Fru-Con Construction Corp. v. Controlled Air, Inc.

IV. assis- provide substantial did Smith government’s claims that tance. Smith reasons, we affirm the foregoing For “clearly sentencing was his during position of the district court. judgment in the Octo- position with its inconsistent” it to brief submitted 16, appellate ber sen- Vasquez’s co-conspirator

this court brief, govern- In that

tencing appeal. had district court “that the argued

ment relying upon no error

committed a three- testimony] imposing [Smith’s CONSTRUCTION CORPO FRU-CON at Vas- sentencing enhancement” level RATION; Maintenance & Austin disagree hearing. We sentencing quez’s Corpo Construction, Delaware with Smith. ration, doing as Fru- business JV, Con/Austin, Appellants, equita estoppel is Judicial protect integ remedy fashioned “to ble by prohibiting judicial process rity of the AIR, INC., a Kansas CONTROLLED posi deliberately changing from Corporation, Appellee. exigencies according to tions Maine, 532 Hampshire v. No. New 08-1712. moment.” 1808, 749-50, Appeals, United States Court (2001) (internal citations L.Ed.2d Eighth Circuit. omitted). prevail In order to quotations must judicial estoppel, Smith a claim of Sept. 2008. Submitted: posi government’s first establish July Filed: 2009. “ ‘clearly incon sentencing was at his tion ” En Banc Rehearing Rehearing during position’ its earlier with sistent Sept. Denied Stallings v. Huss appeal. See Vasquez’s 1041, 1047 Cir. Corp., 447 F.3d mann

2006) Hampshire, 532 U.S. (quoting New 1808). has failed Smith S.Ct. There is requirement. this basic

to meet gov with the “clearly inconsistent”

nothing did not war position that Smith

ernment’s 3553(e) position § and its motion

rant that Smith’s Vasquez appeal

during serve as enough reliable to

testimony was enhancement. sentencing of a

the basis of wheth determination government’s

The assistance substantial provided

er Smith based on “the the motion was

and merited assistance” of the defendant’s

significance trials. Vasquez and Islas-Bravo

in both govern highlighted, previously

As includes consider to move

ment’s decision factors in addition Smith’s many

ation of fails. claim thus

credibility. Smith’s BYE, BEAM, SHEPHERD,

Before Judges. Circuit BEAM, Judge. Circuit Corporation Fru-Con Construction Construction, Austin Maintenance and Inc. (the Venture) appeal Joint application court’s of Colorado River1 ab- stention to dismiss the Joint Venture’s breach of against contract action Con- Air, trolled Inc. We reverse.

I. BACKGROUND Ravenna, L.L.C., Nordic Biofuels of hired the Joint Venture through a real improvement estate contract as defined § Nebraska Revised Statute 52-130 to construct an production facility ethanol Ravenna, Nebraska. The Joint Venture engaged Air Controlled to construct grain receiving, storage, milling sys- and tem for facility. agreement Their con- tained law and forum selection clauses re- quiring disputes all between the governed by be brought Missouri law and in Missouri state court or the federal dis- trict court for the Eastern District of Mis- souri. Additionally, the contract allowed the Joint Venture to terminate Controlled Air specified for reasons and to take over being performed the work giving after sev- enty-two hours written notice. dispute A between Air Controlled and the Joint Venture arose and work ceased on the project. Air supplied Controlled John Roger Edgar, argued, Christopher 14, and through January labor materials Daus, Sr., J. Timothy Thornton, R. on 2007, and the Joint Venture assumed re- brief, MO, St. Louis appellant. for sponsibility 17, for January the work on Hiotis, Stephen C. argued, Daniel J. 2007. Pursuant to the Nebraska Con- Welsh, Eggmann, and Robert E. (NCLA), on the struction Lien Act Controlled Air brief, Louis, MO, St. appellee. for recorded a construction lien on March (1976). 1. Colorado River Water Conservation Dist. L.Ed.2d 483 States, United 424 U.S. company labor and ma- authorized to do business Ne- unpaid purportedly braska, alleged that recording longer The the action was no rem

terials. Air owed Controlled applied, Venture the forum selection clause Joint $1,496,636 provided and materials for labor mandating jurisdiction in Missouri. Dur- Air filed January Controlled through matter, ing hearing first on this the construction lien in to foreclose suit court held that was bond County, Ne- of Buffalo the District Court only person having because ineffective braska, Ven- May 2007. The Joint in the real estate file a bond interest ture, however, previously had filed 52-142, § under Nebraska Revised Statute against of contract action Con- breach did not have an Joint Venture District Air in the United States trolled property.2 interest the lien After the for the Eastern District Missouri. Court bond, Venture amended the the Ne- Joint that the Ven- complaint alleged The Joint again braska court held bond ineffec- $1,500,000 damages of after ture incurred identify it tive because failed to where and 17, 2007, as a result of Controlled January Fi- upon whom service should be made. agreement. Air’s breach nally, after the Joint corrected all Venture mistakes, the court purported Nebraska lien fore- Believing that its ruled on the motion to dismiss. litigate to the action could serve closure parties, the dispute between Con- entire The Nebraska court first noted that the asking a motion the fed- trolled Air filed lien,3 discharged bond the real estate but from or dismiss the eral court to abstain that action then concluded the foreclosure of contract claim breach Joint Venture’s was still in existence “in so much as the of Missouri. Be- in the Eastern District surety lien is transferred to the submitted court forum could lieving that the federal basis, bond.” On this the court held that purpose, same the Joint Ven- serve the validity original the of the construction lien in a lien relief bond Buffalo ture filed might the amounts that be owed on it and Nebraska, in accordance with the County, Thus, question. in still the court were NCLA, releasing the construction lien remedy that an appropriate decided was clearing the lien from the title to the in not available the federal forum and de- A to question. real estate in motion dis- the motion to dismiss. nied stay Air’s lien foreclo- miss or Controlled contract action not Although had by was then filed proceeding sure Nebraska, court, in been asserted the state in the District Court of Joint Venture Thus, making ruling, applied a fo- its Nebraska Re- County. Buffalo federal-state dispose § of the fight rum came to life. vised Statute 25-415 forum clause. That sec- contract’s selection Proceedings A. Nebraska recognition fo- tion codifies Nebraska’s clauses, provides rum selection but five motion to The Joint Venture’s dismiss originally proceeding alleged exceptions. While the the lien foreclosure by surety by exceptions poten- bond a viewed three of the as filing that a issued price. Tilt-Up payment of his or her contract was error. Pursuant to Nebraska Re- This 52-131(1), (includ- Concrete, any person § City/Fed., vised Statute Inc. v. 255 Neb. Star Venture, ing prime (1998) Joint contractor as (quoting 582 N.W.2d § Statute 52- defined in Nebraska Revised 52-131(1)). § Neb.Rev.Stat. " 127(8)), or materials 'who furnishes services improvement pursuant to a real estate con- analysis. 3. This was a correct " lien[,]' tract has a construction to secure Clearly tially applicable, ultimately believing it determined that the federal con- tract action and the state lien foreclosure that the Joint Venture’s bond was ineffec- proceeding were matters5 —un- releasing from real tive the lien Venture, fact that aware the Joint estate, creating an in rem action that had protest under and out of an abundance of disputé- to be resolved at the situs of the caution, had later asserted its contract ac- However, stated, isebraska. as earlier Air in against tion Controlled the Nebras- recognized Nebraska court later its error court, Air, ka Abengoa Controlled Inc. v. efficacy releasing to the bond Neb., LLC, (D. Bioenergy No. CI07319 thereafter, upon the real estate lien and 2007) County, Ct. Buffalo Neb. Oct. reconsideration, made its dismissal deci- (answer counterclaim) —the upon purported sion based district court first referenced the six ab- “unique[ness of the lien to the Ne- action] stention factors created Colorado River jurisdiction” making remedy braska — proceeded and then to discuss each in in the federal forum. available As men- turn. The court following found below, tioned the federal district court (1) factors favored abstention: while the error, found this to be a matter with which Nebraska action is not in rem and the agree greater we discuss detail juris- state court does not have exclusive Section IIA. diction, the state court has an interest (2)

