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BOWDOIN v. DECKMAN

March 19, 1998

EVA A. BOWDOIN
v.
HARRY M. DECKMAN, JR., as Executor of the Estate of William R. Trommer, Deceased



The opinion of the court was delivered by: BARTLE

 Bartle, J..

 Plaintiff Eva A. Bowdoin seeks to obtain a $ 423,229 judgment against the estate of her former husband William R. Trommer for unpaid child support due pursuant to a Separation Agreement incorporated into a September 10, 1971 decree of a Massachusetts Probate Court. Decedent's estate is currently being administered under the jurisdiction of the Orphans' Court Division of the Court of Common Pleas of Bucks County, Pennsylvania ("Orphans' Court"). Before the court are the motions of the defendant executor to dismiss for lack of subject matter jurisdiction or alternatively "to stay the federal action pending disposition of the state court action."

 It is undisputed that the citizenship of the parties is diverse, with the amount in controversy exceeding $ 75,000, inclusive of interest and costs. See 28 U.S.C. § 1332. Nonetheless, defendant argues that this action involves a probate matter outside of our jurisdiction. While it is true that a federal court may not probate wills, administer estates, or control property in the custody of a state court, it does have the power to entertain suits by creditors and heirs to establish their claims against an estate. Markham v. Allen, 326 U.S. 490, 494, 90 L. Ed. 256, 66 S. Ct. 296 (1946). See also Ankenbrandt v. Richards, 504 U.S. 689, 119 L. Ed. 2d 468, 112 S. Ct. 2206 (1992). This is the gravamen of the present action. Accordingly, we will deny defendant's motion to dismiss for lack of subject matter jurisdiction.

 We now turn to defendant's motion for a stay. He argues that this court should abstain under the principles of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). Under that decision, in order for a federal court to exercise its discretion to dismiss or stay an action, there must be a pending state court proceeding involving the same claims and parties or at least "nearly identical allegations" and parties who are "essentially identical." Trent v. Dial Medical of Florida, Inc., 33 F.3d 217, 224 (3d Cir. 1994).

 The threshold requirements of Colorado River have been met. Plaintiff's claim in this court is identical to her probate claim and the parties are the same in both proceedings. However, in determining whether we should exercise our discretion to abstain, we must also consider the following factors:

 
(1) Which court first assumed jurisdiction over property involved, if any;
 
(2) Whether the federal forum is inconvenient;
 
(3) The desirability of avoiding piecemeal litigation;
 
(4) The order in which the respective courts obtained jurisdiction;
 
(5) Whether federal or state law applies; and
 
(6) Whether the state court proceeding would adequately protect the federal ...

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