First TN Bank v. Dale

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 AmSouth Bank et al. Nos. 03-5517/5521 ELECTRONIC CITATION: 2004 FED App. 0321P (6th Cir.) v. Dale et al.

File Name: 04a0321p.06

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UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Robert S. Michaels, ROBINSON, CURLEY & _________________ CLAYTON, Chicago, Illinois, for Appellants. Larry B.

Childs, WALSTON, WELLS, ANDERSON & BAINS, AM SOUTH BANK (03-5517); X Birmingham, Alabama, Leo M. Bearman, Jr., BAKER, FIRST TENNESSEE BANK - DONELSON, BEARMAN, CALDWELL & BERKOWITZ, (03-5521), - Memphis, Tennessee, for Appellees. ON BRIEF: Robert S.

- Nos. 03-5517/5521 Michaels, Alan F. Curley, Robert L. Margolis, ROBINSON, Plaintiffs-Appellees, - CURLEY & CLAYTON, Chicago, Illinois, for Appellants.

> Larry B. Childs, Randall D. Quarles, WALSTON, WELLS, ,

v. - ANDERSON & BAINS, Birmingham, Alabama, Leo M.

- Bearman, Jr., R. Mark Glover, BAKER, DONELSON, GEORGE DALE et al., - BEARMAN, CALDWELL & BERKOWITZ, Memphis, Tennessee, Samuel T. Bowman, BAKER, DONELSON, Defendants-Appellants. - BEARMAN, CALDWELL & BERKOWITZ, Nashville, - N Tennessee, Anthony J. McFarland, Catherine A. Colley, David R. Esquivel, BASS, BERRY & SIMS, Nashville, Appeal from the United States District Court Tennessee, for Appellees. for the Middle District of Tennessee at Nashville Nos. 02-00677; 02-00683—William J. Haynes, Jr., MOORE, J., delivered the opinion of the court, in which District Judge. QUIST, D. J., joined. BOGGS, C. J., concurred in the judgment only.

Argued: June 9, 2004

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Decided and Filed: September 21, 2004 OPINION

Before: BOGGS, Chief Judge; MOORE, Circuit Judge; _________________ QUIST, District Judge.*

KAREN NELSON MOORE, Circuit Judge. Defendants- Appellants George Dale (“Dale”), Scott B. Lakin, Carroll Fisher, and Mike Pickens,1 all commissioners of insurance or

1

*

Mike Pickens is a defendant on ly in the action brought by First The Honorable Gordon J. Quist, United States District Judge for the Tennessee Bank, and not that b rought by AmSo uth Bank, and therefore W estern District of Michigan, sitting by designation. is a party only to Appeal No. 03-5521.

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the equivalent for their respective states, who were sued in Frankel pleaded guilty to numerous charges in the United their official capacity as receivers for various insolvent States District Court for the District of Connecticut. insurance companies (collectively, “Receivers”), appeal from the district court’s grant of a preliminary injunction barring Bank accounts used in Frankel’s money-laundering scheme them from pursuing their coercive action originally filed in were held by the insurance companies at both AmSouth, from Mississippi state court in these ongoing declaratory judgment 1991 to 1999, and FTB, from 1997 to 1999. Essentially, the suits brought by Plaintiffs-Appellees AmSouth Bank Receivers argue that the Banks were negligent in not realizing (“AmSouth”) and First Tennessee Bank (“FTB”) the massive fraud that those accounts were being used to (collectively, “Banks”). The Receivers argue that the district commit. In the course of the receivership proceedings, the court improperly entertained this action, because it lacked Receivers concluded they might have claims against jurisdiction or because it should have declined jurisdiction in AmSouth, and contacted AmSouth to begin settlement its discretion. Because the district court abused its discretion discussions. On June 28, 2001, attorneys for AmSouth and in entertaining these declaratory actions, we DISSOLVE the the Receivers executed on behalf of their clients a tolling injunction, REVERSE the district court’s decision, and agreement through August 27, 2001. That tolling agreement REMAND the case to the district court with instructions to was extended six times, through July 31, 2002. During the dismiss the actions. pendency of that tolling agreement, negotiations were ongoing; on September 27, 2001, explicitly “for settlement I. BACKGROUND purposes,” the Receivers sent draft allegations to AmSouth.

Joint Appendix No. 03-5517 (“J.A. AmS”) at 566. On June This case concerns the latest effort of the Receivers to 28, 2002, the Receivers’ counsel sent a draft complaint that recover some of the funds embezzled from a number of they intended to file “on or before July 31, 2002” if that southern insurance companies by the infamous Martin “effort at compromise [was] unsuccessful,” including a Frankel (“Frankel”). See, e.g., Lakin v. Prudential Sec., Inc., “written, pre-filing demand” that AmSouth had “asked [the 348 F.3d 704 (8th Cir. 2003); United States v. Peoples Benefit Receivers] to make,” and indicating that the settlement offer Life Ins. Co., 271 F.3d 411 (2d Cir. 2001); Dale v. ALA would expire on July 10. J.A. AmS at 567-68. On July 10, Acquisitions, Inc., 203 F. Supp. 2d 694 (S.D. Miss. 2002); 2002, AmSouth’s counsel sent a letter to the Receivers’ Dale v. Frankel, 206 F. Supp. 2d 315 (D. Conn. 2001). counsel indicating that AmSouth’s counsel had discussed Frankel had purchased seven insurance companies in five settlement and litigation options with their client, but states through various entities, while at the same time requested 1) a meeting “among the parties and their counsel”; controlling the unregistered brokerage that was supposedly 2) an insurance-company-by-insurance-company breakdown investing the large cash reserves that insurance companies of damages suffered; and 3) an extension of the time for typically have on hand. Instead, he was funneling the money response through July 19. J.A. AmS at 570. A phone to overseas bank accounts. Dale, insurance commissioner for conversation between counsel took place on July 15, 2002, Mississippi, became suspicious and placed the Frankel- the contents of which are contested, but which likely led to controlled insurance companies under state supervision, and some sort of agreement that the extension had been approved. in May 1999, Frankel fled the country as his scheme On July 17, 2002, AmSouth’s counsel sent a letter regarding dissolved. Frankel was the subject of a four-month, world- the Receivers’ ongoing concerns with respect to Federal Rule wide manhunt, culminating in his capture in Germany. of Evidence 408, governing the disclosure of settlement

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discussions, in which the last paragraph stated that AmSouth § 210.25 et seq. (“Regulation J”), governing wire transfers. was “still considering” the Receivers’ demand and FTB then filed a motion to dismiss for improper venue, or in AmSouth’s options, and that counsel would “be in touch in the alternative to transfer the case, on September 26, 2002. the near future concerning a written response and a possible On October 7, 2002, the Receivers filed a remand motion. meeting on July 24.” J.A. AmS at 572. On July 18, 2002, When the Middle District of Tennessee (“district court”) counsel for the Receivers sent a letter formalizing their decided in the instant actions to enjoin the further prosecution approval of the extension to July 19, 2002, for a response to of the Mississippi litigation, the Mississippi litigation was their settlement offer, indicating their openness to a meeting stayed by the federal district court in Mississippi. on July 24, and including a detailed breakdown of damages by bank account. Unbeknownst to the Receivers, on July 18, In the instant actions (collectively, “the Tennessee 2002, AmSouth had filed a complaint for declaratory relief in litigation”), AmSouth and FTB ask for declaratory relief that the U.S. District Court for the Middle District of Tennessee. they are not liable to the Receivers, relying both on federal On July 19, 2002, AmSouth sent a letter formally rejecting law and state law defenses, and both complaints ask the the settlement offer, but failing to mention the suit they had district court to enjoin the Receivers from bringing any future filed the previous day. The Receivers learned of the filing lawsuits and require them instead to bring all claims as through the call of a newspaper reporter on July 19. counterclaims in the Tennessee litigation. The Receivers filed motions to dismiss both FTB’s and AmSouth’s actions on Negotiations with FTB took place in a shorter period of August 23, 2002. A hearing was held on that motion on time, but followed a similar track. In May 2002, the January 13, 2003, and the district court issued its decision and Receivers’ counsel initiated negotiations with FTB through orders denying the motions to dismiss and enjoining further phone conversations; to this end, they signed a tolling prosecution of the Mississippi litigation on March 31, 2003. agreement that extended from May 3 through May 31, 2002. A timely notice of appeal was filed in each case on April 4, This agreement was extended once, on May 24, 2002, through 2003. July 31, 2002 (the same date as the final date of the AmSouth tolling agreement). In July 2002, FTB requested a formal Subsequently, the Mississippi litigation was stayed on settlement demand; while Receivers’ counsel was drafting April 16, 2003. In mid-2003, apparently out of concern for this demand, they learned that FTB had filed the instant risking mounting legal fees for a limited potential recovery, declaratory judgment action in the Middle District of Paula Flowers, Commissioner of Commerce and Insurance Tennessee. for the State of Tennessee, then a defendant in the Tennessee litigation and a plaintiff in the Mississippi litigation, decided On July 31, 2002, at the end of the tolling period, the that Tennessee should withdraw from the Mississippi Receivers filed an action in Mississippi state court against litigation, and in response, FTB and AmSouth agreed to both AmSouth and FTB (“the Mississippi litigation”). dismiss her from the Tennessee litigation. See Getahn Ward, AmSouth removed the action to the U.S. District Court for the Tennessee Pulls Out of Suit Against 2 Banks, THE Southern District of Mississippi with FTB’s consent on TENNESSEAN, July 29, 2003, at 4E. On June 23, 2003, September 5, 2002, based on alleged improper joinder of Flowers filed a motion to dismiss her appeals in this court FTB, and asserted complete preemption of the Receivers’ which we granted on June 25, 2003; on June 26, 2003, claims under Federal Reserve Board Regulation J, 12 C.F.R. Flowers’s claims in the Mississippi litigation were dismissed

