United States District Court, Eastern District of Pennsylvania
November 22, 2002
THEODORE FLINT AND DEBORAH FLINT
A.P. DESANNO & SONS AND RADIAC ABRASIVES INC.
The opinion of the court was delivered by: Michael M. Baylson, United States District Judge
MEMORANDUM AND ORDER
The issue presented concerns abstention and whether a federal district
court should stay or dismiss an action based on concurrent state court
proceedings. Plaintiffs Theodore Flint and Deborah Flint ("Plaintiffs")
first filed a case in state court. The claims in this federal court case
are essentially the same as in the state court action. Federal
jurisdiction is based on diversity of citizenship, and the action is
based on a Pennsylvania statute and common law claims. Presently before
the Court is the Motion to Dismiss or, in the Alternative, to Stay
Proceedings, by defendant Radiac Abrasives Inc. (formerly known as A.P.
DeSanno & Sons)*fn1 ("Defendant"), an Illinois corporation, pending
a resolution of the related case in the Chester County Court of Common
Despite the natural temptation to prevent Plaintiffs from requiring
Defendant to defend two essentially identical suits in two different
courts, the Third Circuit has interpreted Supreme Court holdings to
restrict significantly the discretion of district courts to dismiss or
stay federal cases, even though they are duplicative of cases previously
filed and pending in state court. Thus, Defendant's Motion must be
denied. However, this Court intends to exercise thoroughly its power to
control pretrial proceedings so as to minimize the burden on Defendant,
and to require the parties to coordinate discovery and other pretrial
proceedings between the federal and state actions.
Plaintiffs, who are citizens of and reside in Pennsylvania, filed a
civil action in the Philadelphia Court of Common Pleas on March 15,
2001, seeking legal and equitable relief for the alleged environmental
contamination of their property in Chester County, Pennsylvania. The
preliminary objection by the defendants*fn2 as to improper venue was
granted, and the case was transferred to the Chester County Court of
Common Pleas. Plaintiffs then filed an Amended Complaint.
One year later, on March 18, 2002, Plaintiffs filed a Complaint in this
Court, essentially pleading the same facts and causes of action as the
state Amended Complaint.
There are few differences between the state and federal Complaints. The
state Amended Complaint includes Polymeric Systems, Inc. as a plaintiff
while the federal Complaint does not. The state Amended Complaint also
names M&R Industries, ABC Corporation 1-10, and John Doe 1-10 as
defendants, and the federal Complaint does not.*fn3
The state Complaint alleges the following five causes of action:
Count I: Hazardous Sites Clean-Up Act, 35 Pa. Cons. Stat. Ann. §
6020 et seq.
Count II: Negligence
Count III: Breach of Contract
Count IV: Public Nuisance
Count V: Fraudulent Misrepresentation
(Def.'s Mot. to Dismiss Ex. A)
The federal Complaint alleges the following five causes of action:
Count I: Hazardous Sites Clean-Up Act, 35 Pa. Cons. Stat. Ann. §
6020 et seq.
Count II: Strict Liability, Abnormally Dangerous/Ultrahazardous
Count III: Negligence
Count IV: Breach of Contract
Count V: Fraudulent Misrepresentation
(Compl. ¶ 17-46)
Count II of the federal Complaint was dismissed, Flint v. A.P. DeSanno
& Sons, C.A. No. 02-1350, slip op. (E.D.Pa. July 31, 2002), leaving
the federal and state causes of action the same except that a public
nuisance claim has been alleged in state court.
II. Legal Standard and Jurisdiction
When deciding a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court may look only to the facts alleged in the
complaint and its
attachments. Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as true
all well-pleaded allegations in the complaint and view them in the light
most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec.,
Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be
granted only when it is certain that no relief could be granted under any
set of facts that could be proved by the plaintiff. Ransom v. Marrazzo,
848 F.2d 398, 401 (3d Cir. 1988).
This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)
as the parties are citizens of different states, and the amount in
controversy exceeds $75,000. Venue is appropriate under
28 U.S.C. § 1391(b).
A. Colorado River Abstention
Abstention by a federal court due to a similar suit in state court is
justified "only in the exceptional circumstances where the order to the
parties to repair to the state court would clearly serve an important
countervailing interest." Colorado River Water Cons. Dist. v. United
States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). The
three traditional grounds for abstention arise from concerns of
constitutionality or comity.*fn4 In contrast, the principles underlying
Colorado River abstention "rest on considerations of `wise judicial
administration, giving regard to conservation of judicial resources and
comprehensive disposition of litigation.'" Id. at 817 (citations
omitted). This type of abstention is rarer than Pullman, Burford, or
Younger abstention because "the virtually unflagging obligation of the
federal courts to exercise the jurisdiction given them" means that the
pendency of an action in state court does not generally bar federal
litigation of the same issues. Id. Also, there is an "absence of
weightier considerations of constitutional adjudication and state-federal
relations" which support the three traditional abstention doctrines. Id.
