619 S.W.2d 193 (1981)
Lin BLACK, Appellant,
v.
Terry BASSETT, Appellee.
No. 8873.
Court of Civil Appeals of Texas, Texarkana.
May 12, 1981.
*194 John M. Gillis, Dallas, for appellant.
G. Leroy Street, Geary, Stahl & Spencer, Dallas, for appellee.
HUTCHINSON, Justice.
This case involves the modification of a child support order.
Appellant, Lin Black, and appellee, Terry Bassett, were divorced on November 12, 1973. Mrs. Black was named the managing conservator of their two children (a girl 4 years of age and a boy 3 years of age) and Mr. Bassett was named as the possessory conservator. The divorce decree ordered Mr. Bassett to pay the sum of $500.00 per month as child support until the younger child reaches the age of eighteen years and a written agreement provided that he would also pay the medical and dental expenses of the children. The evidence shows and the trial court found that since the date of the divorce Mr. Bassett has voluntarily paid the tuition for the children's attendance at a private school, such tuition for the year 1978 being in the sum of $2,860.00.
Following a hearing on August 3, 1979, the trial court on October 24, 1979, entered its order modifying the previous support order. By this order Mr. Bassett is to pay the sum of $1,200.00 per month until the oldest child becomes 18 years of age or is otherwise emancipated and thereafter $900.00 per month until the younger child becomes 18 years of age or is otherwise emancipated. It further orders Mr. Bassett to pay all medical and dental expenses of the children within thirty days after the bills therefor are mailed to him by Mrs. Black. As additional child support Mr. Bassett is ordered to pay school tuition for the children at a private school in Dallas County, Texas, or an adjoining county as "mutually agreed" upon between the parents.
Mrs. Black has perfected this appeal contesting the adequacy of the increase in the amount of the child support ordered to be paid. In doing so, she presents sixteen points of error. Points of error numbered 1, 2, 3, 4, 5, 6, 7, 10, 12 and 14 complain of the failure of the trial court to make additional findings of fact and conclusions of law as requested. The request for additional and amended findings of fact and conclusions of law was receipted for by the trial judge, but the failure of the court to make the additional findings and conclusions was not made the subject of bills of exception and as a result the error, if any was waived. Jackman v. Jackman, 533 S.W.2d 361 (Tex. Civ.App.  San Antonio 1975, no writ); Zaruba v. Zaruba, 498 S.W.2d 695 (Tex.Civ. App.  Corpus Christi 1973, writ dism'd); Stolte v. Mack Financial Corporation, 457 S.W.2d 172 (Tex.Civ.App. Texarkana 1970, no writ); Dillingham v. Dillingham, 434 S.W.2d 459 (Tex.Civ.App.  Fort Worth 1968, writ dism'd); Steppe v. O'Day, 315 *195 S.W.2d 599 (Tex.Civ.App.  Waco 1958, writ ref'd n. r. e.). Mrs. Black calls attention to the case of Mosolowski v. Mosolowski, 562 S.W.2d 24 (Tex.Civ.App.  Tyler 1978, no writ), and asserts that since the receipt of the request was acknowledged by the trial judge, she fully complied with Rule 298, Tex.R.Civ.P. However, that court, citing Zaruba v. Zaruba, supra, and Steppe v. O'Day, supra, actually held that: "... Without a bill of exception or some other recital showing compliance with the rule, this court is not in a position to conclude that the request was not waived or withdrawn...."
The request for the additional findings and conclusions has been carefully examined and it cannot be determined how Mrs. Black has suffered any injury due to to the lack of the trial court's making the additional findings, particularly since such amended findings are required only if such points or findings relate to ultimate and controlling issues in the case. This appeal is taken with a full and complete statement of facts and no prejudice is shown to have occurred to Mrs. Black by the court's failure to make the changes and findings requested. Appellant's above numbered points of error are therefore found to be without merit.
By point of error number eight, Mrs. Black complains of the admission of evidence of her present husband's income because neither he nor his income is liable for the support of his stepchildren. No authority to sustain this position has been offered and we fail to see how the admission of such evidence could be considered reversible error. To the contrary its admission would appear to be of considerable aid to the trial judge. Even though Mrs. Black's present husband has no legal duty to support her children of a former marriage, he does have a duty to support her and his capacity to provide for her bears directly upon the amount of both monetary and non-monetary support she can provide for her children. The consideration of such evidence has been approved. Grandinetti v. Grandinetti, 600 S.W.2d 371 (Tex.Civ.App. Houston [14th Dist.] 1980, no writ); Lambert v. Lambert, 545 S.W.2d 542 (Tex.Civ.App.  Houston [1st Dist.] 1976, no writ).
By point of error number nine, Mrs. Black contends that the trial court abused its discretion by ordering an inadequate increase in child support under the presented evidence. It has long been the recognized law of Texas and that the trial court has broad discretion in assessing child support payments and that this discretion will not be disturbed on appeal unless there is a clear showing of an abuse of that discretion. Matter of Marriage of Miller, 600 S.W.2d 386 (Tex.Civ.App.  Amarillo 1980, no writ); Friedman v. Friedman, 521 S.W.2d 111 (Tex.Civ.App. Houston [14th Dist.] 1975, no writ); Ramey v. Ramey, 425 S.W.2d 900 (Tex.Civ.App. Eastland 1968, writ dism'd); Brogdon v. Brogdon, 392 S.W.2d 385 (Tex. Civ.App.  Fort Worth 1965, writ ref'd n. r. e.). The sum set to be paid as child support by a trial court may not be changed merely because a reviewing court might have set a different amount, either larger or smaller. Matter of Marriage of Miller, supra; Friedman v. Friedman, supra; White v. White, 503 S.W.2d 401 (Tex.Civ.App.  Amarillo 1973, no writ). A reviewing court cannot substitute its judgment for that of the trial court. Hazelwood v. Jinkins, 580 S.W.2d 33 (Tex.Civ.App. Houston [1st Dist.] 1979, no writ). Based upon the record here, this Court cannot conclude that the trial court abused its discretion in setting the fixed monetary amount for child support purposes.
Appellant next asserts that the trial court abused its discretion in regard to its order pertaining to the payment by Mr. Bassett of the children's tuition at a private school since Mr. Bassett could render it unenforceable by merely refusing to agree with Mrs. Black as to which school the children would attend. The record indicates that Mr. Bassett has voluntarily paid the tuition costs of sending the two children to a private school and that no controversy has arisen as to which school they would attend, and there is nothing in the record that would cause one to anticipate a future *196 problem. In the event a problem should develop, the parties may return to the trial court. However, we do not think the cause should be returned for this reason at this time.
Mrs. Black also complains of the trial court's refusal to make its support order retroactive to the date of the filing of her motion for modification. Although not referred to by Mrs. Black, it appears that Tex.Family Code Ann. § 14.08(c)(2) (Supp. 1980) authorizes the retroactive modification of support obligations which have accrued since the filing of the motion to modify. Grundy v. Grundy, 589 S.W.2d 776 (Tex.Civ.App. Dallas 1979, no writ); Casterline v. Burden, 560 S.W.2d 499 (Tex.Civ. App. Dallas 1977, no writ). However, a trial court has no affirmative duty to do so and the effective date of the modified order is within the broad discretion of the trial court and will not be disturbed in the absence of a showing of abuse of discretion. Tharp v. Tharp, 438 S.W.2d 391 (Tex.Civ. App. Houston [14th Dist.] 1969, writ dism'd). No abuse of discretion being shown, this point is overruled.
The judgment of the trial court is affirmed.


213 F.Supp.2d 850 (2002)
HEALTHCARE CAPITAL, LLC, Plaintiff,
v.
HEALTHMED, INC., et al., Defendants.
Case No. 02-CV-688.
United States District Court, S.D. Ohio, Eastern Division.
August 7, 2002.
*851 Matthew A Kairis, Jones Day Reavis & Pogue, Columbus, OH, for Plaintiff.
Laura Goodman Kuykendall, Vorys Sater Seymour & Pease, Columbus, OH, for Defendants.

OPINION AND ORDER
MARBLEY, District Judge.

I. INTRODUCTION
This matter is before the Court on the Defendants' Motion to Dismiss on Jurisdictional Grounds Only, filed on July 24, 2002. On that same date, the Plaintiff filed a Memorandum in Support of Jurisdiction. Subsequently, the Defendants filed a Memorandum in Opposition to the Plaintiff's Memorandum in Support of Jurisdiction, and the Plaintiff filed a Response to Defendants' Motion to Dismiss. The jurisdictional issue has been placed on an expedited briefing schedule due to the Plaintiff's pending motion for a preliminary injunction, currently set for hearing on September 3, 2002.
For the following reasons, the Court GRANTS the Defendants' Motion to Dismiss.

II. BACKGROUND

A. Facts
The Plaintiff, Healthcare Capital, LLC ("HCC"), is a Nevada limited liability company with its principal place of business in Franklin County, Ohio. Defendant HealthMed, Inc. ("HealthMed") is a Nevada corporation with its principal place of business in Los Angeles County, California. Defendant Mitchell Stein ("Stein"), a California resident, is an officer and director of HealthMed, as well as the majority shareholder of HealthMed. Emanual Barling, Jr. ("Barling"), a California resident, is the Chief Executive Officer of HealthMed. The Plaintiff alleges that *852 Barling's interests are so aligned with Stein's interests that he constitutes an agent or representative of Stein in his dealings with HealthMed and other institutions. Defendant Swab Financial, LLC, fka TSI Technologies and Holdings, LLC ("Swab"), is a California limited liability company with its principal place of business in Los Angeles County, California. At all times relevant, HealthMed was the sole member of Swab. Swab has owned shares of stock in Med Diversified, Inc. ("Med Diversified"), a publicly traded company, among its other assets.

