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NIGRO v. BLUMBERG

April 3, 1974

Adelberto O. NIGRO
v.
Malcolm M. BLUMBERG, Administrator C.T.A. of the Estate of Dezso Tournyossy, Dec'd, et al.


Fogel, District Judge.


The opinion of the court was delivered by: FOGEL

 Nigro claims to have sustained serious physical injuries on the evening of November 25, 1971, in an automobile accident allegedly caused, inter alia, by the negligence of his passenger Dezso Tornyossy (who died as a result of the accident) and of William Heaney, the driver of another automobile which collided with the motor vehicle operated by plaintiff on that occasion.

 Presently before us is the motion of defendant Malcolm Blumberg (hereinafter Blumberg), Administrator C.T.A. of the Estate of Dezso Tornyossy, for a stay of all proceedings in this court until termination of a similar action filed previously by movant in the Court of Common Pleas of Philadelphia County, as of November Term, 1972, No. 1916. Defendants Union Paving Company and the City of Philadelphia have joined in the motion for a stay; defendants Buckley and Company and William Heaney while not formally joining in the motion, have informed the other defendants and this Court that they do not oppose the motion.

 The following history of this litigation is relevant to a resolution of the instant motion. On November 16, 1972, Blumberg filed a survival action in the Court of Common Pleas for Philadelphia County naming Adelberto Nigro, the City of Philadelphia, William Heaney, and Buckley and Company, Inc. as defendants. Nigro filed a counterclaim against plaintiff Blumberg and also filed cross-claims against the City of Philadelphia, William Heaney, and Buckley and Company, Inc., in which he averred that the accident and his injuries were caused by the negligence of those parties. *fn2" By leave of court Union Paving Company was subsequently joined as an additional defendant. Notwithstanding his acquiescence in a dismissal without prejudice of an earlier action brought in this court by Blumberg, plaintiff Nigro filed the instant suit on July 13, 1973 *fn3" for damages he sustained as a result of the very incident which is the subject of the pending state court action and was the subject of the initial action in this court that was subsequently dismissed without prejudice. *fn4" Blumberg, the City of Philadelphia, Union Paving Company, and Buckley and Company, Inc. each filed cross-claims. However no counterclaims against Nigro were filed in this action.

 Blumberg supports his motion for a stay of the action presently before us on the following grounds: (1) the presence of these same parties in the federal and state court actions; (2) the prior institution of the state court action; and (3) the encompassing sweep of the state court action which can result in a final disposition of the rights of all of the parties.

 Blumberg further argues that similar discovery rights exist in both the federal and state forums so that Nigro will not be prejudiced by a stay of the proceedings here. Defendant Union Paving Company, which has joined in this motion, has urged economy in the use of judicial resources as an additional consideration in support of a stay.

 Plaintiff Nigro's arguments in opposition to this motion are as follows:

 FIRST: he claims that he has a right to be in this court because of our diversity jurisdiction and maintains that trial of the matter here will give him the advantages of notice pleading and liberal discovery; and

 SECOND: he urges that a stay of proceedings by this court would deprive him of his right to have his cause adjudicated in a federal forum and in effect would constitute improper circumvention of the pertinent constitutional and statutory provisions which control diversity litigation. *fn5"

 When there is concurrent jurisdiction in state and federal courts, and "the action first brought is in personam and seeks only a personal judgment, another action for the same cause in another jurisdiction is not precluded." Kline v. Burke Construction Co., 260 U.S. 226, 230, 43 S. Ct. 79, 67 L. Ed. 226 (1922). Ordinarily, of course, both actions may proceed simultaneously until judgment is obtained in one of them, in which event recovery is barred in the other action. Penn General Casualty Co. v. Pennsylvania, 294 U.S. 189, 195, 55 S. Ct. 386, 79 L. Ed. 850 (1935); see Jennings v. Boenning & Co., 482 F.2d 1128 (3d Cir. 1973), cert. denied 414 U.S. 1025, 94 S. Ct. 450, 38 L. Ed. 2d 316.

 It is also true generally that "the courts of the United States are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends; . . . [and] they cannot abdicate their authority or duty in any case in favor of another jurisdiction." Hyde v. Stone, 61 U.S. (20 How.) 170, 175, 15 L. Ed. 874, 876; cf. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 5 L. Ed. 257 (1821); McClellan v. Carland, 217 U.S. 268, 30 S. Ct. 501, 54 L. Ed. 762 (1910). However, this principle has its exception. The right of litigants to have a cause adjudicated in a federal court is not absolute; the court may decline adjudication of a particular controversy pursuant to certain recognized public policy considerations and defined criteria which govern the exercise of the court's power. *fn6"

 Thus, while the power to proceed cannot be questioned, the issues before us for decision are: FIRST, the existence of the power to grant the motion for a stay of these proceedings, and, SECOND, the propriety of the exercise of that power in the instant case. Prior exercise of analogous discretion helps us to reach a conclusion in this matter.

 It is clear that federal courts may stay actions, pending another federal court's adjudication, involving the same parties and issues. Kerotest Mfg. Co. v. C-O Two Fire Equipment Co., 342 U.S. 180, 72 S. Ct. 219, 96 L. Ed. 200 (1952). It is also clear that district courts have the power to stay suits for declaratory relief during the pendency of parallel state actions. Brillhart v. Excess Insurance Co., 316 U.S. 491, 62 S. Ct. 1173, 86 L. Ed. 1620 (1942); see also PPG Industries ...


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