Assmann v. Treglia

• Decision Date: 25 February 1970
• Docket Number: Civ. No. 13346.
• Citation: 318 F. Supp. 1040
• Court: U.S. District Court — District of Connecticut
• Parties: Heinz ASSMANN, Plaintiff, v. David TREGLIA, Defendant.

318 F. Supp. 1040

Heinz ASSMANN, Plaintiff, v. David TREGLIA, Defendant.

Civ. No. 13346.

United States District Court, D. Connecticut.

February 25, 1970.

Richard G. Bohner, of Bohner & Bohner, Rego Park, N. Y., for plaintiff.

Elaine S. Amendola, of Goldstein & Peck, Bridgeport, Conn., for defendant.

TIMBERS, Chief Judge.

Defendant moves to stay this personal injury action pending determination of an identical action in the Superior Court for Fairfield County, Connecticut. Defendant asks the Court to exercise its discretion by granting his requested stay in order to avoid duplicity of effort and in the interest of judicial economy and efficiency.

Plaintiff has chosen to institute parallel actions in the state and federal courts. Defendant need not have permitted this to occur: unnecessary duplication and expense could have been obviated if defendant, within 20 days of receipt of the state pleading, had removed that action pursuant to 28 U.S.C. § 1446, and then moved to consolidate that action with the instant action pursuant to Rule 42(a), Fed.R.Civ.P.

The leading case in this Circuit with respect to the discretionary stay of proceedings, such as that requested by defendant, is Mottolese v. Kaufman, 176 F.2d 301 (2 Cir. 1949), in which Judge Learned Hand recognized that the right of access to a federal forum is not absolute and affirmed the granting of a discretionary stay where an identical action previously had been commenced in the state courts. Although Mottolese has been criticized,¹ it remains the law of this Circuit. For the reasons stated below, however, the Court is of the opinion that a stay of proceedings would not be appropriate in the instant action.

(1) Contrary to Mottolese, plaintiff's federal action, commenced by filing the complaint on August 14, 1969, preceded commencement of the state court action, the writ therein having been subscribed to on August 21, 1969 and made returnable on the first Tuesday of October, 1969.

(2) Contrary to Mottolese, there are now pending several related state court actions which have been consolidated in a single action and which it appears can be prosecuted more speedily and effectively in the state courts than in the federal courts.

(3) Of chief importance here is the protection of plaintiff's right to institute parallel actions in the state and federal courts in order to avail himself of the broad federal discovery proceedings. Even assuming that defendant were willing to stipulate to the applicability of the federal discovery rules in the state proceedings if this

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