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with prejudice; on July 18, 2003, FTB and AmSouth’s claims contention rests on the lack of a motion under Federal Rule of against Flowers in the Tennessee litigation were dismissed in Civil Procedure 65 in the district court by either FTB or the district court. Finally, in the district court below, which AmSouth asking for the injunction issued by the district has continued proceedings during this interlocutory appeal, court. FTB relies on I.A.M. National Pension Fund Benefit having denied Receivers’ motions to stay same, FTB and Plan A v. Cooper Industries, Inc., 789 F.2d 21, 24 n.3 (D.C. AmSouth have moved for summary judgment, and oral Cir.), cert. denied, 479 U.S. 971 (1986), which notes that argument on the motion was held on May 26, 2004. “Carson[’s requirement of serious or irreparable consequence] does not apply to an order clearly granting or II. ANALYSIS denying a specific request for injunctive relief.” See also MAI Basic Four, Inc. v. Basis, Inc., 962 F.2d 978, 980 n.3 (10th A. Appellate Jurisdiction Cir. 1992) (noting that while the motion for the injunction was not pursuant to Rule 65, “this is a Rule 65(a) motion in 1. Whether the Injunction is Appealable under all but name,” and relying on that characterization in § 1292(a)(1) distinguishing Hershey). But both FTB’s and AmSouth’s complaints specifically ask for injunctive relief against the The Banks argue that this court lacks appellate jurisdiction Receivers’ prosecution of claims in other forums. It is over the district court’s order enjoining the Receivers from therefore rather disingenuous of FTB to claim the district further prosecution of the Mississippi litigation. FTB argues court issued the injunction “sua sponte.” In any case, it is first that the district court’s order was not an “injunction” difficult to see what difference this distinction would make; within the meaning of the statute, and therefore, as merely an if the order would be appealable had a party requested it, that order with the practical effect of an injunction, subject to the the district court issued an order sua sponte cannot insulate “serious, perhaps irreparable, consequence” limitation under the order from review. See Phillips v. Chas. Schreiner Bank, Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981) 894 F.2d 127, 129-30 (5th Cir. 1990) (finding appealable an (internal quotation marks omitted), in order to be appealable order granting relief that “[n]either party had moved formally under 28 U.S.C. § 1292(a)(1). FTB next argues that this court for,” because the “challenged order prevents [the defendant] should follow the Third Circuit in holding that an injunction from taking any ‘further action in any state or federal court’” against litigating in another forum is not an appealable and was therefore an injunction); FDIC v. Santiago Plaza, injunction, as not going to the ultimate relief demanded by the 598 F.2d 634, 635-36 (1st Cir. 1979) (district court issued plaintiff. See Hershey Foods Corp. v. Hershey Creamery Co., order sua sponte but circuit court still applied general rule that 945 F.2d 1272 (3d Cir. 1991). injunctions against proceedings in other courts are appealable “Section 1292(a)(1) . . . provide[s] appellate jurisdiction under § 1292(a)(1)). over orders that grant or deny injunctions and orders that have Next, FTB argues that this circuit should go against the the practical effect of granting or denying injunctions and weight of authority and adopt the Third Circuit’s outlier have ‘“serious, perhaps irreparable, consequence.”’” opinion in Hershey. Hershey held that an injunction, issued Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. in a coercive trademark action in the Middle District of 271, 287-88 (1988). FTB argues that the injunction below Pennsylvania, against prosecution of a “motion for order falls into the second, rather than the first category. This construing and enforcing” an earlier consent judgment

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between the parties in the Southern District of New York, was under the Hershey test, this injunction would be appealable, not appealable under the earlier Third Circuit en banc as it contains relief sought in the complaint. The whole point decision in Cohen v. Board of Trustees of the University of of this litigation is to prevent the Receivers from prosecuting Medicine and Dentistry, 867 F.2d 1455 (3d Cir. 1989). claims against FTB and AmSouth. Hershey, 945 F.2d at 1279. Hershey’s rule has not been adopted by any other circuit. Instead, courts have held, “An 2. The Scope of This Court’s Review order that prohibits a party from pursuing litigation in another forum unquestionably is an injunction for purposes of On appeal, the Receivers argue that the reasons given in § 1292(a)(1), despite a carefully reasoned rejection of this their motion to dismiss each independently require dissolution proposition by the Third Circuit.” 16 CHARLES ALAN of the injunction. See infra note 3. The Banks object on the WRIGHT , ARTHUR R. MILLER & EDWARD H. COOPER , basis of this court’s limited appellate jurisdiction, arguing that FEDERAL PRACTICE AND PROCEDURE § 3923, at 123 (2d ed. this court can only narrowly evaluate the propriety of the 1996). See HBE Leasing Corp. v. Frank, 48 F.3d 623, 632 injunction, without reference to the Receivers’ arguments. n.6 (2d Cir. 1995) (quoting § 3923); MAI Basic Four, 962 This seems deliberately to misunderstand the nature of those F.2d at 981-82 (same); Phillips, 894 F.2d at 130 (rule in Fifth arguments: because each of them goes to the power of the Circuit is that orders prohibiting proceedings in other courts district court to exercise jurisdiction over these actions or its are always appealable as injunctions); Katz v. Lear Siegler, discretionary responsibility to decline to do so, they all go to Inc., 909 F.2d 1459, 1461 (Fed. Cir. 1990) (“[T]he grant of an the “merits” of the injunction issued by the district court, injunction against continuing suit in another forum is which was premised on the proper assumption of jurisdiction. appealable as of right [under] 28 U.S.C. § 1292(a).”); Asset The Banks’ admonition that this court should only review the Allocation & Mgmt. Co. v. W. Employers Ins. Co., 892 F.2d propriety of the injunction, without examining whether the 566, 568 (7th Cir. 1989) (injunction against proceeding in case was properly in the district court in the first place, defies pending litigation in other court was appealable under 28 logic. While not all of the Receivers’ arguments are strictly U.S.C. § 1292(a)(1)); Santiago Plaza, 598 F.2d at 635-36 (An jurisdictional in the sense of attacking the bare power of the “injunction against appellant proceeding in state court . . . is district court to hear the case, they are all jurisdictional in the clearly appealable under 28 U.S.C. § 1292(a)(1).”). Most sense that they attack the propriety of the district court’s fatal to FTB’s argument, a prior Sixth Circuit case treated an injunction against prosecution of other litigation as an appealable injunction. See Guy v. Citizens Fid. Bank & Trust Co., 429 F.2d 828, 831 (6th Cir. 1970) (district court’s it (1) ‘conclusively determine[s] the disputed question,’ (2) ‘resolve[s] an injunction restraining parties from prosecuting certain actions important issue co mpletely separate from the merits of the action,’ and (3) was an appealable order under § 1292(a)(1)).2 Finally, even is ‘effectively unreviewable o n app eal from a final judgment.’” Sell v.

United States, 539 U.S. 166, 176 (2003) (alterations in original). This sepa rate basis for review is unnecessary in the face of the exp licit 2 language of § 12 92(a)(1), however. American Motors Corp. v. FTC, 601 Coleman v. American R ed Cro ss, 979 F.2d 11 35, 1137 (6th Cir. F.2d 132 9, 13 31-3 2 (6th Cir.), cert. denied, 444 U.S. 941 (1979), dealt 1992), cited by the Re ceivers, hold s this sort of injunctio n app ealab le with a district court’s direction to an administrative agency to cease its under the collateral order doctrine, rather than § 1292(a)(1), which investigations, which was held appealable as an order having the doctrine renders appealable a “preliminary or interim decision . . . when substance of an injunction.

