In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3254

MEANITH HUON,

Plaintiff-Appellant,

v.

JOHNSON & BELL, LTD., et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 09 C 7877—Blanche M. Manning, Judge.

ARGUED JUNE 14, 2011—DECIDED SEPTEMBER 21, 2011

Before POSNER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Meanith Huon is a lawyer representing himself in this appeal. After he was fired from

his job as an associate at Johnson & Bell, he initiated

two lawsuits against the firm and three of its other attorneys. He filed his first action in state court, asserting

state-law claims of defamation and intentional infliction

of emotional distress resulting from allegedly damaging

annual performance evaluations. Huon’s second suit
2 No. 10-3254

was filed in federal court after his state case had been

dismissed and was pending on appeal. In his federal

suit Huon brought claims under Title VII, 42 U.S.C.

§ 2000e, and 42 U.S.C. § 1981 for discrimination on the

basis of race and national origin, alleging that he was

treated less favorably than white employees because he

did not receive the same employment benefits, assignments, salary, or opportunity for probation before his

discharge. Huon also threw in a supplemental statelaw claim for tortious interference with a prospective

economic advantage.

The district court issued a stay based on the abstention

doctrine in Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976), reasoning that all of

Huon’s claims would be barred by res judicata once the

judgment in the state case became final. Huon has appealed from that order, arguing that his two suits

were not parallel and that the district court abused its

discretion because no exceptional circumstances justified the stay. Although the district court was correct

to suspect that there are problems with Huon’s federal

suit, it chose the wrong remedy for those problems.

We have no choice but to vacate and remand for

further proceedings.

I

Huon lost his job at Johnson & Bell on January 9, 2008;

shortly thereafter, he filed administrative charges with

the Illinois Department of Human Rights and the Equal

Employment Opportunity Commission complaining of
No. 10-3254 3

race and national origin discrimination. Before those

charges were resolved, Huon filed suit in Illinois state

court against the firm and three of its attorneys on

January 8, 2009 (the day before the one-year statute of

limitations expired for one of his state-law claims). Huon

alleged that the three attorneys defamed him when

they made false statements about his work during an

annual performance evaluation that later was shared

with other partners. These statements included comments that Huon “requires a higher level of supervision,”

that someone of his “experience should be working

more independently,” and that he had “deadline problems” and was “incompetent.” Huon also asserted that

the attorneys’ statements constituted intentional infliction of emotional distress and that Johnson & Bell, as

their employer, was vicariously liable for their alleged

misconduct. The defendants moved to dismiss for

failure to state a claim and also requested that the

court strike “designated immaterial matter” from Huon’s

complaint, namely, allegations that the attorneys rarely

if ever gave Huon substantive work to do and the assertion that “Johnson & Bell discriminated against and

terminated Huon on the basis of his race, national origin,

and age.” The defendants charged that these allegations

were “irrelevant and ha[d] nothing to do with Huon’s

counts for defamation.”

The state court granted the defendants’ motion to

dismiss in July 2009. It concluded that Huon’s claims

were defective because the allegedly defamatory statements, which the court did not find to be extreme or

outrageous, were opinions protected by qualified or
4 No. 10-3254

absolute privilege. Huon appealed, and almost two

years later that case apparently remains pending in the

state appellate court.

On September 22, 2009, the EEOC issued Huon a right-tosue letter, and he followed up on December 21 by filing

the federal action now before us, while his state suit

was pending on appeal. In his federal complaint, Huon

asserted claims of discrimination based on race and

national origin, as well as a state-law claim for tortious

interference with a prospective business relationship.

He named as defendants the firm of Johnson & Bell,

firm president William Johnson, and two of the three

attorneys from the state suit. The defendants again

moved to dismiss both counts for failure to state a

claim, this time arguing that Huon’s complaint was long

on conclusions and short on facts. Alternatively, the

defendants moved to stay the state-law claim under the

Colorado River abstention doctrine. The supplemental

state claim, the defendants contended, is based on the

same factual allegations (the unfavorable performance

evaluation) as Huon’s claims in state court and will be

barred by res judicata if the state court’s decision is

affirmed on appeal.

