by federal law would dispose of CIWA’s claim in the instant action
alleging the same. If the state court disposes of those issues, the only remaining claim
before the court would be CIWA’s federal Contracts Clause claim. In any case, a
determination as to whether Iowa Code § 357A.2 grants Dubuque or CIWA rights to serve
the area in question is essential to the court’s application of 7 U.S.C. § 1926(b) in the
instant action, suggesting that the “questions in controversy . . . can better be settled in the
proceeding pending in state court.” Brillhart, 316 U.S. at 495. The court therefore finds
that the issues regarding Iowa Code § 357A.2 that are presented in the State Case are so
bound up in the issues regarding 7 U.S.C. § 1926(b) that are presented in the instant action
that they are “substantially the same issues” for purposes of Wilton/Brillhart.
Furthermore, though it is true that CIWA alleges that Iowa Code § 357A.2, as
applied, violates the Iowa Constitution in the State Case and that such application violates
the United States Constitution in the instant action, this distinction is no bar to a finding
that the proceedings are parallel. The language of the federal Contract Clause and Iowa’s
Contract Clause is substantially similar.3
Accordingly, these provisions have been
interpreted in essentially the same manner. See McDonald’s Corp. v. Nelson, 822 F.
Supp. 597, 605 (S.D. Iowa 1993), aff’d sub nom. Holiday Inns Franchising, Inc. v.
Branstad, 29 F.3d 383 (8th Cir. 1994) (citing Adair Benevolent Soc. v. State, Ins. Div.,
489 N.W.2d 1, 5 (Iowa 1992)); Des Moines Joint Stock Land Bank of Des Moines v.
Nordholm, 253 N.W. 701, 709 (Iowa 1934) (noting that, while Iowa courts are free to
3
“No State shall . . . pass any . . . Law impairing the Obligation of Contracts . .
. .” U.S. Const. art. 1, § 10, cl. 2. “No . . . law impairing the obligation of contracts[]
shall ever be passed.” Iowa Const. art. 1, § 21.
16
construe Iowa’s Contracts Clause differently from the federal Contracts Clause, “good
policy and a desired consistency between the two Constitutions rather dictate the
interpretation of the two clauses be similar”). Though the decision is not binding, Godfrey
v. Branstad is instructive. 56 F. Supp. 3d 976 (S.D. Iowa 2014). In Godfrey, the district
court determined that two cases were still parallel for purposes of Colorado River
abstention when the federal case alleged violations of the federal constitution’s Due
Process and Equal Protection Clause and the state case alleged violations of Iowa’s Due
Process and Equal Protection Clause. Id. at 983. In coming to this decision, the Godfrey
court noted that:
[t]he only distinction between the two proceedings is that the
state claims are based upon the Iowa Constitution, and the
federal claims are based on the United States Constitution;
however, the analysis and recovery under both theories is
substantially the same. As such, a final judgment on the
merits rendered by the state court likely will be binding on the
parties in this [c]ourt under the principles of res judicata.
Id. The technical difference between the Iowa constitutional claim and the federal
constitutional claim here does not prohibit the court from finding that the State Case and
instant action raise issues that are “substantially the same” for purposes of Wilton/Brillhart
abstention. Accordingly, the court finds that, because the State Case and instant action
involve the same parties, and the actions involve substantially the same issues, they are
parallel for purposes of Wilton/Brillhart abstention. See AAR Int’l, Inc. v. Nimelias
Enters. S.A., 250 F.3d 510, 518 (7th Cir. 2001) (“Suits need not be identical to be parallel
. . . .” (citing Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 698, 700
(7th Cir. 1992)). Therefore, application of the Wilton/Brillhart standard is appropriate.
2.
The Wilton/Brillhart analysis
Initially, the court reiterates that the parties in the State Case and instant action are
identical. All the necessary parties have been joined in the State Case, and their state
claims can be adjudicated in the Iowa state court. Without speculating as to the trial
17
strategy of the parties, the court supposes that all necessary witnesses and parties are
amenable to process in the Iowa state court. These factors are all germane considerations
weighing in favor of abstention according to the Supreme Court in Brillhart. 316 U.S. at
495.
