MABEE et al v. ECKROTE et al

Filing 36

ORDER STAYING PROCEEDINGS mooting 12 Motion to Dismiss By JUDGE JON D. LEVY. (aks)

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 1 of 16

PageID #: 748

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JEFFREY R. MABEE, et al.,
Plaintiffs,
v.
JANET ECKROTE, et al.,
Defendants.

)
)
)
)
) 1:19-cv-432-JDL
)
)
)
)

ORDER STAYING PROCEEDINGS
Jeffrey Mabee and Judith Grace (collectively, “the Mabees”) filed this slander
of title action against their neighbors, Janet and Richard Eckrote, alleging that the
Eckrotes have falsely claimed ownership of the intertidal land fronting the Eckrotes’
property in Belfast on Penobscot Bay, which actually belongs to the Mabees (ECF No.
11).

After I denied the Eckrotes’ special motion to dismiss the complaint filed

pursuant to Maine’s anti-SLAPP statute, 14 M.R.S.A. § 556, (ECF No. 30), I took note
of an ongoing state court proceeding between the parties that appeared to involve the
same or a closely related controversy. I therefore requested that the parties brief the
propriety of abstention pursuant to the doctrine set forth in Colorado River Water
Conservation District v. United States, 424 U.S. 800 (1976) (ECF No. 33). The briefing
is complete. For reasons I will explain, I conclude that abstention is appropriate in
these circumstances and, therefore, order the case stayed.
I. BACKGROUND
I sketched the factual underpinnings of this action in my prior order denying
the Eckrotes’ special motion to dismiss, but recount certain relevant facts here again.

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 2 of 16

PageID #: 749

The facts are derived from the allegations contained in the First Amended Complaint
and attached exhibits (ECF No. 11), as well as the parties’ representations regarding
the progress of the state court proceeding (ECF Nos. 34, 35). I also take judicial notice
of the public state court records. See Squeri v. Mount Ida Coll., 954 F.3d 56, 61 (1st
Cir. 2020).
The Mabees and Eckrotes each own parcels of land, separated by one other
parcel of land, on Penobscot Bay in Belfast, as shown in the following illustration. 1

In August of 2018, the Eckrotes entered into an agreement with Nordic
Aquafarms, Inc., by which the Eckrotes would grant Nordic Aquafarms a subsurface
easement to install and operate a pipeline under the Eckrotes’ property, including
the intertidal zone. 2 The purpose of the pipeline is to allow Nordic Aquafarms to

1 This image is derived from the Mabees’ Amended Complaint (ECF No. 11 at 3), but has been altered
to remove the names of non-parties.
2 The details of this easement agreement—as well as the Eckrotes’ specific assertions of ownership
of the intertidal zone and Nordic Aquafarms’ employment of those assertions in applying for various
permits—on which the Mabees base their slander of title claim are set forth in my order denying the
Eckrotes’ special motion to dismiss. Those details are not relevant to the question of abstention.

2

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 3 of 16

PageID #: 750

operate a land-based aquaculture facility that, as described by Maine Superior Court
Justice Robert E. Murray in the related state case, “has great implications for the
greater Belfast area.” ECF No. 35-1 at 2.
A.

The State Court Action
On July 15, 2019, the Mabees filed a complaint in the Waldo County Superior

Court against the Eckrotes, Nordic Aquafarms, and several other individuals,
asserting that the Mabees, not the Eckrotes, own the intertidal strip in front of the
Eckrotes’ parcel. The complaint included one count for quiet title to the intertidal
strip and another count for a declaratory judgment to the same effect. The Mabees
also sought injunctive relief, although the record before me does not reveal the precise
nature of that request.
In the fifteen months or so since the filing of that complaint, the matter has
proceeded through multiple rounds of pleadings and motions to dismiss.

For

instance, the Eckrotes have filed a counterclaim against the Mabees, asserting their
own slander of title claim, and other parties have been joined. 3 In early 2020, the
court enjoined Nordic Aquafarms from seeking additional permits to install the
pipeline, pending resolution of the case. Discovery appears to be ongoing, although
it is not clear from the parties’ submissions precisely how far discovery has progressed
or what a realistic timeline for the case’s resolution may be, in light of the constraints
imposed by the COVID-19 pandemic.

