by the United States Court of Appeals for the Tenth Circuit

“ Neither court has jurisdiction over any property, and defendants concede that both forums are equally convenient. The state court action was commenced first. However, "priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions." Cone, 460 U.S. at 21. The only additional progress in the state court action appears to be some informal discovery, some formal discovery requests, and a scheduling conference at which the judge stayed the proceedings pending the outcome of this suit. ”

“ Although in some rare circumstances the presence of state-law issues may weigh in favor of . . . surrender, the presence of federal-law issues must always be a major consideration weighing against surrender. ”

“ Nena Lalla is not a party in the state court action. Plaintiff alleged the same claims in this action as it raised in its state court counterclaim. Plaintiff also moved the state court to stay all proceedings, including discovery, pending completion of the federal action. In September 1988, the state court granted that motion. Defendants subsequently moved to dismiss the federal suit on the ground that plaintiff waived its right to invoke the jurisdiction of the federal court by asserting counterclaims in the state court action rather than removing that action to federal court. ”