motion to Dismiss

Case 4:12-cv-00826-Y Document 10 Filed 12/06/12 Page 1 of 34 PageID 124 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

RICHARD VAN HOUTEN, JR. AND ) 

STEPHEN HALL, ) 

) 

Plaintiffs, ) 

v. ) CIVIL ACTION NO. 4:12-cv-00826-Y 

) 

CITY OF FORT WORTH, TEXAS, ) 

MUNICIPAL CORPORATION ) 

) 

Defendant. ) 

DEFENDANT’S MOTION TO DISMISS OR STAY, ALTERNATIVE 

MOTION FOR A MORE DEFINITE STATEMENT, AND BRIEF IN SUPPORT 

Respectfully submitted, 

/s/ Dee J. Kelly 

Dee J. Kelly 

State Bar No. 11217000 

Dee J. Kelly, Jr. 


Mary H. Smith 


KELLY HART & HALLMAN LLP 

201 Main Street, Suite 2500 

Fort Worth, Texas 76102 

Telephone: (817) 332-2500 

Facsimile: (817) 878-9280 

Gerald Pruitt 

State Bar. No. 16369200 

FORT WORTH CITY ATTORNEY’S OFFICE 

1000 Throckmorton Street 


Telephone: (817) 392-7616 

Facsimile: (817) 392-8359 

ATTORNEYS FOR DEFENDANT 

DEFENDANT’S MOTION TO DISMISS OR STAY, ALTERNATIVE MOTION 

FOR A MORE DEFINITE STATEMENT, AND BRIEF IN SUPPORT 

Page i


TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ......................................................................................................... iv 

I. PRELIMINARY STATEMENT .........................................................................................1 

II. BACKGROUND .................................................................................................................2 

A. Factual Background .................................................................................................2 

B. Procedural Background ............................................................................................2 

III. SUMMARY OF THE ARGUMENT ..................................................................................3 

IV. ARGUMENT AND AUTHORITIES ..................................................................................4 

A. This Court Should Decline to Exercise Supplemental 

Jurisdiction Over Plaintiffs’ State-Law Claims and Dismiss 

Those Claims Without Prejudice .............................................................................4 

B. This Court Should Dismiss this Lawsuit Because Plaintiffs’ 

Claims are Not Ripe .................................................................................................8 

C. This Court Should Dismiss or Stay this Lawsuit on Abstention 

Grounds ..................................................................................................................10 

1. The Brillhart Standard Governs this Court’s Abstention 

Analysis......................................................................................................12 

a. All of the Matters in Controversy May Be Fully 

Litigated in the State Court Action ................................................14 

b. Plaintiffs Filed This Lawsuit in Reaction to the 

State Court Action..........................................................................15 

c. Plaintiffs Engaged in Forum Shopping in Bringing 

this Action ......................................................................................15 

d. Plaintiffs Will Not Be Harmed If This Court 

Dismisses Their Claims .................................................................16 

e. Allowing This Action to Proceed in This Court 

Would Not Serve the Purposes of Judicial Economy ....................16 

2. Alternatively, the Abstention Factors Set Forth in 

Colorado River Apply................................................................................17 



Page ii


TABLE OF CONTENTS (cont.) 

Page 

a. State-Law Issues Predominate Over Federal Questions 

in This Action ................................................................................18 

b. This Action Poses a Threat of Piecemeal and 

Inconsistent Adjudication ..............................................................19 

c. The Tarrant County District Court Obtained Jurisdiction 

Prior to This Court .........................................................................20 

d. Plaintiffs Filed This Lawsuit in Reaction to the State 

Court Action...................................................................................20 

D. This Court Should Dismiss or Stay This Lawsuit Pursuant to Its 

Inherent Power .......................................................................................................21 

E. This Court Should Dismiss This Lawsuit for Failure to State a 

Claim Upon Which Relief Can Be Granted ...........................................................22 

F. This Court Should Order Plaintiffs to Make a More Definite 

Statement................................................................................................................23 

V. PRAYER FOR RELIEF ....................................................................................................24 

CERTIFICATE OF CONFERENCE .............................................................................................26 

CERTIFICATE OF SERVICE ......................................................................................................26 



Page iii


TABLE OF AUTHORITIES 

Cases: 

Page 

Allen v. La. State Bd. of Dentistry, 

835 F.2d 100 (5th Cir. 1988) ...................................................................................................17, 20 

Alvarado Guerva v. INS, 

902 F.2d 394 (5th Cir. 1990) .........................................................................................................23 

Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 

398 U.S. 281 (1970) .......................................................................................................................14 

Black Sea Inv., Ltd. v. United Heritage Corp., 

204 F.3d 647 (5th Cir. 2000) ...................................................................................................12, 18 

Brillhart v. Excess Ins. Co. of Am., 

316 U.S. 491 (1942) .................................................................................................................12, 19 

Brim v. ExxonMobil Pipeline Co., 

213 F. App’x 303 (5th Cir. 2007) ....................................................................................................6 

Cadle Co. v. Whataburger, Inc., 

174 F.3d 599 (5th Cir. 1999) ................................................................................................... 10-11 

Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 

962 F.2d 698 (7th Cir. 1992) .........................................................................................................11 

City of Dallas v. Trammell, 

101 S.W.2d 1009 (Tex. 1937) ..........................................................................................................6 

City of Los Angeles v. Lyons, 

461 U.S. 95 (1983) ...........................................................................................................................8 

Collin Cnty., Tex. v. Homeowners Ass’n for Values Essential to Neighborhoods, 

915 F.2d 167 (5th Cir. 1990) .........................................................................................................13 

Colo. River Water Conservation Dist. v. U.S., 

424 U.S. 800 (1976) ........................................................................................................... 10, 17-20 

Exec. Software N. Am., Inc. v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 

24 F.3d 1545 (9th Cir. 1994), overruled on other grounds, 

Cal. Dept. of Water Res. v. Powerex Corp., 533 F.3d 1087 (9th Cir. 2008) ...................................7 

Fireman’s Fund Ins. Co. v. Hlavinka Equip. Co., 

No. Civ.A.H-05-2515, 2005 WL 2792383 (S.D. Tex. 2005) ........................................................15 



Page iv


TABLE OF AUTHORITIES (cont.) 

Cases: 

Page 

Garber v. Sir Speedy, Inc., 

930 F. Supp. 267 (N.D. Tex. 1995) ...............................................................................................20 

Gladden v. Roach, 

864 F.2d 1196 (5th Cir. 1989) .......................................................................................................23 

Gov’t Emps. Ins. Co. v. Dizol, 

133 F.3d 1220 (9th Cir. 1998) .......................................................................................................15 

Halmekangas v. State Farm Fire & Cas. Co., 

603 F.3d 290 (5th Cir. 2010) ...........................................................................................................4 

Hays Cnty. Guardian v. Supple, 

969 F.2d 111 (5th Cir. 1992) ...........................................................................................................7 

Horne v. Firemen’s Ret. Sys. of St. Louis, 

69 F.3d 233 (8th Cir. 1995) ..................................................................................................... 12-13 

Horne v. U.S., 

519 F.2d 51 (5th Cir. 1975) ...........................................................................................................13 

Itel Corp. v. M/S Victoria U. (Ex Pishtaz Iran), 

710 F.2d 199 (5th Cir. 1983) ...................................................................................................21, 22 

James v. Nocona Gen. Hosp., 

No. 7:02-CV-0291-R, 2004 WL 2002425 (N.D. Tex. 2004) ..........................................................7 

Katzenbach v. McClung, 

379 U.S. 294 (1964) .......................................................................................................................13 

Landis v. N. Am. Co., 

299 U.S. 248 (1936) .......................................................................................................................21 

Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 

954 F.2d 1054 (5th Cir. 1992), rev’d on other grounds & remanded, 507 U.S. 163 (1993).........23 

Melo v. Gardere Wynne Sewell, 

No. 3-04-CV-2238-BD, 2005 WL 991600 (N.D. Tex. Apr. 21, 2005) .............................11, 21, 22 

Microsource, Inc. v. Superior Signs, Inc., 

No. CIV.A. 3:97-CV-2733-G, 1998 WL 119537 (N.D. Tex. 1998) .............................................21 



Page v



Cases: 

Page 

MidTexas Int’l Ctr., Inc. v. Myronowicz, 

Civil Action No. 3:05-CV-1957-R, 2006 WL 2285581 (N.D. Tex. Aug. 9, 2006) .................10, 11 

Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 

460 U.S. 1 (1983) ...............................................................................................................17, 18, 20 

Mourik Int’l B.V. v. Reactor Servs. Int’l, Inc., 

182 F. Supp. 2d 599 (S.D. Tex. 2002) .....................................................................................18, 20 

Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 

538 U.S. 803 (2003) .........................................................................................................................8 

New Eng. Ins. Co. v. Barnett, 

561 F.3d 392 (5th Cir. 2009) ................................................................................................... 11-12 

Pearson v. Holder, 

No. 3:09-CV-0682-O-BH, 2009 WL 2444748 (N.D. Tex. Aug. 7, 2009) ..................................8, 9 

PPG Indus., Inc. v. Cont’l Oil Co., 

478 F.2d 674 (5th Cir. 1973) ....................................................................................................10, 22 

Primerica Life Ins. Co. v. Twyman, 

No. 3-01-CV-1659-BD, 2002 WL 83750 (N.D. Tex. Jan. 14, 2002) ............................................22 

Reno v. Catholic Soc. Servs., Inc., 

509 U.S. 43 (1993) .......................................................................................................................8, 9 

Republicbank Dallas, Nat’l Assoc. v. McIntosh, 

828 F.2d 1120 (5th Cir. 1987) .......................................................................................................10 

Rhodes v. Prince, 

Civil Action No. 3:05-CV-2343-D, 2010 WL 3565235 (N.D. Tex. 2010) ...............................6, 13 

Roark & Hardee LP v. City of Austin, 

522 F.3d 533 (5th Cir. 2008) ...........................................................................................................8 

Romine v. Compuserve Corp., 

160 F.3d 337 (6th Cir. 1998) .........................................................................................................11 

St. Paul Ins. Co. v. Trejo, 

39 F.3d 585 (5th Cir. 1994) ...........................................................................................................14 



Page vi



Cases: 

Page 

Saucier v. Aviva Life & Annuity Co., 

No. 11-60503, 2012 WL 5658711 (5th Cir. Nov. 16, 2012) .........................................................19 

Severance v. Patterson, 

566 F.3d 490 (5th Cir. 2009) ...........................................................................................................8 

Sherwin-Williams Co. v. Holmes Cnty., 

343 F.3d 383 (5th Cir. 2003) .............................................................................................12, 14, 16 

Skelly Oil Co. v. Phillips Petroleum Co., 

339 U.S. 667 (1950) .......................................................................................................................13 

Sisk v. Tex. Parks & Wildlife Dep’t., 

644 F.2d 1056 (5th Cir. 1981) .......................................................................................................23 

Southwind Aviation, Inc. v. Bergen Aviation, Inc., 

23 F.3d 948 (5th Cir. 1994) .....................................................................................................12, 14 

Tex. v. U.S., 

497 F.3d 491 (5th Cir. 2007) ...........................................................................................................8 

Travelers Ins. Co. v. La. Farm Bureau Fed’n, Inc., 

996 F.2d 774 (5th Cir. 1993) .........................................................................................................13 

United Mine Workers of Am. v. Gibbs, 

383 U.S. 715 (1966) .....................................................................................................................6, 7 

U.S. v. Fisher–Otis Co., 

496 F.2d 1146 (10th Cir. 1974) .....................................................................................................13 

USAA Cas. Ins. Co. v. Dydek, 

No. Civ.A. SA-05-333-OG, 2006 WL 3068890 (W.D. Tex.. 2006) .............................................15 

Walker Centrifuge Servs., L.L.C. v. D & D Power, L.L.C., 

550 F. Supp. 2d 620 (N.D. Tex. 2008) ....................................................................................20, 17 

Will v. Calvert Fire Ins. Co., 

437 U.S. 655 (1978) .......................................................................................................................10 

Wilton v. Seven Falls Co., 

515 U.S. 277 (1995) .................................................................................................................12, 13 



Page vii



Cases: 

Page 

Woodson v. Surgitek, Inc., 

57 F.3d 1406 (5th Cir. 1995) .........................................................................................................21 

Rules and Statutes: 

28 U.S.C. § 1367 .......................................................................................................................... 4-6 

Fed. R. Civ. P. 12 .............................................................................................................8, 9, 22, 23 

Op. Tex. Att’y Gen. No. GA-0615 (2008) .......................................................................................5 

Tex. R. Civ. P. 60 ...........................................................................................................................16 



Page viii


IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

RICHARD VAN HOUTEN, JR. AND ) 

STEPHEN HALL, ) 

) 

Plaintiffs, ) 

v. ) CIVIL ACTION NO. 4:12-cv-00826-Y 

) 

CITY OF FORT WORTH, TEXAS, ) 

MUNICIPAL CORPORATION ) 

) 

Defendant. ) 


FOR A MORE DEFINITE STATEMENT, AND BRIEF IN SUPPORT THEREOF 

Defendant City of Fort Worth, Texas (the “City”) respectfully files this Motion to 

Dismiss or Stay, Alternative Motion for a More Definite Statement, and Brief in Support 

Thereof, asking this Court to decline to exercise supplemental jurisdiction over the state-law 

claims asserted by Richard Van Houten, Jr. and Stephen Hall (“Plaintiffs”), to dismiss or stay 

this lawsuit, or, alternatively, to order Plaintiffs to provide a more definite statement. 

I. 

PRELIMINARY STATEMENT 

On October 23, 2012, the City filed a declaratory judgment action in Tarrant County 

District Court styled City of Fort Worth v. Employees’ Retirement Fund of the City of Fort Worth 

(the “State Court Action”), in which the parties are litigating issues nearly identical to those in 

this case under identical facts. Specifically, both actions concern the constitutionality of recently 

adopted amendments to the City’s retirement ordinance. At the time Plaintiffs filed the instant 

lawsuit, the State Court Action was pending before the 342nd Judicial District in Tarrant County. 

On the same day that Plaintiffs filed the instant lawsuit, the defendant in the State Court 

Action—the Employees’ Retirement Fund of the City of Fort Worth (the “Fund”)—wrongfully 


FOR A MORE DEFINITE STATEMENT, AND BRIEF IN SUPPORT Page 1


removed the State Court Action to this Court on the basis of federal question jurisdiction. The 

only federal questions in the State Court Action were raised by the Fund in its affirmative 

defenses. Because the City pled only state-law causes of action in its well-pleaded complaint, 

and a defense that raises a federal question is inadequate to confer jurisdiction, the City filed a 

motion to remand the State Court Action back to Tarrant County District Court. [APP 082-093]. 

This is a reactive lawsuit filed for the sole purpose of avoiding state court jurisdiction. 

Plaintiffs filed the instant lawsuit instead of intervening in the State Court Action because they 

knew that the requirements for removal jurisdiction could not be satisfied as a result of the City’s 

well-pleaded complaint. 

Moreover, Plaintiffs filed a Complaint for Injunctive Relief and 

Damages instead of asserting claims for declaratory judgment in a clear attempt to avoid 

dismissal under the Brillhart standard, the Declaratory Judgment Act, or the Anti-Injunction Act. 

