371 F.Supp.2d 89 (2005) | Cited 1 time | D. Puerto Rico | June 4, 2005


Pending before the Court is plaintiff's May 31, 2005 MotionRequesting "Order Requesting Urgent Temporary Reliefs" and/orInjunction of Cease and Desist (Docket No. 13). Plaintiff movesthe Court to issue an order "to cease and desist and/or stop" thesale in public auction by the local Marshal to be held on June 3,2005, in a proceeding before the local state Court resulting froma foreclosure proceeding against the plaintiff. For the reasonsstated herein, the Court hereby DENIES plaintiff's MotionRequesting "Order Requesting Urgent Temporary Reliefs" and/orInjunction of Cease and Desist (Docket No. 13). The Courtfurther DISMISSES the civil case WITH PREJUDICE based on theAbstention Doctrines applicable to in rem cases. The Courtexplains.

The facts as stated by the plaintiff in the complaint are asfollows: plaintiff is a veteran who purchased some real propertyfor which R & G Mortgage Corporation, Inc. (R & G), providedacquisition financing. Allegedly, the Veterans Administrationprovided a guarantee under the GI Bill in favor of plaintiff.Plaintiff deems that the agreement with the VeteransAdministration puts the agency in a"Cosigner-Co-borrower-Warrantor" relationship with him as adebtor against the creditor. Up and until August 2003, plaintiffwas able to provide timely mortgage payments but as a result of"cerebral cardiovascular attacks", plaintiff became "totallydisabled". At the end of the year 2003, R & G filed a collectionclaim and mortgage foreclosure against plaintiff; judgment wasentered on behalf of R & G, and consequently the instant sale inpublic action was ordered. Plaintiff sustains that he raised arguments before the local state courtrelating to the warrantee provided by the Veterans Administrationbut the local court failed to provide any remedy.

Plaintiff seeks various remedies but most relevant to theinstant controversy is a request that the undersigned order thedefendant to pursue total liquidation of the mortgage loanthrough the Veterans Administration hence ceasing and desistingall proceedings against the instant plaintiff.

Res Judicata/Claim Preclusion —

It is well known that Federal courts must provide full faithand credit to a final judgment issued by a Puerto Rico court, andas such, this court lacks subject matter jurisdiction toentertain a controversy previously adjudicated by the Puerto Ricocourts. See: District of Columbia Ct.App. v. Feldman,460 U.S. 462, 482-86, 103 S.Ct. 1303, 1315-1317, 75 L.Ed.2d 206 (1983);Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16,44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); see also Henry v. Connolly,910 F.2d 1000, 1002 (1st Cir. 1990) ("A federal court cannot presumeto sit in direct appellate review of final state courtdeterminations in judicial proceedings."); see also Baez-Cruz v.Municipality of Comerio, 140 F.3d 24, 28 n. 1 (1st Cir. 1998).Moreover, "`lower federal courts possess no power to sit indirect review of state court decisions.' [Citations omitted.] Ifthe . . . claims presented to a United States District Court areinextricably intertwined with the state court's [judgment] . . .,then the District Court is in essence being called upon to reviewthe state-court decision. This, the District Court [of PuertoRico] cannot do." U.S. Industries v. Laborde, 794 F.Supp. 454,463 (D.P.R. 1992), citing, Atlantic Coast Line R. Co. v.Locomotive Engineers, 398 U.S. 281, 296, 90 S.Ct. 1739, 1748,26 L.Ed.2d 234 (1970). See also, Guadarrama v. U.S.Department ofHousing and Urban Development, 74 F.Supp.2d 127, 138 (D.P.R.1999). The above describe legal scenario of the federal courtspreclusion from acting as courts of review of state court'sdecision is known as the Rooker/Feldman doctrine.

