Doyle v. Frontline Asset Strategies, LLC et al
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 4/4/2017. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JEFFREY DOYLE,
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Plaintiff
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v.
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FRONTLINE ASSET
STRATEGIES, LLC, et al.,
Civil Action No.: RDB-16-3501
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Defendants.
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MEMORANDUM OPINION
Plaintiff Jeffrey Doyle (“Plaintiff” or “Doyle”) has brought this putative class action
against Defendants Frontline Asset Strategies, LLC (“Frontline”) and Resurgent Capital
Services L.P. (“Resurgent”) (collectively “Defendants”), alleging violations of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. (Counts II & V), and the
Maryland Consumer Debt Collection Act (“MCDCA”), Md. Code Ann., Com. Law § 14201, et seq. (Counts III & VI), in connection with Defendants’ efforts to collect on void
judgments obtained against Doyle and members of the putative class by LVNV Funding,
LLC (“LVNV”), an unlicensed collection agency. Compl., ¶¶ 54-65, 71-86, ECF No. 2.
This action was initially filed in the Circuit Court for Anne Arundel County, Maryland, but
Defendants have subsequently removed the instant action to this Court, pursuant to 28
U.S.C. § 1441(b). See Notice of Removal, ECF No. 1. Currently pending before this Court
is Defendants’ Motion to Dismiss the Complaint, or alternatively, Motion for Stay of
Proceedings (ECF No. 12), pursuant to the “Colorado River” abstention doctrine articulated
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by the United States Supreme Court in Colorado River Water Conservation Dist. v. United States,
424 U.S. 800 (1976).1 The parties’ submissions have been reviewed, and no hearing is
necessary. See Local Rule 105.6 (D. Md. 2016). The Defendants have failed to satisfy the
criteria set forth in Colorado River, and recently confirmed in vonRosenberg v. Lawrence, 849 F.3d
163, 168 (4th Cir. 2017). Accordingly, for the reasons stated herein, Defendants’ Motion to
Dismiss the Complaint, or alternatively, Motion for Stay of Proceedings (ECF No. 12) is
DENIED.
BACKGROUND
I.
LVNV Funding, LLC’s Maryland State Court Judgment Against Plaintiff Jeffrey
Doyle
Plaintiff Jeffrey Doyle (“Plaintiff” or “Doyle”) is a resident of Washington County,
Maryland.
Compl., ¶ 5, ECF No. 2.
On December 1, 2008, LVNV Funding, LLC
(“LVNV”), a collection agency, sued Doyle in the District Court of Maryland for
Washington County, Case No. 11020005681-2008, “based upon a consumer claim that it
acquired in default from another for pennies on the dollar.” Id., ¶ 19. LVNV subsequently
“obtained an affidavit judgment of $2[,]033.99 against [Doyle] on February 2, 2009.” Id.
II.
Finch v, LVNV Funding, LLC Class Action Filed in the Circuit Court for Baltimore
City, Maryland
On November 11, 2009, Larry Finch (“Finch”) and Kurt A. Dorsey (“Dorsey”), two
debtors against whom LVNV had also obtained judgments in 2009, filed a putative class
Also pending before this Court is Plaintiff’s Motion for Leave to File Surreply (ECF No. 17). Although
generally disfavored, surreplies are permitted in the discretion of this Court. See U.S. Home Corp. v. Settlers
Crossing, LLC, No. DKC-08-1863, 2012 WL 3025111, at *3 (D. Md. July 23, 2012) (granting leave to file
surreply “given the complexity of the legal issues presented”); Local Rule 105.2(a) (D. Md. 2016) (“Unless
otherwise ordered by the Court, surreply memoranda are not permitted to be filed.”). In light of new issues
raised for the first time in the Defendants’ Reply brief, Plaintiff’s Motion for Leave to File Surreply (ECF No.
17) is GRANTED.
