Warsaw Orthopedic, Inc. v. Sasso ( 2020 )

Case: 19-1583 Document: 47 Page: 1 Filed: 10/14/2020
United States Court of Appeals
for the Federal Circuit
______________________
WARSAW ORTHOPEDIC, INC., MEDTRONIC, INC.,
MEDTRONIC SOFAMOR DANEK, INC.,
Plaintiffs-Appellants
v.
RICK C. SASSO, M.D.,
Defendant-Appellee
______________________
2019-1583
______________________
Appeal from the United States District Court for the
Northern District of Indiana in No. 3:18-cv-00437-JD-
MGG, Judge Jon DeGuilio.
______________________
Decided: October 14, 2020
______________________
MARK CHRISTOPHER FLEMING, Wilmer Cutler Pickering
Hale and Dorr LLP, Boston, MA, argued for plaintiffs-ap-
pellants. Also represented by MARY VIRGINIA SOOTER, Den-
ver, CO.
FREDERICK D. EMHARDT, Emhardt Law LLC, Carmel,
IN, argued for defendant-appellee. Also represented by
GEORGE T. PATTON, JR., Bose McKinney & Evans LLP,
Washington, DC; JOHN M. BRADSHAW, Bradshaw Law
LLC, Indianapolis, IN.
______________________
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2 WARSAW ORTHOPEDIC, INC. v. SASSO
Before NEWMAN, SCHALL, and WALLACH, Circuit Judges.
NEWMAN, Circuit Judge.
This appeal is from the decision of the United States
District Court for the Northern District of Indiana, 1 dis-
missing a declaratory judgment complaint filed by Warsaw
Orthopedic, Inc.; Medtronic, Inc.; and Medtronic Sofamor
Danek, Inc. (collectively, “Medtronic”) against Dr. Rick
Sasso, a surgeon and inventor. The district court dismissed
the complaint without prejudice, applying the doctrine of
federal court “abstention” in view of the concurrent action
in Indiana state court between the same parties concerning
the same dispute; that decision is on appeal to the Indiana
Court of Appeals. 2
The state court action is described by Dr. Sasso as a
contract case for payment for patent rights, and the federal
action is described by Medtronic as a patent case in which
payment requires valid patents. Medtronic argues that the
district court’s “abstention” was an abuse of discretion, be-
cause the federal courts have exclusive jurisdiction over pa-
tent cases, and patent validity is fundamental to resolution
of this dispute. Thus, Medtronic argues that abstention
was inappropriate because the federal court had the obli-
gation to receive and resolve this dispute.
We conclude that the district court acted within its dis-
cretion, abstaining without prejudice, on the facts hereof,
for the question of contract interpretation is on appeal in
1Warsaw Orthopedic, Inc. v. Sasso, No. 3:18-CV-437
JD, 2019 WL 428574 (N. D. Ind., Jan. 31, 2019) (“Dist. Ct.
Op.”).
2 Warsaw Orthopedic, Inc. v. Sasso, Appeal No. 19A-
PL-00378 (Ind. Ct. App., docketed Feb. 19, 2019).
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WARSAW ORTHOPEDIC, INC. v. SASSO 3
the Indiana state court, and federal action based on the fed-
eral issues is not precluded.
DISCUSSION
Medtronic’s declaratory judgment complaint requests a
declaration that Medtronic did not violate its royalty pay-
ment obligation as set forth in a certain Purchase Agree-
ment between Medtronic and Dr. Sasso (“Agreement”).
The Agreement, also called the Facet Screw Agreement, is
dated December 1, 1999 and states Medtronic’s terms of
purchase of certain Dr. Sasso inventions. The Agreement
provides for quarterly royalty payments based on Med-
tronic’s sales of the defined Medical Device until “the last
to expire of the patents included in Intellectual Property
Rights, or if no patent application(s) issue into a patent
having valid claim coverage of the Medical Device, then
seven (7) years from the Date of First Sale of the Medical
Device.” Agreement ¶ 7.
For the invention at issue, the initial patent applica-
tion was filed on November 23, 1999, and two patents were
issued: U.S. Patent No. 6,287,313 (“the ’313 patent”) and
its continuation, U.S. Patent No. 6,562,046 (“the ’046 pa-
tent”); both patents are entitled “Screw Delivery System
and Method.” The record states that Medtronic made roy-
alty payments from 2002 to 2018.
