Professional Documents
Culture Documents
No. 94-1695
ELMENDORF GRAFICA, INC.,
Plaintiff, Appellant,
v.
D.S. AMERICA (EAST), INC. d/b/a SCREEN (EAST),
Defendant, Appellee.
_______________
ERRATA SHEET
ERRATA SHEET
The opinion of this Court
amended as follows:
Page 5, line 11:
issued on February
21, 1995, is
Before
Boudin, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Boyle, Senior District Judge.*
_____________________
____________________
____________________
*Of the District of Rhode Island, sitting by designation.
from an
order of the
Elmendorf Grafica,
district court
granting
concluded.
The United
for the
of
magistrate judge
the
principles
District
________
declared
that
in
was
justified under
We vacate
of business
America
(East),
"Screen"),
in Puerto
Inc.,
d/b/a
Nuevo, Puerto
Screen
an Illinois corporation
parties
under which
and
in
entered into
an
Elmendorf agreed
perform
to
its
to purchase computer
hardware
satisfaction,
The equipment
and
Elmendorf,
(hereinafter
D.S.
equipment purchase
failed
Rico, and
(East)
of this
-33
On
November
25, 1992,
Screen sued
Elmendorf for
The
on
December
Elmendorf filed a
3,
Court
after briefing
allowed
Instead
limited appearance.
1992.
answering,
February 2, 1993,
and argument,
Elmendorf's
On
of
motion
the Cook
on
May
County Circuit
17,
1993,
and
personal jurisdiction.
While
on
the
dismissal
court modified
remained.
Appellate Court,
its order
Screen
appealed
June 8,
to
the
1993, the
Illinois
dismissal, on July
8, 1993.
The parties
thereupon engaged in a
stay of
war of motions
proceedings to
amend record on
filed a
appeal,
which included
brief.
request for
1994.
Elmendorf, having
filed
additional time
to file
in February
its
motion,
the record on
the
Elmendorf
motion
appellate
moved for
was allowed
extension
of time
court's
disposition of
clarification on
on
for
August 10,
May 11,
1994,
Elmendorf to
this
motion,
1994.
with yet
That
another
file
its brief.
On
third request
for
-44
September
16,
additional
1994, Elmendorf
time to file
preparing for
its brief.
filed
to prepare
decided.
B.
B.
On January
contract, false
the same
subject of
equipment
the Illinois
advertising,
purchase agreement
litigation.
of $684,700
14, 1993,
and complaint in
one week
stemming
which was
Elmendorf
the
requested a
summons
and fraud
reimbursement of
after the
Cook
County Circuit
Court's
July
13,
Screen removed
1993,
alleging
the Puerto
diversity
Rico action
of
to the
-55
by
the Supreme
Court in
recommended
of the
opposition on
Illinois
stay of
matter to
its
before receiving
21,
pending the
Elmendorf filed
in
proceedings
litigation.
opposition by
The district
reconsideration in light
of Elmendorf's objections.
On
second report,
April 8,
1994, the
again recommending
objections to this
magistrate judge
a stay.
issued a
Elmendorf filed
On May
____________________
1. Screen states in its brief that "it is unclear whether"
Elmendorf's objections to the April 8, 1994 magistrate
judge's report, filed on April 25, 1994, were filed within
the 10-day period required by 28 U.S.C.
636(b)(1)(C)
(1988).
This seems
to suggest that we
should deem
Elmendorf's appeal waived. See, e.g., Henley Drilling Co. v.
___ ____ ___________________
McGee, 36 F.3d 143, 150-51 (1st Cir. 1994) (failure to object
_____
within
636(b)(1)(C)'s ten-day period waives claim for
purposes of appellate review); Fed. R. Civ. P. 72(b) (same).
However, it appears that Elmendorf's objections were timely
filed. See Fed. R. Civ. P. 72(b) (allowing service by mail
___
of magistrate's report); Fed. R. Civ. P. 6(a) and (e)
(describing method of computing time period under federal
rules, and stating that, where period allowed is less than 11
days, intervening Saturdays, Sundays and holidays shall not
be counted, and, where service upon a party is to be made by
mail, adding three days to the period is allowed).
-66
5,
1994,
the district
magistrate
court issued
judge's conclusions
proceedings.
an order
and ordering
adopting the
a stay
of the
Elmendorf appeals.