It is equally clear that, under Puerto Rico law, the doctrinesof res judicata and collateral estoppel preclude relitigation ofclaims and/or issues which have been, or could have beenlitigated in a prior judicial action for which judgment has beenrendered. (Emphasis ours.) Baez-Cruz v. Municipality ofComerio,1 supra; Sahar Fatach v. Seguros Triple S,Inc., 147 P.R.Dec. 882 (1999). See generally, Parklane HosieryCo., Inc. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649,58 L.Ed.2d 552 (1979). It is further well-settled that aproceeding in a state court collaterally estops inconsistentarguments in a later federal action. Allen v. McCurry,449 U.S. 90, 104-05, 101 S.Ct. 411, 419-21, 66 L.Ed.2d 308 (1980). "[O]nce a court has decided an issue of fact or law necessaryto its judgment, that decision is conclusive in a subsequent suitbased on a different cause of action involving a party to theprior litigation." United States v. Mendoza, 464 U.S. 154, 158,104 S.Ct. 568, 571, 78 L.Ed.2d 379 (1984). Specifically, underthe defensive use of the doctrine of collateral estoppel, adefendant can prevent a plaintiff from relitigating a claim thatthe plaintiff has already lost, even if against anotherdefendant. See Parklane, 439 U.S. at 326 n. 4, 99 S.Ct. at 649;and Mendoza, 464 U.S. at 159, 104 S.Ct. at 571-572. "A finaljudgment on the merits of an action precludes the parties ortheir privies from relitigating claims that were raised or couldhave been raised in that action." [emphasis added] Apparel ArtInt'l, Inc. v. Amertex Ltd., 48 F.3d 576, 583 (1st Cir. 1995).

Furthermore, the First Circuit Court of Appeals has explainedthat "the doctrine of `Res judicata generally binds parties fromlitigating or relitigating any issue that was or could have beenlitigated in a prior adjudication and prevents claim splitting."Futura Dev. Corp. v. Centex Corp., 761 F.2d 33, 42 (1stCir. 1985) (citing Capo Sanchez v. Secretary of the Treasury,92 P.R.R. 817 (1965)) (emphasis ours); Mitsubishi Motors Corp. v.Soler Chrysler-Plymouth, 814 F.2d 844, 846 (1st Cir. 1987); seealso, Worldwide Food Distributors, Inc. v. Alberic ColonBermudez, 133 P.R.Dec. at 831. A federal court must give to astate court judgment the same preclusive effect as would be giventhat judgment under the law of the state in which the judgmentwas rendered. Migra v. Warren City School District Board ofEducation, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984).(Emphasis ours). Therefore, preclusive effect is given to statejudicial proceedings, and it is Black-letter law that applicablecollateral estoppel rules are those of the state from whichjudgment is taken. Kremer v. Chemical Constr. Corp.,456 U.S. 461, 481-82, 102 S.Ct. 1883, 1897-98, 72 L.Ed.2d 262 (1982).

Puerto Rico Law —

In order to apply the doctrine of res judicata, the Civil Codeof Puerto Rico provides that "it is necessary that, between the case decided by the sentence and thatin which the same is invoked, there be the most perfect identitybetween the things, causes, and persons of the litigants, andtheir capacity as such." 31 P.R. Laws Ann., § 3343. This statutenot only refers to res judicata matters, as well as estoppel byjudgment. Baez-Cruz, supra; Texaco Puerto Rico, Inc. v.Medina, 834 F.2d 242, 245-46 (1st Cir. 1987).

"Final and Firm" requirement —

"Under Puerto Rico law, claim preclusion requires a priorjudgment on the merits that is, in the authoritative Spanish,"final y firme" (officially translated as "final andunappealable")." Cruz v. Melecio, 204 F.3d 14, 20-21 (1stCir. 2000) (emphasis ours); quoting Worldwide Food Distribs.,Inc. v. Colon Bermudez, 133 P.R. Dec. at 831. As such, acommonwealth court judgment cannot be accorded preclusive effectuntil all available appeals have been exhausted (or the time fortaking them has expired). Id., Vega Arriaga v. J.C. Penney,Inc., 658 F.Supp. 117, 120-21(D.P.R. 1987).2