3 As of June 10, 2020, the parties involved in the state court case in some capacity are: the Mabees;
the Eckrotes; Nordic Aquafarms; the owners of the lots on either side of the Eckrotes’ lot; and two
other organizations, Upstream Watch and the Friends of the Harriet L. Hartley Conservation Area.

3

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 4 of 16

PageID #: 751

The Mabees and Eckrotes also filed cross-motions for summary judgment in
the state court, which included the Mabees’ motion for summary judgment on the
question of whether the Eckrotes own the intertidal strip. On June 4, 2020, Justice
Murray issued an order that, among other things, denied the Mabees’ motion for
summary judgment, concluding that the record was insufficient to allow the court to
determine, as a matter of law, that the Eckrotes did or did not own the intertidal
strip. 4
B.

The Federal Action
The Mabees filed a complaint—which they later amended—against the

Eckrotes in this Court on September 19, 2019, about two months after they began the
state court case. Here, the Mabees assert only one count, slander of title. In short,
the Mabees allege that they, not the Eckrotes, hold title to the intertidal strip and
that the Eckrotes knew or should have known of the Mabees’ ownership when the
Eckrotes represented to Nordic Aquafarms that they own the strip.
On November 4, 2019, the Eckrotes filed a special motion to dismiss the
complaint pursuant to Maine’s anti-SLAPP statute, as well as a motion to dismiss
under Fed. R. Civ. P. 12(b)(6) and (7) (ECF No. 12). While the parties were briefing
those motions, the overlap between the federal and state cases became apparent.

Specifically, the court determined that the paper record was insufficient to determine whether a
certain deed in the Eckrotes’ chain of title had severed ownership of the intertidal strip from ownership
of the upland because of lingering factual issues regarding the location of certain monuments. The
court did not resolve the Eckrotes’ counterargument that they had obtained title by acquiescence or
adverse possession, but noted that “it is clear there is a dispute of fact about whether title by
acquiescence or adverse possession could be proved.” ECF No. 35-1 at 22 n.16.
4

4

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 5 of 16

PageID #: 752

After I denied the anti-SLAPP motion, 5 I held a hearing on the extent of this overlap
and requested that the parties brief the propriety of Colorado River abstention.
II. DISCUSSION
“It has long been established that the presence of parallel litigation in state
court will not in and of itself merit abstention in federal court,” Jiménez v. RodríguezPagán, 597 F.3d 18, 27 (1st Cir. 2010), and in general, “federal courts must abide by
their ‘virtually unflagging obligation’ to exercise their lawful jurisdiction and resolve
the matters properly before them,” Nazario-Lugo v. Caribevisión Holdings, Inc., 670
F.3d 109, 114 (1st Cir. 2012) (quoting Colorado River, 424 U.S. at 817). In the service
of “wise judicial administration,” however, a federal court may stay or dismiss a case
due to the pendency of parallel state court proceedings. Villa Marina Yacht Sales,
Inc. v. Hatteras Yachts, 915 F.2d 7, 12 (1st Cir. 1990) (quoting Colorado River, 424
U.S. at 818). Abstention “is permissible only in ‘exceptional’ circumstances,” however,
and there is a “heavy presumption favoring the exercise of jurisdiction.” Id. at 13
(quoting Colorado River, 424 U.S. at 818).
“An evolving list of factors exists to aid in discerning whether a particular case
involves exceptional circumstances” to counsel abstention. Nazario-Lugo, 670 F.3d
at 115. These factors include:
(1) whether either court has assumed jurisdiction over a res; (2) the
geographical inconvenience of the federal forum; (3) the desirability of
avoiding piecemeal litigation; (4) the order in which the forums obtained
jurisdiction; (5) whether state or federal law controls; (6) the adequacy
of the state forum to protect the parties’ interests; (7) the vexatious or
contrived nature of the federal claim; and (8) respect for the principles
underlying removal jurisdiction.
5 In my order denying the Eckrotes’ anti-SLAPP motion, I did not address their 12(b) motion (ECF
No. 12), which remains pending.
5

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 6 of 16

PageID #: 753

Id. (quoting Jiménez, 597 F.3d at 27-28). “This list is by no means exhaustive, nor is
any one factor necessarily determinative,” KPS & Assocs., Inc. v. Designs By FMC,
Inc., 318 F.3d 1, 10 (1st Cir. 2003), and “[t]he weight to be given any given factor
depends on the circumstances at hand,” Nazario-Lugo, 670 F.3d at 115. I turn to
consider the factors relevant to this case. 6
A.

