Starker v. Adamovych et al

Filing 51

ORDER: The Court thus stays this matter pending the state court's resolution of the pending motions for default judgment and to dismiss for lack of service of process. In light of that stay, the Court denies both of the pending motions to dismis s without prejudice. See Dkt. Nos. 39, 41. The parties are ordered to write to the Court one week or sooner after the state court resolves the last of the noted motions. At that time, both sets of defendants may renew their respective motions to dism iss, taking into consideration the effect, if any, of the state court's resolution of the two motions pending in state court. Further, the parties will provide a status update no later than six months from the date of this Order describing any a nd all progress in the parallel state action. This resolves docket numbers 39 and 41. Motions terminated: 39 MOTION to Dismiss the Amended Complaint. filed by Nataliya Adamovych, 41 MOTION to Dismiss . filed by Louis Lodato, City of New York. (Signed by Judge Alison J. Nathan on 2/02/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Oscar Starker,
Plaintiff,
15-cv-3691 (AJN)

-vORDER
Nataliya Adamovych, et al.,
Defendants.

ALISON J. NATHAN, District Judge:
On April 30, 2015, prose Plaintiff Oscar Starker filed his initial complaint in the instant
case. See Dkt. No. 2. On May 13, 2016, he filed an amended complaint. See Dkt. No. 34
(hereafter, the "Complaint"). In that Complaint, Starker alleges federal claims, under 18 U.S.C.
§ 1983, as well as numerous state tort claims, against Nataliya Adamovych ("Adamovych"), as
well as against Louis Lodato, allegedly a detective in the New York City Police Department,
Complaint ,-r 6, the New York City Police Department, New York City, and a number of John
Does (collectively, the "City Defendants"). See id. at 1. On June 10, 2016, the City Defendants
moved to dismiss the Complaint under Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976), or in the alternate for a Colorado River stay. See Dkt. No. 42. The
City Defendants noted that, on or about April 30, 2015, when the instant federal litigation
commenced, the Plaintiff also filed a nearly identical lawsuit in New York State Supreme Court
(Index No. 100751/2015). See id. at 2. They further cited a pending motion for default
judgment in that proceeding that the Plaintiff had made against the City Defendants who were
parties to that action. See id.; see also Dkt. No. 42, Ex. B. The City Defendants also represented
that, on April 15, 2016, the Plaintiff called counsel for the City Defendants to indicate that he
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wished to withdraw the federal action in favor of the state suit. Id. at 2. On June 10, 2016,
Defendant Adamovych also moved, in this Court, to dismiss the Complaint for failure to state a
claim. See Dkt. No. 40.
In his opposition to the City Defendants' motion to dismiss or stay, Starker did not deny
that the pending state action is nearly identical to the present federal action or that the alleged
phone call took place. See Dkt. No. 47. Nor did he otherwise address the bulk of the City
Defendants' arguments. See id. He noted, however, that the City Defendants had moved in the
state action to dismiss that claim for lack of personal jurisdiction caused by purportedly improper
service, and asked that this Court stay the present federal action pending resolution of that
motion. See id. at 1. The City Defendants do not deny the existence of such a motion in their
reply. See Dkt. No. 48 at 3.
"[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants." Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 96 (2d Cir.
2012) (quoting Landis v. N Am. Co., 299 U.S. 248, 254, (1936)); see also Goldentree Asst.
Mgmt., L.P. v. Longaberger, Co., 448 F. Supp. 2d 589, 593 (S.D.N.Y. 2006) ("[W]hen parallel
state court proceedings exist, and exceptional circumstances warrant, a federal district court may
decline to exercise its jurisdiction over a particular matter." (citing Colorado River, 424 U.S. at
818)). It appears that the Plaintiffs primary objections to a Colorado River dismissal or stay turn
on uncertainty as to how the state court will resolve two pending motions: the Plaintiffs motion
for default judgment against a subset of the defendants in that case, and the City Defendants'
motion for dismissal on the basis of failure to properly serve. Further, it appears possible that the
ultimate resolution of those issues may bear on the propriety of this Court dismissing under

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Colorado River or granting the broad stay that the City Defendants request-a stay not pending

the outcome of any particular motion in the state court proceedings, but pending the ultimate
resolution of that action. See id. at 593-94 (S.D.N.Y. 2006) (observing that two factors pertinent
to whether a Court should dismiss or stay a federal action in light of a parallel state proceeding
include (1) "the avoidance of piecemeal litigation" and (2) a comparison of "how much progress
has been made in the two actions." (internal quotation marks omitted)). In light, then, of the
potential relevance of the disposition of the pending motions in state court not simply to the
resolution of the case before this Court, but to the resolution of the pending motion for a
Colorado River dismissal or stay, the Court hereby temporarily stays this action pending

resolution of those two state motions. See In re Literary Works in Elec. Databases Copyright
Litig., Nos. M-21-90 (GBD), MDL 1379, OO-CV-6049, OO-CV-9411, 2001 WL 204212, at *2

(S.D.N.Y. Mar. 1, 2001) ("Where it is efficient for a trial comi's docket and the fairest course for
the parties, a stay may be proper even when the issues in the independent proceeding are not
necessarily controlling of the action before the court.").
The Court thus stays this matter pending the state court's resolution of the pending
motions for default judgment and to dismiss for lack of service of process. In light of that stay,
the Court denies both of the pending motions to dismiss without prejudice. See Dkt. Nos. 39, 41.
The parties are ordered to write to the Court one week or sooner after the state court resolves the
last of the noted motions. At that time, both sets of defendants may renew their respective
motions to dismiss, taking into consideration the effect, if any, of the state court's resolution of
the two motions pending in state comi. Further, the parties will provide a status update no later
than six months from the date of this Order describing any and all progress in the parallel state
action.

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This resolves docket numbers 39 and 41.

New York, New York

United States District Judge

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