adjudicating the dispute; al- lowing the federal action to continue would Proceedings B. Federal (3) in piecemeal litigation; result the Ne- The District Court for the Eastern Dis- forum; braska court ais more convenient trict of recognized subject Missouri its (4) (5) controls; state law and the state jurisdiction matter but granted Controlled adequately court can protect the Joint Air’s motion to abstain from and dismiss rights. Venture’s The sixth and final fac- the Joint Venture’s breach of contract ac- (of regarding priority tor filing the fed- tion, but after the Nebraska court eral contract action and the state lien fore- jurisdiction retained over the action) lien foreclo- Then, closure was held neutral. proceeding.4 sure The Joint Venture dis- the district court abstained from and dis- puted Controlled Air’s motion to in missed the abstain federal case. grounds

the federal case on that the con- clause, Turning to the forum selection struction lien property longer was no un- considered, separately which it der the exclusive control of the Nebraska that “any questions concluded of fo- court and because the forum selection validly rum were by decided the Nebraska jurisdiction clause that mandated over its court.” The district court concluded that contract action in properly was the federal a question abstention was for it to decide court. while enforcement of the forum selection respective Controlled Air's motion parties plan to dismiss for lack on the ethanol located personal jurisdiction improper factor, venue although in Nebraska. This it does not was appeal denied. As Controlled Air did not abstention, weighs mandate in favor of ab- ruling today. that it is not before us Appellants' App. stention.” at 125-26. currently pending "There is before the Ne- 5. The formulating federal district court in its involving braska state court an action states, abstention and dismissal order for in- property same Parties and the same at issue stance, dispute "both the contract before this in the suit before this Court.” Id. Court, and the collection actions in the Ne- N.W.2d 604. court, performed by braska involve work judgments satisfy a realization on to left “to question best clause was Concrete, Tilt-Up Nebraska state judgment of the NCLA-based claim. sound timely Inc., filed a Venture City/Fed., court.” The Joint Inc. v. 261 Neb. Star (2001). court im- that the district alleging And, appeal any 621 N.W.2d and dismissed. abstained properly in grounded equity. Tilt-Up action is Concrete, City/Fed., Inc. v. Star II. DISCUSSION (1998). It Neb. 582 N.W.2d availability of a federal Because the appeal is reviewed on de novo on the rec- claim has for the lien foreclosure forum in limits an Nothing ord. Id. the statute the Colorado River an issue both been courts and it NCLA action Nebraska enforceability of ruling and the already correctly by has been determined clause, that selection we discuss the forum judge the federal the United States at the outset. matter for the District of District Court Eastern subject juris- Missouri would have matter Jurisdiction A. Lien Foreclosure dispute diction over the lien as well as over the lien dis- jurisdiction Nebraska jurisdiction over the personal only in the sense that the “unique” pute proper venue. See n. 4. statute, NCLA, gov- here damages amount of erns the nature and NCLA, “[a]ny person Under may claimant recover its con- the lien having may an interest real estate re more. dispute, nothing lien Of struction estate ... lease the real from liens course, routinely interpret federal courts [depositing the office of the clerk of the Frequently, law. apply state district court ... a [appropriate Nebraska] than one statutes from more appeal, § surety Neb.Rev.Stat. 52- bond.” piece litiga- play single are in a 142(l)(a). bond, deposit of a Upon tion. rights “the claimant’s are transferred from the real estate to bond and the [that] specify does not The NCLA claim claimant establish his or her that must be used to procedure forum or 52-142(3). Upon § under the Id. [Act].”6 remedies under the rights and determine validity amount determination of the § A Neb.Rev.Stat. 52-155. legislation. claim, the shall render applicable to of a lien court may any procedure use NCLA, may extent that it be consid- vendor such as is limited to the 6. Under the a contract actually part compensation for services ren- unpaid to the ered Controlled Air “is entitled dered, distinguished from the amount of price when the [ ] [ven- of his or her contract substantially performed the contractor's loss because of owner's the con- dor] has Thus, tract,” incorporated at Con- profits breach of contract.” Id. 615. which includes Concrete, damages Tilt-Up trolled Air is limited in to the rea- the contract. into provided value of labor and materials When a vendor has not sub- sonable N.W.2d prevent- stantially performed because Controlled Air claims it was the contract or has been work, however, project. completing the completing it ed from work on prevented from And, sure, only asked for only to be Controlled Air "entitled to a lien for the reasonable is unpaid performed [] amount for the services “[t]he value of the labor he or she has furnished, may, furnished.” Controlled Air or she has materials [] and the material he however, separate file a action for breach of have a lien for the dam- the cannot [vendor] profits the lost on the contract. ages contract.” contract for sustained from the breach of Concrete, Yet, Supreme Tilt-Up 621 N.W.2d at 507-09. Court noted See Id. the Nebraska shows, Air as the record Controlled has entitled to a reasonable So far "[a] that contractor is so in either Nebraska or Missouri profit performed that is secured not done on the work lien, though profit the courts. by a even construction judgment against surety company. the Id. Colorado River for an abuse of discretion. Pure, Thus, Holdings, Mountain LLC v. Turner Air files a fore- whether Controlled LLC, Missouri, only in Nebraska or closure suit courts, however, “virtually Federal have a bonding a claim against