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assumption of jurisdiction.3 The injunction is only proper as unavoidably decides the second.”). We will therefore remand preventing duplicative litigation if the declaratory judgment with orders to dismiss the actions in their entirety. action should have been allowed to proceed. The “harm or effect” of the preliminary injunction that FTB faults the B. Subject Matter Jurisdiction in the District Court Receivers for not identifying and arguing is precisely what the Receivers are in fact arguing: that for a plethora of reasons, The district court’s jurisdiction over AmSouth’s action was their coercive action, the Mississippi litigation, is the proper premised on both federal question and diversity jurisdiction, vehicle for this dispute — the litigation which they were whereas its jurisdiction over FTB’s action was premised specifically prohibited from pursuing. solely on federal question jurisdiction. In determining whether federal question jurisdiction was properly determined The Banks assert that the issues argued by the Receivers to exist in the district court, we look to the Receivers’ can only be recognized by this court under “pendent appellate threatened coercive action. Because the Banks’ actions are jurisdiction,” which allows unappealable orders to be declaratory judgment actions “seek[ing] in essence to assert reviewed only when they are “inextricably intertwined” with a defense to an impending or threatened state court action, it appealable orders; they then argue that the grant of the is the character of the threatened action, and not of the preliminary injunction is not so intertwined with the motion defense, which will determine whether there is federalto dismiss. See Brennan v. Township of Northville, 78 F.3d question jurisdiction in the District Court.” Pub. Serv. 1152, 1157-58 (6th Cir. 1996). While the Receivers disclaim Comm’n v. Wycoff Co., 344 U.S. 237, 248 (1952). “Federal any reliance on the doctrine of pendent appellate jurisdiction, courts will not seize litigations from state courts merely arguing instead that under any meaningful scheme of review because one, normally a defendant, goes to federal court to an appeal from an injunction necessarily sweeps up any issues begin his federal-law defense before the state court begins the that bear on the district court’s power to issue the injunction, case under state law.” Id.; see also Franchise Tax Bd. v. they do correctly note that in order to reverse the district Constr. Laborers Vacation Trust, 463 U.S. 1, 15-16 (1983) court’s denial of their motion to dismiss, this court would (reaffirming rule of Skelly Oil Co. v. Phillips Petroleum Co., have to find that it had pendent appellate jurisdiction over that 339 U.S. 667 (1950), that “if, but for the availability of the denial. Because we conclude that the district court abused its declaratory judgment procedure, the federal claim would arise discretion in entertaining this declaratory action, we only as a defense to a state created action, jurisdiction is necessarily decide that the denial of the Receivers’ motion lacking” (quoting 10A CHARLES ALAN WRIGHT , ARTHUR R. was improper, satisfying the “inextricably intertwined” rule. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND See id. at 1158 (“Our finding on the first issue necessarily and PROCEDURE § 2767 (2d ed. 1983)); Heydon v. Mediaone of S.E. Mich., Inc., 327 F.3d 466, 470 (6th Cir. 2003) (relying on Skelly Oil in finding no subject matter jurisdiction over 3 declaratory judgment action). The Receivers suggest that The Receivers argue a lack of federal question jurisdiction and McCarran-Ferguson reverse preemption of the Declaratory Judgment Act, therefore the district court should have looked to their both of which would render the district court’s injunction void for lack of subsequently-filed state complaint in the Mississippi litigation jurisdiction over these actions, and that Burford abstention was proper and in determining whether, under the well-pleaded complaint that these are not proper declaratory actions, which doctrines go to the discretionary assumption of jurisdiction and would render the injunction rule, their causes of action arose under federal law. At least below an abuse of the district court’s discretion. one case from another circuit, however, suggests that the

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proper inquiry is not into the complaint as subsequently filed, deciding the question in favor of complete preemption, but instead whether the declaratory plaintiff “could namely Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, reasonably have anticipated” a federal cause of action from 223-24 (4th Cir. 2002), and Donmar Enterprises, Inc. v. the conduct of the other party. PHC, Inc. v. Pioneer Southern National Bank, 64 F.3d 944, 948-50 (4th Cir. 1995). Healthcare, Inc., 75 F.3d 75, 78-79 (1st Cir. 1996). Under These decisions, however, clearly deal with ordinary that formulation, the appropriate place to look is the preemption, rather than the complete preemption that would correspondence and conversations between the Banks and the justify original arising-under jurisdiction. Receivers. Neither party addresses this point, however, and the record is relatively silent as to the character of the claims The district court erred in holding that Regulation J, a made on FTB by the Receivers, as opposed to their claims on federal regulation promulgated by the Federal Reserve Board, AmSouth, who received a draft complaint. a federal agency, could completely preempt the Receivers’

state law claims; only Congress can completely preempt a Instead, FTB defends the district court’s finding of subject state cause of action. See Beneficial Nat’l Bank, 539 U.S. at matter jurisdiction entirely on the basis of the so-called 8, 9 & n.5 (describing doctrine of complete preemption as “complete preemption” of Regulation J. Complete when a “federal statute completely pre-empts the state-law preemption is a narrow exception to the well-pleaded cause of action”; “Only if Congress intended [the statute at complaint rule, whereby plaintiff is master of his complaint issue] to provide the exclusive cause of action . . . would the and can choose to assert only state law claims, in situations statute” completely preempt state law claims; “[T]he proper where Congress has indicated an intent to occupy the field so inquiry focuses on whether Congress intended the federal completely that any ostensibly state law claim is in fact a cause of action to be exclusive.” (emphases added)); Metro. federal claim for purposes of arising-under jurisdiction. See Life Ins., 481 U.S. at 66 (the touchstone of complete Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6-9 (2003). preemption is “the intent of Congress” (emphasis added)); The Supreme Court has only found three statutes that evince Peters v. Lincoln Elec. Co., 285 F.3d 456, 468 n.11 (6th Cir. this sort of Congressional intent: § 301 of the LMRA, see 2002)) (“Without evidence of Congress’s intent to transfer Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, jurisdiction to federal courts, there is no basis for invoking 390 U.S. 557, 560 (1968), § 502(a)(1)(B) of ERISA, see federal judicial power.” (emphasis added)); Hyzer v. Cigna Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-66 (1987), and Prop. Cas. Ins. Co., 884 F. Supp. 1146, 1152 (E.D. Mich. §§ 85 and 86 of the National Bank Act, see Beneficial Nat’l 1995) (no support for contention that agency regulations Bank, 539 U.S. at 10-11. The district court, in finding that could completely preempt area). This conclusion fits in more Regulation J might completely preempt the Receivers’ state generally with the balance struck between an agency’s ability law claims,4 characterized two Fourth Circuit opinions as to promulgate regulations with the force of federal law — and therefore its ability to preempt state causes of action through

4 The district co urt specifically stated , “Thus, clearly federa l questions are present here and the Court con clude s that a federal sce nario is (“J.A. FT B”) at 76. As the Receivers note, this formulation presented in which Defendants’ state law claims could be co mpletely misunderstands the narrowly drawn nature of complete preemption and preempted by Re gulation J.” First Tenn. B ank v. Da le, No. 3:02-0683, the necessity of looking to the character of the thre atened actio n on its slip op. at 28 (M.D. Tenn. Mar. 31, 2003), Joint Appendix No. 03-5521 face in determining federal question jurisdiction in a declaratory action.

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ordinary preemption — and its inability to create a right of 0683, slip op. at 28 (M.D. Tenn. Mar. 21, 2003), Joint action where Congress has not intended it do so. See Appendix No. 03-5521 (“J.A. FTB”) at 76. The court then generally Alexander v. Sandoval, 532 U.S. 275, 291 (2001) stated, “To the extent that Plaintiff’s complaint raises this (“Language in a regulation may invoke a private right of issue, clearly this is a legal question that gives rise to federal action that Congress through statutory text created, but it may jurisdiction.” J.A. FTB at 76 (Mem. Op. at 28). These not create a right that Congress has not.”); Marx v. Centran statements mischaracterize the nature of the inquiry under the Corp., 747 F.2d 1536, 1544 (6th Cir. 1984) (“It is plain that well-pleaded complaint rule and the Skelly Oil rule: the the [agency] is without authority [to create an implied cause question to be asked is whether, under the hypothetical stateof action]. The true question is whether Congress, in enacting law action of the Receivers, a well-pleaded federal question [the enabling statute], intended to create a remedy for would appear on the face of the complaint. This question violations of [the regulation].”), cert. denied, 471 U.S. 1125 must be answered in the negative under Merrell Dow (1985). While the agency can create federal law, it cannot Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 807-12 expand federal jurisdiction. (1986), in which the Court held that where a federal statute does not create a private right of action, mere incorporation of Therefore, the proper inquiry in determining complete federal statutory standards into a state-law tort action cannot preemption is directed to the enabling statute, here the Federal create federal question jurisdiction. Because the Bank Reserve Act, ch. 6, 38 Stat. 251 (1913) (codified as amended Secrecy Act does not create a private right of action, the at 12 U.S.C. § 221 et seq.). The regulations in question Receivers’ incorporation of its standards into a state-law govern wire transfers on Fedwire, the wire transfer system of cause of action cannot transform their complaint into one that the Federal Reserve Banks. The regulations were raises a federal question. promulgated pursuant to the authority granted by four different sections of the Act: § 11(i) and (j) (12 U.S.C FTB argues on appeal that as Flowers, the only non-diverse § 248(i) and (j)); § 13 (12 U.S.C. § 342); paragraph fourteen defendant, has been dismissed from the case, diversity subject of § 16 (12 U.S.C. § 248(o)); and § 19(f) (12 U.S.C. § 464). matter jurisdiction now exists. Although normally None of these sections provide specific authority for the jurisdiction depends upon the facts as they are at the time of Fedwire system — instead, they are general provisions — and filing, curing a jurisdictional defect through dismissal of a none of them reference causes of action having to do with the party that destroys diversity “ha[s] long been an exception to Federal Reserve system, or any of the markers associated with the time-of-filing rule.” Grupo Dataflux v. Atlas Global complete preemption. This argument is unavailing. Group, L.P., No. 02-1689, 541 U.S. ___, slip op. at 3-4, 5 (2004). This dismissal can be effected by the district court, The district court also relied upon the Bank Secrecy Act even subsequent to adjudication on the merits, and even by an (“BSA”) in determining that federal jurisdiction existed, appellate court. See Newman-Green, Inc. v. Alfonzo-Larrain, reasoning that “Defendants’ factual allegations and claim 490 U.S. 826, 836-38 (1989). implicate the BSA,” and therefore, since the BSA did not create a private right of action, “FTB’s complaint raises a The Receivers make three arguments in an attempt to federal question, if FTB’s [presumably, should be Receivers’] distinguish the instant case from this clear precedent. They claims are, in effect, asserting an implied right of action under first argue that under the authority of United States Fidelity & the Bank Secrecy Act.” First Tenn. Bank v. Dale, No. 3:02- Guaranty Co. v. Thomas Solvent Co., 955 F.2d 1085, 1087