"Res judicata is understood to mean that which has been settledby the final judgment of a judge or competent court and bearswith it the firmness of its irreversibility." Worldwide Food,133 P.R. Dec. at 834 (official trans. at 6) (quoting 8-2 JoseMaria Manresa, Comentarios al Codigo Civil Espanol 278 (1967)). When the Puerto Rico Supreme Court uses theterm to describe a judgment, the court intends to denoteunappealability. Cruz v. Melecio, 204 F.3d at 21; quoting, Exparte Bolivar, 12 P.R.R. 261, 264-65 (1907) (explaining that"[t]he meaning of a `sentencia firme' and a `sentencia final' areentirely different in legal language, because an appeal does notlie from a `sentencia firme', while an appeal does lie in thecases provided by the law from a `sentencia final', andtranslating "firme" in this context as "final and unappealable").

Pursuant to Puerto Rico law, a judgment becomes "final y firme"when no further appeal can be taken, In re Pagan Colon, 100P.R.R. 220, 224 (1971). The preclusion principle does not operatein the absence of a final, unappealable judgment, merits federalrecognition. Consequently, federal courts can ascribe no greaterpreclusive force to a state court judgment. See Johnson v. DeGrandy, 512 U.S. 997, 1005, 114 S.Ct. 2647, 129 L.Ed.2d 775(1994); Board of Pub. Works v. Columbia College, 84 U.S. (17Wall.) 521, 529, 21 L.Ed. 687 (1873). The Court at this timehowever, cannot determine with the thin record supplied byplaintiff that there exists a final unappealable judgment.

Abstention —

The Court at this time deems that there is a strong presumptionthat the instant claim is barred by res judicata, basically,because a sale in public auction cannot be executed if finalityof the local state court judgment has not been achieved.Furthermore, the record is devoid of any information provided byplaintiff showing said that in effect, the matter entertained bythe local state court has achieved the finality required to stateeffectively that claim preclusion prevents plaintiff torelitigate the same issues raised before the local court.Specifically, the Court notes that plaintiff admitted that theissues brought forth to the undersigned's attention, as thethrust of plaintiff's claims, were argued previously before thestate court.

Notwithstanding, on other even more solid grounds,consideration of wise, sound judicial administration warrantdismissal of this federal claim, pending final conclusion ofstate court proceedings under abstention doctrines. At this time,this Court cannot ascertain the current stage of the proceedings, which could be now on appeal nevertheless,abstention relating to in rem cases mandates dismissal. Lundborgv. Phoenix Leasing, Inc., 91 F.3d 265, 272-273 (1st Cir.1996). The Court explains.

The Court is compelled to review, the Colorado River andMoses H. Cone doctrines. Colorado River Water ConservationDistrict v. United States, 424 U.S. 800, 47 L. Ed. 2d 483,96 S. Ct. 1236 (1976); Moses H. Cone Mem. Hosp. v. Mercury Constr.Corp., 460 U.S. 1, 103 S.Ct. 927; 74 L.Ed.2d 765 (1983). Thedoctrine, established in two different Supreme Court cases,begins with the strong presumption that federal courts have anobligation to exercise their jurisdiction once an action has beeninitiated in federal court. Therefore, federal courts willexercise their jurisdiction unless special limited circumstancesdictate in a narrow number of cases a different result. ColoradoRiver and Moses H. Cone established the special circumstancesunder which federal courts can refrain from exercising theirjurisdiction. A review of the general principles set forth underthese two doctrines is appropriate.

In Colorado River, the Supreme Court established a doctrinegoverning the stay or dismissal of federal lawsuits forsituations in which the three long standing traditionalabstention doctrines are inapplicable.3 Id. at 817. This alternative doctrine focuses not on considerations ofstate-federal comity or on avoidance of constitutional decisionsas in the traditional abstention doctrines, but rather on"considerations of wise judicial administration, giving regard toconservation of judicial resources and comprehensive dispositionof litigation." Colorado River, 424 U.S. at 817 (quotingKerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180,183, 96 L. Ed. 200, 72 S. Ct. 219 (1952)). In considering thisalternative, the Court must consider the following factors: 1)which court first assumed jurisdiction over any res or propertyinvolved in the action; 2) the inconvenience of the federalforum; 3) the desirability of avoiding piecemeal litigation; 4)the order in which jurisdiction was obtained by the concurrentforums; and 5) whether federal law supplies the rule of decision.Moses H. Cone, 460 U.S at 13-26, 103 S.Ct. at 936-940.