the amount of unflagging obligation ... to exercise by the company is dictated NCLA. Recov- jurisdiction them, given even when there is ery requires proof under the bond first pending involving state court action improvement contract” that a “real estate (internal subject same matter.” Id. cita- § actually been entered into. Id. 52- has omitted). Thus, may tions a federal court 131(1). case, question In jurisdiction by abstaining divest itself of whether such a contract exists between parallel when state and federal ac- Air and Controlled is an- Joint Venture exceptional tions exist and circumstances law—the law by swered Missouri selected warrant abstention. Colorado River Wa- if agreement. under their And even States, ter Conservation Dist. United by law applicable governed is 800, 817-18, 424 U.S. statute, the federal court can make that (1976).7 L.Ed.2d 483 So, determination. once it is established improvement that a valid real estate con- Six non-exhaustive factors have been de- whether, veloped tract exists and that the Joint Venture to determine the case by receiving that contract and of state and proceedings, breached federal failing pay exceptional pro- for labor and materials circumstances warrant absten- Air, tion. by recovery vided Controlled under These six factors are: through (1) is judgment bond had whether there is a res over which against surety company. § Id. 52- jurisdiction, one court has established 142(3). (2) the inconvenience of the fo- (3) rum, maintaining separate whether In the event judgment that such a piecemeal litiga- actions result rendered the federal court for district tion, unless the relevant law would re- Missouri, may the Eastern District of it be quire piecemeal litigation and the feder- transferred, necessary, if to the District (4) severed, al court easily issue is which Nebraska, County, Court of Buffalo priority necessarily case has which —not through the Uniform Enforcement of For- was greater empha- case filed first but a eign Judgments long ago Act enacted progress sis on the relative made §§ Nebraska. See id. 25-1587.01 to (5) cases, whether state or federal law however, likely, 1587.09. It is any controls, especially favoring the exercise bonding company authorized to do busi- jurisdiction where federal law con- ness in directly subject Nebraska is also (6) trols, adequacy of the state process service of in the federal courts of forum to protect plaintiffs the federal Missouri. rights. Pure, Mountain 439 F.3d at 926. In this B. Federal Court Jurisdiction case, the district court abstained based 1. Abstention five of the six factors and dismissed the a We review district court’s decision to case without ap- further comment. On exercising jurisdiction abstain from over peal, parties’ focus on the district and, the federal court contract analysis action under court’s of these six factors beyond weightier place. 7. When a federal court moves absten- reasons have to be in Colo- dismissal, here, River, 818, considerably tion to 424 rado U.S. at 96 S.Ct. 1236.

535 separately, viability pendency of the forum selec- The of a state claim based on tion clause. Because the federal district general subject the same or facts matter compared court the federal contract as a federal claim involving the same action and the state lien foreclosure ac- parties is not alone sufficient. Federated tion, clearly non-parallel proceedings, the Corp. Rural Elec. Ins. v. Ark. Coop., Elec. provide Inc., (8th River doctrine did not 294, Cir.1995). Colorado 48 F.3d 297 Thus, judgment. actually Rather, basis for its we similarity a substantial must exist need not consider whether between the state and federal proceedings, properly weighed factors. above similarity which occurs when there is a Nonetheless, note, for a reason we later substantial likelihood that pro the state carefully analyze application we of fully ceeding dispose will of the claims components these the federal district presented in the federal court. TruServ court in IIB2. Section Corp. Flegles, 584, v. 419 F.3d 592 (7th Cir.2005). analysis This focuses on Proceedings a. Parallel they exist, matters as currently not as matter, As a threshold as above indicat they Baskin, could be modified. 15 F.3d ed, pending parallel there must be Moreover, at 572. in keeping with the proceedings and federal court before Colo Supreme Court’s charge to abstain in lim implicated. rado River is In re & Burns only, jurisdiction ited instances must be Wilcox, (8th Ltd., 475, 54 477 F.3d Cir. if any exercised there is doubt as to the 1995) (citing Twp. Baskin v. Bath Bd. of parallel nature of the state and federal (6th 569, Zoning Appeals, F.3d 571-72 Int’l, AAR proceedings. Inc. v. Nimelias Cir.1994)), limited grounds by on other S.A., (7th 510, Enter. 250 F.3d Cir. Co., Quackenbush v. Allstate Ins. 517 U.S. 2001). 710-11, 706, 1712, 135 L.Ed.2d 1 (1996). establishing compre Precedent principles mind, these With we start of “parallel proceedings” hensive definition with a specific finding that Controlled purposes for of Colorado River abstention Air’s lien foreclosure proceeding is not scarce in Although this circuit. to the Joint Venture’s breach involving court has decided several purposes cases contract action for of Colorado proceedings, such none has discussed the River abstention. Air Controlled is seek- specific elements of parallelism. ing Other to foreclose a statutory lien have, however, circuits pur defined it for for labor and materials furnished on and poses of Colorado January River. Great Am. Ins. before 2007. The Joint Ven- Gross, (4th ture, however, Co. v. 468 F.3d Cir. seeks common law contract 2006); Beloit, Tyrer City damages South January losses incurred after (7th Cir.2006); 17, 2007, F.3d Ambrosia as a result of Controlled Air’s Morales, & Const. Pages Coal Co. v. 368 breach of the subcontract. While both Cir.2004); United actions stem from project the same Cruces, City States v. Las contractual relationship, premised each is prevailing The on a different wrong arising from different proceedings view is that state and federal Upon completion occurrences. of the lien foreclosure, purposes only are for of Colorado River issue decided will substantially par abstention when similar have been whether labor and materials litigating substantially provided ties are similar is were which the Joint Venture pay. sues both state and federal court. This has failed to A decision on that requires precision. claim, circuit more which has been asserted 536 (2004); 369, Lincoln Lumber court, foreclose issue of N.W.2d 372 will not