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(6th Cir. 1992), the district court never had jurisdiction over Caterpillar, 519 U.S. at 75, that arise only after trial is the case, and therefore its order dismissing Flowers is void. completed. This argument is unavailing; the court in United States Fidelity came to the ultimate conclusion that jurisdiction was We are reluctant to expand this narrow exception to the lacking, whereas in cases where a post-filing jurisdiction cure time-of-filing rule (the post-filing jurisdiction cure through is allowed, all intermediate decisions are rendered not void dismissal of a party) in light of Grupo Dataflux’s rejection of for lack of jurisdiction. See Caterpillar Inc. v. Lewis, 519 an expansion of the exception to a change in citizenship of a U.S. 61, 73-77 (1996). Next, the Receivers attempt to partnership based on individuals leaving the association. distinguish the clear holdings of Caterpillar and Newman- However, we also take note of the Grupo Dataflux Court’s Green.5 With respect to Newman-Green, they emphasize that characterization of the dismissal of a non-diverse party as an Newman-Green was a Rule 21 case, and that Flowers was “established exception” to the time-of-filing rule. Slip op. at dismissed pursuant to Rule 41. The Receivers further argue 6. What is most disturbing in this case is not the particular that Rule 21 permits dismissal only of non-indispensable rule pursuant to which Flowers was dismissed, or the extent parties, and that because Flowers was a plaintiff in the of the litigation activity which has transpired before the Mississippi litigation, she was therefore indispensable. While jurisdictional defect is noticed and/or corrected, but instead it is unclear from the record pursuant to which Rule Flowers that jurisdiction in the district court was alleged to be federal was dismissed, although we note that we have in the past question jurisdiction. The more difficult question is not indicated that dismissal of a party, rather than of an entire whether Flowers’s dismissal is the equivalent of those in action, is more proper pursuant to Rule 21, see Letherer v. Caterpillar or Newman-Green but whether the original Alger Group, L.L.C., 328 F.3d 262, 265-66 (6th Cir. 2003), defective allegation of federal question can be corrected by a we conclude that the particular rule used is immaterial in subsequent happenstance creation of diversity jurisdiction. assessing whether jurisdiction was created by a party’s dismissal. See Safeco Ins. Co. v. City of White House, Tenn., In Grupo Dataflux and Caterpillar, the Court indicated that 36 F.3d 540, 546 (6th Cir. 1994) (either Rule 15 or Rule 21 the cure of jurisdiction accomplished by the dismissal of a can provide mechanism for post-filing jurisdiction cure). The nondiverse party can also serve to cure the statutory defect Receivers then note that the Court in Newman-Green and existing where a case is removed at a time when it is not in Caterpillar relied on practical considerations of less weight the original jurisdiction of the district courts of the United here: “considerations of finality, efficiency, and economy,” States within the meaning of 28 U.S.C. § 1441(a). Grupo Dataflux, slip op. at 7. The district court now has jurisdiction over FTB’s action based on diversity of citizenship; the question is whether the prior defects are the sort that are 5 Faysound Ltd. v. United Coconut Chemicals, Inc., 878 F.2d 290, remedied by the post-filing jurisdiction cures of Caterpillar 296 (9th Cir. 1989), cited by the Receivers for the proposition that a post- and Newman-Green. Two distinctions may serve to oust filing dismissal of parties cannot confe r diversity jurisdiction, is jurisdiction here: first, the prior defect is different in kind, as something of an outlier. It can perhaps be best explained by a rule that jurisdiction was not originally alleged on the basis of once the district court properly decides it has no jurisdiction at a time diversity, and second, the jurisdictional defect was noticed when all non-diverse parties are indispensable, actions subsequent to that decision aimed at making those parties dismissable cannot confer early (and often) and the action had not proceeded to jurisdiction. judgment at the time of this appeal.

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Title 28 U.S.C. § 1653 provides, “Defective allegations of not “apparent” on the face of the complaint, as evidenced by jurisdiction may be amended, upon terms, in the trial or this court’s hesitant language (“could have been alleged,” appellate courts.” Relying upon this section, courts have “most probably”); second, we allowed an amended complaint often reached beyond the specific statutory sections cited by to be filed in the Sixth Circuit itself, suggesting that the the complaint to reach a different basis for jurisdiction — Newman-Green rule should extend to reach a case like this albeit one that exists on the face of that complaint. See, e.g., one. In an earlier case, Blanchard v. Terry & Wright, Inc., LeBlanc v. Salem (In re Mailman Steam Carpet Cleaning 331 F.2d 467, 468-69 (6th Cir.), cert. denied, 379 U.S. 831 Corp.) 196 F.3d 1, 5 (1st Cir. 1999) (“Affirmative pleading of (1964), this court held that although the diversity jurisdiction the precise statutory basis for federal subject matter alleged on the face of the complaint was not present, the jurisdiction is not required as long as a complaint alleges factual allegations in the complaint were sufficient to confer sufficient facts to establish jurisdiction.”), cert. denied, 530 federal question jurisdiction. “Even though the allegations of U.S. 1230 (2000); Gerritsen v. de la Madrid Hurtado, 819 the original complaint with respect to jurisdiction of the court F.2d 1511, 1515 (9th Cir. 1987) (“[I]n determining the were defective, the trial or appellate court had full power to existence of subject matter jurisdiction, we are not limited to correct them.” Id. at 469. In the case at bar, the district court the jurisdictional statutes identified in the complaint.”); has jurisdiction over the case under Caterpillar and Newman- Vukonich v. Civil Serv. Comm’n, 589 F.2d 494, 496 n.1 (10th Green, as all parties are now diverse. The antecedent Cir. 1978) (“The failure to alleged this alternate basis for defective allegations of jurisdiction should not serve, jurisdiction is not fatal where the complaint revealed a basis following these cases, to defeat this general rule. for § 1331 jurisdiction.”); Rohler v. TRW, Inc., 576 F.2d 1260, 1264 (7th Cir. 1978) (“[I]t is not essential that a Because we decide that this action should be dismissed complainant set forth the statutory basis for the court’s because it is an inappropriate declaratory action, we do not jurisdiction in order for the court to assume jurisdiction, if the need to decide whether, when such a jurisdictional defect is facts alleged provide a basis for the assumption of raised in an interlocutory appeal, we have discretion to jurisdiction.”). Of particular interest in this line are two Sixth disallow a post-filing jurisdiction cure, or, if we do have such Circuit cases allowing amendment of a complaint to change discretion, if we should exercise it in such a situation. the asserted basis of jurisdiction from federal question to Instead, we hold subject matter jurisdiction exists and diversity and vice versa. In Miller v. Davis, 507 F.2d 308, exercise it for the limited purpose of remanding this action for 311 (6th Cir. 1974), although the complaint’s allegation of dismissal with prejudice. federal question jurisdiction was deficient, “It appears, however, that [diversity] jurisdiction could have been alleged C. McCarran-Ferguson Act and Burford Abstention . . . . Appellants are most probably citizens of Kentucky . . . , Appellees are not Kentucky citizens, and the Fund is situated In their AmSouth appeal, the Receivers argue that in the District of Columbia.” Relying on 28 U.S.C. § 1653, McCarran-Ferguson Act reverse preemption and Burford the court proceeded to the merits of the appeal but directed abstention form independent grounds for the district court to the appellants to “file, within ten days of this decision, a have found it lacked jurisdiction. The district court did not proper amendment in this Court alleging diversity address the McCarran-Ferguson Act argument, but it was jurisdiction.” 507 F.2d at 311 (emphasis added). Two raised by the Receivers below. Reviewing the lines of cases aspects of Miller stand out: first, diversity jurisdiction was cited by the parties, it becomes clear that often when faced

