1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FISK ELECTRIC COMPANY, Case No. 18-cv-07671-EMC

8 Plaintiff,

ORDER DENYING WOJV’S MOTION

9 v. TO STAY, AND GRANTING TJPA’S

MOTION TO DISMISS

10 OBAYASHI CORPORATION, et al., Docket Nos. 97, 99 11 Defendants.

12 13 14 The instant case concerns disputes related to the construction of the Transbay Transit 15 Center ( “Transbay Project” or “Project”). In March 2009, the Transbay Joint Powers Authority 16 (“TJPA”) entered into a Prime Contract with the Webcor/Obayashi Joint Venture (“WOJV”), 17 under which WOJV agreed to perform certain preconstruction services, serve as the construction 18 manager/general contractor, and manage and administrator subcontracts with trade subcontractors 19 who would construct Phase 1 of the Project. Subsequently, in November 2014, WOJV and Fisk 20 Electric Company (“Fisk”) entered into a Subcontract under which Fisk agreed to perform certain 21 electrical subcontract work for the Project. 22 Fisk initiated the instant case in December 2018, suing WOJV, the joint venture members 23 (two companies), and sureties. WOJV responded with counterclaims against Fisk and also filed a 24 third-party complaint against the TJPA. 25 Currently pending before the Court are two motions: (1) WOJV’s motion to stay this case1 26 and (2) the TJPA’s motion to dismiss, strike, or stay WOJV’s third-party complaint. Having 27 1 considered the parties’ briefs and accompanying submissions, as well as all other evidence of 2 record, the Court hereby DENIES WOJV’s motion to stay and GRANTS the TJPA’s motion to 3 dismiss. 4 I. WOJV’S MOTION TO STAY 5 The pending motion is WOJV’s second attempt to stay proceedings in this case based on 6 related proceedings in state court. The state court litigation began before this case – specifically, 7 in October 2018, when WOJV filed suit against the TJPA for, inter alia, breach of contract 8 (hereinafter, the “Lead State Action”). In the Lead State Action, WOJV accused the TJPA of 9 being responsible for Project delay and cost overruns and improperly trying to pass on 10 responsibility for such to WOJV and its subcontractors. See Docket No. 60-1 (Dillon Decl., Ex. 11 A) (WOJV Compl. ¶ 9). The TJPA responded with a cross-complaint against WOJV, placing 12 blame on WOJV and its subcontractors, including but not limited to Fisk. See Docket No. 60-1 13 (Dillon Decl., Ex. B) (TJPA Cross-Compl. ¶¶ 88-94). Thereafter, WOJV filed a cross-complaint 14 against Fisk and other subcontractors. See Docket No. 60-1 (Dillon Decl., Ex. C) (WOJV Cross- 15 Compl.). Fisk then filed a cross-complaint against, inter alia, WOJV. (Fisk’s cross-complaint 16 appears to be largely duplicative of the instant action.) 17 In addition to the Lead State Action, there are five other state lawsuits that are related to 18 the Project and that have been consolidated with the Lead State Action (collectively, 19 “Consolidated State Action”). This includes lawsuits brought against WOJV by other 20 subcontractors. 21 Based on the overlap with the consolidated state court litigation, the Court granted 22 WOJV’s first motion to stay, citing the Colorado River doctrine. The Ninth Circuit reversed and 23 vacated the Colorado River stay. WOJV now has filed a second motion to stay, this time invoking 24 different grounds as bases to stay. In the motion, WOJV makes two arguments: (1) the case 25 should be stayed pursuant to the Landis doctrine and (2) the case should be stayed because the 26 Subcontract contemplates that a dispute between the contractor and subcontractor that also 27 implicates the project owner “would be part of a single action against [the project owner].” Reply 1 The Court rejects both arguments. As to the Landis doctrine, see Landis v. North 2 American Co., 299 U.S. 248 (1936), it applies only where the parallel case is another federal 3 district court case. See Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817- 4 18 (1976) (citing Landis in support of the statement that, “[a]s between federal district courts, . . . 5 though no precise rule has evolved, the general principle is to avoid duplicative litigation”); 6 Ambrosia Coal & Constr. Co. v. Morales, 368 F.3d 1320, 1328 (11th Cir. 2004) (noting that the 7 general principle to avoid duplicative litigation, which applies when there are multiple federal 8 district court cases, “does not apply . . . when the duplicative litigation arises between state and 9 federal courts”). When the parallel case is a state court action, as here, a stay may be granted 10 pursuant to the Colorado River doctrine only. See AIIRAM LLC v. KB Home, No. 19-CV-00269- 11 LHK, 2019 U.S. Dist. LEXIS 136744, at *16-17 (N.D. Cal. Aug. 12, 2019) (rejecting the 12 argument that Landis provides a basis for a stay when a Colorado River stay is not merited; noting 13 that Colorado River would otherwise be undermined). In the instant case, the Ninth Circuit has 14 rejected application of the Colorado River doctrine.2 15 As for WOJV’s second argument – i.e., that the Subcontract contemplates a dispute 16 between WOJV and Fisk that also implicates the project owner (i.e., the TJPA) must be resolved 17 in a single action – it also lacks merit. Section 13.02 of the Prime Contract, which is incorporated 18 by reference into the Subcontract – is simply a venue provision. It does not address or mandate 19 consolidated proceedings. Other provisions likewise make