Plaintiffs cannot be permitted to manipulate the judicial process and obtain an improper result. 

A. Factual Background. 

II. 

BACKGROUND 

The Fund is a defined benefit plans for the employees of the City. A defined benefit plan 

guarantees that when a member retires, he will receive a specific monthly benefit for his lifetime 

that is calculated from a defined formula. Approximately 10,000 City employees—6,000 active 

and 3,600 retired—currently participate in the Fund. Plaintiff Van Houten is an active member 

of the Fund, and Plaintiff Hall is a participant in the Fund’s Deferred Retirement Option Plan. 

Over the past ten years, the Fund has not received sufficient income from investment 

returns and contributions to cover its pension obligations. In order to ensure the Fund’s longterm 

viability, the City Manager submitted a proposal to the City Council, which suggested 

amendments to the City’s retirement ordinance that would prospectively reduce benefits for both 




current and future general employees and police officers. The first part of the City Manager’s 

proposal set forth amendments to the cost-of-living adjustment (the “COLA”), and the second 

part set forth comprehensive reductions to the defined benefits calculation. [APP 009-010]. The 

City Council voted to approve and adopt the prospective benefit reductions and COLA 

amendments proposed by the City Manager. 

These amendments apply prospectively only and do not affect benefits already accrued 

by current police officers and current general employees. 

Because some of the benefit 

reductions do affect future service of current employees, the City will use a bifurcated 

calculation to determine defined benefits upon retirement of current employees. [APP 011]. 

This bifurcated calculation will protect the affected employees’ accrued benefits. 

B. Procedural Background. 

The City filed the State Court Action in Tarrant County District Court, seeking a 

declaration that the benefit reductions adopted by the City Council comply with Article XVI, 

Section 66(d) of the Texas Constitution. [APP 001-027]. Plaintiffs and the Fund subsequently 

worked together in an attempt to divest Tarrant County District Court of its proper jurisdiction. 

On November 19, 2012, three things happened: (1) the City received, by mail, the Fund’s 

Original Answer in the State Court Action, which raised affirmative defenses based on alleged 

violations of the United States Constitution (Article I, Section 10; 5th and 14th Amendments), 42 

U.S.C. § 1983, and the Texas Constitution (Article XVI, Section 66(d); Article I, Sections 16, 

17, 19, and 29); (2) Plaintiffs filed the instant federal lawsuit, alleging violations of the United 

States Constitution (Article I, Section 10; 5th and 14th Amendments), 42 U.S.C. § 1983, and the 

Texas Constitution (Article XVI, Section 66(d); Article I, Sections 16, 17, 19, and 29); and (3) 

the Fund removed the State Court Action to this Court. [Dkt. No. 1; APP 028-081]. 




III. 

SUMMARY OF THE ARGUMENT 

For a number of reasons, Plaintiffs’ claims should not be permitted to go forward in this 

Court. First, the Court should decline to exercise supplemental jurisdiction because a novel and 

complex issue of state law controls both this action and the State Court Action. Second, the 

Court should either dismiss or stay the remaining claims pending the outcome of the State Court 

Action. Not only are Plaintiffs’ claims premature and insufficiently pled, but also this case 

creates a very real threat of piecemeal litigation and inconsistent adjudications between the state 

and federal forums and imposes needless and duplicative expenses associated with prosecuting 

and defending two parallel cases. Moreover, Plaintiffs deliberately engaged in forum shopping 

by bringing this independent and parallel federal action. Accordingly, the Court should dismiss 

or stay this case pending the outcome of the State Court Action or, alternatively, order Plaintiffs 

to replead and make a more definite statement. 

IV. 

ARGUMENT AND AUTHORITIES 

A. This Court Should Decline to Exercise Supplemental Jurisdiction Over Plaintiffs’ 

State-Law Claims and Dismiss Those Claims Without Prejudice. 

Supplemental jurisdiction extends a federal district court’s jurisdiction to claims that are 

within the same case or controversy as other claims over which the court has original 

jurisdiction. 28 U.S.C. § 1367. In other words, before a federal court can exercise supplemental 

jurisdiction, it must have either federal question or diversity jurisdiction. Halmekangas v. State 

Farm Fire & Cas. Co., 603 F.3d 290, 293 (5th Cir. 2010). Generally, a court must exercise 

supplemental jurisdiction over state-law claims. 28 U.S.C. § 1367(a). However, a federal court 

may decline to exercise supplemental jurisdiction under the following circumstances: (1) when 

the claim raises a novel or complex issue of state law; (2) when the state-law claim substantially 




predominates over any claims over which the court has original jurisdiction; (3) when all claims 

over which the federal court has original jurisdiction have been dismissed; and (4) when the 

state-law claim presents exceptional circumstances, and there are other compelling reasons for 

the court to decline jurisdiction. Id. at § 1367(c)(1)-(4). Because three of the four instances set 

forth in 28 U.S.C. § 1367(c) exist in this lawsuit, this Court should decline to exercise 

supplemental jurisdiction over Plaintiffs’ state-law claims and dismiss those claims without 

prejudice pursuant to Federal Rule of Civil Procedure 12(b)(1). 

First, Plaintiffs raise a novel and complex issue of state law. Specifically, Plaintiffs argue 

that the City violated Article XVI, Section 66(d) of the Texas Constitution when it adopted 

amendments to the retirement ordinance that “directly and substantially impair, diminish and 

reduce the accrued retirement benefits of vested active and retired members of the Fund[.]” 

[Dkt. No. 1 at 38]. Plaintiffs further argue that these amendments violate the Texas Bill of 

Rights and United States Constitution because they impair Plaintiffs’ alleged contract with the 

City, result in a taking of private property without just compensation, and deprive Plaintiffs of 

their property without due course of the law. [Id. at 30-37, 41-50]. To find that the City has 

violated the Texas Bill of Rights or the United States Constitution, this Court first would have to 

find that the City violated Article XVI, Section 66(d)—for that provision is the foundation for 

Plaintiffs’ claimed right to “benefits accrued.” Thus, in order to resolve any of Plaintiffs’ claims, 

this Court would be required to construe the phrase “benefits accrued” in Article XVI, Section 

66(d) before any Texas court has had the opportunity to do so. See Op. Tex. Att’y Gen. No. GA- 

0615 (2008) (“No Texas court has addressed this issue or otherwise construed article XVI, 

section 66.”). Because this important issue of Texas constitutional law presents a matter of first 

impression, this Court should decline to exercise supplemental jurisdiction. 28 U.S.C. § 




1367(c)(1); Brim v. ExxonMobil Pipeline Co., 213 F. App’x 303, 305 (5th Cir. 2007) (declining 

to exercise supplemental jurisdiction over state-law claim where “[n]o Texas court . . . has 

decided a case on this issue.”); Rhodes v. Prince, Civil Action No. 3:05-CV-2343-D, 2010 WL 

3565235, at *6 (N.D. Tex. 2010) (declining supplemental jurisdiction because, “[g]iven that the 

case involves an unsettled area of state law, this court, by retaining jurisdiction and proceeding to 

a final judgment on the merits, risks reaching the wrong result.”). 

Second, the state-law claims asserted in Plaintiffs’ Original Complaint predominate over 

the federal claims. As explained, Plaintiffs’ claims under the Texas Bill of Rights and United 

States Constitution arise directly from Plaintiffs’ construction of Article XVI, Section 66(d) of 

the Texas Constitution. [Dkt. No. 1 18]. Apart from the alleged right to receive “benefits 

accrued” provided under Article XVI, Section 66(d) of the Texas Constitution, Plaintiffs have no 

right to receive any retirement benefits. Indeed, Article XVI, Section 66 was proposed and 

adopted in direct response to the Texas Supreme Court’s 1937 decision in City of Dallas v. 

