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BALL v. DEERE & CO.

May 3, 1988

ADRIANNA BALL AND CHRISTOPHER JOHN BALL, PLAINTIFFS,
v.
DEERE & COMPANY, A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

ORDER

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 Dismiss.

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 venue.

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 Act provides:

  "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.

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 ...


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