Jurisdiction over a Res
This component of the Colorado River analysis is “more concerned with the

disposition of property than with the actual exercise of in rem jurisdiction,” and is
“more accurately described as a prudential doctrine in which a second court with
concurrent jurisdiction will exercise its discretion to defer to another court for the
sake of comprehensive disposition of rights in a particular piece of property.”
Jiménez, 597 F.3d at 28 n.6 (quoting Levy v. Lewis, 635 F.2d 960, 965-66 (2d Cir.
1980)). The point is to try to avoid the “possibility for inconsistent dispositions of
property.” Id. at 28.
This case creates a prime “possibility for inconsistent dispositions of” the
intertidal strip in front of the Eckrotes’ parcel. Id. In order to prevail on their slander
of title claim, the Mabees must establish that they have a “legally protected interest”
in the intertidal strip. Colquhoun v. Webber, 684 A.2d 405, 409 (Me. 1996) (quoting

6 In this case, two of the enumerated factors—the relative convenience of the fora and the principles
underlying removal jurisdiction—are neutral or, at most, minimally relevant. Regarding convenience,
any difference between Belfast (state court) and Bangor (federal court) is negligible, as both
courthouses are in relatively close proximity to one another. See Burns v. Watler, 931 F.2d 140, 147
(1st Cir. 1991). Moreover, both cases are proceeding on paper or electronic records at this point, and
at least in the federal forum, the likelihood of a testimonial hearing in the next few months is slim due
to the COVID-19 pandemic. See D. Me. General Order 2020-14 at 2 (amended Oct. 6, 2020). As to the
eighth factor, removal jurisdiction is irrelevant here.
6

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 7 of 16

PageID #: 754

Restatement (Second) of Torts § 624 cmt. c (Am. Law Inst. 1977)). Despite the
Mabees’ best efforts to make their ownership of the intertidal strip appear a foregone
conclusion, however, the state court’s June 4th order denying the Mabees’ motion for
summary judgment on the issue of the Eckrotes’ waterside boundary—including its
statement that the Eckrotes’ acquiescence and adverse-possession claims raise
triable issues of fact, see ECF No. 35-1 at 22—reveals that the strip’s ownership is
anything but settled. The state court, indeed, appears to be heading towards a trial
on precisely that issue. A ruling from this Court, whether favorable to the Mabees or
not, could lead to inconsistent determinations of the intertidal strip’s ownership.
This factor therefore weighs heavily in favor of abstention.
B.

Avoiding Piecemeal Litigation
“Piecemeal litigation,” in the Colorado River analysis, refers to “more than just

the repetitive adjudication that takes place in all cases implicating [the] Colorado
River doctrine.” Jiménez, 597 F.3d at 29. To carry weight in the analysis, this
component requires “some additional factor that places the case beyond the pale of
duplicative proceedings.” Id. The mere fact that parallel federal-state adjudication
would result in two courts “deciding the same issues” does not weigh in favor of
abstention.” Villa Marina, 915 F.2d at 16. The assessment of this factor “should
focus on the implications and practical effects of litigating suits deriving from the
same transaction in two separate fora . . . , and weigh[s] in favor of dismissal only if
there is some exceptional basis for dismissing one action in favor of the other.” KPS
& Assocs., 318 F.3d at 10-11 (citations and quotation marks omitted).