1. HCC's Allegations
HCC asserts that it currently owns 667 shares of preferred stock of HealthMed, and that it has held those shares continuously since 1998. HCC also claims that all of the remaining shares in HealthMed are held by entities that are controlled by Stein or his wife, Tracy Hampton. HCC further contends that it is a minority shareholder in Med Diversified. HCC claims that in early 1999, Swab and Stein, or entities controlled by Stein, were the majority shareholders of Med Diversified.
According to HCC, Stein and Barling, on behalf of themselves and on behalf of HealthMed and Swab, directed letters, facsimiles, and telephone calls to HCC in Ohio in an attempt to solicit HCC's participation in a business association with the Defendants. HCC also claims that Stein visited Ohio in pursuit of a business relationship with HCC at least three times. As a result of their negotiations, HCC and HealthMed entered into an agreement known as the Alliance and Release Agreement ("Agreement") in January 1998. According to Donald Ayers, a member of HCC, the purpose of the Agreement, which he says was executed in Ohio, was to establish a joint venture between HCC and HealthMed.
HCC contends, on information and belief, that, as the sole member of Swab, HealthMed, through Stein and Barling, caused Swab to transfer substantial assets in the form of common stock of Med Diversified to San Diego Asset Management without notice to, or approval of, Heathmed's shareholders, including HCC. HCC alleges that Stein, Barling, and Swab transferred such stock and received payment for the sale in an effort to: (1) convert the proceeds, and then hide those proceeds from HCC; and (2) to conceal the sale of the stock from HCC, the Internal Revenue Service, and federal and state regulatory authorities. According to HCC, San Diego Asset Management defaulted on the payment for the sale of the Med Diversified stock. Swab, through Stein and Barling, filed a lawsuit against San Diego Asset Management to recover the purchase price, but then dismissed the lawsuit without obtaining payment of the full purchase price of the stock.
HCC also alleges that Stein and Barling engaged in a number of improper and illegal securities activities pertaining to the Med Diversified stock. In particular, HCC contends that Stein and Barling engaged in what they refer to as a "pump and dump" scheme,[1] conducted insider trading, and filed misleading and fraudulent reports with the Securities and Exchange Commission ("SEC"). HCC states that such actions exposed HealthMed and Swab to the risk of securities law liabilities. HCC adds that the Defendants undertook *853 these improper activities for their own personal gain, and in direct opposition to the legitimate interests of HCC as a minority shareholder of HealthMed. HCC claims that, unaware of such improper conduct, it opted to retain its stock with the consequence that its holdings became worthless because of the Defendants' actions.
Finally, HCC alleges that Stein and Barling converted HealthMed's and Swab's assets to pay for personal expenses. HCC contends that the Defendants transferred or deposited HealthMed and Swab assets to various persons and entities for the purpose of paying for personal expenses, and for the purpose of fraudulently conveying or hiding assets and funds belonging to the Plaintiff. In addition, HCC claims that Stein transferred HealthMed and Swab assets to offshore bank and brokerage accounts and/or entities controlled by Stein, for the purpose of concealing, hiding, and withholding the transfers and assets from HCC and HealthMed's and Swab's other shareholders.

2. Defendants' Allegations
In response to all of HCC's allegations, the Defendants contend that HCC no longer owns HealthMed preferred stock, and, therefore, has no basis upon which to challenge any of the Defendants' actions with respect to that stock. HealthMed contends that it redeemed HCC's stock for $50,000 in January 2000, and that HCC has not owned stock in HealthMed since that time.[2] HCC does not deny receiving payment from HealthMed for $50,000, but claims that the payment was for accrued interest owed on a $750,000 loan made to HealthMed in March 1999, not for redemption of the stock.

B. Procedural Background
On May 10, 2002, National Century Financial Enterprises, Inc. ("NCFE") filed a complaint with this Court (Judge Holschuh) against Swab, TSI Technologies and Holdings Ltd., LLC, and Barling ("NCFE Litigation").[3] NCFE is owned by Donald Ayers, Rebecca Parrett, Lance Poulsen, and Barbara Poulsen, who also own HCC. The NCFE Litigation relates to a dispute arising from an agreement entered into between NCFE and Med Diversified pursuant to which Med Diversified was to have developed and maintained specialized software for use by NCFE in exchange for consideration that was to be provided by NCFE.
On May 17, 2002, HealthMed filed a Complaint against HCC, among other related defendants, in Superior Court of the State of California for the County of Los AngelesCentral District ("California Litigation I").[4] In addition to HCC itself, the defendants included Ayers, Parrett, and the Poulsens, NCFE, affiliates of NCFE, and other entities owned by Ayers, Parrett, and the Poulsens. HealthMed filed the California Litigation I seeking a declaration by the California court stating that HCC has no ownership interest whatsoever in HealthMed, and that because HCC has no ownership interest, it is not entitled to review the accounting and financial records of HealthMed. HealthMed also brought claims of fraudulent deceit, intentional interference with prospective economic *854 advantage, unfair business practices, unjust enrichment, and breach of oral contract against HCC and the other defendants in that case.
On May 24, 2002, HCC filed a complaint against HealthMed in the First Judicial District Court of the State of Nevada ("Nevada Litigation").[5] In its complaint, HCC brought claims of: (1) breach of contract; (2) violation of records inspection statute; (3) breach of fiduciary duty; and (4) appointment of receiver/custodian against HealthMed. On June 7, 2002, HCC filed an amended complaint. In its amended complaint, HCC eliminated the breach of fiduciary duty claim, and sought two forms of relief: (1) specific performance of HealthMed's alleged duty to convert HCC's preferred stock to common stock; and (2) an order declaring that HCC is entitled to review the accounting and financial records of HealthMed, along with the corporate records of HealthMed, including but not limited to, the bylaws and stock ledger. On June 11, 2002, HealthMed filed a Motion to Dismiss the Amended Nevada Complaint on the basis that HCC did not hold any shares in HealthMed and, therefore, had no right to either challenge HealthMed's corporate conduct or review its corporate records.
On June 12, 2002, HCC filed an action in the Court of Common Pleas of Franklin County, Ohio against HealthMed, Stein, and Barling ("Ohio Litigation").[6] The Ohio Litigation contained essentially the same allegations as the original Nevada Complaint.
On July 1, 2002, HCC filed an Opposition to HealthMed's Motion to Dismiss in Nevada. In its pleading, HCC asked for discovery to proceed pursuant to the Nevada Rules of Civil Procedure.
On July 2, 2002, Swab filed a Complaint in Superior court of the State of California for the County of Los AngelesCentral Division against NCFE, Millenium Health Group, and others for securities fraud and manipulation relating to shares of Med Diversified ("California Litigation II").[7]
On July 12, 2002, HealthMed removed the Ohio Litigation from state court to this Court. Subsequently, on July 18, 2002, HCC filed its First Amended Complaint, adding Swab as a party defendant. Through the First Amended Complaint, HCC asserts the following causes of action: (1) breach of fiduciary duty; (2) fraud; (3) conspiracy; (4) conversion; and (5) fraudulent transfer under the Ohio Fraudulent Transfer Act, Ohio Rev.Code §§ 1336.01 et seq. HCC seeks an injunction against disposing of assets under Ohio Rev.Code § 1336.07, injunctive attachment, a permanent injunction, and unjust enrichment and restitution as relief for its claims. Along with its First Amended Complaint, HCC also filed its Motion for a Temporary Restraining Order and Motion for a Preliminary Injunction, currently pending with this Court.
On July 19, 2002, this Court held a conference with the parties pursuant to Local Rule 65.1, and denied HCC's Motion for a Temporary Restraining Order. During the conference, the Defendants raised the question of whether this Court has jurisdiction to entertain the Plaintiff's Motion for a Preliminary Injunction. This *855 matter is now before the Court on the Defendants' Motion to Dismiss on Jurisdictional Grounds Only.

III. STANDARD OF REVIEW
The Defendants move to dismiss this action pursuant to Rules 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure.[8]

A. Rule 12(b)(1)
Pursuant to Fed.R.Civ.P. 12(b)(1), a defendant may challenge the Court's subject matter jurisdiction. In such a challenge, the plaintiff has the burden of proving the Court's subject matter jurisdiction. Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir.1986). In the context of a Rule 12(b)(1) motion, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). A Rule 12(b)(1) motion to dismiss will be granted only if, taking as true all facts alleged by the plaintiff, the court is without subject matter jurisdiction to hear the claim.

B. Rule 12(b)(2)
Similar to its 12(b)(1) counterpart, Fed. R.Civ.P. 12(b)(2) allows a defendant to challenge the Court's jurisdiction over the person. When such a motion is filed, "[t]he party seeking to assert personal jurisdiction bears the burden of demonstrating that such jurisdiction exists." Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002) (citing Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir.2002)). In the face of a supported motion to dismiss, the plaintiff may not rest on his pleadings, but must, by affidavit or otherwise, set forth specific evidence supporting jurisdiction. Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991) (citing Weller v. Cromwell Oil Co., 504 F.2d 927, 930 (6th Cir.1974)). When the Court considers a motion to dismiss pursuant to Rule 12(b)(2) without an evidentiary hearing on the issue of personal jurisdiction, however, the plaintiff "`need only make a prima facie showing of jurisdiction.'" Bird, 289 F.3d at 871 (quoting Neogen Corp., 282 F.3d at 887) (internal citation omitted). The plaintiff can make this prima facie showing by "`establishing with reasonable particularity sufficient contacts between [the Defendants] and the forum state to support jurisdiction.'" Neogen Corp., 282 F.3d at 887 (quoting Provident Nat'l Bank v. California Fed. Savings Loan Ass'n, 819 F.2d 434, 437 (3d Cir.1987)).
In deciding a Rule 12(b)(2) motion to dismiss, the Court is to construe the facts in the light most favorable to the non-moving party. Id. Significantly, the Court is not to weigh the controverting assertions of the party seeking dismissal. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996) (citing Theunissen, 935 F.2d at 1459). This refusal to weigh the defendants' controverting assertions is necessary to prevent non-resident defendants from avoiding jurisdiction simply by filing an affidavit that denies all jurisdictional facts. Id. (citing Theunissen, 935 F.2d at 1459).

