Interstate Material Corp. v. City of Chicago, 87-2020

Citation847 F.2d 1285
Decision Date03 June 1988
Docket NumberNo. 87-2020,87-2020
PartiesINTERSTATE MATERIAL CORPORATION, an Illinois corporation, on its own behalf and on behalf of all others similarly situated, Plaintiff-Appellant, v. CITY OF CHICAGO, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Rochelle J. Brinnick, Cook Partners Law Office, Ltd., Chicago, Ill., for plaintiff-appellant.

Edward J. Lewis, II, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for defendants-appellees.

Before CUMMINGS, CUDAHY and POSNER, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Interstate Material Corporation ("Interstate") challenges the district court's order that, pursuant to Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483, denied Interstate's motion to dissolve the stay of federal proceedings pending the resolution of a parallel action in state court. The decision to stay federal proceedings because of concurrent state litigation remains one committed to the discretion of the district court. Will v. Calvert Fire Insurance Co., 437 U.S. 655, 665, 98 S.Ct. 2552, 2558, 57 L.Ed.2d 504. Thus the only question on appeal is whether the district court abused its discretion. Lumen Constr., Inc. v. Brant Constr. Co., Inc., 780 F.2d 691, 695 (7th Cir.1985). We hold that it did not and affirm the judgment.

I

Although the only substantive question on appeal is whether the district court abused its discretion, before reaching that question we must determine whether we have jurisdiction to do so. Interstate asserts that we have jurisdiction under 28 U.S.C. Sec. 1292(a)(1). The City defendants 1 agree. Despite this agreement between the parties, we have an independent responsibility to determine whether we have subject matter jurisdiction, Wilson v. Civil Town of Clayton, 839 F.2d 375, 384 (7th Cir.1988), and we disagree with the jurisdictional statement of the parties.

Section 1292(a)(1) grants the courts of appeal jurisdiction of appeals from "interlocutory orders" "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions." While the list of appealable actions a district court might take regarding an injunction appears comprehensive, it does not include the non-action taken here. Although Interstate titled its motion "Motion to Dissolve Stay and for Preliminary Injunction," the challenged order in its entirety states:

For the reasons stated in this court's 6-26-86 order, Plaintiff's motion to dissolve the stay of proceedings is denied. As stated previously in the 6-26-86 order, the advanced status of the plaintiff's prior parallel state action requires this court to stay the instant proceedings until the resolution of the state case.

The order contains no disposition of, or even mention of, plaintiff's motion for a preliminary injunction; yet Interstate argues that this order "effectively denied the preliminary injunctive relief" it sought. Acceptance of Interstate's argument would defeat the intent and effect of the stay. The order deferred to the state court proceedings, in which Interstate had been granted a preliminary injunction by the Illinois Appellate Court hearing an interlocutory appeal. The district court's denial of Interstate's motion to dissolve the stay was a refusal to consider any issue on the merits of the case. It was not a collateral order concerning an injunction appealable under Sec. 1292(a)(1).

The order denying the motion to dissolve the stay, however, is itself an appealable order. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 11-13, 103 S.Ct. 927, 934-35, 74 L.Ed.2d 765. An order denying a motion to dissolve a stay is equivalent to an order granting a stay of litigation and the Supreme Court in Moses Cone held that a district court order granting a stay of litigation pursuant to Colorado River is an appealable order. Id. Compare GulfStream Aerospace Corp. v. Mayacamas Corp., --- U.S. ----, 108 S.Ct. 1133, 99 L.Ed.2d 296 (holding that a district court order denying a motion to stay or dismiss because of the pendency of similar litigation in state court is not immediately appealable under Section 1291 or Section 1292(a)(1)). The Court found that an order granting a stay pursuant to Colorado River comes within the small class of decisions excepted from the final judgment rule under Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. Moses Cone, 460 U.S. at 11, 103 S.Ct. at 934. Such an order meets the requirements of Cohen because it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. Id. at 11-12, 103 S.Ct. at 934-35. We therefore have jurisdiction to consider Interstate's appeal insofar as it concerns the district court's refusal to dissolve the stay.

