Brizendine v. Randall
MEMORANDUM AND ORDER granting in part 11 Defendant's Motion to Stay Case. The case will be stayed for an initial period of 90 days. Plaintiff shall file a status report with the Court on or before June 30, 2017. A status conference is scheduled for July 7, 2017 at 1:30 p.m. via telephone conference call to be initiated by the Court. Signed by Magistrate Judge Gwynne E. Birzer on 4/5/17. (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 16-2782-JAR-GEB
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Stay this case (ECF No.
11). On March 27, 2017, the Court conducted an in-person hearing to discuss the motion.
Plaintiff Danny Brizendine appeared in person and through counsel, Myndee M. Lee.
Defendant Jennifer Randall appeared through counsel, Patrick A. Turner. After review of
the parties’ briefing and considering the arguments of counsel, the Motion to Stay is
GRANTED in part as explained below.
This is the third-filed lawsuit filed between an estranged husband and wife. The
parties lived together in the state of California for approximately five years prior to their
relocation to Hutchinson, Kansas in 2006. Although there are multiple disputed facts, it
Unless otherwise indicated, the information recited in this section is taken from the pleadings
(Compl., ECF No. 1), from the briefs regarding the Motion to Stay (ECF Nos.11, 15), and from
judicially-noticed facts included in Matter of Marriage of Brizendine, 390 P.3d 124 (Kan. Ct.
App. 2017). The background information recited in this section should not be construed as
judicial findings or factual determinations.
appears, at least from the record in the case, the following background facts are not in
During their time in Kansas, the parties purchased a commercial property
(“Property”) located at 201 S. Main Street in Hutchinson, Kansas, and eventually married
in 2009. Then, in the summer of 2010, the couple moved back to California. Despite
residing in California, the couple continued to manage the Property in Hutchinson. At
some point after its purchase, ownership of the Property was transferred to a Kansas
Limited Liability Company (LLC).
Jennifer Randall was the managing member, and
Danny Brizendine was designated as resident agent.
Kansas Divorce Action
The parties encountered marital difficulties and separated in November 2014.
Brizendine was the first to file a divorce action on September 14, 2015, in Reno County,
Kansas.2 The Reno County case was dismissed for lack of jurisdiction and that dismissal
was recently upheld by the Kansas Court of Appeals.3 The district and appellate courts
found Kansas lacked jurisdiction over the matter because Brizendine was not a resident
of Kansas for the requisite time frame prior to his filing of the divorce.4
California Divorce Action
Before being served with the Kansas petition, and only four days after the Kansas
filing, Randall filed a divorce action in the Superior Court, San Luis Obispo County,
Brizendine v. Randall, 15 DM 626 (Reno Co. Dist. Ct., filed Sept. 14, 2015).
Matter of Marriage of Brizendine, 390 P.3d 124 (Kan. Ct. App. Mar. 3, 2017) (unpublished).
Id. at *1, *5.
California on September 18, 2015.5 On September 22, 2015, the California court issued
an ex parte temporary order, giving Randall temporary exclusive management and
control of the Hutchinson Property. The California divorce proceeding remains active,
and according to the parties’ reports at the March 27, 2017 hearing, is scheduled for trial
on April 14, 2017.6
On November 27, 2016, Brizendine filed his federal Complaint against Randall,
alleging federal claims of quantum meruit and fraud related to the Hutchinson Property.
Brizendine claims the parties bought the Property together in 2006, and from 2006
through 2015, he spent thousands of hours both physically remodeling it and acting as
Property manager. He alleges Randall falsely misrepresented to him that he was investing
his labor in exchange for an equal ownership interest in the Property. He also asserts
Randall fraudulently induced him to transfer title to the Property from their joint
ownership to the LLC, of which she is the sole member, in order to exclude him from any
financial benefit in the Property.