no reference to or otherwise suggest 20 consolidated proceedings. See, e.g., Subcontract § 4.1.4 (“In the event the Owner fails, neglects or 21 refuses to pay the Contractor for any reasons whatsoever (except on account of defaults solely 22 attributable to the Subcontractor), Contractor and Subcontractor agree to pursue their rights to 23 payment from the Owner.”); Subcontract § 5.2 (“In the event that Contractor prosecutes a claim 24 against the Owner for additional compensation for any delay, Subcontractor shall cooperate fully 25 with Contractor in the prosecution thereof . . . .”). To the extent WOJV has placed special 26 2 Although WOJV has cited Patel v. City of L.A., 594 F. App’x 415, 416 (9th Cir. 2015), in 27 support of its argument for a Landis stay, that case is not dispositive. In addition to the fact that 1 emphasis on § 5.2, the Court notes that Fisk is fully capable of cooperating with WOJV in 2 litigation between WOJV and the TJPA without formally becoming a party to that litigation as 3 well. 4 Accordingly, for the reasons stated above, the Court denies WOJV’s second motion to stay 5 proceedings. 6 II. TJPA’S MOTION TO DISMISS, STRIKE, OR STAY 7 The TJPA has filed a motion to dismiss, strike, or stay with respect to the third-party 8 complaint (“3PC”) that the WOJV has asserted against it. The TJPA’s primary argument is that 9 the Court should decline to exercise supplemental jurisdiction over the 3PC. 10 To assess the TJPA’s argument, the Court must first bear in mind the scope of: (1) the 11 allegations in Fisk’s complaint against WOJV and (2) the allegations in WOJV’s 3PC against the 12 TJPA. As to Fisk’s complaint against WOJV, Fisk charges WOJV with violating the terms of the 13 contract between the two companies (i.e., the Subcontract). According to Fisk, the Subcontract 14 provided that Fisk would receive additional compensation “for extra work and added cost required 15 due to changes in the scope, conditions or requirements for performance of the Subcontract work, 16 and for delays, disruptions, and acceleration of the work of Fisk and its subcontractors and 17 suppliers.” SAC ¶ 23. Fisk maintains that WOJV breached the Subcontract by, inter alia, causing 18 delay, making changes in scope, and disrupting Fisk’s work and then failing to pay Fisk for the 19 extra work necessitated by WOJV’s conduct. See SAC ¶ 27. 20 In its 3PC against the TJPA, WOJV asserts that the TJPA breached the contract between 21 the two companies (i.e., the Prime Contract) and that the TJPA has an obligation to indemnify 22 WOJV should WOJV be held liable to others, including subcontractors. The 3PC is not limited to 23 the work performed by subcontractor Fisk but encompasses work done on the entire Project. 24 WOJV broadly alleges that the TJPA caused delay in the Project – e.g., the TJPA’s Design Team 25 made errors and omissions in the Contract Documents; WOJV had to issue over 12,000 Requests 26 for Information (“RFIs”) because of the errors and omissions in the Project design; the TJPA 27 failed to timely respond to more than 25% of the RFIs; WOJV had to issue over 1,600 Change 1 to timely resolve many CORs. See 3PC ¶¶ 34-35, 49-50. WOJV also alleges that the TJPA failed 2 to extend the Contract Time (claiming that unavoidable delays should have anticipated or were a 3 result of required WOJV coordination activities); failed to increase the contract price when WOJV 4 accelerated work at the TJPA’s direction; and failed to issue Contract Change Orders in response 5 to legitimate CORs (and, by doing so, failed to adjust the Contract Work Price where WOJV was 6 contractually entitled to additional compensation); and failed to increase the Contract Price for 7 numerous substantiated subcontractor claims. See TPC ¶¶ 35, 55, 58, 66, 83. 8 Not surprisingly, the TJPA has argued that the Court should decline supplemental 9 jurisdiction over WOJV’s 3PC because its scope is far broader than Fisk’s complaint. See 28 10 U.S.C. § 1367(c)(2), (4) (providing that a court may decline to exercise supplemental jurisdiction 11 over a claim if it “substantially predominates over the claim or claims over which the district court 12 has original jurisdiction” or if, “in exceptional circumstances, there are other compelling reasons 13 for declining jurisdiction”).3 TJPA also asserts that, if the 3PC is allowed to proceed, it will have 14 to file counterclaims and cross-claims, thus triggering wide-ranging litigation effectively 15 duplicative of the Consolidated State Action. 16 A. Rule 19 17 In response, WOJV contends that the Court cannot decline supplemental jurisdiction 18 because the TJPA is a necessary party under Federal Rule of Civil Procedure 19. Underlying 19 WOJV’s argument that the TJPA is a necessary party is WOJV’s contention that the TJPA is the 20 only entity that can be held liable for design errors or omissions that impacted Fisk’s performance. 21 See Opp’n at 4 (asserting that, “[u]nder the Prime Contract and applicable California law, TJPA 22 (not WOJV) ultimately will be held responsible for any design errors or omissions that impacted 23 Fisk’s performance”). But even if the Court assumes that the TJPA is the only entity that can be 24 held liable for design errors omissions – and further assumes that design errors or omissions were 25 largely responsible for Fisk’s damages in the instant case – the TJPA still is not a necessary party. 26

