UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

ERIKA MOORE,

Plaintiff,

v. Case No. 15-11252

OFFICER JOSEPH WEEKLEY,

Defendant.

/

ORDER STAYING CASE UNDER COLORADO RIVER ABSTENTION

On June 2, 2016, Plaintiff filed a “Motion to Stay Pursuant to the Colorado River

Abstention Doctrine or, in the Alternative, for Voluntary Dismissal Pursuant to Rule

41(a)(2).” (Dkt. # 51.) The matter has been fully briefed and the court concludes that a

hearing is not necessary. See E.D. Mich. LR 7.1(e)(2). For the reasons set forth below,

the court will grant the motion.

I. BACKGROUND

The tragic events giving rise to this litigation were fully detailed in the court’s

“Opinion and Order Granting in Part and Denying in Part Defendant’s Motion for

Summary Judgment,” (Dkt. # 36), familiarity with which is presumed. The court will only

summarize in this opinion. 

During a late night police raid to apprehend a murder suspect, Defendant Officer

Joseph Weekley somehow discharged his firearm, fatally wounding seven-year-old

Aiyana Jones. (Dkt. # 22-13, Pg. ID 321.) Two days later, the decedent’s father filed

law suits in both the U.S. District Court for the Eastern District of Michigan and the

Wayne County Circuit Court on behalf of his late daughter’s estate. Jones v. Doe, No.

2:15-cv-11252-RHC-RSW Doc # 55 Filed 07/28/16 Pg 1 of 8 Pg ID 883
10-11990 (E.D. Mich.); Jones v. Weekley, No. 10-005660-NO (Wayne Cnty. Cir. Ct.). 

That same day, he moved to voluntarily dismiss the federal action. 

The state case languished for several years—in part because of the Detroit

bankruptcy and in part because of Defendant’s ongoing criminal trial—leading the

estate to refile its federal suit on April 1, 2015, asserting various § 1983 claims against a

number of defendant officers and the city of Detroit. (Dkt. # 1.) During the summary

judgment phase, the court winnowed down the issues and set a trial date for August 15,

2016. (Dkt. # 36.) Meanwhile, the Wayne Circuit Court case was set for trial on

September 14, 2016. 

II. DISCUSSION

In 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. 

The decision whether to decline jurisdiction under Colorado River rests on

considerations of “wise judicial administration” and the general principle against

duplicative litigation. Colorado River, 424 U.S. at 817. These considerations create a

narrow exception where courts may decline jurisdiction in deference to parallel state

court proceedings. See Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460

U.S. 1, 16 (1983) (holding that a decision to dismiss based on parallel state court action

2

2:15-cv-11252-RHC-RSW Doc # 55 Filed 07/28/16 Pg 2 of 8 Pg ID 884
rests “on careful balancing of the important factors as they apply in a given case, with

the balance heavily weighted in favor of exercising jurisdiction”); Great Earth Cos. Inc. v.

Simons, 288 F.3d 878, 886 (6th Cir. 2002) (“A district court may sometimes be justified

in abstaining from exercising jurisdiction in deference to a parallel state court

proceeding”); American Disposal Servs. Inc. v. O’Brien, 839 F.2d 84, 87 (2d Cir. 1988). 

The threshold question in Colorado River abstention is whether there exists a

proceeding in state court parallel to the federal court proceeding. Romine, 160 F.3d at

339; Crawley v. Hamilton Cnty. Comm’rs, 744 F.2d 28, 31 (6th Cir. 1984). The state

court proceedings need not be identical, but merely substantially similar. Id. at 340; see

also Bates v. Van Buren Twp., 122 F. App’x. 803, 806 (6th Cir. 2004). “There is also no

requirement that the parties in the state court proceedings be identical to those in the

federal case.” Bates, 122 F. App’x at 806 (citing Heitmanis v. Austin, 899 F.2d 521, 528

(6th Cir. 1990)).

Once the threshold is satisfied, the court considers a number of factors to

determine if abstention is appropriate, summarized by the Sixth Circuit as follows: 

(1) whether the state court has assumed jurisdiction over any res or property; (2)

whether the federal forum is less convenient to the parties; (3) avoidance of

piecemeal litigation; and (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. These factors, however, 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.

