18‐2431‐cv(L) Arch Ins. Co. v. Pfizer, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 6th day of June, two thousand nineteen.

5 PRESENT: GUIDO CALABRESI, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8 ANN M. DONNELLY, 9 District Judge.

11 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 12 ARCH INSURANCE COMPANY, 13 U.S. SPECIALITY INSURANCE 14 COMPANY, 16 Plaintiffs‐Appellants, 18 v. Nos. 18‐2431‐cv(L), 19 18‐2432‐cv(CON)  Judge Ann M. Donnelly, of the United States District Court for the Eastern District of New York, sitting by designation.

1 PFIZER, INC., 3 Defendant‐Appellee.

4 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 5 FOR APPELLANTS: ERICA KERSTEIN, White and 6 Williams LLP, New York, NY 7 (Marissa Gerny, Skarzynski 8 Black LLC, New York, NY, on 9 the brief), for Arch Insurance 10 Company.

12 Matthew Dendinger, Dykema 13 Gossett P.L.L.C., Washington, 14 DC, Scott A. Schechter, 15 Kaufman, Borgeest & Ryan 16 LLP, Valhalla, NY, on the brief, 17 for U.S. Specialty Insurance 18 Company.

20 FOR APPELLEE: MARC T. LADD (Adam S.

21 Ziffer, on the brief), McKool 22 Smith, P.C., New York, NY.

24 Appeal from a judgment of the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge).

26 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

28 Arch Insurance Company and U.S. Specialty Insurance Company (collectively, the “Excess Insurers”) appeal from a judgment of the District Court (Forrest, J.), granting Pfizer’s motion to dismiss the instant action (the “SDNY Morabito action”) in favor of a parallel action between the same parties pending in Delaware Superior Court (the “Delaware Morabito action”), and an order of the District Court denying the Excess Insurers’ motion for reconsideration. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

8 The District Court initially relied on the “first‐filed” rule, “where an action is brought in one federal district court and a later action embracing the same issue is brought in another federal court, the first court has jurisdiction to enjoin the prosecution of the second action, unless there are special circumstances which justify giving priority to the second action.” City of New York v. Exxon Corp., 932 F.2d 1020, 1025 (2d Cir. 1991) (emphases added) (quotation marks omitted). We agree with both parties on appeal that the first‐filed rule has no application here because the Delaware Morabito action is in state court, not federal court. On reconsideration the District Court clarified that it had

1 dismissed the SDNY Morabito action “in the interest of justice and judicial efficiency, as these cases should be adjudicated together.” Special App’x at 6.

3 Since imposing judgment in this case, Judge Forrest resigned from the federal bench. As a result, remanding this matter may lead to a long delay while it is reassigned to a new District Judge unfamiliar with the procedural background. At oral argument, both parties urged that we could resolve this dispute on appeal. Because Brillhart/Wilton abstention is so clearly warranted and proper in this case, see Wilton v. Seven Falls Co., 515 U.S. 277 (1995); Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942); Youell v. Exxon Corp., 74 10 F.3d 373 (2d Cir. 1996), and to avoid further unnecessary delay under the circumstances, we affirm the judgment on that ground.

12 We have considered the parties’ remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

15 FOR THE COURT: 16 Catherine O=Hagan Wolfe, Clerk of Court