Proceedings in Indiana state court
A dispute arose, for Dr. Sasso stated that Medtronic
was not paying royalties on sales of all relevant devices,
but Medtronic disagreed. In June 2014, Dr. Sasso filed suit
in Marshall Circuit Court, County of Marshall, State of In-
diana, for breach of contract and damages. 3 Medtronic
3 Dr. Sasso added counts concerning the Facet Screw
Agreement to a similar suit on a different agreement—the
Vertex Agreement. Prior to the Facet Screw Agreement
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4 WARSAW ORTHOPEDIC, INC. v. SASSO
answered that the devices for which Dr. Sasso is seeking
additional royalties are not subject to the Agreement be-
cause they are not covered by a valid claim of the ’313 or
’046 patents. Dr. Sasso then filed a “Motion for Summary
Judgment on the Term of the Screw Delivery Agreement
and on Patent Validity as a Defense to Payment.” The
state court granted the motion, ruling:
The amount of money to be paid under the Agree-
ment and the term depend on the issuance of pa-
tents and their expiration, not their validity.
Patent No. 6,287,313 (“’313 patent”) or 6,562,046
(“’046 patent”) issued and have not expired.
Summ. J. Order, Marshall Circuit Court, No. 50C01-1806-
PL-000027 (Sept. 13, 2018). The state court excluded the
issue of validity from the jury trial. See Order Excluding
Witnesses and Striking the Affirmative Defense of Patent
Invalidity, No. 50C01-1806-PL-000027 (Sept. 13, 2018)
(“All evidence related to the defense of patent invalidity is
excluded.”).
At the trial, the parties disagreed over whether any
claim covered the asserted products. Dr. Sasso testified
that claim 26 of the ’313 patent is “really really broad.”
Trial Tr. Nov. 9, 2018, at 51. Medtronic was not permitted
to raise any questions concerning the validity of claims of
the asserted scope.
The jury found that Medtronic had breached the Agree-
ment, and awarded damages. Judgment on the verdict was
counts being added, Medtronic had removed the Vertex
Agreement suit to federal court, and the federal court re-
manded to the state court. Sasso v. Warsaw Orthopedic,
Inc., No. 3:13-cv-1031 (N.D. Ind. Apr. 2, 2014) (remand or-
der).
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WARSAW ORTHOPEDIC, INC. v. SASSO 5
entered on November 29, 2018. Medtronic filed an appeal
to the Indiana Court of Appeals.
The federal declaratory judgment action
Meanwhile, on June 8, 2018, Medtronic filed this de-
claratory judgment action in federal district court in Indi-
ana. The complaint contains two counts, captioned as
follows:
COUNT I
Declaratory Judgment of No Breach of the Facet
Screw Agreement Because No Valid Claim of the
’313 or ’046 Patent Covers the Medtronic Products
for Which Dr. Sasso Seeks Royalties
***
COUNT II
Declaratory Judgment of No Breach of the Facet
Screw Agreement Because No Claim of the ’313 or
’046 Patents, as Construed by Dr. Sasso, Is Valid
Complaint, at 13–14. Medtronic stated in the complaint
that the devices for which Dr. Sasso seeks additional roy-
alties are not within the Agreement, and the claims as con-
strued to cover such devices are not valid as required by
the Agreement.
In September 2018, Dr. Sasso moved the district court
for “abstention or stay” of the declaratory action, citing the
scheduled November 2018 trial in state court. The district
court did not act before that trial. After the state court
judgment in favor of Dr. Sasso, he moved the federal court
for dismissal of Medtronic’s declaratory action, stating that
the federal court did not have jurisdiction because the mat-
ter had been decided. Medtronic opposed dismissal, argu-
ing that the state court erred in law by refusing to permit
Medtronic’s defenses concerning invalidity of the claims as
construed to cover the additional Medtronic devices.
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6 WARSAW ORTHOPEDIC, INC. v. SASSO
The district court dismissed the declaratory judgment
action without prejudice, stating that:
Here, there is no purpose to be served by the de-
claratory judgment Medtronic seeks, at least at
this time. Medtronic is asking for a declaratory
judgment that it did not breach the Facet Screw
Agreement and does not owe Dr. Sasso any dam-
ages. But the state court has already entered judg-
ment in Dr. Sasso’s favor on that claim. No order
or judgment of this Court can undo that judg-
ment—only the Indiana courts of appeals and the
United States Supreme Court have authority to re-
view that judgment.