II

Colorado River, as explained and expanded by Moses Cone, controls here. In Colorado River the Court emphasized "the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them," 424 U.S. at 817, 96 S.Ct. at 1246, but also recognized that when there is concurrent state court litigation "exceptional" circumstances may exist that permit a federal court to refrain from exercising that jurisdiction "for reasons of wise judicial administration." 2 Id. at 818, 96 S.Ct. at 1246.

A

As an initial requirement, the concurrent state and federal court proceedings must be parallel. If they are not, the Colorado River doctrine is inapplicable. See, e.g., Harris v. Pernsley, 755 F.2d 338, 346 (3d Cir.1985); Crawley v. Hamilton County Comm'rs, 744 F.2d 28, 31 (6th Cir.1984). Interstate argues that its state and federal actions are not parallel because the parties and issues in each suit are different. The two actions involve different defendants and potentially involve different plaintiffs. In its state action Interstate names as defendants the City of Chicago, Mayor Harold Washington, and seven city officials involved in the administration of Chicago's MBE program. Interstate's federal action again names the City of Chicago and six of the seven individual defendants, but also names Elizabeth Dole in her official capacity as Secretary of the United States Department of Transportation ("USDOT") and two federal agencies: USDOT and the Urban Mass Transportation Administration ("UMTA"). In addition, Interstate filed the state action on behalf of itself, but filed the federal action on behalf of itself and two classes: (1) the "National Class," including "all businesses in the United States which are at least 51% minority owned, which are controlled by at least one of the minority owners, and which are or may be subject to the regulations of the [USDOT] set forth in 49 C.F.R., Part 23, and (2) the "Chicago Class," including "all businesses which now seek or have sought since January 1, 1986 to do business with the City of Chicago, which are at least 51% minority owned and are controlled by at least one of the minority owners, and which have sought since January 1, 1986 or will seek to be certified or recertified as [MBEs] by the City of Chicago."

Interstate also argues that the issues in the two cases differ. It contends that the state action seeks relief only from the 1985 denial of Interstate's recertification as a minority business enterprise while the federal action "seeks relief against both city and federal officials based on the different perspective created by conduct and events occurring in 1986."

Interstate is correct in its assertion that differences exist. However, the requirement is of parallel suits, not identical suits. A "suit is 'parallel' when substantially the same parties are contemporaneously litigating substantially the same issues in another forum," Calvert Fire Insurance Co. v. American Mutual Reinsurance Co., 600 F.2d 1228, 1229 n. 1 (7th Cir.1979); see also Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 165, 81 L.Ed. 153, and the parties and issues in Interstate's state and federal actions are substantially the same.

The addition of the federal defendants in the federal suit by itself does not destroy the parallel nature of the cases. If it did, parties could avoid the doctrine of Colorado River by the simple expedient of naming additional parties. Lumen Constr., 780 F.2d at 695. Similarly, the parallel nature of the suits is not defeated by Interstate's attempts to certify two classes as plaintiffs in the federal action because the relief Interstate requests in its state action would benefit not only Interstate but all persons it argues would be part of the "Chicago Class" and some members of the "National Class." As relief in the state action Interstate requests a temporary and permanent injunction concerning its own MBE status and $7,500,000 as damages, but it also requests declarations that the actions of the City defendants violate the United States and Illinois constitutions (Counts I and III) as well as sections 23.1, 23.7 and 25.53 of Volume 49 of Code of Federal Regulations (Count II), and ultimately requests the court to "[i]ssue a mandatory injunction requiring defendants to establish uniform procedures, consistent with the principles of due process of law, for decertification of certified minority business enterprises and for appeal from decertification, in accordance with Section 5(g) of Executive Order 85-2." Thus although the members of the possible class in the federal action are technically not represented in the state action, the relief requested will benefit them. See Canaday v. Koch, 608 F.Supp. 1460, 1475 (S.D.N.Y.1985).

After "a painstaking comparison of the federal and state complaints" and the observation "that 32 of the 39 key paragraphs in plaintiff's state court complaint appeared verbatim in its federal court comp...

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