IV. DISCUSSION
The Defendants seek dismissal of the Plaintiff's Complaint on three alternative *856 grounds: (1) application of the "first-to-file" rule; (2) abstention; and (3) lack of personal jurisdiction over the Defendants. The Court will address each of these arguments in turn.

A. First-to-File Rule
First, the Defendants contend that this Court should dismiss the Plaintiff's Complaint because those claims should proceed as part of either the California I or Nevada Litigations, both of which were filed well before this case was filed. The basis of the Defendants' argument is that all of the Plaintiff's claims hinge on a preliminary determination of whether HCC continued to own stock in HealthMed after HealthMed's $50,000 payment to HCC in January 2000an issue that is already before the California and Nevada state courts. As a preliminary matter, the Court finds that the Defendants are correct that all of the Plaintiff's claims before this Court hinge on a determination of whether the Plaintiff continued to own shares of stock in HealthMed after January 2000. If the Defendants are correct that the Plaintiff's stock was redeemed in January 2000 and HCC has not owned any stock in HealthMed or Med Diversified since that time, then all of HCC's claims must fail.
Pursuant to the first-to-file rule, when suits involving substantially the same issues and parties are filed in courts of concurrent jurisdiction, the court in which the first action was filed should proceed to judgment. Plating Resources, Inc. v. UTI Corp., 47 F.Supp.2d 899, 903 (N.D.Ohio 1999) (citing In re Burley, 738 F.2d 981, 988 (9th Cir.1984) and Barber-Greene Co. v. Blaw-Knox Co., 239 F.2d 774, 778 (6th Cir.1957)). "The first-to-file rule is a well-established doctrine that encourages comity among federal courts of equal rank." Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., Inc., 2001 WL 897452, *3, 16 Fed. Appx. 433, 437 (6th Cir. July 31, 2001) (emphasis added). As such, the rule applies only when substantially similar actions have been filed in two different federal district courts. Id. The Court finds that, while the Defendants are correct that the determination of HCC's claims hinges on the determination of an issue already properly before two other courts in cases involving substantially the same parties, the first-to-file rule does not apply under these circumstances. Here, the actions similar to the matter sub judice were previously filed in state court, not federal court. Thus, the first-to-file doctrine is inapplicable in this case.[9]
Therefore, the Court DENIES the Defendants' Motion to Dismiss based upon an application of the first-to-file rule.

B. Abstention
Second, the Defendants argue that even if the first-to-file rule as such is inapplicable under these circumstances, this Court should abstain from exercising its jurisdiction over the Plaintiff's claims based on the previously filed Nevada and California I Litigations. The Court focuses its analysis with reference to the Nevada Litigation.
The Supreme Court first articulated the doctrine now known as Colorado River abstention in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and then refined it in Moses H. Cone *857 Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Pursuant to the doctrine, federal district courts may abstain from hearing certain cases in deference to pending state court cases. Colorado River, 424 U.S. at 818-19, 96 S.Ct. 1236. As the Sixth Circuit Court of Appeals has construed it, "[i]n Colorado River, the Supreme Court noted that, despite the `virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,' considerations of judicial economy and federal-state comity may justify abstention in situations involving the contemporaneous exercise of jurisdiction by state and federal courts." Romine v. Compuserve Corp., 160 F.3d 337, 339 (6th Cir.1998) (quoting Colorado River, 424 U.S. at 817, 96 S.Ct. 1236). In Moses Cone, the Supreme Court emphasized that abstention to avoid duplicative litigation is permissible only in exceptional circumstances, and that the mere existence of parallel state and federal proceedings is insufficient to justify abstention. Moses Cone, 460 U.S. at 14-15, 103 S.Ct. 927.
In determining whether Colorado River abstention is appropriate, this Court is to consider five factors, which are to be carefully weighed and balanced against each other rather than viewed as a mechanical checklist. Specifically, the Court is to consider: (1) whether federal or state law provides the basis for decision of the case; (2) whether either court has assumed jurisdiction over any res or property; (3) whether the federal forum is less convenient to the parties; (4) avoidance of piecemeal litigation; and (5) the order in which jurisdiction was obtained. Romine, 160 F.3d at 340-41 (citing Colorado River, 424 U.S. at 818-19, 96 S.Ct. 1236).
Before delving into an analysis of the five factors to determine whether abstention is proper, however, the Court must first determine that the concurrent state and federal actions are actually parallel. Id. at 339. If the actions are not parallel, then the Court's analysis must end, as "the district court would have nothing in favor of which to abstain." Baskin v. Bath Township Bd. of Zoning, 15 F.3d 569, 571 (6th Cir.1994) (citing Crawley v. Hamilton County Comm'rs, 744 F.2d 28, 31 (6th Cir.1984)). For an action to be parallel, there must be identity of parties and issues in the federal and state court actions. Id. at 572. Exact parallelism, however, is not required; "`[i]t is enough if the two proceedings are substantially similar.'" Romine, 160 F.3d at 340 (quoting Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989)). Furthermore, the actions must be parallel as they currently exist; it is not enough that the state court proceeding could be modified to be parallel to the federal action. Baskin, 15 F.3d at 572 (citing Crawley for the proposition that "the district court must compare the issues in the federal action to the issues actually raised in the state court action, not those that might have been raised"). Essential to the determination of whether the two actions are parallel is whether resolution of the state court action will provide complete relief for the federal action. Heitmanis v. Austin, 899 F.2d 521, 528 (6th Cir.1990) (finding that the district court should not have abstained when additional issues not addressed by the state litigation were raised in the federal complaint).
HCC contends that the instant action is not parallel to the Nevada Litigation because there is neither identity of parties nor identity of issues. This Court disagrees. First, as to the issue of identity of the parties, the only difference between the parties in the Nevada action and those named here is that, here, in addition to HealthMed, Stein, Barling, and Swab are also named. Stein and Barling, however, according to HCC's own pleadings, constitute the majority shareholder, officer, and *858 director of HealthMed. Thus, their interests are wholly aligned with those of HealthMed. In addition, HealthMed is the sole member of Swab. Thus, any wrongdoing perpetrated by Swab was done so only by and through HealthMed, which acts through Stein and Barling. Clearly, the defendants named in this case are substantially similar to those in the Nevada Litigation. Furthermore, HCC cannot defeat the Defendants' claims that the actions are parallel simply by pointing to the addition of certain defendants whose claims are aligned with those of the defendants in the state case. As the Romine Court noted, "`[i]f the rule were otherwise, the Colorado River doctrine could be entirely avoided by the simple expedient of naming additional parties.'" Romine, 160 F.3d at 340 (quoting Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 695 (7th Cir.1985)). Therefore, although HCC has named additional defendants in the instant action, the Court finds that the parties here and in the Nevada Litigation are, nonetheless, substantially similar so as to be parallel.
Second, the Court finds that there is identity of issues in the two actions. On the face of the complaints, HCC is correct that more claims are asserted in this action than are being adjudicated in the Nevada Litigation. All of the claims, however, arise out of a common nucleus of operative facts. Specifically, both here and in the Nevada Litigation, HCC brings claims against HealthMed based on the alleged securities violations commited by HealthMed and its officers and directors. Furthermore, HCC's success in both actions hinges on the determination of whether HCC has a valid interest in the shares of stock that were the object of the alleged improprieties. In short, the claims alleged here that are not specifically set forth in the Nevada Litigation are so inextricably intertwined with the claims set forth there as to comprise parallel actions.
Having found that the federal and state actions are, in fact, parallel, the Court turns to the question of whether Colorado River abstention is appropriate. The Court finds that every factor set forth in Colorado River weighs in favor of abstention. As a threshold consideration, although the matter sub judice was removed to this Court on the basis of federal question jurisdiction, virtually all of the claims alleged by HCC are premised on state law. Second, it is the Nevada court, not this Court, that has control over the financial and corporate records to which HCC seeks access, and that provide the proof that is necessary for HCC to succeed on its claims of fraud, breach of fiduciary duty, and conversion. Third, Ohio is a far less convenient forum for the Defendants than is Nevada. Clearly, Nevada is more convenient for HealthMed, as HealthMed is incorporated in Nevada. In addition, Nevada is more convenient for Stein and Barling, both of whom are residents of California. Furthermore, while Ohio may be a more convenient forum for HCC, the fact that HCC is already engaging in litigation in Nevada demonstrates to the Court that it is not particularly inconvenient for HCC to litigate there.
Fourth, abstention by this Court would aid in the avoidance of piecemeal litigation. Currently, there are two other cases pending in which the determination of whether HCC owned stock in HealthMed after January 2000 is essential. Abstention would mean avoiding the complications that would arise if this Court were to reach a different conclusion regarding that issue than the either the Nevada or California court. Fifth, jurisdiction was obtained by the Nevada court approximately seven weeks before this Court obtained jurisdiction *859 over substantially the same issues and parties.
Finally, the Court looks to Colorado River itself, which cautioned that abstention is appropriate only when extraordinary circumstances exist. Colorado River, 424 U.S. at 813, 96 S.Ct. 1236. Here, extraordinary circumstances exist simply by virtue of the fact that substantially the same parties are currently engaging in litigation that involves substantially the same issues in three different courts (Nevada, California, and the Southern District of Ohio) and four different actions (Nevada Litigation, California I Litigation, California II Litigation, and the matter sub judice). For this Court to refuse to abstain from hearing this case would be to permit the parties to continue to engage in such inefficient litigation practices that waste precious judicial resources. Furthermore, to refuse to abstain under these circumstances would be to encourage parties to engage in forum shopping by continuing to file substantially similar litigation under various guises until they receive the quickest and most desirable ruling. This Court cannot fathom such a result.
Therefore, the Court GRANTS the Defendants' Motion to Dismiss pursuant to the Colorado River abstention doctrine.