state Lancaster, 585, Air breached the sub v. 260 Neb. whether Controlled Co. 618 676, (2000); Mahan, and whether Joint Venture contract v. N.W.2d 679 C.F.S. According a damages as result. incurred 615, (Mo.Ct.App.1996); 934 S.W.2d 618 foreclosure action will not ly, the state lien Heibel, 511, 178 351, Old v. 352 Mo. S.W.2d in the contract dispose of all issues federal (1944). 352 See, e.g., George v. Stratum action. Weis Co. by Almost were identical facts addressed Inc., 486, 227 sign-Build, De S.W.3d Co., the Fourth Inc. v. Circuit Gannett (Mo.2007) (holding a lien is a claim 489-90 Group, Clark Construction 286 F.3d a against surety bond— property —here hired Gannett Clark to against is a claim a and of contract breach Today headquarters, build a new a USA thus, person; the lien proceeding did arose, dispute work ceased. and Id. at action). of dispose of the breach contract 740. a Gannett filed federal action for judgment in the any Neither will rendered breach of and filed contract Clark a lien judicata lien action be foreclosure res dispute. Virginia the contract foreclosure action court. a subsequently Id. Clark filed motion to law, required evidentiary of The sources stay dismiss or the federal proceedings damages, measures of and treat showings, action, pending the outcome of the state appeal ment on are also distinct for each stay Gannett filed a motion to abate or is, at part, claim. lien amount least in The proceedings. the state Id. The federal statute limited based on Nebraska and is district court Clark’s granted motion to The breach contract the NCLA. of stay the proceedings pursuant to the Colo- claim, hand, is on the other based on Mis rado River doctrine. abstention Id. at souri common law and entails the satisfac 740-41. tion five different Berra v. of elements. Builders, Inc.,

Papin 706 S.W.2d 73-74 reversed, The holding Fourth Circuit (outlining (Mo.Ct.App.1986) the five breach proceeding the state lien and the fed- elements). The contract difference in eral breach of contract action were not these claims highlighted recoveries for was parallel. at The court Id. 741-43. found Refrigeration in Preston Co. v. Omaha the federal contract action and the state Terminals, Storage Cold where the court lien action involved different with issues unpaid a “the said lien is cost of materials requisites proof. different Id. at 742. actually expended,” a labor while Further, the remedies were different as breach of contract action concerns the sought the state lien action foreclosure on a damages incurred as result of incomplete (here, property proceeds) the bond and the performance. Neb.App. 228, sought compensato- federal contract action (2007); see Sys. N.W.2d also Info. Thus, ry damages. Id. Corp. City City, & v. Networks Kansas contract action and the state lien action (8th Cir.1998) (address 147 F.3d parallel proceedings were not and Colora- ing damages). Finally, breach of Id.; apply. do River did not grounded equity, lien foreclosure is Beckley Mining Corp. see also New v. appeal tried to the court is re UMW, (4th Cir.1991) 1072, 1074 record, viewed de novo on the while the (holding federal actions not par- state and claim an breach of contract action at law purposes allel for Colorado River because presented jury which be and is eq- different —one was factually reviewed for clear error. Par remedies were Livingston, compensatory Inc. uitable Neb. and the other —and

537 Air, the sources of law came from different abundance of caution.” Controlled states). CI07319, No. answer and counterclaim at So, time, point 2. at that in the contract sum, In lien pro- the state foreclosure action asserted the Joint Venture dispose not of the federal con- ceeding will was, against Controlled Air ostensibly, law, tract action and the sources of reme- pending both the Nebraska court and sought, proof, dies elements of review on the federal district court for the Eastern appeal, giving and events rise to each District of Missouri.8 Additionally, cause of action are different. event, however, Air Controlled has never asserted the lien This did trigger par- claim in foreclosure the federal district allelism between the proceedings pending So, foreclosure, court. as to the lien there principle the two courts. The cases is neither similar claims nor similar this circuit defining when actions become parallel purposes both state and federal courts as re- for abstention are Scotts- Thus, quired parallelism. Industries, for Colorado dale Insurance Co. v. Detco Inc., Cir.2005), River was not available to the federal 426 F.3d 994 and Roy- adjudication Indemnity of the correct locus of al Apex Co. v. Oil Co. the contract action. F.3d 788 As opposed to abstention, Colorado River these cases b. Similar Claims concern the so-called ab- Wilton/Brillhart doctrine, foregoing analysis The does not our stention end Wilton v. Seven Falls Co., inquiry. the Nebraska court When denied 115 S.Ct. (1995);

