Summary
granting a Colorado River stay without resolving a motion to dismiss for lack of personal jurisdiction or improper venue
Summary of this case from BCI Acrylic Bath Sys., Inc. v. Chameleon Power, Inc.Opinion
No. 00 C 5728
November 15, 2000
MEMORANDUM OPINION
National Record Mart, Inc. ("National") has filed a motion seeking alternative relief — dismissal or a transfer of venue to a Pennsylvania district court — of this action brought against National by M.S. Distributing Company ("M.S."). That motion has now been fully briefed by the parties and is ripe for disposition.
Although M.S. complains about the procedure established by Pennsylvania law, National has explained why its earlier commencement of an action in the Court of Common Pleas of Allegheny County is, under 735 ILC5 5/2-619 (a)(3), "another action pending between the same parties for the same cause." And that is so even though that prior action seeks declaratory relief rather than money damages.
Fully a third of a century has elapsed since the late great District Judge Hubert Will first held that Illinois' "prior action pending" statute was applicable to diversity cases in the federal district courts. This Court, coincidentally enough having succeeded to Judge Will's seat on the bench when he took senior status, has (like many other judges) consistently adhered to that position during its own two decades on the bench. And though our Court of Appeals has never been called upon to rule squarely on the question (see Chrysler Credit Corp. v. Marino, 63 F.3d 574, 579 (7th Cir. 1995)), its opinion in Locke v. Bonello, 965 F.2d 534, 538 n. 3 (7th Cir. 1992) has suggested the same treatment.
At the same time, what has been described as the "unflagging obligation" of a federal court to keep a case alive where a prior action has been brought in a state court rather than another federal court (Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)) counsels against dismissal. Instead a preferable disposition is to stay the later federal court action until the state court case has been resolved — for example, to protect against any possibility that a plaintiff such as M.S. seeking money damages (which it can, of course, seek through a counterclaim in the Pennsylvania action) may nonetheless be left without an effective remedy. Moreover, such a stay will most likely obviate the need for this Court to decide the issues of personal jurisdiction over National or the propriety of filing this action in this venue, both of which National has attacked here.
Accordingly M.S. will be given the option whether this action should preferably be transferred to this District Court's federal counterpart pursuant to 28 U.S.C. § 1404 (a) or 28 U.S.C. § 1406 or whether, instead, the case should simply be placed on the back burner here via a stay until the Pennsylvania state court action reaches its end. If no response on that score is received from M.S.'s counsel on or before November 27, 2000, this Court will enter an appropriate transfer order.