Mochary v. Bergstein

21-1972
Mochary v. Bergstein
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term 2021
(Argued: March 17, 2022 | Decided: July 27, 2022)
Docket No. 21-1972
MATTHEW MOCHARY,
Plaintiff-Appellant,
v.
SETH BERGSTEIN,
Defendant-Appellee.
______________
Before:
JACOBS, POOLER, and WESLEY Circuit Judges.
Plaintiff-Appellant Matthew Mochary appeals from a judgment of the
United States District Court for the District of Connecticut (Bolden, J.) dismissing
on abstention grounds his complaint asserting claims of replevin, conversion, and
statutory theft relating to a Jackson Pollock collage. Mochary argues, inter alia, that
the district court erred in abstaining under Colorado River Water Conservation
District v. United States, 424 U.S. 800 (1976) because (1) the state and federal actions
are not “concurrent and parallel” since they involve different parties, different
issues, and different remedies; and (2) his claims will not become moot if the state
court finds the collage is part of Defendant-Appellee Seth Bergstein’s marital

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estate because Mochary is not a party to the divorce action and the state court will
not adjudicate his claims. We agree.
Alternatively, Bergstein urges that abstention is warranted under the
domestic relations exception or the abstention doctrine set forth in American
Airlines, Inc. v. Block, 905 F.2d 12 (2d Cir. 1990) (per curiam). We disagree.
Accordingly, we VACATE the dismissal and REMAND for further
proceedings consistent with this opinion.
_________________
STEVEN M. FREDERICK, Wofsey, Rosen, Kweskin & Kuriansky,
LLP, Stamford, CT (Zachary J. Phillipps, Wofsey, Rosen,
Kweskin & Kuriansky, LLP, Stamford, CT, on the brief), for
Plaintiff-Appellant.
HOWARD K. LEVINE, Carmody Torrance Sandak & Hennessey LLP,
New Haven, CT, for Defendant-Appellee.
_________________
WESLEY, Circuit Judge:
This case arises from a dispute over a Jackson Pollock collage (the “Collage”)
allegedly owned by Matthew Mochary. Mochary contends he loaned the Collage
to Seth Bergstein and his wife/Mochary’s sister. When Mochary discovered
Bergstein was not properly caring for the Collage, he sought to have it returned.
Bergstein refused. Mochary filed a diversity action in district court asserting
claims of replevin, conversion, and statutory theft.

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Bergstein moved to dismiss the complaint under Rule 12(b)(6), arguing that,
because he was claiming the Collage as marital property in the divorce action, the
district court should abstain from hearing the matter under Colorado River Water
Conservation District v. United States, 424 U.S. 800 (1976). Bergstein also argued that
the district court should abstain under the domestic relations exception, or the
abstention doctrine articulated in American Airlines, Inc. v. Block, 905 F.2d 12 (2d
Cir. 1990) (per curiam). The United States District Court for the District of
Connecticut (Bolden, J.) dismissed Mochary’s claims, holding that as divorce
proceedings had commenced and the Superior Court of Connecticut had exercised
jurisdiction over the marital estate, adjudicating Mochary’s claims would interfere
with the state parallel proceedings in a way that should be avoided as instructed
by Colorado River.
Mochary appealed. For the reasons below, we vacate the district court’s
order dismissing the complaint on abstention grounds and remand for further
proceedings consistent with this opinion.

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BACKGROUND
Facts
The Collage at issue was created by Jackson Pollock in 1943. Its current fair
market value is approximately $175,000.00. The Collage “is a unique, original
work of art that has been in the possession of Mochary’s family for decades”—
Mochary’s mother purchased the Collage in 1978. Joint App’x 8.1 Mochary
contends that beginning in 1996, his mother began annually gifting fractional
shares of ownership of the Collage to him resulting in his “complete ownership”
of the Collage by 2012. Joint App’x 8.
Under a Loan Agreement executed in 2004 (see Joint App’x 35 (Exhibit C)),
Mochary and his mother loaned the Collage to the Kasser Foundation for the
purpose of relending the Collage for exhibition. In 2016, the Collage was loaned
to Alexandra Kasser—Bergstein’s wife and Mochary’s sister.2 The Collage was
displayed at Bergstein and Kasser’s home in Greenwich, Connecticut with the
conditions that it be insured, properly maintained, and immediately returned
1 The invoice depicting the sale is attached to the complaint as Exhibit A.
2 While the complaint is silent in this regard, the parties do not dispute that Bergstein’s
wife, Alexandra Kasser, is Mochary’s sister. See Joint App’x 73 (n.1); Appellant Br. 3;
Appellee Br. 1.

