United States District Court, E.D. Michigan, Southern Division
GRANITE STATE INSURANCE CO., as subrogee of CONNELLY CRANE RENTAL CORP., Plaintiff,
SONGER STEEL SERVICES, INC., Defendant.
OPINION AND ORDER DENYING PLAINTIFF'S
“MOTION TO LIFT STAY AND REMAND TO STATE COURT PURSUANT
TO THE COLORADO RIVER ABSTENTION DOCTRINE”
H. CLELAND UNITED STATES DISTRICT JUDGE
September 23, 2016 Plaintiff Granite State Insurance Co.
filed a “Request to Lift Stay and Motion to Remand to
State Court Pursuant to the Colorado River
Abstention Doctrine.” (Dkt. # 8.) Plaintiff's
motion requests remand or, in the alternative, that the court
continue the stay and grant Plaintiff leave to file a motion
to intervene in the related state court action. The matter
has been fully briefed and a hearing is unnecessary.
See E.D. Mich. LR 7.1(e)(2). For the reasons set
forth below, the court will deny Plaintiff's motion.
following facts are undisputed unless otherwise noted.
Plaintiff brings this action as subrogee of its insured,
Connelly Crane Rental Co. Connelly rented a crawler crane to
U.S. Steel Corp. For use at U.S. Steel's Ecorse, Michigan
facility in or around early April, 2014. (Dkt. # 9, Pg. ID
68.) U.S. Steel hired Defendant Songer Steel Services, Inc.
to assist with the crane's operation to remove collapsed
ductwork at the U.S. Steel facility. In the early morning of
April 4, 2014, the crane tipped over, killing the operator.
(Dkt. # 1-2, Pg. ID 11-12.)
29, 2015 the decedent crane operator's estate filed a
wrongful death action in Wayne County Circuit Court against,
among other parties, Defendant Songer and U.S. Steel. (Dkt. #
8, Pg. ID 55.) That state court proceeding has grown to
include issues surrounding the collapsed ductwork and several
defendants unrelated to the tip over. (Id.) On
October 27, 2015 Plaintiff filed the present action related
to the damage to the crane in Wayne County Circuit Court,
(Dkt. # 1-1) and Defendant removed the action to this court
on the basis of diversity jurisdiction on November 24, 2015.
(Dkt. # 1.)
agreement reached by the parties to this case and the parties
in the related state court proceeding allowed Plaintiff
reasonable, but limited, participation in discovery and a
potential global settlement. This court in turn stayed and
administratively closed the present action in its Order
entered March 18, 2016. (Dkt. # 7.) Since that time, the
parties to the state court proceeding, with some
participation from Plaintiff, have conducted dozens of
depositions and have nearly completed a mediation process
that Plaintiff anticipates will be unsuccessful. (Dkt. # 8,
Pg. ID 59-60.) The state court proceeding was scheduled for a
status conference on October 31, 2016. (Dkt. # 9.)
has stated its intent to file a motion to intervene at the
October 31 status conference pursuant to a stipulated order
in the state court proceeding. (Dkt. # 10, Pg. ID 88.)
Rekated to this intent, the parties assert here that
Plaintiff “may not seek the state court's
permission to intervene when it currently has the exact same
cause of action pending” in this court. (Dkt. # 9, Pg.
ID 71.) Accordingly, Plaintiff filed the instant motion,
asking this court to lift the stay and remand the proceeding
based on Colorado River Water Conservation Dist. V.
U.S., 424 U.S. 800 (1976) or, in the alternative,
continue the stay “with authority to file an
intervention pleading in state court.” (Dkt. # 8, Pg.
ID 54.) The court has no interest in interfering with
Plaintiff's intended state court filings, but is not
persuaded as to the predicates of the motion as presently
Colorado River, the Supreme Court held that federal
courts may abstain from hearing a case solely because similar
pending state court litigation exists. Colorado
River, 424 U.S. at 817; Romine v. Compuserve
Inc., 160 F.3d 337, 339 (6th Cir. 1998).
“[D]espite the ‘virtually unflagging obligation
of the federal courts to exercise the jurisdiction given
them, ' . . . considerations of judicial economy and
federal-state comity may justify abstention in situations
involving the contemporaneous exercise of jurisdiction by
state and federal courts.” Romine, 160 F.3d at
339 (quoting Colorado River, 424 U.S. at 817).
outset, the court notes that it lacks the ability to remand
this action based on abstention doctrine. See Quackenbush
v. Allstate Ins. Co. 517 U.S. 706, 719-20 (1996)
(holding that federal courts do not have the power to remand
cases based on abstention principles in common-law actions
for damages). The Fifth Circuit has succinctly addressed this
It is clear, though, that remand is not an option. In
addition to being unsupported by any authority in the removal
statute or elsewhere, it is simply illogical. Where a court
has already determined under the Colorado River
analysis that an existing state court case “will be an
adequate vehicle for the complete and prompt resolution of
the issues between the parties, ” [Moses H. Cone
Memorial Hosp. V. Mercury Constr. Corp., 460 U.S. 1, 28
(1983)] no purpose is served by sending the federal case back
to state court to litigate the same issues.
Saucier v. Aviva Life & Annuity Co., 701 F.3d
458, 465-66 (5th Cir. 2012). The parties agree, but do not
explain how application of Colorado River abstention
would authorize the court to remand the case as Plaintiff
requests; the widely recognized alternative is simply to
continue the stay. See Bates v. Van Buren Twp., 122
F. App'x. 803, 809 (6th Cir. 2004) (“We therefore
join other circuits in requiring a stay of proceedings rather
than a dismissal in Colorado River abstention
cases.”) Plaintiff's request for remand must be
an analysis of Colorado River abstention principles
demonstrates that it would be inappropriate here. In deciding
whether abstention under Colorado River would be
appropriate, courts must first determine whether the
proceedings are “parallel.” Romine, 160
F.3d at 339. If the proceedings are parallel, the court then
considers the following factors: (1) whether the state court
has assumed over any res or property; (2) whether the federal
forum is less convenient to the parties; (3) avoidance of
piecemeal litigation; (4) the order in which jurisdiction was
obtained; (5) whether the source of governing law is state or
federal; (6) the adequacy of the state court action to
protect the federal plaintiff's rights; (7) the relative
progress of the state and federal proceedings; and (8) the
presence or absence of concurrent jurisdiction. Id.
at 340-41. These factors “do not comprise a mechanical
checklist. Rather, they require ‘a careful balancing of
the important factors as they apply in a give[n] case'
depending on the particular facts at hand. Id. at
341 (quoting Moses H. Cone, 460 U.S. at 15-16).
“parallel, ” the proceedings must be
“substantially similar.” Id. at 340.
Other circuits consider whether there is an identity of
parties and whether the issues and relief sought are the same
in both proceedings. Nat'l Union Fire Ins. Co. of
Pittsburgh v. Karp, 108 F.3d 17, 22 (2nd Cir. 1997).
Here, the state court proceeding is vastly more complex,
involves an accident entirely different from the crane tip
over, and does not raise the issue of property damage to the
crane. (Dkt. # 9, Pg. ID 78-79.) These issues are not