The opinion of the court was delivered by: Grady, District Judge.
Plaintiff, a Taiwanese national, has brought this medical
malpractice action against Northwestern Memorial Hospital and
Dr. Robert Turner. Jurisdiction is based on diversity of
citizenship. Defendants have filed a motion to dismiss,
alleging that plaintiff is not a citizen of a "foreign state"
recognized by the United States for purposes of diversity
jurisdiction. In addition, it is argued that this court should
refuse to hear this case under the doctrine of abstention,
since an identical lawsuit was subsequently filed in state
court. We will deny the motion.
The facts in this case read like a law school examination.
On February 7, 1977, plaintiff was allegedly given an
injection of actinomycin — D in her right hand, causing serious
nerve damage. She was at this time a patient at Northwestern
Memorial Hospital. Plaintiff, a citizen of Taipei, Taiwan,
commenced this instant action in federal court on January 12,
1979, some 12 days after President Carter broke off official
diplomatic relations with Taiwan in favor of recognition of the
People's Republic of China "as the sole legal government of
China." Presidential Memorandum of December 30, 1978,
3195-01-M, 44 Federal Register 1075 (Jan. 4, 1979). Defendants
Northwestern Memorial Hospital and Dr. Turner are residents of
Illinois. For purposes of tolling the statute of limitations,
plaintiff filed the identical action in state court on March
12, 1979. See Plaintiff's Supplemental Memorandum in Reply to
Defendant's Supplemental Memo in Support of their Motion to
Dismiss, p. 3.
Section 1332(a)(2) of Title 28 of the United States Code
implements this provision, vesting the district courts with
jurisdiction over civil actions between state citizens and
citizens of foreign countries. This power has
, 1182 (7th Cir. 1980).
The generally accepted test for determining if a plaintiff
can sue in the federal court is whether he or she is a citizen
of a foreign state recognized by the United States government
at the time of the commencement of the suit. Land
Oberoesterreich v. Gude, 109 F.2d 635, 637 (2d Cir. 1940);
Windert Watch Co., Inc. v. Remex Electronics Ltd., 468 F. Supp. 1242,
1244 (S.D.N.Y. 1979); Klausner v. Levy, 83 F. Supp. 599,
600 (E.D.Va. 1949).*fn2 It is the President who has the
constitutional authority to recognize and derecognize nations.
Goldwater v. Carter, 617 F.2d 697, 707-708 (D.C. Cir. 1979),
vacated on other grounds, 444 U.S. 996, 100 S.Ct. 533, 62
L.Ed.2d 428 (1979); Banco National de Cuba v. Sabbatino,
376 U.S. 398, 410, 84 S.Ct. 923, 930, 11 L.Ed.2d 804 (1964); United
States v. Pink, 315 U.S. 203, 228-230, 62 S.Ct. 552, 564-565,
86 L.Ed. 796 (1942); U.S. Const. art. II, § 3 (The President
"shall receive Ambassadors and other public Ministers").
Article VI, § 4 of the 1948 Treaty of Friendship, Commerce
and Navigation between the United States of America and the
Republic of China, 63 Stat. 1300 states in relevant part:
On December 30, 1978, President Carter issued a memorandum
on "Relations with the People of Taiwan." Presidential
Memorandum of December 30, 1978, 3195-01-M, 44 Federal
Register 1075 (Jan. 4, 1979).
Pursuant to this document, official diplomatic relations with
the Republic of China were terminated as of January 1, 1979.
Nonetheless, the President declared that "[e]xisting
international agreements and arrangements in force between the
United States and Taiwan" shall remain "in force."
The Taiwanese Relations Act was enacted on April 10, 1979.
P.L. 96-8, 93 Stat. 14. While not conferring any new
jurisdiction on the federal courts, the Act explicitly
[t]he capacity of Taiwan to sue and be sued in
courts in the United States, in accordance with
the laws of the United States, shall not be
abrogated, infringed, modified, denied, or
otherwise affected in any way by the absence of
diplomatic relations or recognition.
93 Stat. at 16, Sect. 4(b)(6). "Taiwan" includes the "islands
of Taiwan and the Pescadores, the people on those
islands. . . ." 93 Stat. at 20-21, Sect. 15(2). We reject
defendants' hypertechnical argument that the plaintiff is not
covered by this definition because she was not physically
present on the island when she sustained the injury and filed
Finally, the President issued Executive Order 12143 on June
22, 1979, "superced[ing]" the earlier presidential memorandum
of December 30, 1978. 44 Federal Register 37191, 37192.