Dist. Ct. Op. at *3. The district court acknowledged that
the state court decision was being appealed, and that “it is
possible that the state judgment will be vacated at some
point,” but that such possibility did not affect the present
situation. Id. The district court also cited “the discretion
provided by the Declaratory Judgment Act, assuming but
not deciding that jurisdiction exists.” Id. at *2. The court
exercised this discretion and dismissed the action.
Medtronic now appeals this dismissal, stating that the
federal courts have exclusive jurisdiction over issues of pa-
tent validity, valid claims are required by the Agreement,
and the state court erred in ruling that validity is irrele-
vant to royalty payments under the Agreement. Medtronic
points to the requirement in ¶ 7 for “valid claim coverage”:
7. Term of Agreement. . . . Unless sooner termi-
nated, this Agreement shall expire upon the last to
expire of the patents included in Intellectual Prop-
erty Rights, or if no patent application(s) issue into
a patent having valid claim coverage of the Medical
Device, then seven (7) years from the Date of First
Sale of the Medical Device. . . .
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WARSAW ORTHOPEDIC, INC. v. SASSO 7
Agreement ¶ 7. Medtronic also points to the Schedules in
the Definitions of the Facet Screw Agreement’s subject
matter:
1. Definitions.
A. The Invention. The Invention shall mean any
product, method or system relating to a facet screw
instrumentation and a headless facet screw fixa-
tion system as described in Schedule A, attached
hereto.
***
C. Medical Device. Medical Device shall mean any
device, article, system, apparatus or product in-
cluding the Invention. Such Medical Devices shall
be listed in accordance with SDH [Sofamor Danek]
catalog numbers and will be listed in Schedule B
attached hereto. . . .
Agreement ¶ 1. Medtronic states: “Schedule A describes a
‘Facet Screw Instrumentation and a Headless Facet Screw
Fixation System consisting of bone screws and associated
instruments for installation thereof.’ . . . Schedule B lists
‘Facet Screw Instrumentation, and A Headless Facet Screw
Fixation System,’” with no listed catalog numbers. Med-
tronic Br. 8 n.3.
Medtronic states that royalties under the Agreement
are based on the products set forth in the Agreement
Schedules, and that those royalties were regularly and
fully paid. Medtronic states that this dispute concerns
“whether Medtronic owes royalties on other products not
listed in Schedules A or B.” Id. (emphasis in original).
Medtronic further states that valid claim coverage is re-
quired by the Agreement, that patent validity is within ex-
clusive federal jurisdiction, and that the claims as
construed by Dr. Sasso are invalid.
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8 WARSAW ORTHOPEDIC, INC. v. SASSO
Dr. Sasso states: “Right or wrong, this state court rul-
ing is binding.” Sasso Br. 21.
Patent reexamination
Medtronic had, on May 1, 2018, requested Patent and
Trademark Office reexamination of designated claims of
the ’313 patent and on July 20, 2018, of designated claims
of the ’046 patent. The PTO granted the reexaminations,
and by Reexamination Certificate No. 90/014,131 issued
January 4, 2019, the PTO cancelled claims 26–34 of the
’313 patent; and by Reexamination Certificate No.
90/014,171 issued January 24, 2019, the PTO cancelled
claims 9 and 11–32 of the ’046 patent.
It appears undisputed that the PTO cancellations in-
cluded all the claims that had been construed to cover the
additional Medtronic devices for which royalties were
sought. Medtronic Br. 15–16 & n.6. The district court
acknowledged the reexaminations and stated that they are
“not relevant here.” Dist. Ct. Op. at *1 n.3. Medtronic
states that they are relevant to the requirement for cover-
age by valid claims under Agreement ¶ 7.
Federal jurisdiction
Dr. Sasso challenges federal jurisdiction. Dr. Sasso
states that the counts of the declaratory judgment com-
plaint do not “arise under” the patent law, and thus the
district court does not have jurisdiction under 28 U.S.C.