The purpose behind the Colorado River doctrine is todetermine whether exceptional circumstances exist in a case,which favor an exception in the exercise of federal jurisdiction.The Court also counseled in its holding that the decision"whether to dismiss a federal action because of parallelstate-court litigation does not rest on a mechanical checklist,but on a careful balancing of the important factors as they applyin a given case. . . ." Id. at 16.4 The Court must apply a two-part test. The Court must determinewhether the actions in the state and federal forums are parallel.The proceedings are considered to be parallel if they involve thesame parties and "substantially identical claims", raising"nearly identical allegations and issues". See Timoney v.Upper Merion Twp., 66 Fed. Appx. 403 (2003). Second, the Courtmust perform a balancing of interest considering a number offactors in order to determine whether there exist "exceptionalcircumstances" to justify abstention. The first part of the testis met in this case, i.e., proceedings in state and federal courtare parallel, they involve the same parties. As to the collectionproceedings and foreclosure, nearly identical allegations andissues are addressed. Finally, as to these claims, Plaintiff isseeking the same redress for the same action. See Timoney,66 Fed. Appx. at 406.

Colorado River and Moses H. Cone at Work —

The Court of Appeals for the First Circuit, upon reviewing theColorado River doctrine, has repeatedly noted that the SupremeCourt itself "took care to emphasize its narrowness." VillaMarina Yacht Sales v. Hatteras Yachts ("Villa Marina I"),915 F.2d at 12; Rojas-Hernandez v. Puerto Rico Electric PowerAuthority, 925 F.2d 492 (1st Cir. 1991); Villa Marina YachtSales, Inc. v. Hatteras Yachts ("Villa Marina II"), 947 F.2d 529(1st Cir. 1991). In the Villa Marina cases, which upheld thedismissal of the federal action, the Circuit Court explained,that although federal courts have a "virtually unflaggingobligation . . . to exercise the jurisdiction given them,"Colorado River, 424 U.S. at 817, 96 S. Ct. at 1246, the Court must surrender jurisdiction in favor of"wise judicial administration" but permissible only in"exceptional" circumstances, Id. at 818, 96 S. Ct. at 1246.

In consequence, courts need to take into consideration that,"the general principle is to avoid duplicative litigation," 817, 96 S. Ct. at 1246. In spite of the narrow interpretationaccorded to the Colorado River and Moses H.Cone doctrines, asinterpreted by the First Circuit in Villa Marina I, and VillaMarina II, supra, and after weighing the factors listed aboveand considering the exceptional circumstances present in thiscase, the Court finds that this case presents all the necessarycircumstances which counsel in favor of abstention and proceedwith the dismissal of the action.

Considerations of "wise judicial administration" alone maysometimes warrant dismissal [stay] of a federal court proceeding.See Glen Oaks Utils., Inc. v. City of Houston, 280 F.2d 330,331-332 (5th Cir. 1960) (emphasis ours) (state law did notaccord res judicata effect to a judgment on appeal, and the FifthCircuit nonetheless affirmed an order of staying federal courtproceedings pending final resolution of the state courtproceedings). Abstention is justified as a means "to further theharmonious relation between state and federal authority." Cruzv. Melecio, 204 F.3d at 23, quoting, Railroad Comm'n v. PullmanCo., 312 U.S. 496, 501, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Seealso Lundborg v. Phoenix Leasing, Inc., 91 F.3d 265, 272-273(1st Cir. 1996).

