The opinion of the court was delivered by: Richard Mills, District Judge:
"Colorado River Doctrine" and Illinois Code of Civil
Procedure § 2-619(a)(3).
Does § 2-619 apply to a federal court hearing a diversity
case pursuant to 28 U.S.C. § 1332.
Defendant Specialty Waste Services, Inc.'s motion to
Indiana Lumbermens Mutual Insurance Company (hereafter,
Indiana Lumbermens) was the surety on a project to remove
asbestos at the State Farm Insurance headquarters in
Bloomington, Illinois. The principal on the surety bond and the
party obligated to perform the work was J & S Asbestos, Inc.
State Farm terminated J & S Asbestos based on allegedly poor
performance and demanded Indiana Lumbermens complete the work.
Indiana Lumbermens contracted with Specialty Waste Services,
Inc. (hereafter, Specialty Waste) to complete the work.
Both J & S Asbestos and Specialty Waste agreed to indemnify
Indiana Lumbermens for any losses incurred on the project
attributable to their conduct and both posted letters of
State Farm made a claim against Indiana Lumbermens for
damages caused by the late completion of the work. Indiana
Lumbermens settled State Farm's claim and drew down on the
letter of credit from J & S Asbestos.
In 1989, Indiana Lumbermens filed suit in the Circuit Court
of Cook County seeking money damages from Specialty Waste and
J & S Asbestos. Thereafter, Specialty Waste filed suit against
Indiana Lumbermens and the Bank of Alton to stay Indiana
Lumbermens from drawing on the letter of credit posted by
Specialty Waste. Specialty Waste then succeeded in getting the
Cook County suit transferred to Madison County. While Indiana
Lumbermens was trying to get a hearing on a motion to
voluntarily dismiss the case pursuant to § 2-1005 of the
Illinois Code of Civil Procedure, Specialty Waste filed an
answer and counterclaim. Indiana Lumbermens motion to
voluntarily dismiss was originally allowed, but that order was
vacated after the Judge was alerted that Specialty Waste had
filed a counterclaim before the dismissal order was entered. J
& S Asbestos has been voluntarily dismissed from the Madison
County case wherein it was a Defendant because Indiana
Lumbermens was made whole when it drew down J & S Asbestos'
letter of credit.
Turning to the proceedings in this court, Specialty Waste
filed a motion for an extension of time to answer or otherwise
plead until January 14, 1991. On January 3, 1991, J & S
Asbestos answered the complaint and filed a counterclaim
seeking $500,000 in damages. On January 14, 1991, Specialty
Waste filed this motion to dismiss. Indiana Lumbermens has
filed an answer to the counterclaim on March 12, 1991.
Specialty Waste has not yet answered the complaint.
Specialty Waste's motion to dismiss this case is based on
§ 2-619(a)(3) of the Illinois Code of Civil Procedure. Indiana
Lumbermens contends that § 2-619 should not be applied by a
federal court and that if it is applicable in federal court,
this case still should not be dismissed pursuant to it.