Jimenez v. Rodriguez-Pagan ( 2010 )

  •           United States Court of Appeals
                          For the First Circuit
    No. 09-1135
                          Plaintiffs, Appellants,
       RODRÍGUEZ-BINET a/k/a Tommy Rodríguez; ISABELA BEACH COURT,
                          Defendants, Appellees.
                      FOR THE DISTRICT OF PUERTO RICO
            [Hon. Salvador E. Casellas, U.S. District Judge]
                       Torruella, Lipez and Howard,
                              Circuit Judges.
         Irma R. Valldejuli for appellants.
         Mónica I. De Jesús Santana, with whom Fiddler González &
    Rodríguez. PSC, was on brief, for appellees.
                               March 1, 2010
                  HOWARD, Circuit Judge. This case calls on us to navigate
    the turbulent waters of Colorado River abstention.                   That doctrine,
    established in Colorado River Water Conservation District v. United
    424 U.S. 800
     (1976), allows federal courts in limited
    instances      to    stay   or    dismiss    proceedings      that    overlap    with
    concurrent litigation in state court.
                  The plaintiffs here originally sued in federal district
    court, asserting diversity jurisdiction.                 They later commenced an
    identical action in a Puerto Rico Commonwealth court during what
    they considered to be a burdensomely long pendency of a motion to
    dismiss for failure to join an indispensable party.                        The federal
    court eventually granted the motion to dismiss, leaving the action
    in   the    Commonwealth     court    to    proceed      alone.      The    plaintiffs
    appealed from the federal dismissal and now ask us to reinstate the
    diversity      suit    to   its    parallel      track    alongside    the     ongoing
    Commonwealth litigation.            The defendants argue not only that we
    should affirm the dismissal for lack of an indispensable party, but
    also,      among    other   things,   that       the   Commonwealth-court       action
    provides an alternative ground for disposing of the federal case
    under Colorado River.            We conclude that the narrow conditions for
    Colorado River abstention are met here.                    We therefore stay the
    federal proceedings pending the outcome of the Commonwealth-court
    I. Background
              Since the district court did not reach the merits, we
    provide a "condensed version of the dispute."     Tell v. Trs. of
    Dartmouth Coll., 
    145 F.3d 417
    , 418 (1st Cir. 1998).    On December
    22, 1998, Manuel Molina-Godinez, the plaintiffs' decedent, sold the
    defendants 100% of the stock in an apartment complex development
    known as Isabela Beach Court.     Molina-Godinez agreed to manage
    Isabela Beach Court in exchange for a monthly fee and 18% of the
    proceeds after the complex's completion and the sale of all units.
    In addition, before construction began, Molina-Godinez verbally
    agreed to buy one of the penthouses in Isabela Beach Court for
    $220,000, and the defendants reserved the unit for him.       This
    agreement was later confirmed in writing.   For reasons unspecified
    at this stage, the defendants dispute the scope and validity of
    these agreements.
              On January 3, 2003, Molina-Godinez died. Construction of
    Isabela Beach Court was completed at some point after his death and
    all of the units were sold successfully.       On March 27, 2007,
    Molina-Godinez's widow, plaintiff Sonia I. Jiménez, commenced an
    action in the federal district court for the District of Puerto
    Rico asserting that she was entitled to half of her late husband's
    18% share, which had never been paid.   Additionally, she sought to
    exercise his option on the penthouse apartment that had allegedly
    been reserved for him.   Because Jiménez was a Florida resident and
    the defendants were all Puerto Rico residents, she claimed that the
    district court had diversity jurisdiction over the matter.
              The defendants moved to dismiss for failure to join an
    indispensable party under Rule 19 of the Federal Rules of Civil
    Procedure.    They argued that the case could not proceed without
    Molina-Godinez's three other heirs, two of whom were also Puerto
    Rico residents.    Because joinder of the Puerto Rico heirs would
    defeat complete diversity, the defendants maintained, dismissal was
              On August 10, 2007, Jiménez amended the complaint to join
    the one diverse heir while still excluding the non-diverse heirs.
    She also altered her theory of the case, explaining that she was
    now seeking the contractual proceeds on behalf of Molina-Godinez's
    estate rather than for herself alone.   She claimed that she could
    adequately protect the interests of the non-diverse heirs and that,
    as a result, the action did not depend on their joinder.       The
    amended complaint asked the court to award any judgment to the
    estate, where it could be allocated to heirs and creditors by a
    Puerto Rico probate court at some later date.
              The addition of the diverse heir as a named plaintiff did
    not, however, affect the substance of the defendants' argument.
    The defendants renewed their motion to dismiss, maintaining that
    Jiménez was not an adequate representative of the estate and that
    an adverse judgment could affect the non-diverse heirs' interests.