the Joint Venture’s motion to dismiss the L.Ed.2d v. Brillhart Excess claim, America, lien the Joint Venture answered Insurance Co. 316 U.S. of (1942), Controlled Air’s lien foreclosure action in S.Ct. 86 L.Ed. 1620 a doctrine time, the Nebraska court. At that same granting broader discretion to abstain but protect continuing its interests the face of to require parallel- federal-state dismiss, Controlled Air’s federal motion to ism. Scottsdale counsels that the “thresh- Venture, the Joint while ... refusing parallel to ac- old issue is whether proceed- knowledge the of ings pending correctness Nebraska were in state court at the venue, asserted its breach of contract ac- plaintiff] brought time [the its [fed- court, “only tion in state but out action.” 426 F.3d at In eral] 996. this Air, Unfortunately City, for Controlled this turn In notify the failure to the dis- Jefferson advantageous of events is not to its abstention alleged parallel trict court of an proceeding, stated, already and dismissal contentions. As and, thus, limiting ability the court’s to exer- nothing there is in the district court record matter, regarding cise its discretion was concerning the breach of contract counter preclude considering held to this court from Further, upon questioning by claim. alleged parallel proceeding appeal on for court, Controlled Air conceded that the coun purposes. Id. at 604-05. In Jef- terclaim was "not filed with the court.” Nei City, appellant appealed the denial ferson ther was the counterclaim ever mentioned in citing aof motion to abstain a state court case briefings to this court. These facts alone parallel proceeding. as a We Id. affirmed any newly argument foreclose minted that the noting appellant "has not indicated federal contract actions are where in the record it made the district court purposes of our consideration Thus, aware of this case.” Id. at 605. be- appeal. City the issues in this See of Jefferson cause district court was unable to exercise Wireless, LLC, City Cingular 531 F.3d 595 discretion, appeal its and this court on is not (8th Cir.), cert. denied sub nom. Alltel view, alleged parallel pro- court of first Commc’ns, City Springfield,-U.S. LLC v. ceeding ignored appeal. was Id. -, (2008). L.Ed.2d River Abstention 2. Colorado out case, parallelistic rule defeats such federal the Joint Venture’s come because discussion, that as Assuming, for well before Controlled was filed action law parallel common purportedly sertion claim and foreclosure lien Air’s Nebraska forums, in both claims occurred before the Joint Venture’s longer much federal district court’s we must assess the assertion. of contract Nebraska breach with Colorado findings for conformance be read to Indemnity might Royal While reiterate, however, First, that we River. strictly result based a different provide purposes, River Colorado time, it otherwise demands filing upon the federal reached any conclusion must proceeding court that “the state of the com arising comparisons from court ‘the same federal statutorily court] present [to contract action and mon law law, issues, be governed by wholly claim were foreclosure based lien federal ” at 796 parties.’ Supreme 511 F.3d Court and tween the same irrelevant under both added) Brillhart, use (quoting precedent. Because of Eighth Circuit (emphasis 1173). mismatch, been, there has 495, a cir improper Such of this at 62 S.Ct. date, in record to a no reference in case at the to not exist cumstance did Riv comparative analysis under Colorado from and time the federal court abstained forum and the federal er of the Nebraska ac Venture’s contract dismissed Joint by the district court with forum federal Notwithstanding the federal court’s tion. they actions as regard to these contract adjudication of conclusion that erroneous lately pended purportedly have best left “to forum selection clause be mind, we jurisdictions. both With judgment of the Nebraska the sound analyze each of the again turn enforcement, not, court,” of the contrac or in its findings court’s as set forth federal clause was a federal tual forum selection judgment of abstention dismissal. governed by matter fed procedural Finding One: v. Plumbing, LLC eral law. Servewell (8th not in rem and the Co., 786, While the action was Cir. Fed. Ins. 439 F.3d EklecCo, not have exclusive Nebraska court does 2006); Café, Inc. v. Rainforest (8th court has an inter- Cir.2003); jurisdiction, the state L.L.C., 544, 546 340 F.3d adjudicating dispute. the contract Inc., est Amplicon, Inc. v. Sys., Int’l Software Cir.1996); Analysis: Jones 77 F.3d 114-15 (2d Weibrecht, Cir.1990); 901 F.2d jurisdiction and exclusive The rem arrow, Amer., Inc. v. Gucci Manetti-F lien obviously refer to the references (9th Cir.1988); 509, 513 the contract claim because foreclosure Org., Corp., Inc. v. Ricoh Stewart claim no such issues. While presents banc) (11th Cir.1987) (en (per may have an interest the state court curiam), 487 U.S. grounds, on other blooming contract adjudicating the late aff'd (1988); 101 L.Ed.2d claim, equal have an the Missouri courts LLC, Sambucks, Systems, adju- Inc. v. Vessel interest in significantly greater or 05-DF-1028-LLR, 2007 WL 715773 dicating No. the contract claim because (N.D.Iowa 2007). So, Mar.6, upon by even as as agreed forum selection clause jurisdictions, the Joint Ven a Missouri court parties specifies serted both And, en- presents claim a federal law Missouri law. applying ture’s contract issue, clause forceability in the feder of the forum selection forum selection least court is one of This, course, by the federal district parallel defeats al court. not Nebras- procedural law and Indemnity precedent. Royal ism under

539 erroneously ka substantive law as indi- ment in the federal court will require Also, by the court. application cated federal of federal law. Otherwise federal district court has little or no though, state law will in apply the feder ignore and, discretion to the Joint Venture’s al court in the Nebraska forum filing claim, choice of the federal forum for the toas the contract it will be Mis claim, law, of its even the absence souri not that of Nebraska. And presence of a forum selection clause. “the of state law issues [in weigh will court] favor of ab Finding Two: only stention in rare circumstances.” Allowing the federal action to continue Corp. Federated Rural Elec. Ins. Ar v. piecemeal litigation. would result in kansas Coops., Elec. 48 F.3d Analysis: piecemeal litigation There will be no in- Finding Five: volving Litigating the contract claim. The state court can adequately protect claim, the hen foreclosure if that is the rights. the Joint Venture’s comparison being made the federal finding, require sepa- will Analysis: rate, piecemeal, litigation and thus it is true that While the Nebraska jurisdiction, although joinder either of adequately court can protect the Joint separate possible claims un- be rights, Venture’s it can do so no more der of Rule 18 the Federal Rules of Civil efficiently than the federal district court. Likewise, Procedure. there is no cer- And, this factor against counts for or court, tainty that the Nebraska even abstention and dismissal where correctly applying forum se- “one of the inadequate forums is to pro precedent, lection or could would fail to tect a party’s rights.” Employees Gov’t enforce the contract’s Missouri forum Simon, Ins. Co. v. 917 F.2d selection clause when faced with the is- (8th Cir.1990) (emphasis in original) sue the contract claim. S., (quoting Noonan Inc. County v. of Finding Three: Volusia, (11th Cir. 1988)). Thus, The Nebraska court is a more conve- this reason is no better nient forum. than an push even for each forum and certainly provide does not an “exception Analysis: al required by circumstance” as Colora agreement Given the contract do River. law, apply Missouri the Nebraska forum Finding Six: is at incrementally least less convenient And, than the Missouri forum. “mere Priority filing the cases is neutral. party inconvenience to a is an insuffi Analysis: cient basis to defeat an otherwise en It may be true that “time of forceable forum selection clause.” filing” of the contract claim and the lien Plumbing, Servewell 439 F.3d at 790. claim fairly foreclosure could be evaluat Finding Four: But, ed as neutral. compared when State law controls. filing with the forced time of the con Analysis: court, tract counterclaim state it is a likely Further, It is correct that state different priority law matter. course, apply, except, will filing to forum a plaintiffs includes choice of fo “ enforcement. Forum clause enforce- rum. plaintiffs ‘[T]he choice of forum ” Thus, from and dismissal Reid- rarely be disturbed.’ should claim was Hansen, federal contract Joint Venture’s v. Walen Cir.1991) Corp. Oil of discretion and would be abuse (quoting Gulf 501, 508, 67 Gilbert, S.Ct. error. reversible (1947)). courts 1055 “[F]ederal L.Ed. 91 plain to a deference give considerable III. CONCLUSION Int’l, Inc. Terra of forum.”