1. Federal and State Actions Are Parallel
The threshold question in applying the abstention doctrine is whether
the federal and state actions are parallel. Ryan v. Johnson, 115 F.3d 193,
196 (3d Cir. 1997). Cases are considered parallel when they involve the
same parties and claims. Id. The presence of additional parties in the
state action does not destroy the parallel nature of the cases when all
of the parties in the federal action are also parties in the state
action. See Albright v. Sears, Roebuck and Co., 1995 U.S. Dist. LEXIS
16800, at *5 (E.D.Pa. Nov. 7, 1995) ("because it includes a count against
an additional defendant, the state complaint is more embracing."). "The
cases need not be identical, however, there must be a likelihood that the
state litigation will dispose of all
the claims presented in the federal
case." CFI of Wisconsin, Inc. v. Wilfran Agricultural Industries, Inc.,
1999 U.S. Dist. LEXIS 16896, at *5 (E.D.Pa. Nov. 1, 1999).
In the instant action, Theodore Flint and Deborah Flint, owners and
operators of the property, are plaintiffs in the state and federal
actions. Defendant Radiac Abrasives Inc. is a defendant in both actions.
The presence of plaintiff Polymeric Systems Inc. and defendants M&R
Industries, ABC Corporation 1-10, and John Doe 1-10 in the state action
does not destroy the parallel nature of the cases. In fact, the
additional defendants in the state action make it "more embracing."
Albright, 1995 U.S. Dist. LEXIS, at *5.
All of the claims asserted in the federal Complaint are asserted
in the state Amended Complaint. The state action also includes an
additional claim for public nuisance, which is not asserted in the
federal Complaint. The state action, therefore, would dispose of
all of the claims in the federal action as well as one additional
Given that the parties, claims, and underlying facts are the same in
both the state and federal Complaints, the actions are parallel.
2. Balancing the Colorado River Factors
After determining that the state and federal actions are parallel, the
Court must then analyze the actions according to the factors outlined by
the Supreme Court as relevant to Colorado River abstention:
1. Which court first assumed jurisdiction over the property
in the action;
2. Relative inconvenience of the federal forum;
3. Desirability of avoiding piecemeal litigation;
4. Order of filing of the state and federal actions;
5. Whether state or federal law applies to the claims;
6. Whether the state court will adequately protect the
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1
13-28, 103 S.Ct. 927, 743 L.Ed.2d 765 (1983); Colorado River, 424 U.S. at
The factors are "to be applied in a pragmatic, flexible manner with a
view to the realities of the case at hand." Moses H. Cone, 460 U.S. at
21. The Third Circuit has, in a series of cases, interpreted Colorado
River and Moses H. Cone to adopt a strong policy against abstention.
In its most recent decision, Spring City Corporation v. American
Buildings Co., 193 F.3d 165, 171 (3d Cir. 1999), the Third Circuit
reviewed a district court order granting the plaintiff's motion to stay
two federal actions which were parallel to a state action remanded to the
Berks County Court of Common Pleas. See Spring City Corporation v.
American Buildings Co., C.A. Nos. 97-8127, 98-105, 98-28, 1998 WL
151003, at *4-5 (E.D.Pa. Mar. 16, 1998) (Padova, J.)). In the district
court decision, Judge Padova found that the federal actions were parallel
to the remanded state action, and then analyzed the Supreme Court's
six-factor test outlined in Colorado River and Moses H. Cone:
The Court notes that the first, second, and fourth
factors cited by the Supreme Court have little or no
significance here. Neither forum is more convenient
than the other — the courts are not located very far
apart, and neither court has
over property. The fact that Case No. 98-28 was filed
first is also of little importance because Case No.
97-8127 was filed soon thereafter and both cases have
progressed at the same rate [(footnote omitted)].
The remaining factors weigh heavily in favor of staying
Case No. 97-8127. With respect to the third and fifth
factors, "the principal reasons to abstain, once abstention
has been found to be possible, is to avoid piecemeal
litigation and to adjudicate state law issues in state
court." Trent, 1992 WL 365625, at *6. Here, all
of the claims asserted in both actions are based on
Pennsylvania law. There is no federal law involved. The
sixth factor also weighs in favor of deference to the state
action. The Berks County court is certainly capable of
protecting the legal rights and interests of the parties.
