CHARLES RICHEY, District Judge
Before the Court are defendant's Motion to Dismiss the Complaint, or, in the Alternative, to Dismiss Count II and Stay Count I, and for Sanctions Under Rule 11, plaintiff's opposition thereto and Motion for Sanctions Under Rule 11, and defendant's reply. The Court will stay this action until a final decision on the merits has been reached in the Superior Court of the District of Columbia. In addition, the Court will take under advisement each party's motion for sanctions until the stay is lifted.
The nexus of this action arises from a judgment obtained by the plaintiff against the defendant in the Supreme Court of New York in the amount of $26,420. Unable to satisfy the judgment in New York, plaintiff filed suit for enforcement of a foreign judgment in the Superior Court for the District of Columbia on September 3, 1986. On November 18, 1986, plaintiff moved for summary judgment. Defendant opposed on the ground that the Supreme Court of New York lacked personal jurisdiction over her. Summary judgment was denied on December 3, 1986, and trial is set for April 25, 1988 in Superior Court. The instant action was filed in this Court on February 17, 1987 consisting of a two-count complaint seeking enforcement of a foreign judgment, or, in the alternative, an opportunity to relitigate the breach of contract at issue in the proceeding before the Supreme Court of New York.
Defendant opposes plaintiff's complaint on the grounds that Count I is identical to the action before the Superior Court and that Count II is res judicata because this issue has already been decided by the Supreme Court of New York.
It is well established that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." Will v. Calvert Fire Insurance Co., 437 U.S. 655, 662 (1978), quoting McClellan v. Carland, 217 U.S. 268, 282 (1910). It is equally well settled that a district court is "under no compulsion to exercise that jurisdiction where the controversy may be settled more expeditiously in the state court." 437 U.S. at 662-63, quoting Brillhart v. Excess Insurance Co., 316 U.S. 491, 494 (1942). The decision is largely committed to the "carefully considered judgment of the district court." 437 U.S at 663. "The decision whether to dismiss 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." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 16 (1983).
Among the factors considered by the Supreme Court to be important to the determination whether dismissal is appropriate in a particular case are "the order in which jurisdiction was obtained by the concurrent forums" and "the desirability of avoiding piecemeal litigation." Colorado River Water Conservation District v. United States, 424 U.S. 800, 818 (1976). These factors are not per se determinative, but are, in the context of the case at bar, sufficient to support a stay of Count I of plaintiff's complaint, i.e., enforcement of a foreign judgment. Plaintiff's complaint filed in this Court seeking enforcement of a foreign judgment has resulted in two actions in personam between the same parties involving the same subject matter in two courts of the same forum.
A stay of the action before this Court represents the best course of action for several reasons. First, plaintiff has a statutory right to invoke federal jurisdiction based upon 28 U.S.C. § 1332, diversity of citizenship. "When federal jurisdiction predicated upon diversity of citizenship is properly aserted, the prior commencement of an action in local court may justify abatement of the federal action." Mahaffey v. Bechtel Associates Professional Corp., 699 F.2d 545, 546 (D.C. Cir. 1983). Second, "plaintiffs do not have a right actively to pursue parallel state and federal actions simultaneously." Id. Plaintiff filed his action for enforcement of a foreign judgment in the Superior Court approximately five months prior to filing this action in this Court. During this period, defendant filed her answer and plaintiff moved for, and was denied, summary judgment because a disputed issue of material fact existed,i.e., whether the New York Supreme Court ever acquired personal jurisdiction over the defendant. Thus, the issue is joined for trial in the Superior Court which is scheduled for April 25, 1988. Third, Plaintiff's complaint seeks to have this Court enforce this foreign judgment, but it is clear that defendant will present the identical defense that the New York court lacked personal jurisdiction and that the judgment is therefore without effect. Fouth, there is no discrete federal claim in this proceeding over which this Court has exclusive jurisdiction. See 1A-Pt 2 Moore's Federal Practice ¶ 0.203[4] (2d ed. 1985). Fifth, plaintiff will not choose to re-litigate his breach of contract claim if he prevails in Superior Court. As in Mahaffey, "(a) stay in this case will effectively conserve court resources while avoiding premature rejection of the litigant's access, as specified by statute, to a federal forum." 699 F.2d at 546-47.
Defendant argues that Count II of plaintiff's complaint,i.e., "breach of contract, failure to account, breach of fiduciary duty, conversion," is res judicata and must therefore be dismissed. The Court is aware, through the pleadings and papers submitted thus far, that defendant is challenging the efforts of plaintiff to enforce the judgment he received in the Supreme Court of New York on the ground that the New York court lacked personal jurisdiction over the defendant. If the court did in fact lack personal jurisdiction over the defendant, then the judgment is without effect, and the doctrine of res judicata would not apply. See McDonald v. Mabee, 243 U.S 90, 92 (1917) ("An ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the state as it is outside of it."). Whether the doctrine of res judicata bars Count II of plaintiff's complaint should not be decided until the issue of personal jurisdiction has been decided. Therefore, the Court will stay Count II of plaintiff's complaint pending a decision on the merits on plaintiff's action in the Superior Court of the District of Columbia.
Accordingly, it is by the Court this 3rd day of November, 1987
ORDERED that this proceeding be stayed pending a decision on the merits in the Superior Court of the District of Columbia following trial scheduled for April 25, 1988; and it is
FURTHER ORDERED that defendant's Motion for Sanctions Under Rule 11 be, and hereby is, taken under advisement until the above-mentioned stay is lifted; and it is
FURTHER ORDERED that plaintiff's Motion for Sanctions Under Rule 11 be, and hereby is, taken under advisement until the above-mentioned stay is lifted; and it is
FURTHER ORDERED that counsel shall advise the Court, in writing, as to the status of the Superior Court case on or before March 1, 1988.