tiffs choice reasons, we reverse foregoing For the Corp., Chem. Mississippi v. for pro- the district court and remand to Cir.1997). Accordingly, 688, 695 opinion. this ceedings consistent with the retention of clearly favors this factor court, the by the federal claim contract BYE, concurring in the Judge, Circuit the Joint Venture which chosen forum part. joining result and the dissent contract claim. first filed its there has summary, although court’s decision to In I the district conclude analysis River jurisdiction Colorado under purported exercising been from abstain by the filings of the non-parallel of Dis- Conservation Colorado River Water court, under court has never the States, 800, district v. trict United pleadings a review of the contract taken (1976), was an 47 L.Ed.2d 483 S.Ct. So, very at the that case’s doctrine. under Thus, I concur in the of discretion. abuse least, a remand to the dis there must be the reversing decision result of the court’s reading that A of purpose. trict court for however, the agree, I with district court. record, however, that dictates the entire River view as to the Colorado dissent’s the unnecessary. Under such a course is to this dis- applying abstention doctrine case, this ab circumstances of uncontested “original- rejection with its pute and as a matter of unsupportable stention is that as a ly approach. I would hold filed” or of the reasons advanced law. None breaeh-of- result of the Joint Venture’s by advanced the that could be counterclaim, lien the Nebraska extraordinary conditions provide court the pro- contract suits are and federal for a federal by Colorado River required actually existed when the ceedings they “virtually unflagging disregard its court to abstention order. district court issued its jurisdiction” ... to exercise the obligation River absten- apply I would the Colorado pending when there is also given it is even dissent, articulated tion doctrine as involving the same court action abused its hold the district court but would Pure, 439 F.3d subject matter. Mountain jurisdic- declining to exercise discretion River analyzing at 926. In Colorado tion. factors, court’s task was and is excep exists “to ascertain whether there SHEPHERD, Judge, dissenting. Circuit circumstances, justifi of the clearest tional affirm the I we should Because believe cations, justify that can ... suffice court, respectful- I of district judgment Indeed, jurisdiction.” Id. [ ] surrender two is- appeal presents This ly dissent. appellate are a court of though even we (1) and federal Are the Nebraska sues: view,” review, “not of first Cutter Wil (2) so, If “parallel proceedings”? actions kinson, 718 n. 544 U.S. court abuse its discretion did the district (2005), it is more 161 L.Ed.2d River? On by abstaining under Colorado or that no such circumstances than obvious issue, Judge disagree I with the first any acceptable justifications exist under in Part II.B.l of his conclusion of action. Beam’s analysis any of the causes Inc. v. Group, the Nebraska and federal Clark Constr. opinion However, ante at parallel. are not See 534-38. suits 22, 2007, issue, October months disagree I with the four the second On before abstained, district court the Joint Venture majority’s conclusion that district filed a counterclaim Nebraska suit by abstaining. its discretion See abused asserting the same cause of action for at 538-40. id. breach of contract that it asserted feder- I. al court.9 The Fourth Circuit recognized possibility The Nebraska federal ac scenario in Gannett. (“We “parallel proceedings.” Judge are Id. at 742 tions n. note that ... are not parallel equity Beam contends the cases court in Lien pos- the State Action Air’s lien power because Controlled foreclosure sesses the to resolve the breach of issues, and the Joint action for contract in suit Venture’s which case the State of involve breach different Lien Action would arguably parallel be law, sought, Action, of remedies the “sources elements Federal Contract but neither proof, appeal, of review on and events Clark nor has sought Gannett such relief ” Action.”). rise to cause of action.... in giving each the State Lien As a result of agree counterclaim, at 537. I that a construction the Ante Joint Venture’s the state lien foreclosure action and a suit for and proceedings federal in this case in- issues, breach of contract do not involve “substan volve substantially similar and the and, thus, tially similar issues” are not state action will undoubtedly dispose of the proceedings” purposes of “parallel for Col federal suit for of breach contract.10 Co., Therefore, River abstention. See Gannett parallel. orado the actions are See that, Inc., 08-1712, Judge (8th Beam because contends "there No. 2008 WL 4929985 Cir. 26, 2008) (the nothing Sept. in court record is con Joint Venture and Con- counterclaim,” cerning the breach trolled Air the parallel of contract conceded that suits are newly filing counterclaim). any argu fact minted and the of the "foreclose[s] this referenced light parties’ repeated that the and In of the mutual ment Nebraska federal contract and concessions, parallel purposes taking judicial actions are for of our con notice of the Joint appeal.” appropriate this Venture’s is sideration issues in Ante counterclaim in this However, judicial litigants 537 n. 8. "we take case. We fault the at should not for failing proceedings of other concerning notice in courts that to introduce evidence legal they to matters at Great issue that have relate issue.” Plains Trust never contested. Co., v.Co. Union R.R. 492 F.3d Pacific (8th Cir.2007). Further, the Joint 996 Ven "parallel proceedings,” 10. To constitute state conceded, and ture Controlled Air have both and federal not be actions need mirror im- appeal, the district court and on that the ages. Judge acknowledges, As Beam "a sub- proceedings parallel. are See Fru-Con similarity stantial must exist between the state Air, Inc., Corp. Constr. v. Controlled No. proceedings, and similarity which oc- 4:07CV00495, 5, 12, slip op. n. at 11 2007 WL curs when there is a substantial likelihood Feb.26, (E.D.Mo. 2008) ("Where is proceeding fully dispose that the state will dispute that involve no both cases the same presented claims the federal court.” “[bjoth actions involve contract” (citing Corp. Flegles, Ante at 535 TruServ v. contract”); (Appellee's Inc., construction (7th same Br. Cir.2005)). 419 F.3d In ("The clearly case, federal and cases Nebraska present virtually it is certain that the parallel proceedings. action, [The are Joint Venture] which includes both Con- parallel acknowledged cases are has trolled Air's lien claim foreclosure and the not raised issue has this as an before the Joint Venture's counterclaim breach of Court.”)); contract, fully dispose District Court or this Audio Re will of the Joint Ven- 2:28, 10:41, cording Argument singular of Oral ture's breach-of-contract claim in 16:30, Air, Corp. Fru-Con Constr. v. Controlled federal court. Inc., Venture five months after the Flegles, v. 419 F.3d Joint filed Corp. TruServ Cir.2005). (7th Nebraska suit commenced. 584, 592 belief, Contrary does to this Scottsdale Beam asserts that Judge “originally approach. not filed” mandate counterclaim for breach filing of the best, At language Scottsdale dicta trigger parallelism not be contract “did and, therefore, panel’s does not bind two pending in the proceedings tween the Astrue, v. decision. See Passmore He that we Ante at 537. asserts courts.” Cir.2008) (“[w]e (8th need by Scottsdale Insurance Co. are bound omitted)); (quotation not follow dicta” Industries, 426 F.3d 994 Detco John Morrell & Co. v. Local Union 304A Scottsdale, Cir.2005). held In this court Workers, United Food & Commercial tort suits a federal multiple (8th Cir.1990) (“[w]e declaratory judgment action11 were not dicta,” not “language need follow which is they did not “sub because involve opinion ... earlier [an] [ ] [that] was stantially the same issues” and because case”). judgment in that essential to the a party was not to the state Scottsdale case, present Unlike In so holding, Id. at 997. actions. Scottsdale never filed counterclaims or the issue court characterized as “whether parties otherwise the or in altered issues parallel pending were in state proceedings in volved their state and federal actions. brought court at the time Scottsdale its Scottsdale, at 996-97. See 426 F.3d Be declaratory judgment action.” ifederal] altered, cause suits were never it was added). (emphasis Judge Id. Beam at 996 not court’s judg essential to the Scottsdale in language arguing to this that we refers ment to that we must determine view the as proceedings must view the in this case proceedings they original as existed when they when the lien suit existed filed, ly point as other opposed to some action originally and federal contract were time. filed, actually they not as existed when the Therefore, Royal ac Indemnity district court abstained. Our recent decision view, Co., Inc., Apex we 511 F.3d cording to this cannot consider Co. Oil Cir.2008), proves further that we the breach-of-contract counterclaim do not parallel, "exceptional proceedings test from are not the district 11. The circumstances” abstain; however, apply River does not to actions for still has some discretion to Colorado declaratory judgment. it does discretion Prudential Ins. Co. not have the broad outlined Doe, Scottsdale, (8th Cir.1998); Am. v. in Wilton. 426 F.3d 999. In- stead, Co., Wilton v. Seven Falls we the court’s see also review abstention deci- 277, 286, stringent 132 L.Ed.2d 214 sion under a more six-factor test. (1995) ("Distinct Declaratory (adopting features of Id. at 998-99 six-factor test Judgment justify vesting ... a Act standard from Aetna Cas. & Sur. Co. v. Ind-Com Elec. Co., (4th Cir.1998) greater (per with de- district courts discretion in 139 F.3d 419 cu- riam)). However, claratory judgment permit- actions that we use the same than test to 'exceptional parallel ted under the circumstances’ test determine whether cases are in de- Cone."). claratory judgment non-declaratory judg- of Colorado River and Moses H. De- and distinction, ("Suits spite question par- this ment See id. at 997 threshold actions. are proceedings parallel substantially litigate allel if the same of whether exist remains necessary inquiry declaratory judgment substantially the same issues in different fo- Therefore, omitted)). (quotation determine the rums.” actions to extent of the district de- parallel claratory proceedings judgment ap- discretion. If ex- abstention cases court’s are ist, plicable present they we the abstention under case insofar as review decision expressed question the lenient test in Wilton. Pruden- concern the of whether threshold Co., parallel proceedings F.3d at tial Ins. 788-89. If the exist. an “originally approach follow filed” the state insurers would not disposed have In Royal Indemnity, Apex circuit. Oil of the against federal action Royal Indem- against multiple filed suit state court nity insurers, and the federal proceed- (the insurers”) companies insurance “state ings parallel they were not existed when 5, 2005, August seeking on a declaration of TruServ, originally filed. See 419 F.3d at parties’ rights responsibilities un- Only Apex after Royal Oil added policies der the state insurers had issued Indemnity and the federal insurers as de- Apex Oil. Id. at 791. March On fendants the state action did pro- Royal Indemnity brought declaratory ceedings parallel become because the state judgment action in against federal court action disposed would have of the entire Apex Oil that named several other insur- federal case. See id. Under the “original- (the insurers”) ance companies “federal ly approach, filed” because the suits were adjudication sought parties’ parallel filed, as originally rights obligations policies under court could not have had broad discretion Royal Indemnity and the federal insurers Wilton; to abstain under it could Apex later, had issued Oil. Id. Two months have had limited discretion to abstain un- 19, 2006, May Apex Oil amended its der Royal Aetna. Contra Indemnity, 511 state-court complaint Royal to name In- (“[W]e F.3d at 797 affirm the district demnity and the federal insurers as defen- court’s decision to apply the Wilton ... dants in the state lawsuit. Id. at 791-92. standard, and ... we hold that The district court found that the state and the district court did not abuse its discre- proceedings and, were tion in abstaining from this lawsuit to al- therefore, exercised its broad discretion to parallel low the state court pro- action to in a declaratory judgment abstain action added)). (emphasis ceed.” under Id. at agreed Wilton. 792. We the state action parallel was and affirmed The fact that we clearly did not