Trammell, 101 S.W.2d 1009 (Tex. 1937). In that case, the Texas Supreme Court held that 

pensioners have no right to receive pension benefits, whether those benefits have accrued or not: 

In our opinion, the rule that the right of a pensioner to receive monthly payments 

from the pension fund after retirement from service, or after his right to 

participate in the fund has accrued, is predicated upon the anticipated continuance 

of existing laws, and is subordinate to the right of the Legislature to abolish the 

pension system, or diminish the accrued benefits of the pensioners thereunder, is 

undoubtedly the sound rule to be adopted. 

City of Dallas, 101 S.W.2d at 1013. This opinion remains good law to the extent it is not 

inconsistent with Article XVI, Section 66. Because this Court cannot reach Plaintiffs’ federallaw 

claims without first deciding this novel and complex issue of state law, Plaintiffs’ state law 

claims substantially predominate over the federal claims, and this Court should decline to 

exercise supplemental jurisdiction. 28 U.S.C. § 1367(c)(2); United Mine Workers of Am. v. 




Gibbs, 383 U.S. 715, 726-27 (1966) (“[I]f it appears that the state issues substantially 

predominate, whether in terms of proof, of the scope of the issues raised, or of the 

comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice 

and left for resolution to state tribunals.”); James v. Nocona Gen. Hosp., No. 7:02-CV-0291-R, 

2004 WL 2002425, at *13 (N.D. Tex. 2004) (declining supplemental jurisdiction where “[s]tate 

law determines the scope and extent of the duties of a hospital[.]”). 

Finally, the state-law claims asserted by Plaintiffs present exceptional circumstances, and 

there are other compelling reasons for this Court to decline jurisdiction. The phrase “other 

compelling reasons” refers to those reasons that lead a court to conclude that declining 

jurisdiction best accommodates the values of judicial economy, convenience, fairness, and 

comity. Exec. Software N. Am., Inc. v. U.S. Dist. Ct. for the Cent. Dist. of Cal., 24 F.3d 1545, 

1557 (9th Cir. 1994), overruled on other grounds, Cal. Dept. of Water Res. v. Powerex Corp., 

533 F.3d 1087 (9th Cir. 2008). This is a reactive lawsuit filed for the sole purpose of avoiding 

state court jurisdiction. Plaintiffs filed the instant lawsuit instead of intervening in the State 

Court Action because they knew that the requirements for removal jurisdiction could not be 

satisfied as a result of the City’s well-pleaded complaint. Indeed, the Fund asserted affirmative 

defenses in the State Court Action that raise exactly the same issues as the claims asserted by 

Plaintiffs herein. Because “[a]djudicating state-law claims in federal court while identical claims 

are pending in state court would be a pointless waste of judicial resources[,]” this Court should 

decline to exercise supplemental jurisdiction and dismiss those claims pursuant to Federal Rule 

of Civil Procedure 12(b)(1). Hays Cnty. Guardian v. Supple, 969 F.2d 111, 125 (5th Cir. 1992); 

28 U.S.C. § 1367(c)(4). 




B. This Court Should Dismiss this Lawsuit Because Plaintiffs’ Claims are Not Ripe. 

Plaintiffs’ claims for injunctive relief and damages are not ripe for adjudication and 

should be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The 

ripeness doctrine primarily flows “from Article III of the Constitution, which limits the federal 

judicial power to the resolution of cases and controversies.” Pearson v. Holder, No. 3:09-CV- 

0682-O-BH, 2009 WL 2444748, at *3 (N.D. Tex. Aug. 7, 2009) (quoting Tex. v. U.S., 497 F.3d 

491, 496 (5th Cir. 2007)). The case-or-controversy requirement mandates that asserted claims 

are ripe before a federal court exercises jurisdiction over them. Id. (citing Nat’l Park Hospitality 

Ass’n v. Dep’t of Interior, 538 U.S. 803, 807-08 (2003); Reno v. Catholic Soc. Servs., Inc., 509 

U.S. 43, 57-58 (1993)). Given this Article III requirement, “a ripeness inquiry is often required 

when a party is seeking pre-enforcement review of a law or regulation.” Id. (quoting Roark & 

Hardee LP v. City of Austin, 522 F.3d 533, 544 (5th Cir. 2008)). 

To satisfy the “case or controversy” requirement of Article III, a “plaintiff must show that 

he has sustained or is immediately in danger of sustaining some direct injury as the result of the 

challenged official conduct and the injury or threat of injury must be both real and immediate, 

not conjectural or hypothetical.” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 

(1983) & citing Severance v. Patterson, 566 F.3d 490, 500 (5th Cir. 2009) (recognizing several 

factors relevant to the ripeness inquiry, including whether the controversy has a direct and 

immediate impact on the plaintiff)). The key considerations are whether the issues are fit for 

judicial decision and the level of hardship to the parties resulting from withholding court 

consideration. Id. (citing Roark & Hardee LP, 522 F.3d at 545). With respect to the latter 

consideration, dismissal on grounds of ripeness is appropriate when “no irremediabl[y] adverse 




consequences flow from requiring a later challenge.” Id. (quoting Catholic Soc. Servs., Inc., 509 

U.S. at 58). 

Plaintiffs filed a Complaint for Injunctive Relief and Damages in this Court. 

Specifically, Plaintiffs ask this court to “find Ordinance 20471-10-2012 to be void and of no 

effect to Plaintiffs as a violation of the above cited federal and state constitutional provisions[,]” 

“enjoin the City from any attempt to enforce the provisions of the subject Ordinance as it relates 

to vested and retired members of the Fund[,]” and “restore the Plaintiffs to the status quo ante[.]” 

[Dkt. No. 1 51(C)-(D)]. However, the amendments to the City’s retirement ordinance will not 

affect current members of the Fund, like Plaintiffs, until October 2013 at the earliest. [APP 094]. 

In other words, for at least the next ten months, Plaintiffs will experience no change in their 

retirement benefits. Until Plaintiffs have been harmed, there is no “status quo ante” for this 

Court to “restore,” and unless Plaintiffs can demonstrate a real and immediate threat of injury, 

this Court should not “enjoin the City from any attempt to enforce the provisions of the subject 

Ordinance as it relates to vested and retired members of the Fund.” [Dkt. No. 1 51(C)-(D)]; 

Pearson, 2009 WL 2444748, at *3. 

Accordingly, the alleged controversy created by the 

amendments has no immediate impact on Plaintiffs, and the withholding of court consideration 

until a later date will cause them no more than insignificant hardship. Pearson, 2009 WL 

2444748, at *4. 

Because this lawsuit—which seeks both (1) to enjoin enforcement of the amendments 

and (2) an award of damages—is premature, this Court should dismiss for lack of subject matter 

jurisdiction. Fed. R. Civ. P. 12(b)(1). 




C. This Court Should Dismiss or Stay this Lawsuit on Abstention Grounds. 

Even if the Court finds that Plaintiffs’ claims are ripe, it should abstain from hearing the 

dispute. “While it is well established that ‘the pendency of an action in the state court is no bar 

to proceedings concerning the same matter in the [f]ederal court having jurisdiction,’ McClellan 

v. Carland, 217 U.S. 268, 282 (1910), it is equally well settled that a district court is ‘under no 

compulsion to exercise that jurisdiction,’ Brillhart v. Excess Ins. Co., 316 U.S. 491, 494 (1942), 

where the controversy may be settled more expeditiously in state court.” 1 

Will v. Calvert Fire 

Ins. Co., 437 U.S. 655, 662-63 (1978). Every federal court has inherent power to either dismiss 

or stay a case in favor of a parallel state court case based on considerations of “wise judicial 

administration, giving regard to conservation of judicial resources and comprehensive 

disposition of litigation.” Colo. River Water Conservation Dist. v. U.S., 424 U.S. 800, 817 

(1976). A dismissal or stay pending the outcome of litigation in another court involving the 

same or controlling issues is an appropriate means of avoiding unnecessary duplication of effort 

and waste of judicial resources. See PPG Indus., Inc. v. Cont’l Oil Co., 478 F.2d 674, 682 (5th 

Cir. 1973) (recognizing that “duplicate litigation in federal and state courts abrades to some 

extent the spirit of federal-state comity . . . [and] concurrent litigation of the same controversy is 

perceived as interference”). 

