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Whiteside v. Precision Airmotive

May 29, 2007

SHARON WHITESIDE, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF BRIAN E. WHITESIDE, DECEASED, PLAINTIFF,
v.
PRECISION AIRMOTIVE, L.L.C., A LIMITED LIABILITY CORPORATION, PRECISION AIRMOTIVE CORPORATION, A CORPORATION, RUSSELL ROMEY, AN INDIVIDUAL AND D/B/A/ D&G SUPPLY, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Sharon Whiteside ("Whiteside"), as the special administrator of the estate of her late brother, Brian E. Whiteside ("Brian"), brought this action against defendants Precision Airmotive,

L.L.C. ("Precision"), Precision Airmotive Corporation ("PAC"), and Russell Romey, an individual doing business as D&G Supply ("D&G," together with Precision and PAC, "Defendants")*fn1 .

Whiteside alleges that on September 30, 2004, Brian perished in the crash of a 1962 model B95A aircraft manufactured and designed by Beech Aircraft Corporation. Whiteside further alleges that certain defective parts of the aircraft caused the crash and that those defective parts were either serviced, overhauled or manufactured by D&G or PAC (certain of the assets and liabilities of which were assumed by Precision at some point subsequent to the dissolution of PAC, which occurred between April 1, 2000 and September 30, 2004). Now before this Court is Whiteside's motion to stay this action under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976).

Background

Whiteside's twelve-count Complaint, filed in the Circuit Court of Cook County, Illinois on September 29, 2006, purports to state the following claims arising from the crash in which Brian lost his life: (i) product liability - wrongful death against D&G; (ii) product liability - survival action against D&G; (iii) negligence - wrongful death against D&G; (iv) negligence - survival action against D&G; (v) breach of warranty - wrongful death against D&G; (vi) breach of warranty -survival action against D&G; (vii) product liability - wrongful death against Precision and PAC; and (viii) product liability - survival action against Precision and PAC; (ix) negligence - wrongful death against Precision and PAC; (x) negligence - survival action against Precision and PAC; (xi) breach of warranty - wrongful death against Precision and PAC; and (xii) breach of warranty - survival action against Precision and PAC. Pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, the action was removed to this Court on November 14, 2006.

On the same day that this lawsuit was filed in the Circuit Court of Cook County, Illinois, Whiteside filed another lawsuit against Defendants in the Circuit Court of Kenosha County, Wisconsin (the "Wisconsin Action"). The complaint in the Wisconsin Action contains the same factual allegations and purports to state exactly the same claims against exactly the same defendants as does the complaint in this action. The Wisconsin Action also includes claims against additional defendants arising out of the same airplane crash.

On February 20, 2007, defendants Precision and PAC filed a motion for summary judgment in this action, arguing that the General Aviation Revitalization Act's ("GARA") statute of repose bars Whiteside's claims. A week later, Whiteside filed the instant motion to stay these proceedings pending resolution of the Wisconsin action.

Discussion

In Colorado River, the Supreme Court held that "there are principles unrelated to considerations of proper constitutional adjudication and regard for federal-state relations which govern in situations involving the contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state and federal courts." 424 U.S. at 817 (citing Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183 (1952). The Court emphasized, however, the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them." Id. "The 'clearest of justifications' must be present for a federal court to stay a proceeding pending completion of a state action." Tyrer v. City of South Beloit, 456 F.3d 744 (7th Cir. 2006) (quoting Colorado River, 424 U.S. at 819). The Seventh Circuit "[has] held in a number of decisions, beginning with Evans Trasnp. Co. v. Scullin Steel Co., 693 F.2d 715, 717-18 (7th Cir. 1982), that a stay, not a dismissal, is the appropriate procedural mechanism for a district court to employ in deferring to a parallel state court proceeding under the Colorado River doctrine." Selmon v. Portsmouth Drive Condo. Ass'n, 89 F.3d 406, 409 (7th Cir. 1996); see also, CIGNA Healthcare of St. Louis, Inc. v. Kaiser, 294 F.3d 849, 851 (7th Cir. 2002) (same).

To determine whether a stay is appropriate under the Colorado River doctrine, a district court must first determine "whether the concurrent state and federal actions are actually parallel. Then, once it is established that the suits are parallel, the court must consider a number of non-exclusive factors that might demonstrate the existence of exceptional circumstances." Tyrer, 456 F.3d at 751 (quoting Clark v. Lacy, 376 F.3d 682, 685 (7th Cir. 2004)) (internal quotation marks omitted). The Supreme Court's opinion in Colorado River set forth four such factors: (i) the difficulties posed when a state and federal court concurrently assume jurisdiction over the same res; (ii) the inconvenience of the federal forum; (iii) the desirability of avoiding piecemeal litigation; and (iv) the order in which the state and federal proceedings were filed. Tyrer, 456 F.3d at 751 (citing Colorado River, 424 U.S. at 818-19). In Moses H. Cone, the Court identified two additional factors relevant to the exceptional circumstances inquiry: (i) whether state or federal law provides the rule of decision; and (ii) whether the state action will adequately protect the federal plaintiff's rights. Id. (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 23-27 (1983)). The Seventh Circuit has refined the exceptional circumstances analysis to a consideration of ten factors:

1) whether the state has assumed jurisdiction over property; 2) the inconvenience of the federal forum; 3) the desirability of avoiding piecemeal litigation; 4) the order in which jurisdiction was obtained by the concurrent forums; 5) the source of governing law, state or federal; 6) the adequacy of the state-court action to protect the federal plaintiff's rights; 7) the relative progress of state and federal proceedings; 8) the presence or absence of concurrent jurisdiction; 9) the availability of removal; and 10) the vexatious or contrived nature of the federal claim.

Id. at 754 (citing Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 968, 701 (7th Cir. 1992). No single factor is necessarily determinative; in the end, what is required is "a carefully considered judgment taking into account both the obligation to exercise jurisdiction and ...


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