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upon request. The Collage remained at the Greenwich home from 2016 through
2020 when it was removed pursuant to a stipulation entered into by the parties
and so-ordered by the district court.3
In late 2018, Kasser commenced a divorce action against Bergstein in
Connecticut Superior Court, which—as of argument before this Court—remains
pending.4 Shortly after filing for divorce, Kasser vacated the Greenwich home,
leaving Bergstein in sole possession of the Collage. The complaint alleges that
Bergstein was not properly caring for the Collage, causing serious and permanent
damage to it. In May 2020, Mochary notified Bergstein that he owned the Collage
and demanded retrieval of it within thirty days. After Bergstein failed to respond,
Mochary’s curator attempted to coordinate return of the Collage, but Bergstein
refused.
3 As discussed further below, the district court approved the parties’ stipulation
governing removal of the Collage from the Greenwich home and its care during the
pendency of this case. The parties agreed to abide by the arrangement in place during
the pendency of this appeal. See Appellant Br. 4 (n.1); see also Joint App’x 3 (Dkt. 18).
4 Oral Arg. at 3:31–3:36.

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Procedural History
Following Bergstein’s refusal to return the Collage, Mochary filed this action
in the District Court of Connecticut asserting claims for replevin, conversion, and
statutory theft and seeking immediate possession of the Collage and money
damages. Mochary alleged federal jurisdiction pursuant to 28 U.S.C. § 1332 based
upon the parties’ diverse citizenship and the amount in controversy.5 At the same
time, Mochary also moved for a temporary restraining order and an injunction to
enjoin Bergstein from disposing of the Collage, and to require a professional
curator to care for, protect, and properly preserve the Collage.
In August 2020, following a conference with the district court, the parties
agreed by stipulation on the care of the Collage during the case. The stipulation
provided that an art conservator, selected by Mochary, would inspect the Collage,
and have it moved to an art storage facility at Mochary’s sole cost and expense
during the pendency of the litigation until the court adjudicated the Collage’s
ownership. The district court approved the stipulation and entered an order
5 Mochary is a citizen of California and Bergstein is a citizen of Connecticut.

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consistent with the stipulation dismissing the temporary restraining order
application as moot.
Bergstein then moved to dismiss the complaint under Rule 12(b)(6),
principally on the ground that the court lacked jurisdiction under the domestic
relations exception to diversity jurisdiction because the Collage was a subject of
dispute in the state court divorce action. In the alternative, Bergstein argued the
district court should abstain from hearing the matter under the abstention
doctrines articulated in Colorado River, American Airlines, or Younger v. Harris, 401
U.S. 37 (1971). Mochary argued that abstention was not appropriate under any
doctrine.
The district court determined it had diversity jurisdiction over the action
under 28 U.S.C. § 1332. The district court granted Bergstein’s motion to dismiss
holding that Colorado River abstention was appropriate given that state divorce
proceedings had commenced, the Superior Court of Connecticut had exercised
jurisdiction over the marital estate, and adjudicating Mochary’s claims would
interfere with the state court parallel proceedings, which, under Colorado River,
should be avoided. The district court held that if the Superior Court of Connecticut