Furthermore, in Princess Lida v. Thompson, 305 US 456,59 S.Ct. 275 (1939), the court ruled on whether a federal districtcourt could exercise its jurisdiction concurrently over a suit involving the administration and control of a trust res that wasalready within the exclusive jurisdiction of the PennsylvaniaCourt of Common Pleas. In determining that the district court waswithout jurisdiction to hear the suit, the Princess Lida courtconcluded that: . . . . [w]here the judgment sought is strictly in personam, both the state court and the federal court, having concurrent jurisdiction, may proceed with the litigation at least until judgment is obtained in one of them which may be set up as res judicata in the other. On the other hand, if the two suits are in rem, or quasi in rem, so that the court, or its officer, has possession or must have control of the property which is the subject of the litigation in order to proceed with the cause and grant the relief sought the jurisdiction of the court must yield to that of the other. We have said that the principle applicable to both federal and state courts that the court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, is not restricted to cases where property has been actually seized under judicial process before a second suit is instituted, but applies as well where suits are brought to marshal assets, administer trusts, or liquidate estates, and in suits of similar nature where, to give effect to its jurisdiction, the court must control the property. The doctrine is necessary to the harmonious cooperation of federal and state tribunals. Princess Lida, at 305 US at 465-467, 59 S.Ct. at 280-81(emphasis Ours).

Dismissal of Plaintiff's claim, is warranted in an execution ofmortgage case as an in rem case, as a means to avoid piecemeallitigation. "In considering whether the concern for avoidingpiecemeal litigation should play a role in this case, thedistrict court must look beyond the routine inefficiency that isthe inevitable result of parallel proceedings to determinewhether there is some exceptional basis for requiring the case toproceed in the Commonwealth [state] court." Villa Marina I,915 F.2d at 16.

The action by R & G against plaintiff was filed in state court,prior to the plaintiff filing its action in federal court. Theclaims asserted by R & G at state level relate to debt collectionand foreclosure of real estate property. The matter wasadjudicated by judgment by the state court, and as such, theclaim before this Court is entirely duplicative for purposes ofresolving the claim, to determine whether the VeteransAdministration was in a "Co-signer-Co-borrower-and Warrantor"position, between plaintiff Mr. Pastor Ginorio and defendant R &G.5 In essence, conducting this litigation, i.e., in thisforum is not only inefficient, but in this case unnecessary.Prosecution of the plaintiff's claims in federal court, would entail litigation of that issue twice, andawarding instant plaintiff two opportunities to obtain the sameremedy. Since the Court at this time cannot determine whether thelocal state court's decision is pending resolution at the localappeals court, and since said court may decide in either manner,to affirm and/or reverse the judgment, there may be a risk ofinconsistent adjudications over the same issue. Or even worse, ifaffirmed, the judgment would have the effect of providing theinstant defendant the same remedy twice, therefore duplicatingtermination efforts.

Further, after performing an examination of the traditionalprinciples enumerated in Colorado River, Moses H. Cone, andtheir progeny, the Court finds that the following factors favorthe dismissal of the instant claim. To wit, (i) an identicalissue regarding the collection of monies and foreclosureproceedings, was first submitted in state court; (ii) the statecourt has already adjudicated the matter through a judgment, andhence, as to these claims, state proceedings are far moreadvanced, as a matter of act, they are at the sale in publicauction stage of the proceedings. Notwithstanding, this Courtwill not indefinitely and unreasonably wait for a finaldetermination. See, Patcy v. Florida Board Regents,457 U.S. 496 (1982); McKeese v. Board of Education, 373 U.S. 668 (1963);Kercado-Melendez v. Aponte-Roque, 829 F.2d 255 (1st Cir.1987).

Finally, plaintiff moves the Court to issue an injunctiverelief in an attempt to prevent the sale in public auctionscheduled for the June 3, 2005. However, it is known that inconsidering a request for preliminary injunction, a trial courtmust weigh several factors: 1) the likelihood of success on the merits; 2) the potential of irreparable harm on the movant;3)the balance of the movant's hardship if relief is denied versusthe nonmovant's hardship if relief is granted, and 4) the effectof the decision on the public interest. Notwithstanding, the fourenumerated factors, probability of success is the "touchstone" ofthe remedy also the sine qua non requirement. SeeRoss-Simons of Wardick, Inc. v. Baccarat, Inc., 103 F.3d 12, 15(1st Cir. 1996); Narragansett Indian Tribe v. Guilbert,934 F.2d 4, 5 (1st Cir. 1991).

