The Alabama Supremes Hold That Two Is Not Better Than One
Is it fair for a plaintiff to sue the same defendant twice for the same thing? Of course not! But what legal redress is available to a defendant who is sued twice by the same plaintiff? In Alabama, at least, the answer is now mandamus as a result of Ex parte J.E. Estes Wood Co., 2010 WL 335646 (Ala. Jan. 29, 2010).
In Estes, a railroad filed suit in federal court in Alabama against property owners who allegedly caused a fire that burned down a wooden bridge over a waterway. Two days later, the railroad filed an identical suit in Alabama state court "'to preserve a forum to litigate its claims in the event the federal action was dismissed for lack of subject matter jurisdiction more than two years after the fire.'" Id. at *1 (quoting the railroad's brief).
The defendants moved to dismiss the federal action for lack of subject matter jurisdiction, and then they moved to dismiss the state court action under Alabama's abatement statute, which provides:
No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.
Ala. Code sec. 6-5-440. (Numerous cases have interpreted the phrase "the courts of this state" to include federal courts in Alabama, as well as state courts.)
The state trial court refused to dismiss the state action, choosing instead to stay it pending resolution of the federal action. The railroad petitioned for a writ of mandamus. During the intervening time period, the federal court dismissed the federal case for lack of subject matter jurisdiction, and the railroad had appealed that decision.
The Alabama Supreme Court began by explaining the long common law history of its abatement statute, which stretches all the way back to 15th Century England and stems from the common law maxim that (interpreted from the Latin) provides: "No man ought to be twice troubled or harassed for one and the same cause." Estes, 2010 WL 335646 at *2. At common law, a defendant subject to two identical lawsuits could prevail on a plea in abatement -- the predecessor to the motion to dismiss -- because the second lawsuit was, as a matter of law, vexatious and "ill ab initio." Abatement was dismissal, not a stay.
Alabama had some class action authority suggesting that where two identical class actions were pending at the same time, the second should be stayed pending resolution of the first. But the Alabama Supreme Court noted in Estes that this prior authority was not based on the abatement statute, and held that to the extent it suggested a stay was proper under the abatement statute, it was incorrect.
The "stay" should not be an option to be exercised at the discretion of the judiciary because:
the principle codified by the statute "is founded upon the policy of discouraging a multiplicity of suits--of protecting the defendant from oppression, [and] from the grievance of double vexation for the same cause or thing." "When a defendant is twice impleaded by the same plaintiff, for the same thing, the oppression and vexation is not matter of fact; it is a conclusion of law, and is not dependent upon an inquiry into the actual circumstances of the two cases."
"The institution of the second action" is, in itself, an "offense or wrong, so to speak." The "offense or wrong" that the statute seeks to prevent consists in the very "existence simul et semel" of the second action. The wrong committed "'was vexatious and ill ab initio." . . .
. . . "There can be no necessity for the institution or the pendency of two suits for the same matter at the same time. The security of the plaintiff cannot require it." If the first action is "defective, it is the fault of the plaintiff, not of the defendant." Indeed, recognizing a stay of the second action as an acceptable option, pending the outcome of the first, would not only encourage forum shopping, but also "'would encourage and cultivate a want of due care in making the first one effectual.'" Even if the later filed action is stayed, the defendant remains obligated to stand before both courts prepared to defend against the same cause.
[The railroad] essentially concedes that it had reservations about the viability of its federal action and that it sought to hedge its bet by filing the state action. This is precisely the evil the statute aims to prevent.
Id. at *5 - *6 (citations omitted).
The decision in Estes should go a long way in preventing plaintiffs from filing multiple actions to pick among the judges they draw or to hedge their bets when they doubt federal jurisdiction will lie. Indeed, it's important to note that when mandamus issued in Estes, the federal action already had been dismissed for lack of jurisdiction, and yet the Alabama Supremes held that the later-filed state court action nevertheless must be dismissed.
