The opinion of the court was delivered by: Holderman, District Judge:
MEMORANDUM OPINION AND ORDER
This case is before the Court on defendant's motion to
dismiss, or in the alternative, stay this action in light of
a nearly identical state action pending between the parties in
the Circuit Court of Cook County.
This case concerns an insurance policy issued by The North
River Insurance Company ("defendant") to the Byer Museum of
the Arts and Stephen Byer & Associates ("plaintiffs") insuring
a building and its contents. The insured building is located
in Evanston, Illinois and is occupied by plaintiffs: the Byer
Museum and Stephen Byer & Associates.
On December 31, 1984, approximately three months after the
insurance policy was issued, a fire occurred at the building
causing extensive damage. In March and April of 1985 the
plaintiffs submitted their claims to the defendant for the
damage caused by the December fire. The defendant asserted
that the claims were grossly inflated and, therefore, sought
to have the policy declared null and void due to the
plaintiffs' fraud. Plaintiffs asserted that the claim was
proper and objected to the delay in payment.
Their differences defined, the parties began some elaborate
strategic posturing within the state and federal judicial
systems. On May 31, 1985, defendant filed suit in federal
court seeking a declaratory judgment annulling its liability
under the policy. Five days later, defendant voluntarily
dismissed the federal action pursuant to Fed.R.Civ.P. Rule
41(a)(1)(i), and on the same day refiled the complaint for
declaratory judgment in the Circuit Court of Cook County,
Illinois under docket number 85 CH 5589 ("state action").
Nearly one month later, plaintiffs decided to file their own
action in federal court based on the very same insurance
policy and involving the same factual questions and parties.
The plaintiffs' present federal action seeks the full amount
claimed under the policy, attorneys' fees, statutory penalties
under Ill.Rev.Stat. ch. 73 § 767, compensatory
damages and punitive damages.*fn1 Federal jurisdiction was
based on diversity of citizenship under 28 U.S.C. § 1332.
Having lost the race to the courthouse, the plaintiffs would
like to start another race; a race to judgment between this
Court and the Illinois state court. To prevent such a race to
judgment and to conserve scarce legal and judicial resources,
the defendant has moved to dismiss or stay the federal action
based on alternative grounds, namely: § 2-619(a)(3) of the
Illinois Code of Civil Procedure; and the Colorado River
doctrine which allows federal courts to dismiss or stay federal
actions in deference to concurrent state proceedings. For the
following reasons defendant's motion to dismiss is granted.
Because jurisdiction in the present litigation is premised
on diversity of citizenship, Illinois state law is applicable
under the well established principles of Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938);
Guarantee Trust Co. of N.Y. v. New York, 326 U.S. 99, 65 S.Ct.
1464, 89 L.Ed. 2079 (1945); and Byrd v. Blue Ridge Elec. Coop.,
Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958).
Directly in issue is whether the Erie doctrine requires the
application of an Illinois statutory provision which allows the
dismissal of a cause of action involving the same cause and
same parties as another pending action.
Section 2-619(a)(3), Ill.Rev.Stat. ch. 110, provides:
Defendant may, within the time for pleading, file
a motion for dismissal of the action or for other
appropriate relief upon any of the following
(3) That there is another action pending between
the same parties for the same cause.*fn2
The Illinois Supreme Court has interpreted "same cause" to
mean that "actions are `for the same cause,' when relief is
requested on substantially the same set of facts."
Skolnick v. Martin, 32 Ill.2d 55, 203 N.E.2d 428 (1964), cert.
denied, 381 U.S. 926, 85 S.Ct. 1562, 14 L.Ed.2d 684 (1965).
Though it is clear that the state and federal actions fall
within the parameters of § 2-619(a)(3), plaintiffs contend that
this statutory provision is merely a procedural device for use
by the Illinois state courts and has no applicability to
federal courts exercising diversity jurisdiction. This argument
is contrary to the overwhelming weight of judicial decisions
determining the applicability of § 2-619(a)(3) to federal
courts sitting in diversity. Simenc v. Holiday Inns, Inc., No.
83 C 5618, slip op. (N.D.Ill. Feb. 10, 1984) (Judge Moran);
Brite Industries v. Anderson, No. 81 C 5593, slip op. (N.D.Ill.
March 25, 1982) (Judge Kocoras); Holmes v. Chicago Transit
Authority, 505 F. Supp. 877 (N.D.Ill. 1981) (Judge Leighton);
v. Quill Corp., No. 81 C 3489, slip op. (N.D.Ill. Nov. 2, 1981)
(Judge Decker); Repp v. F.E.L. Publications, Ltd., No. 80 C
3335, slip op. (N.D.Ill. Oct. 8, 1980) (Judge Leighton);
Holston v. The Rockford Surgical Service, No. 80 C 173, slip
op. (N.D.Ill. Sept. 22, 1980) (Judge Shadur); General
Investment Funds Real Estate Holding Company v. Exchange
National Bank of Chicago, No. 79 C 1286, slip op. (N.D.Ill.
April 14, 1980) (Judge Aspen); Kaiser v. Raymond Bolzan, Inc.,
No. 77 C 4122, slip op. (N.D.Ill. Dec. 4, 1978) (Judge