However, it is known that "equity ministers to the vigilant,not to those who sleep upon their rights". Texaco Puerto Rico,Inc. v. Department of Consumers Affairs, 60 F.3d 867 (1stCir. 1995). Likewise, the central feature of equitablejurisdiction is the ability to assess all relevant facts andcircumstances and tailor appropriate relief on a case by casebasis. Id., at 874. Furthermore, laches is an equitabledoctrine which penalizes litigant for negligent or willfulfailure to timely assert its rights. Valmor Products Co. v.Standard Products Corp., 464 F.2d 200, 204 (1st Cir. 1972).The traditional function of preliminary injunction is to preservethe status quo; that the court may retain its ability to rendermeaningful decision on the merits, and its application isdiscretionary with the court and cannot be mechanically applied.Crowley v. Local No. 82, Furniture and Piano Moving, FurnitureStore Drivers, Helpers, Warehousemen and Packers, 679 F.2d 978,995 (1st Cir. 1982). Finally, it is known that an injunctiverelief is inherently an equitable relief. Great-West Life &Annuity Ins. Co. v. Knudson, 534 U.S. 204, 211 n. 1,122 S.Ct. 708, 713 (2002).

In the instant case the Court harbors no doubt that plaintifffailed to assert its rights diligently before this Court. Therecord shows that the instant request for injunctive relief wasfiled over eighteen (18) months after the complaint in the localstate court was filed relating to an action in rem. Secondly,pursuant to the Princess Lida court, in in rem cases as theinstant execution of mortgage case, this Court's federaljurisdiction must yield under Colorado River abstentiondoctrine to that of the state court in order to proceed with the cause and grant therelief sought.6

Therefore, the Court hereby DENIES plaintiff's MotionRequesting "Order Requesting Urgent Temporary Reliefs" and/orInjunction of Cease and Desist (Docket No. 13). The Court deemsthat because the probability of success criteria in the issuingof injunctive relief is not present, plaintiff has not beendiligent in claiming his injunctive relief rights, and since thisCourt must yield to Colorado River and Princess Lidaabstention doctrines because an in rem action has already beenfiled and adjudicated at least at trial level in state court, theFederal District Court must dismiss the instant action.Ross-Simons of Wardwick, Inc. v. Baccarat, Inc., 102 F.3d at 16(likelihood of success is the touchstone of the preliminaryinjunction inquiry). Therefore this case is hereby DISMISSEDagainst R & G Mortgage Corporation WITH PREJUDICE. THIS CASE ISCLOSED FOR ALL STATISTICAL PURPOSES.


1. In Baez-Cruz, as here, the Full Faith and Credit statutemust be the starting point. "[J]udicial proceedings . . . shallhave the same full faith and credit in every court within theUnited States and its Territories . . . as they have by law orusage in the courts of such State [or] Territory . . . from whichthey are taken." 28 U.S.C. § 1738. Preclusive effect is given tostate judicial proceedings, and it is Black-letter law thatapplicable collateral estoppel rules are those of the state fromwhich judgment is taken. Kremer v. Chemical Constr. Corp.,456 U.S. 461, 481-82, 102 S.Ct. 1883, 1897-98, 72 L.Ed.2d 262 (1982). The relevant portion of Puerto Rico's preclusion statute statesas follows: In order that the presumption of res adjudicata be valid in another suit, it is necessary that, between the case decided by the sentence and that in which the same is invoked, there be the most perfect identity between the things, causes and persons of the litigants, and their capacity as such.31 P.R. Laws Ann., § 3343. The Baez-Cruz District Courtconcluded that as the Puerto Rico Supreme Court affirmed thefinding by JASAP that the firing was not politically motivated,the Plaintiffs were collaterally estopped from relitigating theissue in Federal Court.

