Thakur et al v. Zazworsky et al
MEMORANDUM OPINION & ORDER: All proceedings in this action shall be STAYED pending resolution of the parallel state court proceedings. The parties shall notify the Court when those proceedings are resolved. Signed by Judge David L. Bunning on 8/23/2013.(TJZ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 13-79-DLB-JGW
SANJEEV KRISHNA THAKUR, ET AL.
MEMORANDUM OPINION & ORDER
LEON ZAZWORSKY, ET AL.
This matter initially came before the Court on Plaintiffs’ Motion to Remand. (Doc.
# 13). The Court denied that motion, but also ordered the parties to file simultaneous
memoranda addressing Colorado River abstention. (Doc. # 16). That briefing having now
been completed (Docs. # 17, 18), the Court concludes that abstention is appropriate.
Accordingly, this case will be stayed pending resolution of the state court action.
The Court adopts the facts and procedural history set forth in its previous order. To
summarize, Sanjeev Krishna Thakur commenced two lawsuits on behalf of himself, his wife
and his minor son in Boone County Circuit Court based upon an automobile accident in
which Sonali Sisodia was killed and A.S.T. was injured. In the first suit, he named eight
defendants, including Mid State Systems, Inc. and James Konkler.1 In the second suit,
which is the case actually before this Court, Thakur again named Mid State Systems and
The other defendants were Hermendra Patel, Rachel M. Greba, Goodyear Tire &
Rubber Company, Progressive Advanced Insurance Company, Wingfoot Commercial Tire
Systems, LLC and Kentucky Farm Bureau Mutual Insurance Company.
Konkler, as well as Leon Zazworsky. He then moved to consolidate the two suits.
Before the Kentucky court could adjudicate Thakur’s motion for consolidation,
Zazworsky, along with Mid State Systems and Konkler, removed this second suit, and a
motion to remand followed. The Court denied that motion, but requested further briefing
addressing whether the Court should abstain and stay all proceedings in light of Colorado
River Water Conservation Dist. v. U. S., 424 U.S. 800 (1976). The parties completed that
briefing on August 19, 2013. (Docs. # 17, 18).
As the Sixth Circuit noted in PaineWebber, Inc. v. Cohen, “[i]n certain ‘exceptional’
circumstances . . . a federal district court may abstain from exercising its subject matter
jurisdiction due to the existence of a concurrent state court proceeding, based on
‘considerations of wise judicial administration, giving regard to conservation of judicial
resources and comprehensive disposition of litigation.’” 276 F.3d 197, 206 (6th Cir. 2001)
(quoting Colorado River Water, 424 U.S. at 817). The appellate court continued:
The Supreme Court has identified eight factors, four in Colorado River and
four in subsequent decisions, that a district court must consider when
deciding whether to abstain from exercising its jurisdiction due to the
concurrent jurisdiction of a state court. These considerations are:
(1) whether the state court has assumed jurisdiction over any
res or property; (2) whether the federal forum is less
convenient to the parties; (3) avoidance of piecemeal litigation;
. . . (4) the order in which jurisdiction was obtained[;] . . . (5)
whether the source of governing law is state or federal; (6) the
adequacy of the state court action to protect the federal
plaintiff's rights; (7) the relative progress of the state and
federal proceedings; and (8) the presence or absence of
Id. (citation omitted).
To summarize, there are two basic steps that must be completed by the district court
in determining whether Colorado River abstention is appropriate. First, “the district court
must . . . determine that the concurrent state and federal actions are actually parallel.”
Romine v. Compuserve Corp., 160 F.3d 337, 339 (6th Cir. 1998). If the proceedings are
parallel, the court must then apply the multi-factor balancing test set forth initially in
Colorado River and expanded by later case law.