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with suit in the federal courts, a state commissioner of federal judicial power, but the Receivers argue that insurance as receiver or liquidator of an insurance company McCarran-Ferguson gives them that power. placed under the state’s care will rely on one or both of these doctrines to attempt to defeat federal court jurisdiction. McCarran-Ferguson reverse preemption depends upon the Because state liquidation proceedings of insolvent insurers are policies that undergird state law. Where a state law protects exactly the sort of intricate state regulation on behalf of state- state insurance-policyholders, it is a “law enacted . . . for the resident policyholders that these doctrines are intended to purpose of regulating the business of insurance”; when it protect, these arguments have some force when angry protects other interests, for instance, those of stockholders in creditors attempt to sue insolvent insurance companies in those insurance companies, it is not such a law within the federal court to jump ahead in the queue of claims, but they meaning of the Act. See SEC v. Nat’l Sec. Inc., 393 U.S. 453, have less force here, where the insurance companies are 457 (1969). The connection to the protection of policyholders themselves the natural plaintiffs, as Receivers vociferously cannot be too attenuated; in United States Department of the argue. This dispute involves the Receivers’ attempt to Treasury v. Fabe, 508 U.S. 491, 508 (1993), in the course of recover money in an ordinary common-law-damages suit; the finding that an Ohio insurer-liquidation statute providing for Banks do not here attempt to disrupt a coherent state scheme a creditor-preference order contrary to general federal law in favor of enriching their own pockets. reverse-preempted the federal law to the extent it privileged policyholders and the administration of the system in First, the Receivers claim that the McCarran-Ferguson Act, furtherance of the privilege of policyholders, the Court noted 15 U.S.C. § 1012(b), which provides that “[n]o Act of the difficulty. Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of Of course, every preference accorded to the creditors of regulating the business of insurance . . . unless such Act an insolvent insurer ultimately may redound to the specifically relates to the business of insurance,” reverse- benefit of policyholders by enhancing the reliability of preempts the Declaratory Judgment Act in this case. They the insurance company. This argument, however, goes argue that if the Declaratory Judgment Act allows this action too far: “But in that sense, every business decision made against them, it impairs the operation of state laws providing by an insurance company has some impact on its for the liquidation of insurance companies, including those reliability . . . and its status as a reliable insurer.” [Group providing for antisuit injunctions. Antisuit injunctions were Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, issued as part of the liquidation proceedings for each of the 216-17 (1979)]. Royal Drug rejected the notion that such insolvent insurance companies controlled by the Receivers. indirect effects are sufficient for a state law to avoid pre- See, e.g.,Tenn. ex rel. Sizemore v. Franklin Am. Life Ins. Co., emption under the McCarran-Ferguson Act. No. 99-1326-II (Tenn. Ch. Oct. 25, 1999) (Consent Final Order of Liquidation; Finding of Insolvency; and Permanent Fabe, 508 U.S. at 508-09. Finally, when assessing whether Injunction, at 4) (“[N]o action at law or equity or in a general federal statute that creates a cause of action arbitration shall be brought against the insurer or liquidator.”), “impairs” the operation of a state law, the proper inquiry is J.A. FTB at 812, 815. Those injunctions bar suits against the whether the particular suit being brought would impair state insurance companies in any court; both parties agree on law. See Humana Inc. v. Forsyth, 525 U.S. 299, 311, 313 appeal that the injunctions of their own force cannot limit (1999) (analyzing effect of McCarran-Ferguson Act on RICO

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suit with respect to particular suit, rather than only general regulating the business of insurance, the court went on to operation of statute). conclude that ordering the reinsurers’ action “resolved in a forum other than the receivership court nevertheless conflicts This court has previously rejected a claim that an Ohio law, with the Oklahoma law giving the state court the power to Ohio Rev. Code § 3927.05, requiring the insurance enjoin any action interfering with the delinquency commissioner to revoke the license of any foreign insurance proceedings.” Id. at 595. The court did note that “the precise company that removes an action initiated by a citizen of Ohio degree to which a state statute may be impaired so as to to federal court, was saved from its otherwise conceded trigger the McCarran-Ferguson Act is not well-settled,” but unconstitutionality by the operation of the McCarran- found “impairment sufficient to trigger it” there. Id. Ferguson Act. See Int’l Ins. Co. v. Duryee, 96 F.3d 837, 838- Following Munich American, the Tenth Circuit in Davister 40 (6th Cir. 1996). The question in that case boiled down to Corp. v. United Republic Life Insurance Co., 152 F.3d 1277, whether the statute was “aimed at protecting or regulating the 1280-82 (10th Cir. 1998), cert. denied, 525 U.S. 1177 (1999), performance of an insurance contract,” the standard held similarly that the Federal Arbitration Act was reverseannounced in Fabe, 508 U.S. at 505 (internal quotation marks preempted by the Utah statute “consolidating all claims omitted). We held it was not, noting that whether litigation against a liquidating insurer.” An earlier Second Circuit case, itself could be integral to that performance, the choice of not cited by the Receivers, reaches a similar conclusion with forum was not; that unlike the statute at issue in Fabe, respect to the effect on the Federal Arbitration Act of the § 3927.05 did not increase the substantive rights of Kentucky Insurers Rehabilitation and Liquidation Law, which policyholders, but was in fact not limited to policyholders; contains an anti-arbitration clause. See Stephens v. Am. Int’l and that the reach of the statute was not confined to policy Ins. Co., 66 F.3d 41, 43-45 (2d Cir. 1995). Finally, the disputes. Finding the statute “not enacted so much ‘for the Receivers cite Covington v. Sun Life of Canada (U.S.) purpose of regulating the business of insurance’ as for the Holdings, Inc., No. C-2-00-069, 2000 WL 33964592, *3-*10 parochial purpose of regulating a foreign insurer’s choice of (S.D. Ohio May 17, 2000), which held that the federal forum,” Duryee, 96 F.3d at 840, we concluded that the statute removal and diversity jurisdiction provisions were reversewas not within McCarran-Ferguson’s sweep. preempted by Ohio law granting exclusive jurisdiction in liquidation-related legal matters to the Franklin County Court Two cases cited by the Receivers concluded that McCarran- of Common Pleas. Ferguson reverse preemption protects state insurer-liquidation courts’ antisuit injunctions. In Munich American Reinsurance On the other side is a different line of cases refusing to find Co. v. Crawford, 141 F.3d 585, 590-96 (5th Cir.), cert. reverse preemption. In Gross v. Weingarten, 217 F.3d 208, denied, 525 U.S. 1016 (1998), the Fifth Circuit faced the 222-23 (4th Cir. 2000), the court rested its holding, after question of whether Oklahoma’s antisuit injunctions, part of treating critically Munich American and its progeny, on the its Uniform Insurers Liquidation Act (the “OUILA”), were conclusion that “concurrent federal jurisdiction over the protected by McCarran-Ferguson such that they preempted defendants’ counterclaims [does not] threaten[] to ‘invalidate, the Federal Arbitration Act and the insolvent insurance impair, or supersede’. . . . Virginia’s efforts to establish a company could not be compelled to enter arbitration. single equitable proceeding to liquidate or rehabilitate Deciding that the OUILA as a whole and its antisuit insolvent insurers.” Id. at 222 (citing Humana, 525 U.S. at provisions in particular were enacted for the purpose of 307-10). This conclusion was dependent on the facts of the

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particular case before it, but the court also indicated that the seek only declaratory judgment, based in turn on a threatened sort of interference contemplated by the parties in that case ordinary common-law action against them, and the assets of could be dealt with through abstention doctrines. In Suter v. the insurance companies are up for grabs only in that Munich Reinsurance Co., 223 F.3d 150, 160-62 (3d Cir. attenuated fashion. A second wrinkle is the narrow or broad 2000), the court, assuming the “enacted for the purpose” definition of “impair”: in Munich American, impairment was prong, found no impairment on the facts of the case, where defined ultimately quite broadly, in that any suit which was the proceeding was “a suit instituted by the Liquidator against in violation of the antisuit provision would have impaired that a reinsurer to enforce contract rights for an insolvent insurer, provision. The Gross court, looking to the purpose of the which, if meritorious, will benefit the insurer’s estate.” In antisuit provision, held that impairment does not occur unless Grode v. Mutual Fire, Marine and Inland Insurance Co., the integrity of the core liquidation proceedings is attacked. 8 F.3d 953, 960 (3d Cir. 1993), the court tersely rejected the Here those core proceedings are not implicated. Ultimately, McCarran-Ferguson Act argument made by the Insurance we conclude that it would be an overly expansive reading of Commissioner, noting that the “action instituted by the the case law and the purposes of the doctrine to find Commissioner in this case has nothing to do with McCarran-Ferguson reverse preemption here. The threatened Pennsylvania’s regulation of insurance.” And in Nichols v. declaratory judgment actions against insolvent insurance Vesta Fire Insurance Corp., 56 F. Supp. 2d 778, 780 (E.D. companies for the purpose of evading liability in a threatened Ky. 1999), the court concluded that under the Kentucky law common-law coercive action by the insurance companies the action it had before it — “a common law breach of have only an attenuated connection to regulating the business contract action which merely happens to involve an insolvent of insurance. insurer” — was not subject to the exclusive jurisdiction of the liquidation court. Burford abstention is similarly inapplicable here. First invoked in Burford v. Sun Oil Co., 319 U.S. 315 (1943), Where the insolvent insurer is itself a plaintiff in an Burford abstention requires a federal court to abstain from ordinary contract or tort action, courts tend to look jurisdiction where to assume jurisdiction would “be disruptive unfavorably on claims of McCarran-Ferguson preemption of of state efforts to establish a coherent policy with respect to the FAA or the removal statutes so as to insulate that action a matter of substantial public concern.” Colo. River Water from the federal courts. That seems to be motivated as much Conservation Dist. v. United States, 424 U.S. 800, 814 by frustration over the attempts by parties to evade federal (1976). But Burford “does not require abstention whenever jurisdiction as by reasoned doctrinal analysis, but one way to there exists [a complex state administrative process], or even cast it in a favorable doctrinal light is to extend the rule of in all cases where there is a ‘potential for conflict’ with state Humana — that impairment must be defined with respect to regulatory law or policy.” New Orleans Pub. Serv., Inc. v. the particular cause of action — to the question of purpose. Council of New Orleans, 491 U.S. 350, 362 (1989) (quoting That is, an ordinary suit against a tortfeasor by an insolvent Colo. River, 424 U.S. at 815-16). Instead, “This balance only insurance company implicates a “regulation of the business of rarely favors abstention, and the power to dismiss recognized insurance” only in the attenuated fashion rejected in Fabe; an in Burford represents an extraordinary and narrow exception antisuit injunction would only be a regulation of the business to the duty of the District Court to adjudicate a controversy of insurance to the extent it protected the assets of the properly before it.” Quackenbush v. Allstate Ins. Co., 517 insurance company from suit. Here, of course, the Banks U.S. 706, 728 (1996) (quotation omitted). State liquidation

