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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SAMUEL KORNHAUSER,

Plaintiff,

vs. Case No. 1:17-cv-00719

NOTTING HILL, LLC, Judge Michael R. Barrett

Defendant.

ORDER

This matter is before the Court on the magistrate judge’s May 14, 2018 Report

and Recommendation (“Report”) (Doc. 13) and Plaintiff’s objections (Doc. 14) thereto.

The Magistrate Judge accurately summarized the factual and procedural 

background of this case, and the same will not be repeated here except as necessary to 

address Plaintiff’s objections.

I. STANDARD OF REVIEW

This Court shall consider objections to a magistrate judge's order on a 

nondispositive matter and “shall modify or set aside any portion of the magistrate 

judge's order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). 

When objections to a magistrate judge’s report and recommendation are received on a 

dispositive matter, the assigned district judge “must determine de novo any part of the 

magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 

72(b)(3). After review, the district judge “may accept, reject, or modify the 

recommended decision; receive further evidence; or return the matter to the magistrate 

judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
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II. ANALYSIS

A. First Objection

First, and foremost, Plaintiff argues that the magistrate judge erroneously 

dismissed this case on abstention grounds, because abstention was not raised by 

Defendants. (Doc. 14, PageID 88-89). Although Plaintiff is correct that Defendants did 

not expressly raise an abstention argument in their motion to dismiss, abstention need 

not be raised by either party. “Indeed, the Supreme Court has indicated that ‘abstention 

may be raised by the court sua sponte.’” Fed. Express Corp. v. Tenn. Pub. Serv. Com., 

925 F.2d 962, 966 (6th Cir. 1991) (citing Bellotti v. Baird, 428 U.S. 132, 143 n.10, 96 S. 

Ct. 2857, 49 L. Ed. 2d 844 (1976)).

Second, Plaintiff offers the alternative argument that the magistrate judge 

improperly balanced the eight Colorado River factors courts must consider when 

deciding whether to abstain. (Doc. 14, PageID 89). “Abstention from the exercise of 

federal jurisdiction is the exception, not the rule.” Colorado River Water Conservation 

Dist. v. United States, 424 U.S. 800, 813 (1976). Under “exceptional” circumstances, “a 

federal district court may abstain from exercising its subject matter jurisdiction due to 

the existence of a concurrent state court proceeding, based on ‘considerations of wise 

judicial administration, giving regard to conservation of judicial resources and 

comprehensive disposition of litigation.’” PaineWebber, Inc. v. Cohen, 276 F.3d 197,

206 (6th Cir. 2001). “The Supreme Court has identified eight factors, four in [Colorado

River], and four in subsequent decisions, that a district court must consider when 

deciding whether to abstain from exercising its jurisdiction due to the concurrent 

jurisdiction of a state court.” Id. These factors are: “(1) whether the state court has 
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assumed jurisdiction 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. (citing Romine v. Compuserve Corp., 160 F.3d 

337, 340-41 (6th Cir. 1998)). “[T]he decision whether to dismiss a federal action 

because of parallel state-court litigation does not rest on a mechanical checklist, but on 

careful balancing of the important factors as they apply in a given case, with the balance 

heavily weighted in favor of the exercise of jurisdiction.” Id. at 207 (citing Moses H. 

Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983)). 

There is no dispute that the first two factors weigh in favor of this Court 

exercising jurisdiction. Both of these factors counsel against abstention because the 

state court has not assumed possession of any res and the federal forum is no less 

convenient than the state forum. Romine v. Compuserve Corp., 160 F.3d 337, 341 

(6th Cir. 1998).

While the first two factors weigh against abstention, the remaining six factors 

strongly tilt the balance in favor of abstention. The third factor favors abstention 

because there is a strong potential for piecemeal litigation if this case proceeds in both 

state and federal courts. Id. (“Piecemeal litigation occurs when different courts 

adjudicate the identical issue, thereby duplicating judicial effort and potentially rendering 

conflicting results.”). With the exception of a request for declaratory relief that could 
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have been raised in state court, Plaintiff’s claims in the present action are identical to his 

counterclaims pending in state court.

As to the fourth factor, “priority [in obtaining jurisdiction] should not be measured 

exclusively by which complaint was filed first, but rather in terms of how much progress 

has been made in the two actions.” PaineWebber, 276 F.3d at 206 (citing Moses H. 

