Petitioner sued respondent in state court for breach of
contract. Respondent did not remove the action to federal court,
but, one month later, filed a diversity action against petitioner
in the Federal District Court for breach of the same contract. The
District Court denied petitioner's motion to stay or dismiss the
action before it, finding that the facts of the case fell short of
those necessary to justify the requested discontinuance under
Colorado River Water Conservation Dist. v. United States,
424 U. S. 800,
which held that, in "exceptional" circumstances, a district court
may stay or dismiss an action because of the pendency of similar
state court litigation. The Court of Appeals dismissed petitioner's
appeal for lack of jurisdiction, holding that neither 28 U.S.C. §
1291 -- which provides for appeals from "final decisions" of the
district courts -- nor § 1292(a)(1) -- which authorizes appeals
from interlocutory orders granting or denying injunctions --
allowed an immediate appeal from the District Court's order. The
court also declined to treat petitioner's notice of appeal as an
application for a writ of mandamus under the All Writs Act.
Held:
1. A district court order denying a motion to stay or dismiss an
action when a similar suit is pending in state court is not
immediately appealable under § 1291 or § 1292(a)(1). Pp.
485 U. S.
275-288.
(a) Since the order in question does not end the litigation, but
ensures that it will continue in the District Court, it is not
appealable under § 1291. The order does not fall within the
collateral order exception to § 1291, since it fails to satisfy the
exception's "conclusiveness" requirement in that it is inherently
tentative, and not made with the expectation that it will be the
final word on the subject addressed. Given both the nature of the
factors to be considered under
Colorado River and the
natural tendency of courts to attempt to eliminate matters that
need not be decided from their dockets, a district court usually
will expect to revisit and reassess an order denying a stay in
light of events occurring in the normal course of litigation. Pp.
485 U. S.
275-278.
(b) Since the order in question relates only to the conduct or
progress of litigation before the District Court, it cannot be
considered an injunction
Page 485 U. S. 272
appealable under § 1292(a)(1). Petitioner's claim that the order
is appealable pursuant to the doctrine of
Enelow v. New York
Life Ins. Co., 293 U. S. 379, and
Ettelson v. Metropolitan Life Ins. Co., 317 U.
S. 188, under which orders granting or denying stays of
"legal" proceedings on "equitable" grounds were considered to be
immediately appealable injunctions, is rejected. The
Enelow-Ettelson doctrine is overruled, since it is based
on outmoded procedural differentiations and produces arbitrary and
anomalous results in modern practice. Pp.
485 U. S.
279-288.
2. Petitioner has failed to satisfy its burden of showing that
the District Court's refusal to order a stay or dismissal of the
suit before it constituted an abuse of discretion sufficient to
warrant the extraordinary remedy of mandamus in the Court of
Appeals. Petitioner's assertion that a party's decision to spurn
removal and bring a separate federal court suit invariably
constitutes "exceptional" circumstances warranting stay or
dismissal under the Colorado River doctrine is rejected. Pp.
485 U. S.
288-290.
806 F.2d 928, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which all
other Members joined, except KENNEDY, J., who took no part in the
consideration or decision of the case. SCALIA, J., filed a
concurring opinion,
post, p.
485 U. S.
290.
JUSTICE MARSHALL delivered the opinion of the Court.
The primary issue in this case is whether a district court order
denying a motion to stay or dismiss an action when a similar suit
is pending in state court is immediately appealable.
I
Petitioner Gulfstream Aerospace Corporation and respondent
Mayacamas Corporation entered into a contract under which
respondent agreed to purchase an aircraft manufactured by
petitioner. Respondent subsequently refused to make payments due,
claiming that petitioner, by increasing
Page 485 U. S. 273
the production and availability of its aircrafts, had frustrated
respondent's purpose in the transaction, which was to sell the
aircraft when demand was high. Petitioner thereupon filed suit
against respondent for breach of contract in the Superior Court of
Chatham County, Georgia. Respondent, declining to remove this
action to federal court, filed both an answer and a counterclaim.
In addition, approximately one month after the commencement of
petitioner's state court suit, respondent filed a diversity action
against petitioner in the United States District Court for the
Northern District of California. This action alleged breach of the
same contract that formed the basis of petitioner's state court
suit.
Petitioner promptly moved for a stay or dismissal of the federal
court action pursuant to the doctrine of Colorado River
Water
Conservation Dist. v. United States, 424 U.
S. 800 (1976). In
Colorado River, we held that
in "exceptional" circumstances, a federal district court may stay
or dismiss an action solely because of the pendency of similar
litigation in state court.
Id. at 818;
see Moses H.
Cone Memorial Hospital v. Mercury Construction Corp.,
460 U. S. 1,
460 U. S. 13-19
(1983). [
Footnote 1] Petitioner
argued that the circumstances of this case supported a stay or
dismissal of the federal court action under
Colorado
River. The District Court disagreed. Finding that "the facts
of this case fall short of those necessary to justify" the
discontinuance of a federal court proceeding under
Colorado
River, the District Court denied petitioner's motion.
See No. C 85-20658 RPA (ND Cal., Jan. 24, 1986).