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action against LVNV in the Circuit Court for Baltimore City, Maryland (the “Finch Action”)
on behalf of the class of “persons sued by LVNV in Maryland state courts from October 30,
2007 through February 17, 2010 against whom LVNV obtained a judgment for an alleged
debt, interest or costs, including attorneys[’] fees in its favor in an attempt to collect a
consumer debt” (the “Finch Class”). See Finch v. LVNV Funding, LLC, 71 A.3d 193, 195
(Md. Ct. Spec. App. 2013). Finch and Dorsey (collectively the “Finch Plaintiffs”) alleged
“that LVNV engaged in illegal collection of debts because LVNV was not licensed as a
collection agency in Maryland, as required by the Maryland Collection Agency Licensing Act
(“MCALA”), Md. Code Ann., Bus. Reg. § 7–301.”
Id.
They alleged “that LVNV’s
unlicensed collection activities violated the Maryland Consumer Debt Collection Act
(“MCDCA”), Md. Code Ann., Com. Law §§ 14–201 to 14–204, and the Maryland Consumer
Protection Act (“MCPA”), Md. Code Ann., Com. Law § 13–301” and sought “declaratory
judgment[,] . . . injunctive relief,” “all judgment sums, costs, and pre-and post-judgment
interest [LVNV] ha[d] collected,” and “individual and class claims for damages under the
MCDCA and the MCPA.” Id. Upon motion of LVNV, the Circuit Court dismissed the
Finch Action, reasoning that all “claims [we]re barred as an impermissible attempt to mount a
collateral attack on the judgments entered by the District Court of Maryland for Baltimore
City.” Id. at 195-96. The Finch Plaintiffs subsequently appealed the Circuit Court’s Order of
dismissal to the Court of Special Appeals of Maryland.
On appeal, the Court of Special Appeals “first consider[ed] whether the [D]istrict
[C]ourt judgments [we]re void,” an issue “not expressly consider[ed]” by the Circuit Court,
ultimately holding in an opinion dated June 28, 2013, Finch v. LVNV Funding, LLC, 71 A.3d
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193, 205 (Md. Ct. Spec. App. 2013), that “LVNV was not licensed when it obtained
judgments against [the Finch Plaintiffs] in the [D]istrict [C]ourt; accordingly, the underlying
[D]istrict [C]ourt judgments [we]re void.” Id. at 196, 205. The Court of Special Appeals
reversed the Circuit Court and remanded the Finch Action for further proceedings,
“hold[ing] that the [C]ircuit [C]ourt erred in dismissing [the Finch Action] [C]omplaint” and
that the “parties may collaterally attack a void judgment in another court.” Id. The Court of
Special Appeals denied reconsideration of its Judgment on September 3, 2013. See id.
LVNV subsequently appealed the Judgment of the Court of Special Appeals to the Court of
Appeals of Maryland, but the Court of Appeals denied certiorari on October 8, 2013. See
LVNV Funding v. Finch & Dorsey, 77 A.3d 1084 (Md. 2013).
On remand, the Circuit Court for Baltimore City, Maryland certified the Finch Class
and declared the judgments entered against the Finch Class members in the District Court of
Maryland void and unenforceable. Compl., ¶ 16, ECF No. 2; see Finch Action Docket, p. 21,
ECF No. 12-2. Following a three-day jury trial, the Circuit Court entered judgment on a jury
verdict in favor of the Finch Class for $38,630,344.00. See id. at 33. LVNV has now filed a
second appeal in the Finch Action action, which is currently pending before the Court of
Special Appeals of Maryland. On appeal, LVNV challenges, inter alia, the Circuit Court’s
declaring the judgments obtained by LVNV to be void. Finch Action Not. of Appeal, ECF
No. 12-5. As a member of the putative Finch Class, Doyle was sent notice of the pendency
of the Finch Action and was given an opportunity to opt-out of the Finch Class. See Admin.
Order & Notice, ECF No. 12-3. The Circuit Court docket confirms that Doyle did not optout of the Class Action. See Finch Action Docket, ECF No. 12-2.