    According to them, neither the case's new posture nor the joinder
    of the one diverse heir would lessen the indispensability of the
    non-diverse heirs.   The plaintiffs filed their response three days
              Over six months passed without any further action from
    the court.   On March 27, 2008, the plaintiffs sought to learn the
    status of the pending motion to dismiss, but the docket does not
    indicate a response from the court.    On August 29, 2008, after an
    additional five months, the plaintiffs filed a parallel complaint
    in the Court of First Instance for the Commonwealth of Puerto Rico.
    Unlike the federal action, this second suit joined all of Molina-
    Godinez's heirs as parties.
              On December 12, 2008, the district court granted the
    defendants' motion to dismiss.     Jiménez v. Rodríguez-Pagán, 
    254 F.R.D. 151
     (D.P.R. 2008).     This appeal followed.   Meanwhile, the
    Commonwealth action has progressed in due course and is now into
    the discovery stage.
    II. Discussion
              The defendants-appellees present three different possible
    grounds to deny appellate relief to the plaintiffs-appellants.
    First, they argue that this case involves matters that fall within
    the probate exception to diversity jurisdiction and thus cannot be
    adjudicated in federal court. Second, they reiterate their Rule 19
    claim that the non-diverse heirs remain indispensable.      Finally,
    they ask us to abstain under Colorado River and allow the Puerto
    Rico court to resolve the case.          Though we reject the first of
    these arguments and harbor considerable skepticism as to the
    second, we ultimately agree that this case warrants Colorado River
                            A. The Probate Exception
                 It has been said that "[t]he probate exception is one of
    the most mysterious and esoteric branches of the law of federal
    jurisdiction."      Dragan v. Miller, 
    679 F.2d 712
    , 713 (7th Cir.
    1982).     Once more unto the breach.2
                 The probate exception is a judge-made doctrine stemming
    from the original conferral of federal equity jurisdiction in the
    Judiciary Act of 1789. The ambit of that jurisdiction, coterminous
    with that exercised by the framers' contemporaries in the English
    courts of chancery, "did not extend to probate matters."       Markham
    v. Allen, 
    326 U.S. 490
    , 494 (1946).       The Supreme Court accordingly
    held in Markham that federal courts have no authority to "interfere
    with the probate proceedings or assume general jurisdiction of the
          Under different circumstances, we might proceed directly to
    the dispositive Colorado River analysis, bypassing the other two
    questions. In this case, however, a cursory treatment of those
    questions does not suffice. Were the probate exception to apply
    here, we would have no subject matter jurisdiction over this
    dispute, and we think it appropriate to determine our own
    jurisdiction at the outset. The Rule 19 issue merits its own
    analysis because it factors into our eventual determination to
             See William Shakespeare, King Henry the Fifth, act 3, sc. 1.
    probate or control of the property in the custody of the state
    court."    Id.
                Yet "stating the probate exception has proven easier than
    applying it."      Umsted v. Umsted, 
    446 F.3d 17
    , 20 n.2 (1st Cir.
    2006).    After Markham, just what would constitute "interfere[nce]
    with the probate proceedings" proved notoriously difficult to pin
    down.     When we last had the opportunity to consider the doctrine
    nearly a decade ago, we acknowledged that "the precise scope of the
    probate exception has not been clearly established."            Mangieri v.
    226 F.3d 1
    ,   2   (1st   Cir.   2000)   (internal   brackets
                Since then, the Supreme Court has revisited the issue and
    illuminated matters somewhat.         In Marshall v. Marshall, the Court
    explained that
                the “interference” language in Markham [is]
                essentially a reiteration of the general
                principle that, when one court is exercising
                in rem jurisdiction over a res, a second court
                will not assume in rem jurisdiction over the
                same res.      Thus, the probate exception
                reserves to state probate courts the probate
                or annulment of a will and the administration
                of a decedent's estate; it also precludes
                federal courts from endeavoring to dispose of
                property that is in the custody of a state
                probate court.   But it does not bar federal
                courts from adjudicating matters outside those
                confines   and    otherwise   within   federal
    547 U.S. 293
    , 311-12 (2006) (citations omitted).              Marshall made
    clear that the scope of the probate exception is "distinctly
    limited."    Id. at 296; cf. Mooney v. Mooney, 
    471 F.3d 246
    , 248 (1st
    Cir.   2006)   (noting   that    the   Supreme   Court   in   Marshall   also
    emphasized the narrow scope of the domestic relations exception).