§ 1338. Dr. Sasso states that if the district court does have
jurisdiction, then the court acted within its discretion in
abstaining from the declaratory action. He also states that
the Federal Circuit does not have jurisdiction over this ap-
peal and that if appeal is available at all, it lies in the Sev-
enth Circuit, not the Federal Circuit. 4
4 28 U.S.C. § 1338(a) assigns to the federal district
courts original jurisdiction over “any civil action arising
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WARSAW ORTHOPEDIC, INC. v. SASSO 9
Medtronic states that district court and Federal Circuit
jurisdiction are present because the declaratory judgment
complaint includes determinations of patent validity and
valid claim scope. Medtronic argues that this declaratory
action meets the “arising under” standard for federal juris-
diction, for the federal issues of patent validity and patent
claim scope are “(1) necessarily raised, (2) actually dis-
puted, (3) substantial, and (4) capable of resolution in fed-
eral court without disrupting the federal-state balance
approved by Congress.” Gunn v. Minton, 568 U.S. 251, 258
(2013). In NeuroRepair, Inc. v. Nath Law Group, 781 F.3d
1340 (Fed. Cir. 2015), this court elaborated that “[a]n issue
of patent law is ‘necessarily raised’ if ‘a well-pleaded com-
plaint establishes either that federal patent law creates the
cause of action or that the plaintiff’s right to relief neces-
sarily depends on resolution of a substantial question of
federal patent law, in that patent law is a necessary ele-
ment of one of the well-pleaded claims.’” Id. at 1344 (quot-
ing Christianson v. Colt Indus. Operating Corp., 486 U.S.
800, 809 (1988)).
An appellate court has “traditional and inherent func-
tions [such] as determining its own jurisdiction and super-
vising the exercise of jurisdiction by the district courts
below it.” Shaw v. Gwatney, 795 F.2d 1351, 1353 n.2 (8th
Cir. 1986). “[I]t is the duty of this court at all times to con-
sider its own jurisdiction.” Smith v. Gober, 236 F.3d 1370,
1371 (Fed. Cir. 2001); see also C.R. Bard, Inc. v. Schwartz,
716 F.2d 874, 878 (Fed. Cir. 1983) (appellate court has ju-
risdiction to decide whether the district court had jurisdic-
tion).
Applying the standards of precedent, the issues of va-
lidity and claim scope are well-pleaded in this declaratory
under any Act of Congress relating to patents,” and 28
U.S.C. § 1295(a)(1) assigns exclusive appellate jurisdiction
to the Federal Circuit for those district court decisions.
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10 WARSAW ORTHOPEDIC, INC. v. SASSO
complaint, are actually disputed, are substantial to the fed-
eral system as a whole, and the federal-state judicial bal-
ance would not be disrupted by the district court’s exercise
of declaratory jurisdiction. Thus, this declaratory action is
within the district court’s jurisdictional authority, and we
have jurisdiction to receive this appeal and to determine
whether the district court abused its discretion in abstain-
ing from exercise of declaratory jurisdiction.
The district court’s abstention
The Declaratory Judgment Act states that courts may
grant declaratory relief, 28 U.S.C. § 2201(a), and the Su-
preme Court has explained that the Act confers “unique
and substantial discretion in deciding whether to declare
the rights of litigants,” Wilton v. Seven Falls Co., 515 U.S.
277, 286 (1995). Also, the Court had stated in Brillhart v.
Excess Insurance Co. of America, 316 U.S. 491 (1942), that
federal courts may and reasonably should abstain from ex-
ercising declaratory jurisdiction when the issues “can bet-
ter be settled in [a] proceeding pending in . . . state court.”
Id. at 495.
As summarized in Envision Healthcare, Inc. v. Pre-
ferredOne Insurance Co., 604 F.3d 983 (7th Cir. 2010): “Un-
der what is known as the Wilton/Brillhart abstention
doctrine, district courts possess significant discretion to
dismiss or stay claims seeking declaratory relief, even
though they have subject matter jurisdiction over such
claims.” Id. at 986. The propriety of a district court’s Wil-
ton/Brillhart abstention is reviewed on the standard of
abuse of discretion, that is, whether the action “is based on
clearly erroneous findings of fact, is based on erroneous in-
terpretations of the law, or is clearly unreasonable, arbi-
trary or fanciful.” iLOR, LLC v. Google, Inc., 631 F.3d
1372, 1376 (Fed. Cir. 2011).