Brillhart also directs courts to consider “the scope of the pending state court
proceeding and the nature of defenses open there.” Id. Here, while it is true that CIWA
alleges violations of federal law in the instant action and limits its State Case claims to
those arising under Iowa law, as discussed above, a determination of the parties’ rights and
duties under Iowa Code § 357A.2 is necessarily bound up in a determination of CIWA’s
rights under 7 U.S.C. § 1926(b). Additionally, in both the State Case and the instant
action, CIWA alleges that the state statute is preempted by federal law, as well as that
Iowa Code § 357A.2 does not apply to it. Though the court does not doubt its ability to
interpret and apply Iowa law, the possibility of inconsistent outcomes between the parallel
proceedings cautions the court against acting too hastily in the instant action. Furthermore,
as discussed above, the state case has the potential to fully dispose of several claims
pending before the court in the instant action. This fact further counsels against hearing
this case and exacerbating the possibility of inconsistent results. Rather, “considerations
of practicality and wise judicial administration” suggest that abstention is appropriate under
the considerable discretion that Wilton/Brillhart affords district courts. Wilton, 515 U.S.
at 288.
The court recognizes that the claims before it arise out of federal law and that such
a consideration weighs against abstention. For example, in Verizon Commc’ns, Inc. v.
Inverizon Int’l, Inc., the Eighth Circuit reversed the district court’s decision to abstain
from federal proceedings on the basis that Wilton/Brillhart abstention was inappropriate
because the district court failed to take into account the fact that the basis for the court’s
jurisdiction was federal question, rather than diversity, jurisdiction. 295 F.3d 870, 873
(8th Cir. 2002). However, Verizon is readily distinguishable because the federal question
18
before the court in Verizon concerned trademark law under the Lanham Act. Id. at 87172.
While the Eighth Circuit held that the primacy of federal law to the federal
proceedings overshadowed any concurrent jurisdiction that the state court had to resolve
the issues, it also recognized the special nature of the federal claims brought before it. Id.
at 873. It specifically noted that “federal courts now decide all but a few trademark
disputes. State trademark law and state courts are less influential than ever. Today the
Lanham Act is the paramount source of trademark law in the United States, as interpreted
almost exclusively by the federal courts.” Id. (quoting Two Pesos, Inc. v. Taco Cabana,
Inc., 505 U.S. 763, 782 n.16 (1992) (internal citations and quotation marks omitted)).
Because the instant action does not involve issues arising under federal laws over which
federal courts have, in practicality, nearly exclusive jurisdiction, the fact that the instant
action implicates federal law is entitled to some, but not excessive, weight in the analysis.
Considering the importance of the state law issue to the federal claims presented
before the court and being mindful that the state court proceedings were initiated first, the
court finds that the dangers of inconsistent outcomes and the potential for nearly universal
disposition of the claims before it in the instant action warrant abstention under
Wilton/Brillhart principles. For the court to hear similar, and in some cases identical,
issues as the Iowa court in the State Case would be uneconomical. The court’s intrusion
into questions of state law that have already been presented to a state court may very well
constitute “gratuitous interference” with those proceedings. Brillhart, 316 U.S. at 495.
Though the issues CIWA presents in the instant action are framed as federal issues and
thus weigh against abstention, the court finds that the balance of considerations weighs
against hearing the claims prior to the Iowa court’s disposition of the State Case.
Accordingly, the court exercises its discretion under Wilton/Brillhart and abstains from the
instant action.
19
3.
The Scottsdale factors analysis
Even if the court had found that the proceedings below were not parallel, it would
still feel compelled to abstain from hearing the instant action under the more stringent
Scottsdale factors.
a.
Usefulness of the declaratory judgment
The court does not doubt that a declaratory judgment would “clarify and settle” the
legal relations at issue. Such a declaration is truly at the heart of both the State Case and
the instant action. As such, this factor weighs substantially against abstention.
b.