For abstention to be warranted, the state and federal lawsuits must be parallel. Exact 

parallelism, however, is not required. MidTexas Int’l Ctr., Inc. v. Myronowicz, Civil Action No. 

3:05-CV-1957-R, 2006 WL 2285581, at *3 (N.D. Tex. Aug. 9, 2006) (citing Republicbank 

1 

Even if Judge McBryde were to deny the City’s Motion to Remand the State Court Action, there would be 

two parallel federal actions involving the same issues and substantially the same parties. Unlike parallel state and 

federal proceedings, if two federal cases involving the same controversy are pending at the same time, one of the 

two should be dismissed. Colo. River Water Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976). Generally, the 

“first-to-file rule” determines which case should be dismissed. Cadle Co. v. Whataburger, Inc., 174 F.3d 599, 603 

(5th Cir. 1999). 




Dallas, Nat’l Assoc. v. McIntosh, 828 F.2d 1120, 1121 (5th Cir. 1987) (acknowledging that 

precise identity of parties and issues is unnecessary)); Melo v. Gardere Wynne Sewell, No. 3-04- 

CV-2238-BD, 2005 WL 991600, at *2 (N.D. Tex. Apr. 21, 2005) (citing Romine v. Compuserve 

Corp., 160 F.3d 337, 340 (6th Cir. 1998)). Instead, courts consider whether the actions involve 

“substantially the same parties” litigating “substantially the same issues.” Melo, 2005 WL 

991600, at *1 (citing Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 698, 700 

(7th Cir. 1992)); Myronowicz, 2006 WL 2285581, at *3. 

Thus, two actions may involve 

different parties and different causes of action and still be parallel so long as there is a substantial 

similarity between the two actions. See Melo, 2005 WL 991600, at *1 (finding actions parallel 

despite lack of precise identity between the parties); Caminiti, 962 F.2d at 700 (finding 

difference in the parties insufficient to destroy the parallel nature of the two substantially similar 

proceedings); Myronowicz, 2006 WL 2285581, at *4 (finding parallelism where both cases are 

based upon the same factual predicate and purpose, and the dispute in the federal lawsuit would 

effectively be resolved by the disposition of the state court lawsuit). 

This case and the first-filed State Court Action involve similar parties and issues. The 

City is the plaintiff in the State Court Action and the defendant in this case. Moreover, the issues 

raised by affirmative defense in the State Court Action are identical to those asserted as 

affirmative claims in this federal lawsuit. Litigating in both forums would be inconvenient, 

burdensome, and costly for the City. More importantly, it would undermine judicial economy 

and risk inconsistent adjudication of the claims. Accordingly, abstention is appropriate, and this 

action should be dismissed or stayed pending the outcome of the State Court Action. 

Courts in the Fifth Circuit apply one of two tests in deciding whether to stay a case 

because of an ongoing parallel state proceeding. New Eng. Ins. Co. v. Barnett, 561 F.3d 392, 




395 (5th Cir. 2009). When considering whether to abstain from exercising jurisdiction a 

declaratory judgment action, courts apply the standard provided in Brillhart v. Excess Insurance 

Company of America, 316 U.S. 491 (1942). Barnett, 561 F.3d at 395 (quoting Southwind 

Aviation, Inc. v. Bergen Aviation, Inc., 23 F.3d 948, 950 (5th Cir. 1994) (per curiam)). Under 

Brillhart, a district court has “broad discretion in determining whether to hear an action brought 

pursuant to the Declaratory Judgment Act.” Id. In cases involving claims for coercive relief, 

courts analyze a defendant’s request for abstention pursuant to the standards set forth in 

Colorado River Water Conservation District v. United States. Black Sea Inv., Ltd. v. United 

Heritage Corp., 204 F.3d 647, 652 (5th Cir. 2000) (citing 424 U.S. 800). 

1. The Brillhart Standard Governs this Court’s Abstention Analysis. 

The Declaratory Judgment Act, 28 U.S.C. § 2201(a), “is an enabling act, which confers 

discretion on the courts rather than an absolute right on a litigant.” Sherwin-Williams Co. v. 

Holmes Cnty., 343 F.3d 383, 389 (5th Cir. 2003) (citing Wilton v. Seven Falls Co., 515 U.S. 277, 

287 (1995)). Abstention from exercising jurisdiction over a declaratory judgment action is 

appropriate when another suit is pending in state court in which all the matters in controversy 

between the parties could be fully adjudicated. See Brillhart, 316 U.S. at 494-95. In other 

words, a district court “should ascertain whether the questions in controversy between the parties 

to the federal suit . . . can be better settled in the proceeding pending in the state court.” 

Brillhart, 316 U.S. at 494. 

Plaintiffs filed a Complaint for Injunctive Relief and Damages in this Court. In reality, 

however, Plaintiffs seek declaratory relief. “The essential distinction between a declaratory 

judgment action and an action seeking other relief is that in the former no actual wrong need 

have been committed or loss have occurred in order to sustain the action.” Horne v. Firemen’s 




Ret. Sys. of St. Louis, 69 F.3d 233, 236 (8th Cir. 1995) (citing U.S. v. Fisher–Otis Co., 496 F.2d 

1146, 1151 (10th Cir. 1974)). In other words, a declaratory judgment action “allows a party to 

obtain an ‘early adjudication of an actual controversy’” and “helps the parties avoid damages that 

might otherwise accrue.” Rhodes, 2009 WL 1885620, at *5 (quoting Collin Cnty., Tex. v. 

Homeowners Ass’n for Values Essential to Neighborhoods, 915 F.2d 167, 170 (5th Cir. 1990) & 

citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-72 (1950)). Here, Plaintiffs’ 

claims relate to amendments that will not take effect until October 2013. [APP 094]. Although 

Plaintiffs’ constitutional challenges to this ordinance could be asserted properly as claims for 

declaratory relief, Plaintiffs’ claims for injunctive relief and damages are premature. 2 

See infra 

at sec. IV(D). Accordingly, this Court either should dismiss Plaintiffs’ claims for injunctive 

relief and damages as premature, see supra at sec. IV(B), or treat them as claims for declaratory 

judgment. 3 

If this Court decides to treat Plaintiffs’ claims as claims for declaratory relief, Brillhart 

controls the abstention analysis. In applying the Brillhart standard, Fifth Circuit courts consider 

the following seven non-exclusive factors: (1) whether there is a pending state action in which all 

2 

It is obvious why Plaintiffs did not assert claims for declaratory judgment—to avoid application of the 

Brillhart standard and the Anti-Injunction Act. The Brillhart standard, which governs the dismissal or stay of 

declaratory judgment actions on abstention grounds, is less rigorous than the “exceptional circumstances” test in 

Colorado River due to the discretionary nature of the Declaratory Judgment Act. Wilton v. Seven Falls Co., 515 

U.S. 277, 287 (1995). And the Anti-Injunction Act, which provides that a federal court may not grant an injunction 

to stay state court proceedings, applies to claims for declaratory relief because “when a state lawsuit is pending, 

more often than not, issuing a declaratory judgment will be tantamount to issuing an injunction—providing the 

declaratory plaintiff an end run around the requirements of the Anti-Injunction Act.” Travelers Ins. Co. v. La. Farm 

Bureau Fed’n, Inc., 996 F.2d 774, 776 (5th Cir. 1993). Plaintiffs’ ulterior motive is evidenced by the facts that the 

claims for injunctive relief and damages (1) are premature and (2) are identical in substance to the Fund’s defensive 

claims for declaratory judgment in the State Court Action. 

