The opinion of the court was delivered by: Judge George M. Marovich
MEMORANDUM OPINION AND ORDER
Plaintiff Barbara Kaplan ("Kaplan") filed in the Circuit Court of Cook County a six-count complaint against defendants Davidson & Grannum, LLP., Sandra Grannum ("Grannum") and David L. Becker ("Becker"). Defendants removed the case to this Court on the basis of diversity jurisdiction. Defendants have now moved to dismiss the case. For the reasons set forth below, the Court denies the motion.
The Court takes as true the allegations in plaintiff's complaint and the allegations in the complaint filed by defendant Davidson & Grannum, LLP against Kaplan in the Supreme Court of New York.
Davidson & Grannum is a law firm that practices, among other things, employment law and securities law. The firm has offices in New York and New Jersey. Grannum is a partner in that firm, and Becker has worked as a lawyer for Davidson & Grannum. Kaplan has worked in the securities business (primarily as a stock broker) in Chicago for about thirty-five years.
On or about April 18, 2006, Davidson & Grannum filed suit against Kaplan in the Supreme Court of New York (the "New York case"). In the New York case, Davidson & Grannum asserted claims against Kaplan for breach of contract and quantum meruit. According to the allegations in their complaint, Davidson & Grannum's claims against Kaplan arose out of Davidson & Grannum's representation of Kaplan in a securities matter. Specifically, Kaplan hired Davidson & Grannum to represent her in connection with a case called 212 Investment Corp. v. Myron Kaplan, Kaplan, Nathan & Co. LLC, Barbara Kaplan and Alan Stark (the "212 Investment case"). It seems that case started in state court in New York and was ultimately adjudicated in an arbitration proceeding. The arbitration award was then confirmed by the Supreme Court of New York. A February 2006 dispute over fees prompted Kaplan to discharge Davidson & Grannum from representing her and prompted Davidson & Grannum to file suit against Kaplan for those fees. As far as this Court knows, the New York case is still proceeding.
Meanwhile, here in Chicago, Kaplan filed her own suit in the Circuit Court of Cook County in November 2007. Defendants removed the case to this Court on the basis of diversity jurisdiction.
Portions of Kaplan's complaint are related to the New York case. Plaintiff alleges claims arising out of Davidson & Grannum's representation of Kaplan in connection with the 212 Investment case. For example, in Count I of her complaint, Plaintiff alleges a breach of contract claim against Becker, Grannum and Davidson & Grannum on the grounds that they overbilled her and performed unnecessary work in connection with the 212 Investment case. In Count II, Kaplan alleges that Becker committed legal malpractice by not disclosing to her a conflict of interest when he agreed to represent her in connection with the 212 Investment case. In Count III, Kaplan alleges that Grannum breached her fiduciary duty by revealing confidential information in connection with the 212 Investment case. Finally, in Count VI, Kaplan alleges that defendants violated the New York State Judiciary law in connection with the 212 Investment case.
Other portions of Kaplan's complaint are not related to the 212 Investment case. In Count IV, Kaplan alleges that Grannum represented Kaplan in connection with her loss of employment with a company called Wunderlich. Kaplan alleges that Grannum committed legal malpractice by filing a frivolous employment claim on Kaplan's behalf here in the United States District Court for the Northern District of Illinois. Finally, in Count V, Kaplan alleges that Grannum committed legal malpractice by failing to amend a NASD form to reflect that a customer complaint against Kaplan had been dismissed.
Defendants ask the Court to dismiss this case on several grounds, including forum non conveniens, Colorado River abstention and an Illinois procedural statute. Defendants do not seek the alternative relief of transferring the case to another venue.
First, defendants argue that this case should be dismissed (they make no request that it be transferred) for forum non conveniens. Forum non conveniens was originally a judge-made rule that allowed a court to dismiss a case under certain circumstances even if the case were otherwise properly before the court. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). The doctrine was codified at 28 U.S.C. § 1404, which allows a court, under certain circumstances, to transfer a case to another district where venue would be proper. The old common-law doctrine for dismissing (as opposed to transferring) a case, however, remains available only to dismiss a case whose alternative forum is abroad. See Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 127 S.Ct. 1184, 1190 (2007); Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 1724 (1996) ("to the extent we have continued to recognize that federal courts have the power to dismiss damages actions under the common-law forumnonconveniens doctrine, we have done so only in 'cases where the alternative forum is abroad.'"); Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 717 (7th Cir. 2002) ("While, with respect to cases wholly within the system of U.S. federal courts, the doctrine has been largely replaced by the transfer of venue statute, 28 U.S.C. § 1404(a), it remains available as a ground for dismissal when a foreign court provides a more convenient forum."). In this case, defendants argue that a New York court is a more convenient forum. Because the alternative forum is not located abroad, the Court denies defendants' request to dismiss the case on common-law forum non conveniens grounds.
Next, defendants argue that plaintiff's case should be dismissed pursuant to a State of Illinois procedural rule. Specifically, the Illinois statute for dismissing claims allows for dismissal on the grounds that "there is another action pending between the same parties for the same cause." See 735 ILCS 5/2-619(a)(3). Defendants argue that this is a substantive provision that this Court (because it is considering the case pursuant to diversity jurisdiction) must apply. Although defendants cite some district court cases supporting their position, their position has long-since been rejected by the Seventh Circuit. AXA Corporate Solutions v. Underwriters Reinsur. Corp., 347 F.3d 272, 278 (7th Cir. 2003) (holding that 735 ILCS 5/2-219(a)(3) does not apply in federal court).
Defendants also argue that the Court should dismiss the case based on what it calls a "first to file" rule for which it cites Martin v. Graybar, 226 F.2d 202, 205 (7th Cir. 1959). In Graybar, two nearly-identical lawsuits involving the same written agreement were filed within four days of each other in two separate United States District Courts. The first case was filed here in the Northern District of Illinois, and the second was filed in the Northern District of Iowa. The plaintiff in the Northern District of Illinois case moved for an order enjoining the other party ...