27 3 For purposes of this order, the Court need not address whether declination of supplemental 1 Under Rule 19,

2 [a] person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be 3 joined as a party if:

4 (A) in that person’s absence, the court cannot accord complete relief among existing parties; or 5 (B) that person claims an interest relating to the subject of the 6 action and is so situated that disposing of the action in the person’s absence may: 7 (i) as a practical matter impair or impede the person’s 8 ability to protect the interest; or

9 (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent 10 obligations because of the interest. 11 Fed. R. Civ. P. 19(a)(1) (emphasis added). According to WOJV, the TJPA is a necessary party 12 under the “complete relief” and “inconsistent obligations” provisions. Both arguments lack merit. 13 WOJV asserts that, absent, the TJPA, “this Court would not be able ‘accord complete 14 relief’ among the remaining parties in this action . . . [because] TJPA, not WOJV, bears liability 15 for damages arising from insufficient plans and specifications.” Opp’n at 7. But most courts have 16 construed the “complete relief” provision in Rule 19(a)(1) narrowly – i.e., joinder is required 17 where

18 nonjoinder precludes the court from effecting relief not in some overall sense, but between extant parties. In other words, joinder is 19 required only when the absentee’s nonjoinder precludes the court form rendering complete justice among those already joined. . . . 20 Properly interpreted, the Rule is not invoked simply because some absentee may cause future litigation. The effect of a decision in the 21 present case on the absent party is immaterial under the “complete relief” clause. The fact that the absentee might later frustrate the 22 outcome of the litigation does not by itself make the absentee necessary for complete relief. The “complete relief” clause does not 23 contemplate other potential defendants, or other possible remedies. 24 Moore’s Fed. Prac. – Civ. § 19.03[2][b][ii] (emphasis in original). See, e.g., Eldredge v. 25 Carpenters 46 N. Cal. Ctys. Joint Apprenticeship & Training Comm., 662 F.2d 534, 537 (9th Cir. 26 1981) (stating that the part of Rule 19 related to complete relief “is concerned only with relief as 27 between the persons already parties, not as between a party and the absent person whose joinder is 1 (stating that “the term complete relief refers only ‘to relief as between the persons already parties, 2 and not as between a party and the absent person whose joinder is sought’”). 3 WOJV argues still that the TJPA is a necessary party under the “inconsistent obligations” 4 provision. WOJV maintains: “TJPA must be joined to this action or WOJV could be prejudiced 5 by judgments in two separate courts [one state, one federal] that could leave it in the position of 6 losing in both cases due to conflicting determinations [regarding liability for incomplete plans and 7 specifications].” Opp’n at 7. In other words, WOJV could be held liable to Fisk in the instant 8 case for damages resulting from incomplete plans and specifications, but then still lose to the 9 TJPA in the state court proceedings for damages resulting from incomplete plans and 10 specifications. 11 The problem with this argument is that – as the TJPA points out – the Ninth Circuit has 12 distinguished between “inconsistent obligations” (the phrase used in Rule 19(a)(1)(B)) and 13 “inconsistent adjudications.” According to the Ninth Circuit,

