The opinion of the court was delivered by: 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 . . ."
Caminiti, 962 F.2d at 700 (quoting Interstate Material Corp. v. City of Chicago, 847 F.2d 1285, 1288 (7th Cir. 1988))(emphasis in original).
As between the instant case and the Florida case, the defendants herein, FFC, Korogluyan, Amos Partnership, and FRC are named in both disputes. As plaintiffs admit, only Miller and NFC are not parties to both actions. (Plaintiffs' Surreply, at 1). Contrary to plaintiffs' contention, the parties need not be the same (Id.), but merely substantially the same. Caminiti, 962 F.2d at 700-701. Even where parties are different, courts may find that their interests are so similar that the suits in question involve substantially the same parties. Id. at 701. Clearly, here, where the parties are nearly identical and their interests are the same in the two proceedings at issue, we must find the parties to be "substantially the same."
Similarly, the issues involved in the two proceedings are "substantially the same." As plaintiffs again admit (Plainflffs' Surreply, at 1), two counts of their three-count Amended Complaint herein hinge on the correct application of the correct Florida statute of limitations.
The third count of their Amended Complaint does allege unspecified violations of 15 U.S.C. § 1692g that do not involve the Florida statute of limitations but, once again, it is not necessary that the issues in the two proceedings be identical. "The slight difference in the parties and issues in the federal and state cases is insufficient to destroy the parallel nature of the two proceedings . . ." Caminiti, 962 F.2d at 701. Accordingly, it is evident that the Florida case and the instant case are parallel.
The next step is the balancing of the various factors supporting or disfavoring a stay. ...