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determined the Collage is part of the marital estate, then Mochary’s claims “would
become moot.” Joint App’x 86. The court granted Mochary leave to refile the
complaint “[i]f the Superior Court finds the Collage is not a marital asset.” Id. The
district court declined to abstain under any of the other abstention doctrines
pressed by Bergstein. Mochary appealed.
DISCUSSION
I. Abstention
Abstaining from exercising federal jurisdiction “is the exception, not the
rule.” Colorado River, 424 U.S. at 813. Where a federal court has subject matter
jurisdiction, it has a “’virtually unflagging obligation to exercise that jurisdiction,’
even if an action concerning the same matter is pending in state court.” Bethlehem
Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 327 (2d Cir. 1986) (quoting
Colorado River, 424 U.S. at 817). “The abstention doctrine comprises a few
extraordinary and narrow exceptions to a federal court’s duty to exercise its
jurisdiction,” and “[i]n this analysis, the balance is heavily weighted in favor of the
exercise of jurisdiction.” Woodford v. Cmty. Action Agency of Greene Cty., Inc., 239
F.3d 517, 522 (2d Cir. 2001). Abstention was “never a doctrine of equity that a
federal court should exercise its judicial discretion to dismiss a suit merely because

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a State court could entertain it.” Colorado River, 424 U.S. at 814 (internal quotation
marks omitted).
“We review a district court’s abstention decision for abuse of discretion.”
Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d
84, 99 (2d Cir. 2012). Although abuse of discretion is usually a deferential
standard, in the abstention context our review “is especially rigorous.” Id.
(quoting Planned Parenthood of Dutchess-Ulster, Inc. v. Steinhaus, 60 F.3d 122, 126 (2d
Cir. 1995)). “[B]ecause we are considering an exception to a court’s normal duty
to adjudicate a controversy properly before it, the district court’s discretion must
be exercised within the narrow and specific limits prescribed by the particular
abstention doctrine involved.” Id. (quoting Dittmer v. Cty. of Suffolk, 146 F.3d 113,
116 (2d Cir. 1998)). Accordingly, where a case does not meet traditional abstention
requirements “there is little to no discretion to abstain.” Id.
Colorado River Abstention
In Colorado River, the Supreme Court held that, in addition to previously
established categories of abstention, in certain “exceptional circumstances” a
federal court may abstain from exercising jurisdiction where an existing parallel
state-court litigation would accomplish a “comprehensive disposition of

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litigation.” 424 U.S. at 813, 817–18 (emphasis added). In conducting a Colorado
River analysis, courts are directed to make a threshold determination “that the
concurrent proceedings are parallel.” Dittmer, 146 F.3d at 118 (holding that finding
the concurrent proceedings are “parallel is a necessary prerequisite to abstention
under Colorado River”). “Suits are parallel when substantially the same parties are
contemporaneously litigating substantially the same issue in another forum.” Id.
(internal quotation marks omitted).
Colorado River identified six factors that courts should consider in
determining whether “exceptional circumstances” justify abstention:
(1) whether the controversy involves a res over which one of the
courts has assumed jurisdiction; (2) whether the federal forum is less
inconvenient than the other for the parties; (3) whether staying or
dismissing the federal action will avoid piecemeal litigation; (4) the
order in which the actions were filed, and whether proceedings have
advanced more in one forum than in the other; (5) whether federal
law provides the rule of decision; and (6) whether the state
procedures are adequate to protect the plaintiff’s federal rights.
Niagara, 673 F.3d at 100–01. None of these factors alone “is necessarily
determinative.” Colorado River, 424 U.S. at 818–19. Rather, “a carefully considered
judgment” accounting for “both the obligation to exercise jurisdiction and the
combination of factors counselling against that exercise is required.” Id. “[T]he

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decision whether to dismiss a federal action because of parallel state-court
litigation does not rest on a mechanical checklist, but on a careful balancing of the
important factors as they apply in a given case, with the balance heavily weighted
in favor of the exercise of jurisdiction.” Moses H. Cone Mem'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 16 (1983). “Only the clearest of justifications will warrant
dismissal.” Colorado River, 424 U.S. at 819.
Mochary argues the district court erred in abstaining under Colorado River
because the state and federal actions are not “concurrent and parallel” as each
involve different parties, different issues, and different remedies. We agree. The
federal and state proceedings at issue here are not parallel; the parties and relief
sought are not the same. Mochary is not a party to the state divorce action, and
his sister is not a party to the federal court action. The issues and relief sought are
distinct: the state action involves domestic relations concerns as well as
identification and distribution of marital property while Mochary raises claims
related to ownership and care of the Collage—tort claims against only Bergstein
seeking replevin of the Collage and monetary damages for conversion and civil