                The case before us does not fall within that limited
    scope.    "[W]here exercise of federal jurisdiction will result in a
    judgment that does not dispose of property in the custody of a
    state probate court, even though the judgment may be intertwined
    with and binding on those state proceedings, the federal courts
    retain their jurisdiction."        Lefkowitz v. Bank of N.Y., 
    528 F.3d 102
    , 106 (2d Cir. 2007).        The only property at issue in this case
    is the proceeds from the sale of the Isabela Beach Court units and
    the penthouse apartment on which Molina-Godinez allegedly held an
    option to purchase.      Because neither the money nor the apartment
    are yet part of the decedent's estate, neither are yet in the
    custody of a Puerto Rico probate court.           Indeed, the very relief
    sought here is enlargement of the decedent's estate through assets
    not currently within it.           While divvying up an estate falls
    squarely within the probate exception, merely increasing it does
    not.     Gustafson v. zumBrunnen, 
    546 F.3d 398
    , 400 (7th Cir. 2008)
    (finding that the probate exception did not apply because "the
    judgment sought would just add assets to the decedent's estate"
    rather than "reallocat[ing] the estate's assets among contending
    claimants or otherwise interfer[ing] with the probate court's
    control over and administration of the estate").
                                   B. Rule 19
              We review a district court's Rule 19 determinations for
    abuse of discretion.     Picciotto v. Cont'l Cas. Co., 
    512 F.3d 9
    , 14-
    15 (1st Cir. 2008).     Because the decision to dismiss for lack of an
    indispensable   party     "involve[s]    the   balancing    of   competing
    interests and must be steeped in pragmatic considerations," id. at
    14 (internal quotation marks omitted), we will reverse only if "the
    district court makes an error of law or relies significantly on an
    improper factor, omits a significant factor, or makes a clear error
    of judgment in weighing the relevant factors." Id. at 15 (internal
    citations and quotation marks omitted).
              Rule 19 is designed to protect the interests of parties
    who are not yet involved in ongoing litigation.            To measure how
    critical those interests are, the rule instructs courts to engage
    in a two-part analysis.     See Pujol v. Shearson Am. Exp., Inc., 
    877 F.2d 132
    , 134 (1st Cir. 1989).          Parties should be joined, when
    feasible, if they are "necessary" to the action according to the
    criteria laid out in Rule 19(a).3        If a necessary party cannot be
          The term "necessary" is a vestige of a superseded version of
    Rule 19 and no longer appears in the text. Rule 19(a) now speaks
    only of "Persons Required to be Joined if Feasible." Nevertheless,
    many circuits (including this one) continue to cling to the
    traditional nomenclature.    See Confederated Tribes of Chehalis
    Indian Reservation v. Lujan, 
    928 F.2d 1496
    , 1501 n.1 (9th Cir.
    1991) (O'Scainnlain, J., concurring in part and dissenting in
    part). Lest there be any confusion, the word is used as a term of
    art and signifies desirability rather than actual necessity.
    Parties are not truly necessary in the vernacular sense of the word
    "unless and until they satisfy the terms of Rule 19(b)." Id.
    joined in the action without divesting the court of subject-matter
    jurisdiction,    Rule    19(b)   lays      out   additional   criteria    for
    determining whether that party is "indispensable."             If the court
    finds that party is anything less than indispensable, the case
    proceeds without her.     If, on the other hand, the court finds that
    the litigation cannot proceed in the party's absence, the court
    must dismiss the case.      See B. Fernandez & Hnos, Inc. v. Kellogg
    USA, Inc., 
    516 F.3d 18
    , 23 (1st Cir. 2008).
               Ultimately, the unsettled state of governing Puerto Rico
    law hampers our ability to adjudicate this issue definitively.
    Assuming for the purposes of argument that the district court
    exercised its discretion properly in finding that the non-diverse
    heirs were necessary parties under Rule 19(a), we proceed directly
    to the indispensability analysis under Rule 19(b).            See Delgado v.
    Plaza Las Americas, Inc., 
    139 F.3d 1
    , 3 n.2 (1st Cir. 1998) (per
    curiam) (noting that parties cannot be indispensable under Rule
    19(b) unless they are first deemed necessary under Rule 19(a)).
    The "critical question" in the Rule 19(b) context is "'whether in
    equity   and   good   conscience'   the     action   may   proceed   in   [the
    necessary party]'s absence." B. Fernandez, 516 F.3d at 23 (quoting
    Fed. R. Civ P. 19(b)).    To answer that question, the district court
    must consider four factors specified in the Rule:
               (1)the extent to which a judgment rendered in
               the person's absence might prejudice that
               person person or the existing parties; (2) the
               extent to which any prejudice could be
              lessened   or  avoided   by   (A)   protective
              provisions in the judgment; (B) shaping the
              relief; or (C) other measures; (3) whether a
              judgment rendered in the person's absence will
              be adequate; and (4) whether the plaintiff
              would have an adequate remedy if the action
              were dismissed for non-joinder.
    Fed. R. Civ. P. 19(b).