7

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 8 of 16

PageID #: 755

For instance, a “dispute between a vendor and its sales representative over
sales commissions present[ing] a straightforward application of state laws” did not
present an exceptional basis because it was “of primary importance only to the
immediate parties” to the federal suit. KPS & Assocs., 318 F.3d at 11 (alterations
and quotation marks omitted). By contrast, a substantial “disparity in inclusiveness”
between the two actions, arising in situations “when non-diverse parties are joined in
the state-court action but not the federal action,” may constitute an exceptional basis
because it creates the “potential for fragmented adjudication, to be distinguished from
merely duplicative adjudication.” Jiménez, 597 F.3d at 30; see also Liberty Mut. Ins.
Co. v. Foremost-McKesson, Inc., 751 F.2d 475, 477 (1st Cir. 1985) (holding that
dismissal of a federal action was appropriate because the state action, “which was
commenced first, [was] the more comprehensive of the two” because it “involve[d] all
of [the insured’s] insurers and all of the products for which [the insured] face[d]
potential liability”).
The circumstances of this case are more in line with the latter cases than the
former. This federal action involves only two parties, but a ruling on the merits of
the Mabees’ case—which, as I have already explained, would require this Court to
determine who owns the intertidal strip—would have major implications for the state
case, which involves several other interested parties, is more substantively
comprehensive, and has important public implications for the region. 7 Although it is
true that, as the Mabees suggest, they seek different relief in the two proceedings—

7 The record reflects that the administrative proceedings surrounding Nordic Aquafarms’ pipeline
proposal have attracted substantial public comment and engagement.
8

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 9 of 16

PageID #: 756

quiet title, declaratory relief, and an injunction in the state court, but only damages
here—in order to obtain that relief in either court, they must demonstrate ownership
of the intertidal land at issue. It is difficult to see, and the Mabees do not explain,
how these mutually exclusive remedies obviate the fact that, were I to exercise
jurisdiction, the factual and legal underpinnings of that ownership claim would be
litigated in a fragmentary manner.
By the same token, abstention in these circumstances would not prejudice the
Mabees’ slander of title claim, should they eventually prevail in state court. Although
the Mabees would need to return here for resolution of the knowledge or intent
element of their slander of title claim, as well as damages, those discrete factual
issues are not presented in the state court action and do not involve any of the other
parties to that action.
After considering the implications and practical effects of parallel litigation in
this case, I conclude that the “disparity in inclusiveness” between the federal and
state actions—both in terms of the parties represented and the broader public
interests at stake in the state action—in combination with the “fragmented” nature
of the litigation that would result from proceeding with the federal case at this time,
present an “additional factor that places the case beyond the pale of duplicative
proceedings.”

Jiménez, 597 F.3d at 29.

This factor weighs heavily in favor of

abstention.
C.

Order of Jurisdiction
“The order in which jurisdiction was taken is not a mechanical concept” based

on the respective dates of filing, “but rather a concept that favors the case that is the
9

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 10 of 16

PageID #: 757

more advanced at the time the Colorado River balancing is being done.” Jiménez, 597
F.3d at 30-31 (alterations omitted) (quoting Elmendorf Grafica, Inc. v. D.S. Am.
(East), Inc., 48 F.3d 46, 52 (1st Cir. 1995)). That a state court action is “well into the
discovery stage” and has a “head start into the merits” weighs in favor of abstention.
Id. at 31.
Although the state court obtained jurisdiction only two months prior to this
Court—a fact that would not, in itself, bear much consideration—that proceeding is
significantly further advanced than this case. The state court has already dispensed
with multiple summary judgment motions and has, accordingly, developed some
fluency with the records and chains of title, whereas this action still has a pending
motion to dismiss and has not yet reached discovery. This factor weighs in favor of
abstention.
D.

Whether State or Federal Law Controls
This factor is more than a question of whether state or federal law

predominates in the matter. Although it may be “significant that no federal issues
are raised in [the federal court action] and that no federal interest would be served
by retaining jurisdiction over the case,” Liberty Mut. Ins. Co., 751 F.2d at 477, the
First Circuit has also observed that this factor supports abstention “only when a case
presents ‘complex questions of state law that would best be resolved by a state court,’”
Villa Marina, 915 F.2d at 15 (quoting Am. Bankers Ins. Co. of Fla. v. First State Ins.
Co., 891 F.2d 882, 886 (11th Cir. 1990)); accord KPS & Assocs., 318 F.3d at 11.
Not only is there no question of federal law anywhere in this pure diversity
case, but the “difficulty of the substantive state law questions” involved, Villa
10

