IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT ______________________

No. 97-31099 ______________________

VOYD B BURGER Plaintiff - Appellant

v.

AMERICAN MARITIME OFFICERS UNION, also known as AMO; ET AL Defendants

AVONDALE SHIPYARD, INC. Defendant - Appellee

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case No. 97-31100

VOYD B BURGER Plaintiff - Appellant

v.

AMERICAN MARITIME OFFICERS UNION, also known as AMO; ET AL Defendants

AMERICAN MARITIME OFFICERS UNION, also known as AMO Defendant - Appellee

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case No. 97-31158

VOYD B BURGER Plaintiff - Appellant

v.

AMERICAN MARITIME OFFICERS UNION, also known as AMO; ET AL Defendants

BAY SHIP MANAGEMENT INC Defendants - Appellee

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case No. 97-31291

VOYD B BURGER Plaintiff - Appellee

v.

AMERICAN MARITIME OFFICERS UNION; ET AL Defendants

AMERICAN MARITIME OFFICERS UNION, also known as AMO; MICHAEL R MCKAY, President of American Maritime Officers Union; DANIEL L SMITH; THOMAS E KELLY; ROBERT W MCKAY, Secretary-Treasurer of American Maritime Officers Union; JAMES D WILLARD Defendants - Appellants

- - - - - - - - - - - - - - -

Appeals from the United States District Court for the Eastern District of Louisiana, New Orleans (97-CV-2085-T) - - - - - - - - - - - - - - -

January 27, 1999

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Voyd Burger appeals the district court

order dismissing his complaint on comity grounds under the first-

to-file rule. American Maritime Officers Union also appeals,

arguing that the district court applied the incorrect standard in

denying its motion for sanctions under Federal Rule of Civil

Procedure 11. We affirm in part and reverse in part.

I. FACTS AND PROCEDURAL HISTORY

Voyd Burger, a Florida resident, filed suit in July 1997 in

the Eastern District of Louisiana against American Maritime

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 Officers Union (AMO), Avondale Shipyard, Inc. (Avondale), and Bay

Ship Management, Inc. (BSM), alleging violations of the

Racketeering Influenced and Corrupt Organizations Act (RICO), the

Age Discrimination in Employment Act (ADEA), and other federal

laws.

Burger had filed a nearly identical complaint in the Northern

District of Florida on February 20, 1996. In that suit, brought

against AMO, Avondale, BSM, and other parties, Burger alleged

violations of various state and federal statutes, including RICO

and ADEA. On July 31, 1996, the Florida district court dismissed

the claims against BSM and Avondale for lack of personal

jurisdiction, and granted summary judgment to AMO on Burger’s ADEA

claim. On April 24, 1997, the Florida district court dismissed all

other claims against AMO under Federal Rule of Civil Procedure

41(b). On May 29, 1997, Burger appealed these dismissals to the

Court of Appeals for the Eleventh Circuit. On August 20, 1998, the

Eleventh Circuit affirmed, determining that the Florida district

court lacked personal jurisdiction over the claims against BSM and

Avondale, and that the district court did not err in granting

summary judgment to AMO on the ADEA claim and in dismissing the

rest of the claims against AMO pursuant to Rule 41(b).

In late September and early October 1997, the Louisiana

district court dismissed with prejudice all claims against AMO,

Avondale, and BSM. The court found that the complaints filed in

the Florida and the Louisiana litigation were almost identical, and

that Burger had filed in Florida before filing in Louisiana. The

3 district court, citing the principles of comity and sound judicial

administration, followed the first-to-file rule and dismissed the

claims to avoid duplicative litigation in two federal courts.1 The

district court judge also denied AMO’s motion to impose Rule 11

sanctions on Burger. Burger timely appealed the district court’s

dismissal of his claims, and AMO timely appealed the district

court’s denial of Rule 11 sanctions.

II. DISCUSSION

A. The First-To-File Rule

Under the first-to-file rule, a district court may dismiss,

stay, or transfer an action where the issues presented can be

resolved in an earlier-filed action pending in another federal

court. See West Gulf Maritime Ass’n v. ILA Deep Sea Local 24,

(5th Cir. 1985). The rule is grounded in principles

of comity and sound judicial administration. See Save Power Ltd.

v. Syntek Fin. Corp.,

(5th Cir. 1997); West Gulf

Maritime Ass’n,

. “The concern manifestly is to

avoid the waste of duplication, to avoid rulings which may trench

upon the authority of sister courts, and to avoid piecemeal

resolution of issues that call for a uniform result.” West Gulf

Maritime Ass’n,

. Although this circuit has thus

far only applied the first-to-file rule when similar actions are

1 Obviously, the district court did not know that the Eleventh Circuit would later affirm the Florida district court’s decision. In determining whether the district court abused its discretion in applying the first-to-file rule, we must look to the facts known to the district court at the time of its order. See Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,

(5th Cir. 1992).

4 pending in two federal district courts and where similar actions

are pending in the same federal district, see Dillard v. Merrill

Lynch, Pierce, Fenner & Smith, Inc.,

, 1161 n.28 (5th

Cir. 1992), the same policy concerns for avoiding duplicative

litigation and comity exist when a similar matter is pending in a

federal district court and a federal court of appeals in a

different circuit. See National Family Planning & Reprod. Health

Ass’n v. Sullivan, No. 92-2177,

, at *2-*3 (D.D.C.

Oct. 5, 1992) (declining to exercise jurisdiction when duplicative

litigation was ongoing in federal court of appeals); cf. Dillard,

n.28 (noting that the first-to-file rule applies

in contexts where stay or dismissal of case substantially similar

to litigation in another court would avoid duplicative litigation).