Randall filed a motion to dismiss the fraud claim (ECF No. 6), arguing Brizendine
failed to plead fraud with particularity under Fed. R. Civ. P. 9(b), and that motion is
currently being considered by the District Judge. During a February 16, 2017 scheduling
Randall v. Brizendine, 15FL-0626 (San Luis Obispo Co. Super. Ct., Cal., filed Sept. 18, 2015).
Neither counsel in this federal case represent the parties in the California divorce case and
neither were able to say, with any certainty, that the case will proceed to trial as scheduled.
However, Mr. Brizendine advised the Court during the March 27, 2017 hearing that a
continuance of the April trial date appears extremely likely, due to the timing of a recent
subpoena of bank records.
conference, the parties initiated a contested conversation regarding a stay of this case
pending resolution of the divorce action. The undersigned Magistrate Judge then stayed
discovery and entered a briefing schedule, leading to the present motion (ECF No. 14).
Defendant Randall’s Motion to Stay (ECF No. 11)
Randall seeks to stay this case, pending final property division by the California
domestic court. She contends the Property at the core of Brizendine’s federal claims will
be equitably distributed through the divorce. Once the domestic court determines the
value and ultimate award of the Property (which will include any time and/or money both
parties have contributed to it during their marriage), Randall argues the federal claims
will become moot. Randall asserts the filing of this action, while Brizendine was fully
aware the Property is subject to distribution in the divorce, amounts to forum shopping
and harassment. She contends a stay of this case would avoid piecemeal litigation and
duplicative costs to both parties, and impose no prejudice on Brizendine.
In opposition, Brizendine claims the California court is unable to hear either his
fraud or quantum meruit claims. Most importantly, domestic law prohibits a fraud claim
to be plead in, or joined with, a divorce action. Additionally, he distinguishes the value
of his services—pursued in the quantum meruit claim—as separate from the value of the
Property itself. Because they are distinct claims, he argues the cases are not parallel, and
the Court must resolve any doubt in favor of exercising federal jurisdiction.
Whether to stay litigation is within the Court’s inherent power to control its docket
and rests in its sound discretion.7 Applying the abstention doctrine of Colorado River
Water Conservation Dist. v. United States,8 a federal court analyzes multiple factors to
determine whether to stay a federal case pending the outcome of parallel state court
proceedings.9 Abstention is the exception rather than the rule, and the “pendency of an
action in state court is no bar to proceedings concerning the same matter in a federal court
with jurisdiction.”10 However, the doctrine’s core principle is “the avoidance of
duplicative litigation,” and its goal is to “preserve judicial resources” by focusing on
efficiency and economy.11 Although the federal court is under a “virtually unflagging”12
obligation to hear a case under its jurisdiction, the obligation “is not absolute, and it is
well-established that federal courts have the power to refrain from hearing, among other
things, cases which are duplicative of a pending state proceeding.”13
Universal Premium Acceptance Corp. v. Oxford Bank & Trust, No. 02–2448–KHV, 2002 WL
31898217, at *1 (D. Kan. Dec. 10, 2002) (citing Pet Milk Co. v. Ritter, 323 F.2d 586, 588 (10th
424 U.S. 800 (1976).
Star Ins. Co. v. TLC Trucking, LLC, No. 16-1017-JTM, 2016 WL 1435250, at *3 (D. Kan. Apr.
12, 2016) (citing Colorado River, 424 U.S. at 819-20).
Id. (citing Colorado River, 424 U.S. at 817).
Springer v. Thomas, No. 15-4862-SAC, 2015 WL 2449579, at *2 (D. Kan. May 22, 2015)
(quoting Rienhardt v. Kelly, 164 F.3d 1296, 1302 (10th Cir. 1999)).
Id. (quoting Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386
(2014) (quoting Sprint Communications, Inc. v. Jacobs, 134 S.Ct. 584, 591 (2013) (quoting
Colorado River, 424 U.S. at 817)).