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 11 of 16

PageID #: 758

Marina, 915 F.2d at 15, appears to be substantial. The Mabees contend that the
determination of the knowledge or intent element of their slander of title claim is
legally straightforward. Even if that were true, 8 I would not be able to resolve the
claim without determining whether the Mabees own the intertidal strip, see
Colquhoun, 684 A.2d at 409, and that question is evidently intricate and tightly
wound enough to have survived at least one summary judgment wringer. The state
court’s summary judgment decision undertakes a lengthy and detailed analysis of
Maine case law on the interpretation of littoral deeds, but did not resolve the issue.
Nothing suggests that this Court is better equipped to answer this question of Maine
property law, especially given the state court’s head start on the matter. 9
I conclude that this case presents “complex questions of state law that would
best be resolved by a state court.” Villa Marina, 915 F.2d at 15 (quoting Am. Bankers
Ins. Co., 891 F.2d at 886). This factor also supports abstention.
E.

Adequacy of the State Forum
Colorado River abstention “is appropriate only where the parties may obtain

complete relief in the state court proceedings.” Currie v. Grp. Ins. Comm’n, 290 F.3d
1, 12 (1st Cir. 2002); see Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460
U.S. 1, 28 (1983) (stating that a court may not stay a case under Colorado River “[i]f

8 Although slander of title is, as the Mabees assert, a “straight-forward garden variety tort,” ECF
No. 35 at 6, neither party has yet made arguments regarding this element that are sufficient to
determine how complex an inquiry it will require.
9 The Mabees assert that because the state court resolved certain subsidiary legal arguments in its
summary judgment order, it would be a simple matter for this Court to “take testimony” on the
remaining factual issues. Notwithstanding that this Court is not currently holding in-court
evidentiary hearings in civil cases due to the COVID-19 pandemic, it would be far more efficient for
the state court to resolve this question given its greater familiarity with the issues and record involved.
11

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 12 of 16

PageID #: 759

there is any substantial doubt as to” whether “the parallel state-court litigation will
be an adequate vehicle for the complete and prompt resolution of the issues between
the parties”). “[T]he adequacy of the state forum[] operates against the surrender of
jurisdiction only where the state forum may not be adequate to adjudicate the
claim[].” Rojas-Hernandez v. P.R. Elec. Power Auth., 925 F.2d 492, 496 (1st Cir.
1991).
The Mabees argue that the state forum is inadequate because of the slow pace
of those proceedings.

The First Circuit has not addressed whether a speed

differential between the two fora may establish “inadequacy” for purposes of this
factor, 10 and other Circuit Courts have not reached a firm conclusion on the question.
Compare Vill. of Westfield v. Welch’s, 170 F.3d 116, 122, 124 (2d Cir. 1999) (stating
that, where the state court had “invested over thirteen years in the matter,” the
federal trial court “had no discretion to assume that the state court was an adequate
vehicle for the ‘prompt resolution’ of the issues” (quoting Moses H. Cone, 460 U.S. at
28)), with Montanore Minerals Corp. v. Bakie, 867 F.3d 1160, 1169 (9th Cir. 2017)
(“This factor concerns whether the state court might be unable to enforce federal
rights.” (quotation marks omitted)), and Am. Int’l Underwriters (Philippines), Inc. v.
Cont’l Ins. Co., 843 F.2d 1253, 1259 (9th Cir. 1988) (“[T]he mere fact that the . . . state
court has stayed its action temporarily does not make the state court proceeding
inadequate.”). Even if the pace of the litigation in state court were relevant to this
factor, however, the state court here has been anything but dilatory.

In the

10 Instead, as I have already explained, the First Circuit has typically assessed the relative progress
of the two proceedings as part of the “progress of litigation factor.” Nazario-Lugo, 670 F.3d at 118.
12

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 13 of 16

PageID #: 760

approximately fifteen months since the Mabees filed their state-court complaint—
which they have twice amended—the court has already resolved several motions to
dismiss, ordered the joinder of additional parties, and ruled on cross-motions for
summary judgment. As the Mabees appear to recognize, the speed of the state court
proceedings is the consequence of the greater complexity and inclusivity of the issues,
claims, and parties in that case, rather than any delay on the part of the court itself.
Indeed, despite that case’s relative complexity, the state court proceeding is currently
closer to a trial than this federal action. Furthermore, although the Mabees have not
yet brought a slander of title claim in the state court, they have pointed to nothing
precluding them from doing so, nor have they otherwise suggested that the state court
could not adequately protect their interests.
Because the state court can afford the Mabees “complete relief” for the injury
they allege here, this factor is neutral. Currie, 290 F.3d at 12.
F.