14 “‘[i]nconsistent obligations’ are not . . . the same as inconsistent adjudications or results. Inconsistent obligations occur when a party 15 is unable to comply with one court's order without breaching another court's order concerning the same incident. Inconsistent 16 adjudications or results, by contrast, occur when a defendant successfully defends a claim in one forum, yet loses on another 17 claim arising from the same incident in another forum.” 18 Cachil Dehe Band of Wintun Indians v. Cal., 547 F.3d 962, 976 (9th Cir. 2008) (quoting Delgado 19 v. Plaza Las Ams., 139 F.3d 1, 3 (1st Cir. 1998)); see also Moore’s § 19.03[3][d] (stating that “[i]t 20 is important to note that the ‘multiple liability’ clause compels joinder of an absentee to avoid 21 inconsistent obligations, and not to avoid inconsistent adjudications”) (emphasis in original). 22 Accordingly, “the possibility that, in the absence of a joint tortfeasor, a defendant may be 23 liable in the original action and lose a subsequent action for contribution against the joint 24 tortfeasor is not the kind of inconsistency contemplated by the ‘multiple liability’ clause.” 25 Moore’s § 19.03[3][d]; see also id. § 19.03[3][e] (noting that joinder is required where nonjoinder 26 of the absentee “threatens a party with the risk of paying double or multiple obligations” – but “the 27 possibility that, in the absence of a joint tortfeasor, a defendant may be liable in the original action 1 liability contemplated by the ‘multiple liability clause”). Here, there is no risk of multiple liability 2 for WOJV with respect to Fisk’s claims. See also Nottingham v. Gen. Am. Commc'ns Corp., 811 3 F.2d 873, 880-81 (5th Cir. 1987) (stating that “Rule 19 does not require the joinder of joint 4 tortfeasors” and does not require joinder of persons against whom Ross and GAC have a claim for 5 contribution[;] [t]hus, whether Rumpf be a joint tortfeasor . . . or contributor to the award, Rumpf 6 was not an indispensible [sic] party to this case”); SASCO v. Byers, No. C 08-5641 JF (RS), 2009 7 U.S. Dist. LEXIS 36886, at *7 (N.D. Cal. Apr. 14, 2009) (stating that “a defendant's possible right 8 of reimbursement, indemnity, or contribution against an absent party is not sufficient to make the 9 absent party indispensable to the litigation”). 10 Moreover, “potential contributors and indemnitors are not necessary precisely because 11 impleader [under Federal Rule of Civil Procedure 14] . . . protects the defendant.” Moore’s § 12 19.03[3][e]. See, e.g., Janney Montgomery Scott, Inc. v. Shepard Niles, Inc., 11 F.3d 399, 412 (3d 13 Cir. 1993) (stating that, “[t]hough federal civil practice . . . permits a party defendant who claims a 14 right of contribution or indemnity from third persons to protect itself from potentially inconsistent 15 verdicts by impleading the absent party under Federal Rule of Civil Procedure 14, it is not 16 required to do so; and, if it does not, its right to bring a separate action for contribution or 17 indemnity is unaffected”); cf. Delgado, 139 F.3d at 3 (stating that, “where two suits arising from 18 the same incident involve different causes of action, defendants are not faced with the potential for 19 double liability because separate suits have different consequences and different measures of 20 damages”) (emphasis added). 21 B. Supplemental Claim Substantially Predominates 22 Because the TJPA is not a necessary party, the Court now turns to the TJPA’s contention 23 that the Court should decline to exercise supplemental jurisdiction over the WOJV’s 3PC. Section 24 1367(c)(2) provides that a court may decline supplemental jurisdiction where the supplemental 25 claim “substantially predominates over the claim or claims over which the district court has 26 original jurisdiction.” 28 U.S.C. § 1367(c)(2). Section 1367(c)(2) can apply whether the basis of 27 original jurisdiction is federal question jurisdiction or diversity jurisdiction (as here). See Allstate 1 holding that supplemental claims did not clearly predominate over claims over which there was 2 diversity jurisdiction); Korrow v. Aaron's Inc., No. 10-6317 (MAS) (LHG), 2015 U.S. Dist. 3 LEXIS 160032, at *9 (D.N.J. Nov. 30, 2015) (stating that “district courts in this Circuit, as well as 4 the First Circuit and district courts in other Circuits, have found that § 1367(c)(2) is applicable to 5 diversity cases”). 