3 

Several courts, including the Fifth Circuit, have demonstrated a willingness to treat requests for various 

other types of relief as declaratory judgment suits. See, e.g., Katzenbach v. McClung, 379 U.S. 294, 295 (1964) 

(“we may and do consider this complaint [for injunctive relief] as an application for a declaratory judgment under 28 

U.S.C. §§ 2201 and 2202”); Horne v. U.S., 519 F.2d 51, 52 (5th Cir. 1975) (barring suit “seeking [tax] refund and 

also requesting that the deficiency be declared void” because declaratory judgments may not issue in tax cases and 

“plaintiff's request that the deficiency assessment be declared void is an attempt to have the Court issue a declaratory 

judgment”). 




the matters in controversy may be fully litigated; (2) whether the plaintiff filed suit in 

anticipation of or in reaction to a lawsuit filed by the defendant; (3) whether the plaintiff engaged 

in forum shopping in bringing the suit; (4) whether possible inequities in allowing the 

declaratory plaintiff to gain precedence in time or to change forums exist; (5) whether the federal 

court is a convenient forum for the parties and witnesses; (6) whether retaining the lawsuit in 

federal court would serve the purposes of judicial economy; and (7) whether the federal court is 

being called on to construe a state judicial decree involving the same parties and entered by the 

court before whom the parallel state suit between the same parties is pending. St. Paul Ins. Co. 

v. Trejo, 39 F.3d 585, 590-91 (5th Cir. 1994). In applying these factors, it is not necessary that 

all factors weigh in favor of abstention for the Court to find that abstention is appropriate. 

Sherwin-Williams Co., 343 F.3d at 390. The Court must simply balance the factors, keeping the 

basic principles of federalism, fairness and efficiency in mind. Id. The following factors heavily 

favor abstention in the instant action. 

a. All of the Matters in Controversy May Be Fully Litigated in the State 

Court Action. 

“Abstention from a declaratory judgment action is ordinarily appropriate when the state 

offers an adequate alternative forum in which to resolve the particular dispute.” Southwind 

Aviation, 23 F.3d at 950. The State Court Action is currently pending in Tarrant County District 

Court—a court in which all of Plaintiffs’ claims may be fully litigated. In fact, prior to removing 

the State Court Action, the Fund asserted affirmative defenses that are substantively identical to 

the claims asserted by Plaintiffs herein. It is a well-established principle of federalism that 

litigants may assert their federal defenses in state court because state courts are capable of 

adjudicating those defenses, subject always to final review by the United States Supreme Court. 

Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287 (1970). Because the 




State Court Action offers an adequate alternative forum for resolving Plaintiffs’ claims, this 

factor weighs in favor of abstention. 

b. Plaintiffs Filed This Lawsuit in Reaction to the State Court Action. 

This is a reactive lawsuit filed for the sole purpose of avoiding state court jurisdiction. 



well-pleaded complaint. Indeed, the affirmative defenses asserted by the Fund in the State Court 

Action are substantively identical to the claims asserted by Plaintiffs herein. Because “federal 

courts should generally decline to entertain reactive declaratory actions[,]” this factor weighs in 

favor of abstention. Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir. 1998). 

c. Plaintiffs Engaged in Forum Shopping in Bringing this Action. 

At the time Plaintiffs filed the instant action, they were fully apprised of the State Court 

Action and the issues involved therein. Yet, Plaintiffs chose to ignore the ongoing proceedings 

and involve an entirely different court to resolve the same issues. Because plaintiffs normally 

are entitled to select the federal forum, this abstention factor does not require proof of an 

improper motive in selectively shopping the forum. See USAA Cas. Ins. Co. v. Dydek, No. 

Civ.A. SA-05-333-OG, 2006 WL 3068890, at *3 (W.D. Tex.. 2006) (“While its choice of forum 

was not improper or ill-motivated, [the third] Trejo factor is met in this case.”); Fireman’s Fund 

Ins. Co. v. Hlavinka Equip. Co., No. Civ.A.H-05-2515, 2005 WL 2792383, at *3 (S.D. Tex. 

2005) (“Notwithstanding the absence of any improper motives . . . the first three Trejo factors 

favor dismissing this case in favor of the state court lawsuit”). Rather, the mere fact that 

Plaintiffs chose to bring this lawsuit with full awareness of the State Court Action means that it 

engaged in forum shopping—a fact that weighs in favor of abstention. 




d. Plaintiffs Will Not Be Harmed If This Court Dismisses Their Claims. 

Plaintiffs will not be harmed if the federal court dismisses this case in favor of the State 

Court Action. Plaintiffs filed their Complaint less than thirty days ago, and no additional actions 

have been taken, other than this Motion to Dismiss. Conversely, the City will be severely 

burdened if it is forced to litigate the same underlying issues in two different forums. Moreover, 

if this Court dismisses the instant action and Plaintiffs would like to be involved in the State 

Court Action, they can seek to intervene. See Tex. R. Civ. P. 60. Because Plaintiffs will not be 

harmed if this Court dismisses their claims, this factor weighs in favor of abstention. 

e. Allowing This Action to Proceed in This Court Would Not Serve the 

Purposes of Judicial Economy. 

Judicial economy requires abstention in this case. It is clear that this action and the State 

Court Action involve substantially the same parties litigating substantially the same issues. 

Allowing this action to proceed will force the City to spend a substantial amount of time, money, 

and resources adjudicating roughly the same issues presented in the State Court Action. More 

importantly, this Court will have to allocate some of its limited judicial resources to adjudicate 

claims and disputes that will be addressed in the State Court Action. Finally, allowing this case 

to proceed presents a risk that the state and federal court proceedings could produce inconsistent 

adjudications. See Sherwin-Williams Co., 343 F.3d at 391 (“[a] federal court should be less 

inclined to hear a case if necessary parties are missing from the federal forum, because that leads 

to piecemeal litigation and duplication of effort in state and federal courts.”) 

Inconsistent 

adjudication is the ultimate waste of judicial resources. 

Therefore, this action should be 

dismissed in favor of the State Court Action, where there would be no risk of inconsistent 

adjudications and where the parties could focus their time, money, and efforts to more efficiently 

proceed to a final resolution of their disputes. 




Because all of the applicable Trejo factors weigh in favor of abstention, this Court should 

dismiss or stay this case pending the outcome of the State Court Action. 

2. Alternatively, the Abstention Factors Set Forth in Colorado River Apply. 

If this Court disagrees that Plaintiffs’ claims for injunctive relief and damages should be 

treated as claims for declaratory judgment, the Colorado River abstention doctrine applies and 

supports either dismissing or staying this lawsuit. Under the Colorado River abstention doctrine, 

a district court must consider whether a parallel federal court case presents exceptional 

circumstances in which considerations of wise judicial administration—in particular, the need to 

conserve judicial resources and promote comprehensive disposition of litigation—counsel 

against exercising jurisdiction. Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 

1, 15 (1983); Colorado River, 424 U.S. at 817. 