Under these circumstances, the Court finds that the stay
of Case No. 97-8127 [and Case No. 98-105] is
warranted [(footnote omitted)].
Id. at *5.
In reversing the district court's order staying the parallel federal
actions, the Third Circuit agreed "that it would be more efficient to
hold the federal cases in abeyance until the conclusion of the state
case. But Colorado River abstention must be grounded on more than just
the interest in avoiding duplicative litigation." Spring City, 193 F.3d
at 171-72. The Court went on to emphasize its strong policy against
We analyzed this issue in Ryan v. Johnson,
115 F.3d 193, 197 (3d Cir. 1997), where we
noted that in Moses H. Cone the Supreme Court
reiterated the narrowness of Colorado River.
We pointed out that even though it is important to prevent
"piecemeal litigation," a stay is appropriate only when
there is a "strong federal policy against [such] litigation."
Id. at 197. This has long been our precedent. . . .
As we stated in Ryan, just as "abstention cannot be
justified merely because a case arises entirely under state
law,' the question whether parties" interests are protected
is only relevant when they are not; that is, "when the
state court is adequate, . . . [this] factor carries little
weight." Ryan, 115 F.3d at 199, 200. . . .
[Plaintiff] relies on this court's decision in Trent v.
Dial Medical of Florida, Inc., 33 F.3d 217
(3d Cir. 1994), where we affirmed the stay of a duplicative
federal proceeding. In Ryan, however, we recognized that
Trent, by focusing principally on the avoidance of
piecemeal litigation, was inconsistent with our earlier decisions
and the Supreme Court's emphasis in Colorado River and
Moses H. Cone that a "strongly articulated congressional
policy against piecemeal litigation" is required to justify
a stay. Ryan, 115 F.3d at 198. We were concerned that
were we to follow what appears to be Trent's emphasis
on "piecemeal litigation," we would "swallow  up the
century-old principle . . . that the pendency of an action in
state court is no bar to proceedings concerning the same matter
in the Federal court having jurisdiction." Id.
(citations and internal quotation marks omitted). We held in
Ryan that under Third Circuit Internal Operating
Procedure 9.1, our prior case law takes precedence
over an inconsistent later case. Id.
We agree and hold that Ryan represents the applicable
law under Third Circuit and Supreme Court precedent. In
Ryan, we narrowly construed the circumstances that
would qualify for Colorado River abstention,
emphasizing language in Colorado River that an
abstention, even for "considerations of wise
judicial administration . . . can be justified . . . only in the
exceptional circumstances where the order to the parties
to repair to the state court would clearly serve an important
countervailing interest." Id. at 195-96 (citation
and internal quotation marks omitted).
193 F.3d at 172-73.
Mindful of the "exceptional circumstances" required to justify staying
a federal action while a parallel state action proceeds, this Court now
examines each of the six factors outlined in Colorado River and Moses H.
Cone in order to determine if abstention is appropriate.
a. Which Court First Assumed Jurisdiction Over the Property
The first factor, whether the state or federal court first assumed
jurisdiction over the property, is not relevant, because neither
court has exercised control over any property.
b. Inconvenience of the Federal Forum
The property in question is located in Phoenixville, Pennsylvania in
Chester County, and Defendant asserts that many of the witnesses may
reside near the Chester County Courthouse. (Def.'s Mot. to Dismiss 6).
Although this courthouse is approximately 35 miles from the Chester
County Courthouse, Chester County is within this District, and thus the
inconvenience of the federal forum is not substantial enough to favor
c. Avoidance of Piecemeal Litigation
When analyzing this factor, it must be determined whether any federal
policy advocates against piecemeal litigation in light of the applicable
law in each particular case. Colorado River, 424 U.S. at 819. In Ryan,
the Third Circuit observed that because every situation involving
parallel state and federal litigation is piecemeal by definition, "it is
difficult to conceive of any parallel state litigation that would not
satisfy the `piecemeal adjudication' factor and militate in favor of
Colorado River abstention." 115 F.3d at 198 (emphasis in original). For
this factor to apply, "there must be a strongly articulated
congressional policy against the piecemeal litigation in the specific
context of the case under review." Id. (emphasis in original) (citing
Colorado River, 424 U.S. at 819 ("clear federal policy" of "avoidance of
In spite of the fact that the General Assembly adopted the Hazardous
Sites Clean-Up Act, 35 Pa. Cons. Stat. Ann § 6020 et seq., to provide
a stringent mechanism for redressing environmental contamination, there
is no congressional statute or articulated policy that piecemeal
litigation should be avoided in this context. "The presence of
garden-variety state law issues has not, in this circuit, been considered
sufficient evidence of a congressional policy to consolidate multiple
lawsuits for unified resolution in the state courts." Ryan, 115 F.3d at
198 (citations omitted). Therefore, the mere existence of piecemeal
litigation is not sufficient to justify abstention.
d. Order in Which Jurisdiction Obtained
When examining this factor, the Court should look to which action
was filed first as well as how much progress has been made in the
two actions. Moses H. Cone, 460 U.S. 21-22.