II.
II.
A.
A.
A Preliminary Matter
A Preliminary Matter
a de novo review
_______
findings, as
required by
636(b)(1)(C) (1988).2
____________________
2.
28 U.S.C.
magistrate
to
hear
and
determine any pretrial matter
pending
before
the
court,
except
a motion . . . to
involuntarily dismiss an action
. . . .
(B) a judge may also designate
a magistrate . . . to submit to
a judge of the court proposed
findings
of
fact
and
recommendations
for
the
disposition, by a judge of the
court, of any motion excepted
in subparagraph (A) . . . .
(C) the magistrate shall file
his
proposed
findings
and
recommendations
under
subparagraph (B) with the court
and a copy shall forthwith be
mailed to all parties.
Within ten days after being served with a
copy, any party
may serve and file
written
objections to
such proposed
findings and recommendations as provided
by rules of court. A judge of the court
shall make a de novo determination of
those portions of the report or specified
-77
his decisions
argues
that
are warranted
in
law and
fact."
this statement
is
inconsistent
Elmendorf
with
636's
requirement.
Elmendorf has called no
review
requirement,
a district
court
must
636's
make
to adopt
judge.
in
whole as
well as
findings or recommendations of
as
here,
the
magistrate
the district
in part
the proposed
judge decided
on
an
Where,
undisputed
v. McGee,
_____
36 F.3d
143, 151
____________________
proposed findings or recommendations to
which objection is made.
A judge of the
court may accept, reject, or modify, in
__________
__
whole or in
part, the findings
or
_____
recommendations made by the magistrate.
The judge may
also receive
further
evidence or recommit the matter to the
magistrate with instructions.
28 U.S.C.
(1st Cir.
1994), quoting Park Motor Mart, Inc. v. Ford Motor Co., 616
_______ ______________________
_______________
F.2d 603, 605 (1st Cir. 1980).
III.
III.
A.
A.
lawsuits
in deference
a federal
to parallel
court
could decline
jurisdiction based
judicial administration,
regard
of
conservation
comprehensive
460
U.S.
disposition of
at 15
The
"'considerations of "[w]ise
to
judicial
giving
and
resources
on
424 U.S.
at 817
The
illustrative
Court
factors
circumstances"
in
Colorado River
_______________
for
determining whether
"exceptional
has assumed
exist: (1)
mentioned
four
Another
-99
at
Colorado
River, the
Supreme
Court emphasized
_______________
that the
stay or dismissal
sparingly.
The
Court
spoke of
the "virtually
be used
unflagging
clearest
819.
of justifications will
The weight a
into
jurisdiction
account
the
against
that exercise
district
court must
balance
heavily
a carefully
both
the
combination
is
weighted
to
factors
required," id.
___
weigh the
factor is
considered judgment
obligation
of
at
favor
of
exercise
counselling
818-19.
important factors
in
id. at
___
determinative;
and
warrant dismissal,"
the
The
"with the
exercise
of
to surrender jurisdiction
is
first instance,"
decision
may
discretion.
within
test."
the
be
Such
id. at
___
reversed
19, and
only
discretion must
constraints
of
the
for
be
the district
an
abuse
exercised,
court's
of
that
however,
"exceptional-circumstances
-1010
1674 (1992).
district court
a discussion which
ordered a stay
or dismissal,
the Court
The
magistrate
judge's
second
report
and
in any
should be
decision to stay
or dismiss
under
"heavily weighted
in favor
of the
exercise of jurisdiction."
at 3.
of the
above-quoted
We have no difficulty
In
on to conclude, however,
staying the
could go forward in
Illinois.
was before
(indeed, up
until
from the
dismissing
This
was
the
not a
order
of
the
action for
lack
case where
the
Cook County
of
Circuit
Court
personal jurisdiction.
parallel state
action was
facts, to
await the
outcome in
court.
Here, if the
be affirmed
by the
the state
case before
Cook Country
personal jurisdiction
Illinois Appellate
Court, there
will merely
be back
at the
very beginning
of the
circumstances, the
Rico,
which
was
not
jurisdictional question,
encumbered
was the more
by
Under
in Puerto
any
threshold
immediately available
magistrate
court action
judge said
that
if
the district
be litigating
very similar
issues in two
separate forums."
that the
jurisdictional
dismissal.
