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ASH v. RICHARD J. LYNCH & CO.

September 25, 1986

PAUL ASH and BRUCE ASH, d/b/a VISTA LANES LIMITED, a Partnership, Plaintiff,
v.
RICHARD J. LYNCH & CO., INC., Defendant



The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 Paul Ash and Bruce Ash are partners in Vista Lanes Limited (Vista), which has its principal place of business in Tucson, Arizona. They agreed to purchase pinsetters for bowling alleys from Richard J. Lynch & Co., Inc. (Lynch), a New York corporation that was to act as a middleman. Lynch, in turn, had entered into a contract to obtain those pinsetters from Lyons Bowling Center, Inc. (Lyons), a New Jersey corporation.

 The agreement between Vista and Lynch was never consummated, because Lyons did not deliver the pinsetters to Lynch. On April 18, 1986, Lynch sued Lyons and Vista in a New Jersey state court. Lynch alleged that Lyons had breached its contract to sell pinsetters and sought damages, as well as indemnification against any claim brought against Lynch by Vista. Lynch's New Jersey complaint further alleges that Vista, after inducing Lynch to obtain substitute pinssetters, improperly rejected the substitutes.

 On May 9, 1986, Vista sued Lynch in this court, seeking a refund of the $35,750 that Vista had paid Lynch, plus interest; $100,000 in consequential damages; and $250,000 in punitive damages. Lyons is not a party to this action, and Lynch represents that it will be impossible for this court to obtain in personam jurisdiction over Lyons. This difficulty does not much concern Vista, which says that it has no quarrel with Lyons and seeks damages only from Lynch. Moreover, pursuant to the rules of this district, Vista has consented to arbitration of its claims against Lynch and the $50,000 cap on damages attendant to that procedure.

 Vista answered Lynch's New Jersey complaint on June 20, 1986 and counterclaimed for the $35,750 refund and unspecified compensatory and punitive damages. *fn1" Lynch, which has yet to answer Vista's complaint in this court, now moves to stay proceedings in this action pending termination of the New Jersey lawsuit. According to Lynch, a stay would serve the interest of convenience, because the pinsetters that are the subject of litigation and the attorneys for all the parties come from Essex County, New Jersey, where the state suit is pending. Additionally, Lynch maintains that a stay would serve to avoid piecemeal litigation and that the New Jersey action has proceeded well into discovery, while nothing more than Vista's complaint and the present motion papers are before this court.

 In opposition to the motion, Vista contends that discovery has not proceeded very far in New Jersey and that there is no important state public policy that requires this dispute to be resolved in the state courts. Vista disputes Lynch's suggestion that abstention is appropriate in view of the absence of federal questions, arguing that "diversity claimants are not second-class litigants," Sears, Roebuck & Co. v. Travelers Indemnity Co., 628 F. Supp. 122, 123 (N.D. Ill. 1986).

 I. Colorado River Abstention

 Abstention is a "judge made doctrine" that permits federal courts to decline jurisdiction under "narrowly limited 'special circumstances.'" Zwickler v. Koota, 389 U.S. 241, 248, 19 L. Ed. 2d 444, 88 S. Ct. 391 (1967) (quoting Propper v. Clark, 337 U.S. 472, 492, 93 L. Ed. 1480, 69 S. Ct. 1333 (1949)). In Colorado River Water Conservation District v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976), the Supreme Court conferred legitimacy on a "fourth type" of abstention. See 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4247, at 502 (1978). The three other types of abstention, which have come to life in the past fifty years, were summarized in Colorado River :

 (1) "Pullman abstention," named after Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), provides for avoidance of jurisdiction "'in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.'" Colorado River, supra, 424 U.S. at § 14 (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189, 3 L. Ed. 2d 1163, 79 S. Ct. 1060 (1959)). See, e.g., Babbitt v. United Farm Workers National Union, 442 U.S. 289, 305-06, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979); Elkins v. Moreno, 435 U.S. 647, 660-62, 55 L. Ed. 2d 614, 98 S. Ct. 1338 (1978).

 (2) "Burford abstention," named after Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943), is "appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar." Colorado River, supra, 424 U.S. at 814.

 (3) Additionally, "abstention is appropriate where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal proceedings; state nuisance proceedings antecedent to a criminal prosecution, which are directed at obtaining the closure of places exhibiting obscene films; or collection of state taxes." Id. at 816 (footnote and citations omitted). See e.g., Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).

 Colorado River's "fourth type" of abstention, which permits "dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration," id. at 818, is not freely exercised. See, e.g., Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325 (2d Cir. 1986) (heavy presumption favoring exercise of jurisdiction). While it was once argues that Colorado River 's "exceptional circumstances" test was undermined in Will v. Calvert Fire Insurance Co., 437 U.S. 655, 57 L. Ed. 2d 504, 98 S. Ct. 2552 (1978), the Supreme Court has rejected that argument. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 16, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983).

 Colorado River did not fix "a hard-and-fast rule" for the type of abstention it approved, id. at 15, but it did enumerate ...


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