The convenience of parties and witnesses has traditionally been considered in determining whether to hear a declaratory judgment action. Amerada, 381 F.2d at 663-64; E.F. Hutton Co. v. Cook, 292 F. Supp. 409, 410 (S.D.Tex. 1968). The classic formulation of these considerations, although in a forum non conveniens and not a declaratory judgment context, is contained in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947):
One equitable consideration in such decision is whether the declaratory judgment action was filed in apparent anticipation of the other pending proceeding. Factors, Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir. 1978) (opinion by Ingraham, J.), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); Amerada Petroleum Corp. v. Marshall, 381 F.2d at 663; E. F. Hutton Co. v. Cook, 292 F. Supp. 409, 410 (S.D.Tex. 1968). Here, on February 13, 1980, the Government advised Ven-Fuel that if Ven-Fuel did not pay a certain assessed penalty "forthwith," then the Government would institute judicial proceedings to collect that penalty.
. See Mission Insurance v. Puritan Fashions Corp., 706 F.2d 599, 602 (5th Cir. 1983) (involving a letter extending the right of the first-filed action defendant to sue within 30 days) (emphasis added); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967), cert. denied, 389 U.S. 1039, 88 S.Ct. 776, 19 L.Ed.2d 828 (1968) (first-filed action plaintiff filed suit after being informed by defendant of her intention to involve plaintiff in a lawsuit); E.F. Hutton & Co. v. Cook, 292 F.Supp. 409, 410 (S.D. Tex. 1968); 909 Corp., 741 F.Supp. at 1290. New Orleans Public Serv. Inc. v. Majoue, 802 F.2d 166, 168 (5th Cir. 1986) (quoting H.J. Heinz Co. v. Owens, 189 F.2d 505, 508 (9th Cir. 1951)).
The court noted that because declaratory relief is a matter within the court's discretion, courts have held that a declaratory claim should be dismissed if it was filed for the purpose of anticipating a trial of the same issues in a court of coordinate jurisdiction. Id. (citing Mission Ins., 706 F.2d at 602; Amerada Petroleum Corp., 381 F.2d at 663; E.F. Hutton Co. v. Cook, 292 F. Supp. 409, 410 (S.D.Tex. 1968)). The court's rationale was that the court cannot allow a party to secure a more favorable forum by filing an action for declaratory judgment when it has notice that the other party intends to file suit involving the same issues in a different forum. Id.
The convenience of parties and witnesses has traditionally been considered in determining whether to hear a declaratory judgment action. Amerada, 381 F.2d at 663-65; E.F. Hutton Co. v. Cook, 292 F. Supp. 409, 410 (S.D.Tex. 1968). The classic formulation of these considerations, although in a forum non conveniens and not a declaratory judgment context, is contained in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 943, 91 L.Ed. 1055 (1947):
Pursuant to this maxim, courts have held that a declaratory claim should be dismissed if it was filed for the purpose of anticipating a trial of the same issues in a court of coordinate jurisdiction. See Mission Insurance, 706 F.2d at 602; Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967), cert. denied, 389 U.S. 1039, 88 S.Ct. 776, 19 L.Ed.2d 828 (1968); E.F. Hutton Co. v. Cook, 292 F. Supp. 409, 410 (S.D.Tex. 1968). The Court cannot allow a party to secure a more favorable forum by filing an action for declaratory judgment when it has notice that the other party intends to file suit involving the same issues in a different forum.
As the Supreme Court noted in Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 185 [ 72 S.Ct. 219, 222, 96 L.Ed. 200] (1952), the declaratory judgment plaintiff "is given an equal start in the race to the courthouse, not a headstart." While the court does not encourage races to the courthouse, neither is it blind to the realities that they occur, and no purpose would be served in punishing the winner simply because he won. A different result might well follow if the declaratory judgment plaintiff had affirmatively induced the substantive action plaintiff to delay filing suit so that it might gain precedence in time, Mission Insurance, 706 F.2d 599; E.F. Hutton Co. v. Cook, 292 F. Supp. 409 (S.D.Tex. 1968), but that is not the case here. Plaintiff sent a letter, dated July 28, 1986, which plaintiff argues makes the Mission Insurance and Hutton cases applicable.
Pepsico claims that Ashe filed the complaint in the New York action in anticipation of the Illinois action being brought and after prevailing on Pepsico to refrain from filing the complaint in the Illinois action so that Ashe could draft a declaratory judgment complaint while settlement discussions were being held. If that were shown to be true, the New York action could easily be dismissed. See e.g., E.F. Hutton Co. v. Cook, 292 F. Supp. 409, 410 (S.D.Tex. 1968). However, counsel for Ashe strenuously disputes Pepsico's claim and avers that the complaint in the New York action was ready for filing at a substantially earlier time.
This being an action for declaratory relief, defendants insist that but for losing the " race to the courthouse," they, as " true plaintiffs," should now be granted the right to characterize this action on the " law" side of this court and thus obtain a jury trial. The defendant's reliance on this court's decision in E. F. Hutton v. Cook, 292 F.Supp. 409 (S.D.Tex.1968) is misplaced. In that case, the court held that to pursue declaratory relief, under those circumstances, would be to permit an unintended usage of the Declaratory Judgment Act.
See Brooks Transp. Co. v. McCutcheon, 154 F.2d 841 (D.C.App. 1946); E.W. Bliss Co. v. Cold Metal Process Co., 102 F.2d 105 (6th Cir. 1939). Cf. E.F. Hutton Co. v. Cook, 292 F. Supp. 409 (S.D.Tex. 1968). However, there exists an equally strong line of authority which rejects the application of such a categorical rule.