Id. (citing D.A. Osguthorpe Family Partnership v. ASC Utah, Inc., 705 F.3d 1223, 1233 (10th
Cir.) (other internal citations omitted).
Before analyzing the relevant Colorado River factors, the court must first find the
state court proceeding is parallel to the federal case. In this context, the definition of
parallel does not require the exact parties and issues to be present in both cases. Rather,
“the state and federal proceedings are considered parallel if ‘substantially the same
parties litigate substantially the same issues’” in different forums.14 “Just as the parallel
nature of the actions cannot be destroyed by simply tacking on a few more defendants,
neither can it be dispelled by repackaging the same issue under different causes of
action.”15 The actions need not be identical to be parallel.16
Once the federal court determines the federal and state actions are parallel, it
applies the Colorado River factors to analyze whether abstention is appropriate. Those
factors include: (1) assumption of jurisdiction over property by either court; (2) relative
inconvenience of the federal forum; (3) avoidance of piecemeal litigation; (4) the order in
which jurisdiction was obtained by the state and federal forums and progress of both
cases; (5) the extent to which federal law controls the issues; and (6) the adequacy of the
state proceedings in protecting the rights of the party invoking federal jurisdiction;17 and
(7) the “vexatious or reactive nature of either the federal or the state litigation.”18 The
Star Ins. Co., 2016 WL 1435250, at *3 (citing United States v. City of Las Cruces, 289 F. 3d
1170, 1182 (10th Cir. 2002)) (emphasis added); see also Springer, 2015 WL 2449579, at *3.
Springer, 2015 WL 2449579, at *3 (citing Gerbino v. Sprint Nextel Corp., 2013 WL 2405558
at *3 (D. Kan. May 31, 2013) (quoting Clark v. Lacy, 376 F.3d 682, 686–87 (7th Cir.2004))).
Id. at *4; Waddell & Reed Fin., Inc. v. Torchmark Corp., 180 F. Supp. 2d 1235, 1241 (D. Kan.
Foxfield Villa Assocs., LLC v. Regnier, 918 F. Supp. 2d 1192, 1198 (D. Kan. 2013); D.A.
Osguthorpe, 705 F.3d at 1235 (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1, 17 n. 20 (U.S. 1983)).
court must carefully balance these factors, but the “weight to be given to any one factor
may vary greatly from case to case.”19
Prior to the application of the Colorado River factors, the Court first analyzes
whether the current case and the California divorce action are parallel. Clearly, the
parties to each case are identical. Therefore, the Court must evaluate the issues presented
in each action and the underlying facts supporting each. Brizendine argues his fraud and
quantum meruit claims are simply unable to be joined in the underlying domestic
action,20 and the Court recognizes the distinction between the legal causes of action and
the remedies available in the two cases.
However, during the motion hearing, Brizendine reluctantly conceded two
questions which this Court cannot ignore.
First, although certainly not the sole
determinants of the divorce case, the facts underlying the purchase, improvements, and
ownership of the Property will be examined in both forums. Second, Brizendine also
acknowledged that, though he disagrees discovery will be “substantially similar” (as
argued by Randall), due to the shared factual issues, the discovery in the two cases will
overlap. His contributions to the Property—which form the basis of his quantum meruit
claim—will be one element the domestic court may consider when determining how to
Springer, 2015 WL 2449579, at *4 (citing D.A. Osguthorpe, 705 F.3d at 1234).
See Pl.’s Mem., ECF No. 15 at 4 (citing Sosnick v. Sosnick, 71 Cal. App. 4th 1335, 1339,
(1999); and In re Marriage of McNeill, 160 Cal. App. 3d 548 (Ct. App. 1984) (a civil action for
fraud cannot be joined with or plead as part of a divorce action in California). See also id. at 5
(citing Maglica v. Maglica, 66 Cal. App. 4th 442, 446 (1998), as modified on denial of reh'g
(Sept. 28, 1998) (distinguishing a quantum meruit claim from the division of marital property in
a domestic action).
award the Property. Likewise, Randall’s alleged representations—the subject of the
fraud claim—will be another issue examined by the divorce court to determine the
Property’s ultimate ownership. Although the facts relating to the Property do not make
up the entire factual background of the divorce case, there is no question the facts will be
examined in both forums, and discovery on those facts will necessarily occur.
