MEMORANDUM ORDER of Magistrate Judge Edward A. Bobrick
Before the court for decision are the motions of defendants Federal Finance Company ("FFC"); Kirk Miller; and National Finance ("NFC"), Federal Refinance Company ("FRC"), Amos, Inc., Amos Partnership, and Ohannes Korogluyan, to dismiss the amended complaint of plaintiffs James R. Norris and Gwendolyn C. Norris, or in the alternative, for a stay.
Plaintiffs bring their amended complaint under the Fair Debt Collection Practices Act ("Federal Act"), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act ("Florida Act"), Fla. Stat. § 559.55 et seq., alleging that the defendants violated these statutes by attempting to collect a time-barred debt. The defendants
move to dismiss plaintiffs' complaint, or in the alternative for a stay, on several theories. FFC argues that: (1) plaintiffs' action is premature because the claim can and should be adjudicated in an action pending in Florida state court; (2) FFC is not subject to the requirements of the Federal Act; and (3) FFC's foreclosure action is not time-barred. The remaining defendants also seek dismissal, arguing that the allegations relating to them are insufficient to hold them liable.
This case stems from plaintiffs' purchase of a time share unit, presumably in Florida. (Amended Complaint ("AC"), P 20). In connection with the purchase, they signed a promissory note and mortgage deed. They ceased making timely payments on the note no later than November 26, 1986. (Id. P 21). Sometime thereafter, defendant Miller, president of FRC, purchased plaintiffs' loan. (Id., P 23). On or about May 18, 1995, plaintiffs received a letter from FFC entitled "Notice of Default," which informed them that they were in default on their note and mortgage, which were now held by FFC. (Id., P 25). Plaintiffs were soon served with a summons and Florida complaint in which FFC, as sole plaintiff, sought damages on the note. (Id., P 25). Plaintiffs filed this suit in response, contending that Florida's Five-year statute of limitations (Fla. Stat. § 95.11(1)(b)) ran no later than November 18, 1991. (Id., P 22). Some time after plaintiffs filed, FFC sought to amend its Florida complaint, adding Amos Partnership, Korogluyan, FRC in order to comply with Florida procedural law, and adding a count seeking foreclosure. We now address the defendants' arguments for dismissal, or a stay, of plaintiffs' action.
As noted above, FFC advances three arguments in favor of dismissal or stay of plaintiffs' complaint. First, FFC notes that plaintiffs filed a motion to dismiss the Florida complaint on July 12, 1995, but did not raise the statute of limitations. (Memorandum in Support of Motion of FFC, at 4; Ex. 2). Instead, plaintiffs filed a new action in federal court raising the statute of limitations issue. FFC submits that the instant action could be rendered moot by the resolution of the Florida action and, therefore, seeks dismissal or stay of these proceedings. Plaintiffs argue that this court must proceed to hear this case under the Colorado River doctrine.
Under the doctrine set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976), "a federal court may stay or dismiss a suit in exceptional circumstances when there is a concurrent state proceeding and the stay or dismissal would promote 'wise judicial administration.'" Caminiti and Iatarola v. Behnke Warehousing, 962 F.2d 698, 700 (7th Cir. 1992) (quoting Colorado River, 424 U.S. at 818, 96 S. Ct. at 1246) According to the Seventh Circuit:
the first step in determining whether the Colorado River doctrine is applicable is to inquire whether the concurrent state and federal proceedings are parallel. It is important to note that "the requirement is of parallel suits, not identical suits. A 'suit is "parallel" when substantially the same parties are contemporaneously litigating the substantially the same issues in another forum . . ."