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theft.6 Mere “commonality in subject matter” does not render actions parallel. See
Dittmer, 146 F.3d at 118 (holding district court abused its discretion in abstaining
under Colorado River where, inter alia, “[n]one of the plaintiffs in [the federal action]
were involved in the state case”).
Mochary also argues the district court erred in analyzing the Colorado River
factors. While we need not address the district court’s analysis of the six factors to
vacate its order of dismissal because a finding of parallelism is “a necessary
prerequisite to abstention under Colorado River,” id. at 118, we reiterate that courts
deciding whether to abstain under Colorado River must carefully consider each of
the factors. At a minimum, here, the district court also needed to consider that the
disputed property was held pursuant to a federal court order, the relative progress
of the state and federal actions beyond the timing of their commencement, and
whether a parallel state action would adequately protect the parties’ interests. See,
6 See All. of Am. Insurers v. Cuomo, 854 F.2d 591, 603 (2d Cir. 1988) (holding that where
there were differences in parties between two actions and plaintiffs were not participants
in the state action that was a “strong factor against” invoking abstention as a basis for
dismissal); Sheerbonnet, Ltd. v. Am. Exp. Bank Ltd., 17 F.3d 46, 50 (2d Cir. 1994) (holding
proceedings were not parallel and concurrent where they “involve[d] different subject
matters and different forms of relief”—tort claims seeking damages were distinct from
creditor’s claims of entitlement to third party’s assets).

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e.g., Bethlehem Contracting, 800 F.2d at 328 (explaining that “the district court’s
failure to consider factors weighing against dismissal had the result of turning the
presumption in favor of exercising jurisdiction on its head”).7
The district court ultimately concluded that Mochary’s claims “would
become moot” if the state court finds the Collage is part of Bergstein’s marital
estate.8 This was error. Nothing suggests the state court overseeing the divorce
proceeding would or could adjudicate Mochary’s tort claims. The district court
did not explain how Mochary’s claims “would become moot” if the Collage was
designated as marital property in the state action, given that Mochary’s tort claims
(premised on ownership of the Collage) are not before the state court, and he is
not a party to the divorce proceeding. A divorce decree awarding the Collage to
Bergstein as marital property will not extinguish Mochary’s claims for replevin,
7 Although this case lacks the parallelism to support abstention under Colorado River, we
acknowledge that two courts appear to have been tasked with allocating the same
property among distinct parties. Judicial economy would be served by having one court
determine ownership of the Collage in a proceeding where all parties’ interests and rights
are adequately protected.
8 See Joint App’x 86 (holding “[i]f the [state court] finds the Collage is part of the marital
estate . . . the claims brought forth by Mr. Mochary would become moot.”).

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conversion, and statutory theft.9 Mochary’s claims would not be mooted by
collateral estoppel or res judicata as Mochary is a stranger to the divorce
proceeding.
The district court seemed to concede the state proceeding would not
comprehensively resolve Mochary’s claims when it recognized that a finding in
state court that the Collage is not a marital asset would give new life to Mochary’s
claims. Anticipating that possibility, the district court granted Mochary leave to
refile his complaint upon that contingency.
None of Bergstein’s contrary arguments have merit. First, Bernstein argues
Mochary’s interests are protected in the divorce because Kasser, Mochary’s sister,
has “congruent interests” and the incentive to disprove her ownership of the
9 Connecticut, unlike other jurisdictions, does not “require the joinder of a third party
claimant in order to dispose of the disputed property” in a divorce proceeding. Gaudio
v. Gaudio, 23 Conn. App. 287, 294 (Conn. App. Ct. 1990). The prevailing rule, including
in Connecticut, “holds that although the spouses are ordinarily the only proper parties to
a dissolution action, joinder or intervention of third parties is permissible where third
parties claim an interest in property involved in the proceedings.” Id. at 293. (emphasis
added). This is not a case where one spouse accuses the other of fraudulently conveying
marital property out of the estate. Here, the claim is that neither husband nor wife owns
the Collage. In Gaudio, the plaintiff-wife brought an action for dissolution of marriage
and fraudulent conveyance against her husband. Id. at 287. The plaintiff-wife then
moved to join a third-party defendant as to the fraudulent transfer count only. Id.