Petitioner filed a notice of appeal with the United States Court
of Appeals for the Ninth Circuit, alleging that the
Page 485 U. S. 274
Court of Appeals had jurisdiction over the appeal under either
28 U.S.C. § 1291 [
Footnote 2]
or 28 U.S.C. § 1292(a)(1). [
Footnote 3] Petitioner also requested the Court of
Appeals, in the event it found that neither of these sections
provided appellate jurisdiction, to treat the notice of appeal as
an application for a writ of mandamus, brought pursuant to the All
Writs Act, 28 U.S.C. § 1651, [
Footnote 4] and to grant the application. The Court of
Appeals dismissed the appeal for lack of jurisdiction, holding that
neither § 1291 nor § 1292(a)(1) allowed an immediate appeal from
the District Court's order. 806 F.2d 928, 929-930 (1987). [
Footnote 5] The Court of Appeals then
declined to treat petitioner's notice of appeal as an application
for mandamus on the ground that the District Court's order would
not cause "serious hardship or prejudice" to petitioner.
Id. at 930. Finally, the Court of Appeals stated that,
even if the notice of appeal were to be treated as an application
for mandamus, petitioner did not have a right to the writ because
"[i]t was well within the district court's discretion to deny"
petitioner's motion.
Id. at 930-931.
Page 485 U. S. 275
We granted certiorari, 481 U.S. 1068 (1987), to resolve a
division in the Circuits as to whether a district court's denial of
a motion to stay litigation pending the resolution of a similar
proceeding in state court is immediately appealable. [
Footnote 6] We now affirm.
II
Petitioner's principal contention in this case is that the
District Court's order denying the motion to stay or dismiss the
federal court litigation is immediately appealable under § 1291.
That section provides for appellate review of "final decisions" of
the district courts. This Court long has stated that, as a general
rule, a district court's decision is appealable under this section
only when the decision "ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment."
Catlin v. United States, 324 U. S. 229,
324 U. S. 233
(1945). [
Footnote 7] The order
at issue in this case has no such effect: indeed, the order ensures
that litigation will continue in the District Court. In
Cohen
v. Beneficial Industrial Loan Corp., 337 U.
S. 541 (1949), however, we recognized a "small
Page 485 U. S. 276
class" of decisions that are appealable under § 1291 even though
they do not terminate the underlying litigation.
Id. at
337 U. S. 546.
We stated in
Cohen that a district court's decision is
appealable under § 1291 if it
"finally determine[s] claims of right separable from, and
collateral to, rights asserted in the action, too important to be
denied review and too independent of the cause itself to require
that appellate consideration be deferred until the whole case is
adjudicated."
Ibid. Petitioner asserts that the District Court's
decision in this case falls within
Cohen's "collateral
order" doctrine.
Since
Cohen, we have had many occasions to revisit and
refine the collateral order exception to the final judgment rule.
We have articulated a three-pronged test to determine whether an
order that does not finally resolve a litigation is nonetheless
appealable under § 1291.
See Coopers & Lybrand v.
Livesay, 437 U. S. 463
(1978);
see also, e.g., Richardson-Merrell Inc. v. Koller,
472 U. S. 424,
472 U. S. 431
(1985);
Firestone Tire & Rubber Co. v. Risjord,
449 U. S. 368,
449 U. S. 375
(1981). First, the order must "conclusively determine the disputed
question."
Coopers & Lybrand v. Livesay, 437 U.S. at
437 U. S. 468.
Second, the order must "resolve an important issue completely
separate from the merits of the action."
Ibid. Third and
finally, the order must be "effectively unreviewable on appeal from
a final judgment."
Ibid. (footnote omitted). If the order
at issue fails to satisfy any one of these requirements, it is not
appealable under the collateral order exception to § 1291.
This Court held in
Moses H. Cone Memorial Hospital v.
Mercury Construction Corp., 460 U. S. 1 (1983),
that a district court order granting a stay of litigation pursuant
to
Colorado River meets each of the three requirements of
the collateral order doctrine, and therefore is appealable under §
1291. 460 U.S. at
460 U. S. 11-13.
In applying the collateral order doctrine, we found that an order
refusing to proceed with litigation because of the pendency of a
similar action in state court satisfies the second and third prongs
of the test.
Page 485 U. S. 277
We stated that such an order "plainly presents an important
issue separate from the merits," and that it would be "unreviewable
if not appealed now" because, once the state court has decided the
issues in the litigation, the federal court must give that
determination
res judicata effect.
Id. at
460 U. S. 12
(footnote omitted). The Court gave more extended treatment to the
first requirement of the collateral order doctrine that the order
"conclusively determine the disputed question." We contrasted two
kinds of nonfinal orders: those that are "
inherently
tentative,'" id. at 460 U. S. 12, n.
14, quoting Coopers & Lybrand v. Livesay, supra, at
437 U. S. 469,
n. 11, and those that, although technically amendable, are "made
with the expectation that they will be the final word on the
subject addressed," 460 U.S. at 460 U. S. 12, n.
14. We used the order challenged in Coopers & Lybrand v.
Livesay, supra, which denied certification of a class, as an
example of the kind of order that is inherently tentative because a
district court ordinarily would expect to reassess and revise such
an order in response to events occurring "in the ordinary course of
litigation." Moses H. Cone Memorial Hospital v. Mercury
Construction Corp., supra, at 460 U. S. 13, n.
14. We then stated that an order granting a stay of litigation in
federal court pursuant to the doctrine of Colorado River
was not of this tentative nature. An order granting a Colorado
River stay, we noted, "necessarily contemplates that the
federal court will have nothing further to do in resolving any
substantive part of the case" because a district court may enter
such an order only if it has full confidence that the parallel
state proceeding will "be an adequate vehicle for the complete and
prompt resolution of the issues between the parties." 460 U.S. at
460 U. S. 28;
see id. at 460 U. S. 13.