The Supreme Court has set forth six instructive factors, emphasizing that no single factor 

is determinative: (1) assumption by either court of jurisdiction over a res; (2) the relative 

inconvenience of the forums; (3) the avoidance of piecemeal litigation; (4) the order in which 

jurisdiction was obtained by the concurrent forums; (5) whether and to what extent federal law 

provides the rules of decision on the merits; and (6) the adequacy of the state proceedings in 

protecting the rights of the parties invoking federal jurisdiction. Cone, 460 U.S. at 16; Colorado 

River, 424 U.S. at 818. While not a per se factor delineated in the Colorado River abstention 

doctrine, “the vexatious or reactive nature of either the federal or the state litigation may 

influence the decision whether to defer to a parallel state litigation under Colorado River.” Allen 

v. La. State Bd. of Dentistry, 835 F.2d 100, 105 (5th Cir. 1988) (citing Cone, 460 U.S. at 18 

n.20); Walker Centrifuge Servs., L.L.C. v. D & D Power, L.L.C., 550 F. Supp. 2d 620, 624-25 

(N.D. Tex. 2008). 




The Colorado River abstention doctrine is not subject to precise rules, but rather should 

“be applied in a pragmatic, flexible manner with a view to the realities at hand,” taking into 

account “both the obligation to exercise jurisdiction and the combination of factors counseling 

against that exercise.” See Cone, 460 U.S. at 16; Colorado River, 424 U.S. at 818-19. “The 

weight to be given to any one factor may vary greatly from case to case, depending on the 

particular setting of the case.” Cone, 460 U.S. at 16. The following factors overwhelmingly 

support abstention in this case. 

a. State-Law Issues Predominate Over Federal Questions in This Action. 

Taking into account the relevant facts of this case, the most significant Colorado River 

abstention factor is whether and to what extent federal law provides the rules of decision on the 

merits. See Cone, 460 U.S. at 16. Although the presence of a federal law issue normally weighs 

against the surrender of federal jurisdiction, the unique circumstances of this case dictate 

otherwise. Black Sea Inv., 204 F.3d at 651 (quoting Cone, 460 U.S. at 26) (“[O]ur task . . . is to 

ascertain whether there exist ‘exceptional circumstances,’ the ‘clearest of justifications,’ that can 

suffice under Colorado River to justify the surrender of that jurisdiction.”). The core issue in 

both this action and the State Court Action is the proper construction of Article XVI, Section 

66(d) of the Texas Constitution. That provision creates Plaintiffs’ alleged right to receive 

“benefits accrued” and provides the necessary predicate for all of Plaintiffs’ other claims, both 

state and federal. See supra at sec. IV(A). Because “the fundamental issue underpinning this 

dispute turns wholly on a question of state law,” this factor weighs heavily in favor of abstention. 

Mourik Int’l B.V. v. Reactor Servs. Int’l, Inc., 182 F. Supp. 2d 599, 604-05 (S.D. Tex. 2002) 

(recognizing that when the fundamental issue underlying a dispute turns wholly on a question of 

state law, then the exercise of federal jurisdiction will not be supported). 




b. This Action Poses a Threat of Piecemeal and Inconsistent 

Adjudication. 

Maintaining this federal action would present a danger of piecemeal and inconsistent 

adjudication between the state and federal actions. Colorado River, 424 U.S. at 818. Identifying 

the desirability of avoiding piecemeal litigation as a pertinent factor in Colorado River, the 

Supreme Court cited Brillhart v. Excess Ins. Co. of America: 

Gratuitous interference with the orderly and comprehensive disposition of a state 

court litigation should be avoided. Where a district court is presented with a 

claim such as was made here, it should ascertain whether the questions in 

controversy between the parties to the federal suit, and which are not foreclosed 

under the applicable substantive law, can better be settled in the proceeding 

pending in the state court. This may entail inquiry into the scope of the pending 

state court proceeding and the nature of defenses open there. The federal court 

may have to consider whether the claims of all parties in interest can satisfactorily 

be adjudicated in that proceeding, whether necessary parties have been joined, 

whether such parties are amenable to process in that proceeding, etc. 

Colorado River, 424 U.S. at 818 (citing Brillhart, 316 U.S. at 495). The Fifth Circuit recently 

held that, “[i]f the state court action is able to resolve all of the claims involved in a dispute with 

respect to all of the parties involved while the federal court action is able to resolve the dispute 

only partially, this would weigh in favor of abstention.” Saucier v. Aviva Life & Annuity Co., 

No. 11-60503, 2012 WL 5658711, at *4 (5th Cir. Nov. 16, 2012). 

Under these standards, it is clear that the issues raised in this lawsuit can better be settled 

in the State Court Action. In order to resolve any of Plaintiffs’ claims, this Court would be 

required to construe the phrase “benefits accrued” in Article XVI, Section 66(d) of the Texas 

Constitution before any Texas court has had the opportunity to do so. See supra at sec. IV(A). 

Moreover, if this Court declines to exercise supplemental jurisdiction over Plaintiffs’ state-law 

claims pursuant to 28 U.S.C. § 1367(c), this Court will be able to resolve the dispute only 

partially. Id. This factor weighs heavily in favor of abstention. 




c. The Tarrant County District Court Obtained Jurisdiction Prior to 

This Court. 

The order in which jurisdiction was obtained also supports abstention in this case. 

Colorado River, 424 U.S. at 818. This factor involves more than a determination of which 

complaint was filed first; instead, it concerns how far the two actions have progressed. Black 

Sea Inv., 204 F.3d at 651 (quoting Cone, 460 U.S. at 21). Here, neither action has progressed 

very far. In the State Court Action, the Fund filed its Original Answer prior to removing the 

action to federal court. Had the Fund not wrongfully removed the State Court Action on the 

same day that the City received a copy of the Fund’s Original Answer, the City promptly would 

have sent discovery requests and proceeded toward summary judgment to resolve the legal issues 

in an expeditious fashion. Regardless, the developments in the State Court Action exceed those 

in this lawsuit. Plaintiffs filed their Complaint in this Court less than thirty days ago, and no 

additional actions have been taken, other than this Motion. The City has yet to file a responsive 

pleading and need not do so until this Court considers this Motion. Because the Tarrant County 

District Court obtained jurisdiction first and this federal action has not progressed as far as the 

State Court Action, this factor weighs in favor of dismissing or staying this case. See Colorado 

River, 424 U.S. at 820 (finding the absence of any proceedings in the federal district court, other 

than the filing of the complaint, significant in affirming abstention); Mourik Int’l, 182 F. Supp. 

2d at 604 (weighing this factor in favor of abstention even though the earlier-filed state court 

case sat dormant for many years). 

d. Plaintiffs Filed This Lawsuit in Reaction to the State Court Action. 

The vexatious and reactive nature of this federal lawsuit heavily supports abstention in 

this case. See Allen, 835 F.2d at 105 (quoting Cone, 460 U.S. at 18 n.20); Walker Centrifuge 

Servs., 550 F. Supp. 2d at 624-25; Garber v. Sir Speedy, Inc., 930 F. Supp. 267, 271 (N.D. Tex. 




1995) (staying the federal lawsuit because “[l]itigants should be discouraged from filing suits in 

courts with concurrent jurisdiction for the purpose of avoiding adverse rulings in the court in 

which the action was originally filed.”). The complaint by which the instant action was initiated 

quite clearly was a reactive filing made for the purpose of avoiding state court jurisdiction. 



well-pleaded complaint. There is no question that Plaintiffs were fully aware of the State Court 

Action at the time they filed their Complaint. Plaintiffs’ lead counsel, Robert Klausner, has 

served as outside counsel for the Fund for many years. It is no coincidence that the affirmative 

defenses asserted by the Fund in the State Court Action are substantively identical to the claims 

asserted by Plaintiffs herein. Lest there be any question whether the Colorado River abstention 

factors favor dismissing or staying this case, the vexatious and reactive nature of Plaintiffs’ 

federal lawsuit clearly tips the balance in favor of dismissal or stay. See Microsource, Inc. v. 