              The    district   court    emphasized   the   first    and   third
    factors, finding that a judgment rendered in the non-diverse heirs'
    absence could potentially prejudice their interests.            It reasoned
    that since each heir possesses a right to part of Molina-Godinez's
    estate, any ruling on the sums due to the estate under the alleged
    contract would affect each heir's individual portion.           In order to
    adequately protect his or her interest in that portion, each heir
    was therefore entitled to participate in the litigation, even to
    the point of eliminating federal diversity jurisdiction.
              We are not so sure.       In Puerto Rico, the decedent's as-
    yet undivided estate is known as a community of property.               See,
    e.g., Arias-Rosado v. Gonzalez Tirado, 
    111 F. Supp. 2d 96
    , 99
    (D.P.R. 2000).    On several occasions, the federal district court
    for the District of Puerto Rico has interpreted Puerto Rico law to
    provide that an individual participant in a community of property
    does not impair other participants' interests merely by asserting
    common legal rights to the property while the other participants
    are absent.     "Any judgment in favor of one or more participants
    benefits all other participants in a community of property whereas
    an adverse judgment only prejudices the one who filed the judicial
    action." Id. (internal quotation marks omitted); accord Rodriguez-
    Rivera v. Rivera Rios, No. 06-1381, 
    2009 WL 564221
    , at *3 (D.P.R.
    Mar. 5, 2009); Ruiz-Hance v. P.R. Aqueduct & Sewer Auth., 596 F.
    Supp. 2d 223, 230 (D.P.R. 2009); Cintron v. San Juan Gas, 79 F.
    Supp. 2d 16, 19 (D.P.R. 1999).         In Arias-Rosado, a Rule 19
    challenge to a survivorship action, the court went on to hold that
    "a favorable judgment to [the individual heir litigating in federal
    court] will be dispositive of the survivorship claim and benefit
    the absent heirs.      However, an unfavorable judgment will only
    prejudice her and not the absent heirs[,] who still will have
    available the suit filed in state court wherein they asserted the
    survivorship claim."    111 F. Supp. 2d at 99; see also Rodriguez-
    2009 WL 564221
     at *3; Ruiz-Hance, 596 F. Supp. 2d at
    229–30; Cintron, F. Supp. 2d at 19.
              Taking these cases at face value, as the plaintiffs urge
    us to, it appears that the federal suit here is something of a free
    shot for the non-diverse heirs.    Success inures to their benefit
    while failure is costless.   Surely there can be no impairment when
    they stand to lose nothing.     If the plaintiffs are providing a
    correct statement of the local law, they would appear to be the
    best of all possible representatives for the absentees' interests:
    the kind that may very well help but cannot hurt.    See Tell, 145
    F.3d at 419 ("If an absent party's interests are the same as those
    of an existing party, and the existing party will adequately
    protect those interests, this bears on whether the absent party's
    interest will be impaired by its absence from the litigation.").
              At    this    juncture,   however,   we   cannot     state   this
    proposition as anything other than a conditional hypothetical. The
    plaintiffs' interpretation of Puerto Rico community property law is
    far from certain.      To begin with, the cases on which the plaintiffs
    rely sound exclusively in tort.        Seizing on this, the defendants
    have urged us to limit the applicability of those cases to wrongful
    death and survivorship actions. When pressed at oral argument, the
    plaintiffs could not cite a single authority suggesting that their
    interpretation of the relevant law extends to contract claims.
              This puts us in an awkward position.      On the one hand, we
    would find it somewhat strange if the rule did indeed govern non-
    torts actions yet had failed to produce any reported decisions to
    that effect.    It is hard to say that the district court abused its
    discretion when the ostensible abuse is a matter of unsettled law.
    On the other hand, none of the four cases that the plaintiffs cite
    facially limits itself to tort claims.         Those cases draw their
    logical force not from any idiosyncrasy in Puerto Rico's tort law,
    but from Puerto Rico's community-of-property law.            This may make
    the defendants' argument a good candidate for a distinction without
    a difference.    Contractual proceeds due to the decedent belong to
    the undivided estate just as much as a wrongful death judgment.
    All things considered, we have an insufficient basis to accept
    either the plaintiffs' or the defendants' readings of the case law.
              A second difficulty remains. Suppose that the plaintiffs
    here are successful in securing some monetary damages under the
    contract, but not the full amount that they seek.                Does that
    constitute a successful judgment sufficient to bind the non-diverse
    heirs under the plaintiffs' theory of the law, or is it instead an
    adverse judgment that would leave those heirs free to double down
    in the second suit?     The plaintiffs do not attempt to answer this
    question, and, unaware of any authority one way or the other,
    neither can we.
              In sum, we are ill equipped to rule on this question of
    Puerto Rico law.     As this question may very well determine the non-
    diverse heirs' indispensability here, we are equally ill equipped
    to rule on the ultimate question of joinder.              Under different
    circumstances, we would consider certifying the underlying question
    to the Supreme Court of Puerto Rico. See Muniz-Olivari v. Stiefel
    Labs., Inc., 
    496 F.3d 29
    , 39–40 (1st Cir. 2007).               As the next
    section makes clear, though, that consideration is obviated by the
    parallel litigation ongoing in the Commonwealth court.