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III.
Defendant Resurgent Capital Services L.P. Collects on LVNV’s 2009 Judgment
Against Plaintiff Doyle
In 2015, during the pendency of the Finch Action, but after the Court of Special
Appeals’ ruling that judgments obtained by LVNV between 2007 and 2010 were void, Doyle
attempted to buy a house, but found that he was unable to because of [LVNV’s 2009]
judgment against him.” Compl., ¶ 20, ECF No. 2. Doyle “contacted [Frontline Asset
Strategies (“Frontline”)], the ‘collection agency’ for [Resurgent Capital Services L.P.
(“Resurgent”), as servicer for LVNV (collectively “Defendants”), to . . . pay the judgment.”
Id. Doyle contends that “[a]t no time did Frontline or Resurgent tell him that the judgment
was void as a matter of law, was unenforceable, and that he owed nothing.” Id. Rather,
Frontline and Resurgent “demanded payment of $2[,]033.99 to satisfy the void and
unenforceable judgment,” and “Doyle paid this in August [of] 2015.” Id., ¶¶ 21-22.
IV.
The Instant Putative Class Action Against Frontline and Resurgent
On August 31, 2016, Doyle brought the instant putative class action against
Defendants Frontline and Resurgent in the Circuit Court for Anne Arundel County,
Maryland, alleging “predatory and deceptive debt collection practices” on behalf of “[t]hose
persons in the State of Maryland from who Frontline and/or Resurgent have communicated
with directly or indirectly for the purpose of collecting a judgment entered in favor of an
unlicensed collection agency that filed suit when it was unlicensed.”
Id., ¶¶ 1, 34.
Specifically, Doyle alleges that both Frontline and Resurgent have violated the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. (Counts II & V), and the
Maryland Consumer Debt Collection Act (“MCDCA”), Md. Code Ann., Com. Law § 14201, et seq. (Counts III & VI). Id., ¶¶ 54-65, 71-86. Doyle requests a Declaration of this
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Court that neither Frontline nor Resurgent are “entitled, directly or indirectly, as a matter of
law to collect against any member of the Class based upon a void judgment” and further
requests that both Frontline and Resurgent “be enjoined from attempting to collect any
sums from [Doyle] and Class members, directly or indirectly, based upon a void judgment”
(Counts I & IV). Id., ¶¶ 50-53, 66-70. Subsequently, Frontline and Resurgent have removed
the instant case to this Court, pursuant to 28 U.S.C. § 1441(b). See Notice of Removal, ECF
No. 1. Now pending before this Court is Frontline and Resurgent’s Motion to Dismiss the
Complaint, or alternatively, Motion for Stay of Proceedings (ECF No. 12) in light of
LVNV’s pending appeal in the separate Finch Action, pursuant to the “Colorado River”
abstention doctrine articulated by the United States Supreme Court in Colorado River Water
Conservation Dist. v. United States, 424 U.S. 800 (1976).
STANDARD OF REVIEW
In Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), the
United States Supreme Court made clear that the pendency of an action in state court does
not pose an absolute bar to proceedings concerning the same or a similar matter in federal
court. Colorado River, 424 U.S. at 817. As a general rule, “our dual system of federal and state
governments allows parallel actions to proceed to judgment until one becomes preclusive of
the other.” Chase Brexton Health Servs., Inc. v. Maryland, 411 F.3d 457, 462 (4th Cir. 2005).
Indeed, federal courts have a “virtually unflagging obligation” to exercise the jurisdiction
given to them, Colorado River, 424 U.S. at 817, and “have no more right to decline the
exercise of jurisdiction which is given, than to usurp that which is not,” Chase Brexton, 411
F.3d at 462 (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)).
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There is, however, an “extraordinary and narrow exception” to exercising jurisdiction.
Colorado River, 424 U.S. at 813. A federal district court may abstain from hearing a case over
which it has jurisdiction in “exceptional circumstances where the order to the parties to
repair to the state court would clearly serve an important countervailing interest.” Id.
(quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188–89 (1959)). The burden
for the party seeking a stay in federal court is high: “[T]he task [of the district court] is to
ascertain whether there exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ . . . to
justify the surrender of jurisdiction.” Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460
U.S. 1, 25–26 (1983) (citation and internal quotation marks omitted).
Abstention under Colorado River is only appropriate if this Court first determines that
the federal and state suits are parallel. The United States Court of Appeals for the Fourth
Circuit “strictly construe[s] the requirement of parallel federal and state suits, requiring that
the parties involved be almost identical.” Chase Brexton, 411 F.3d at 464. The Fourth Circuit
has recently explained in vonRosenberg v. Lawrence, 849 F.3d 163, 168 (4th Cir. 2017) that “even
state and federal claims arising out of the same factual circumstances do not qualify as
parallel if they differ in scope or involve different remedies.” The Fourth Circuit has “held
Colorado River abstention not proper even though resolution of the state suit might have had
a res judicata effect on some of the claims in the federal action.” Id. (citing McLaughlin v.
United Virginia Bank, 955 F.2d 930, 934 (4th Cir. 1992)). If the proceedings are parallel, this
Court must next balance several factors to determine whether the case represents an
“exceptional circumstance.”
The Fourth Circuit has instructed courts to consider the
following six factors: “(1) whether the subject matter of the litigation involves property
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where the first court may assume in rem jurisdiction to the exclusion of others; (2) whether
the federal forum is an inconvenient one; (3) the desirability of avoiding piecemeal litigation;
(4) the relevant order in which the courts obtained jurisdiction and the progress achieved in
each action; (5) whether state law or federal law provides the rule of decision on the merits;
and (6) the adequacy of the state proceeding to protect the parties’ rights.” vonRosenberg, 849
F.3d at 168 (quoting Chase Brexton, 411 F.3d at 463–64).
ANALYSIS
The Defendants’ sole contention in support of the pending Motion to Dismiss the
Complaint, or alternatively, Motion for Stay of Proceedings (ECF No. 12) is that this Court
should abstain from deciding the instant case in light of LVNV’s pending appeal in the
separate Finch Action, pursuant to the “Colorado River” abstention doctrine articulated by
the United States Supreme Court in Colorado River Water Conservation Dist. v. United States, 424
U.S. 800 (1976). For the reasons that follow, the Defendants have failed to satisfy either
prong of the Colorado River analysis. First, the instant action brought by Doyle in this Court
against Frontline and Resurgent is not “parallel” to the Finch Action, now on appeal for the
second time before the Maryland Court of Special Appeals, for the purposes of Colorado River
abstention.
Second, the Defendants have failed to overcome the heavy hurdle of
establishing that the instant case warrants abstention under the six factors outlined above.
I.
The Instant Action Brought By Doyle Against Frontline and Resurgent and the
Separate State Court Finch Action Against LVNV are Not “Parallel”
Simultaneous federal and state suits are deemed parallel if “substantially the same
parties litigate substantially the same issues.” New Beckley Mining Corp. v. Int’l Union, UMWA,
946 F.2d 1072, 1073 (4th Cir. 1991). The Fourth Circuit has reviewed the similarities
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between concurrent federal and state suits in three key respects: 1) the parties; 2) the legal
issues; and 3) the remedy sought. See, e.g., Great American Ins. Co. v. Gross, 468 F.3d 199, 207–
08 (4th Cir. 2006) (reviewing all three criteria in determining that the district court erred in
dismissing the suit on Colorado River abstention grounds). For the reasons discussed herein,
the instant action and the Finch Action are not parallel because they are insufficiently similar
with respect to all three criteria.
