to accommodate the additional property damage plaintiffs, who have only recently filed claims and who have opted-out of the class action. See Dayton Hudson's Br. at 3; American Home's Br. at 5. In addition, depositions have only recently been noticed; none have yet been taken. Id.; City's Reply at 6. The state class plaintiffs have propounded ten interrogatories and fifteen document requests to the two defendants. See Dayton Hudson's Br. at 10. Relatively few documents have been produced, and only last week did Great Lakes answer interrogatories propounded by the City. See id. (noting that Great Lakes' insurance policy not yet produced); American Home's Br. at 4; City's Mot. for Leave to Reply at P 4 (noting that only twelve of four hundred anticipated responses have been received). In short, the priority of jurisdiction does not weigh heavily in favor of a stay.
The fifth factor, source of governing law, is an important consideration when federal issues exist. Indeed, in the abstention calculus, presence of federal issues favors the exercise of federal jurisdiction. See Moses H. Cone, 460 U.S. at 23-24. In these cases, however, state law governs. Nonetheless, the existence of state tort law issues does not weigh Strongly against the exercise of federal jurisdiction, because neither novel nor complex state law issues are implicated. See id. at 26 (noting that in rare instances state law issues may weigh in favor of stay). The City's contention to the contrary is misplaced. At its core, this litigation represents a traditional tort action, containing neither strained claims of purely economic loss nor involving exceptional application or unique Understanding of Illinois' Tort Immunity Act. The presence of unremarkable state law issues, typical of most diversity cases, does not strongly support abstention.
Finally, the City argues that the plaintiffs' invocation of diversity jurisdiction "may well be vexatious or contrived." City's Br. at 15. The City perceives the timing and method of the federal filings as a "well-orchestrated attempt by plaintiffs' counsel to circumvent" the state court proceedings. Id. at 15. However, the federal plaintiffs' conduct may also be viewed as a considered, informed, and permitted decision to sue defendants in federal rather than state court. Plaintiffs have not filed suits concurrently in state and federal court.
See Interstate Material, 847 F.2d at 1289 (same plaintiff filed substantially same suit in two fora). Plaintiffs have chosen to proceed in this forum after first conducting an investigation, obtaining documents under the Freedom of Information Act, consulting with experts, and repairing their damaged property. Dayton Hudson's Br. at 9.
Plaintiffs contend that abstention would infringe their right to proceed in federal court. Without reaching the merits of plaintiffs' dubious contention that litigating their claims in state court would not adequately protect their rights because of perceived local favoritism or prejudice, deference must be accorded plaintiffs' decision to proceed in federal court.
Diversity jurisdiction serves to protect out-of-state parties from perceived -- or misperceived -- local prejudice. And though diversity of citizenship as a basis for federal jurisdiction has its critics, under existing law this court has a continuing obligation to protect the plaintiffs' right to proceed in their chosen forum: federal district court. See Evans Transportation Co. v. Scullin Steel Co., 693 F.2d 715, 717 (7th Cir. 1982).
As instructed by the United States Supreme Court, this court "is not to find some substantial reason for the exercise of federal jurisdiction." Moses H. Cone, 460 U.S. at 25-26 (emphasis in original). Instead, the "task is to ascertain whether there exist 'exceptional' circumstances, the 'clearest justifications,' that can suffice under Colorado River to justify the surrender of that jurisdiction." Id. The City has not set forth adequate reasons to justify a surrender of jurisdiction.
Defendant City of Chicago's motion to dismiss or stay on abstention grounds is denied.
Suzanne B. Conlon
United States District Judge
May 6, 1993