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Collage in the divorce. Appellee Br. 11. But Bergstein cites no case law (or support
in the record) compelling the conclusion that the siblings have identical interests.
Further, Bergstein’s arguments are internally inconsistent and speculative:
He argues both that “Kasser’s interest in the Collage is, at present, identical to
[Mochary’s claim]”10 and that Mochary’s interests “are not necessarily adversarial
to [Kasser’s interests].” Appellee Br. 11–12. But Bergstein also contends that
Kasser claims she—not Mochary—owns the Collage in the divorce, see id. at 25.
That, of course, confirms that their interests are incongruent and undermines
Bergstein’s assertion that the proceedings are parallel notwithstanding the
different parties. There is no reason to assume Mochary’s sister will adequately
represent his interests in the state court proceeding.11
Finally, Bergstein claims that the lack of identity of the parties is a result of
Mochary’s “strategic litigation decision” not to intervene in divorce proceedings
and accuses Mochary of “sitting on his rights.” Appellee Br. 13. But “the pendency
10 Mochary does not claim the Collage is jointly owned by him and his sister.
11 Cf. Bethlehem Contracting Co., 800 F.2d at 328 (“[Th]e possibility that the state court
proceeding might adequately protect the interests of the parties is not enough to justify
the district court’s deference to the state action.”).

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of an action in the state court is no bar to proceedings concerning the same matter
in the Federal court having jurisdiction,” Colorado River, 424 U.S. at 817, and our
case law has never obligated federal plaintiffs to intervene in state court
proceedings to bring claims properly subject to federal court jurisdiction.
Mochary’s right to federal court is not dependent on the lack of a state court
remedy. None of the out-of-circuit cases cited by Bergstein impose such a
requirement.12 And such a requirement is inconsistent with federal courts’
12 See Appellee Br. 13–15. For example, in Baseline Sports, Inc. v. Third Base Sports, 341 F.
Supp. 2d 605 (E.D. Va. 2004), the court abstained where the federal plaintiff and
defendant were both parties to the federal and state court actions. The district court
declined to deny abstention simply because there were additional parties not named in
the state suit. See id. at 609. Here, unlike the federal plaintiff in Baseline Sports, Mochary
was not first sued by the defendant in state court over identical facts before bringing this
suit in federal court. In Lumen Const., Inc. v. Brant Const. Co., 780 F.2d 691, 695 (7th Cir.
1985), the Seventh Circuit concluded that where newly added plaintiffs were the owners
of the federal plaintiff company, abstention was still appropriate because the district
court could conclude all claims would be finally determined in the state court action. The
court faulted federal plaintiff Lumen, a party to the state court proceeding, for not joining
its owners (the new parties in the federal suit) in the state court action. Again, the
situation here is inapposite. This is not a case where the federal plaintiff was a party in
the state action and then sued in federal court and added additional parties. Mochary,
unlike Lumen, was never a party in the state action at all.
And if ownership of the Collage was at issue in the divorce proceeding, Bergstein
offers no explanation for why he did not move to join Mochary in the dissolution
proceedings when Mochary sought return of the Collage before this suit commenced. In
Aarestrup v. Harwood-Aarestrup, 868 A.2d 817, 819 (Conn. Super. Ct. 2005), the Superior
Court noted that a third party’s participation in an action for dissolution of marriage is