Parallel State Court Proceeding
As noted, “[a] necessary requirement for application of [the] Colorado River doctrine
. . . is the presence of a parallel, state proceeding.” Crawley v. Hamilton Cnty. Comm'rs,
744 F.2d 28, 31 (6th Cir. 1984). “Exact parallelism is not required; it is enough if the two
proceedings are substantially similar.” Romine, 160 F.3d at 340 (citations and internal
quotation marks omitted). In Romine, the Sixth Circuit held that two proceedings are
substantially similar when the parties are substantially similar, although not identical, and
the claims against the defendants are "predicated on the same allegations as to the same
material facts." Id. (citations omitted).
The two suits discussed herein are substantially similar.
seriously dispute that the parties in the first suit are substantially similar to those in the
second. Moreover, the claims against Mid State Systems and Konkler in the state court
action are almost identical to the claims against Mid State Systems, Konkler and Zazworsky
in this case, all of which are based upon the April 19, 2012 automobile accident. This is
the very reason Thakur moved to consolidate the two suits.
Because the two suits are substantially similar, the Court can and will turn to the
multi-factor balancing test. One issue, though, deserves brief comment.
Although not raised by the parties,2 a line of district court cases assert that
proceedings are not considered parallel if there is an issue that would not be resolved by
the state court upon the completion of the state court action. See Kopacz v. Hopkinsville
Surface & Storm Water Util., 714 F. Supp. 2d 682, 686 (W.D. Ky. 2010); Holley
Performance Products, Inc. v. Tucows, Inc., No. 1:10-CV-180, 2011 WL 1376623, at *2
(W.D. Ky. Apr. 12, 2011); Brandenburg Tel. Co. v. Sprint Commc'ns Co., L.P., No.
3:09-CV-00109, 2010 WL 1416696, at *10 (W.D. Ky. Apr. 1, 2010); E.ON U.S. Servs. Inc.
v. QSC Painting, Inc., No. CIV.A. 08-54-JBC, 2008 WL 3982499, at *2 (E.D. Ky. Aug. 26,
2008); PNC Bank, Nat. Ass'n v. Pers., No. CIV A 06-292-C, 2007 WL 1423744, at *4 (W.D.
Ky. May 8, 2007). However, as pointed out by United States District Court for the Eastern
District of Michigan, “[t]his assertion . . . has not been adopted by the Sixth Circuit.” Doe
v. Ann Arbor Pub. Sch., No. 11-15657, 2012 WL 1110015, at *4 (E.D. Mich. Apr. 3, 2012).
Multi-factor Balancing Test
As noted, determining the existence of exceptional circumstances justifying
abstention requires consideration of the following eight factors:
(1) Whether the state court has assumed jurisdiction over any res or property
(2) Whether the federal forum is less convenient to the parties
(3) Avoidance of piecemeal litigation
(4) The order in which jurisdiction was obtained
(5) Whether the source of governing law is state or federal
Defendants’ sole argument concerning parallelism is that it was Thakur’s “choice to file
a separate and independent action against a diverse non-resident citizen who was not a party to
his existing litigation in the Boone Circuit Court.” (Doc. # 17, at 6). This, however, has no
bearing on whether the two suits are parallel.
(6) The adequacy of the state court action to protect the federal plaintiff's
(7) The relative progress of the state and federal proceedings
(8) The presence or absence of concurrent jurisdiction
However, “[n]o one factor is necessarily determinative; a carefully considered judgment
taking into account both the obligation to exercise jurisdiction and the combination of
factors counseling against that exercise is required. Only the clearest of justifications will
warrant [a stay].” Colorado River, 424 U.S. at 818-819 (citation omitted). In other words,
[T]he decision whether to [stay] a federal action because of parallel
state-court litigation does not rest on a mechanical checklist, but on a careful
balancing of the important factors as they apply in a given case, with the
balance heavily weighted in favor of the exercise of jurisdiction. The weight
to be given to any one factor may vary greatly from case to case, depending
on the particular setting of the case.
Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 16 (1983)).