Given that a district court normally would expect the order
granting the stay to settle the matter for all time, the
"conclusiveness" prong of the collateral order doctrine is
satisfied, and the order is appealable under § 1291.
Application of the collateral order test to an order denying a
motion to stay or dismiss an action pursuant to
Colorado
Page 485 U. S.
278
River, however, leads to a different result. We need
not decide whether the denial of such a motion satisfies the second
and third prongs of the collateral order test -- the separability
of the decision from the merits of the action and the reviewability
of the decision on appeal from final judgment -- because the order
fails to meet the initial requirement of a conclusive determination
of the disputed question. A district court that denies a
Colorado River motion does not "necessarily contemplate"
that the decision will close the matter for all time. In denying
such a motion, the district court may well have determined only
that it should await further developments before concluding that
the balance of factors to be considered under
Colorado River,
see n 1,
supra,
warrants a dismissal or stay. The district court, for example, may
wish to see whether the state court proceeding becomes more
comprehensive than the federal court action, or whether the former
begins to proceed at a more rapid pace. Thus, whereas the granting
of a
Colorado River motion necessarily implies an
expectation that the state court will resolve the dispute, the
denial of such a motion may indicate nothing more than that the
district court is not completely confident of the propriety of a
stay or dismissal at that time. Indeed, given both the nature of
the factors to be considered under
Colorado River and the
natural tendency of courts to attempt to eliminate matters that
need not be decided from their dockets, a district court usually
will expect to revisit and reassess an order denying a stay in
light of events occurring in the normal course of litigation.
Because an order denying a
Colorado River motion is
"inherently tentative" in this critical sense -- because it is not
"made with the expectation that [it] will be the final word on the
subject addressed" -- the order is not a conclusive determination
within the meaning of the collateral order doctrine, and therefore
is not appealable under § 1291.
Page 485 U. S. 279
III
Petitioner argues in the alternative that the District Court's
order in this case is immediately appealable under § 1292(a)(1),
which gives the courts of appeals jurisdiction of appeals from
interlocutory orders granting or denying injunctions. An order by a
federal court that relates only to the conduct or progress of
litigation before that court ordinarily is not considered an
injunction, and therefore is not appealable under § 1292(a)(1).
See Switzerland Cheese Assn., Inc. v. E. Horne's Market,
Inc., 385 U. S. 23,
385 U. S. 25
(1966);
International Products Corp. v. Koons, 325 F.2d
403, 406 (CA2 1963) (Friendly, J.). Under the
Enelow-Ettelson doctrine, however, certain orders that
stay or refuse to stay judicial proceedings are considered
injunctions, and therefore are immediately appealable. Petitioner
asserts that the order in this case, which denied a motion for a
stay of a federal court action pending the resolution of a
concurrent state court proceeding, is appealable under § 1292(a)(1)
pursuant to the
Enelow-Ettelson doctrine.
The line of cases we must examine to resolve this claim began
some 50 years ago, when this Court decided
Enelow v. New York
Life Ins. Co., 293 U. S. 379
(1935). At the time of that decision, law and equity remained
separate jurisprudential systems in the federal courts. The same
judges administered both these systems, however, so that a federal
district judge was both a chancellor in equity and a judge at law.
In
Enelow, the plaintiff sued at law to recover on a life
insurance policy. The insurance company raised the affirmative
defense that the policy had been obtained by fraud, and moved the
District Court to stay the trial of the law action pending
resolution of this equitable defense. The District Court granted
this motion, and the plaintiff appealed. This Court likened the
stay to an injunction issued by an equity court to restrain an
action at law. The Court stated:
"[T]he grant or refusal of . . . a stay by a court of equity of
proceedings at law is a grant or refusal of an injunction
Page 485 U. S. 280
within the meaning of [the statute.] And, in this aspect, it
makes no difference that the two cases, the suit in equity for an
injunction and the action at law in which proceedings are stayed,
are both pending in the same court, in view of the established
distinction between 'proceedings at law and proceedings in equity
in the national courts. . . .'"
"
* * * *"
"It is thus apparent that, when an order or decree is made . . .
requiring, or refusing to require, that an equitable defense shall
first be tried, the court, exercising what is essentially an
equitable jurisdiction, in effect grants or refuses an injunction
restraining proceedings at law precisely as if the court had acted
upon a bill of complaint in a separate suit for the same
purpose."
Id. at
293 U. S.
382-383. The Court thus concluded that the District
Court's order was appealable under § 1292(a)(1).
In
Ettelson v. Metropolitan Life Ins. Co., 317 U.
S. 188 (1942), the Court reaffirmed the rule of
Enelow, notwithstanding that the Federal Rules of Civil
Procedure had fully merged law and equity in the interim. The
relevant facts of
Ettelson were identical to those of
Enelow, and the Court responded to them in the same
fashion. In response to the argument that the fusion of law and
equity had destroyed the analogy between the stay ordered in the
action and an injunction issued by a chancellor of a separate
proceeding at law, the Court stated only that the plaintiffs were
"in no different position than if a state equity court had
restrained them from proceeding in the law action." 317 U.S. at
317 U. S. 192.
Thus, the order granting the stay was held to be immediately
appealable as an injunction.
