Vincent et al v. Home Depot, U.S.A., Inc. et al
ORDER denying 289 Motion Abstain From Federal Jurisdiction; denying 308 Motion for Hearing; denying 371 Motion abstention re 289 Motion Abstain From Federal Jurisdiction Supplemental Motion; denying 378 Motion to Strike for the reasons set out in the Order. Signed by District Judge Daniel P. Jordan III on January 12, 2017. (SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
MICHAEL AND JENNIFER VINCENT
CIVIL ACTION NO. 3:15cv542-DPJ-FKB
HOME DEPOT, U.S.A., INC.
This tort action is before the Court on Plaintiffs’ motion to abstain from exercising
federal jurisdiction , motion for hearing on the motion to abstain , and supplemental
motion to abstain from exercising federal jurisdiction . Defendant Home Depot has
responded in opposition and filed a motion to strike the supplemental motion . The Court
has reviewed the parties’ filings, along with the pertinent authorities, and concludes that
abstention is inappropriate. The motions to abstain [289, 371] and the motion for hearing 
are denied. Defendant’s motion to strike  is likewise denied.
Facts and Procedural History
In August 2014, Plaintiffs Michael and Jennifer Vincent ordered lumber from Defendant
Home Depot. They claim Defendant’s delivery driver, Damon Jones, negligently crashed the
tractor-trailer into the Vincents’ garage, causing property damage and personal injury to Michael
Vincent, who was on the roof of the garage at the time of impact. They filed this action in
federal court against Home Depot on July 28, 2015, alleging negligence-based state-law claims.
Meanwhile, on February 5, 2016, Plaintiffs filed a second action, this time in state court,
against Home Depot and Damon Jones, arising from the same events.1 Plaintiffs reiterated the
It is undisputed that the addition of Damon Jones to the federal suit would destroy diversity
claims alleged in the federal action and added a claim for loss of consortium and “a cause of
action for Home Depot’s wrongful acts of requiring its delivery drivers to drive and operate
equipment while distracted by cell phones.” Pls.’ Mem.  at 3.
Plaintiffs now seek dismissal of the federal action on grounds of abstention, urging the
following: (1) all of Plaintiffs’ claims “sound entirely in state law”: (2) all Plaintiffs and all
Defendants are parties in the state-court action; and (3) Plaintiffs’ additional state-court claims
cannot be pleaded in the federal action because the Court denied their request for leave to amend.
Since the filing of their initial motion to abstain, Plaintiffs updated the Court, through a
supplemental motion, as to the status of the state-court action, noting that it is proceeding and a
trial could be set as early as June 2017.2 State-Court Order [381-1]. Defendant opposes
abstention and moves to strike Plaintiffs’ supplement in support of abstention. The motions are
fully briefed, and the Court is prepared to rule.
Plaintiffs argue that the Court should abstain from hearing this dispute under the
Colorado River abstention doctrine because a parallel proceeding is pending in state court
between the same parties and involving the same issue. Colo. River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976).3
“The Colorado River abstention doctrine is based on principles of federalism, comity,
and conservation of judicial resources.” Black Sea Inv., Ltd. v. United Heritage Corp., 204 F.3d
This action is currently set for the trial term beginning April 17, 2017, though the parties have
filed at least eighteen motions that must be decided before trial can proceed, not all of which are
even fully briefed yet.
This case is procedurally unique in that Plaintiffs, who filed the suit in federal court, are asking
the Court to abstain. Typically, the defendant files a motion to abstain.
647, 650 (5th Cir. 2000). Usually, “the pendency of an action in the state court is no bar to
proceedings concerning the same matter in the Federal court having jurisdiction.” Colo. River,
424 U.S. at 817 (quoting McClellan v. Carland, 217 U.S. 268, 282 (1910)). Colorado River
abstention thus represents an “extraordinary and narrow exception” to the “virtually unflagging
obligation of the federal courts to exercise the jurisdiction given them.” Id. at 813, 817.
The Supreme Court
has set forth six factors that may be considered and weighed in determining
whether exceptional circumstances exist that would permit a district court to
decline exercising jurisdiction: (1) assumption by either court of jurisdiction over
a res; (2) the relative inconvenience of the forums; (3) the avoidance of piecemeal
litigation; (4) the order in which jurisdiction was obtained by the concurrent
forums; (5) whether and to what extent federal law provides the rules of decision
on the merits; and (6) the adequacy of the state proceedings in protecting the
rights of the party invoking federal jurisdiction.