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proceedings seem like an excellent candidate for Burford non-insurance-related activities, federal law defenses, and abstention, but it is difficult to see how a federal court’s state tort law, do not warrant Burford abstention. The district pronouncement on issues of common-law liability having court thus did not abuse its discretion in refusing to abstain nothing to do with insurance could be disruptive of those under Burford. proceedings. Like under the McCarran-Ferguson analysis, that Receivers are covered by the antisuit provisions of the D. Appropriateness of Declaratory Relief various liquidation laws seems mere coincidence, and abstention seems inappropriate. The cases cited by the “This court reviews the district court’s exercise of Receivers are all distinguishable. discretion under the Declaratory Judgment Act, 28 U.S.C.

§ 2201(a), for abuse of discretion.” Scottsdale Ins. Co. v.

Gonzalez v. Media Elements, Inc., 946 F.2d 157, 157 (1st Roumph, 211 F.3d 964, 967 (6th Cir. 2000). “[D]istrict courts Cir. 1991), involved a dispute over coverage with a solvent possess discretion in determining whether and when to insurer that apparently became insolvent on appeal. A entertain an action under the Declaratory Judgment Act, even coverage claim against a now-insolvent insurer that arose when the suit otherwise satisfies subject matter jurisdictional prior to the insolvency is of course exactly the sort of claim prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 that must be heard in the liquidation proceedings; although (1995). The Declaratory Judgment Act is “‘an enabling Act, dismissal under Burford abstention is no longer appropriate which confers a discretion on the courts rather than an under Quackenbush in damages actions, presumably absolute right upon the litigant.’” Id. at 287 (quoting Wycoff, McCarran-Ferguson protection would extend to this kind of 344 U.S. at 241). “‘[T]he propriety of declaratory relief in a claim. The court in Martin Insurance Agency, Inc. v. particular case will depend upon a circumspect sense of its Prudential Reinsurance Co., 910 F.2d 249, 254-55 (5th Cir. fitness informed by the teachings and experience concerning 1990), predicated its decision that Burford abstention was the functions and extent of federal judicial power.’” Id. appropriate where the “claims involve what are, on their face, (quoting Wycoff, 344 U.S. at 243). These concerns are assets of [the insolvent insurance company] owned solely by heightened where, as in Wilton, there are pending state-court the receiver.” And while Grimes v. Crown Life Insurance proceedings representing the same issues of state law; “a Co., 857 F.2d 699 (10th Cir. 1988), does involve a receiver- district court might be indulging in ‘gratuitous interference’ instituted suit, the subject matter of the suit was recovering if it permitted the federal declaratory action to proceed.” Id. money damages from another insurance company based on a at 283 (quoting Brillhart v. Excess Ins. Co. of Am., 316 U.S. coverage dispute. The “appeal center[ed] on the 491, 495 (1942)) (alteration in original) (citations omitted). interpretation of certain provisions contained in the This case represents an interesting conundrum in that at the [reinsurance] Agreement [and] the effect of the interpretation time the motion to dismiss was filed, the Mississippi litigation of the Agreement by the Oklahoma Commissioner of was in state court; when the Tennessee district court’s Insurance.” Id. at 700. Because Burford abstention is injunctive order was entered, the Mississippi litigation had concerned with potential disruption of a state administrative been, possibly incorrectly, removed to the federal district scheme, rather than the mere existence of such a scheme, court for the Southern District of Mississippi; but now, the looking behind the action to determine whether it implicates Mississippi litigation is likely correctly in federal court under the concerns of Burford is necessary, and the issues in this Caterpillar, as the incorrect removal can be cured by the litigation, concerning the liability of the Banks for various subsequent creation of jurisdiction. Had the Tennessee

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district court ruled immediately on the Receivers’ motion, the (3) whether the declaratory remedy is being used merely district court would also have been bound by the Anti- for the purpose of “procedural fencing” or “to Injunction Act, 28 U.S.C. § 2283, and cases interpreting it to provide an arena for a race for res judicata”; dismiss the Banks’ complaint, as the Banks pray for (4) whether the use of a declaratory action would injunctive relief against the prosecution of state-court increase the friction between our federal and state proceedings (the Mississippi litigation) instituted before courts and improperly encroach on state jurisdiction; decision in the Tennessee district court and seek a declaratory and judgment which will have the same practical effect. See (5) whether there is an alternative remedy that is better Martingale LLC v. City of Louisville, 361 F.3d 297, 303 (6th or more effective. Cir. 2004); Tropf v. Fidelity Nat’l Title Ins. Co., 289 F.3d 929, 941-42 (6th Cir. 2002), cert. denied, 537 U.S. 1118 Scottsdale Ins. Co., 211 F.3d at 968. The district court noted (2003). While the Anti-Injunction Act does not by its terms this test, but did not apply each factor, instead deciding that apply now, where the Mississippi litigation will likely take the pendency of a related state action did not necessarily bar place in federal court, that it did apply at the time the motion a federal declaratory-judgment action, finding that the Banks to dismiss the Tennessee litigation was filed, and would have had not engaged in procedural fencing, and finding that applied at the time of the district court’s decision below but “Tennessee is a logical forum for this dispute.” J.A. FTB at for a potentially erroneous removal of the Mississippi 64 (Mem. Op. at 16). Because we find clear error in certain litigation by AmSouth, is extremely disturbing. In of the district court’s factual findings, and misapplication of determining the propriety of entertaining a declaratory legal standards, we conclude that the district court abused its judgment action, competing state and federal interests weigh discretion in assuming jurisdiction over these declaratory in the balance, with courts particularly reluctant to entertain actions. federal declaratory judgment actions premised on diversity jurisdiction in the face of a subsequently-filed state-court 1. Whether the Judgment Would Settle the coercive action. These background concerns — that even if Controversy? the Banks acted in good faith, the ultimate outcome of their procedural behavior has been to wrest this case away from the The district court did not consider this factor in its analysis, state courts — should come into play in assessing the but the parties dispute on appeal whether it weighs in favor of appropriateness of assuming jurisdiction over these claims. entertaining the actions or dismissing them. The crux of the argument between the parties is whether or not the ability of This court has adopted a five-factor test to determine when the Receivers to file counterclaims that will dispose of all a district court should exercise jurisdiction over a declaratory issues in the declaratory-judgment actions can be considered judgment: in determining whether the judgments would settle the controversy. Each side argues that the rule the other proposes (1) whether the judgment would settle the controversy; will swallow this factor, as counterclaims will so often be (2) whether the declaratory judgment action would possible or even compulsory that all declaratory judgments serve a useful purpose in clarifying the legal will either be able to or not be able to settle the controversy. relations at issue; We conclude only that in this case, this first factor does not weigh heavily in favor of or against allowing these actions.

