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KING v. HAHN

May 4, 1995

BENJAMIN KING and JOYCE KING, Plaintiffs, against JUDITH EVELYN HAHN, Individually, HELEN K. ROSMAN, Individually and as Trustee of the Trusts F/B/O Helen K. Rosman, Barbara Joan Rosman and Judith Evelyn Rosman N/K/A Judith Evelyn Hahn, JACOB IMBERMAN, Individually and as Trustee F/B/O Helen K. Rosman, and NOVEAU ELEVATOR INDUSTRIES INC., Defendants. JUDITH EVELYN HAHN, Individually, and HELEN K. ROSMAN, Individually and sued herein as Trustee of the Trust F/B/O Helen K. Rosman, Barbara Joan Rosman N/K/A Judith Evelyn Hahn, Third-Party Plaintiffs, - against - GARAGE MANAGEMENT CORP. and NARRAGANSETT PARKING CORP., F/K/A SIDNEY GARAGE, INC., Third-Party Defendants.


The opinion of the court was delivered by: PETER K. LEISURE

 LEISURE, District Judge:

 This is an action to recover damages for personal injuries. Plaintiffs are Benjamin King ("King") and his wife, Joyce King. Defendants are Judith Evelyn Hahn ("Hahn"), Jacob Imberman ("Imberman"), and Noveau Elevator Industries, Inc. ("Noveau"). On November 10, 1994, defendants filed a third-party complaint naming plaintiff's employer and the tenant-in-possession of the premises where the accident occurred as third-party defendants. Neither third-party defendant, however, has yet appeared in the instant action. Plaintiffs allege that the amount in controversy exceeds $ 50,000 exclusive of interest and costs, and this Court has subject matter jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. ยง 1332(a)(1).

 Defendants now move this Court to dismiss or stay the action based on the doctrine of abstention and in light of an action instituted by plaintiffs against similar defendants in New York State court. For the reasons stated below, defendants' motion is denied in its entirety.

 BACKGROUND

 The instant action arises out of an accident that allegedly occurred during the course of King's employment with Garage Management Corp. ("GMC"). King maintains that the door of a car elevator came down on his head and body and resulted in severe injury. King seeks $ 10 million for personal injuries and $ 10 million in punitive damages, and his wife seeks $ 5 million for loss of services.

 On July 20, 1993, plaintiffs commenced an action in New York State Supreme Court, Nassau County (the "State action"), to recover damages for personal injuries arising from the same locus of events that gave rise to the instant action. The State action and the instant action are similar with only a few exceptions. Plaintiffs in both actions are identical. In the State action, however, plaintiffs sought $ 10 million in compensatory damages, but only $ 1 million for loss of services, and plaintiffs did not seek punitive damages. Defendants are slightly different in the two actions. Defendant Noveau is not named in the State action, and Barbara Joan Rosman is named in the State action but not in the instant action. In addition, certain defendants are not properly named in the State action, and third-party defendants are named only in the instant action.

 Defendants now request that this Court enter an order dismissing the instant action based on the doctrine of abstention, or in the alternative, enter an order staying all proceedings until there has been a resolution of the State action.

 DISCUSSION

 Defendants contend that this Court should dismiss or stay this action under the Colorado River1 doctrine, in light of the State action. Plaintiffs respond that, under the circumstances, neither a dismissal nor a stay *fn2" of this action is appropriate.

 The federal courts have a "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colorado River, 424 U.S. at 817. Although "as between federal district courts . . . the general principle is to avoid duplicative litigation," the general rule "as between state and federal courts . . . is that 'the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction. . . .'" Id. (quoting McClellan v. Carland, 217 U.S. 268, 282, 54 L. Ed. 762, 30 S. Ct. 501 (1922)). Nevertheless, "exceptional" circumstances occasionally do arise, "permitting the dismissal of a federal suit due to the presence of a concurrent state proceeding for reasons of wise judicial administration." Colorado River, 424 U.S. at 818. However, in order to prevail, the moving party must carry a "heavy burden," Orix Credit Alliance, Inc. v. Bell Realty, Inc., No. 93 Civ. 4949, 1994 U.S. Dist. LEXIS 2987, *5, 1994 WL 86394, at *2 (S.D.N.Y. March 16, 1994); National Union Fire Ins. Co. v. Thomas 713 F. Supp. 62 (S.D.N.Y. 1988), for "only the clearest of justifications will warrant dismissal," Colorado River, 424 U.S. at 819.

 The Supreme Court has elaborated:

 
the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.

 Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 16, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983); see also General Reinsurance Corp. v. Ciba-Geigy Corp., 853 F.2d 78, 81 (2d Cir. 1988). The relevant factors include: (1) the assumption by either court of jurisdiction over res or property; (2) the inconvenience of the federal forum; (3) the avoidance of piecemeal litigation; (4) the order in which jurisdiction was obtained by the concurrent fora, and the progress of the federal court litigation; (5) whether state or federal law supplies the rule of decision; and (6) whether the state court proceeding will adequately protect the rights of ...


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