6 In the case at bar, the Court agrees with the TJPA that WOJV’s 3PC against it substantially 7 predominates over Fisk’s complaint against WOJV. As is clear from the description of the 8 pleadings above, the 3PC is much broader in scope than Fisk’s complaint; in effect, Fisk’s 9 complaint against WOJV is but one piece of a much larger dispute that involves the TJPA, WOJV, 10 and many subcontractors, including but not limited to Fisk. See, e.g., 3PC ¶ 81 et seq. (alleging 11 that WOJV has received pass-through claims from Trade Subcontractors, including but not limited 12 to Fisk for which TJPA is liable; adding that “[m]ore Trade Subcontractor Claims are expected 13 going forward”). As noted above, the 3PC concerns the larger dispute encompassing the entire 14 Project and is not limited to matters which pertain to Fisk’s work. Its breadth promises to 15 replicate that of the Consolidated State Action. Cf. Borough of W. Mifflin v. Lancaster, 45 F.3d 16 780, 789 (3d Cir. 1995) (stating that “§ 1367(c)(2)'s authority should be invoked only where there 17 is an important countervailing interest to be served by relegating state claims to the state court[;] 18 [t]his will normally be the case only where ‘a state claim constitutes the real body of a case, to 19 which the federal claim is only an appendage’ – only where permitting litigation of all claims in 20 the district court can accurately be described as allowing a federal tail to wag what is in substance 21 a state dog”). 22 Although WOJV has cited some authority in support of its position – in particular, William 23 A. Gross Construction Associates v. American Manufacturers Mutual Insurance Co., 2009 U.S. 24 Dist. LEXIS 21818 (S.D.N.Y. Feb. 23, 2009) (report and recommendation) – the Court does not 25 find that authority persuasive. There, the court suggested that declining supplemental jurisdiction 26 was not appropriate because of concerns it had about inconsistent judgments. See id. at *69-70. 27 But inconsistent judgments is not a § 1367(c)(2) concern. Furthermore, Gross is distinguishable 1 entirety of the dispute among the relevant players. See id. at *70-71. 2 The other case cited by WOJV is distinguishable for a similar reason – i.e., there, the 3 entirety of the dispute would be in the federal proceeding because the plaintiff intended to amend 4 its original complaint. See CCC Ins. Co. v. Brooklyn Hosp. Ctr., No. 03 Civ. 3093 (TPG), 2004 5 U.S. Dist. LEXIS 9657 (S.D.N.Y. May 27, 2004) (stating that, “[w]hile it is clear that the original 6 complaint's allegations regarding the loan are only a small part of the larger controversy between 7 the parties, this does not mean that defendant's potential third-party claims ‘predominate’ over the 8 issues raised by plaintiffs[;] [p]laintiffs have properly invoked this Court's diversity of citizenship 9 jurisdiction with a substantial claim against defendant, and their proposed amended complaint 10 would bring before this Court the full breadth of the dispute between the parties”) (emphasis 11 added). Here, Fisk does not intend to amend its complaint to bring in the larger controversy 12 before the Court. The 3PC goes far beyond what Fisk placed in controversy. 13 Accordingly, the Court concludes that, based on § 1367(c)(2), it is appropriate to decline 14 supplemental jurisdiction. 15 C. Exceptional Circumstances 16 Although § 1367(c)(2) alone provides a basis for the Court to decline supplemental 17 jurisdiction, the Court briefly addresses § 1367(c)(4) as it provides an independent basis for the 18 Court’s ruling. In so ruling, the Court acknowledges that “declining jurisdiction outside of 19 subsection (c)(1)-(3) should be the exception, rather than the rule. Courts therefore must ensure 20 that the reasons identified as ‘compelling’ are not deployed in circumstances that threaten this 21 principle.” Exec. Software N. Am. v. United States Dist. Court, 24 F.3d 1545, 1558 (9th Cir. 22 1994). Nevertheless,