Medtronic and Dr. Sasso discuss, but do not resolve,
whether the criterion for measuring abstention discretion
is the potentially more flexible measure of Wilton/Brillhart
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WARSAW ORTHOPEDIC, INC. v. SASSO 11
or the standard of Colorado River Water Conservation Dis-
trict v. United States, 424 U.S. 800 (1976). In Colorado
River, the Court stated that abstention “is an extraordi-
nary and narrow exception to the duty of a District Court
to adjudicate a controversy properly before it,” stating that
abstention is appropriate “only in the exceptional circum-
stances where the order to the parties to repair to the state
court would clearly serve an important countervailing in-
terest.” Id. at 813.
The thrust of precedent applying Colorado River is that
a federal proceeding should not be stayed in favor of a state
proceeding when the federal proceeding includes a claim
over which federal courts have exclusive jurisdiction. See,
e.g., Cottrell v. Duke, 737 F.3d 1238, 1248 (8th Cir. 2013)
(“[W]e join the Second, Seventh, and Ninth Circuits and
hold that the Colorado River doctrine may not be used to
stay or dismiss a federal proceeding in favor of a concurrent
state proceeding when the federal proceeding contains a
claim over which Federal courts have exclusive jurisdic-
tion.”).
The district court here selected the standard of Wil-
ton/Brillhart as attuned to the situation at hand. Dist. Ct.
Op. at *2. We agree that this was reasonable on the facts
here, for there had already been a trial in the state court
and it is now on appeal at the Indiana Court of Appeals.
The district court also referred to the Northern District’s
2014 rebuff of Medtronic’s attempted removal to federal
court, see supra n.3, although the district court remarked
that this prior action is not res judicata. Id. at *1 n.2.
Applying the standard of abuse of discretion, “it is ap-
propriate to vest district courts with that discretion ‘in the
first instance, because facts bearing on the usefulness of
the declaratory judgment remedy, and the fitness of the
case for resolution, are peculiarly within their grasp.’”
Sony Elecs., Inc. v. Guardian Media Techs., Ltd., 497 F.3d
1271, 1288 (Fed. Cir. 2007) (quoting Wilton, 515 U.S. at
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12 WARSAW ORTHOPEDIC, INC. v. SASSO
289). Medtronic challenges this exercise of discretion, ar-
guing that patent validity is essential to Dr. Sasso’s claim
and was wrongly excluded from the state court trial, pro-
ducing a fatal flaw in the state court proceeding.
In Wilton, the Supreme Court guided that the federal
court must apply, to the facts before it, “a circumspect
sense of its fitness informed by the teachings and experi-
ence concerning the functions and extent of federal judicial
power.” 515 U.S. at 287 (quoting Pub. Serv. Comm’n of
Utah v. Wycoff Co., 344 U.S. 237, 243 (1952)). The Court
explained that the Declaratory Judgment Act was designed
to create “an opportunity, rather than a duty, to grant a
new form of relief to qualifying litigants.” Id. at 288. The
Court stated that the federal court should consider the ef-
fect of the concurrent state court proceeding and “whether
the claims of all parties in interest can satisfactorily be ad-
judicated in [the state court] proceeding.” Id. at 283 (quot-
ing Brillhart, 316 U.S. at 495).
Precedent illustrates that the discretion to decline de-
claratory judgment jurisdiction is not unlimited. For ex-
ample, in Capo, Inc. v. Dioptics Medical Products, Inc., 387
F.3d 1352 (Fed. Cir. 2004), this court held that it was an
abuse of discretion to dismiss a declaratory action challeng-
ing patent validity, when the dismissal left the accused in-
fringer “unable to resolve its accused liability for patent
infringement.” Id. at 1357; see also Meyers v. Oneida Tribe
of Indians of Wis., 836 F.3d 818, 823 (7th Cir. 2016)
(“[T]here are numerous circumstances in which a court ap-
propriately accords priority to a non-merits threshold in-
quiry other than subject matter jurisdiction, such as
pendent jurisdiction, forum non conveniens, abstention,
and others.”). Medtronic also cites Jang v. Boston Scien-
tific Corp., 767 F.3d 1334 (Fed. Cir. 2014), where the court
held that discretionary dismissal was improper when “res-
olution of the contract claim [] requires resolution of under-
lying issues of infringement,” id. at 1337, including the
scope and validity of the relevant patents, and there exists
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WARSAW ORTHOPEDIC, INC. v. SASSO 13
the possibility that those issues could arise in subsequent
infringement litigation and could create divergent judg-
ments unless the court maintains appellate jurisdiction, id.
at 1338. Medtronic reminds us that federal courts are not
bound by a state court decision on a matter of federal law
and argues that this too supports proceeding with federal
action.