C. Personal Jurisdiction
The Defendants argue that, even if the Court were to find that abstention is inappropriate, it should nonetheless dismiss the Plaintiff's Complaint for lack of in personam jurisdiction over the Defendants. They support their motion with affidavits of both Stein and Barling in which the Defendants deny virtually any fact that would support jurisdiction.[10] Based on the following discussion, the Court finds that the Defendants are correct that even if abstention were inappropriate, it would nonetheless grant the Defendants' Motion to Dismiss for lack of personal jurisdiction.
To determine whether this Court may exercise personal jurisdiction over the Defendants, the Court must engage in a two-part inquiry. First, the Court must address whether Ohio's long-arm statute, Ohio Rev.Code § 2307.382, permits the exercise of jurisdiction over the defendants. Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002). Second, the Court must determine whether the exercise of jurisdiction over the defendants would deny the defendants due process of law. Id. (citing Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir.1992)). The Sixth Circuit has recognized that Ohio's long-arm statute is not coterminous with the limits of due process. Id. (citing Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir.2000)). Nevertheless, the Sixth Circuit has found that "in evaluating whether personal jurisdiction is proper under Ohio's long-arm statute, [this Circuit has] consistently focused on whether there are sufficient minimum contacts between the nonresident defendant and the forum state so as not to offend `traditional notions of fair play and substantial justice.'" Id. at 871-72 (quoting Calphalon Corp., 228 F.3d at 721) (internal citations omitted). This Court shall focus its analysis accordingly.
General jurisdiction is proper where "a defendant's contacts with the forum state are of such a continuous and systematic nature that the state may exercise personal jurisdiction over the defendant even if the action is unrelated to the defendant's contacts with the state." Third Nat'l *860 Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir.1989) (internal citation omitted); see Nationwide Mut. Ins. Co. v. Tryg Intern. Ins. Co., Ltd., 91 F.3d 790, 793 (6th Cir.1996) (stating that general jurisdiction exists when the defendant's "continuous and systematic" conduct within the forum state renders the defendant amenable to any lawsuit brought in that state). Without doubt, HCC has not demonstrated that the Defendants maintained any sort of continuous or systematic conduct within Ohio. Therefore, the Court turns to the question of whether specific jurisdiction is proper.
Specific jurisdiction may exist in cases where the subject matter of the lawsuit arises out of or is related to the defendant's contacts with the forum. Nationwide, 91 F.3d at 793. The Sixth Circuit has established the following three-part test to determine whether specific jurisdiction is proper: (1) the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state; (2) the cause of action must arise from the defendant's activities in the forum state; and (3) the acts of the defendant or consequences caused by him must have a substantial enough connection with the forum state to make exercise of personal jurisdiction reasonable. Id. at 794 (citing Payne v. Motorists' Mut. Ins. Cos., 4 F.3d 452, 455 (6th Cir.1993)).
With respect to the first part of the analysis, the Sixth Circuit has emphasized that "`[t]his "purposeful availment" requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of "random," "fortuitous," or "attenuated" contacts.'" Id. at 795 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)) (internal quotations omitted). Furthermore, the Supreme Court has recognized that:
the existence of a contract with a citizen of the forum state, standing alone, will not suffice to confer personal jurisdiction over a foreign defendant. Rather, "prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing ... must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum."
Nationwide, 91 F.3d at 795 (quoting Burger King, 471 U.S. at 478-79, 105 S.Ct. 2174).
The Court recognizes that "when a foreign defendant purposefully directs communications into the forum that cause injury within the forum, and those communications form the `heart' of the cause of action, personal jurisdiction may be present over that defendant without defendant's presence in the state." Neal v. Janssen, 270 F.3d 328, 333 (6th Cir. 2001). The Court also acknowledges that the Defendants directed numerous telephone calls, facsimiles and letters to HCC in Ohio while negotiating the agreement that formed the basis of HCC's ownership of stock in Med Diversified, and that Stein even visited Ohio on at least a few occasions. Nonetheless, the Court finds that the Defendants neither purposefully availed themselves of the benefits of acting in Ohio for the purposes of this litigation, nor does the cause of action arise from the defendant's activities in the forum state, as it must for personal jurisdiction to exist. In its briefs on the issue of jurisdiction, HCC contends that the fraudulent communications directed at HCC in Ohio form the "heart" of its causes of action. A review of the Complaint, however, belies this assertion.
The First Claim for Relief in the Complaint sets forth a cause of action for *861 breach of fiduciary duty. The claim is based on Stein's and Barling's alleged improper control and use of corporate assets for their own personal gain to the detriment of HCC as a shareholder of HealthMed. Specifically, HCC alleges that Stein and Barling dissipated corporate assets, mismanaged corporate assets, failed to protect corporate assets, and acted for their own personal interests. None of this conduct is alleged to have occurred in Ohio. To the contrary, this conduct occurred, if at all, in California, where the Defendants actually reside. Furthermore, none of the communications purposefully directed to HCC in Ohio form the "heart" of this claim for breach of fiduciary duty; the communications directed to HCC are, in fact, unrelated to this alleged conduct.
The Second Claim for Relief in the Complaint sets forth a cause of action for fraud. This claim is also based on Stein's and Barling's alleged improper mismanagement and conversion of HealthMed's corporate assets for their own personal benefit and to the detriment of HCC. The Complaint alleges, in addition, that Swab engaged in fraud by concealing its transfer of assets on behalf of Stein and Barling. In support of this claim, HCC relies specifically on the Defendants' alleged filing of false and misleading disclosures with the SEC, insider trading, and fraudulent convincing of investors in New York to purchase Med Diversified stock. Like the breach of fiduciary duty claim, none of the conduct giving rise to this claim occurred in Ohio, nor is this claim based on the communications that were purposefully directed to Ohio. Rather, this claim is based on conduct that occurred in California, New York, and other remote jurisdictions, all of which have no connection to the communications transmitted to HCC in Ohio.
The Third Claim for Relief, conspiracy, is premised on Stein's and Barling's alleged agreement to transfer and convert corporate assets for their own benefit. Similarly, the Fourth Claim for Relief, conversion, is based upon Stein's and Barling's alleged conversion of the assets of HealthMed and Swab. The Fifth Claim for Relief, fraudulent transfer under Ohio Uniform Fraudulent Transfer Act, Ohio Rev. Code §§ 1336.01 et seq., is premised on the Defendants' alleged transfers of assets without receiving adequate compensation therefor in an apparent effort to render themselves insolvent and unable to meet the legitimate needs of their creditors, including HCC. By HCC's own description of the events, none of these alleged actions took place in Ohio, nor were they related to the communications that were purposefully directed to HCC in Ohio.[11]
The Court acknowledges HCC's argument that the Defendants concealed their fraudulent and other allegedly illegal conduct when they communicated with HCC in Ohio. Nonetheless, the conduct that gives rise to the cause of action is the conduct that occurred outside Ohio. Were it not for the Defendants' alleged improprieties, all of which allegedly occurred outside this state, the Plaintiff would have no cause of action. Thus, the Court finds that the Defendants did not purposefully avail themselves of the privilege of acting in Ohio simply by directing certain communications to HCC in Ohio, as those communications do not form the "heart" of the instant cause of action. Furthermore, the cause of action does not arise from the Defendants' activities in Ohio.
Therefore, the Court finds that the Plaintiff has not met its burden of demonstrating that personal jurisdiction exists, and, even if the Court had found that *862 abstention were improper, it would GRANT the Defendants' Motion to Dismiss on that basis.