the district court’s decision to abstain un- view the state and federal proceedings as der the broad Wilton standard. Id. at 797. they Thus, originally existed when Royal filed was Indemnity, es the amended complaint, reasoning state-court sential to our judgment filed two months af- and ter Royal the federal lawsuit Indemnity commenced and binding and is on this nine months Passmore, after the state lawsuit panel. (we com- See 533 F.3d at 660 menced, made the proceedings parallel. “cannot overrule an earlier decision an panel”). other In Royal both Indemnity Judge

Under approach, Beam’s the case, and the present the proceedings were Eighth panel Circuit in Royal Indemnity they not as existed when originally necessarily erred. As the state and feder- filed, they but became parallel before al the they suits existed when originally were filed, district court issued its Apex Oil was abstention order. party the common actions, Therefore, Judge approach to both which Beam’s involved different the policies. present insurers and different impermissibly ignores Id. at 791. case our re Apex Because Oil’s state against lawsuit cent in Royal decision Indemnity.12 "[wjhile Judge Royal Beam states that parties.” In- tween (quota- the same Ante at demnity might omitted). provide be read to a different opines tion He further that "en- time, forcement, strictly not, upon filing result based a it or of the contractual forum pro- otherwise demands that the state court selection procedur- clause was a federal court ceeding present must the governed by [to federal the al court] matter federal law” ... issues, law, [and][t]his, course, governed by same parallelism be- of "defeats un- have decisis, district court would the [ ] [federal] issues of stare Moving beyond which to abstain.” nothing River in favor of underlying Colorado principles adopting against Zoning Ap- Twp. counsel Bd. also Baskin v. Bath of deter- to approach filed” “originally peals, actions and federal state mine whether Thus, parallel proceedings of the existence “rest principles Those parallel. are to discretion triggers the district court’s judicial administra- of wise considerations under Colorado River. Under abstain ju- of conservation tion, regard to giving Beam, by Judge to de- approach advanced comprehensive dis- and resources dicial to abstain is whether its discretion termine River litigation.” Colorado position take a the district court must triggered, States, 424 Dist. v. United Conservation federal suits as of the state and snapshot L.Ed.2d 800, 817, originally filed. they existed when omitted). (1976) an- Put (quotation case, or If, present parties as “[allowing litigation way, other have simultaneously proceedings in federal and in the issues involved proceed ultimate- originally because courts is wasteful the suits were changed since actu- jurisdictions will ly only filed, pro- one of taking snapshot a then the case. Once one ally decide says they past in the ceedings as existed will be ruling, a the other court renders abstention will con- nothing about whether give obliged proceedings to halt its judicial promote com- serve resources Er- judicata to the decision.” res effect disposition litigation of the prehensive Chemerinsky, Federal Jurisdiction win Scottsdale, If, the future. as (5th ed.2007). Thus, River Colorado changed, have never then there and issues asks, its if the district court exercises taking snapshot no between difference now, it con- to abstain will discretion they in the as existed proceedings of the promote judicial serve resources taking snapshot proceed- of the past and litiga- comprehensive disposition currently snap- exist. The ings they tion in future? same, and the answer to the look the shots the same. inquiry is parallel proceedings parallel pro presence