2. "Even though the Puerto Rico Supreme Court has not madethis point in so many words, we believe that this is the clearimplication of the court's repeated emphasis on the phrase "finaly firme" in its discussions of res judicata." Cruz v. Melecio,204 F.3d at 21; Worldwide Food, 133 P.R. Dec. at 831;Rodriguez Rodriguez v. Colberg Comas, 131 P.R. Dec. 212, 222(1992); A & P Gen. Contractors, Inc. v. Asociacion Cana, Inc.,10 P.R. Offic. Trans. 987, 988 (1981); De Jesus Borrero v.Guerra Guerra, 105 P.R.R. 282, 285, 286 (1976) (per curiam);Commonwealth v. Sociedad Civil Agricola, 104 P.R.R. 548, 554(1975) (per curiam); Gonzalez Saldana v. Superior Court, 96P.R.R. 119, 122, 123 (1968).

3. The three abstention doctrines discussed by the UnitedStates Supreme Court apply under the following circumstances: (i)where a federal court can avoid constitutional determinations byallowing a state court to construe a state law (Pullmanabstention); (ii) where the case involves difficult questions ofstate law whose importance transcends the result of the case atbar (Burford abstention); and (iii) where federal jurisdictionhas been invoked for the purpose of restraining state criminalproceedings (Younger abstention). Colorado River,424 U.S. at 814-16.

4. From Colorado River and its progeny, six factors haveemerged as the core of this brand of jurisdictional analysis. Todetermine whether the required "exceptional circumstances" exist,a district court must consider: (1) whether either court hasassumed jurisdiction over a res; (2) the inconvenience of thefederal forum; (3) the desirability of avoiding piecemeallitigation; (4) the order in which the forums obtainedjurisdiction, see Colorado River, 424 U.S. at 813,96 S.Ct. at 1244; (5) whether federal law or state law controls; and (6)whether the state forum will adequately protect the interests ofthe parties, see Moses H. Cone, 460 U.S. at 25-26,103 S.Ct. at 941-42. The list, however, was not intended to be exhaustive.Villa MarinaYacht Sales v. Hatteras Yachts ("Villa Marina I"),915 F.2d 7, 16 (1st Cir. 1990). Other factors have been foundto merit consideration, notably the vexatious or contrived natureof the federal claim, see Id., at 12; Fuller Co. v. Ramon I.Gil, Inc., 782 F.2d 306, 309-10 (1st Cir. 1986), as well asrespect for the principles underlying removal jurisdiction, seeVilla Marina, supra, at 14-15. Moreover, "[n]o one factor isnecessarily determinative; a carefully considered judgment takinginto account both the obligation to exercise jurisdiction and thecombination of factors counseling against the exercise isrequired." Id. at 12.

5. Under local law the creditor Bank can sue either or both ofthe two alleged debtors, even assuming that plaintiff is correctthat the Veterans Administration was a co-borrower. 31 P.R. LawsAnn. §§ 3101-3112.

6. Although there is no general rule for abstention of theproceedings while there is a prior suit in another jurisdiction,the one firmly entrenched exception are the actions concerningreal property. Consequently, "whichever court has jurisdictionfirst is entitled to exclusive jurisdiction over the matter andeven can enjoin other [federal] courts from hearing the case."Chemerinsky, Erwin, Federal Jurisdiction, 4th ed., AspenPublishers, § 14.2, p. 84, (2003); General Atomic Co. v.Felter, 434 US 12 (1977) (per curiam) (property cases are theonly situation where state courts may enjoin federal courts).When the matter is in rem, or is a foreclosure of a mortgage, thesolution is not a stay but a dismissal ("jurisdiction of the[federal] court must yield [to the state court]." On the otherhand, if the civil actions are purely personal, both state andfederal courts have concurrent jurisdiction. Princess Lida,305 US at 465-467.

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