Before Huon could respond to the defendants’ motion,

the district court sua sponte ordered supplemental

briefing on “the applicability of the doctrines of claim

splitting and res judicata to this action.” The defendants

responded by now insisting that all of the claims in

Huon’s federal and state lawsuits are based on the

same transactions or events—the unfavorable evaluation
No. 10-3254 5

and subsequent termination—and that res judicata will

bar Huon’s entire federal suit once the defendants have

a final (and favorable) state judgment in hand. See 28

U.S.C. § 1738. Noting that Huon included “general allegations of racial discrimination and bias” in his

state complaint, the defendants argued that the suits

are substantially similar. The defendants also pressed

the district court to stay the federal suit under the

Colorado River abstention doctrine. In his response Huon

argued that the defendants should be estopped from

drawing any conclusion from the allegations of discrimination in his state complaint because they had moved

to strike those allegations as immaterial. There is no

identity of claims between the two suits, Huon continued, because his federal suit “encompasses a broader

scope of misconduct” including less favorable work

assignments, discipline, promotions, salary, and work

conditions, and thus (he thought) res judicata did not

apply. Huon also pointed out that he had to file his

state suit before the one-year statute of limitations ran

on his defamation claim and, at that time, because he

had not yet received his right-to-sue letter from the

EEOC he could not file his discrimination claims in state

court. Huon noted that a stay under Colorado River is

justified only by extraordinary circumstances, which, he

insisted, did not exist in this instance.

The district court decided to stay the federal suit until

the state proceedings reached an end. Applying Illinois’s

test for res judicata, the court reasoned that Huon’s

state and federal claims all arise out of the “same core

of operative facts.” The court explained: 
6 No. 10-3254

[Huon] asserts in both proceedings that at all times

he performed his job in a satisfactory manner. In

his state proceedings, he asserts that because he

performed satisfactorily, the defendants’ performance reviews in which they reported that he

performed unsatisfactorily were defamatory and

caused him emotional distress. In the instant proceeding, he asserts that because he performed satisfactorily, his termination must have been the result

of discrimination, and defendants’ reports that he

performed unsatisfactorily tortiously interfered

with his expectation of continued employment. Because the claims arise from the same core of operative facts, an identity of causes of action exists.

Because of the lack of a final judgment on appeal in the

state suit, however, the district court believed that res

judicata could not yet bar Huon’s federal suit. For

that reason it turned to the Colorado River abstention

doctrine. Citing three of the 10 factors relevant to whether

exceptional circumstances warrant a stay, the court concluded that a stay was appropriate. The court provided

a brief explanation for its decision, reasoning that

allowing the federal case to proceed would result in

piecemeal litigation, that the proceedings in state court

were at an advanced stage, and that the state litigation

had provided Huon an adequate forum to air his claims

of discrimination and tortious interference even though

he had chosen not to do so.
No. 10-3254 7

II

Generally speaking, “the pendency of an action in the

state court is no bar to proceedings concerning the same

matter in the Federal court.” Colorado River, 424 U.S. at

817. The Colorado River doctrine, however, creates a

narrow exception to that rule, allowing federal courts in

some exceptional cases to defer to a concurrent statecourt case as a matter of “wise judicial administration,

giving regard to conservation of judicial resources

and comprehensive disposition of litigation.” Id. (citation

and quotation marks omitted). Nonetheless, the Supreme Court has emphasized that federal courts have

a “virtually unflagging obligation” to exercise the jurisdiction that Congress has given them. Id. The Court has

cautioned that the task of the district court “is not to

find some substantial reason for the exercise of federal

jurisdiction” but instead “to ascertain whether there

exist ‘exceptional’ circumstances, the ‘clearest of justifications,’ . . . to justify the surrender of that jurisdiction.” Moses

H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-

26 (1983). This court reviews a district court’s decision

to stay a case under the Colorado River doctrine for abuse

of discretion. Tyrer v. City of S. Beloit, Ill., 456 F.3d 744,

751 (7th Cir. 2006). There is a presumption against abstention, id.; AXA Corp. Solutions v. Underwriters Reins.

Corp., 347 F.3d 272, 278 (7th Cir. 2003), and if there is

any “substantial doubt” that the concurrent state proceeding will be “ ‘an adequate vehicle for the complete

and prompt resolution of the issues between the parties,’ ” a stay would be a “ ‘serious abuse of discretion,’ ” AAR Int’l, Inc. v. Nimelias Enters. S.A., 250 F.3d
8 No. 10-3254

510, 518 (7th Cir. 2001) (quoting Moses H. Cone, 460 U.S.

at 28).