Cone Mem’l Hosp., 460 U.S. at 21). Here, though, the temporal delay between the 

dates on which the state court and the federal court obtained jurisdiction over this 

matter is significant. Defendant Notting Hill, LLC filed its initial complaint against 

Plaintiff Kornhauser in state court in December 2016, and plaintiff filed this federal 

action more than ten months later. Little progress has occurred in either lawsuit due 

largely to Plaintiff Kornhauser’s unsuccessful attempt to remove the state action to 

federal court in January 2017. Plaintiff argues that federal jurisdiction over this dispute 

has thus existed since January 2017, when plaintiff removed the state action here. The 

Court disagrees. When the removed state action was remanded to state court, the 

Court expressly found that it lacked subject matter jurisdiction; thus, this Court did not 

retain, nor did it ever have, jurisdiction over that matter. See Notting Hill, LLC v. 

Kornhauser. S.D. Ohio Case No. 17-cv-00016, Decision and Entry . . . Remanding this 

Case to State Court, Doc. 22 (Black, J.).1 Therefore, the order in which jurisdiction was 

obtained weighs in favor of abstention.

 

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 In finding diversity jurisdiction lacking, Judge Black: (1) rejected Kornhauser’s argument that his 

counterclaims placed the amount in controversy at over $900,000, because Kornhauser’s maximum 

possible recovery under the contract at issue was $25,000; and (2) that, even if Kornhauser’s possible 

recovery were higher, it would make no difference because the value of counterclaims may not be 

included when calculating the amount in controversy for purposes of diversity jurisdiction. (Id. at 235). By 

filing those counterclaims as standalone claims in this action, Plaintiff is attempting to circumvent Judge 

Black’s decision.
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The fifth and sixth factors favor abstention because the claims at issue are 

governed by state law, and the state court action is adequate to protect Kornhauser’s 

interests. The seventh factor to be considered, which is the relative progress of the 

state and federal cases, is of little consequence due to the delay caused by Plaintiff 

Kornhauser’s attempted removal of the state action to federal court. Plaintiff argues that 

the present action is further along than the state action, essentially reasoning that this 

case picks up where the remanded case left off. (Doc. 14, PageID 91). This argument 

again fails to recognize that this Court did not retain jurisdiction (which never existed) 

when the previous action was remanded to state court. 

Finally, the eighth factor—the presence of concurrent jurisdiction—favors 

abstention here because state law governs the parties’ claims and there is no express 

preference under the applicable law for federal litigation. PaineWebber, 276 F.3d at 

208 (citing Moses H. Cone Mem’l Hosp., 460 U.S. at 25, n. 32; Romine, 160 F.3d at 

342). This factor weighs in favor of abstention.

Accordingly, Plaintiff’s first objection is OVERRULED.

B. Second Objection

In lieu of dismissal, Plaintiff offers another alternative argument. Specifically, 

Plaintiff argues that this Court should stay this case until the state action is resolved. 

(Doc. 14, PageID 92). Plaintiff cites two cases to support this proposition. (Id.) (citing 

Superior Beverage Co., Inc. v. Shieffelin & Co., 448 F.3d 910, 913 (6th Cir. 2006), and 

Gray v. Bush, 628 F.3d 779, 785 (6th Cir. 2010)). However, the foregoing cases are 

inapposite. They were decided based on the Burford abstention doctrine, rather than 

the Colorado River abstention doctrine. A federal court may choose to abstain under 
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Burford when exercise of jurisdiction by a federal court would disrupt a state 

administrative process. Superior Beverage, 448 F.3d at 915. The Burford abstention 

doctrine is thus inapplicable to this case. Plaintiff’s claims are governed by Ohio law 

and state court can adequately adjudicate all issues. Thus, Plaintiff’s second objection 

is OVERRULED. 

IV. CONCLUSION

The Court finds the Report (Doc. 13) to be thorough, well reasoned, and correct. 

The Report is ADOPTED in its entirety, and Plaintiff’s Objection (Doc. 14) is 

OVERRULED. Defendant’s motion to dismiss (Doc. 4) is thus GRANTED under Fed. 

R. Civ. P. 12(b)(1).

IT IS SO ORDERED.

________________________

United States District Judge

s/Michael R. Barrett