The historical analysis underlying the results in
Enelow and
Ettelson has bred a doctrine of
curious contours. Under the
Enelow-Ettelson rule, most
recently restated in
Baltimore
Page 485 U. S. 281
Contractors, Inc. v. Bodinger, 348 U.
S. 176 (1955), an order by a federal court staying or
refusing to stay its own proceedings is appealable under §
1292(a)(1) as the grant or denial of an injunction if two
conditions are met. First, the action in which the order is entered
must be an action that, before the merger of law and equity, was,
by its nature, an action at law. Second, the order must arise from
or be based on some matter that would then have been considered an
equitable defense or counterclaim. If both conditions are
satisfied, the historical equivalent of the modern order would have
been an injunction, issued by a separate equity court, to restrain
proceedings in an action at law. If either condition is not met,
however, the historical analogy fails. When the underlying suit is
historically equitable and the stay is based on a defense or
counterclaim that is historically legal, the analogy fails because
a law judge had no power to issue an injunction restraining
equitable proceedings. And when both the underlying suit and the
defense or counterclaim on which the stay is based are historically
equitable, or when both are historically legal, the analogy fails
because, when a chancellor or a law judge stayed an action in his
own court, he was not issuing an injunction, but merely arranging
matters on his docket. Thus, unless a stay order is made in a
historically legal action on the basis of a historically equitable
defense or counterclaim, the order cannot be analogized to a
premerger injunction, and therefore cannot be appealed under §
1292(a)(1) pursuant to the
Enelow-Ettelson doctrine.
The parties in this case dispute whether the
Enelow-Ettelson rule makes the District Court's decision
to deny a stay immediately appealable under § 1292(a)(1). Both
parties agree that an action for breach of contract was an action
at law prior to the merger of law and equity. They vigorously
contest, however, whether the stay of an action pending the
resolution of similar proceedings in a state court is equitable in
the requisite sense. Petitioner relies primarily on the decision of
the United States Court of Appeals for the
Page 485 U. S. 282
Seventh Circuit in
Microsoftware Computer Systems, Inc. v.
Ontel Corp., 686 F.2d 531 (1982). That court held that a stay
issued under
Colorado River is based on the policy of
avoiding "the unnecessary and wasteful duplication of lawsuits,"
which is historically an equitable defense. 686 F.2d at 536.
Respondent, on the other hand, urges us to adopt the reasoning of
the Ninth Circuit in this case. In its decision, the court below
drew a distinction between motions that raised equitable "defenses"
and motions that raised equitable "considerations." 806 F.2d at
929-930. The court held that a motion for a stay pursuant to
Colorado River was based only on equitable considerations,
and that the
Enelow-Ettelson rule therefore did not apply.
[
Footnote 8]
We decline to address the issue of appealability in these terms;
indeed, the sterility of the debate between the parties illustrates
the need for a more fundamental consideration of the precedents in
this area. This Court long has understood that the
Enelow-Ettelson rule is deficient in utility and sense. In
the two cases we have decided since
Ettelson relating to
the rule, we criticized its perpetuation of "outmoded procedural
differentiations" and its consequent tendency to produce
incongruous results.
Baltimore Contractors, Inc. v. Bodinger,
supra, at
348 U. S. 184;
see Morgantown v. Royal Ins. Co., 337 U.
S. 254,
337 U. S.
257-258 (1949). We refrained then from overruling the
Enelow and
Ettelson decisions, [
Footnote 9] but today we take
Page 485 U. S. 283
that step. A half century's experience has persuaded us, as it
has persuaded an impressive array of judges and commentators, that
the rule is unsound in theory, unworkable and arbitrary in
practice, and unnecessary to achieve any legitimate goals.
As an initial matter, the
Enelow-Ettelson doctrine is,
in the modern world of litigation, a total fiction. Even when the
rule was announced, it was artificial. Although, at that time, law
and equity remained two separate systems, they were administered by
the same judges. When a single official was both chancellor and law
judge, a stay of an action at law on equitable grounds required
nothing more than an order issued by the official regulating the
progress of the litigation before him, and the decision to call
this order an injunction just because it would have been an
injunction in a system with separate law and equity judges had
little justification. With the merger of law and equity, which was
accomplished by the Federal Rules of Civil Procedure, the practice
of describing these stays as injunctions lost all connection with
the reality of the federal courts' procedural system. As Judge
Charles Clark, the principal draftsman of the Rules, wrote:
"[W]e lack any rationale to explain the concept of a judge
enjoining himself when he merely decides upon the method he will
follow in trying the case. The metamorphosis of a law judge into a
hostile chancellor on the other 'side' of the court could not have
been overclear to the lay litigant under the divided procedure; but
if now, without even that fictitious sea change, one judge in one
form of action may split his judicial self at one instant into two
mutually antagonistic parts, the litigant surely will think himself
in Alice's Wonderland."
Beaunit Mills, Inc. v. Eday Fabric Sales Corp., 124
F.2d 563, 565 (CA2 1942). The
Enelow rule had presupposed
two different systems of justice administered by separate
tribunals, even if these tribunals
Page 485 U. S. 284
were no more than two "sides" to the same court; with the
abandonment of that separation, the premise of the rule
disappeared. The doctrine, and the distinctions it drew between
equitable and legal actions and defenses, lost all moorings to the
actual practice of the federal courts.