V. CONCLUSION
Based on the foregoing analysis, the Court GRANTS the Defendants' Motion to Dismiss on Jurisdictional Grounds Only.
IT IS SO ORDERED.
NOTES
[1]  According to HCC, this scheme entailed Stein and Barling selling a substantial number of shares of Med Diversified common stock while, at the same time, actively attempting to generate interest in the purchase of such stock through presentations to venture capital companies and other institutional or individual investors. Neither Stein nor Barling revealed that they were selling their Med Diversified stock at the same time that they were marketing to the stock to investors.
[2]  In their Motion to Dismiss on Jurisdictional Grounds Only, the Defendants expressly reserved any and all other defenses, presumably including those based on factual issues. For purposes of the present motion, however, the Defendants limited their allegations to matters relevant to the determination of whether this Court has jurisdiction.
[3]  The NCFE Litigation is styled National Century Financial Enterprises, Inc. v. Swab Financial, LLC, et al., Case No. 02-CV-00463.
[4]  The California Litigation I is styled HealthMed, Inc. v. Intercontinental Investment Associates, Ltd., et al., Case No. BC274140.
[5]  The Nevada Litigation is styled HCC Capital, LLC v. HealthMed, Inc., Case No. 02-00848A.
[6]  The Ohio Litigation was styled HCC Capital, LLC v. HealthMed, Inc., et al., Case No. 02CVC06-6525.
[7]  The California Litigation II is styled Swab Fin., LLC v. Chartwell Diversified Servs., Inc., et al., Case No. BC276881.
[8]  The Defendants assert that they are also seeking to dismiss the action pursuant to Fed. R.Civ.P. 12(b)(3) based upon improper venue. In their pleadings, however, the Defendants do not argue that the Southern District of Ohio, Eastern Division constitutes an improper venue. Rather, in connection to their other jurisdictional arguments, the Defendants contend only that either California or Nevada would be a more convenient venue for resolution of the Plaintiff's claims.
[9]  The Court notes that, at various points in its pleadings, HCC points out that the case that was truly filed first was filed here in the Southern District of Ohio before Judge Holschuh. While that case involves substantially the same parties as this matter, it involves totally distinct issues of fact and law. Thus, for purposes of the first-to-file rule, that case, National Century Financial Enterprises, Inc. v. Swab Financial, LLC, et al., Case No. 02-CV-00463, is irrelevant.
[10]  For the reasons set forth in Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991), and CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996), this Court cannot consider the Defendants' affidavits in determining whether the Plaintiff has met its burden of proving that personal jurisdiction exists. See discussion supra Part III.B.
[11]  The Plaintiff's remaining claims for relief do not allege particular wrongdoing by the Defendants, but simply set forth the particular type of relief sought by the Plaintiff.


                            NUMBER 13-98-00374-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG
______________________________________________________________

PEDRO MONTANO, M.D.,                                                        Appellant,

                                           v.

DOLORES POGUE,                                       Appellee.
_____________________________________________________________

              On appeal from the 139th District Court
                    of Hidalgo County, Texas.
______________________________________________________________

                         MEMORANDUM OPINION

               Before Justices Yañez, Rodriguez, and Benavides
                      Memorandum Opinion Per Curiam

      This appeal was abated by this Court on December 3, 1998, due to the bankruptcy

of one of the parties to this appeal. See 11 U.S.C. § 362; see generally TEX . R. APP. P.

8. Since the abatement there has been no activity in this appeal. On April 16, 2009, the

Court ordered the parties to file an advisory regarding the status of the appeal and, if
applicable, a motion to reinstate the appeal or a motion to dismiss the appeal. The order

notified the parties that failure to respond to the order would result in reinstatement and

dismissal of the appeal for want of prosecution.

       The parties have failed to respond. Accordingly, we reinstate and dismiss the

appeal for want of prosecution. See TEX . R. APP. P. 42.3(b).

                                                                PER CURIAM

Memorandum Opinion delivered and
filed this the 14th day of May, 2009.

                                            2


608 F.3d 150 (2010)
NORFOLK SOUTHERN RAILWAY COMPANY, Plaintiff-Appellee,
v.
CITY OF ALEXANDRIA, a municipal corporation organized under the laws of the Commonwealth of Virginia; Richard Baier, in his official capacity as Director of Transportation and Environmental Services for the City of Alexandria, Defendants-Appellants,
v.
RSI Leasing, Incorporated, Third Party Defendant-Appellee. *151
Norfolk Southern Railway Company, Plaintiff-Appellant,
v.
City of Alexandria, a municipal corporation organized under the laws of the Commonwealth of Virginia; Richard Baier, in his official capacity as Director of Transportation and Environmental Services for the City of Alexandria, Defendants-Appellees,
v.
RSI Leasing, Incorporated, Third Party Defendant-Appellee.
Nos. 09-1566, 09-1608.
United States Court of Appeals, Fourth Circuit.
Argued March 24, 2010.
Decided June 16, 2010.
*153 ARGUED: William Eric Pilsk, Kaplan Kirsch & Rockwell, LLP, Washington, D.C., for Appellants/Cross-Appellees. Gary Alvin Bryant, Willcox & Savage, PC, Norfolk, Virginia, for Appellees/Cross-Appellants.
ON BRIEF: Charles A. Spitulnik, Lisa Reynolds, Kaplan Kirsch & Rockwell, LLP, Washington, D.C.; James L. Banks, Christopher P. Spera, Office of the City Attorney, Alexandria, Virginia, for Appellants/Cross-Appellees.
Before KING and GREGORY, Circuit Judges, and JOSEPH R. GOODWIN, Chief United States District Judge for the Southern District of West Virginia, sitting by designation.
*154 Affirmed in part, dismissed in part, and vacated in part by published opinion.
Judge KING wrote the opinion, in which Judge GREGORY joined. Judge
GOODWIN wrote an opinion concurring in part and dissenting in part.

OPINION
KING, Circuit Judge:
These appeals concern whether three separate provisions of federal law serve to preempt an ordinance enacted by the City of Alexandria, Virginia (the "City"). The City's ordinance has been applied to Norfolk Southern Railway Company ("Norfolk Southern") through a series of haul permits. In its appeal, the City maintains that the district court erred in ruling that two federal statutesthe Interstate Commerce Commission Termination Act (the "ICCTA") and the Hazardous Materials Transportation Act (the "HMTA")preempt the ordinance and haul permits. See Norfolk S. Ry. Co. v. City of Alexandria, No. 1:08-cv-618, 2009 WL 1011653 (E.D.Va. April 15, 2009) (the "District Court Opinion").[1] By cross-appeal, Norfolk Southern challenges the court's conclusion that a third statute, the Federal Rail Safety Act (the "FRSA"), does not also preempt the ordinance and permits.
As explained below, we affirm the district court's decision on preemption with respect to the ICCTA. Because that disposition renders moot the alternative bases for federal preemption, we dismiss the HMTA aspect of the City's appeal, as well as the cross-appeal. Finally, we vacate the court's judgment on the HMTA and FRSA preemption claims.

I.

A.
In April 2008, Norfolk Southern began operating an ethanol transloading facility (the "Facility") in Alexandria, Virginia. The Facility enables Norfolk Southern to transfer bulk shipments of ethanol from its railcars onto surface tank trucks that are operated by third parties. Shippers contract with Norfolk Southern to have ethanol shipped to the Facility by rail, and Norfolk Southern includes the expense of transloading in its overall price for transporting ethanol. Norfolk Southern's agent, RSI Leasing, Incorporated ("RSI"), performs the transloading operations at the Facility.[2] All further arrangements regarding the transportation of ethanol from the Facility by truck, however, are made between the ethanol shippers and receivers and the private trucking companies. The tank trucks loaded at the Facility transport ethanol via the City's streets to nearby interstate highways and en route to their ultimate destinations.
The Facility is located in the City near two residential neighborhoods, an elementary school, the Van Dorn Metro Station and associated commuter parking lot, and other populated areas. Because ethanol is highly flammable and volatile, the City took at least two steps in June 2008 to alleviate perceived safety concerns. First, the City petitioned the Surface Transportation Board (the "STB"), an independent federal agency, for a declaration regarding the City's authority to regulate the Facility. Second, pursuant to an ordinance prohibiting the hauling of certain materials on its streets, the City unilaterally issued a thirty-day haul permit to Norfolk Southern *155 (the "Permit").[3] Norfolk Southern declined to abide by any aspect of the Permit, taking the position that it was facially inapplicable to the Facility, and, in any event, was preempted by federal law.
In response, on June 14, 2008, the City amended its original ordinance to explicitly govern the transportation within the City of "bulk materials," including ethanol. City Code of Alexandria § 5-2-27(a) (as amended, the "Ordinance").[4] A violation of the Ordinance constitutes a misdemeanor criminal offense. Pursuant to the Ordinance, the City, on July 3, 2008, unilaterally issued a second thirty-day Permit to Norfolk Southern. This Permit, and those issued thereafter, contained the same restrictions as the original Permit. Norfolk Southern, however, adhered to its position that federal law preempted the City's effort to regulate ethanol transloading at the Facility and thus refused to abide by the Permit's restrictions.

B.
On June 16, 2008, Norfolk Southern filed this declaratory judgment action in the Eastern District of Virginia against the City and Richard Baier of the City's Department of Transportation and Environmental Services.[5] In three counts of its complaint, Norfolk Southern alleged that the Ordinance, as applied through the Permit, was preempted by three separate federal statutes, the FRSA (Count Three), the ICCTA (Count Four), and the HMTA (Count Five).[6] For relief, Norfolk Southern. sought a declaration that the Ordinance and Permit were preempted and an injunction barring the City from enforcing them.
On June 25, 2008, the City filed its answer to the complaint, a third-party complaint against RSI, and a counterclaim against Norfolk Southern. The third-party *156 complaint and counterclaim sought declaratory and injunctive relief against both Norfolk Southern and RSI. In support thereof, the City alleged that
[b]ecause [Norfolk Southern] and RSI intend to increase the volume of ethanol transloading operations to a 24-hour a day, 7-day a week basis, and to use many more trucks than the permit allows, there is an actual controversy between the parties regarding the authority of the City to regulate the use of City streets by ethanol-filled trucks from the Van Dorn Yard.
J.A. 81. Following discovery, the parties filed cross-motions for summary judgment, seeking relief as a matter of law.
Before the district court ruled on the cross-motions, the STB issued its decision on the City's petition for an administrative declaration concerning the City's authority to regulate the Facility. Notably, the STB concluded that Norfolk Southern's operation thereof "constitutes transportation by rail carrier" and thus is "shielded from most state and local laws, including zoning laws, by the preemption provision [of the ICCTA]." City of Alexandria, VirginiaPetition for Declaratory Order, Finance Docket No. 35157 at 1 (S.T.B. Feb. 17, 2009) (the "STB Decision").[7] The STB Decision explained that "the Facility is part of [Norfolk Southern]'s rail operations" and, as such, "the Facility qualifies for federal preemption." Id. at 3.
Two months after the STB Decision, the district court ruled on the parties' cross-motions for summary judgment. In pertinent part, the court concluded that the Ordinance was preempted under both the ICCTA and the HMTA. See District Court Opinion, 2009 WL 1011653, *7-15. Additionally, however, the court ruled that the Ordinance was not preempted under the FRSA. See id., 2009 WL 1011653, *7-8. The City appeals from the award of partial summary judgment to Norfolk Southern, maintaining that the Ordinance is not preempted by either the ICCTA or the HMTA. Norfolk Southern and RSI have cross-appealed, contending that the Ordinance is also preempted under the FRSA. We possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.
We review de novo a district court's award of summary judgment. Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir.2002). On cross-motions for summary judgment, a district court should "rule upon each party's motion separately and determine whether summary judgment is appropriate as to each under the [Federal Rule of Civil Procedure] 56 standard." Monumental Paving & Excavating, Inc. v. Pa. Mfrs.' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir.1999). Summary judgment is appropriate only if the record shows "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c).