Whether the declaratory judgment affords relief
The court recognizes that a declaratory judgment would indeed terminate and afford
relief from the “uncertainty, insecurity and controversy” that gave rise to the instant
action. A declaration as to the rights and duties of the parties under the various statutory
schemes as requested by CIWA would settle the claims brought before the court.
Accordingly, this factor weighs against abstention.
c.
The strength of the state’s interest
Courts applying the Scottsdale analysis have interpreted this factor in a variety of
ways. For example, in Cont’l Cas. Co. v. Advance Terrazzo & Tile Co., Inc., the Eighth
Circuit recognized that the Minnesota state courts in that case had an interest in
interpreting the scope of an insurance policy’s coverage under state law. 462 F.3d 1002,
1007 (8th Cir. 2006). However, the Eighth Circuit noted that, although the Minnesota
Supreme Court had not ruled on the issue, the Minnesota Court of Appeals had rendered
decisions on point and such precedent was clear.
Id. at 1004-07. For that reason, the
Eighth Circuit ultimately found that the state’s interest in interpreting the policy was not
strong enough to warrant counting this factor in favor of abstention. Id. at 1007. In
Scottsdale itself, the Eighth Circuit pointed out that, because there was no
contemporaneous state court proceeding in that case deciding the issues in dispute, a
decision by the federal court “would not conflict with any state court determination in the
20
underlying actions.” 426 F.3d at 999 (internal quotation marks omitted). As such, this
factor in Scottsdale weighed against abstention. Id.; see also Penn-Am. Ins. Co. v. Coffey,
368 F.3d 409, 414 (4th Cir. 2004) (noting that this factor recognizes a state’s “strong
interest in protecting its jurisprudence and an interest in deciding cases calling for
application of its own law”).
Here, unlike in Advance Terrazzo, the Iowa state courts have not crafted a clear line
of precedent interpreting Iowa Code § 357A.2. As the parties point out, Iowa Code
§ 357A.2 was amended in 2014 and the amendment purports to bring CIWA within the
confines of the statute. The court is unaware of any proceeding, whether in state or
federal court, that has interpreted and applied this amendment. Unlike in Advance
Terrazzo, the court cannot rely on clear state court precedent, and, thus, the state court’s
interest in interpreting its own law is heightened. Furthermore, unlike in Scottsdale, an
Iowa court has been called upon to resolve several of the issues presented in the instant
action via the first-filed State Case, further strengthening the state’s interest in resolving
questions of state law. As noted above, the court’s concern, and an apparent consideration
in Scottsdale, is the possibility of conflicting and inconsistent outcomes between the state
and federal proceedings. For these reasons, the court finds that the third factor weighs
substantially in favor of abstention.
d.
Whether the issues are more efficiently resolved in state court
This factor focuses on considerations of judicial economy and efficient resolution
of the underlying dispute. See Lexington Ins. Co., 721 F.3d at 971 (holding that the
presence of multiple unrelated issues in the state court proceeding made efficient resolution
of the controversy uncertain); Scottsdale, 426 F.3d at 999 (“[I]n the absence of a pending
parallel state court proceeding, judicial economy would be best served by deciding this
action initially in the federal district court.”). In the instant action, it is true that in a
purely technical sense, the federal claims asserted by CIWA have not been presented
before the Iowa court in the State Case. However, the reality of the federal claims
21
presented before the court, as the parties recognize and the court has previously discussed,
is that a determination of the legal right to serve the disputed area under state law is
entwined with the federal claim under 7 U.S.C. § 1926(b). Additionally, as the court has
already noted, CIWA alleges that 7 U.S.C. § 1926(b) preempts Iowa Code § 357A.2 in
both the State Case and the instant action. The court fails to see how judicial economy and
efficient resolution of the issues at hand would be served by simultaneous, largely
duplicative litigation in state and federal court—even if resolution of the state court issues
will not fully resolve all issues before the court, such as CIWA’s federal Contracts Clause
claim.