The artificiality of the
Enelow-Ettelson doctrine is
not merely an intellectual infelicity; the gulf between the
historical procedures underlying the rule and the modern procedures
of federal courts renders the rule hopelessly unworkable in
operation. The decisions in
Enelow and
Ettelson
treated as straightforward the questions whether the underlying
suit, on the one hand, and the motion for a stay, on the other,
would properly have been brought in a court of equity or in a court
of law. Experience since the merger of law and equity, however, has
shown that both questions are frequently difficult, and sometimes
insoluble. Suits that involve diverse claims and request diverse
forms of relief often are not easily categorized as equitable or
legal. As one Court of Appeals complained in handling such a
suit,
"
Enelow-Ettelson is virtually impossible to apply to a
complaint . . . in which the averments and prayers are a puree of
legal and equitable theories and of claims that had no antecedents
in the old bifurcated system."
Danford v. Schwabacher, 488 F.2d 454, 456 (CA9 1973).
Actions for declaratory judgments are neither legal nor equitable,
and courts have therefore had to look to the kind of action that
would have been brought had Congress not provided the declaratory
judgment remedy. Thus, the rule has placed courts
"in the unenviable position not only of solving modern
procedural problems by the application of labels which have no
currency, but also of considering the nature of law suits which
were never brought."
Diematic Manufacturing Corp. v. Packaging Industries,
Inc., 516 F.2d 975, 978 (CA2),
cert. denied, 423 U.S.
913 (1975). The task of characterizing stays as based in either law
or equity has proved equally intractable. In an early case applying
the doctrine, for example, this Court held that
Page 485 U. S. 285
a stay of an action at law pending arbitration is appealable as
an injunction because "the special defense setting up the
arbitration agreement is an equitable defense."
Shanferoke Coal
& Supply Corp. v. Westchester Service Corp., 293 U.
S. 449,
293 U. S. 452
(1935). But as one Court of Appeals has noted, a chancellor could
not have enforced an arbitration agreement and, correlatively,
could not have stayed a suit at law pending arbitration.
See
Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d
731, 735 (CA7 1986), citing,
e.g., J. Story, Commentaries
on Equity Pleadings § 804 (J. Gould 10th rev. ed. 1892). More
recently, lower courts have differed as to whether a stay pending
the completion of administrative proceedings is based on an
equitable defense.
Compare H. W. Caldwell & Son, Inc. v.
United States ex rel. John H. Moon & Sons, Inc., 407 F.2d
21, 22 (CA5 1969),
with Pepper v. Miani, 734 F.2d 1420,
1422 (CA10 1984). The conflict regarding the proper
characterization of
Colorado River stays is just one more
example of the confusion that results from requiring courts to
assign obsolete labels to orders that may or may not have an
analogue in the bifurcated system of equity and law.
Most important, the
Enelow-Ettelson doctrine is
"divorced from any rational or coherent appeals policy."
Lee v.
Ply*Gem Industries, Inc., 193 U.S.App.D.C. 112, 115, 593 F.2d
1266, 1269 (footnote omitted),
cert. denied, 441 U.S. 967
(1979). Under the rule, appellate jurisdiction of orders granting
or denying stays depends upon a set of considerations that in no
way reflects or relates to the need for interlocutory review. There
is no reason to think that appeal of a stay order is more suitable
in cases in which the underlying action is at law and the stay is
based on equitable grounds than in cases in which one of these
conditions is not satisfied. The rule's focus on historical
distinctions thus produces arbitrary and anomalous results.
See
Baltimore Contractors, Inc. v. Bodinger, 348 U.S. at
348 U. S. 184
(noting the "incongruity of taking jurisdiction from a stay in a
law-type
Page 485 U. S. 286
[proceeding] and denying jurisdiction in an equity-type
proceeding"). Two orders may involve similar issues and produce
similar consequences, and yet one will be appealable, whereas the
other will not. [
Footnote
10]
For these reasons, the lower federal courts repeatedly have
lambasted the
Enelow-Ettelson doctrine. The rule has been
called "a remnant from the jurisprudential attic,"
Danford v.
Schwabacher, supra, at 455, "an anachronism wrapped up in an
atavism,"
Hartford Financial Systems, Inc. v. Florida Software
Services, Inc., 712 F.2d 724, 727 (CA1 1983), and a "Byzantine
peculiarit[y],"
New England Power Co. v. Asiatic Petroleum
Corp., 456 F.2d 183, 189 (CA1 1972). With the exception of the
Federal Circuit, which apparently has not yet confronted an
Enelow-Ettelson appeal, every Circuit is on record with
criticism of the doctrine. [
Footnote 11] One Circuit Judge has urged his court to
reject
Page 485 U. S. 287
the doctrine outright.
See Mar-Len of Louisiana, Inc. v.
Parsons-Gilbane, 732 F.2d 444, 445-447 (CA5 1984) (Rubin, J.,
dissenting). Although a majority of the panel declined to do so, it
agreed that the
Enelow-Ettelson rule was "artificial,"
"medieval," and "outmoded." 732 F.2d at 445, n. 1 (citations
omitted). Another Circuit Judge, in a majority opinion, recently
wrote an extensive and scholarly critique of the doctrine and
concluded only with great reluctance that repudiating the doctrine
would be improper.
Olson v. Paine, Webber, Jackson &
Curtis, Inc., supra, at 733-742 (Posner, J.).