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2. Whether the Declaratory Judgment Action Would The “useful purpose” served by the declaratory judgment Serve a Useful Purpose in Clarifying the Legal action is the clarification of legal duties for the future, rather Relations at Issue? than the past harm a coercive tort action is aimed at redressing. Here, the Banks incurred no further loss while This factor weighs heavily in favor of dismissing the settlement negotiations continued, and at the time they filed, declaratory judgment suit. The only “useful purpose” these even the “uncertainty” of awaiting suit on past behavior declaratory-judgment actions could serve is an ultimate would have extended less than two weeks, from the filing determination of liability on an already-accrued damages dates of July 18 and 19 to the end of the tolling period on July claim. Its usefulness is therefore severely undercut by the 31. While AmSouth describes the two-year settlement presence of the Mississippi litigation. This is not a situation negotiations as a “danse macabre” in which a “Damoclean in which a declaratory plaintiff will suffer injury unless legal sword hung over its head,” all AmSouth ever had to do to relations are clarified; the Banks do not currently “act at their stop this “danse macabre” was to refuse to renew the tolling peril.” See Tempco Elec. Heater Corp. v. Omega Eng’g, Inc., agreement or to cease settlement negotiations, at which time, 819 F.2d 746, 749-50 (7th Cir. 1987) (where declaratory if the Receivers did not file suit promptly, a declaratory suit defendant “promptly filed suit to enforce its [underlying] may have been appropriate. See Hyatt Int’l Corp. v. Coco, claim . . . a declaratory judgment would serve no useful 302 F.3d 707, 712 (7th Cir. 2002) (“[T]he threat of suit, purpose and was properly denied”). however immediate, is not by itself sufficient for the invocation of the federal power to issue a declaratory Normally, when a putative tortfeasor sues an injured party judgment.”); Int’l Ass’n of Entrepreneurs v. Angoff, 58 F.3d for a declaration of nonliability, courts will decline to hear the 1266, 1270 (8th Cir. 1995) (“[T]he Declaratory Judgment Act action in favor of a subsequently-filed coercive action by the is not to be used to bring to the federal courts an affirmative “natural plaintiff.” See 10B WRIGHT , MILLER & KANE § 2765 defense which can be asserted in a pending state action.”), at 638 (3d ed. 1998) (“The courts have also held that it is not cert. denied, 516 U.S. 1072 (1996); Morrison v. Parker, 90 F. one of the purposes of the declaratory judgments act to enable Supp. 2d 876, 881 (W.D. Mich. 2000) (“Viewed from the a prospective negligence action defendant to obtain a perspective of [the Sixth Circuit’s five] standards, an action declaration of nonliability.”). This general rule is subject to by a putative tortfeasor fares poorly as a declaratory judgment exception when some additional harm, not merely waiting for action.”); Plough, Inc. v. Allergan, Inc., 741 F. Supp. 144, the natural plaintiff to sue, will befall the declaratory plaintiff 147-48 (W.D. Tenn. 1990) (in Lanham Act case, where in the meantime. That is, a party who wants, for example, to declaratory plaintiff was under threat of suit for ongoing embark on a marketing campaign, but has been threatened marketing activities, declaratory judgment appropriate). with suit over trademark infringement, can go to court under the Declaratory Judgment Act and seek a judgment that it is The district court characterized the settlement negotiations not infringing that trademark, thereby allowing it to proceed engaged in by FTB and the Receivers as “‘continuous[] without the fear of incurring further loss. Similarly, a party accus[ations]’” for “at least several months before FTB with an ongoing contractual relationship who has been brought this suit ‘to secure an adjudication of its rights.’” accused of breach can go to court and have the contract J.A. FTB at 63 (Mem. Op. at 15). The district court relied on definitively interpreted, thus allowing it to conform its Eli’s Chicago Finest, Inc. v. Cheesecake Factory, Inc., 23 F. behavior to the law and stop the potential accrual of damages. Supp. 2d 906, 908 (N.D. Ill. 1998), for the point that

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continuous accusations without adjudication of rights can trademark infringement) and those where the injury is already justify entertaining a declaratory judgment suit. But as complete. Contract claims can sometimes fall into the first demonstrated by Eli’s Chicago Finest, in which a single category because of the ongoing nature of a contractual cease-and-desist letter was held not to constitute continuous relationship, whereas tort claims will often fall into the accusations, the factual circumstances surrounding those second because they are dependent on historical occurrences accusations are dispositive. First, as the Receivers point out, rather than ongoing conditions. All of the claims extended by it is unclear what “two demands” the district court was the Receivers fall into the second category, in that they allege referring to in finding “continuous accusations”; the no present or continual wrongdoing on the part of the Banks Receivers made no formal demands to FTB, only an oral that would require immediate clarification of the parties’ indication that they intended to assert claims if they could not respective rights. While the Banks might have a continuing be resolved through negotiation. FTB had signed a tolling contractual relationship with the insurance companies and the agreement, indicating some willingness to negotiate a Receivers, the historical incidents giving rise to liability are settlement rather than forcing a legal action, had engaged in finished. Ultimately, this factor weighs heavily against the preliminary negotiations, and had in fact asked for a formal exercise of jurisdiction over these declaratory actions, where settlement demand that was being prepared as it filed suit. a pending coercive action exists. This is clearly not the case of the plaintiff who accuses continuously but does not file, but instead the case of the 3. Whether the Declaratory Remedy is Being Used defendant who races to the courthouse while at the same time Merely for the Purpose of Procedural Fencing or to assuring the plaintiff that the defendant is still interested in at Provide an Arena for a Race for Res Judicata? least discussing settlement options. The district court clearly erred in these historical findings of fact. Courts take a dim view of declaratory plaintiffs who file their suits mere days or weeks before the coercive suits filed FTB also argues on appeal that many of the claims by a “natural plaintiff” and who seem to have done so for the advanced by the Receivers are not torts, but instead contract purpose of acquiring a favorable forum. Allowing declaratory claims, and therefore, FTB does not fit into the category of actions in these situations can deter settlement negotiations “putative tortfeasor.” At most, this can only undermine and encourage races to the courthouse, as potential plaintiffs reliance on those cases that rely on that particular formulation must file before approaching defendants for settlement of the type of declaratory plaintiff at issue here. In any case, negotiations, under pain of a declaratory suit. This also it is irrelevant to the policy considerations that underly the dovetails with the previous factor: where a putative defendant doctrine: Where a pending coercive action, filed by the files a declaratory action whose only purpose is to defeat natural plaintiff, would encompass all the issues in the liability in a subsequent coercive suit, no real value is served declaratory judgment action, the policy reasons underlying by the declaratory judgment except to guarantee to the the creation of the extraordinary remedy of declaratory declaratory plaintiff her choice of forum — a guarantee that judgment are not present, and the use of that remedy is cannot be given consonant with the policy underlying the unjustified. This is true whatever the nature of the coercive Declaratory Judgment Act. See Hyatt Int’l, 302 F.3d at 712 action underlying the declaratory action — the important (the Act “is not a tactical device whereby a party who would distinction in the case law is between situations where some be a defendant in a coercive action may choose to be a uncertainty beyond the possibility of litigation exists (i.e., plaintiff by winning the proverbial race to the courthouse.”

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(internal quotation marks omitted)); NGS Am., Inc. v. J.A. FTB at 65 (Mem. Op. at 17). We conclude that the Jefferson, 218 F.3d 519, 523 (6th Cir. 2000) (“[A] rule factual determination underlying this finding was clearly permitting [this sort of declaratory] action could frustrate a erroneous, as were the legal standards used to reach this plaintiff’s choice of forum and encourage forum shopping, conclusion. The district court first found that the Receivers races to the courthouse, needless litigation occasioning waste had continuously accused FTB for several months before of judicial resources, delay in the resolution of controversies, FTB’s action was brought to secure an adjudication of its and misuse of judicial process to harass an opponent in rights; then that Tennessee was a logical forum for this litigation,” irrespective of the actual motives of the dispute; and finally that a controversy was presented by the declaratory plaintiff); BASF Corp. v. Symington, 50 F.3d 555, Receivers’ threat of suit. Taking up this last conclusion first, 558-59 (8th Cir. 1995) (“declaratory actions founded we note that the presence of a controversy is a prerequisite for exclusively on a defense to a state law claim should be the district court’s initial power to hear a declaratory dismissed as a tactical maneuver calculated to deny potential judgment action; its absence strips the district court of plaintiffs of their traditional right to choose the forum and jurisdiction, and its presence therefore should have no weight time of suit”; “the natural plaintiff’s choice of forum and law in determining whether a declaratory-judgment action is will be disturbed only in exceptional circumstances”); appropriate. Next, whether the forum chosen by the Tempco, 819 F.2d at 750 (“[T]he federal declaratory declaratory plaintiff is “logical” can have only a minimal judgment is not a prize to the winner of the race to the value in determining whether procedural fencing has courthouse.” (internal quotation marks omitted)); UAW v. occurred.7 The question is not which party has chosen the Dana Corp., No. 3:99CV7603, 1999 WL 33237054, *5-*6 (N. D. Ohio Dec. 6, 1999) (where declaratory plaintiff filed suit in order to “preempt the choice of forum that otherwise and granting injunction), Joint App endix No. 03-5517 (“J.A. AmSouth”) would be for the union to make,” declaratory judgment at 42. We find it to be clear o n the rec ord that Am South engaged in inappropriate; noting “a presumption that a first filed procedural fenc ing, and therefore we d o not need to remand for sep arate factual findings to evaluate the pro priety of each of these ac tions.

declaratory judgment action should be dismissed or stayed in favor of the substantive suit,” and that at the least, “the 7 It is unclear whether the propriety of Tennessee as a forum was declaratory judgment plaintiff should have the burden or weighed by the district court as part of the “proced ural fencing” analysis, showing persuasive cause why its suit should not be or as a separate factor in determining whether the declaratory judgment enjoined”). was appropriate. The parties vigorously contest whether the district court app ropriately considered the logic of the forum. The Receivers cite Essex The district court found “that this declaratory judgment Group, Inc. v. Cobra Wire & Cable, Inc., 100 F. Supp. 2d 912, 916 (N.D. action6 was not filed in Tennessee for procedural fencing.” Ind. 200 0) (“[R ]egardless o f whether Indiana is the more appropriate venue . . . it is inappropriate for the Plaintiffs to file for a declaratory judgment for the purposes of forum-shopping.”) and UAW v. Dana Corp., No. 3:99CV7603, 1999 WL 33237054, *4 (N. D. Ohio Dec. 6, 1999)

6 (differentiating proper forum selection, where a “plaintiff seeking redress The district court issued a memorandum decision in FTB’s action for a co gnizab le injury is entitled” to choose amon g appro priate forums, against the receivers m aking find ings only as to FT B’s action, but then from improper forum shopping, where a party “manipulate[s] procedural denied the Receivers’ motion to dismiss in the AmSouth action “[f]or the devices to secure an advantage which, were those de vices not available, reasons stated in the First Tennessee action.” Am Sou th Ba nk v. D ale, No. it could not employ to defeat its opp onent’s choice of forum”). AmSouth 3:02-0677 (M.D . Tenn. Mar. 31, 20 03) (order denying motion to d ismiss relies on United States Fire Insurance Co. v. Goodyear Tire & Rubber

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better forum, but whether the declaratory plaintiff has filed in actions not to resolve issues of liability that were hindering an attempt to get her choice of forum by filing first. That a their normal behavior, but instead to gain procedural particular forum is better or worse is irrelevant in answering advantage. See Zide Sport Shop of Ohio, Inc. v. Ed Tobergte that factual question. Assocs., Inc., No. 00-3183, 2001 WL 897452, *4 (6th Cir.

