Finova courts, it is unnecessary for this court to go that far. Instead,
defendant's motion can be resolved by considering the discretionary
nature of the jurisdiction of this court under the Declaratory Judgment
Under the Act, a district court may decline to exercise jurisdiction
over a declaratory action, even though subject matter jurisdiction is
otherwise proper. See 28 U.S.C. § 2201 (a); Brillhart v. Excess Ins.
Co. of America, 316 U.S. 491, 494, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942).
In enacting the Declaratory Judgment Act, "Congress . . . created an
opportunity, rather than a duty, [for a district court] to grant a new
form of relief to qualifying litigants." See Wilton v. Seven Falls Co.,
515 U.S. 277, 288, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995).
A district court's discretion to decline jurisdiction under the Act is
broader than any abstention doctrine recognized by the U.S. Supreme
Court. In Wilton, the Court explained that "[d]istinct features of the
Declaratory Judgment Act, we believe, justify a standard vesting district
courts with greater discretion in declaratory judgment actions than that
permitted under the `exceptional circumstances' test of Colorado River and
Moses H. Cone." See Wilton, 515 U.S. at 286, 115 S.Ct. 2137, 132 L.Ed.2d
In determining whether to exercise its discretion not to hear a case, a
court must first "determine whether there are any independent claims in
the case that exist apart from purely declaratory relief that is, claims
that would continue to exist if the request for a declaration simply
dropped from the case." (emphasis added). See Snodgrass v. Provident,
147 F.3d 1163, 1167-68 (9th Cir. 1998). In other words, if a claim for
money is brought along with the declaratory claim, the court has no
discretion to decline jurisdiction. Id. Next, the court must then
consider the factors that guide the exercise of its discretion as set out
by the Supreme Court in Brillhart and Wilton.
In the present action, there are no independent claims. The only claim
is one for declaratory relief See Complaint, ¶ 1. Thus, it is
appropriate for the court to take the next step and consider the
Brillhart/Wilton factors that guide its discretion.
The "touchstone" factors are that a district court should "avoid
needless determination of state law issues; it should discourage
litigants from filing declaratory actions as a means of forum shopping;
and it should avoid duplicative litigation." See Government Employees
Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir. 1998). Those factors are
not exclusive. Other factors that should be considered, depending on the
circumstances, include "whether the declaratory action will settle all
aspects of the controversy" or "whether the use of a declaratory action
will result in entanglement between the federal and state court systems."
Id. at n. 5. In addition, a district court can also consider "the
convenience of the parties, and the availability and relative convenience
of other remedies." Id. Applying those factors here leads to the
conclusion that this court should decline to hear this case in deference
to the case being adjudicated in France.
While there are no "state" law issues present here, there is the
analogous situation of issues of international law. The parties agree
that the United Nations Convention on Contracts for the International
Sale of Goods (hereinafter "CISG") governs their transactions. See United
Nations Convention on Contracts for the
International Sale of Goods, opened for signature April 11, 1980, S.
Treaty Doc. No. 9, 98th Cong., 1st Seas. 22 (1983) 19 I.L.M. 671,
reprinted at, 15 U.S.C. app. 52 (1997). When two foreign nations are
signatories to the CISG, as are the United States and France, the CISG
governs contracts for the sale of goods between parties whose places of
business are in these different nations. See CISG, Art. 1. A contract
governed by the CISG may include a choice of law provision. If, as here,
the agreement is silent as to choice of law, the CISG applies if both
parties are located in signatory nations. See CISG art. 1; also Delchi
Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1027, n. 1 (2nd Cir. 1995).
Thus, the provisions of the CISG directly control. The case law
interpreting and applying the CISG is sparse. Id. at 1028. As one court
which wrestled with the treaty put it, "[d]espite the CISG's broad
scope, surprisingly few cases have applied the Convention in the United
States." See MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova
d'Agostino, S.p.A., 144 F.3d 1384, 1389 (11th Cir. 1998).
Application of the CISG here requires a court to resolve an issue of
first impression. To wit, the court must determine whether a warranty
disclaimer in a purchase order is valid under the CISG. The court has no
controlling authority on this issue. Plaintiff contends that Article 35
of the CISG permits warranty disclaimers such as the one at issue.
Article 35 however, deals with a seller's obligation to deliver
conforming goods. It does not discuss disclaimers. If anything, a
disclaimer in this case might not be valid because the CISG requires a
"mirror-image" approach to contract negotiations that allows the court to
inquire into the subjective intent of the parties. See CISG, Art. 8; also
MCC-Marble Ceramic, 144 F.3d at 1389. Here, defendant has submitted
evidence that it was not aware of the disclaimer and that it would not
have purchased the goods had it been aware of the disclaimer. If the
defendant was not aware of the disclaimer, then it may not have been
valid. Given that this issue of law is unsettled, this factor weighs
against this court exercising its discretion to hear the matter in favor
of the French court that already has the issue before it.
Plaintiff does not explain why, after participating in the French
proceeding for more than one year, a declaratory relief action here is
necessary. Defendant has adduced evidence which demonstrates that it does
not intend to bring an action in the United States. Moreover, there is
additional evidence that plaintiff filed this action after receiving an
adverse preliminary ruling in the French case. All of this indicates that
plaintiff, after participating in the foreign action, initiated this
proceeding in the hopes of obtaining a more favorable result in its home
The record also shows that if this court hears this action, it will
undoubtedly lead to duplicative litigation. Plaintiff has been
participating in the French proceeding for more than one year. While the
scope and effect of that proceeding is disputed, it is clear that it is
litigation involving the same parties and the same disputed transaction.
The record of these motions, and the court's own research, demonstrate
that the French Commercial Court is a court of competent jurisdiction to
hear this dispute and render an enforceable final judgment. French
Commercial Courts hear disputes between merchants concerning transactions
governed by commercial law. Commercial actions in France, such as the one
here, "must" be brought before the Commercial Court in the first
instance. See "France: Civil Actions and Procedure" Martindale-Hubbell
International Law Digest, p. FRA-12 (1998). French Commercial
Court proceedings can result in a final, enforceable judgment. See M.
Dakiolias, Court Performance Around the World: A Comparative
Perspective, 2 Yale Human Rts. & Dev. L.J. 87, 119 (1999). Its judgments
can be appealed. Id. at 122. While the parties dispute the posture of the
French proceeding, it is clear that the French court has made a
substantial investigation into the facts of this dispute. It would be
unnecessarily duplicative for this court to rule on issues already
addressed by the French court.
Issuing the declaratory judgment requested by plaintiff would not
"settle all aspects of the controversy" pending in the French case. Such
a judgment could also lead to conflicts between the French and U.S. legal
systems if the parties attempt to enforce inconsistent judgments.
The "convenience" factors discussed in Brillhart and Wilton also
militate in favor of declining jurisdiction. All of the evidence
concerning the malfunctioning computer parts, including many of the
witnesses, are in France. A remedy is available in the French Commercial
Court. And the parties have been proceeding there for over a year.
This court has the discretion to either stay or dismiss the action. See
Wilton, 515 U.S. at 290, 115 S.Ct. 2137. A dismissal without prejudice is
the preferable course here. If either party ultimately prevails in
France, as appears likely, then no action in this forum will be
For the reasons discussed, plaintiff's motion for partial summary
adjudication is DENIED, and defendant's motion to dismiss is GRANTED.
Plaintiff's later motion for discovery is DENIED as moot. The action is
dismissed without prejudice.
IT IS SO ORDERED.
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