Inc., 780 F.2d at 695-96 (state court litigation will likely eliminate need for any further proceedings in federal court; see also, Employers Insurance of Wausau v. Shell Oil Co., 653 F. Supp. 744, 747 (N.D. Ill. 1987) (state court will pass upon the same question presented in this case).
Fourth, the fact that the state court first obtained jurisdiction also weighs in favor of dismissal. The state court action was filed on June 28, 1988 and the federal action was not filed until August 9, 1988. We note that priority should not be measured exclusively by which complaint was filed first, but also in terms of how much progress has been made in each action. Moses Cone, 460 U.S. at 21. In neither the federal nor the state action has the case progressed much beyond the filing of the complaint. There has been no discovery, pretrial orders, or hearings in either action. While we do not give great weight to who wins the race to the courthouse, the fact that the state court action was filed almost six weeks before the federal action does contribute somewhat to our conclusion that a dismissal is appropriate.
Fifth, state law governs the merits of the litigation. While under our diversity jurisdiction, as discussed supra, this federal court is prepared to adjudicate the state law issue, the fact that state law controls the issues presented in this case weighs slightly in favor of dismissal. See Ingersoll-Rand, 844 F.2d at 137 (where state law governs, state court is as well equipped as the federal to apply state law); but see, Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 328 (2d Cir. 1986) (fact that state law governs is of little importance in this diversity case). Where all other factors are equal, our respect for notions of comity and federalism tip the balance in favor of deferring to a state court for resolution of state law issues.
Finally, we consider the adequacy of the state forum to protect the parties' rights. This action does not present any constitutional or federal questions. The state court is obviously well equipped to protect the litigants' rights; hence, this factor does not suggest that the federal forum is more appropriate for resolution of this matter.
In conclusion, a careful review of all the factors and circumstances involved in a decision whether to exercise jurisdiction leads this court to conclude that defendant's motion to dismiss should be granted. While we concede that this case is a close one, we find that it presents the "extraordinary circumstances" necessary for our deferral to the state court. In addition to the other reasons stated above, our entertaining this action would serve no useful purpose, as the identical state law issues are pending before a state court in a case that would more comprehensively dispose of all the issues at hand. Furthermore, we see no reason to stay proceedings rather than dismissing them because we anticipate that the state court proceeding will completely resolve the issues between the parties leaving us with nothing further to do with this case. See Moses Cone, 460 U.S. at 28.
Thus, for the reasons adduced above, defendant's motion for dismissal is granted.
An appropriate order follows.
AND NOW, this 10th day of November 1988, upon consideration of MOTION TO DISMISS filed by defendants on September 6, 1988, and plaintiff's REPLY thereto filed September 19, 1988, it is hereby ORDERED that defendants' motion is GRANTED.