The opinion of the court was delivered by: Leighton, District Judge.
This cause is before the court on defendants' motion to abstain
and to stay further proceedings, construed by this court's order
dated September 19, 1980, as a motion to dismiss. The issue
presented is whether this court may dismiss the complaint because
plaintiff has a similar action pending against defendant in an
Illinois state court, and plaintiff is capable of asserting all
of his claims there. For the following reasons, the complaint is
In a complaint filed with this court on July 10, 1980,
plaintiff Anthony Holmes alleges that he was arrested in the
vicinity of 3558 West Congress Parkway in Chicago, Illinois, by
defendant James LaFollette who was allegedly acting within the
scope of his employment as a police officer for defendant Chicago
Transit Authority at the time in question; and that while under
arrest and in LaFollette's custody, Holmes was shot in the face
by LaFollette without provocation or justification. The complaint
alleges that the acts and occurrences complained of constitute
intentional and negligent violations of his civil rights,
protected by 42 U.S.C. § 1983. Sometime prior to July 10, 1980,
plaintiff filed an action in the Circuit Court of Cook County,
Illinois, County Department, Law Division, against LaFollette and
the Chicago Transit Authority, complaining of the same occurrence
in substantially identical language known as Cause No. 80 L 5129.
The action filed in state court, however, sounded in tort, and
did not allege any violation of Section 1983. Defendants claim
that because both the state and federal complaints involve the
same alleged incident, contain virtually identical factual
allegations and both seek monetary relief from the same
defendants, the complaint in this case should be dismissed as the
more recently filed one in order to avoid duplication of judicial
effort and time spent.
In Klondike Helicopters, Ltd. v. Fairchild Hiller Corp.,
334 F. Supp. 890 (N.D.Ill. 1971) a similar issue was presented. There,
a diversity case, defendant requested dismissal because an
identical case was pending against it in a Washington state
court. The district court held that it could dismiss, citing in
support thereof Ill.Rev.Stat., ch. 110, § 48(1)(e). That section
provides that an action may be dismissed on the ground that
"[t]here is another action pending between the same parties for
the same cause." While that cause involved diversity
jurisdiction, and this case is predicated on a federal statute
question, this court finds the policy of avoiding duplicative
litigation highly persuasive.
It is well settled that the pendency of an action in the state
court is no bar to proceedings concerning the same matter in a
federal court having subject matter jurisdiction. McClellan v.
Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 504, 54 L.Ed. 762
(1910). Equally well established is the principle that a federal
district court is under no compulsion to exercise that
jurisdiction. Brillhart v. Excess Ins. Co., 316 U.S. 491, 494, 62
S.Ct. 1173, 1175, 86 L.Ed. 1620 (1942). The decision whether to
exercise jurisdiction is "largely committed to the `carefully
considered judgment' . . . of the district court." Will v.
Calvert Fire Ins. Co., 437 U.S. 655, 663, 98 S.Ct. 2552, 2557, 57
L.Ed.2d 504 (1978), quoting Colorado River Water Conser. Dist. v.
United States, 424 U.S. 800, 818, 96 S.Ct. 1236, 1246, 47
L.Ed.2d 483 (1976). As noted in Will, 437 U.S. at 665, 98 S.Ct.
There are sound reasons for [the court's] reiteration
of the rule that a district court's decision to defer
proceedings because of concurrent state litigation is
generally committed to the discretion of that court.
No one can seriously contend that a busy federal
trial judge, confronted both with competing demands
on his time for matters properly within his
jurisdiction and with inevitable scheduling
difficulties because of the unavailability of
lawyers, parties, and witnesses, is not entrusted
with a wide latitude in setting his own calendar.
To permit plaintiff to duplicate in this court all discovery,
pre-trial motions and trial efforts made in the state court would
be to approbate inefficient use of scarce judicial resources, and
would result in considerable unfairness to defendants LaFollette
and Chicago Transit Authority.
In Colorado River Water Conser. Dist. v. United States,
424 U.S. 800, 819, 96 S.Ct. 1236, 1247, 47 L.Ed.2d 483 (1976) the
Supreme Court announced three factors to be considered in
dismissing a federal suit due to the presence of a concurrent
state proceeding: 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. Id. at 819, 96 S.Ct. at
1247. In this case, two of the three are satisfied, and the third
has no application to the circumstances presented here.
The first of the Colorado River factors, that of convenience,
is not applicable in that both complaints are pending in the same
city — Chicago — albeit in different judicial systems.
Consequently, it cannot be said, nor has it been argued, that one
forum is more convenient than the other. Second, piecemeal
litigation is never a goal sought to be attained by the courts;
tactical delays and the possibility of inconsistent judgments are
to be avoided. Thus, dismissal of the more recently filed federal
action is clearly warranted. Finally, the third Colorado River
factor is satisfied in that the state action was filed before the
federal suit. Supplemental Memorandum in Support of Defendants'
Motion to Dismiss, p. 4.
However, a fourth unarticulated Colorado River factor must be
considered, and that is whether the federal and state courts have
concurrent jurisdiction over plaintiff's claims. In this case,
careful review of relevant case law reveals that the Illinois
state court does indeed have jurisdiction over plaintiff's civil
rights claims concurrent with the jurisdiction of this court. Any
doubts that state courts may entertain Section 1983 claims were
dispelled by Martinez v. California, 444 U.S. 277, at 283, n. 7,
100 S.Ct. 553, at 558, n. 7, 62 L.Ed.2d 481 (1980). There, while
reserving the question whether state courts are obligated to
entertain Section 1983 actions, the court held that Congress has
not barred them from doing so. Maine v. Thiboutot, 448 U.S. 1, 4
n. 1, 100 S.Ct. 2502, 2503 n. 1, 65 L.Ed.2d 555, 558 n. 1.
Illinois courts have entertained Section 1983 actions for
several years. In Alberty v. Daniel, 25 Ill.App.3d 291,
323 N.E.2d 110, 114 (1st Dist. 1974) the court concluded that
Illinois courts have jurisdiction to adjudicate claims for
alleged violations of civil rights predicated on 42 U.S.C. § 1983,
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.