citizens of different states, all of the other individuals and corporations who are defendants in the state court action are citizens of Pennsylvania, as is plaintiff, and hence, may not be joined as original defendants in this case. However, defendant claims in its motion that it will bring the others into this suit as third-party defendants, should action proceed to adjudication on the merits here.
The state court action was filed in the Court of Common Please for Montgomery County. Plaintiff sued Asphalt Paving and Supply Company, which, in turn, has brought in Diamond Reo Trucks, Inc., Nicolas J. DiDomenico, Jr., Sam Monastero, and Holly Jon Equipment Company, as additional defendants. Therefore, all parties who could possibly be parties to the federal action are already parties to the state action.
The plaintiff opposes the motion to stay for several reasons: First : plaintiff has chosen the federal court as its forum; Second : the suit in this court was filed first; Third : the federal suit will proceed with greater dispatch than the state action in that time frames, including a trial date, have been set in this court;
Fourth : the two separate theories of the cause of action,
each of which relates only to certain parties, and which do not overlap, together with the multiplicity of parties in the state action, would increase the likelihood of jury confusion in the state action.
Plaintiff has failed to distinguish this action from Nigro, supra. The initial choice of forum is not binding, under the special situation which leads to entry of a motion to stay. The relative priority in time is not dispositive, and in this case the difference of two weeks in time between the filing of the two actions is insignificant. Discovery in each suit will be substantially the same. Indeed, the fact that all parties are now in the state court action, whereas all but Diamond Reo Trucks, Inc. must be added here, militates toward the conclusion that the Montgomery County action will proceed more expeditiously. Diamond Reo's intention to bring in the additional state court parties as third-party defendants will confront the jury in this court with the same parties and cause of action as will face the jury in the state court. None of these factors offset the preference for a stay which is called for under the circumstances of this case in the interests of judicial economy, efficiency, comity and of the convenience of the parties themselves, who will be able to avoid the same cause of action being litigated in two forums simultaneously.
Under all of the facts before us, we are of the opinion that the matter should be stayed in this Court, pending determination and disposition of the action in the Court of Common Pleas of Montgomery County.
We do not abandon our jurisdiction by staying the proceedings here. Should the state court action not proceed to judgment on the merits, this Court stands ready to resume supervision of this litigation, if sufficient cause is advanced to persuade us to do so. Therefore, while we grant defendant's motion to stay proceedings at this juncture of the litigation, plaintiff is granted the continuing right to petition for modification of this stay in part, or in toto, if she can allege material facts and circumstances which would justify such action.
AND NOW, to wit, this 9th day of May, 1975, upon consideration of the motion and of the memoranda of both parties, and for the reasons assigned in the attached Opinion, it is hereby ORDERED that the above captioned action be stayed in all respects pending final disposition of that action captioned: Chintala v. Asphalt Paving and Supply Company, Civil No. 74-16770 (C.P. Montgomery County, filed Nov. 22, 1974), or until further Order of this Court.
In the event that the State Court action does not proceed, notwithstanding due diligence on the part of plaintiff acting in good faith to prosecute the action to a conclusion, leave is hereby granted to the plaintiff to petition this Court for modification or vacation of the existing stay of the proceedings.
BY THE COURT: @HERBERT A. FOGEL / United States District Court