The instant action brought by Plaintiff Doyle involves a set of Defendants completely
different from the Defendant, LVNV, in the Finch Action. While the Finch Plaintiffs alleged
“that LVNV’s unlicensed collection activities violated the Maryland Consumer Debt
Collection Act (“MCDCA”), Md. Code Ann., Com. Law §§ 14–201 to 14–204, and the
Maryland Consumer Protection Act (“MCPA”), Md. Code Ann., Com. Law § 13–301,”
Doyle has brought this action against Defendants Frontline and Resurgent alleging separate
violations of the Fair Debt Collection Practices Act and Maryland Consumer Debt
Collection Act with respect to their efforts to collect on the void judgments obtained by
LVNV against the putative class members.
Although both actions concern the same
judgments obtained by LVNV against Plaintiff debtors in the District Court of Maryland,
the Fourth Circuit has recently confirmed in vonRosenberg v. Lawrence, 849 F.3d 163, 168 (4th
Cir. 2017) that “even state and federal claims arising out of the same factual circumstances
do not qualify as parallel if they differ in scope or involve different remedies.”
Additionally, the remedies sought in this case are clearly different from those in the
Finch case. While the Finch Plaintiffs and class members recently obtained a judgment
against LVNV in the Circuit Court of Maryland for Baltimore City in the amount of
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$38,630,344.00, Doyle seeks, inter alia, a Declaration that neither Frontline nor Resurgent are
“entitled, directly or indirectly, as a matter of law to collect against any member of the Class
based upon a void judgment” and further requests that Frontline and Resurgent “be
enjoined from attempting to collect any sums from [Doyle] and Class members, directly or
indirectly, based upon a void judgment” (Counts I & IV). Id., ¶¶ 50-53, 66-70.
Some factual overlap between the federal and state suits is insufficient: “The
Colorado River doctrine does not give federal courts carte blanche to decline to hear cases
within their jurisdiction merely because issues or factual disputes in those cases may be
addressed in past or pending proceedings before state tribunals.” New Beckley Mining Corp.,
946 F.2d at 1074 (quoting U.S. v. SCM Corp., 615 F. Supp. 411, 417 (D. Md. 1985)); see also,
e.g., Al–Abood v. El–Shamari, 217 F.3d 225, 232 (4th Cir. 2000) (“Although the two
proceedings have certain facts and arguments in common, the legal issues are not
substantially the same.”). The instant action and the State Court Finch Action differ with
respect to the parties involved, the issues alleged, and the damages requested, and are
consequently not parallel for purposes of Colorado River abstention.
II.
The Requisite “Exceptional Circumstances” Warranting Abstention Are Not Present
Even if Doyle’s action in this Court were parallel to the Finch Action, the Colorado
River abstention doctrine is nonetheless inapplicable. As discussed supra, the Fourth Circuit
has instructed courts to consider the following six factors: “(1) whether the subject matter of
the litigation involves property where the first court may assume in rem jurisdiction to the
exclusion of others; (2) whether the federal forum is an inconvenient one; (3) the desirability
of avoiding piecemeal litigation; (4) the relevant order in which the courts obtained
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jurisdiction and the progress achieved in each action; (5) whether state law or federal law
provides the rule of decision on the merits; and (6) the adequacy of the state proceeding to
protect the parties’ rights.” vonRosenberg, 849 F.3d at 168 (quoting Chase Brexton, 411 F.3d at
463–64). This Court, however, does not begin its analysis with the balance of factors in
equipoise.
Instead, “the balance [is] heavily weighted in favor of the exercise of
jurisdiction.” Moses H. Cone, 460 U.S. at 16. Balancing these factors, the Defendants have not
overcome the heavy burden against abstention.
There is no real property at issue in this case, so the first factor is not at issue. See
Mem. Supp. Mot., p. 6, ECF No. 12-1. Likewise, the Defendants have conceded that the
second factor is not at issue because “neither party is inconvenience[d] by litigation in this
[C]ourt.” Id. The thrust of Defendants’ Motion is that the third factor—the desirability of
avoiding piecemeal litigation—strongly supports abstention. The Defendants argue that the
“Maryland appellate court will determine whether LVNV was required to be licensed and
therefore whether judgments obtained during its unlicensed period are void” and that
“[w]ithout finality on that issue, this Court would decide a state law issue prior to a ruling by
the appellate court on a specific Maryland state law issue.” Id. at 7.