Romine, 160 F.3d at 340-41 (citations omitted). 

Here, Plaintiff argues that considerations of judicial economy and federal-state

comity counsel in favor of abstention. The court agrees. The threshold requirement is

3

2:15-cv-11252-RHC-RSW Doc # 55 Filed 07/28/16 Pg 3 of 8 Pg ID 885
easily met. The two cases are substantially similar: both cases were filed by the same

Estate against the same Defendant; both cases arose out of the same tragic nucleus of

common events; both cases rely on the same evidence to support the same allegations,

and ultimately hinge on the same question of fact—whether Defendant’s discharge was

intentional or not. The parallel nature of the proceedings is beyond dispute.

A careful balance of the various factors articulated by the Supreme Court and

Sixth Circuit tilt the scales in favor of abstention. At least one factor clearly weighs

against granting Plaintiff’s Motion: this case has nothing to do with property. Though

Plaintiff contends that the “Wayne County Circuit Court assumed jurisdiction over the

res of this case,” she has provided no evidence to support this assertion. (Dkt. # 51,

Pg. ID 823.) Nor does the gravamen of the case revolve around a “thing”1

 or an item of

property but rather around allegations of excessive force. The first factor does not

contemplate disputes that only tangentially touch upon property or that arose from

events that transpired in a house. The court rejects Plaintiff’s broad reading of “res.”

Other factors, such as the convenience to the parties and the relative progress of

the state and federal cases, are neutral, providing only negligible weight to one side or

the other. Plaintiff argues that “[a] trial in Port Huron poses an almost insurmountable

hardship for Aiyana’s family, the witnesses, and the jurors.” (Dkt. # 51, Pg. ID 824.) The

court is unpersuaded. While transportation to Port Huron (63.2 all-expressway miles)

would impose some additional burden on interested parties, it does not resemble a state

of “nearly insurmountable.” The court would expect Plaintiff’s Counsel to advance the

1

 Black’s Law Dictionary (Sixth Ed. 1990), refers to “res” as “[t]hings” and lists the

many divisions and classifications res has in law. Id. at 1304.

4

2:15-cv-11252-RHC-RSW Doc # 55 Filed 07/28/16 Pg 4 of 8 Pg ID 886
resources required to provide the travel and other needs of witnesses and family

members. Furthermore, due to ongoing demolition in preparation for technology

renovation of the Port Huron courtroom, it is not at all clear that an August trial would be

held there. Likewise, both this case and the parallel state proceeding are set for trial,

with the state tribunal set to commence less than a month after the August 15, 2016

start date in the instant action. The difference is negligible at best.

 But the court finds the remaining factors highly persuasive. First, a failure to

abstain in this case could result in piecemeal litigation. “Piecemeal litigation occurs

when different courts adjudicate the identical issue, thereby duplicating judicial effort

and potentially rendering conflicting results.” Romine, 160 F.3d at 341. Here, both the

state and federal actions appear to revolve around whether the discharge of

Defendant’s firearm was negligent or intentional. Nevertheless, the burden of proof

differs in the two jurisdictions. In order to prevail on the excessive force claim in federal

court, Plaintiff must prove that Defendant fired his weapon intentionally. However, in

state court, Plaintiff need only show proof of gross negligence. As a result, a resolution

here would not preclude the state action from going forward, whereas Plaintiff concedes

that the inverse would likely “render this case moot or otherwise obviate the need to

litigate this case to its conclusion in federal court.” (Dkt. # 51, Pg. ID 825 (quoting Crown

Enters., Inc. V. Lambert, No. 06-13206, 2006 WL 2844445, at *3 (E.D. Mich. Sept. 29,

2006)).) As such, federal abstention could prevent the duplication of judicial effort.

Second, the state court obtained jurisdiction over the matter long before the

federal court did. In Romine, the Sixth Circuit found that it was “not inconsequential that

the state court obtained jurisdiction over [Plaintiffs’] state action one month and nine

5

2:15-cv-11252-RHC-RSW Doc # 55 Filed 07/28/16 Pg 5 of 8 Pg ID 887
months, respectively, before [Plaintiffs’] federal actions.” Romine, 160 F.3d at 342.

Here, nearly five years elapsed between the commencement of the state and federal

court actions. In fact, the instant case was filed in federal court only after the parallel

proceeding stalled due to the Detroit bankruptcy and Defendant’s criminal trial.