III.
Our resolution of these appeals implicates two important principles of constitutional law. First, the doctrine of preemptionrooted in the Constitution's Supremacy Clausepermits Congress to expressly displace state or local law in any given field. See Worm v. Am. Cyanamid Co., 970 F.2d 1301, 1304 (4th Cir. 1992) ("Congress may expressly provide that federal law supplants state authority in a particular field....").[8] Second, the *157 principle of constitutional avoidance set forth in Ashwander v. Tennessee Valley Authority requires the federal courts to strive to avoid rendering constitutional rulings unless absolutely necessary. See 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("It is not the habit of the Court to decide questions of a Constitutional nature unless absolutely necessary to a decision of the case." (internal quotation marks omitted)).
Although the district court addressed and ruled upon each of Norfolk Southern's alternative statutory bases for preemption, our resolution of these appeals may rest on only one of those bases if it satisfies the legal standards for preemption. See Catawba Indian Tribe of S.C. v. City of Rock Hill, 501 F.3d 368, 372 n. 4 (4th Cir.2007) ("We are ... entitled to affirm the district court on any ground that would support the judgment in favor of the party prevailing below."). And, as explained herein, we are content to affirm the court's ruling that the Ordinance, as applied to Norfolk Southern through the Permit, is preempted by the ICCTA. Because our disposition of the ICCTA claim renders moot Norfolk Southern's other preemption claims, we need not reach or address the HMTA preemption aspect of the City's appeal or the FRSA preemption issue presented by Norfolk Southern's cross-appeal. We therefore dismiss the HMTA and FRSA aspects of these appeals and vacate the court's judgment on those two claims.

A.
In 1887, the Interstate Commerce Act created the Interstate Commerce Commission (the "ICC"), which regulated rail transportation for 122 years. In 1995, Congress enacted the ICCTA, which terminated the ICC and replaced it with the STB, which has "broad jurisdiction over `transportation by rail carriers.'" Island Park, LLC v. CSX Transp., 559 F.3d 96, 102 (2d Cir.2009) (quoting 49 U.S.C. § 10501(b)(1)). Indeed, the STB has exclusive jurisdiction over "(1) transportation by rail carriers ... and (2) the construction, acquisition, operation, abandonment, or discontinuance of ... tracks, or facilities." 49 U.S.C. § 10501(b). "Transportation" by rail carriers includes, in relevant part,
(A) [a] facility ... related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use; and
(B) services related to that movement, including receipt, delivery, elevation, transfer in transit, ... storage, handling, and interchange of property.
Id. § 10102(9). The ICCTA also contains an express preemption clause: "the remedies provided under this part with respect to the regulation of rail transportation are exclusive and preempt the remedies provided under Federal and State law." Id. § 10501(b).
Our Court has heretofore recognized that Congress has "`narrowly tailored the ICCTA preemption provision to displace only "regulation," i.e., those state laws that may reasonably be said to have the effect of "managing" or "governing" rail transportation.'" PCS Phosphate Co. v. Norfolk S. Corp., 559 F.3d 212, 218 (4th Cir.2009) (quoting Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, *158 1331 (11th Cir.2009)). By contrast, the ICCTA does not preempt those state or local laws that have a more remote or incidental impact on rail transportation. See id. Moreover, state and local governments may act, pursuant to their general police powers, to regulate certain areas affecting railroad activity; for example, local electric, building, fire, and plumbing codes are generally not preempted. See Green Mtn. R.R. Corp. v. Vermont, 404 F.3d 638, 643 (2d Cir.2005).

1.
In assessing this matter, we first consider whether the Ordinance, as applied through the Permit, regulates "transportation by a rail carrier," as defined by the ICCTA. Any such regulation is preempted unless it can be classified as a permissible exercise of the City's police powers. Although the parties agree that ethanol transloading falls within the ICCTA's preemptive scope, they disagree on whether the Ordinance and Permit directly regulate the Facility and its transloading operations.
It is well established that a state or local law that permits a non-federal entity to restrict or prohibit the operations of a rail carrier is preempted under the ICCTA. See, e.g., Green Mtn., 404 F.3d at 643 (concluding that ICCTA preempted state environmental law that "unduly interfere[d] with interstate commerce by giving the local body the ability to deny the carrier the right to construct facilities or conduct operations" (internal quotation marks omitted)); Vill. of Ridgefield Park v. N.Y. Susquehanna & W. Ry. Corp., 163 N.J. 446, 750 A.2d 57, 64 (2000) (holding that state and local regulation "must not have the effect of foreclosing or restricting the railroad's ability to conduct its operations or otherwise unreasonably burdening interstate commerce" (internal quotation marks omitted)).[9]
Norfolk Southern maintains that, "by asserting the power to determine if, when, and under what conditions trucks may enter or leave the Facility, the City's actions do directly regulate the Facility." Br. of Appellees 17. The district court likewise concluded that "the Ordinance affords the City nearly unlimited discretion regarding when and under what conditions to grant permits.... `[T]he railroad is restrained from [its activities] until a permit is issued....'" District Court Opinion 27 (quoting Green Mtn., 404 F.3d at 643).
Put simply, we agree with the district court that the Ordinance and Permit regulate ethanol transloading at the Facility. The Ordinance authorizes the City to impose any "conditions and restrictions, as the director [of transportation] may deem appropriate to promote traffic safety." Ordinance § 5-2-27(b). This open-ended provision grants the City unlimited control over the Facility and its transloading. Moreover, the record reveals the substantial practical implications of the City's enforcement actions. In his deposition, a Norfolk Southern trainmaster explained the common-sense proposition that
limiting the number of trucks that leave [the Facility] directly affects how many railcars can be unloaded.... [I]t would just be a short amount of time before my tracks would be full ... and I *159 wouldn't be able to switch the traffic for my other customers and service my other customers as required.
J.A. 292. Another Norfolk Southern employee observed that the backlog in rail traffic caused by the restrictions specified in the Permit would adversely affect the "continuous movement of freight through our yards." Id. at 276. Moreover, this effect "could ripple elsewhere through the [Norfolk Southern] rail system." Id. at 258.
The City asserts that the Permit regulates only the trucks leaving the Facility, not the transloading process itself, and that "delivery, and therefore transportation, is complete upon transloading." Br. of Appellants 25. According to the City, the Permit "do[es] not regulate any aspect of the movement of trains, the unloading or transloading of trains, the time of day during which transloading can occur, or the number of trucks that can be filled with ethanol in any day." Id. Although the City relies on several decisions for its legal position here, none of those authorities actually support the City's position in this appeal. See Fla. E. Coast Ry., 266 F.3d at 1328; CFNR Operating Co. v. City of Am. Canyon, 282 F.Supp.2d 1114 (N.D.Cal.2003); In re Vt. Ry., 171 Vt. 496, 769 A.2d 648 (2000).
For example, in Florida East Coast Railway, a permittee's use of a railyard was not activity within the ICCTA's preemptive scope because the yard "serve[d] no public function and provide[d] no valuable service to" the railroad, as it only involved the permittee's "operation of a private distribution facility" on railroad-owned land. See 266 F.3d at 1336. The Eleventh Circuit held that
existing zoning ordinances of general applicability, which are enforced against a private entity leasing property from a railroad for non-rail transportation purposes, are not sufficiently linked to rules governing the operation of the railroad so as to constitute laws "with respect to regulation of rail transportation."
Id. at 1331. The dispute in that case involved the application of local laws to a receiver's business that happened to be on railroad property. In this dispute, however, the Ordinance and Permit directly impact Norfolk Southern's ability to move goods shipped by rail. In fact, the Eleventh Circuit carefully distinguished its decision from the situation presented here, where the local permitting requirements "unduly interfere with interstate commerce by giving the local body the ability to deny the carrier the right to construct facilities or conduct operations." Id. at 1331 n. 5 (emphasis and internal quotation marks omitted).[10]
In the dispute between the City and Norfolk Southern, by contrast, the Ordinance and Permit necessarily regulate the transloading operations of Norfolk Southern at the Facility. Thus, the City has regulated "transportation by a rail carrier," as defined by the ICCTA.[11]