Vexatious or Contrived Nature of the Federal Case
This factor is intended to query “the motivation for the second lawsuit.” Villa

Marina, 915 F.2d at 15. For instance, if a party goes “to federal court solely in
reaction to its failure in the [state] court, that fact should be held against it in the
Colorado River balance.” Id.
The Eckrotes assert that this lawsuit is “an attempt to increase the . . . cost of
litigation and apply financial pressure to” them. ECF No. 34 at 14. There are some
circumstances that tend to suggest that the Mabees’ turn to federal court is less than
perfectly innocent. For instance, it would be surprising if the Mabees (citizens of
Maine) would shrink from state court in fear of local bias; the Eckrotes (citizens of
13

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 14 of 16

PageID #: 761

New Jersey) are the nominal outsiders here. Moreover, the fact that the Mabees filed
this action while the state court case was still comparatively straightforward and
limited in scope, and could more easily accommodate the addition of the Mabees’
slander of title claim, supports the Eckrotes’ theory.
On the other hand, the Mabees’ prosecution of this federal action has not been
marked by excessive or duplicative filings or delay. In both proceedings, the parties
appear to have moved things along at a steady clip, especially in light of the state
court case’s expansion in inclusivity and comprehensiveness. The Eckrotes might
understandably prefer that the Mabees not have filed this case, but on this record, I
cannot conclude that they did so vexatiously or in accordance with some improper
scheme. Therefore, this factor is neutral.
G.

Balancing the Factors
In determining whether to stay the proceedings under the Colorado River

doctrine, I must bear in mind that abstention “is permissible only in ‘exceptional’
circumstances” and that there is a “heavy presumption favoring the exercise of
jurisdiction.” Villa Marina, 915 F.2d at 12-13 (quoting Colorado River, 424 U.S. at
818). Nevertheless, I am convinced that the potential for this action to effectively
determine the result of the far more comprehensive and inclusive state court case
presents an exceptional circumstance demanding abstention under Colorado River.
In reaching this conclusion, I rely most heavily on the first two factors: (1) the
“possibility for inconsistent dispositions of property,” and (2) the “disparity in
inclusiveness” creating a “greater practical risk of piecemeal litigation than the
baseline inefficiencies of the average exercise of concurrent federal-state jurisdiction.”
14

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 15 of 16

PageID #: 762

Jiménez, 597 F.3d at 28, 30. The Mabees’ primary argument against abstention—
that their slander of title action only requires resolution of whether the Eckrotes
knew of the Mabees’ allegedly superior claim to title—puts the cart before the horse.
As I have described, the very question of who holds title to the intertidal land remains
uncertain and hotly contested, and a federal court judgment on the Mabees’ slander
of title action could throw a preclusive wrench into the far more comprehensive and
inclusive state court action. The fact that the other factors are either neutral or
support abstention also indicates that abstention is warranted.
In these circumstances, a stay, rather than dismissal, is proper, in order to
“leav[e] the docket open in case loose ends remain at the conclusion of the state
proceedings.” Jiménez, 597 F.3d at 31; see Bacardí Int’l Ltd. v. V. Suárez & Co., Inc.,
719 F.3d 1, 16 (1st Cir. 2013) (“In situations involving parallel state court litigation
where deferring the exercise of jurisdiction is proper, this circuit has historically
ordered a stay rather than a dismissal.”).
III. CONCLUSION
For the foregoing reasons, it is ORDERED that the matter is STAYED
pending final disposition in the state court proceeding. In the interim, if either party
believes that a substantial change in circumstances has occurred that merits
reconsideration of this order, they may move to lift the stay. In light of the stay, the
Eckrotes’ motion to dismiss pursuant to Rule 12(b)(6) and (7) (ECF No. 12) is
DENIED AS MOOT. Should the stay be lifted, they will be able to renew the motion.

15

Case 1:19-cv-00432-JDL Document 36 Filed 10/15/20 Page 16 of 16

PageID #: 763

SO ORDERED.
Dated this 15th day of October, 2020
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE

16