Commentators have been no less scathing in their evaluations of
the
Enelow-Ettelson rule. Professor Moore and his
collaborators have noted the difficulty of applying archaic labels
to modern actions and defenses, and expressed the wish that "the
Supreme Court will accept the first opportunity offered to decide
that the reason for the
Enelow-Ettelson rule having
ceased, the rule is no more." 9 J. Moore, B. Ward, & J. Lucas,
Moore's Federal Practice � 110.20[3], p. 245 (1987). Professor
Wright and his collaborators have gone further, arguing that the
extensive experience that the Courts of Appeals have had in
attempting to rationalize and apply the rule would justify them in
rejecting it. 16 C. Wright, A. Miller, E. Cooper, & E.
Gressman, Federal Practice and Procedure § 3923, p. 65 (1977).
The case against perpetuation of this sterile and antiquated
doctrine seems to us conclusive. We therefore overturn the cases
establishing the
Enelow-Ettelson rule and hold that orders
granting or denying stays of "legal" proceedings on "equitable"
grounds are not automatically appealable under § 1292(a)(1). This
holding will not prevent interlocutory review of district court
orders when such review is truly needed. Section 1292(a)(1) will,
of course, continue to provide appellate jurisdiction over orders
that grant or deny injunctions and orders that have the practical
effect of granting
Page 485 U. S. 288
or denying injunctions and have "
serious, perhaps
irreparable, consequence.'" Carson v. American Brands,
Inc., 450 U. S. 79,
450 U. S. 84
(1981), quoting Baltimore Contractors, Inc. v. Bodinger,
supra, at 348 U. S. 181.
As for orders that were appealable under § 1292(a)(1) solely by
virtue of the Enelow-Ettelson doctrine, they may, in
appropriate circumstances, be reviewed under the collateral order
doctrine of § 1291, see Moses H. Cone Memorial Hospital v.
Mercury Construction Corp., 460 U. S. 1 (1983),
and the permissive appeal provision of § 1292(b), [Footnote 12] as well as by application for
writ of mandamus. [Footnote
13] Our holding today merely prevents interlocutory review of
district court orders on the basis of historical circumstances that
have no relevance to modern litigation. Because we repudiate the
Enelow-Ettelson doctrine, we reject petitioner's claim
that the District Court's order in this case is appealable under §
1292(a)(1) pursuant to that doctrine.
IV
Petitioner finally contends that, if the order denying the
motion for a stay or dismissal is not appealable, the Court of
Appeals should have issued a writ of mandamus directing the
Page 485 U. S. 289
District Court to vacate the order and grant the motion. In
making this argument, petitioner points primarily to respondent's
decision to eschew removal of the state court action in favor of
bringing a separate suit in federal court. Petitioner asserts that,
in the absence of "imperative circumstances" not present in this
case, a district court must respond to this kind of conduct by
staying or dismissing the action brought in that court. Brief for
Petitioner 23. Refusal to do so, petitioner concludes, is a
"demonstrable abuse of discretion" warranting the issuance of a
writ of mandamus.
Id. at 5.
This Court repeatedly has observed that the writ of mandamus is
an extraordinary remedy, to be reserved for extraordinary
situations.
See, e.g., Kerr v. United States District
Court, 426 U. S. 394,
426 U. S. 402
(1976). The federal courts traditionally have used the writ only
"to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority
when it is its duty to do so."
Roche v. Evaporated Milk
Assn., 319 U. S. 21,
319 U. S. 26
(1943). In accord with this historic practice, we have held that
only "exceptional circumstances amounting to a judicial
usurpation of power'" will justify issuance of the writ.
Will v. United States, 389 U. S. 90,
389 U. S. 95
(1967), quoting De Beers Consol. Mines, Ltd. v. United
States, 325 U. S. 212,
325 U. S. 217
(1945). Moreover, we have held that the party seeking mandamus has
the "burden of showing that its right to issuance of the writ is
`clear and indisputable.'" Bankers Life & Cas. Co. v.
Holland, 346 U. S. 379,
346 U. S. 384
(1953), quoting United States v. Duell, 172 U.
S. 576, 172 U. S. 582
(1899).
Petitioner has failed to satisfy this stringent standard.
[
Footnote 14] This Court
held in
Colorado River that a federal court should
Page 485 U. S. 290
stay or dismiss an action because of the pendency of a
concurrent state court proceeding only in "exceptional"
circumstances, 424 U.S. at
424 U. S. 818, and with "the clearest of
justifications,"
id. at 819. Petitioner has failed to show
that the District Court clearly overstepped its authority in
holding that the circumstances of this case were not so exceptional
as to warrant a stay or dismissal under
Colorado River.
This Court never has intimated acceptance of petitioner's view that
the decision of a party to spurn removal and bring a separate suit
in federal court invariably warrants the stay or dismissal of the
suit under the
Colorado River doctrine. Moreover,
petitioner has pointed to no other circumstance in this case that
would require a federal court to stay the litigation. Petitioner
therefore has failed to show that the District Court's order
denying a stay or dismissal of the federal court suit warranted the
issuance of a writ of mandamus.
V
The District Court's order denying petitioner's motion to stay
or dismiss respondent's suit because of the pendency of similar
litigation in state court was not immediately appealable under §
1291 or § 1292(a)(1). In addition, the District Court's order did
not call for the issuance of a writ of mandamus. Accordingly, the
judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of
this case.
[
Footnote 1]
The factors to be considered in determining whether any
exceptional circumstances exist include the relative
comprehensiveness, convenience, and progress of the state court and
federal court actions.