The first and second factors weigh against abstention. Neither court has assumed
jurisdiction over any res or property, Romine, 160 F.3d at 341 (noting that where no
property is at issue, the first factor is inapposite and supports exercising jurisdiction), and
the federal forum in Covington is no less convenient to the parties than the Boone Circuit
Court in Burlington. Id. (concluding that the second factor supports jurisdiction where the
courthouses in which the actions are pending are both located in the same city).
The third factor–avoidance of piecemeal litigation–weighs heavily in favor of
abstention. “Piecemeal litigation occurs when different courts adjudicate the identical issue,
thereby duplicating judicial effort and potentially rendering conflicting results.” Id. (citation
omitted). The issues to be decided by the state court and this Court are largely identical.
In fact, the allegations and attendant claims made by Thakur against Mid State Systems
and Konkler in the two suits are almost exactly the same, with the primary difference being
the additional allegations against Zazworsky in the second suit. (Doc. # 1-2, at 13-15,
34-36). This is also true with respect to the relief requested, (Id. at 18-19, 46-47, 50-51,
62-63), which brings to mind the Sixth Circuit’s closing thought regarding the dangers of
piecemeal litigation in Romine:
When a case proceeds on parallel tracks in state and federal court, the threat
to efficient adjudication is self-evident. But judicial economy is not the only
value that is placed in jeopardy. The legitimacy of the court system in the
eyes of the public and fairness to the individual litigants also are endangered
by duplicative suits that are the product of gamemanship or that result in
160 F.3d at 341 (quoting Lumen Const., Inc. v. Brant Const. Co., Inc., 780 F.2d 691, 694
(7th Cir. 1985)).
Fourth, the order in which jurisdiction was obtained also weighs heavily in favor of
abstention. This factor is closely tied with the seventh factor–the relative progress of the
state and federal proceedings–because “priority should not be measured exclusively by
which complaint was filed first, but rather in terms of how much progress has been made
in the two actions.” Moses H. Cone Mem'l Hosp., 460 U.S. at 21. Here, the first suit was
commenced on August 14, 2012, while this second suit was removed approximately nine
months (on May 6, 2013). More importantly, the state court record reflects that written
discovery has been exchanged and depositions have been noticed (Doc. # 18-3), and
Thakur represents that some claims have been settled3 and depositions have been taken.
(Doc. # 18, at 6). Conversely, no real progress has been made in this case.
Thakur previously represented that the claims against Hermendra Patel, Rachel M.
Greba and Kentucky Farm Bureau Mutual Insurance Company have been settled. (Doc. # 13-1,
at 6); (Doc. # 17, at 2 n.1).
Because this case clearly rests on state law, the fifth factor heavily favors
abstention. This Court's jurisdiction over Thakur’s claims against Mid State Systems,
Konkler and Zazworsky is based on diversity jurisdiction under 28 U.S.C. § 1332. There
are no federal issues to be decided.
Turning to the remaining two factors (the sixth and the eighth), the state court
proceedings would be adequate to protect the rights of Plaintiffs, especially considering that
Thakur has requested abstention (Doc. # 18, at 9),4 and the presence of concurrent
jurisdiction, "only marginally, if at all, favors abstention." Cohen, 276 F.3d at 208. More
factors, then, weigh towards abstention. This case will therefore be stayed until the state
court action is complete.
Accordingly, for the reasons state herein, IT IS ORDERED that all proceedings in
this action shall be STAYED pending the resolution of the parallel state court proceedings.
The parties shall notify the Court when those proceedings are resolved.
This 23rd day of August, 2013.
G:\DATA\Opinions\Covington\2013\13-79 MOO RE Abstention.wpd
Thakur argued that the state court proceedings would be adequate to protect the rights
of Zazworsky because he is “the party invoking the jurisdiction of the court.” (Doc. # 18, at 7).
The sixth factor, though, does not turn on which party is invoking jurisdiction, but instead simply
concerns the federal plaintiff’s rights.
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