*160 2.
Next, the City asserts that, even if the Permit and Ordinance regulate "transportation by a rail carrier," it was yet entitled to issue the Permit pursuant to its police powers. In order for a state or local regulation to be a proper exercise of police power in such a context, the regulation must not (1) discriminate against rail carriers or (2) unreasonably burden rail carriage. N.Y. Susquehanna & W. Ry. Corp. v. Jackson, 500 F.3d 238, 254 (3d Cir.2007) (citing Green Mtn., 404 F.3d at 643). The Second Circuit's Green Mountain decision further explains that local regulations are not preempted "at least to the extent that [they] protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions." 404 F.3d at 643.
Although the Ordinance and Permit commendably seek to enhance public safety, they unreasonably burden rail carriage and thus cannot escape ICCTA preemption under the police power exception. Several courts have recognized that requiring a rail carrier to obtain a locally issued permit before conducting rail operationsgenerally referred to as "permitting" or "preclearance" requirementswill impose an unreasonable burden on rail transportation. See, e.g., Green Mtn., 404 F.3d at 643; City of Auburn v. U.S. Gov't, 154 F.3d 1025, 1030-31 (9th Cir.1998). Here, for example, the City has the power to halt or significantly diminish the transloading operations at the Facility by declining to issue haul permits or by increasing the restrictions specified therein. As a result, the Ordinance entails "extended or open-ended delays" based on the City's issuance of the Permit, and issuance of the Permit necessarily requires "the exercise of discretion" by the City. Green Mtn., 404 F.3d at 643. The Ordinance and Permit are thus preempted, notwithstanding the police powers possessed by the City. Accordingly, the Ordinance and Permit, as applied to Norfolk Southern, are preempted under the ICCTA.[12]

B.
As a separate aspect of its appeal, the City asks that we reverse the district court's ruling that the HMTA provides an alternative basis for preemption. And *161 through its cross-appeal, Norfolk Southern asks us to reverse the court's ruling that the Ordinance was not preempted by the FRSA. We are constrained to decline both invitations. Our decision on the ICCTA issuethat federal law preempts the Ordinance from being applied to Norfolk Southern through the Permitmoots the HMTA and FRSA issues pursued here.
We are always obliged to assure ourselves that a live dispute exists between the parties at all stages of litigation. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). A dispute is moot when "the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (internal quotation marks omitted). And the parties lack such an interest when, for example, our resolution of an issue could not possibly have any practical effect on the outcome of the matter. See Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dep't of Health & Rehabilitative Servs., 225 F.3d 1208, 1217 (11th Cir.2000) ("When events subsequent to the commencement of a lawsuit create a situation in which the court can no longer give the plaintiff meaningful relief, the case is moot and must be dismissed."). Thus, although the parties may desire that we "render an opinion to satisfy their demand for vindication or curiosity about who's in the right and who's in the wrong," we may only "decide cases that matter in the real world." Wyoming v. U.S. Dep't of Interior, 587 F.3d 1245, 1250 (10th Cir.2009) ("[O]ur ... inability to render judgment on nice hypothetical or advisory questions ... distinguishes the role of the federal judge from that of the advisor or academic in our constitutional order.").
The foregoing principles are controlling with respect to the HMTA and FRSA issues. Any ruling by us on Norfolk Southern's alternative bases for preemption under the HMTA or the FRSA could not have any practical effect on the outcome of this case. Whether those statutes preempt the Ordinance and Permit would have no impact on our disposition of this matter, namely, that the Ordinance and Permit are preempted by the ICCTA. Thus, were we to pass on the HMTA and FRSA bases for preemption, we could offer nothing more than an advisory opinion on potentially difficult questions of federalism and constitutional law. See Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir.2009) ("To decide a moot issue is to issue an advisory opinion ...."); see also Bell Atl. Md., Inc. v. Prince George's County, 212 F.3d 863, 865 (4th Cir.2000) (discussing constitutional nature of preemption analysis). The Ashwander doctrine of constitutional avoidancewhich applies with equal force to preemption claimscautions against any such endeavor. See Columbia Venture, LLC v. Dewberry & Davis, LLC, 604 F.3d 824, 828-29 (4th Cir.2010) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)). Accordingly, we will not blithely tread into other complex issues when our disposition of the ICCTA claim definitively resolves this matter.
The customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court's judgment. See Alvarez v. Smith, ___ U.S. ___, 130 S.Ct. 576, 581, ___ (2009) L.Ed.2d ___ (2009) (explaining that courts "normally ... vacate the lower court judgment in a moot case because doing so clears the path for future relitigation of the issues between the parties" (internal quotation marks omitted)); see also Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir.2003) ("If a claim becomes moot *162 after the entry of a district court's final judgment and prior to the completion of appellate review, we generally vacate the judgment...."). The established practice of vacatur is warranted, however, "only where mootness has occurred through happenstance, rather than through the voluntary action of the losing party." Mellen, 327 F.3d at 364. Although vacatur is not warranted when a case has been rendered moot by settlement, "a party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment." U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship., 513 U.S. 18, 25, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994).
In these circumstances, we are satisfied that vacatur of the district court's judgment on the HMTA and FRSA preemption counts is warranted. Addressing those issues would simply result in an advisory opinion being rendered on moot issues. Furthermore, the City's appeal of the HMTA preemption ruling and Norfolk Southern's cross-appeal of the FRSA preemption ruling were rendered moot not by virtue of any voluntary action of either party, but instead by the vagaries of circumstance. In short, the parties are denied appellate review of those adverse determinations as a result of our decision on the ICCTA preemption issue and not because of some unilateral action on their part, such as settlement.[13] Thus, there is no reason to deviate from our customary practice of vacating the lower court's judgment as to moot claims.

IV.
Pursuant to the foregoing, we affirm the district court's judgment on the ICCTA preemption issue, dismiss the balance of these appeals as moot, and vacate the judgment as to the HMTA and FRSA preemption issues.
AFFIRMED IN PART, DISMISSED IN PART, AND VACATED IN PART.
GOODWIN, Chief District Judge, concurring in part and dissenting in part:
I join the majority in affirming the district court's ruling on the ICCTA issue, but respectfully disagree with its decision to vacate the district court's rulings on the HMTA and FRSA issues. Rather than vacating those rulings, I would affirm the district court's judgment on the ICCTA issue, dismiss the City's appeal of the court's HMTA ruling, and dismiss Norfolk Southern's cross-appeal of the FRSA ruling.
By their appeals, the parties ask us to address the district court's rulings on whether the Ordinance is preempted by HMTA and FRSA. I agree with the majority that we should decline this invitation, because our decision on the ICCTA issue effectively moots the HMTA and FRSA issues. See Air Line Pilots Assn., Int'l v. *163 UAL Corp., 897 F.2d 1394, 1396-97 (7th Cir. 1990).
Nevertheless, the HMTA and FRSA issues are not "moot" in the traditional, Article III sense of that word. That is, we continue to possess jurisdiction to review them, but may decline to do so out of prudential concerns. As the Seventh Circuit has explained, there is both a conceptual and a practical reason for this: "The conceptual reason is that it is cases rather than reasons that become moot. Whether a court gives one or ten grounds for its result is not a question to which Article III prescribes an answer. The practical reason is that the alternative grounds are ripe for decision and deciding them may help a higher or a subsequent court." Id. (citing United States v. Leon, 468 U.S. 897, 924-25, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3533 (2d ed.1984)).
Therefore, while we could decide these issues within the confines of Article III, doing so in this case would be inappropriate. As the majority points out, federal courts have long adhered to the constitutional avoidance doctrine. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("The Court will not `formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" (quoting Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Comm'rs, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885))). This admonition is particularly apt in the preemption context, where federalism issues are at the forefront.
But the majority takes the unnecessary step of vacating the HMTA and FRSA aspects of the district court decisionwhat the Supreme Court has termed an "extraordinary remedy." U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 26, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). The majority bases its decision to vacate on its belief that "[t]he customary practice when a case is rendered moot on appeal is to vacate the moot aspects of the lower court's judgment." Ante at 161 (citing Alvarez v. Smith, ___ U.S. ___, 130 S.Ct. 576, 581, ___ L.Ed.2d ___ (2009), and Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir.2003)). Upon closer inspection, however, the cases relied upon by the majority are materially distinguishable from this case.
In both Alvarez and Mellen, the issues on appeal became moot before they were presented to the appellate court. For instance, in Alvarez the petitioner sued state officials for unlawfully seizing his property. After the court of appeals rendered a judgment, but before oral argument in the Supreme Court, the state returned the petitioner's property. Because this left no Article III case or controversy, the Court held that it lacked jurisdiction over the dispute, vacated the lower-court decision, and remanded with instructions to dismiss. Alvarez, 130 S.Ct. at 583. And in Mellen, cadets at the Virginia Military Institute sought declaratory and injunctive relief against the VMI superintendent for violating their religious freedoms. After the district court judgment, but before the case was argued on appeal, the plaintiffcadets graduated. Judge King explained that "[i]f a claim becomes moot after the entry of a district court's final judgment and prior to the completion of appellate review, we generally vacate the judgment and remand for dismissal." Mellen, 327 F.3d at 364. Thus, the panel vacated the district court judgment and dismissed the case.
In those situations, I agree that vacatur was appropriate. Something happened factuallyprior to an appellate decision *164 that mooted the issues on appeal, depriving the appellate court of Article III jurisdiction. Because the cases became moot before they could be reviewed on appeal, the lower-court judgment was essentially unreviewable.
Here, however, it is our decision on the ICCTA issue, rather than any underlying change in the facts, that has "mooted" the HMTA and FRSA issues. Unlike the moot issues in Alvarez and Mellen, those issues are not insulated from appellate review because of a lack of federal jurisdiction. Rather, for prudential reasons, we are declining to address them.
A similar situation was presented in United States v. Manning, 527 F.3d 828 (9th Cir.2008). In that case, the United States challenged a Washington state environmental statute. The district court invalidated the state statute on several grounds. The district court ruled that it was preempted by federal law, and that it contravened federal sovereign immunity, the Commerce Clause, and the Contract Clause. The State of Washington appealed each of these rulings. The court of appeals affirmed the district court's decision on the preemption issue. Having identified one ground on which to affirm the district court's judgment, the court declined to address the State's other challenges. In a footnote, the court explained, "Because the CPA is invalid under the Supremacy Clause, we do not need to reach the additional constitutional challenges. Although we do not reach the issue of sovereign immunity or the challenges under the Commerce Clause and the Contract Clause, we decline to vacate those portions of the district court's order as the State requests. Rather, we simply express no view on issues unnecessary to this opinion." Manning, 527 F.3d at 837 n. 8.
I would follow Manning's lead in this case. We have chosen not to address the district court's HMTA and FRSA rulings out of prudential concerns. Because we have chosen not to address those issues, the only point of law from the district court opinion with any preclusive effect is its ICCTA ruling. See Restatement (Second) of Judgments § 27 cmt. 0 (1982) ("If the judgment of the [trial] court ... was based on a determination of two issues, either of which standing independently would be sufficient to support the result, and .... the appellate court upholds one of these determinations as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive as to the first determination."). By expressing no view on the propriety of the district court's rulings on those issues, and instead affirming the district court on the ICCTA issue alone, only the ICCTA issue has continued viability. The extraordinary remedy of vacatur is therefore unnecessary in this case.
NOTES
[1]  The District Court Opinion is found at J.A. 97-136. (Citations herein to "J.A. ___" refer to the Joint Appendix filed by the parties in this appeal.)
[2]  RSI is also a party to the cross-appeal. For ease of reference, we primarily refer to the two cross-appellants simply as "Norfolk Southern."
[3]  The Permit imposed several conditions, including limiting what could be hauled, specifying a hauling route through the City, and restricting the days and times for such hauling. More specifically, the Permit provided:

1) No dirt, mud or debris shall be tracked/spilled onto the public right-of-way.
2) A copy of this permit must be provided each driver. Failure to follow routing will result in revocation of this permit. No entering the city before 7:00 a.m. No jake brakes or engine braking within the city limits. Driver shall obey all traffic signs and markings.
3) Hauling route is from the Alexandria facility to Metro Road, Metro Road to Eisenhower Avenue, west on Eisenhower Avenue to Van Dorn Street, south on Van Dorn Street and out of the city limits.
Hauling is permitted Monday through Friday, 7:00 a.m. to 7:00 p.m. only.
Hauling is limited to a maximum of 20 trucks per day.
4) This permit is being issued despite city concerns and objections to Norfolk Southern and its contractors relating to the appropriateness of ethanol transloading at this location.
5) This permit will be revoked should this operation be halted by any governing authority.
J.A. 198. During the relevant period, the City sought to reissue the Permit every thirty days. For the sake of simplicity, we refer to the various permits in the singular, as the "Permit," despite the fact that such permits were recurrently issued.
[4]  The Ordinance, as amended, provides in pertinent part that "[h]auling . . . bulk materials.. . is prohibited on all streets within the City, except pursuant to a permit issued [by the City]." Ordinance § 5-2-27(a).
[5]  Baier and the City are collectively referred to herein as the "City."
[6]  In addition to its three preemption claims, the complaint alleged that the original ordinance was inapplicable to ethanol hauling (Count One) and was void for vagueness (Count Two). After concluding that the claims in these first two counts were moot, the district court awarded summary judgment to the City on them. Norfolk Southern does not appeal that ruling.
[7]  The STB Decision is found at J.A. 443-49.
[8]  The Supremacy Clause provides that the Constitution and laws of the United States are "the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. For purposes of the Supremacy Clause, "the constitutionality of local ordinances is analyzed in the same way as that of statewide laws." Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985).
[9]  The STB has heretofore concluded that local regulation interfering with railroad operations is preempted by the ICCTA. See, e.g., Borough of RiverdalePetition for Declaratory Order, Finance Docket No. 33466 at 8 (S.T.B. Sept. 10, 1999) (concluding that local regulations imposing "a local permitting . . . process as a prerequisite to the railroad's [use] of its facilities are preempted because they would, of necessity, impinge upon the federal regulation of interstate commerce").
[10]  The other authorities relied on by the City are likewise inapposite. See Vt. Ry., 769 A.2d at 653-55 (concluding that ICCTA did not preempt local laws that regulated activitya railroad's operation of a salt distributorship "ancillary to the operations of the rail line" that did not have "an economic impact on [the railroad's] operations"); CFNR Operating Co., 282 F.Supp.2d at 1118 (concluding that ICCTA did not preempt regulation that did not "prevent anyone from running a rail operation or otherwise interfere with or attempt to regulate rail operations").
[11]  The City also maintains that the Ordinance and Permit do not regulate a "rail carrier," as the City contends that it has sought to regulate only those trucks travelling to and from the Facility. This contention is also without merit. As explained above, the activities regulated by the Ordinance and Permit are, as recognized by the STB, "an integral part of [the railroad's] provision of transportation by rail carrier." Hi Tech Transp., LLCPetition for Declaratory Order, Finance Docket No. 34192 at 7 (S.T.B. Aug. 14, 2003). Indeed, considering the precise Facility at issue in this appeal, the STB Decision concluded that "transloading is bundled with the transportation services that [Norfolk Southern] provides to ethanol shippers." STB Decision 4. As a result, the transloading operations at the Facility are conducted by a "rail carrier," as defined by the ICCTA.
[12]  The City also seeks to forestall the application of preemption by relying on a legal presumption against federal preemption. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). The history of federal regulation of railroad operations and the effect of the Ordinance and Permit on such operations, however, plainly render this argument meritless. See United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000) ("[A]n `assumption' of nonpre-emption is not triggered when the State regulates in an area where there has been a history of significant federal presence."); Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 46 (1st Cir.2008) ("Historically, federal regulation of railroads has been extensive...."). The City seeks to avoid this principle by once again asserting that the Ordinance applies only to "truck traffic on city streets." Br. of Appellants 12. As explained above, we reject that characterization because the Ordinance, as applied through the Permit, regulates much more than the local transportation of ethanol by truck.
[13]  We sincerely appreciate the thoughtful views expressed by our distinguished colleague in his fine separate opinion, and particularly thank him for his concurrence in the preemption aspect of this opinion. We also essentially agree on the mootness question. See post at 19 ("[O]ur decision on the ICCTA issue effectively moots the HMTA and FRSA issues."). It appears that our sole difference is a narrow one, which may well be of greater interest to the academic community than to everyday litigants: whether an explicit vacatur of the HMTA and FRSA judgments is warranted, or whether the implicit vacatur advocated by the partial dissent sufficiently protects the interests of the parties and the judicial system. As explained above, we see an explicit vacatur ruling as essential, primarily because application of the constitutional avoidance doctrine has denied Norfolk Southern and the City their rights of appeal, pursuant to 28 U.S.C. § 1291, of the district court's judgment on the HMTA and FRSA preemption claims.


956 F.2d 1159
Francisv.Walker
NO. 91-2344
United States Court of Appeals,Second Circuit.
Jan 14, 1992

1
Appeal From:  E.D.N.Y.

2
AFFIRMED.


37 F.3d 1510NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Robert I. RIVERA, Petitioner-Appellant,v.Robert FURLONG, Gale Norton, Attorney General of the Stateof Colorado, Respondents-Appellees.
No. 94-1309.
United States Court of Appeals, Tenth Circuit.
Oct. 19, 1994.

Before McWILLIAMS, BARRETT AND LOGAN, Senior Circuit Judges.

ORDER AND JUDGMENT1

1
After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  Tenth Cir.  R. 34.1.9.  The cause is therefore ordered submitted without oral argument.

2
In this, his third petition for a writ of habeas corpus filed pursuant to 28 U.S.C. 2254, petitioner, appearing  pro se, asserted that his rights to due process and equal protection guaranteed him under the United States Constitution were violated in 1986 when he was tried and convicted in a Colorado state district court of possession of a weapon by a previous offender.  Following that conviction, petitioner pled guilty to habitual criminal charges and was sentenced to life imprisonment.

3
The matter was referred to United States Magistrate Judge Richard M. Borchers, who filed his Recommendation on May 18, 1994, recommending that the petition be dismissed for failure of petitioner to exhaust state remedies, or, if no state remedy be available to him, for procedural default on the part of petitioner.  The petitioner filed his objections to the magistrate's Recommendation, contending that Section 16-5-402(3) C.R.S. prohibits him from bringing a collateral attack against his state conviction and that he could not have challenged the final Colorado Supreme Court ruling in his case on Fourteenth Amendment due process grounds until after the final State Supreme Court ruling.

4
The district court entered its order on June 28, 1994, overruling petitioner's objections and fully adopting the Magistrate Judge's Recommendation in dismissing the petition.

5
The district court thereafter entered an order denying petitioner's application for a certificate of probable cause of appeal.  We grant petitioner's renewed application for a certificate of probable cause simply in order to reach the merits of this appeal.

6
On appeal, petitioner contends that (1) the district court erred in denying his petition on the ground that he was in procedural default for failure to "challenge on his original State appeal that he somehow knew that the final Colorado state supreme court ruling before it was rendered would result in an arbitrary application of state law that would violate the 14th amendment of the United States Constitution" (see Opening Brief of appellant, p. 8), and (2) the district court erred in ruling that petitioner may have failed to exhaust available state remedies because Section 16-5-402(3) C.R.S. does not permit collateral attacks upon a judgment of conviction which has been sustained upon review by a court of appellate jurisdiction.

7
We affirm for substantially the reasons set forth in the "Recommendation of the United States Magistrate Judge" entered May 18, 1994.

1
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993.  151 F.R.D. 470