The Therefore, principles under- light applica a for the ceedings prerequisite is abstention, only it because, River lying Colorado River abstention tion of Colorado exists, court to view makes sense for the district action parallel unless “a state-court law, procedural by or federal Indemnity precedent.” Id. at 538. state substantive Royal der view, (“Be- interpretation the my Plumbing, In such F.3d at 789 see Servewell Indemnity language Royal would cited from enforceability of a forum selection cause the meaning. If a give words unwarranted those law of clause concerns both the substantive procedur- and federal difference between state venue, procedural and the law contracts necessarily governing actions al law the two disagreement among cir- there is some few, if parallelism, then there will be defeats ap- or federal law cuits over whether state any, River ab- situations in which Colorado adopt yet to a definitive plies, and we have procedural permissible all stention is because we do so here position on the issue. Nor must governed fed- court are matters in federal omitted)); Ra- ...(quotation and citations Tompkins, law. See Erie R.R. Co. eral (“we indulge Café, 340 F.3d at 546 inforest 817, (1938). 82 L.Ed. 1188 U.S. 58 S.Ct. interpret the suggestion that we forum their Moreover, Judge contrary Beam's conten- law” clause under selection 537-38, tion, Plumbing see ante at Servewell argued that parties have not "[b]ecause we make clear that have Café Rainforest materially different law would result in state yet whether enforcement of decided outcome”). governed selection clause is contract's forum and federal- proceedings they as lined Colorado River and Moses H. currently exist to determine whether its Cone Hosp. Mem’l v. Mercury Constr. See, triggered. discretion to abstain is Corp., 460 103 S.Ct. Baskin, (“The e.g., (1983).13 15 F.3d at 572 issue is L.Ed.2d 765 Federated Rural whether the state court proceeding, as it Corp. Elec. Ins. v. Ark. Elec. Coops., exists, currently a parallel, state-court I believe proceeding.” (quotation and alteration the first and third weigh factors in favor of omitted)). All abstention. other factors are neutral and, such, as are “irrelevant to the exis Finally, and most importantly, if state exceptional tence of circumstances.” Fed proceedings and federal parallel are as Rural, erated at F.3d 297. The district originally filed but unparallel become be- court did not abuse its discretion when it fore the district court issues its abstention decided that this presents case type order, an “originally approach filed” would exceptional circumstances that warrant ab trigger still the district court’s discretion stention “in order to advance the ‘clear solely to abstain because the actions were federal policy’ of avoiding piecemeal adju parallel point at some past. Under Rural, dication.” Federated 48 F.3d at approach, court district would Cone, 297 (quoting Moses H. 460 U.S. at have discretion to abstain under Colorado 927). Therefore, the judg though River even there longer would no ment of the district court should be af be a action in which to favor of firmed. Consequently, abstain. such an approach afoul of the runs Colorado River doctrine though Even majority will not af- rejected. and should be As a result of the firm, outright reversal is not appropriate counterclaim, Joint Venture’s the Nebras- in this Judge case. As Beam acknowl- ka and federal actions are “parallel pro- edges, “although there has been a purport- ceedings” they actually existed when ed Colorado River analysis of non-parallel TruServ, the district court abstained. See filings of parties by court, 592; Gannett, 419 F.3d at 286 F.3d at 742 the court has never undertaken a review of 4; Baskin, n. the contract pleadings under that case’s So, least, doctrine. very at the there must II. be a remand to the district Because proceedings parallel, are purpose.” added). we (emphasis Ante at 540 “must consider whether the district court example, For when Judge Beam finds that abused finding its discretion in that ‘excep- “there piecemeal will be no litigation,” ante tional circumstances’ warranted absten- at analysis his —like Gannett, tion.” at 744. Deter- potentially court’s—is flawed because he mining exceptional whether circumstances fails to consider the breach-of-contract requires evaluating exist the factors out- part counterclaim as of the Nebraska ac- 13. The Colorado River and Moses H. Cone greater which case was filed first but a em- "(1) factors are: whether there is a res over phasis progress on the relative made in the which one jurisdiction, court has established cases, (5) whether state or federal law con- (2) forum, (3) the inconvenience of the federal trols, especially favoring juris- the exercise of maintaining separate whether actions re- controls, (6) diction where federal law piecemeal litigation, sult in unless the rele- adequacy protect of the state forum to require vant law piecemeal litigation would Rural, plaintiffs rights.” Federated severed, and the easily federal court issue is omitted). (quotation F.3d at 297 (4) priority necessarily which case has —not Nonetheless, that “[u]nder he finds

tion. case, circumstances

the uncontested of. matter of as a unsupportable is than obvious “it is more

law” and that jus- or circumstances [exceptional]

no such anal- any acceptable exist under

tifications action.” Id. causes of any of the

ysis of id., least,” that, very “at the I believe

540. court will so the district remand

we should the Joint to consider opportunity

have an counterclaim

Venture’s deciding whether ab-

breach of appropriate.

stention America, STATES

UNITED

Appellee, JONES, Appellant.

Ortez

No. 08-2851. Appeals, States Court

United

Eighth Circuit. 10, 2009. Feb.

Submitted: July

Filed:

Case Details

Case Name: Fru-Con Construction Corp. v. Controlled Air, Inc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 24, 2009

Citation: 574 F.3d 527

Docket Number: 08-1712

Court Abbreviation: 8th Cir.