23 [c]ourts have found that there are exceptional circumstances justifying a decision to decline to exercise supplemental jurisdiction 24 under § 1367(c)(4) where litigation of state claims in the federal forum would create jury confusion because the state and federal 25 claims rely on different legal theories, Padilla v. City of Saginaw, 867 F. Supp. 1309 (E.D. Mich. 1994), where adjudication of the 26 state claims would disrupt the adjudication of the primary claim, Carlucci v. United States, 793 F. Supp. 482, 485-86 (S.D.N.Y. 27 1992) (finding that exceptional circumstances existed where the Davenport employees because it would simply prolong and 1 complicate the proceedings"), and where the claims raised in parallel state and federal actions are duplicative and the exercise of 2 federal jurisdiction would frustrate judicial economy. Hays County Guardian v. Supple, 969 F.2d. 111 (5th Cir. 1992), cert. denied, 506 3 U.S. 1087, 122 L. Ed. 2d 371, 113 S. Ct. 1067 (1993) [finding exceptional circumstances and compelling reasons because 4 “[a]djudicating state-law claims in federal court while identical claims are pending in state court would be a pointless waste of 5 judicial resources”]. See also Philip Morris Inc. v. Heinrich, 1998 U.S. Dist. LEXIS 4695, No. 95-0328 (S.D.N.Y. 1998) (declining to 6 extend supplemental jurisdiction over third-party plaintiff's claim pursuant to § 1367(c)(4) where there was "another action in 7 existence in a New Jersey state court, addressing the same claims as those alleged in Besen's [third-party plaintiff] third-party 8 complaint."). 9 SST Glob. Tech., LLC v. Chapman, 270 F. Supp. 2d 444, 459-60 (S.D.N.Y. 2003) (emphasis 10 added); see also Phillip Morris Inc. v. Heinrich, No. 95 Civ. 0328, 1998 U.S. Dist. LEXIS 3258, 11 at *5-6 (S.D.N.Y. March 19, 1998) (noting that one compelling reason to decline exercising 12 supplemental jurisdiction was existence of pending state court action “addressing the same claims 13 as those alleged in [the] proposed third-party complaint”); Polaris Pool Sys. v. Letro Prods., Inc., 14 161 F.R.D. 422, 425 (C.D. Cal. 1995) (stating that a “pending state court action probably 15 constitutes exceptional circumstances”). Compare Kennedy v. United States, No. 3:18-02940- 16 MGL, 2020 U.S. Dist. LEXIS 70969, at *6 (D.S.C. Apr. 22, 2020) (holding that there were no 17 exceptional circumstances to justify declination of supplemental jurisdiction; noting, inter alia, 18 that “Moving Defendants would not be required to defend this action on two fronts [because] 19 Kennedy has agreed to stay the state-court action during the pendency of the federal action [–] 20 [t]he dormant state-court action merely protects her legal interests if the Court declines to exercise 21 supplemental jurisdiction should it dismiss the federal claims”). 22 In the instant case, the exercise of federal jurisdiction over the 3PC specifically would 23 frustrate judicial economy because the 3PC covers the entire breadth of the work done on the 24 Project, which is already at issue in the Consolidated State Action. Thus, there are exceptional 25 circumstances warranting declination of supplemental jurisdiction. The Court’s ruling here is not 26 contrary to the Ninth Circuit’s rejection of a Colorado River dismissal or stay in this case for two 27 