See, e.g., Arizona v. San Carlos Apache
Tribe, 463 U. S. 545,
463 U. S. 570
(1983).
[
Footnote 2]
Section 1291 provides, in pertinent part:
"The courts of appeals . . . shall have jurisdiction of appeals
from all final decisions of the district courts of the United
States . . . except where a direct review may be had in the Supreme
Court."
[
Footnote 3]
Section 1292(a)(1) provides, in pertinent part:
"[T]he courts of appeals shall have jurisdiction of appeals
from:"
"(1) Interlocutory orders of the district courts of the United
States . . . or of the judges thereof, granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions, except where a direct review may be
had in the Supreme Court."
[
Footnote 4]
The All Writs Act provides, in pertinent part:
"The Supreme Court and all courts established by Act of Congress
may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles
of law."
[
Footnote 5]
One judge dissented from the dismissal for lack of jurisdiction.
He stated that the District Court's order was appealable under §
1292(a)(1).
See 806 F.2d at 931 (Sneed, J.). He then noted
that he would have affirmed the order.
See ibid.
[
Footnote 6]
Compare 806 F.2d 928 (CA9 1987) (case below) (holding
that a district court's denial of a motion to stay an action
pending resolution of a state court proceeding is not immediately
appealable),
with Microsoftware Computer Systems, Inc. v. Ontel
Corp., 686 F.2d 531 (CA7 1982) (holding that a district
court's denial of such a motion is immediately appealable under
§1292(a)(1)).
[
Footnote 7]
Justice Frankfurter, speaking for a unanimous Court, explained
the rationale for this rule in
Cobbledick v. United
States, 309 U. S. 323,
309 U. S. 325
(1940):
"Since the right to a judgment from more than one court is a
matter of grace, and not a necessary ingredient of justice,
Congress, from the very beginning has, by forbidding piecemeal
disposition on appeal of what for practical purposes is a single
controversy, set itself against enfeebling judicial administration.
Thereby is avoided the obstruction to just claims that would come
from permitting the harassment and cost of a succession of separate
appeals from the various rulings to which a litigation may give
rise, from its initiation to entry of judgment. To be effective,
judicial administration must not be leaden-footed. Its momentum
would be arrested by permitting separate reviews of the component
elements in a unified cause."
[
Footnote 8]
Accord, Gold v. Johns-Manville Sales Corp., 723 F.2d
1068, 1073 (CA3 1983) (holding that stays issued to avoid
duplicative litigation are not based on equitable defenses, and
therefore are not appealable under § 1292(a)(1));
Andrews v.
Southern Discount Co. of Georgia, 662 F.2d 722, 724 (CA11
1981) (same);
Jackson Brewing Co. v. Clarke, 303 F.2d 844,
846 (CA5) (same),
cert. denied, 371 U.S. 891 (1962).
[
Footnote 9]
A dissenting opinion in
Morgantown accused the majority
of having overruled
Enelow and
Ettelson. See
Morgantown v. Royal Ins. Co., 337 U.S. at
337 U. S.
261-263 (Black, J., dissenting). The Court in
Baltimore Contractors, however, interpreted
Morgantown as having left the
Enelow-Ettelson
doctrine intact, and itself declined to overturn the rule.
See
Baltimore Contractors, Inc. v. Bodinger, 348 U.S. at
348 U. S.
184-185.
[
Footnote 10]
The tendency of the
Enelow-Ettelson rule to produce
bizarre outcomes is illustrated by the decision in
Travel
Consultants, Inc. v. Travel Management Corp., 125 U.S.App.D.C.
108, 367 F.2d 334 (1966),
cert. denied, 386 U.S. 912
(1967). In that case, the plaintiff brought suit for specific
performance, the defendant counterclaimed for damages for breach of
contract, and the trial court stayed its own proceedings pending
arbitration. When the defendant challenged the stay order, the
Court of Appeals decided that it had jurisdiction to review the
"part" of the order staying the legal counterclaim, but did not
have jurisdiction to review the "part" of the order staying the
equitable claim for specific performance. The Court of Appeals
recognized that this result was anomalous, but concluded correctly
that it was compelled by this Court's decisions.
[
Footnote 11]
See, e.g., Langley v. Colonial Leasing Co. of New
England, 707 F.2d 1, 2, n. 2, 5 (CA1 1983);
Standard
Chlorine of Delaware, Inc. v. Leonard, 384 F.2d 304, 307-309
(CA2 1967);
Nascone v. Spudnuts, Inc., 735 F.2d 763,
767-770 (CA3 1984);
Chapman v. International Ladies' Garment
Workers' Union, 401 F.2d 626, 628 (CA4 1968);
Wallace v.
Norman Industries, Inc., 467 F.2d 824, 827 (CA5 1972);
Mansbach v. Prescott, Ball & Turben, 598 F.2d 1017,
1022-1023 (CA6 1979);
Matterhorn, Inc. v. NCR Corp., 763
F.2d 866, 870-871 (CA7 1985);
Mellon-Bank, N.A. v.
Pritchard-Keang Nam Corp., 651 F.2d 1244, 1247-1248 (CA8
1981);
Mediterranean Enterprises, Inc. v. Ssangvong Corp.,
708 F.2d 1458, 1462, n. 3 (CA9 1983);
Pepper v. Miani, 734
F.2d 1420, 1421 (CA10 1984);
Miller v. Drexel Burnham Lambert,
Inc., 791 F.2d 850, 853, n. 3 (CA11 1986) (per curiam);
Lee v. Ply*Gem Industries, Inc., 193 U.S.App.D.C. 112,
115, 593 F.2d 1266, 1269,
cert. denied, 441 U.S. 967
(1979).