Ultimately, many of the same facts and allegations involved in the divorce action
will be addressed in this case, because the same Property is a subject of each.
Additionally, in the event the Property is set over to Brizendine in the divorce, his award
of the Property could conceivably affect the amount of damages sought in his federal
Despite the different legal claims,21 because identical parties are litigating
substantially similar factual issues in both forums, the cases are considered by this Court
to be parallel.
Finding the actions parallel, the Court’s next step is to consider the Colorado
Although Brizendine did not analyze the factors in his briefing, instead
choosing to rely upon the asserted lack of parallelism between the cases, the factors were
discussed at the motion hearing, and each factor is briefly addressed.
See Foxfield Villa Associates, 918 F. Supp. 2d at 1197 (discussing a separate claim added to
the federal action, but finding the addition of the claim does not prevent the court’s finding the
actions are parallel because the additional federal claim was based on many of the same facts as
the state claims).
Whether either court has assumed jurisdiction over property.
The application of this factor is generally to avoid “the generation of additional
litigation” through “inconsistent dispositions of property.”22
The parties agree the
California court has assumed jurisdiction over the Property and has already made
temporary orders regarding its use. Because the California court is already considering
the disposition of the Property, this factor weighs in favor of stay.
Whether the federal forum is inconvenient.
Neither party presented arguments in their briefing regarding the convenience of
the federal forum. During the hearing, Randall’s counsel admitted this factor is likely
neutral, because this Court is convenient to Brizendine, since he lives in Kansas, but
inconvenient to Randall, due to her residency in California. The Court agrees, and finds
the factor neutral to its analysis.
The desirability of avoiding piecemeal litigation.
The number of cases filed by these parties in three separate jurisdictions certainly
leads to an initial appearance of duplicative litigation, in some respects. However,
because the quantum meruit and fraud claims cannot be heard by the divorce court, the
Court understands this may be unavoidable. But, as discussed above, duplication of
discovery and factual issues in the two cases is inevitable. Even a minimal stay would
avoid the duplication of resources for both the parties and the Court. Because the
Id. at 1198 (citing Colorado River, 424 U.S. at 819).
“avoidance of piecemeal litigation is an important rationale behind the Colorado River
doctrine,”23 this factor weighs in favor of stay.
The order in which the courts obtained jurisdiction and the progress of
the two cases.
The California court obtained jurisdiction in September 2015, more than one year
prior to the filing of this federal action. Additionally, the domestic action is set for trial
in a matter of weeks. In contrast, this federal case is in its infancy, with no discovery
having yet commenced.
Because the domestic case has progressed considerably in
comparison to this federal action,24 this factor weighs strongly in favor of stay.
Which forum’s substantive law governs the merits of the litigation.
This case involves no question of federal law, which makes this factor somewhat
difficult to apply. Both the quantum meruit and fraud claims are state-law tort claims,
presented to this federal court only as a matter of diversity jurisdiction. Because the
alleged fraud and the services for which Brizendine seeks reimbursement occurred in the
state of Kansas, this Court must apply Kansas state law.25 Although Randall’s argument
seems to be that the state court could, and should, be the more appropriate jurisdiction for
Brizendine’s claims, he was not required to file in one jurisdiction over another under
these facts. And, though the absence of a federal issue usually supports the stay of the
Foxfield Villa Assocs., 918 F. Supp. 2d at 1199 (citing Ins. Fin. Corp. v. Evolution, Inc., No.
00–2386–KHV, 2000 WL 33314113, at *2 (D. Kan. Nov. 28, 2000).