Murphy v. Uncle Ben’s, Inc., 168 F.3d 734, 738 (5th Cir. 1999) (citing Wilton v. Seven Falls Co.,
515 U.S. 277, 285–86 (1995)) (additional citations omitted). “In assessing the propriety of
abstention according to these factors, a federal court must keep in mind that ‘the balance [should
be] heavily weighted in favor of the exercise of jurisdiction.’” Black Sea Inv., Ltd., 204 F.3d at
650 (quoting Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983)). In
their motion, Plaintiffs declined to specifically address the six factors. Nevertheless, the Court is
obligated to do so.
Res at Issue
Because the Court has not assumed jurisdiction over a res, this factor weighs against
abstention. See id. at 650; see also Nat’l Cas. Co. v. Gonzalez, 637 F. App’x 812, 816 (5th Cir.
2016) (noting the absence of the first factor weighs against abstention).
Inconvenience of Fora
The state-court action is pending in Warren County, which is within the Northern
Division of the Southern District. Because both courts are within the same geographic region,
this factor weighs against abstention. Bank One, N.A. v. Boyd, 288 F.3d at 181, 185 (5th Cir.
2002) (noting that when “the federal court and the state court are in the same geographic region,
we find this factor weighing in favor of the district court exercising jurisdiction”).
Avoidance of Piecemeal Litigation
Courts distinguish between duplicative litigation, which “is a necessary cost of our
nation’s maintenance of two separate and distinct judicial systems possessed of frequently
overlapping jurisdiction” and piecemeal litigation, which typically involves “inconsistent rulings
with respect to a piece of property.” Black Sea Inv., Ltd., 204 F.3d at 650–51. “When, as here,
no court has assumed jurisdiction over a disputed res, there is no such danger,” and “[t]his factor
therefore weighs against abstention.” Id. at 651 (emphasis added).
Order in Which Jurisdiction was Obtained
“The Supreme Court . . . has cautioned against giving ‘too mechanical a reading to the
“priority” element’ and instructs that ‘priority should not be measured exclusively by which
complaint was filed first, but rather in terms of how much progress has been made in the two
actions.’” Boyd, 288 F.3d at 185 (quoting Moses H. Cone, 460 U.S. at 21). It is undisputed that
the federal action was filed first. But even putting that fact aside, discovery is complete in this
action, and the dispositive-motion deadline has passed. Accordingly, this factor favors
exercising jurisdiction. See Stewart v. W. Heritage Ins. Co., 438 F.3d 488, 492−93 (5th Cir.
2006) (“We have suggested that this factor only favors abstention when the federal case has not
proceeded past the filing of the complaint.”).
The Extent Federal Law Governs the Case
As stated, Plaintiffs argue that “all of the Plaintiffs’ claims sound entirely in state law.”
Pls.’ Mem.  at 4. But “[t]he absence of a federal-law issue does not counsel in favor of
abstention.” Evanston Ins. Co. v. Jimco, Inc., 844 F.2d 1185, 1193 (5th Cir. 1988). The Court’s
“task in cases such as this is not to find some substantial reason for the exercise of federal
jurisdiction” but “rather, the task is to 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).
This is a simple tort-based diversity action involving routine matters of state law;
Plaintiffs have not shown that “‘rare circumstances’ exist.” Stewart, 438 F.3d at 493. This
factor is at most neutral. See id.
Adequacy of State Proceeding
“[T]he adequacy of [a] state proceeding never weighs in favor of abstention—it is
‘either a neutral factor or one that weighs against abstention.’” Saucier v. Aviva Life & Annuity
Co., 701 F.3d 458, 465 (5th Cir. 2012) (quoting Stewart, 438 F.3d at 493). This factor is neutral.
In sum, factors one, two, three, and four weigh in favor of the Court exercising
jurisdiction; factors five and six are neutral. This case does not meet the Colorado River
As for Plaintiffs’ additional arguments that they cannot assert claims against Jones and
cannot include the two “new” state-law claims in this action, they have failed to direct the Court
to any authority that these facts justify abstention. Moreover, as pointed out by Defendant,
Plaintiffs voluntarily chose to file this action in federal court without naming Jones as a
defendant and chose not to assert the “new” claims within their deadline to amend without leave.
The Court has considered all arguments raised by the parties; those not addressed in this
Order would not have altered the result. For reasons explained, Plaintiffs’ motion to abstain
 and their supplemental motion to abstain  are denied. Because a hearing is not
necessary to resolve the motions, Plaintiffs’ motion for a hearing on the motion to abstain 
is also denied.
Finally, because the Court finds that abstention is unwarranted, even considering the
supplemental motion, Defendant’s motion to strike the supplemental motion to abstain  is
SO ORDERED AND ADJUDGED this the 12th day of January, 2017.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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