To determine whether a stay is appropriate, a district

court must first evaluate whether the federal and state

cases are parallel. Adkins v. VIM Recycling, Inc., 644 F.3d

483, 498 (7th Cir. 2011). In other words, the court must

ascertain whether “substantially the same parties are

contemporaneously litigating substantially the same

issues in another forum.” Clark v. Lacy, 376 F.3d 682, 686

(7th Cir. 2004) (quoting Interstate Material Corp. v. City of

Chicago, 847 F.2d 1285, 1288 (7th Cir. 1988)). The critical

question is whether there is a “ ‘substantial likelihood

that the state litigation will dispose of all claims

presented in the federal case.’ ” Adkins, 644 F.3d at 499

(quoting Clark, 376 F.3d at 686). If the proceedings are

not parallel, then the Colorado River doctrine does not

apply and a stay is not proper. AAR Int’l, 250 F.3d at 518.

If there is any doubt that cases are parallel, a district

court should not abstain. Id. at 520.

Huon argues that the district court erred in concluding

that his two suits are parallel. He points out that the

named defendants are slightly different in each one and

the discrimination claims were not litigated in state

court. In response the defendants, applying the test for

res judicata, argue that the same parties are involved

because firm president Johnson, the only new defendant

in the federal suit, is in privity with the defendant firm.

The defendants also suggest that the cases involve the

same claims because, they contend, Huon’s federal

discrimination claims arise out of the “same core of

operative facts.”
No. 10-3254 9

Huon has the better of this argument. Given the

rigorous standards for this form of abstention, the

district court’s explanation for its findings is insufficient

to support a stay. The court was probably misled by

the defendants’ emphasis on the test for res judicata,

under which the central question is whether the federal

and state claims arise from the same core of operative

facts. Colorado River abstention, in contrast, focuses on

the more practical question whether the state case is

likely to dispose of the discrimination and tortious interference claims that Huon brought in federal court. Had

the court marched through all of the considerations

that inform a Colorado River decision, it is possible that

this error might have been avoided. See Colorado River,

424 U.S. at 818-19; Tyrer, 456 F.3d at 754-55; TruServ

Corp. v. Flegles, Inc., 419 F.3d 584, 592-93 (7th Cir. 2005);

AAR Int’l, 250 F.3d at 521.

Moreover, even under the arguably more liberal

analysis for claim preclusion, the district court’s

reasoning falls short. The court concluded that the two

cases arise from the same facts because Huon alleges

in both suits that he performed his job satisfactorily;

thus, the common theme underlying all of his claims is

that the defendants’ defamatory statements or other

adverse actions must be actionable. This explanation is

a bit too telegraphic for us; we cannot see exactly what

factual overlap the court found to exist between the two

cases. The federal court was required to follow Illinois’s

law of claim preclusion, see 28 U.S.C. § 1738, and Illinois

imposes three requirements for res judicata to apply:

“(1) there was a final judgment on the merits rendered
10 No. 10-3254

by a court of competent jurisdiction, (2) there is an

identity of cause of action, and (3) there is an identity of

parties or their privies.” River Park, Inc. v. City of

Highland Park, 703 N.E.2d 883, 889 (Ill. 1998), citing

Downing v. Chicago Transit Auth., 642 N.E.2d 456 (Ill. 1994).

River Park adopted a transactional approach to the

second of these elements, under which “the assertion of

different kinds or theories of relief still constitutes a

single cause of action if a single group of operative facts

give rise to the assertion of relief.” 703 N.E.2d at 891

(internal quotation marks omitted). Huon essentially

asserts that his claims do not arise out of a single group

of operative facts. Although his claims for defamation

and emotional distress center on the negative performance evaluation, his federal discrimination claims

(he says) encompass a much broader scope of alleged

misconduct over a longer period of time, including unfavorable treatment regarding assignments, promotions,

disciplinary measures, salary, and work conditions. We

do not know whether Illinois would find impermissible

claim-splitting in this kind of situation, in which the

first case appears to rest on a subset of the facts that

support the second case. This question should be

explored on remand.

