United States District Court, Central District of Illinois, Rock Island Division
May 3, 1988
ADRIANNA BALL AND CHRISTOPHER JOHN BALL, PLAINTIFFS,
DEERE & COMPANY, A DELAWARE CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Mihm, District Judge.
Presently before the Court is the Defendant's Motion to
Dismiss the pending action on the grounds that a prior pending
action warrants dismissal of this federal case. The Court
agrees with the Defendant's position and grants its Motion to
On August 29, 1986, the Plaintiff Christopher John Ball
filed a lawsuit in Alberta, Canada, against the Defendant
arising out of a combine accident that occurred on September
29, 1984. The Alberta, Canada action is currently pending and
active in the court's Queens' Bench of Alberta Judicial
District of Lethbridge. Ball and his wife, Adrianna Ball,
subsequently filed the same as a diversity action against this
Defendant in the Northern District, Eastern Division of
Illinois. The action was transferred from the Northern
District of Illinois to this district on the basis of improper
The Defendant notes that according to the Rules Enabling Act
and the Erie Doctrine, if a federal rule of civil procedure
directly covers a procedural issue, the federal rule controls.
A federal rule of civil procedure supersedes any conflicting
state rule in a diversity action. Erie Railroad v. Tompkins,
304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). However, if no
federal rule of civil procedure covers the issue, the Rules of
Decision Act, 28 U.S.C. § 1652 applies. The Rules of Decision
"The laws of the several states, except where the
Constitution or treaties of the United States or
acts of Congress otherwise require or provide,
shall be regarded as Rules of Decisions in civil
actions in the court of the United States, in
cases where they apply." 28 U.S.C. § 1652.
Therefore, a state statute directly covering an issue will
apply if a federal rule of civil procedure does not pertain to
The issue of dismissing an action based on the existence of
a prior pending action is not covered by any federal rule of
civil procedure. The Illinois Code of Civil Procedure,
however, includes a section which directly addresses the
procedure of dismissing an action based on the existence of a
prior pending action. Section 2-619 of the Illinois Code of
Civil Procedure provides, in relevant part:
"The 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 grounds . . . (c) that there is another
action pending between same parties for the same
cause." Ill.Rev.Stat., ch. 110, § 2-619.
Pursuant to the Rules of Decision Act, § 2-619 of the
Illinois Code of Civil Procedure applies in this case because
there is no federal rule of civil procedure which directly
addresses this issue.
In Commonwealth Edison Co. v. Gulf Oil Corp., 541 F.2d 1263
(7th Cir. 1976), the defendant moved in the district court to
dismiss pursuant to § 2-619 of the Illinois Code of Civil
Procedure on the basis of another case pending in the state
court of Illinois. Adding that the action in question was not a
diversity suit but instead involved important federal rights,
the Seventh Circuit stated, "were it simply a diversity suit
involving a nonfederal claim, the Erie Doctrine would require
the court to consider Illinois law." Commonwealth Edison Co. v.
Gulf Oil Corp., 541 F.2d at 1371.
In Skolnick v. Martin, 32 Ill.2d 55, 203 N.E.2d 428 (1964),
the Illinois Supreme Court announced that the purpose of §
2-619 was the "elimination of repetitious suits and the relief
of courts and litigants alike from the unnecessary burden of
trying the same issues pending in another action." Skolnick v.
Martin, 32 Ill.2d at 59,
203 N.E.2d 428. Thus, the Defendant asserts that § 2-619 is
applicable in the instant case and that it mandates a dismissal
of this diversity suit in this federal court.
Alternatively, the Defendant notes that the Court could
exercise its discretion and dismiss this action for reasons of
"wise judicial administration." Colorado River Water
Conservation District v. United States, 424 U.S. 800, 96 S.Ct.
1236, 47 L.Ed.2d 483 (1976); Moses H. Cone Memorial Hospital v.
Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74
L.Ed.2d 765 (1983). In Colorado River, the court stated that a
district court faced with a motion to dismiss may consider
conservation of judicial resources in comprehensive disposition
of litigation. Id. 103 S.Ct. at 817. The Supreme Court noted
that one factor to be considered "in assessing the
appropriateness of dismissal in the event of exercise of
concurrent jurisdiction . . . is the desirability of avoiding
piecemeal litigation. . . ." Id. at 818.
The Defendant asserts that public policy favors resolution
in a single suit of what is truly a single controversy.
Asbury v. Chesapeake and Ohio Railroad Co., 264 F. Supp. 437
(D.C.D.C. 1967). It asserts that both the instant case and the
Alberta, Canada action involve identical facts and identical
issues. Therefore, it is appropriate for this Court to avoid
unnecessary duplicative litigation by dismissing this action.
In response, the Plaintiffs assert that although § 2-619 may
be applicable in cases where the action is filed in both
federal and state court, § 2-619 is not applicable where the
alternative action is filed in a foreign court. The Plaintiffs
bring to the attention of this Court a line of cases which it
asserts distinguishes Skolnick from the instant set of facts.
These cases include Farah v. Farah, 25 Ill. App.3d 481,
323 N.E.2d 361 (1st Dist. 1975), Goldberg v. Goldberg, 27 Ill. App.3d 94,
327 N.E.2d 299 (1975) and Dayan v. McDonald's Corp.,
64 Ill. App.3d 984, 382 N.E.2d 55, 21 Ill.Dec. 761 (1978).
As pointed out by the Defendant in its reply to Plaintiffs'
supplemental response to Motion to Dismiss, the line of cases
to which the Plaintiffs refer are cases which preceded the
enactment of the Uniform Foreign Money-Judgments Recognition
Act. The Defendant argues that, as noted by the Court in
Farah v. Farah, 25 Ill. App.3d 481, 323 N.E.2d 361 (1st Dist.
1975), in which the plaintiff wife filed divorce actions in
both Lebanon and Illinois, the full faith and credit clause of
the United States Constitution did not require an Illinois
court to recognize or enforce a decree of a foreign country.
Farah v. Farah, 323 N.E.2d at 368. The appellate court in that
case concluded that since there was no obligation to recognize
or enforce a foreign judgment there was certainly no obligation
to consider the pendency of a foreign action for purposes of
the application of § 48(1)(c) of the Civil Practice Act (now
recodified as § 2-619(a)(3) of the Code of Civil Procedure).
The Defendant notes that with the adoption of the Uniform
Foreign Money-Judgments Recognition Act, the rationale for the
decision in Farah no longer exists. Under the Act, a foreign
judgment is now recognized in Illinois provided that
jurisdiction existed over the subject matter and defendant and
that the procedures in the foreign court accorded the defendant
minimal due process. Ill.Rev.Stat., ch. 110, § 12-618 et seq.
Thus, with the adoption of the Uniform Foreign Money-Judgments
Recognition Act in Illinois, foreign judgments now stand on
equal footing with judgments of sister states, and the pendency
of a Canadian action is a "pending action" for the purpose of §
The Defendant argues that even if Illinois had not adopted
the Uniform Foreign Money-Judgments Recognition Act, §
2-619(a)(3) would apply in this case because it involves a suit
that is pending in Canada. Farah was a case where the second
action was pending in Lebanon. Thus, as the court in Farah
noted, even if the suit was reduced to judgment, there would be
no obligation to recognize and enforce the Lebanese judgment.