                          C. Colorado River Abstention
              It   has    long   been   established   that   the   presence   of
    parallel litigation in state court will not in and of itself merit
    abstention in federal court.        See McClellan v. Carland, 217 U.S.
    268, 282 (1910); Stanton v. Embrey, 
    93 U.S. 548
    , 554 (1876).
    Concurrent federal-state jurisdiction over the same controversy
    does not generally lessen the federal courts' "virtually unflagging
    obligation . . . to exercise the jurisdiction given them."         Colo.
    River, 424 U.S. at 817.        At the same time, the Supreme Court in
    Colorado River acknowledged that this obligation is not infinite.
    In special cases, the pendency of a similar action in state court
    may merit federal abstention based on "considerations of wise
    judicial     administration"     that     counsel   against   duplicative
    lawsuits.4    Id. (internal brackets and quotation marks omitted).
    This "fourth category" of abstention has come to be known as the
    Colorado River doctrine.5      See Fuller Co. v. Ramon I. Gill, Inc.,
    782 F.2d 306
    , 309 n.3 (1st Cir. 1986) (observing that Colorado
    River created a fourth category of abstention beyond the "three
    traditional branches").
          As with other forms of abstention, our decision to decline
    jurisdiction under Colorado River may be sua sponte. See Bellotti
    v. Baird, 
    428 U.S. 132
    , 143 n.10 (1976); Guillemard-Ginorio v.
    585 F.3d 508
    , 517–18 (1st Cir. 2009); Currie v.
    Group Ins. Comm'n, 
    290 F.3d 1
    , 9 n.7 (1st Cir. 2002). We therefore
    have discretion to review the matter on appeal even if it was not
    raised in the court below.
          The first three forms of abstention are Pullman-type
    (avoiding a constitutional determination by allowing a state court
    to construe state law), Burford-type (deferring to a state
    regarding difficult questions of state law that involve significant
    policy considerations), and Younger-type (invoking federal
    jurisdiction to restrain criminal proceedings). See Colo. River,
    424 U.S. at 814–17; Villa Marina Yacht Sales, Inc. v. Hatteras
    915 F.2d 7
    , 12 n.8 (1st Cir. 1990).
                The crevice in federal jurisdiction that Colorado River
    carved is a narrow one.       Of all the abstention doctrines, it is to
    be approached with the most caution, with "[o]nly the clearest of
    justifications" warranting dismissal.             Colo. River, 424 U.S. at
    819.   Our authority to find such a clear justification is confined
    by an "exceptional-circumstances test,"           Moses H. Cone Mem'l Hosp.
    v. Mercury Const. Corp., 
    460 U.S. 1
    , 16 (1983), whose non-exclusive
    list of factors we have drawn from Colorado River and its progeny:
                (1)   whether   either    court   has    assumed
                jurisdiction    over    a    res;     (2)    the
                [geographical] inconvenience of the federal
                forum; (3) the desirability of avoiding
                piecemeal litigation; (4) the order in which
                the forums obtained jurisdiction; (5) whether
                state or federal law controls; (6) the
                adequacy of the state forum to protect the
                parties' interests; (7) the       vexatious or
                contrived nature of the federal claim; and (8)
                respect for the principles underlying removal
    Rio Grande Cmty. Health Ctr. v. Rullan, 
    397 F.3d 56
    , 71–72 (1st
    Cir.   2005).    "No   one    factor    is    necessarily    determinative;     a
    carefully    considered      judgment    taking    into     account   both    the
    obligation to exercise jurisdiction and the combination of factors
    counselling against that exercise is required."              Colo. River, 424
    U.S. at 818–19.    Furthermore, "the decision whether to dismiss a
    federal action because of parallel state-court litigation does not
    rest on a mechanical checklist, but on a careful balancing of the
    important factors as they apply in a given case, with the balance
    heavily weighted in favor of the exercise of jurisdiction."                  Moses
    H. Cone, 460 U.S. at 16.      Unsurprisingly, the cases that satisfy
    this test are few and far between.
                Yet those cases, "though exceptional, do nevertheless
    exist."   Colo. River, 424 U.S. at 818.       From time to time, we have
    exercised our discretion (or affirmed the lower court's exercise of
    its own discretion) to decline jurisdiction under Colorado River,
    notwithstanding the presumption in favor of assuming jurisdiction.
    See, e.g., Rivera-Feliciano v. Acevedo-Vila, 
    438 F.3d 50
     (1st Cir.
    2006); Currie v. Group Ins. Comm'n, 
    290 F.3d 1
     (1st Cir. 2002);
    Liberty Mut. Ins. Co. v. Foremost-McKesson, Inc., 
    751 F.2d 475
    Cir. 1985).