Superior Signs, Inc., No. CIV.A. 3:97-CV-2733-G, 1998 WL 119537, at *3 (N.D. Tex. 1998). 

Based on the foregoing factors and taking into account the relevant facts of this case, this 

action should be dismissed or stayed pending final disposition of the State Court Action. 

D. This Court Should Dismiss or Stay This Lawsuit Pursuant to Its Inherent Power. 

A federal court also has the inherent power to stay or dismiss proceedings “to control the 

disposition of the causes on its docket with economy of time and effort for itself, for counsel, and 

for litigants.” Itel Corp. v. M/S Victoria U. (Ex Pishtaz Iran), 710 F.2d 199, 203 (5th Cir. 1983) 

(quoting Landis v. N. Am. Co., 299 U.S. 248 (1936)); Melo, 2005 WL 991600, at *3 n.3. “This 

power is necessarily incident to the judicial power granted under Article III of the Constitution.” 

Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995). The Fifth Circuit specifically has 




recognized that, even when other standards for abstention are not satisfied, a district court 

maintains the inherent power to stay or dismiss a federal action. Primerica Life Ins. Co. v. 

Twyman, No. 3-01-CV-1659-BD, 2002 WL 83750, at *3 (N.D. Tex. Jan. 14, 2002); Melo, 2005 

WL 991600, at *3 n.3; see PPG Indus., 478 F.2d at 679-82. 

In Primerica, this Court recognized that a federal action could be stayed even if such a 

stay was not specifically supported by the Colorado River abstention doctrine. Primerica, 2002 

WL 83750, at *3. In so recognizing, the Court noted that “[s]uch a stay should not be granted 

unless the other tribunal has the power to render an effective judgment on issues that are 

necessary to the disposition of the stayed litigation.” Id. (citing Itel Corp., 710 F.2d at 203). 

Furthermore, in granting such a stay “[t]he court should also consider whether the federal action 

serves some purpose beyond mere duplication of effort.” Id. (citing PPG Indus., 478 F.2d at 

682). After considering these factors, the Court indicated that it was inclined to stay the federal 

case in favor of the state court action. Id. 

This Court retains the inherent power to stay or dismiss this action, and, indeed, it should. 

Much like the state court in Primerica, the Tarrant County District Court clearly has the 

authority to render an effective judgment on Plaintiffs’ claims in the instant action. Furthermore, 

this action—which does not serve any meaningful purpose—will result in duplication of effort 

and, most certainly, will waste the time and resources of the courts, attorneys, and litigants. See 

id. A dismissal or stay of this case is clearly warranted. 

E. This Court Should Dismiss This Lawsuit for Failure to State a Claim Upon Which 

Relief Can Be Granted. 

This Court also could dismiss this lawsuit for failure to state a claim upon which relief 

can be granted. Fed. R. Civ. P. 12(b)(6). Where a plaintiff has failed to allege facts sufficient to 

recover on a claim that is recognized under controlling law, the claim is subject to dismissal. 




Leatherman v. Tarrant Co. Narcotics Intelligence & Coordination Unit, 954 F.2d 1054 (5th Cir. 

1992), rev’d on other grounds & remanded, 507 U.S. 163 (1993); Alvarado Guerva v. INS, 902 

F.2d 394 (5th Cir. 1990). Plaintiffs filed a Complaint for Injunctive Relief and Damages. [Dkt. 

No. 1]. However, Plaintiffs have not alleged—nor can they allege—any damages or a real and 

immediate threat of harm. The amendments to the City’s retirement ordinance will not affect 

current members of the Fund, like Plaintiffs, until October 2013 at the earliest. [APP 094]. Until 

Plaintiffs have been harmed, there is no “status quo ante” for this Court to “restore,” and unless 

Plaintiffs can demonstrate a real and immediate threat of harm, this Court cannot “enjoin the City 

from any attempt to enforce the provisions of the subject Ordinance as it relates to vested and 

retired members of the Fund.” [Dkt. No. 1 51(C)-(D)]; Gladden v. Roach, 864 F.2d 1196, 

1198 (5th Cir. 1989). Because Plaintiffs cannot recover on any of the claims asserted, Plaintiffs 

have failed to state a claim upon which relief can be granted. 

F. This Court Should Order Plaintiffs to Make a More Definite Statement. 

If the Court determines that Plaintiffs have stated a claim upon which relief can be 

granted, the City alternatively requests that Plaintiffs be ordered to make a more definite 

statement. Fed. R. Civ. P. 12(e). Where a complaint is ambiguous or does not contain sufficient 

information to allow a responsive pleading to be framed, a motion for more definite statement is 

appropriate. Sisk v. Tex. Parks & Wildlife Dep’t., 644 F.2d 1056, 1059 (5th Cir. 1981). 

First, Plaintiffs assert that “[t]he provisions of the Fund in effect on October 22, 2012 

constitute a binding contract for retirement benefits between the City and the Plaintiffs.” [Dkt. 

No. 1 31]. Throughout this Motion, the City assumes that Plaintiffs’ alleged “property and 

contract rights” arise from Article XVI, Section 66(d) of the Texas Constitution. To the extent 

that these rights arise from some other source, Plaintiffs have not provided sufficient information 




to allow the City to frame a responsive pleading. 

Second, Plaintiffs never explain their 

allegation that, “[t]he Ordinance is not, despite the City’s pronouncements to the contrary, a 

‘prospective’ alteration of the Fund’s benefits.” [Id. at 39]. Without any factual basis 

supporting this allegation, the City cannot respond appropriately. 

The City is entitled to full and fair notice of the bases for Plaintiffs’ claims. Because 

Plaintiffs’ Complaint does not contain sufficient information to allow a responsive pleading to be 

framed, this Court should order Plaintiffs to make a more definite statement. 

V. 

PRAYER FOR RELIEF 

WHEREFORE, the City respectfully requests that this Court dismiss or stay this case in 

favor of the State Court Action and grant any further relief to which the City is justly entitled. 

Alternatively, the City respectfully requests that this Court order Plaintiffs to make a more 

definite statement. 




Respectfully submitted, 


Dee J. Kelly 


Dee J. Kelly, Jr. 


Mary H. Smith 


KELLY HART & HALLMAN LLP 

201 Main Street, Suite 2500 


Telephone: (817) 332-2500 

Facsimile: (817) 878-9280 

Gerald Pruitt 

State Bar. No. 16369200 

FORT WORTH CITY ATTORNEY’S OFFICE 

1000 Throckmorton Street 


Telephone: (817) 392-7616 

Facsimile: (817) 392-8359 

ATTORNEYS FOR DEFENDANT 

CERTIFICATE OF CONFERENCE 

I certify that I conferred with Ray N. Hosack, counsel for Plaintiff, regarding the relief 

requested in this Motion on December 6, 2012, via telephone. Plaintiff’s counsel indicated that 

he opposed the Motion. Therefore, it is submitted to the Court for consideration. 

/s/ Dee J. Kelly, Jr. 

Dee K. Kelly, Jr. 




CERTIFICATE OF SERVICE 

I electronically filed the foregoing document on December 6, 2012 with the Clerk of 

Court for the U.S. District Court, Northern District of Texas, using the CM/ECF system of the 

Court which will send a “Notice of Electronic Filing” to the following attorneys of record: 

Robert D. Klausner 

KLAUSNER, KAUFMAN, JENSEN & LEVINSON 

10059 N.W. 1st Court 

Plantation, Florida 33324 

Telephone: (954) 916-1202 

Facsimile: (954) 916-1232 

Ray N. Hosack 

HOSACK LAW FIRM 

904 Collier Street 


Telephone: (817) 882-9548 

Facsimile: (817) 882-9586 


Dee J. Kelly

motion to Dismiss

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