Only if
the Illinois
the federal
stay,
grounds,
Illinois case
leaving
had been
only an
appeal
proceedings become
district court.
dismissed on
from
appeal would
truly parallel to
By then,
were it not
the
those in
for the
be well into
the federal case would permit the parties to devote all their
energies
to the
appellate
court,
battle
and,
over jurisdiction
depending on
the
in the
Illinois
outcome,
perhaps
case to sit
its
progeny, which
describe
the
balance as
"heavily
-1313
weighted
in
favor
jurisdiction.
require
an
of
the
exercise
Moses H. Cone,
_____________
affirmative
justifications,"
[federal
460 U. S. at 16.
showing
Colorado River,
______________
of
of
Those cases
"the
424 U.S.
clearest
at 819,
court]
of
or some
defers
have mentioned,
clearly favoring
argument
we cannot
discern an
exceptional basis
Screen's primary
was that to
proceed in both
Duplication,
exceptional basis
federal action.
standing alone,
that warrants a
is
rarely
stay or dismissal
an
of the
duplication were
to
cure is scarcely
state one.
Nor are
if
forced to proceed in
its
argument that,
in Puerto Rico,
subject to dismissal
because of an
same cause."
Whatever the
force of this
for the
argument in
some
-1414
different
federal
factual
court to
context,
defer
to a
we see
no
good
reason for
problematic state
proceeding
merely because the existence of the federal case may give the
state courts some further reason to dismiss the state action.
Indeed,
if Screen's
duplication of
argument
is
correctly
premised,
the
will cease.
And,
of course, Screen
balance
due
is free to
under the
equipment
to the
agreement as
should be paid
to the Illinois court simply because that court was the first
"to assume jurisdiction."
filed first.
case was
which jurisdiction
indicated that
was taken
is not
the
a mechanical
a concept
advanced at
done.
that
favors the
case
that is
-1515
the
more
is being
by
which action
the suit in
is
the more
Id.
___
Here
Hence, having
regard for
in time
case, and
the
the stay.
The
fact
magistrate judge
that Illinois
present contract
law
is likely
dispute.
to
be involved
We will concede
with the
in
the
the expertise of
an Illinois court in its own law, and that federal law is not
in
issue here,
entitled
to
but we do
much
weight
not believe
that this
factor is
for present
purposes.
Nothing
or
difficult
questions
of
jurisdictions.
legal
interpretation.
court in
required.
See Gonzalez
v. Cruz,
926 F.2d
1, 5
(1st Cir.
___ ________
1991)
("The
mere
fact that
____
the
outcome
of
the case
undermine the
is
to hold
of federal
-1616
considered by
stay
where the
issues
of
925 F.2d at
state
law to
496
be
complex").
A further
factor, which
did
whether
the
parties' rights.
state
forum
can
adequately
protect
the
Given the
fact that when the district court was considering the request
for a stay,
it was entirely
Illinois
in Illinois was
necessarily
problematic.
course, be
as well able as
the case if
it had
Illinois
court
jurisdictional
appellate
court
favor
would,
personal
in
The
question
of
was
dispose of
and until
resolved
plaintiff,
the
of
by
utility
the
the
of
As we have
Court in Moses H.
_________
Cone also spoke of the need to find "that the parallel state____
court litigation will be an adequate vehicle for the complete
and prompt resolution of the issues between the parties."
460 U.S. at 28. Should there be doubt of this, it would be,
the Court said, "a serious abuse of discretion" to grant a
stay. Id.
___
4. We also note Screen's contention that the federal action
is vexatious and reactive. See Moses H. Cone, 460 U.S. at 17
___ _____________
n.20; Fuller, 782 F.2d at 308-310. We do not find merit in
______
this argument. Elmendorf's action was filed two months after
Screen's, but Elmendorf waited to serve process upon Screen
-1717
We
hold,
Colorado
River
________________
certainly did
therefore,
factors
that
favored
the
balance
denying
proceedings
in
a state
tribunal,
the
stay,
and
the
of
for the
The exceptional
present.
The
Costs
for
___________
appellant.
_________
____________________
until after the circuit court's dismissal of the state action
for want of personal jurisdiction over Elmendorf.
In these