Without the Georgia court’s ruling on the motion to dismiss, this Court is unable to
determine if the first-to-file rule should be followed or if the plaintiffs have presented a compelling
circumstance to allow this action to proceed. Accordingly, defendants’ Motion to Dismiss is denied
as premature. Colborne, 1995 WL 470226 at * 1 (denying motion to dismiss because the jurisdiction
of the court of the first-filed suit was in question).

In the alternative, defendants seek to stay the present case pending the disposition of the
Georgia action. The court “has broad discretion to stay proceedings as an incident to its power to
control its own docket.” Clinton y. Jones, 520 U.S. 681, 706 (1997) (citation omitted).

The reasonable course in the present case is to stay the action until the Georgia court decides
the jurisdiction question before it. If the Georgia court grants the motion and dismisses that case,
then this Court will then consider proceeding with this action. If the Georgia court denies the motion
to dismiss, then this Court can consider whether the present case should be dismissed. See Colborne,
1995 WL 470226 at * 1 (finding that staying the second filed suit appropriate when a motion to
dismiss for lack of jurisdiction was pending in the first-filed action).

For the reasons stated above, defendants’ Motion to Dismiss is denied, and defendants’
Motion to Stay is granted. The parties are instructed to submit the Georgia court’s ruling on the

presently pending motion to dismiss to this Court as soon as it is issued.

Dated:

United/States District Judge


Minute Qrder Ferw (06/973

United States District Court, Northern District of Ilinois

Nai of Assigned Ji Sitting Judge if Oth
yy Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 01 € 899 DATE 6/13/2001
CASE TOM CACCAMO, et al vs. GREENMARINE HOLDINGS
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.)

(11)

MOTION:

DOCKET ENTRY:

(1) im Filed motion of { use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Q Answer brief to motion due___- Reply to answer briefdue__

(4) Qo Ruling/Hearing on__set for__at

(5) o Status hearing[held/continued to] [set for/re-set for] on__set for____at

(6) Qo Pretrial conference[held/continued to] [set for/re-set for] on _ set for at.

(7) o Trial{set for/re-set for}on___at

(8) a {Bench/Jury trial] [Hearing] held/continued to__at

(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OGeneral Rule21 O FRCP41(a)(1) O FRCP41(a)(2).

(0) «of [Other docket entry] Enter Memorandum Opinion And Order. Defendants’ motion to dismiss is

denied, Defendants’ motion to stay is granted. The parties are instructed to submit the Georgia court’s
ruling on the presently pending motion to dismiss to this Court as soon as it is issued. Status hearing is

held and continued to August 15, 2001 at 9:30 a.m.

ig [For further detail see order (on reverse side offattached to) the original minute order.]

No notices required, advised in open court.

No notices required.
rea number of notices.

Notices mailed by judge’s staff.

Notified counsel by telephone. JUN 1,4, 2001

Docketing to mail notices. on
docketing ity initiats

Mail AO 450 form. CN)

Copy to judge/magistrate judge.

FILED FOR DOC ING
date sie notice
courtroom 144 4, att
LG deputy’s GO) JUN 13 PH 3! 58
initials
Date/time received in
central Clerk's Office maling deputy nial

wO



DOCKETED

UNITED STATES DISTRICT COURT JUN 1 4 200

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

TOM CACCAMO, JOHN FLESHER, RICHARD
KOLB, and CY WERDA on behalf of themselves
and all other similarly situated,

Plaintiffs, No. 01 C 0899
v. Judge John W. Darrah
GREENMARINE HOLDINGS LLC, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiffs, former employees of Outboard Marine Corporation (OMC), filed a class action
suit against defendants, alleging defendants violated the Worker Adjustment and Retraining
Notification Act (WARN), 29 U.S.C. §§ 2101-2109. Before the Court is defendants’ Motion to
Dismiss or, In the Alternative, to Stay the Proceedings.

Plaintiffs allege that, in 1997, Greenmarine acquired and assumed control of OMC. In
December 2000, plaintiffs’ employment with OMC was terminated without warning. In total,
approximately 6,500 employees lost their jobs with OMC during this period. That same month,
OMC filed for bankruptcy in the United States Bankruptcy Court for the Norther District of Illinois.

On February 1, 2001, a class action suit alleging a violation of WARN was filed in the
Northern District of Georgia on behalf of all the OMC employees who were terminated without
cause in December 2000 (Georgia action). On February 8, 2001, plaintiffs in the present suit filed
this action in the Northern District of Illinois on behalf of all former OMC employees terminated

without prior notice in December 2000.


In April 2001, the defendants in the Geogia action filed a motion to dismiss that complaint,
arguing the Georgia court did not have jurisdiction over the defendants. On April 12, 2001, the
present motion was filed in this district. On May 1, 2001, the plaintiffs in the Georgia action filed
a motion for class certification. The Georgia plaintiffs’ response to the motion to dismiss was due
May 11, 2001.

Defendants argue that this suit should be dismissed to conserve judicial resources since the
Georgia action was filed first. Plaintiffs do not dispute that the Georgia action and this case are
mirror-image suits. Plaintiffs argue that the case should not be dismissed because of the likelihood
that the Georgia action will be dismissed for lack of jurisdiction.

A federal court has a great deal of latitude and discretion to dismiss a suit for reasons of wise
judicial administration. Tripple Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 629
(7" Cir. 1995). Generally, when mirror-image suits are filed in two federal districts, the first case
takes priority. However, the Seventh Circuit does not espouse a rigid “first-to-file” rule. Tempco
Elec. Heater Corp. v. Omega Eng’g, Inc., 819 F.2d 746, 750 (7" Cir. 1987). Instead, there is a
rebuttable presumption that the first case that establishes jurisdiction should be allowed to proceed,
and the second case be dismissed. Asset Allocation & Management Co. v. Wesern Employers Ins.
Co., 892 F.2d 566, 573 (7" Cir. 1989) (Asset); Northwest Airlines, Inc. v. American Airlines, Inc.,
989 F.2d 1002, 1004 (8" Cir. 1993). The plaintiff bears the burden of showing compelling
circumstances or an imbalance of convenience to overcome the presumption that the first-filed suit
should proceed. Such circumstances can be shown if it can be demonstrated that jurisdiction is
unobtainable. See Asset, 892 F.2d at 573; Colborne v. MC Retail Foods, 1995 WL 470226 (N.D.II.

Aug. 7, 1995) (Colborne).