The state court clearly obtained jurisdiction before this Court. The
state action initially was filed in the Philadelphia Court of Common
Pleas on March 14, 2001 and transferred to the Chester County Court of
Common Pleas on November 1, 2001.
The federal Complaint was filed on
March 18, 2002. However, the state court Amended Complaint forming the
basis for the present action in Chester County was not filed until July
2002 (Def.'s Mot. to Dismiss 2).
Although discovery in the state action initially was limited to venue,
both parties have served interrogatories and document requests, and the
defendants have subpoenaed documents from third parties and served
written discovery. (Def.'s Mot. to Dismiss 8). The defendants in both the
state and federal actions have answered the respective complaints, and
this Court outlined a discovery schedule in its July 31, 2002 scheduling
order. Although the state action commenced more than a year before the
federal action, the state Amended Complaint forming the basis of the
current state action was not filed until July 2002, months after the
federal action was brought. It appears that each of these cases is at a
similar stage, and neither has developed so far as to weigh in favor of
or against abstention.
e. Whether Federal or State Law Controls
In this action, only state substantive law is at issue. Although the
presence of federal issues always weighs against abstention, abstention
can not be justified simply because a case arises entirely under state
law. Moses H. Cone, 460 U.S. at 26. Federal jurisdiction is often invoked
under the diversity statute, requiring federal courts routinely to
interpret issues entirely within the realm of state law. Accordingly,
this factor does not weigh in favor of abstention.
f. Whether State Court Will Adequately Protect Parties' Interests
The adequacy of the state forum normally is only relevant when the
state forum can not adequately protect the rights of the parties. Moses
H. Cone, 460 U.S. at 26-27; Ryan, 115 F.3d at 200. The state forum in the
instant case is adequate, and this factor neither supports nor refutes
IV. Case Management
Defendant has also moved for an extension of discovery deadlines and
for a scheduling conference. This Motion will be granted. Since Defendant
must defend both this case and the essentially identical state court
case, it is important to minimize any extra burden that Defendant would
have to shoulder by virtue of these two cases proceeding at the same
Thus, the Court will direct the parties to discuss among themselves,
and be prepared to discuss at the scheduling conference, the following:
1. Whether all requests for documents made in the state
court case, and documents produced in the state court
case, shall be considered to have been made, and the
documents produced, in this case.
2. Whether all depositions taken in the state court
case shall be considered as being taken in this case,
and may carry the caption of this case as well as the
state court case.
3. Whether any expert reports submitted in the state
court case will be considered to have been submitted
in this case.
4. Whether, although state court rules do not allow
for expert depositions, the parties should be allowed
to take depositions of each other's experts, as provided
in the Federal Rules of Civil Procedure.
For the reasons discussed above, having found that this case does not
present the "exceptional circumstances" necessary to abstain, Defendant's
Motion to Dismiss, or,
in the Alternative, to Stay Proceedings pending
disposition of the action in the Chester County Court of Common Pleas
will be denied. The Motions to Join Third-Party Defendants will be
An appropriate Order follows.
AND NOW, this 22nd day of November, 2002, in consideration of
Defendant's Motion to Dismiss, or, in the Alternative, to Stay
Proceedings (Doc. No. 13) and Plaintiff's opposition thereto, it is
ORDERED that Defendant's Motion is DENIED.
It is further ORDERED that Defendant's Motion to Join Third-Party
Defendant Textron Inc. (Doc. No. 17) is GRANTED and Defendant's Motion to
Join Third-Party Defendant Specialty Chemical Systems, Inc. (Doc. No. 20)
is GRANTED. These parties shall be served promptly so that their counsel
may attend the Scheduling Conference.
Defendant's Motion for an Extension of Discovery Deadlines and for a
Scheduling Conference (Doc. No. 21) is GRANTED. A conference shall be
held December 5, 2002, at 3 p.m. Please call chambers for courtroom
assignment. At the conference, the Court will also consider Plaintiff's
Motion to Determine Sufficiency of Defendants' Answers to Requests for
Admissions (Doc. No. 27). Defendant shall file a brief in response to
Plaintiff's Motion by December 3, 2002.