                In our view, this is such a case.      Applying the factors,
    we conclude that while some are neutral to our inquiry, the balance
    of them strongly favors abstention.           We begin with the neutral
    factors, which may be summarized quickly.         The federal and Puerto
    Rico forums are equally convenient (second factor); the Puerto Rico
    forum is well equipped to protect the parties' interests (sixth
    factor), see United States v. Fairway Capital Corp., 
    483 F.3d 34
    43 (1st Cir. 2007) (holding that the adequacy of the state forum is
    relevant only when it would disfavor abstention); there is nothing
    vexatious   or   contrived   about    the   plaintiffs'   federal   lawsuit
    (seventh factor); and removal jurisdiction is irrelevant here
    (eighth factor).
              So far, so good.       But the sum of the other four factors
    convinces us that deference to the Commonwealth court is the
    appropriate result here.     The first factor, the involvement of a
    res, tilts toward abstention due to the plaintiffs' claim for the
    penthouse apartment in Isabela Beach Court.        Though the plaintiffs
    characterize this as a suit over monetary damages, both versions of
    the complaint request the court to enforce the decedent's alleged
    option on the apartment. There is therefore a possibility for
    inconsistent dispositions of property.6
              The third factor, avoidance of piecemeal litigation, also
    favors abstention, although it requires a bit more explanation.
    The "piecemeal litigation" to be avoided is something more than
    just the repetitive adjudication that takes place in all cases
    implicating Colorado River doctrine.           Concurrent federal-state
          In Levy v. Lewis, the Second Circuit observed that the res
    prong of the Colorado River analysis was more concerned with the
    disposition of property than the actual exercise of in rem
         The principle is often stated as a matter of
         jurisdiction:   that   a   second   court   cannot   have
         jurisdiction to proceed in rem if jurisdiction over the
         res is maintained by another court. Nevertheless, as the
         Court appeared to recognize, the principle involved is
         more accurately described as a prudential doctrine in
         which a second court with concurrent jurisdiction will
         exercise its discretion to defer to another court for the
         sake of comprehensive disposition of rights in a
         particular piece of property or in a fund.
    635 F.2d 960
    ,   965–66     (2d    Cir.    1980).   We   agree   with   this
    jurisdiction over the same action will necessarily involve some
    degree of "routine inefficiency that is the inevitable result of
    parallel proceedings."   Villa Marina Yacht Sales, Inc. v. Hatteras
    915 F.2d 7
    , 16 (1st Cir. 1990).     That inefficiency was not
    significant to the Supreme Court's decision in Colorado River and
    has not contributed to any of this circuit's subsequent case law.
    Were it otherwise, courts could abstain in any diversity action
    that overlapped with a state-court action.       "Piecemeal litigation"
    must instead refer to some additional factor that places the case
    beyond the pale of duplicative proceedings.       Put differently, "[a]
    duplication   of   effort,   while   wasteful,   is   not   exceptional."
    Gentron Corp. v. H. C. Johnson Agencies, Inc., 
    79 F.R.D. 415
    , 418
    (E.D. Wis. 1978).
              We have therefore held that
              [d]ismissal is not warranted simply because
              related issues otherwise would be decided by
              different courts, or even because two courts
              otherwise would be deciding the same issues.
              Rather, concerns about piecemeal litigation
              should focus on the implications and practical
              effects of litigating suits deriving from the
              same transaction in two separate fora, and
              weigh in favor of dismissal only if there is
              some exceptional basis for dismissing one
              action in favor of the other.
    KPS & Assocs., Inc. v. Designs by FMC, Inc., 
    318 F.3d 1
    , 10–11 (1st
    Cir. 2003) (internal quotation marks and citations omitted).          The
    canonical example of such an exceptional basis is a clear federal
    policy in favor of unified proceedings pursuant to a federal
    statute that is at issue in the case.              See Colo. River, 424 U.S. at
    819–20 (finding abstention appropriate because the federal law at
    issue evinced a clear policy against piecemeal adjudication of
    river system water rights); cf. Moses H. Cone, 460 U.S. at 20
    (finding abstention inappropriate because the Federal Arbitration
    Act requires piecemeal litigation if necessary to give effect to an
    arbitration agreement).            But there are other reasons why the
    piecemeal litigation factor might loom large in a given case.                     On
    multiple   occasions,       we    have   found     an   exceptional      basis   that
    counsels in favor of abstention, even though no particular federal
    policy was in play.         See, e.g., Rivera-Feliciano, 438 F.3d at 50
    (holding that "in light of the many underlying unresolved issues of
    Puerto    Rican    law[,]    it    would      be   better   to   avoid    piecemeal
    litigation"); Currie, 290 F.3d at 10 (finding a risk of piecemeal
    litigation that rises above routine inefficiency where parallel
    state-court case was already on appeal and involved an issue of
    state    law    which   could     moot   or     otherwise   inform    the   federal
    litigation); Liberty Mut. Ins. Co., 751 F.2d at 477 (finding an
    exceptional basis where there existed a "real possibility" that an
    insurance policy might be interpreted differently in each forum,
    leaving the insured with insufficient coverage after years of
    paying premiums).