CIWA urges the court to retain jurisdiction because the federal claims, which
encompass the state claims, present the more “inclusive” and “complete” action.
Resistance at 9 (citing Federated, 48 F.3d at 298). Other courts construing the fourth
Scottsdale factor have considered similar reasoning. See, e.g., Fed. Ins. Co. v. Sammons
Fin. Grp., 595 F. Supp. 2d 962, 978 (S.D. Iowa 2009) (noting that it is most efficient to
address questions posed solely to the federal court in that forum rather than abstain). The
court recognizes that resolution of the question of the legal right to serve under Iowa Code
§ 357A.2 resolves but one part of CIWA’s more inclusive 7 U.S.C. § 1926(b) claim.
Thus, CIWA’s argument is persuasive, though heavily tempered by the court’s reluctance
to entertain duplicative litigation and the inefficiencies that necessarily entails.
Accordingly, the court finds that this factor weighs against abstention, though only
slightly.
e.
Unnecessary entanglement
This factor asks whether the presence of “overlapping issues of fact or law” would
create “unnecessary entanglement” between the federal and state systems. Scottsdale, 426
F.3d at 998. This factor rests on considerations of comity and respect for federalism. See
Mitcheson v. Harris, 955 F.2d 235, 239 (4th Cir. 1992). “A system of judicial federalism
has enough inherent friction without the added aggravation of unnecessary federal
22
declarations on questions [that a state court will address in a pending state action].” Id.
at 240. As the court has noted numerous times, in order to dispose of CIWA’s claim
under 7 U.S.C. § 1926(b), the court must ascertain whether CIWA has the legal rights to
serve the disputed area under Iowa Code § 357A.2. This latter question is the one posed
before the Iowa courts in the State Case. The court in this instance cannot avoid becoming
entangled with the state court’s interpretation of its own law. The claims before the Iowa
court in the State Case and those before the court in the instant action are similar and arise
out of the same activity such that issues of fact will largely be common to both. The court
finds this to be a paradigmatic instance of unnecessary entanglement and, accordingly,
finds this factor to weigh substantially in favor of abstention.
f.
Procedural fencing
This factor “contemplates the very real concern that[,] although a parallel state
proceeding may not exist at the time of the federal declaratory judgment action, a state
action between the same parties may follow and be precluded by res judicata.” Scottsdale,
426 F.3d at 1000. Additionally, courts are directed to consider whether the parties are
attempting “to achieve a federal hearing in a case otherwise not removable.” Id. at 998
(brackets and internal quotation marks omitted).
Dubuque contends that just such
procedural gamesmanship is afoot here. Brief in Support of Motion at 11. Specifically,
Dubuque argues that, as it pleaded its state law claims in the State Case, CIWA could not
have removed the case to federal court and that CIWA is attempting a“backdoor removal”
by filing a federal complaint regurgitating the counterclaims asserted in state court. Id.
(citing Chapman v. Lab One, 390 F.3d 620, 625 (8th Cir. 2004)).
As an initial matter, Dubuque appears to be correct regarding CIWA’s ability to
remove the State Case. The Eighth Circuit generally considers a party’s assertion that state
law is preempted by federal law to be a defense to the state law claim, rather than a basis
for removal to federal court. Chapman, 390 F.3d at 625. The only manner by which a
claim of preemption can provide the basis for removal is where the state law has been
23
“completely” preempted by federal law. Id. An area of law is “completely preempted”
when “Congress intended for the federal courts to fashion a body of ‘federal common law’
that would govern disputes arising under the federal statutes.” Id. at 629 (noting that the
doctrine of “complete preemption” has been primarily applied to cases arising under § 301
of the Labor Management Relations Act of 1947 and the Employee Retirement Security
Act of 1974). The court doubts that Congress intended federal courts to craft a body of
federal common law surrounding 7 U.S.C. § 1926(b) and preempt state law when one
portion of the inquiry under the federal law rests on an application of state law. In any
case, the court agrees with Dubuque to the extent that simply reimagining CIWA’s state
law counterclaims as federal claims is suspect and appears to be a mere attempt to gain
entry into federal court when it could not remove the State Case. As noted above, an
attempt to coopt removal procedure is a relevant consideration under this factor.