Returning to the district court’s actual rationale—

Colorado River—we explain why this case is not a

proper candidate for abstention. The first question, as

we already have indicated, is whether the two suits

are “parallel.” One important factor is whether both

cases would be resolved by examining largely the same

evidence. Fru-Con Constr. Corp. v. Controlled Air, Inc., 574
No. 10-3254 11

F.3d 527, 536 (8th Cir. 2009); Tyrer, 456 F.3d at 752. Although all of Huon’s claims relate to alleged mistreatment he suffered at work, the evidence necessary to

establish defamation or emotional distress would be

different from that required to prove discrimination. See

Woodford v. Cmty. Action Agency of Greene County, Inc., 239

F.3d 517, 523-24 (2d Cir. 2001) (concluding that, for purposes of Colorado River, federal Title VII suit was not

duplicative of state suit claiming intentional infliction

of emotional distress due to evidentiary differences

between claims). Huon’s discrimination claims likely

would require depositions from other employees,

evidence of a broader scope of alleged misconduct,

and a showing that he was treated differently than similarly situated employees. None of this would necessarily bear on his defamation claim. As the defendants

originally suspected, it is unlikely that allegations of

discrimination would come up in his state suit, despite

Huon’s passing references in his state complaint to discriminatory treatment. In its order dismissing Huon’s

state case for failure to state a claim, the state trial

court did not mention any potentially discriminatory

conduct or even respond to defendants’ motion to

strike those references.

Even assuming that Huon’s suits are parallel, the

district court also should have considered whether exceptional circumstances justified abstention. Tyrer, 456

F.3d at 751 (describing two-part inquiry required by

Colorado River). As guidance, this court has identified 10

nonexclusive factors that a district court should

carefully weigh in deciding whether to abstain. Adkins,

644 F.3d at 500-01. These factors include:
12 No. 10-3254

(1) whether the state has assumed jurisdiction over

property; (2) the inconvenience of the federal forum;

(3) the desirability of avoiding piecemeal litigation;

(4) the order in which jurisdiction was obtained by

the concurrent forums; (5) the source of governing

law, state or federal; (6) the adequacy of state-court

action to protect the federal plaintiff’s rights; (7) the

relative progress of state and federal proceedings;

(8) the presence or absence of concurrent jurisdiction;

(9) the availability of removal; and (10) the vexatious

or contrived nature of the federal claim.

Id. (quoting Tyrer, 456 F.3d at 754). Although no one

factor is determinative, Colorado River, 424 U.S. at 818,

the Supreme Court has cautioned that “the presence of

federal-law issues must always be a major consideration

weighing against surrender,” Moses H. Cone, 460 U.S. at

26. Furthermore, because of the presumption against

abstention, absent or neutral factors weigh in favor of

exercising jurisdiction. See Woodford, 239 F.3d at 522;

Murphy v. Uncle Ben’s, Inc., 168 F.3d 734, 739 (5th Cir. 1999).

Here, the district court’s consideration of these factors

was inadequate. After restating the test, the court addressed only the problem of piecemeal litigation, the

advanced stage of the state litigation, and the adequacy

of the state court as a forum for Huon’s federal discrimination claims. But none of these factors was given

more than a one-sentence explanation, and so even if

the district court was correct that these factors weigh

strongly in favor of abstention, the court failed to

explain why they matter in this particular case.
No. 10-3254 13

Huon challenges each of the district court’s reasons,

arguing that an Illinois circuit court is not an adequate

forum because it will not hear “independent actions

for civil rights,” that the state proceeding was not advanced because his suit was dismissed on the complaint, and that he was forced to split his claims because

he had not yet received a right-to-sue letter when the

statute of limitations on one of his state claims was

about to expire. But Huon is wrong on all three counts.

Illinois circuit courts have concurrent jurisdiction over

claims arising under Title VII and § 1981. Yellow Freight

Sys., Inc. v. Donnelly, 494 U.S. 820, 826 (1990); Martinez

v. California, 444 U.S. 277, 283 n.7 (1980); Garcia v. Vill.

of Mt. Prospect, 360 F.3d 630, 639 (7th Cir. 2004). The

question whether the state litigation has reached an

advanced stage turns not on the amount of discovery

completed but on how far the state court has progressed

toward a final resolution. Moses H. Cone, 460 U.S. at 21.

And this court has held that, although the pendency of

a state-court suit cannot alone justify abstention, that

factor should be given more weight if the state case is

already on appeal. Hearne v. Bd. of Educ. of the City of

Chicago, 185 F.3d 770, 778 (7th Cir. 1999). Finally, the

fact that Huon had not yet received his right-to-sue

letter did not prevent him from including his federal

discrimination claims in his state suit. Illinois permits

litigants to file supplemental pleadings “setting up

matters which arise after the original pleadings are

filed,” if the new material is added within a reasonable

time and the court gives leave. See 735 ILCS 5/2-609;

see also Brzostowski v. Laidlaw Waste Sys., Inc., 49 F.3d 337,
14 No. 10-3254

339 (7th Cir. 1995) (explaining that plaintiff could have

asked for stay in state court until right-to-sue letter

was issued). Whether Huon was required to add the

federal claims is another matter that has more to do

with claim preclusion than abstention. See generally

Woodford, 239 F.3d at 525 (concluding that plaintiffs

were “plainly entitled” to bring Age Discrimination in

Employment Act and Title VII claims in federal court

even though they could have added these claims to

pending state case).