Id. at 1199-1200 (citing Waddell & Reed Fin., Inc., 180 F. Supp. 2d at 1242).
See Atchison Casting Corp. v. Dofasco, Inc., 889 F. Supp. 1445, 1455 (D. Kan. 1995) (finding
“the law of the state where the tort occurred applies”).
federal case26—here, Kansas law applies to the federal claims, not California domestic
law. Because the California court cannot fully decide the questions present in this
litigation, and Kansas law (as applied by this Court) will govern this action, this factor
weighs slightly against a stay of the federal case.
The adequacy of the state forum to protect the parties’ rights.
Although similar factual issues exist in both forums, and discovery will overlap,
the state court will determine the value and ultimate ownership of the Property.
However, the California court will not determine whether Brizendine was a victim of
fraud or whether the value of his services is due to him on the quantum meruit claim.
Therefore, this factor also weighs against a stay.
The vexatious or reactive nature of either action.
Randall argues the timing and the nature of the federal case demonstrate it was
filed in reaction to the divorce case, and is pursued solely as a method to harass her and
circumvent the temporary orders of the domestic court.
Although the Court
acknowledges this is an unusual forum in which to bring claims of wrongful conduct
occurring during the parties’ cohabitation and/or marriage, the claims are couched in such
a way that the Complaint does not appear spurious on its face. Although the nature of the
claims appear reactive to the parties’ underlying divorce action, the Court was satisfied
Springer, 2015 WL 2449579, at *5 (citing Jones v. Great Southern Life Ins. Co., 232 F.3d 901,
2000 WL 1375309 at *2 (10th Cir. 2000) (other internal citations omitted)).
by Brizendine’s arguments regarding the validity of his claims. Therefore, the Court
finds this factor to be neutral to its analysis.
On reflection of the Colorado River factors, while three lean toward a stay of this
action, two are neutral and two more weigh against a stay. But the Court is not tasked
with simply tallying hash marks on a rigid checklist; rather, it must view the factors “in a
pragmatic, flexible manner with a view to the realities of the case at hand.”27 Ultimately,
the Court focuses on the avoidance of duplicative litigation and preservation of
resources—not only for the Court, but for the parties themselves.
The divorce case is
deep into discovery and has progressed to the point of trial—a factor which weighs
heavily in favor of stay. Charging forward with the federal proceeding would create
duplication of the Court and the parties’ resources, particularly in discovery.
Of additional significance to this Court is that, when questioned at hearing,
Brizendine failed to articulate any prejudice which could result from a relatively minor
stay of this case. A short stay appears beneficial, in order to permit the completion of
discovery and the divorce trial to occur in California. Permitting the conclusion of the
California action allows the parties to move forward in this Court, having been armed
with previous discovery and the knowledge of the final property division. This should
minimize necessary discovery and frame the ultimate damage claim in this case. Taking
all factors into consideration, and finding no prejudice to the parties, the Court finds the
D.A. Osguthorpe, 705 F.3d at 1236 (citing Moses H. Cone, 460 U.S. at 21).
posture and factual basis of the California case provides an exceptional circumstance
justifying a minimal stay of this case.
IT IS THEREFORE ORDERED that Defendant Jennifer Randall’s Motion to
Stay this case (ECF No. 11) is GRANTED in part, in that the case will be stayed only
for an initial period of 90 days.
IT IS FURTHER ORDERED that Plaintiff Danny Brizendine shall file a Status
Report with the Court on or before June 30, 2017, regarding the status of Randall v.
Brizendine, 15FL-0626 (San Luis Obispo Co. Sup. Ct., Cal., filed Sept. 18, 2015), and
specifically, any decision with regard to the Property in question.
IT IS FURTHER ORDERED that this case is set for a telephone status
conference on July 7, 2017, at 1:30 p.m., to be initiated by the Court.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 5th day of April, 2017.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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