Dr. Sasso responds that “[c]ommercial agreements tra-
ditionally are the domain of state law” and “[s]tate law is
not displaced merely because the contract relates to intel-
lectual property which may or may not be patentable.”
Sasso Br. 23 (quoting Aronson v. Quick Point Pencil Co.,
440 U.S. 257, 262 (1979)). In Gunn, the Court affirmed
that malpractice claims against a patent attorney are the
province of the states’ “special responsibility for maintain-
ing standards among members of the licensed professions,”
and that it did not trigger the federal court’s exclusive pa-
tent jurisdiction. 568 U.S. at 264; see also Christianson,
486 U.S. at 813–17 (discussing scope of “arising under” ju-
risdiction).
The Court’s guidance recognizes the variety of circum-
stances in which both state and federal questions are pre-
sent, and states in Grable & Sons Metal Products, Inc. v.
Darue Engineering & Manufacturing, 545 U.S. 308 (2005),
that “questions of [federal] jurisdiction over state-law
claims require careful judgments about the nature of the
federal interest at stake,” distinguishing a “sufficient con-
dition for federal-question jurisdiction [from] a necessary
one.” Id. at 317 (internal quotation marks and citations
omitted).
Precedent illustrates the variety of circumstances that
may arise, whereby discretion is exercised on various facts,
including whether preclusion should be afforded to a state
court’s ruling on an aspect otherwise properly before the
federal court. For example, in General Motors Corp. v. Ro-
mein, 503 U.S. 181 (1992), the Court held that in applying
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14 WARSAW ORTHOPEDIC, INC. v. SASSO
the Contract Clause, federal courts are “bound to decide for
ourselves whether a contract was made,” affording “re-
spectful consideration and great weight,” but not conclu-
sive deference, “to the views of the State’s highest court.”
Id. at 187 (quoting Indiana ex rel. Anderson v. Brand, 303
U.S. 95, 100 (1938)). In Titus v. Wallick, 306 U.S. 282
(1939), the Court distinguished the deference due to a state
court’s application of the “law of its own state or matters
peculiarly within its cognizance.” Id. at 288. Medtronic
reminds us that for this Agreement the Indiana court was
required to apply Tennessee law, suggesting that this di-
minished any entitlement to deference on contract issues.
Medtronic also cites Bouie v. City of Columbia, 378 U.S.
347 (1964), where the Court disagreed with the state
court’s interpretation of state trespass law to avoid federal
due process. Id. at 361–62. Medtronic states that prece-
dent shows that preclusion “may in some contexts” be sub-
ject to “[d]octrines of federal pre-emption.” Durfee v. Duke,
375 U.S. 106, 114 (1963) (citing Kalb v. Feuerstein, 308 U.S.
433, 439 (1940)). As summarized in concurrence in Grable,
there is room for discretion:
The Court faithfully applies our precedents inter-
preting 28 U.S.C. § 1331 to authorize federal-court
jurisdiction over some cases in which state law cre-
ates the cause of action but requires determination
of an issue of federal law, e.g., Smith v. Kansas City
Title & Trust Co., 255 U.S. 180, 41 S. Ct. 243, 65
L. Ed. 577 (1921); Merrell Dow Pharmaceuticals
Inc. v. Thompson, 478 U.S. 804, 106 S. Ct. 3229, 92
L. Ed. 2d 650 (1986). . . . Whatever the virtues of
the Smith standard, it is anything but clear. Ante,
at 2367 (the standard “calls for a ‘common-sense
accommodation of judgment to [the] kaleidoscopic
situations’ that present a federal issue, in ‘a selec-
tive process which picks the substantial causes out
of the web and lays the other ones aside.’” (quoting
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WARSAW ORTHOPEDIC, INC. v. SASSO 15
Gully v. First Nat. Bank in Meridian, 299 U.S. 109,
117-118 (1936))) . . . .
545 U.S. at 320–21 (Thomas, J., concurring).
On the entirety of the circumstances, we conclude that
the district court exercised “common-sense accommodation
of judgment,” id., and did not abuse its discretion in ab-
staining and dismissing without prejudice.
CONCLUSION
The decision of the district court is affirmed.
AFFIRMED