Even if these three factors weigh in favor of abstention,

however, we are still missing the necessary explanation from the district court’s decision justifying the relinquishment of its jurisdiction. See Tyrer, 456 F.3d at 754-

55 (noting that “what is required is a carefully considered judgment taking into account both the obligation

to exercise jurisdiction and the combination of factors

counseling against that exercise”); AXA Corp. Solutions,

347 F.3d at 278-79 (praising district court’s careful consideration of all 10 factors and affirming denial of stay);

AAR Int’l, 250 F.3d at 518 (noting that district court

must “exercise its discretion under the standards prescribed by Colorado River” to avoid reversal); Sverdrup

Corp. v. Edwardsville Cmty. Unit Sch. Dist. No. 7, 125 F.3d

546, 550 (7th Cir. 1997) (“We are obligated, however, to

require that the record demonstrate that the district

court’s decision was the product of careful weighing of

the factors pertinent to the case at hand.”); Burnett v.

Physician’s Online, Inc., 99 F.3d 72, 77 (2d Cir. 1996) (reversing district court’s stay and noting that although

court gave “lucid statement of practical and equitable

considerations” it did not sufficiently address the
No. 10-3254 15

Colorado River factors). For example, the court’s failure

to address the other seven Colorado River factors led it to

overlook the significant interest that federal courts have

in Title VII and § 1981 discrimination claims. See

Woodford, 239 F.3d at 525; Murphy, 168 F.3d at 739.

It appears that the real motivation behind the district

court’s decision was its guess that res judicata would

eventually preclude all of Huon’s claims in federal court.

But this lay in the future; the court’s anticipation of the

outcome in the state appellate court was not enough to

justify abstention. See Woodford, 239 F.3d at 525; Murphy,

168 at 739; Burnett, 99 F.3d at 75-77. Abstention requires

more than the pendency of another lawsuit, because

judicial economy will always be an issue when there is

concurrent litigation. Knowing this, the Supreme Court

nevertheless has admonished district judges not to stay

or dismiss actions without strong justification to do so.

Colorado River, 424 U.S. at 813. Given the high hurdles

for abstaining in the face of an “unflagging obligation”

to exercise the jurisdiction Congress has conferred, id.

at 817, we must return this case to the district court

for another look.

It may be that Huon eventually will face the possibility that his federal suit is barred by claim preclusion,

if the dismissal of his state complaint is upheld on appeal. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

544 U.S. 280, 292-94 (2005); Carr v. Tillery, 591 F.3d 909,

916 (7th Cir. 2010); Negrón-Fuentes v. UPS Supply Chain

Solutions, 532 F.3d 1, 8 (1st Cir. 2008); Bass v. Butler, 258

F.3d 176, 178-79 (3d Cir. 2001). But when Huon chose to
16 No. 10-3254

initiate separate suits in state and federal courts, he

accepted the risk that an unfavorable judgment in the

case that finished first might preclude his litigation in

the other forum. Although at first blush it may seem

inefficient to allow both cases to proceed, the Colorado

River doctrine focuses on a federal court’s obligation to

exercise its jurisdiction, see Adkins, 644 F.3d at 496, with

preclusion doctrines operating as a backstop to ensure

that the concurrent proceedings do not result in inconsistent judgments. See Stewart v. Western Heritage Ins.,

438 F.3d 488, 492 (5th Cir. 2006); Gregory v. Daly, 243 F.3d

687, 702 n.13 (2d Cir. 2001) (citing Spring City Corp. v. Am.

Bldgs. Co., 193 F.3d 165, 172 (3d Cir. 1999); Woodford, 239

F.3d at 525 (quoting Kline v. Burke Constr. Co., 260 U.S. 226,

230 (1922)). The Colorado River doctrine is not intended

to give defendants the upper hand by stalling the

federal case to wait for a favorable final judgment in

the state proceeding that then can be used to bar the

plaintiff’s claims in federal court.

Huon’s federal case has been languishing for almost

two years on the assumption that the Illinois circuit

court’s judgment will someday be affirmed, but that

outcome is far from certain. We therefore VACATE

the district court’s stay and REMAND this case for

further proceedings consistent with this order.

9-21-11