However, in this case we are not dealing with a suit pending in
Lebanon — but rather in Canada — and
Canadian judgments have been recognized in the United States
under the doctrine of comity. Ritchie v. McMullen,
159 U.S. 235, 16 S.Ct. 171, 40 L.Ed. 133 (1895); Clarkson Co., Ltd. v.
Shaheen, 544 F.2d 624, 629-30 (2nd Cir. 1976); Toronto-Dominion
Bank v. Hall, 367 F. Supp. 1009 (E.D.Ark. 1973). Thus, the
decision in Farah may well have been different if the action
had been pending in Canada, which is a sister common law
Additionally, for the purposes of § 2-619(a)(3), the parties
need not be identical. All that is required is that the
litigants be substantially the same. Baker v. Salomon, 31 Ill. App.3d 278,
334 N.E.2d 313 (1st Dist. 1975). In the instant case, the Court
recognizes that in the Canadian action only Christopher Ball is a
Plaintiff, whereas in the Illinois action his wife is also a party.
However, since the relief requested is based upon a common set of
facts, the Defendant asserts that the requirements are satisfied and
the action should be dismissed. Catalano v. Aetna Casualty & Surety
Co. of Illinois, 105 Ill. App.3d 195, 434 N.E.2d 31, 61 Ill.Dec. 94
(2nd Dist. 1982) (suit by husband in one county and wife in another county
met the substantial identity requirement).
After reviewing the cases and applicable statutes set forth
by the parties, the Court finds that this case must be
dismissed on the basis of comity. Reviewing the complaints in
both cases, the actions appear to be the same, requesting the
same relief arising from the same core of facts.
The Court's research leads it to the conclusion that the
analysis set forth by the Defendant is correct concerning the
applicable law in this case, i.e., § 2-619 (Illinois Code of
Civil Procedure), and that a Canadian judgment is to be treated
like a "sister judgment."
Lastly, the Defendant moves for dismissal of this action on
the basis of forum non convenience. The underlying concept of
dismissal on the grounds of forum non convenience is the
requirement that there be a significantly more convenient
alternative forum in which a lawsuit may be maintained. In re
Oil Spill by "Amoco Cadiz" off Coast of France on March 16,
1978, 491 F. Supp. 170 (D.C.Ill. 1979). The parties concur that
a leading federal decision on forum non convenience is Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055
(1947). In that case, the Supreme Court stated:
"If the combination and weight of factors
requisite to given results are difficult to
forecast or state, those to be considered are not
difficult to name. An interest to be considered,
and the one likely to be most pressed, as a
private interest of the litigant. Important
considerations of the relative ease of access to
sources of proof; availability of compulsory
process for attendance of unwilling; and the cost
of obtaining attendance of willing witnesses;
possibility of view of premises, if view would be
appropriate to the action; and all other
practical problems that make trial of a case
easy, expeditious and inexpensive. There may also
be questions as to the enforceability [sic] of a
judgment if one is obtained. The court will weigh
relative advantages and obstacles to fair trial.
It is often said that the plaintiff may not, by
choice of inconvenient forum, `vex,' `harass,' or
`oppress' the defendant by inflicting upon him
expense or trouble not necessary to his own right
to pursue his remedy [footnote omitted] but
unless the balance is strongly in favor of the
defendant, the plaintiff's choice of forum should
rarely be disturbed." Gulf Oil, 330 U.S. at 508, 67
S.Ct. at 843.
Both parties review in their pleadings the factors
identified and set out by the Supreme Court in Gulf Oil. After
reviewing these pleadings and the applicable case law, it is
the Court's opinion that in the instant case the scales are
tipped in favor of the Defendant, and therefore, the case can
appropriately be dismissed also on the basis of forum non
The record reflects the following:
1. Plaintiff's residence in the Province of Alberta,
Canada, which is also the location of the accident.
2. The product is owned by a Canadian company and is most
likely still located in Canada.
3. Plaintiff's employer, supervisor, and co-worker are
4. Plaintiff's medical treatment and hospitalization was in
5. Plaintiff's employer, supervisor, and co-workers are
co-defendants with Deere & Co. in the Canadian action.
6. Plaintiff seeks a joint and several judgment against all
the Defendants including Deere & Co. in the Canadian action.