                   We think the potential implications of proceeding in
    federal court without the non-diverse heirs provides the requisite
    exceptional basis here. The absence of the additional heirs in the
    federal action means that in all likelihood the district court
    would be unable to resolve the defendants' contractual liability to
    them if the case is allowed to continue.                 The district court could
    determine the defendants' obligations to the diverse heirs, but the
    defendants     would      need    to   look   to   the    Commonwealth     court    to
    determine their obligations to the non-diverse heirs under the same
    contract.      The Commonwealth action, by contrast, includes all of
    the    heirs   and     can      therefore     comprehensively      adjudicate      the
    defendants'     liability.          This    disparity     in   inclusiveness    thus
    creates a greater practical risk of piecemeal litigation than the
    baseline inefficiencies of the average exercise of concurrent
    federal-state jurisdiction.            Recognizing this, other circuits have
    found Colorado River abstention more appropriate when non-diverse
    parties are joined in the state-court action but not the federal
    action.    See Sto Corp. v. Lancaster Homes, Inc., 
    11 F. App'x 182
    188 (4th Cir. 2001); Federated Rural Elec. Ins. Corp. v. Ark. Elec.
    Coops., Inc., 
    48 F.3d 294
    , 298 (8th Cir. 1995); Cont'l Cas. Co. v.
    Robsac Indus., 
    947 F.2d 1367
    , 1373 (9th Cir. 1991), overruled on
    other grounds, Gov't Employees Ins. Co. v. Dizol, 
    133 F.3d 1220
    (9th   Cir.    1998).        We   agree.      This   potential     for    fragmented
    adjudication,        to    be     distinguished      from      merely    duplicative
    adjudication,      warrants    consideration      in   the    Colorado    River
                 We move next to the fifth factor, whether state or
    federal law controls, which weighs particularly heavily here.                  Not
    only does the dispute here turn entirely on issues of Puerto Rico
    law, see Liberty Mut. Ins. Co., 751 F.2d at 477 (finding it
    significant that "no federal issues are raised . . . and no federal
    interest would be served by retaining jurisdiction over the case"),
    but the issues that would inform our jurisdictional analysis remain
    unsettled.     We have previously held that under this part of the
    exceptional-circumstances test, abstention may be preferable when
    the   "parties'    claims     present   particularly    novel,       unusual    or
    difficult questions of legal interpretation."            Elmendorf Grafica,
    Inc. v. D.S. Am. (East), Inc., 
    48 F.3d 46
    , 52 (1st Cir. 1995);
    accord KPS & Assocs., 318 F.3d at 11.          As we described above, the
    plaintiffs' ability to maintain complete diversity in this case
    hinges on our Rule 19 analysis.         That analysis, in turn, hinges in
    part on the question of whether the non-diverse heirs' interests
    could be impaired if they are not joined as parties to the suit.
    We cannot intelligently answer that question without some clear
    indication    as   to   whether   Puerto   Rico   courts     would    apply    the
          To be sure, it may not weigh as strongly as a clear federal
    policy of the sort that was considered in Colorado River, but it at
    least diminishes the presumption in favor of exercising federal
    plaintiffs' proposed community-of-property rule to causes of action
    other than tort claims.          From our vantage point, we cannot say
    definitively one way or the other.               The local law that would
    underlie our determination on compulsory joinder would be best left
    to the Puerto Rico courts to sort out.8
                  The sixth factor, the order in which the courts obtained
    jurisdiction, similarly points toward abstention.               The label for
    this factor is something of a misnomer, as "the relative progress
    of the suits is more important than the strict order in which the
    courts obtained jurisdiction."             Gonzalez v. Cruz, 
    926 F.2d 1
    , 4
    (1st Cir. 1991).         "[T]he order in which jurisdiction was taken is
    not a mechanical concept automatically favoring the party who files
    first, but rather a concept that favors the case that is the more
    advanced at the time the Colorado River balancing is being done."
    Elmendorf, 48 F.3d at 52.            We thus "measure which action -- the
    suit in the federal court or that in the state court -- is the more
    advanced in a 'pragmatic, flexible manner, with a view to the
    realities of the case at hand.'" Id. (quoting Moses H. Cone, 460
    U.S. at 21).         A quick comparison of the two docket sheets at issue
    here       reveals    that   while   the    federal    action   foundered    on
    jurisdictional          questions,    leaving   only     this   appeal,     the
          Because the Commonwealth action includes the non-diverse
    heirs, this question is not likely at issue there. Our deferral
    therefore means that the question will not be resolved until a
    future case.    We think this delay is still preferable to our
    attempting to settle a state-law question of first impression here.
