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 ...