The fourth Colorado River factor, the order in which jurisdiction was obtained, also favors the dismissal of this action. Simply, Weinstock instituted the instant action years after the underlying factual disputes were already the subject of litigation in the New York courts. Even granting that Weinstock did not actively seek to protect his alleged interests until 1988 because of illness, this suit comes almost five years late. Moreover, by asserting here claims nearly identical to those asserted in the state forums after having received several adverse rulings there, Weinstock appears to have instituted this action as much for tactical reasons as for a genuine interest in obtaining relief. See Moses H. Cone, 103 S. Ct. at 937 n.20 ("the vexatious or reactive nature of either the federal or the state litigation may influence the decision whether to defer to a parallel state litigation").
Fifth, the Court must consider whether federal or state law provides the rule of decision. Only the five RICO causes of action stated in the amended complaint arise under federal law. In view of the other factors weighing in favor of Colorado River abstention and the predominance of state claims in the amended complaint, this factor does not shift the balance toward retaining jurisdiction. Moreover, this factor has little significance because Weinstock may pursue his RICO claims in state court. See Tafflin v. Levitt, 493 U.S. 455, 110 S. Ct. 792, 107 L. Ed. 2d 887 (1990) (state courts have concurrent jurisdiction over civil RICO actions); Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989) (exercising Colorado River abstention where RICO claims exist). In addition, the sixth factor, whether state court proceedings will adequately protect Weinstock's rights, is also satisfied because he can assert his RICO claims in state court. Lawrence v. Cohn, 778 F. Supp. 678, 686 (S.D.N.Y. 1991).
To the extent that Cleary is not a party to the concurrent state proceedings, my evaluation of the Colorado River factors does not change. Essentially, the same claims are at issue in the state courts as are contained in the amended complaint. With this action, Weinstock is once again asserting his alleged ownership interest in Realty Corp. and Glenwood Estates, challenging the November 1987 refinancing of the Brooklyn properties and the December 1987 transfer of title to Associates, and alleging breaches of the substitution agreement. See Telesco v. Telesco Fuel and Masons' Materials, Inc., 765 F.2d 356, 362 (2d Cir. 1985) ("Merely raising an alternative theory of recovery, which may still be raised in state court, is not enough to differentiate the federal suit from the state suit."); see also Nakash, 882 F.2d at 1416-17 (substantial similarity, not exact parallelism, required between state and federal actions). To the extent Weinstock seeks relief against Cleary, Weinstock has the right to institute proceedings against Cleary in the Kings County action if he is determined to have an ownership interest in Realty Corp. In addition, the dismissal of the instant action does not preclude Weinstock from instituting another suit in this Court upon the conclusion of the concurrent state actions.
Because the Court has found it appropriate not to exercise jurisdiction pursuant to Colorado River, the Court need not go beyond the threshold issue of jurisdiction and address the third alternative presented by Cleary for dismissal, the failure of Weinstock to state a claim under RICO. In addition, because the Court dismisses the amended complaint pursuant to Colorado River, the other defendants need not respond to the amended complaint.
Significant resources, both of the Court and the parties, are saved in proceeding along this course.
The amended complaint is dismissed without prejudice to Weinstock's right to renew his claims in this Court upon the conclusion of the Kings County action and the New York County action.
Dated: New York, New York
March 8, 1993
Loretta A. Preska, U.S.D.J.