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virtually unflagging obligation to exercise their jurisdiction. Bergstein’s claim that
his wife would become a necessary party on remand does not change the analysis.
Because we conclude the proceedings are not concurrent and parallel, we vacate
the dismissal.
Other Abstention Doctrines
In the alternative, Bergstein urges us to abstain under the domestic relations
exception or the abstention doctrine set forth in American Airlines.13 Neither
doctrine applies here.
The domestic relations exception to diversity jurisdiction provides that
federal courts will not exercise jurisdiction over cases on the subjects of divorce,
alimony, or the custody of children. See Ankenbrandt v. Richards, 504 U.S. 689, 704
“expressly limited to cases in which the presence of the third party is required in order
to adjudicate the property rights of the parties to the dissolution” and that courts could
not be expected to speculate about the existence of any third party that may have interest
in the marital property. Id. Indeed, the court recognized that nearly all of the cases it had
found permitting a third party to join a dissolution action between spouses occurred
where one of the existing parties (i.e., spouses) sought to join that third party. See id. The
court found only one Superior Court case where a court permitted an outside party to
intervene by its own motion. See id.
13 On appeal, Appellee does not advance arguments pertaining to Younger abstention and
thus, we need not address it. See Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir.
2006) (argument not pressed on appeal is “therefore waived, and we will not consider
it.”).

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(1992) (concluding that the domestic relations exception did not apply to tort
claims between an ex-wife and her ex-husband and his female companion for
alleged abuse of petitioners).14 As the district court correctly concluded, because
this case does not involve issuing or modifying such a decree, and is brought by a
third-party plaintiff, the domestic relations exception does not apply.
This Court’s decision in American Airlines applied domestic relations
abstention beyond diversity cases to federal-question jurisdiction cases. See Deem
v. DiMella-Deem, 941 F.3d 618, 621 (2d Cir. 2019) (“Although the domestic relations
exception to subject matter jurisdiction recognized by the Supreme Court
in Ankenbrandt [] does not apply in federal-question cases, the domestic relations
14 In Ankenbrandt, the Supreme Court suggested the doctrine would not apply to third
parties such as the female companion defendant, who otherwise stands in the same
position with respect to the plaintiff as any other opponent in a tort suit. 504 U.S. at n.7.
Specifically, the Supreme Court noted:
The courts below offered no explanation, and we are aware of none, why
the domestic relations exception applies at all to respondent Kesler [female
companion of ex-husband], who would appear to stand in the same
position with respect to Ankenbrandt as any other opponent in a tort suit
brought in federal court pursuant to diversity jurisdiction.
Id. Our sister circuits have declined to apply the domestic relations exception to third
parties. See, e.g., Matusow v. Trans-Cty. Title Agency, LLC, 545 F.3d 241, 247 (3d Cir. 2008)
(“The domestic relations exception generally does not apply to third parties”); Stone v.
Wall, 135 F.3d 1438, 1441 (11th Cir. 1998) (same).

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abstention doctrine articulated in American Airlines does.” (internal quotation
marks omitted)). American Airlines, a federal-question interpleader case, involved
a dispute between former spouses over ongoing matrimonial support obligations
arising out of a state divorce decree. 905 F.2d at 13. This Court held that where
“subject matter jurisdiction lies over a particular matrimonial action, federal courts
may properly abstain from adjudicating such actions in view of the greater interest
and expertise of state courts in this field.” Id. at 14.
Even assuming, arguendo, American Airlines could apply in diversity cases
after Ankenbrandt,15 the exception does not apply here for the same reasons stated
above—this suit is not a domestic relations dispute and does not involve issuing
or altering divorce, alimony, or custody decrees.
CONCLUSION
For the reasons stated above, we VACATE the order of the district court and
REMAND for further proceedings consistent with this opinion.
15 In determining that American Airlines remained good law following Ankenbrandt, this
Court relied on the fact that American Airlines applied to federal question cases, not
diversity cases. See Deem, 941 F.3d at 623–24. We need not decide whether in a case
premised on diversity jurisdiction, as is the case here, Ankenbrandt’s narrow domestic
relations exception controls.

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