As the Supreme Court noted in Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 185 [ 72 S.Ct. 219, 222, 96 L.Ed. 200] (1952), the declaratory judgment plaintiff "is given an equal start in the race to the courthouse, not a headstart." While the court does not encourage races to the courthouse, neither is it blind to the realities that they occur, and no purpose would be served in punishing the winner simply because he won. A different result might well follow if the declaratory judgment plaintiff had affirmatively induced the substantive action plaintiff to delay filing suit so that it might gain precedence in time, Mission Insurance, 706 F.2d 599; E.F. Hutton Co. v. Cook, 292 F. Supp. 409 (S.D.Tex. 1968), but that is not the case here. Plaintiff sent a letter, dated July 28, 1986, which plaintiff argues makes the Mission Insurance and Hutton cases applicable.
Pepsico claims that Ashe filed the complaint in the New York action in anticipation of the Illinois action being brought and after prevailing on Pepsico to refrain from filing the complaint in the Illinois action so that Ashe could draft a declaratory judgment complaint while settlement discussions were being held. If that were shown to be true, the New York action could easily be dismissed. See e.g., E.F. Hutton Co. v. Cook, 292 F. Supp. 409, 410 (S.D.Tex. 1968). However, counsel for Ashe strenuously disputes Pepsico's claim and avers that the complaint in the New York action was ready for filing at a substantially earlier time.