Third, while this case involves issues of substantive federal law, those issues are

in large part predicated upon issues of state law. As mentioned above, both the state

and federal case turn on whether the discharge of Defendant’s firearm was intentional

or negligent. The determination of such intentionality is the bread and butter of state

tort law, and the court is inclined to defer to the state court’s expertise.

Finally, Defendant has provided no evidence to suggest that the state court

would not adequately protect his federal rights. On the contrary, due to concurrent

jurisdiction over such matters, state courts have a long history of deciding federal

statutory claims under 42 U.S.C. § 1983.

For these reasons, the court will grant Plaintiff’s Motion and stay the case.

The Bates court examined whether a court should dismiss or stay a case after

finding that Colorado River abstention is appropriate. It found a stay to be the preferred

course of action for lower courts, explaining:

Although we have never explicitly prohibited district courts from dismissing

cases when abstaining under Colorado River, issuing a stay of

proceedings has been the general practice. See Romine, 160 F.3d at 338

(affirming a district court stay of a case on the basis of Colorado River

abstention); Holmes Financial Associates, Inc. v. Resolution Trust Corp.,

33 F.3d 561, 562 (6th Cir. 1994) (same). In similar circumstances, other

circuits have generally required district courts to issue a stay rather than

dismiss without prejudice. 

Because Colorado River abstention is temporary, federal courts will often

eventually hear a case they have abstained from deciding. Colorado River

abstention is temporary because all the reasons for it dissipate once the

6

2:15-cv-11252-RHC-RSW Doc # 55 Filed 07/28/16 Pg 6 of 8 Pg ID 888
state court proceedings have run their course. At that point, if any party

still has a claim for which it is entitled to a federal forum, and it is not

barred by res judicata or a similar doctrine, it may return to federal court.

Because, under Colorado River abstention, the parties in the state and

federal proceedings need not be identical, the federal suit will normally not

be barred by res judicata and federal litigation may resume if the state

courts do not moot the issue on state law grounds.

We conclude that a stay is the best way to effectuate Colorado River

abstention. Functionally, the difference between a stay and dismissal

without prejudice is small, but staying the proceedings does offer a few

advantages. Although not an issue in this case, it will prevent statute of

limitations problems. Requiring refiling also imposes small, but non-zero,

costs and delay upon the plaintiff. A stay of proceedings is also more

efficient from the court's point of view, since the post-abstention case

would stay with the original judge, who is familiar with the case, rather

than be assigned a new judge. An indefinite stay of proceedings also

imposes no additional burden to the court. We therefore join other circuits

in requiring a stay of proceedings rather than a dismissal in Colorado

River abstention cases.

 

Bates v. Twp. of Van Buren, 122 F. App’x 803, 808-809 (6th Cir. 2004) (citations and

footnotes omitted). Accordingly, this stay is being entered under Colorado River

abstention in deference to the parallel state court proceedings. Upon the conclusion of

the proceedings in state court, the court will lift the stay and adjudicate any claims

remaining that are not barred by res judicata or a similar doctrine. The objective

circumstances of the later-filed federal action in this case and a balancing of the

Colorado River factors strongly favor abstaining. 

Having resolved the Motion under Colorado River, the court need not consider

Plaintiff’s alternative argument for voluntary dismissal.

III. CONCLUSION

IT IS ORDERED that the above-captioned matter is STAYED pending resolution

7

2:15-cv-11252-RHC-RSW Doc # 55 Filed 07/28/16 Pg 7 of 8 Pg ID 889
of the parallel state court proceedings. Upon the completion of the state court action,

Plaintiff may move to lift the stay. 

IT IS FURTHER ORDERED that for administrative statistical purposes this case

is CLOSED.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: July 28, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, July 28, 2016, by electronic and/or ordinary mail.

 S/Lisa G. Teets 

Case Manager and Deputy Clerk

(313) 234-5522

S:\Cleland\JUDGE'S DESK\C1 ORDERS\15-11252.WEEKLEY.coloradoriver.jah.RHC1.wpd

8

2:15-cv-11252-RHC-RSW Doc # 55 Filed 07/28/16 Pg 8 of 8 Pg ID 890