Opinion
Civil Action No. 09-cv-02233-RPM.
December 16, 2009
STAY ORDER
On November 24, 2009, the defendant filed a motion to stay this civil action because of the pending action filed in the Circuit Court for the County of Fairfax, Virginia, filed by ExcelaCom against James Garcia on August 10, 2009. The plaintiff filed his response in opposition to the motion on December 14, 2009. After examining the pleadings filed in both cases, it is apparent that the core issue is which party breached the employment agreement entered into in March, 2008. Mr. Garcia has emphasized that his claim under the Colorado Wage Act is predominant and asserts that ExcelaCom's suit in Virginia is vexatious and a reaction to the demand made by Mr. Garcia by letter in May, 2009. Whether there is a violation of the Colorado Wage Act is dependent upon whether the plaintiff here performed his duties under the employment agreement and that is the central issue in the employer's claim for breach of contract. There is little connection between the State of Colorado and the issues in these cases. The contract was entered into in Virginia, the central office of the defendant is in Virginia, the place of performance of the contract is in New Jersey and it is clear that the agreement contemplated that Mr. Garcia would move his residence from Colorado to New Jersey.
If the Virginia case had been filed in the United States District Court there, this Court would have transferred this civil action to that court in ruling on the defendant's earlier motion to dismiss or transfer based on improper venue.
A stay of this civil action is necessary to avoid duplication of effort and to avoid conflicts in the procedural rules. Apparently, the Commonwealth of Virginia does not have rules corresponding to the Federal Rules of Civil Procedure in that there is reference to a demurrer pending there.
Upon the foregoing, it is now
ORDERED that this civil action is stayed until further order of court.