Scottsdale, 426 F.3d at 1000. However, the court also believes that CIWA’s desire to
adjudicate federal claims before a federal court is likely genuine and that its belief that it
is protected by 7 U.S.C. § 1926(b) is similarly genuine. It does not appear that CIWA
filed the instant action vexatiously or merely as a step in the race toward res judicata, and
Dubuque does not suggest this is the case. Nonetheless, the court cannot ignore CIWA’s
apparent attempt at “backdoor removal” as Dubuque characterizes it. Accordingly, the
court finds that the sixth factor weighs slightly in favor of abstention.
g.
Balance of findings
The court finds that factor one weighs substantially against abstention, factor two
weighs against abstention, factor four weighs slightly against abstention, factors three and
five weigh substantially in favor of abstention and factor six weighs slightly in favor of
abstention. On the basis of the balance of factors alone the court would choose to abstain
from the instant action. However, guided by general principles of efficiency, procedural
fencing, federalism and comity, the court is further convinced that the most efficient
24
outcome, and the one most aligned with principles of federalism and comity, is to abstain
from the instant action.
4.
Summary
The court finds that the State Case and the instant action are parallel for purposes
of Wilton/Brillhart abstention. The court also finds that, pursuant to its discretion under
Wilton/Brillhart, the circumstances in these proceedings warrant abstention. The parties
in the two actions are identical, and the issues raised are substantially similar. Disposition
of CIWA’s federal claims rests on resolution of a state law question that has already been
presented to the Iowa courts. The court also finds that, even if the State Case and the
instant action are not parallel for purposes of Wilton/Brillhart, abstention is still
appropriate under Scottsdale. Application of the Scottsdale factors warrants abstention,
in large part because of Iowa’s strong interest in resolving the State Case and because the
instant action would lead to unnecessary entanglement between the federal and state courts.
D. Dismissal or Stay
In its Resistance, CIWA requests that the court stay, rather than dismiss, the
proceedings if it finds abstention to be appropriate. Resistance at 12 n.2. Dubuque does
not specify whether it prefers the court stay or dismiss the action. Brief in Support of
Motion at 11.
The Supreme Court in Wilton recognized that, where abstention is appropriate, “a
stay will often be the preferable course, because it assures that the federal action can
proceed without risk of a time bar if the state case, for any reason, fails to resolve the
matter in controversy.” 515 U.S. at 288 n.2 (citing P. Bator, et al., Hart and Wechsler’s
The Federal Courts and the Federal System 1451 n.9 (3d ed. 1988)); see also Haverfield,
218 F.3d at 875 n.2 (“We recognize that a stay rather than dismissal is the preferred mode
of abstention where the possibility of a return to the federal court remains.” (citing Int’l
Ass’n of Entrepreneurs v. Angoff, 58 F.3d 1266, 1271 (8th Cir. 1995)). Seeing no reason
to justify dismissal and acknowledging the possibility of a return to the federal forum, the
25
court finds that a stay rather than dismissal of the instant action is appropriate pending final
resolution of the State Case.
V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED:
(1)
The Motion is GRANTED;
(2)
All proceedings in this case are STAYED pending final resolution of the
State Case, that is, City of Dubuque, Iowa v. Iowa Regional Utilities
Association d/b/a Central Iowa Water Association, No. CVCV119397
(Jasper County Dist. Ct. 2015);
(3)
The Clerk of Court is DIRECTED to close this case for administrative
purposes;
(4)
The parties are DIRECTED to notify the court immediately upon the
conclusion of the State Case; and
(5)
Upon receiving an appropriate motion to reopen the case, the court will
commence further proceedings.
IT IS SO ORDERED.
DATED this 15th day of September, 2015.
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