Defendants contend that this order abolished any existing
rights of Taiwanese citizens to sue in the federal courts. A
close examination of this order, however, does not support
this interpretation. A savings clause included in the order
specifically protects existing treaty agreements:
Agreements and arrangements referred to in
paragraph (B) of [the Presidential Memorandum of
December 30, 1978] shall continue in force and
shall be performed in accordance with the
[Taiwanese Relations] Act and this Order.
44 F.R. at 37192-93. Thus the 1948 U.S.-Taiwan Friendship
Treaty provision on access to our courts by Taiwanese
nationals remains in effect.
Moreover, to avoid any possible confusion, we requested the
plaintiff to obtain a determination from the U.S. State
Department as to whether Executive Order 12143 altered the
ability of Taiwanese nationals to sue in the federal courts.
The Assistant Legal Adviser for Treaty Affairs of the State
Department responded that the order
was not intended in any way to abrogate,
infringe, or otherwise modify the right of
natural and juridical persons from Taiwan to sue
in the courts of the United States.
Exhibit C to Affidavit of Plaintiff's Attorney Regarding
Compliance with Court's Order of February 1, 1980.
We note that there is ample authority for requesting and
obtaining guidance from the Executive branch in a matter
within that branch's purview. P & E Shipping Corp. v. Banco
Para El Comercio Exterior De Cuba, 307 F.2d 415, 418 (1st Cir.
1962) (case remanded to ascertain from the State Department
whether Cuban entity can sue in federal court during cessation
of diplomatic relations); Murarka v. Bachrack Bros., Inc.,
215 F.2d 547, 552 (2d Cir. 1954) (district court properly relied on
State Department communication in finding de facto recognition
of India by the United States in 1947). See Electronic Data
Systems Corp. v. Social Security Organization of Iran,
610 F.2d 94-95 (2d Cir. 1979) (district court on remand of attachment
order may interpret the U.S.-Iranian Treaty of Amity, Economic
Relations and Consular Relations in light of available State
Department documents). Indeed, the Second Circuit in the
Electronic Data System case stated that it may be advisable for
the district court to "ascertain the position of the Department
of State concerning the defendants' [governmental agency of
Iran] right to access to United States courts under the
extraordinary circumstances now prevailing" with the Islamic
Republic of Iran. 610 F.2d at 95.
Having determined that plaintiff Chang may bring her action
in this court, the question remains whether we should dismiss
it under the doctrine of abstention. Under this doctrine, a
district court may decline to exercise or in certain cases
postpone the exercise of its jurisdiction over a properly filed
case. At first blush, it may seem desirable to dismiss the
action and allow the identical state court suit to proceed: It
is a garden variety professional negligence case and a complex
array of federal constitutional questions confront us in the
federal court. These questions, however, have now been
resolved. Moreover, abstention from the exercise of federal
jurisdiction is the "exception, not the rule." Colorado River
Water Conservation District v. United States, 424 U.S. 800,
813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). It is an
extraordinary and narrow exception to the duty of the district
court to adjudicate controversies properly before it.
"Abdication of the obligation to decide cases can be justified
under this doctrine only in the exceptional circumstances where
the order to the parties to repair to the State court would
clearly serve an important countervailing interest." County of
Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-189, 79 S.Ct.
1060, 1062-1063, 3 L.Ed.2d 1163 (1959). Federal Savings and
Loan Insurance Corp. v. Krueger, 435 F.2d 633, 637 (7th Cir.
1970). It was never intended "that a federal court should
exercise its judicial discretion to dismiss a suit merely
because a State court could entertain it." Alabama Public
Service Commission v. Southern Railway Co., 341 U.S. 341, 361,
71 S.Ct. 762, 774, 95 L.Ed. 1002 (1961) (Frankfurter, J.,
concurring in result).
Moreover, the instant case does not fall within the
traditional applications of the abstention doctrine. First,
this case does not involve a federal constitutional challenge
where a state court determination of unsettled questions of
local law may avoid the need to decide the constitutional
questions. Railroad Commission of Texas v. Pullman Co.,
312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Pullman dealt with
construction of a state administrative regulation where state
adjudication may "displace tomorrow" the federal decision on
the equal protection, due process and commerce clause claims
under the United States Constitution. 312 U.S. at 500. Of
course, the ruling made by this court on the ability of the
instant plaintiff to sue in federal court is a question
limited to the federal forum. No action by a state tribunal
would have or could have any effect on that result. Moreover,
Pullman-type abstention has only been employed to stay a
federal action pending resolution of the local law questions,
not to dismiss it. 17 Wright and Miller, Federal Practice and
Procedure, § 4241, at p. 433.