Further, the question of conflict of laws is discussed by
the parties. Pursuant to the Illinois Supreme Court decision
in Ingersoll v. Klein, 46 Ill.2d 42
, 262 N.E.2d 593
conflicts of law rule in Illinois is that the law of the place
of the injury should determine the rights and liabilities of
the party, unless Illinois has a more significant relationship
with the occurrence and the parties, in which case, Illinois
law should apply.
In the present action, the only relationship with the State
of Illinois is that the product was manufactured there. As
previously outlined, all of the other relationships with the
parties and occurrences are Canadian. Furthermore, even if
Canadian law is not as favorable as Illinois law, that factor
is not particularly relevant in that there is no allegation
that Canada does not provide an adequate forum. Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 251, 102 S.Ct. 252, 263, 70 L.Ed.2d
419 (1981). As pointed out by the Defendant, if the test for
dismissal was whether American law is more favorable to
Plaintiff than Canadian law then American courts, which are
already extremely attractive to foreign plaintiffs, would
become even more attractive. Piper Aircraft Co. v. Reyno, 454
U.S. at 252, 102 S.Ct. at 264.
Although the Plaintiff claims that the fact that he was
employed in Canada at the time of the accident is irrelevant,
this factor is relevant since he has sued his employer,
supervisor, and co-workers, who are all Canadian residents.
There is no reason to believe that any of these Defendants are
subject to the jurisdiction of this Court. This means that
Defendant Deere may possibly be precluded from bringing third
party actions against them. This fact weighs heavily in favor
of holding the trial in Canada. Piper Aircraft Co. v. Reyno,
454 U.S. at 257, 102 S.Ct. 267.
The parties both admit that many potential witnesses reside
in Canada. However, Plaintiff asserts that this is not a
critical factor because the Plaintiffs will fully cooperate in
securing the witnesses' testimony. Presumably, Plaintiffs mean
that they will cooperate in securing deposition testimony, not
insuring the appearance of these witnesses at trial. As
Defendant points out, the issue to be considered is not
whether Plaintiffs will cooperate in securing testimony, but
rather the availability of compulsory process for the
attendance of unwilling witnesses, and the cost of obtaining
attendance of willing witnesses. Mergenthaler Linotype Corp. v.
Leonard Storch, 66 Ill. App.3d 789, 383 N.E.2d 1379, 1389, 23
Ill.Dec. 352, 362 (1st Dist. 1978). The list of potential and
possible witnesses is long and they all reside in Canada.
It appears that Illinois does not have a substantial
interest in adjudicating the rights and liabilities of the
Plaintiffs. In Piper, the court found that the American
interest in the accident was simply not sufficient to justify
the enormous commitment of judicial time and resources that a
trial in an American court would require. Piper, 454 U.S. at
261, 102 S.Ct. at 268. The Defendant asserts that the holding
in Piper reinforced earlier decisions that held that the fact
that a product was designed or manufactured in the state in
which the action was brought would not defeat a motion based on
forum non convenience or prevent the court from granting such a
motion. Mizokami Bros. of Arizona v. Mobay Chemical Corp.,
660 F.2d 712, 718 (8th Cir. 1981); Pain v. United Technologies
Corp., 637 F.2d 775, 786, 790 (D.C. Cir. 1980); Abiaad v.
General Motors Corp., 538 F. Supp. 537, 542 (E.D.Penn. 1982);
Grodinsky v. Fairchild Industries, Inc., 507 F. Supp. 1245,
1249-1251 (D.C.Md. 1981); Michell v. General Motors,
439 F. Supp. 24, 27 (N.D. Ohio 1977).
The Defendants have answered the complaint in the Canadian
court, and have waived any and all objections to the statute
of limitations. Therefore, based upon all of the factors which
have been addressed in this Order, the Court finds that the
factors weigh significantly in favor of the Defendant and
dismissal on the basis of forum non convenience is also
It is ordered that the Defendant's Motion to Dismiss is
GRANTED on the basis of comity and forum non conveniens.
© 1992-2003 VersusLaw Inc.