We review a district court’s decision to decline jurisdiction over

a case before it based on the first-to-file rule for abuse of

discretion. See Sutter Corp. v. P & P Indus., Inc.

(5th Cir. 1997); Dillard,

.

The district court in this case did not abuse its discretion

in applying the first-to-file rule. The litigation in the district

court and the litigation in the Florida district court were nearly

identical--both concerned AMO, BSM, and Avondale, and both raised

substantially similar claims. Burger does not dispute that the

Florida litigation was commenced first or that the two cases raise

substantially the same issues. Under these circumstances, the

district court’s application of the first-to-file rule to avoid

duplicative litigation was not an abuse of discretion. See Save

5 Power Ltd.,

(applying the first-to-file rule to

simultaneous litigation involving issues with “substantial

overlap”); Mann Mfg., Inc. v. Hortex, Inc.,

, 408 n.6

(5th Cir. 1971) (“[R]egardless of whether or not the suits here are

identical, if they overlap on the substantive issues, the cases

would be required to be consolidated in . . . the jurisdiction

first seized of the issues.”).

It was therefore within the district court’s broad discretion

to decline jurisdiction over Burger’s claims, and to defer to the

first-filed court in order to avoid unnecessary litigation and the

risk of an inconsistent result. However, we find that the district

court abused its discretion in dismissing the claims against BSM

and Avondale with prejudice rather than staying the proceedings or

dismissing the claims without prejudice. The Florida district

court dismissed the claims against BSM and Avondale for lack of

personal jurisdiction, and did not consider the merits of Burger’s

claims against them. When the jurisdiction of the first-filed

court to hear the dispute is uncertain, it is an abuse of

discretion to dismiss the claims in the second-filed court with

prejudice, as it creates the risk that the merits of the claims

could never be addressed. See Alltrade, Inc. v. Uniweld Prods.,

Inc.,

(9th Cir. 1991) (determining that

district court did not abuse its discretion in applying the first-

to-file rule, but reversing the district court’s dismissal of the

claims in the second-filed court in favor of a stay); Asset

Allocation & Mgt. Co. v. Western Employers Ins. Co.,

,

6 571 (7th Cir. 1990) (vacating order mandating dismissal of second-

filed claim with prejudice in favor of a stay); 17 Linda S.

Mullinex & Georgene M. Vairo, Moore’s Federal Practice

¶ 111.13[1][o] (3d ed. 1998) (“If the first-filed action is

vulnerable to dismissal on jurisdictional or statute of limitations

grounds, the court in the second-filed action should stay it or

transfer it, rather than outright dismiss it.”); see also Dillard,

(stating that while district court did not abuse

its discretion in applying the first-to-file rule, district court

did abuse its discretion in dismissing second-filed claim with

prejudice, where first-filed case would have no res judicata or

collateral estoppel effect on the second-filed case).

The district court should have either granted a stay or

dismissed the claims against BSM and Avondale without prejudice.

In that way, if the Eleventh Circuit had reversed the Florida

district court’s jurisdiction ruling, the district court could have

dismissed with prejudice, and, if, as actually happened, the

Eleventh Circuit affirmed the jurisdiction ruling, the district

court could have lifted the stay or entertained a new action

brought by Burger and proceed to evaluate the claims on the merits,

assuming it could exercise personal jurisdiction over the parties.

The district court did not abuse its discretion in dismissing the

claims against AMO with prejudice, however, as there was no

question that the Florida district court had personal jurisdiction

over AMO. There was therefore no risk that the district court’s

dismissal could preclude any court from hearing Burger’s claims

7 against AMO.

B. Rule 11 Sanctions

The district court denied AMO’s motion to impose Rule 11

sanctions against Burger, relying on the fact that Burger had

proceeded pro se. AMO appeals, contending that the district court

improperly considered Burger’s pro se status in deciding whether to

impose Rule 11 sanctions. We review a district court’s decision

not to impose Rule 11 sanctions for an abuse of discretion. See

Houge v. Royse City,

(5th Cir. 1991). A

district court necessarily abuses its discretion if it bases its

Rule 11 ruling on an erroneous view of the law. See Elliott v.

Tilton,

(5th Cir. 1995).

In Thomas v. Capital Sec. Servs. Inc.,

(5th

Cir. 1988), this court, sitting en banc, listed several factors

that a district court could take into account in determining

whether a litigant has complied with Rule 11. Among those factors

is “the pro se status of a litigant.” Id.; see Smith v. Our Lady

of the Lake Hosp. Inc.,

(5th Cir. 1992) (stating

that a district court can properly consider the pro se status of

litigant). In addition, the Advisory Committee Notes to the 1983

Amendments to Rule 11 state that “[a]lthough the [Rule 11] standard

is the same for unrepresented parties, who are obliged themselves

to sign the pleadings, the court has sufficient discretion to take

account of the special circumstances that often arise in pro se

situations.” Fed. R. Civ. P. 11 advisory committee notes (citing

Haines v. Kerner,

(1972)). We therefore find that the

8 district court did not abuse its discretion in considering Burger’s

pro se status and in declining to impose Rule 11 sanctions.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

dismissal of the claims against AMO, REVERSE the dismissal of

claims against BSM and Avondale, AFFIRM the district court’s denial

of AMO’s motion for Rule 11 sanctions against Burger, and REMAND

for further proceedings consistent with this opinion. We DENY AS

MOOT AMO’s motion to file record excerpts in excess of the page

limitation.

9