July 31, 2001) (where declaratory plaintiffs filed suit after Instead, we conclude that a review of the factual record requesting extension to respond to settlement demand, one leads to the unavoidable conclusion that procedural fencing day before extension’s expiration, a “finding of bad faith is has occurred. The Receivers, alerted to the possibility of overwhelmingly supported in the record”); Nortek, Inc. v. claims against the Banks in the course of litigation against Molnar, 36 F. Supp. 2d 63, 70 (D.R.I. 1999) (where other parties, notified the Banks of their exploration of those declaratory plaintiff asked for letter outlining legal reasoning claims and initiated settlement negotiations. The Banks and promised to respond, then filed action prior to responding indicated their willingness to consider settlement, most to letter, party “certainly shopped for a forum,” and court notably by signing a number of tolling agreements, and in therefore declined jurisdiction over first-filed action); AmSouth’s case, through correspondence indicating that Columbia Pictures Indus., Inc. v. Schneider, 435 F. Supp. those negotiations were ongoing. FTB requested a settlement 742, 747-48 (S.D.N.Y. 1977) (allowing six-days-earlier demand, and while that demand was being prepared, filed this declaratory action to proceed “would create disincentives to action. Just one day before filing its declaratory action, responsible litigation,” and instead, “Potential plaintiffs AmSouth’s counsel sent a letter stating that AmSouth was should be encouraged to attempt settlement discussions (in “still considering” the Receivers’ demand and its options, and good faith and with dispatch) prior to filing lawsuits without that counsel would “be in touch in the near future concerning fear that the defendant will be permitted to take advantage of a written response and a possible meeting on July 24.” J.A. the opportunity to institute litigation in a district of its own AmS at 572. It seems clear that the Banks filed declaratory choosing before plaintiff files an already drafted complaint.”).

Cf. N. Shore Gas Co. v. Salomon Inc., 152 F.3d 642, 647 (7th Cir. 1998) (where settlement negotiations had reached acknowledged impasse, declaratory judgment filed one month Co., 920 F.2d 487, 489 n.7 (8th Cir. 1990) (footnote remarking as an aside to rejecting the declaratory defendant’s claims of procedural fencing after last contact between parties was not “racing to the that the disp ute was one over a Minnesota judgment and involved a courthouse”); Kmart Corp. v. Key Indus., Inc., 877 F. Supp. Minneso ta accident); Telephonics Corp. v. Lindly & Co., 291 F.2d 445, 1048, 1052-55 (E.D. Mich. 1994) (finding declaratory 446-47 (2d Cir. 1961) (in weighing propriety of an antisuit injunction judgment appropriate; key consideration is whether the entered by district court in declaratory action, noting that New York was declaratory plaintiff “misled the defendant into believing that a more appropriate venue for the suit); and DP-Tek, Inc. v. Villalobos, 809 F. Supp. 811, 813 (D. Kan. 1992) (using traditional forum selection their dispute could be resolved amicably so that the plaintiff factors in weighing appropriateness of declaratory action). Whether or not could win the race to the courthouse”). the district court’s consideration of this factor was inco rrect, given that both parties have a reasonable claim to their respective forum, this factor We conclude that the practical effect of FTB’s and is something of a wash, and we decline to decide whether a district court AmSouth’s participation in settlement negotiations and is always precluded from considering it. To the extent it may weigh in affirmative representations of that participation was to lull the favor of the declaratory action, the other factors — explicitly required by prior circuit case law — still weigh heavily in favor of the Mississippi Receivers into believing that amicable negotiation was still litigation. possible, and that the filing of these declaratory actions was

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an effort to engage in procedural fencing to secure the Banks’ insurance companies, and that the scheme was nationwide, choice of forum. The district court clearly erred in with documents in numerous fora. concluding otherwise. This factor weighs heavily against entertaining these actions under the Declaratory Judgment The existence of a coercive action is important to our Act. determination that this declaratory action would serve no useful purpose. See, e.g., Albie’s Foods, Inc. v. Menusaver, 4. Whether allowing the action would cause friction Inc., 170 F. Supp. 2d 736, 740 (E.D. Mich. 2001) (relying on between state and federal courts? Tempco in deferring to a subsequently-filed coercive action, noting that invocation of coercive remedy will “help sharpen This is a factor that, as noted above, would have at the and refine the issues to be decided”); Pakideh v. Ahadi, 99 F. outset of this litigation been dispositive under the Anti- Supp. 2d 805, 807-09 (E.D. Mich. 2000) (dismissing Injunction Act, and before the dismissal of Flowers from the declaratory judgment action in favor of coercive action suit weighed heavily against entertaining this action in favor pending in other federal district court after removal); Essex of allowing the Mississippi litigation to proceed. It seems Group, Inc. v. Cobra Wire & Cable, Inc., 100 F. Supp. 2d unfortunate that happenstance and procedural maneuvering by 912, 915-17 (N.D. Ind. 2000) (dismissing first-filed the Banks should serve to undercut this particularly important declaratory judgment in favor of coercive action in other factor in the balance, but at this point it is difficult to say that federal court because to do otherwise would discourage requiring the district court to dismiss the action will decrease settlement and encourage costly duplicate litigation). Beyond the friction between the state and federal courts. recognizing that an alternative remedy exists, we are unsure that this factor weighs heavily in favor of or against 5. Whether there is an alternative remedy that is entertaining these declaratory actions.

better or more effective?

Ultimately, then, two factors, that the declaratory The Receivers argue that the Mississippi litigation presents judgments would serve no useful purpose and that FTB and a better remedy, because a coercive action is an inherently AmSouth are using these actions for the purpose of more effective litigation vehicle, because the Receivers procedural fencing, weigh heavily in favor of declining proceed in one action in the Mississippi litigation, rather than jurisdiction over these declaratory actions, with no factors the two actions in the district court and this court, and because weighing in favor of proceeding with the declaratorythe parties are naturally aligned in the Mississippi litigation, noting with respect to this last point the evident misstatements in the district court’s opinion switching the two sets of parties. AmSouth notes that the material witnesses reside in Tennessee, the underlying events occurred in that state, relevant documents are located in Tennessee, and Tennessee law will likely govern. The Receivers reply that Tennessee and Mississippi are adjacent, reducing the burden of travel, that two-thirds of the total loss suffered was by Mississippi

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judgment action.8 The district court therefore abused its discretion in entertaining these actions.

III. CONCLUSION

For the foregoing reasons, we DISSOLVE the injunction, REVERSE the district court’s decision, and REMAND the case to the district court with instructions to dismiss the actions.

8 The district court also relied on the first-filed rule in denying the Receivers’ motio n to dismiss, which was likely improper, in that the first- filed rule only applies to two cases filed in separate fed eral co urts, see Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., Inc., No. 00-3183, 200 1 W L 89 745 2, *3 (6th Cir. July 31, 20 01) (“T he first-to-file rule is a well-established doctrine that encourages comity among federal courts of equal rank.” (emphasis added)) Hea lthcare Capital, LLC v. Healthmed, Inc., 213 F. Supp. 2d 850, 856 (S.D. Ohio 2002), and the Mississippi litigation was filed in state court. In any case, the first-filed rule is not a strict rule and much more often than no t gives way in the context of a coercive action filed subsequent to a decla ratory action. See, e.g., Zide, 2001 W L 89 745 2 at *3 (“A plaintiff, even one who files first, does not have a right to bring a declaratory judgment action in the forum of his choosing”.); Essex, 100 F. Supp. 2d at 915-17 (dismissing first-filed declaratory judgment in favor of subsequent coercive action in other federal court); UAW, 1999 W L 3323 7054 at *6 (“Cases construing the interplay between declaratory judgment actions and suits based on the merits of underlying substantive claims create, in practical effect, a presumption that a first filed declaratory judgment action should be dismissed or stayed in favor o f the substantive suit.”); Nortek, Inc. v. Molnar, 36 F. Supp. 2d 6 3, 70 (D.R.I. 1999) (dismissing first-filed declaratory judgment in favor of subsequent coercive action).