Distinguishing Certification from Abstention in Diversity Cases: Postponement versus Abdication of the Duty to Exercise Jurisdiction
50 Pages Posted: 13 Jan 2009
Date Written: July 1, 2007
When a federal court grants an abstention-based dismissal in a diversity case, the court abdicates its strict duty to exercise its jurisdiction where that jurisdiction has been properly invoked. Thus, a federal court may not dismiss a case on abstention grounds unless it concludes that "exceptional circumstances" require the dismissal. When a federal court grants an abstention-based stay in a diversity case, however, the court does not violate its jurisdictional duty. According to the Supreme Court, an abstention-based stay is merely a postponement of the exercise of jurisdiction. Although the Court has characterized an abstention-based stay as a delay rather than an abdication of the jurisdictional exercise, the Court surprisingly has not approved the liberal use of such stays. Instead, the Court has limited abstention-based stays, like abstention-based dismissals, to exceptional circumstances. In the certification context, unlike the abstention context, the Court has never addressed whether a federal court violates its duty to exercise its jurisdiction when it grants a certification-based stay in a diversity case. Several scholars have argued, however, that indeed certification in diversity cases constitutes an abdication of the jurisdictional duty. Likewise, many of the federal circuit courts treat certification of unsettled questions of state law in diversity cases as an abdication of jurisdiction. Accordingly, these circuits restrict certification, like abstention, to exceptional circumstances.
This Article argues that a federal court does not abdicate its duty to exercise its jurisdiction when it certifies a question in a diversity case; instead, the court merely postpones the exercise of its jurisdiction. Thus, federal courts need not limit certification in diversity cases to exceptional circumstances. To substantiate this argument, Part II of this article explains the pertinent abstention doctrines and the extension of abstention principles from suits for equitable relief to actions for damages. Part II also explains the development of the Supreme Court's distinction between abstention-based dismissals and abstention-based stays. Part III briefly describes certification, discusses the Supreme Court's certification case law, and establishes that the Court itself has distinguished certification from abstention. Part IV then reviews the federal circuits' certification case law. This survey shows that several circuits, without explanation, equate certification with abstention and therefore require exceptional circumstances before they will certify.
Part V synthesizes Parts II-IV and demonstrates that certification is distinguishable from abstention. Specifically, Part V contends that, contrary to the Supreme Court's conclusion, abstention-based stays in diversity cases result in the relinquishment of jurisdiction because they entail a full round of litigation in a state court system and therefore require all or an essential part of the suit to be litigated in a state forum. Consequently, abstention-based stays are the functional equivalent of abstention-based dismissals. In contrast, certification-based stays in diversity cases actually result in postponement of the exercise of jurisdiction because certification is simply a device that assists courts in the adjudicatory process. Certification allows a federal court, in effect, to research a question of state law and does not require fact-finding or application of law to facts. Thus, because certification does not involve the abdication of duty, it is distinguishable from abstention. Federal courts therefore should not employ abstention principles to restrict the use of certification. Part VI briefly addresses several secondary factors that federal courts sitting in diversity consider in deciding whether to certify. This Part concludes that at least some of these factors are highly relevant to the certification decision, and so it is these aspects of certification - not the exceptional circumstances requirement of abstention - to which the courts should turn their focus.
Keywords: abstention, certification
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