    Commonwealth action is already well into the discovery stage.9   The
    Commonwealth's head start into the merits lessens the federal
    court's need to exercise jurisdiction.   See Colo. River, 424 U.S.
    at 820 (stating that an absence of any federal proceedings beyond
    a motion to dismiss favors the surrender of jurisdiction).
              Considering all of these factors, we conclude that this
    is one of the rare instances meriting Colorado River abstention.
    Because of the possibility for inconsistent dispositions of a res,
    the heightened potential for piecemeal litigation, the exclusive
    reliance on Puerto Rico law, the unsettled nature of aspects of
    that law that would inform our jurisdictional analysis, and the
    more advanced progress of the litigation in the Puerto Rico court
    system, we are convinced that the wisest judicial administration of
    this case is to defer to the judgment of the Puerto Rico court.
          Neither the parties nor, apparently, the Court of First
    Instance's Spanish-language docket specify how close to trial the
    Puerto Rico case actually is. Yet a significant disparity in favor
    of the Commonwealth court is clear enough. As the Seventh Circuit
    recently observed in an analogous situation, "[a]lthough the
    precise status of discovery is not apparent from the record before
    us, it is clear that various depositions have been taken in the
    state case.   At the very least, the controversy appears to be
    closer to a resolution in the state proceedings than in the
    federal." Tyrer v. City of South Beloit, 
    456 F.3d 744
    , 755 (7th
    Cir. 2006) (internal brackets and quotation marks omitted). Since
    a court engaging in Colorado River analysis should "look at the
    total situation as it stands at the time of appeal," Lumen Const.,
    Inc. v. Brant Const. Co., Inc., 
    780 F.2d 691
    , 697 n.4 (7th Cir.
    1985), we take judicial notice of the progress of the parallel
    Commonwealth litigation.
                Having come to this conclusion, we must next decide
    whether the appropriate disposition is a dismissal or a stay of the
    proceedings.      In Moses H. Cone, the Supreme Court committed this
    question    to    the   discretion    of   the    lower   courts,    finding     "no
    occasion in this case to decide whether a dismissal or a stay
    should ordinarily be the preferred course of action when a district
    court properly finds that Colorado River counsels in favor of
    deferring    to    a    parallel    state-court    suit."     460    U.S.   at    28
    (footnote omitted); see also Arizona v. San Carlos Apache Tribe of
    463 U.S. 545
    , 570 n.21 (1983).                 Most circuits to have
    considered the issue have held that a stay is always preferable
    because it may likely produce the same practical result as a
    dismissal while still leaving the docket open in case loose ends
    remain at the conclusion of the state proceedings.                  See Moorer v.
    Demopolis Waterworks & Sewer Bd., 
    374 F.3d 994
    , 998 (11th Cir.
    2004); Cigna Healthcare of St. Louis, Inc. v. Kaiser, 
    294 F.3d 849
    851-52 (7th Cir. 2002); Mahaffey v. Bechtel Assoc. Prof'l Corp.,
    699 F.2d 545
    , 546–47 (D.C. Cir. 1983) (per curiam); see also
    Lops v. Lops, 
    140 F.3d 927
    , 960 n.24 (11th Cir. 1998) (Kravitch,
    J., dissenting); but see Cox v. Planning Dist. I Cmty. Mental
    Health & Mental Retardation Servs. Bd., 
    669 F.2d 940
    , 943 (4th Cir.
    1982) (holding that dismissal is appropriate so long as "the
    determinative      issues    will    unfailingly    be    resolved    within     the
    parameters of the state-court litigation . . . as no further action
    by the district court is anticipated").
                There is no need to decide this issue categorically here.
    In   this   Circuit,   Colorado   River   abstention   has   historically
    resulted in a stay, see, e.g., Rivera-Feliciano; Currie; Liberty
    Mut. Ins. Co., and we elect to continue that trend in this case.
    Although we do not anticipate any unresolved issues remaining after
    the Commonwealth case concludes, we see no harm to judicial economy
    in going the more cautious route.     See LaDuke v. Burlington N. R.R.
    879 F.2d 1556
    , 1562 (7th Cir. 1989) (noting that a stay
    "protects the rights of all the parties without imposing any
    additional costs or burdens on the district court") (footnote
    III. Conclusion
                Like the district court, we think that this case should
    ultimately be resolved in the Puerto Rico judicial system.         But we
    reach this conclusion not because of the probate exception or Rule
    19, but rather because of exceptional circumstances that satisfy
    Colorado River's demanding test for abstention.         Accordingly, we
    vacate the district court's dismissal and remand with instructions
    to stay all further proceedings.
    It is so ordered.      Costs to neither party.