Moreover, because any case involving parallel proceedings presents a risk of duplicative litigation or a rush to judgment, the existence of those risks can weigh only modestly in favor of dismissal; otherwise, dismissals pursuant to Colorado River would be the rule, not the exception, in cases involving parallel proceedings in state and federal court. See National Union, 713 F. Supp. at 66.
Fourth, the prior filing of the Massachusetts Action is not significant on the facts of this case because little progress has been achieved to date in either forum. Avant filed the Massachusetts Action, on July 1, 1993. Sacody filed this action eight days later, on July 9, 1993. However, "priority should not be measured exclusively by which complaint was filed first, but rather in terms of how much progress has been made in the two actions." Cone, 460 U.S. at 21-22 (although federal suit was filed 19 days after state suit, Court considered federal suit "prior" for Colorado River purposes because "federal suit was running well ahead of . . . state suit"); Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 328 (2d Cir. 1986). Although the Massachusetts Superior Court held on December 22, 1993, that Sacody is subject to personal jurisdiction in Massachusetts, see Avant, Inc. v. Sacody Technologies, Inc., Civil Docket# MICV93-03850 (Mass. Super. Ct. Dec. 22, 1993), neither party has informed this Court that substantial discovery or substantial further proceedings have occurred in the Massachusetts Action. As a result, this factor does not favor dismissal.
Fifth, there is no dispute that state law will provide the substantive rule(s) of decision in this case. Avant and Kuhns argue that because federal substantive law is not controlling here, this factor favors dismissal. The Court disagrees. In any case in which a federal court has subject matter jurisdiction based solely on diversity of citizenship, state law will provide the rule of decision. Therefore, unless dismissals pursuant to Colorado River are to become a familiar occurrence in diversity actions, defendants' argument must fail. Although the presence of a federal substantive interest weighs heavily in favor of the exercise of federal jurisdiction, the absence of such an interest, without more, is not a strong reason to dismiss pursuant to Colorado River. See Bethlehem Contracting, 800 F.2d at 328; National Union, 713 F. Supp. at 67.
Sixth and finally, although Kuhns was not a party to the Massachusetts Action when defendants filed the present motion, Avant and Kuhns have argued, and Sacody has not disputed, that as a procedural matter, Sacody can join Kuhns there. In this light, there is no reason to doubt that Sacody's legal rights would be adequately protected in the Massachusetts Action. However, although any possible inadequacy of the state forum to protect the federal plaintiff's rights would provide a strong reason to exercise federal jurisdiction, the adequacy of the state forum does not weigh heavily in favor of dismissal pursuant to Colorado River. See Zemsky v. City of New York, 821 F.2d 148, 153 (2d Cir.) (Winter, J.), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 396, 108 S. Ct. 456 (1987), reh'g denied, 486 U.S. 1019, 100 L. Ed. 2d 221, 108 S. Ct. 1760 (1988); Bethlehem Contracting, 800 F.2d at 328.
Balancing the foregoing considerations, and giving due "weight to the heavy presumption favoring the exercise of jurisdiction," id. at 327, the Court finds that a dismissal pursuant to Colorado River is not warranted under the circumstances. No more can be said in favor of dismissal here than that there is underway a parallel state proceeding in which the federal diversity plaintiff's state law claims may be adequately adjudicated. However, this Court's "task in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction . . . ; rather, the task is to ascertain whether there exist 'exceptional' circumstances, the 'clearest of justifications,' that can suffice under Colorado River to justify the surrender of that jurisdiction." Cone 460 U.S. at 25-26. There is nothing "exceptional" about this case. Defendants' motion for a dismissal pursuant to the Colorado River doctrine is therefore denied.
For the foregoing reasons, this Court hereby denies, on the present record, defendants' motions to dismiss this action for lack of personal jurisdiction or improper venue, or alternatively, to dismiss or stay this action pursuant to Colorado River. All parties are hereby ordered to appear before this Court on October 14, 1994, at 11:30 AM, for a pre-trial conference in Courtroom 312, United States Courthouse, 40 Centre Street, New York, New York.
New York, New York
September 14, 1994
Peter K. Leisure