[
Footnote 12]
Section 1292(b) states, in pertinent part:
"When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion
that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such
order. The Court of Appeals may thereupon, in its discretion,
permit an appeal to be taken from such order. . . ."
Several Courts of Appeals have viewed Congress' enactment of §
1292(b), which occurred after the
Enelow and
Ettelson decisions, as further justification for
abandoning the
Enelow-Ettelson doctrine.
See, e.g.,
Olson v. Paine, Webber, Jackson & Curtis, Inc., 806 F.2d
731, 738 (CA7 1986).
[
Footnote 13]
Issuance of a writ of mandamus will be appropriate in
exceptional cases involving stay orders. This Court has made clear,
for example, that a stay order that deprives a party of the right
to trial by jury is reversible by mandamus.
See Beacon
Theatres, Inc. v. Westover, 359 U. S. 500,
359 U. S.
510-511 (1959).
[
Footnote 14]
Because we find that petitioner has failed to demonstrate its
right to a writ of mandamus, we need not consider whether the Court
of Appeals acted appropriately in declining to treat petitioner's
notice of appeal as an application for the writ. The Courts of
Appeals have responded in divergent ways to requests from a party
to convert a notice of appeal into a petition for mandamus.
See, e.g., In re Harmon, 425 F.2d 916 (CA1 1970) (treating
a notice of appeal as a request for permission to file a petition
for mandamus);
Wilkins v. Erickson, 484 F.2d 969 (CA8
1973) (treating a notice of appeal as a petition for mandamus); 806
F.2d 928 (CA9 1987)(case below)(treating a notice of appeal as a
petition for mandamus only if party shows serious hardship or
prejudice). We take no position on this matter.
JUSTICE SCALIA, concurring.
I join the Court's opinion, but write separately' principally to
express what seems to me a necessary addition to the analysis
Page 485 U. S. 291
in Part II. While I agree that the present order does not come
within the
Cohen exception to the final judgment rule
under § 1291, I think it oversimplifies somewhat to assign as the
reason merely that the order is "inherently tentative." A
categorical order otherwise qualifying for
Cohen treatment
does not necessarily lose that status, and become "nonfinal,"
merely because the court may contemplate -- or even, for that
matter, invite -- renewal of the aggrieved party's request for
relief at a later date. The claim to immediate relief (in this
case, the right to be free of the obstruction of a parallel federal
proceeding) is categorically and irretrievably denied. The court's
decision is "the final word on the subject" insofar as the time
period between the court's initial denial and its subsequent
reconsideration of the renewed motion is concerned. Thus, it is
inconceivable that we would hold denial of a motion to dismiss an
indictment on grounds of absolute immunity (an order that is
normally appealable at once,
see Nixon v. Fitzgerald,
457 U. S. 731
(1982)), to be nonfinal and unappealable simply because the court
announces that it will reconsider the motion at the conclusion of
the prosecution's case.
In my view, refusing to apply the
Cohen exception makes
little sense in the present case because not only (1) the motion is
likely to be renewed and reconsidered, but also (2) the relief will
be just as effective, or nearly as effective, if accorded at a
later date -- that is, the harm caused during the interval between
initial denial and reconsideration will not be severe. Moreover,
since these two conditions will almost always be met when the
asserted basis for an initial stay motion is the pendency of state
proceedings, the more general conclusion that initial orders
denying
Colorado River motions are never immediately
appealable is justified.
I note that today's result could also be reached by application
of the rule adopted by the First Circuit, that, to come within the
Cohen exception, the issue on appeal must involve "
an
important and unsettled question of controlling law, not merely a
question of the proper exercise of the trial court's
Page 485 U. S.
292
discretion.'" Boreri v. Fiat S.P.A. 763 F.2d 17, 21
(1985), quoting United States v. Sorren, 605 F.2d 1211,
1213 (1979). See also e.g., Sobol v. Heckler Congressional
Committee, 709 F.2d 129, 130-131 (1983); Midway Mfg. Co.
v. Omni Video Games, Inc., 668 F.2d 70, 71 (1981); In re
Continental Investment Corp., 637 F.2d 1, 4 (1980). This
approach has some support in our opinions, see Cohen v.
Beneficial Industrial Loan Corp., 337 U.
S. 541, 337 U. S. 546
(1949); Coopers & Lybrand v. Livesay, 437 U.
S. 463, 437 U. S. 468
(1978), as well as in policy, see Donlon Industries v.
Forte, 402 F.2d 935, 937 (CA2 1968) (Friendly, J.) (when an
issue is reviewable only on an abuse-of-discretion basis, the
"likelihood of reversal is too negligible to justify the delay and
expense incident to an [immediate] appeal and the consequent burden
on hard-pressed appellate courts"); Midway Mfg. Co.,
supra, at 72 (questions of discretion "are less likely to be
reversed and offer less reason for the appellate court to
intervene"). This rationale has not been argued here, and we should
not embrace it without full adversarial exploration of its
consequences. I do think, however, that our finality jurisprudence
is sorely in need of further limiting principles, so that
Cohen appeals will be, as we originally announced they
would be, a "small class [of decisions] . . . too important to be
denied review." 337 U.S. at 337 U. S.
546.