However, under clear United States Supreme Court and Fourth Circuit precedent, the
inherent difficulties associated with concurrent litigation are insufficient to warrant Colorado
River abstention. The Supreme Court held in Colorado River that “[t]he mere potential for
conflict in the results of adjudications, does not, without more, warrant staying exercise of
federal jurisdiction.” Colorado River, 424 U.S. at 816. Similarly, in Chase Brexton, the Fourth
Circuit held that the district court erred in finding that “disjointed and unreconcilable”
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results favored abstention. Chase Brexton, 411 F.3d at 465–66. The Fourth Circuit explained
that “the threat of piecemeal litigation in the sense that two cases proceed simultaneously
thus is not sufficient to support a decision to abstain under Colorado River.” Id; see also Gannett
Co., Inc. v. Clark Const. Group, Inc., 286 F.3d 737, 744 (4th Cir. 2002) (“[F]or abstention to be
appropriate, retention of jurisdiction must create the possibility of inefficiencies and
inconsistent results beyond those inherent in parallel litigation, or the litigation must be
particularly ill-suited for resolution in duplicate forums.”).
Defendants contend that the central issue of whether LVNV’s State Court judgments
against Doyle and putative class members were void has yet to be determined on appeal in
the Finch Action. However, Defendants overlook the fact that the Maryland Court of
Special Appeals has already squarely addressed that question in Finch v. LVNV Funding,
LLC, 71 A.3d 193, 205 (2013), holding that “LVNV was not licensed when it obtained
judgments against appellants in the district court; accordingly, the underlying district court
judgments are void.” The Court of Special Appeals has previously denied reconsideration of
this judgment, and the Court of Appeals of Maryland denied certiorari. The fact that LVNV
is again attempting to re-litigate this issue upon a second appeal in the Finch Action does not
on its own warrant abstention from the instant action. See, e.g., County v. Fraternal Order of
Police, Baltimore County Lodge No. 4, 144 A.3d 1213, 1223 (Md. 2016) (The law of the case
doctrine is a “rule of practice, based upon sound policy that when an issue is once litigated
and decided, that should be the end of the matter.” . . . [u]nder that doctrine, “[o]nce an
appellate court rules upon a question presented on appeal, litigants and lower courts become
bound by the ruling, which is considered to be the law of the case.”) (citations omitted)
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The Defendants’ additional contentions that the Finch Action was filed well before
the instant case, that the central issue in this case involves a question of Maryland, as
opposed to federal, law, and that the state court proceedings are adequate to protect the
parties’ rights are equally unpersuasive. The United States Supreme Court has made clear
that “[a] court must look at these factors holistically, ‘with the balance heavily weighted in
favor of the exercise of jurisdiction.’ ” vonRosenberg v. Lawrence, 849 F.3d 163, 168 (4th Cir.
2017) (citing Moses H. Cone, 460 U.S. at 16). As discussed supra, Doyle has raised federal law
claims against the Defendants in this case under the Fair Debt Collection Practices Act
which, if he prevails, entitle him to statutory damages in addition to actual damages and any
recovery he may obtain as a member of the Finch Class. Having considered all of the
relevant factors holistically, the Defendants have not overcome the “heavily weighted”
balance in favor of retaining jurisdiction, and therefore the Defendants have failed to
establish the “extraordinary circumstances” necessary to justify Colorado River abstention.
CONCLUSION
For the reasons stated herein, Defendants’ Motion to Dismiss the Complaint, or
alternatively, Motion for Stay of Proceedings (ECF No. 12) is DENIED.
A separate Order follows.
Dated: April 4, 2017
_/s/___________________
Richard D. Bennett
United States District Judge
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