Second, there is no difficult question of state law bearing
on an issue of public policy to warrant abstention. See, e. g.,
Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25,
79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (scope of eminent domain
power of municipalities under state law); Burford v. Sun Oil
Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943)
(impermissibly disruptive effect on state policy for the
management of oil fields). The state law claims presented in
the case at bar involve settled principles of state law, with
no explicit or implicit state policies brought into question.
Third, the Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27
L.Ed.2d 669 (1971), and Huffman v. Pursue Ltd., 420 U.S. 592,
95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), line of abstention cases,
restraining state criminal and quasi — criminal proceedings, is
not relevant here.
Finally, we must consider a fourth hybrid category of
abstention enunciated in Colorado River Water Conservation
District v. United States, supra, resting on "considerations of
`[w]ise judicial administration, . . . [including] conservation
of judicial resources and comprehensive disposition of
litigation.'" 424 U.S. at 817, 96 S.Ct. at 1246. The Supreme
Court in Colorado River explained the relevant factors involved
in this principle:
[T]he circumstances permitting the dismissal of a
federal suit due to the presence of a concurrent
state proceeding . . . are considerably more
limited than the circumstances appropriate for
[traditional] abstention. . . . In assessing the
appropriateness of dismissal in the event of an
exercise of concurrent jurisdiction, a federal
court may . . . consider such factors as the
inconvenience of the federal forum, the
desirability of avoiding piecemeal litigation,
and the order in which jurisdiction was obtained
by the concurrent forums. No one factor is
necessarily determinative; a carefully considered
judgment taking into account both the obligation
to exercise jurisdiction and the combination of
factors counselling against that exercise is
required. Only the clearest of justifications
will warrant dismissal.
424 U.S. at 818-819, 96 S.Ct. at 1246-1247 (citations
omitted). Applying these factors in the instant case, the only
"inconvenience" of this forum is to the court itself, caused
by the need to adjudicate complex constitutional and
jurisdictional questions. This work has now been done. In
addition, all issues can be fully adjudicated in this court
and plaintiff filed her federal action first. Although the
avoidance of duplicative litigation is an important end, the
mere "pendency of an action in state court is no bar to
proceedings concerning the same matter in the Federal
court. . . ." Colorado River Water Conservation District v.
United States, supra, 424 U.S. at 817, 96 S.Ct. at 1246, citing
McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 504, 54
L.Ed. 762 (1910). We doubt, in fact, that any significant
duplication will occur in this ease should we deny the motion
to dismiss: plaintiff will probably dismiss the state action,
which she only filed to toll the statute of limitations. "[T]he
plaintiff has not proceeded with discovery or done anything of
a substantive nature with regard to this [state] cause of
action, because of her intention to proceed only in Federal
Court, the forum of her right and her choice." Plaintiff's
Supplemental Reply Memorandum, p. 4.
Where collateral actions are filed in state and federal
court, the resolution of the abstention issue is committed to
the district court's discretion. Will v. Calvert Fire Insurance
Co., 437 U.S. 655, 663-664, 98 S.Ct. 2552, 2558-2559, 57
L.Ed.2d 504 (1978).*fn4 "[T]he virtually unflagging obligation
of the federal courts to exercise the jurisdiction given them,"
Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246, however, can
result in an abuse of that discretion. In a case directly
bearing upon our present inquiry, the Seventh Circuit Court of
Appeals reversed the dismissal of a properly filed diversity
action because of the pendency of similar state court
litigation. Liberty Mutual Insurance Co. v. Pennsylvania
Railroad Co., 322 F.2d 963 (1963). While "commending" the
district court's motives, the Court held in the context of an
action on an insurance contract that
a federal district court is without authority to
abdicate its admitted diversity jurisdiction by
dismissing the action solely on the ground that
other litigation is pending in a state court
involving substantially the same parties and
subject matter in order to obtain complete
justice and avoid multiple litigation.
322 F.2d at 965, 968. Accord, Augustin v. Mughal,
521 F.2d 1215, 1217 (8th Cir. 1975) (fact that a diversity claim
sounding in negligence could be litigated in pending state
proceeding filed subsequent to federal action does not justify
district court's dismissal on abstention ground).
We therefore find that abstention is not warranted in this
case. Defendants' motion to dismiss is denied.