reasons. First, the issues of whether to decline supplemental jurisdiction and whether to abstain 1 at times. See, e.g., San Diego Police Officers' Ass'n v. Aguirre, No. 05-CV-1581 H (POR), 2007 2 U.S. Dist. LEXIS 112716, at *21-27 (S.D. Cal. June 26, 2007) (after dismissing federal claims, 3 declining to exercise supplemental jurisdiction over remaining state law claims; alternatively, 4 dismissing state law claims under Colorado River in favor of resolution of similar issues in 5 pending state cases); Siler v. Webber, No. 3:05-cv-341, 2009 U.S. Dist. LEXIS 141471, at *19-20 6 (E.D. Tenn. Mar. 5, 2009) (not abstaining under Colorado River but declining to exercise 7 supplemental jurisdiction over state law claims); McMahon v. Refresh Dental Mgmt., LLC, No. 8 16-170, 2016 U.S. Dist. LEXIS 171875, at *28-30 (W.D. Pa. Dec. 13, 2016) (denying motion to 9 abstain under Colorado River but declining to exercise supplemental jurisdiction over state law 10 claims); Reed-Pratt v. Winfrey, No. 20-12129, 2020 U.S. Dist. LEXIS 167861, at *2-15 (E.D. 11 Mich. Sep. 9, 2020) (declining to exercise supplemental jurisdiction over state law claims; then 12 evaluating whether to abstain under Colorado River on the remaining federal claim). Second, the 13 Court’s decision not to exercise supplemental jurisdiction over the 3PC does not negate the 14 Court’s duty to exercise federal jurisdiction under Colorado River. Where Colorado River 15 applies, a court does not entertain any part of the case. See Moses H. Cone Mem’l Hosp. v. 16 Mercury Constr. Corp., 460 U.S. 1, 28 (1983) (“When a district court decides to dismiss or stay 17 under Colorado River, it presumably concludes that the parallel state-court litigation will be an 18 adequate vehicle for the complete and prompt resolution of the issues between the parties.”). That 19 is not true with the declination of supplemental jurisdiction. Here, the Court will continue to 20 exercise jurisdiction over Fisk’s claim as well as WOJV’s counterclaim. It is only WOJV’s 3PC 21 against the TJPA that will not be adjudicated here, which is of no real consequence given the 22 Consolidated State Action where those claims will be addressed. Cf. Beck v. Dobrowski, 559 F.3d 23 680, 686 (7th Cir. 2009) (concluding that “the judge acted well within his discretion in declining 24 to exercise jurisdiction over the plaintiff's state-law claim[;] [b]ut insofar as the plaintiff based 25 federal jurisdiction over that claim on the district court's supplemental jurisdiction, invocation of 26 the doctrine of Colorado River was unnecessary, in view of the presumption that when a federal 27 suit is dismissed before trial the court should relinquish any supplemental state-law claim to the 1 is already pending in state court and is nearer final resolution than the claim in the federal suit”). 2 III. CONCLUSION 3 For the foregoing reasons, the Court denies WOJV’s motion to stay and grants the TJPA’s 4 motion to dismiss. The Court expresses no opinion on whether WOJV should be allowed to file 5 an amended pleading, i.e., to assert a more narrowly tailored 3PC against the TJPA. 6 This order disposes of Docket Nos. 97 and 99. 7 8 IT IS SO ORDERED. 9 10 Dated: January 20, 2021 11 12 ______________________________________

EDWARD M. CHEN

13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27