IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BRYTON PROPERTIES LLC, 

ROCKWELL SERIES,

Plaintiff,

v.

SARAH CUDNIK,

Defendant.

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Case No. 20 C 3686

Judge Joan H. Lefkow

OPINION AND ORDER

Bryton Properties LLC, Rockwell Series (“Bryton”) has filed suit against Sarah Cudnik 

for an alleged breach of her guaranty of a lease between Bryton and Kids’ Work Chicago, Inc.

(Dkt. 1.) In a concurrent proceeding in state court, Bryton seeks possession of the property and 

rental payments due under the lease. (Dkt. 10-1 at 187.) Cudnik now moves for a stay of this 

federal proceeding under the Colorado River abstention doctrine. (Dkt. 10.) For the reasons 

stated below, the motion to stay is granted.

1

BACKGROUND

In 2011, Kids’ Work entered into a lease with Bryton to operate a child-care business in 

Chicago. (Dkt. 1 ¶ 9.) Cudnik, President of Kids’ Work, executed a personal guaranty of the 

lease. (Id. ¶ 10.) In March 2020, due to the pandemic known as COVID-19, the Governor of 

Illinois issued a “Stay-at-Home Order,” preventing schools from meeting in-person. (Id.) Kids’

Work had to suspend all operations until May, when it reopened with limited capacity. (Id. at 9.)

1 The court has jurisdiction under 28 U.S.C. § 1332(a) because complete diversity exists and the 

amount in controversy exceeds $75,000, and venue is proper under 28 U.S.C. § 1391 because the events 

giving rise to Bryton’s claims occurred in this district.

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Having lost its revenue stream, Kids’ Work failed to pay Bryton the full amount due under the 

lease. (Dkt. 10-1 Exh. 3.)

In June 2020, Bryton filed an action in the Circuit Court of Cook County for forcible 

entry and detainer (eviction). (Id.) In that action, which remains pending, Bryton seeks 

possession and past-due rent. (Id.) Kids’ Work has answered and raised affirmative defenses and 

counterclaims alleging, among other things, that the Stay-at-Home Order constituted a “casualty” 

under the Lease that abated its obligation to pay rent. (Dkt. 10-1 Exh. 1 at 7–35.) The eviction 

action appears not to be removable because both Kids’ Work and Bryton are citizens of Illinois.

(Dkt. 1 ¶ 6; dkt. 1 Exh. 1 at 1.)

The week after filing its complaint in state court, Bryton filed this action in federal court, 

alleging that Cudnik (a citizen of Wisconsin) breached her guaranty by failing to satisfy Kids’ 

Work’s obligations under the lease. (Dkt. 1.) In response, Cudnik has asked this court to stay the 

federal action under the Colorado River abstention doctrine. (Dkt. 10.)

LEGAL STANDARD

The Seventh Circuit “recognize[s] a general presumption against abstention.” AXA Corp.

Sols. v. Underwriters Reinsurance Corp., 347 F.3d 272, 278 (7th Cir. 2003) (citing Sverdrup

Corp. v. Edwardsville Cmty. Unit Sch. Dist. No. 7, 125 F.3d 546, 549–50 (7th Cir. 1997)). The 

Colorado River abstention doctrine applies, therefore, to “rare cases in which the federal court 

may decline to exercise its jurisdiction in deference to a concurrent state-court proceeding.” 

DePuy Synthes Sales, Inc. v. OrthoLA, Inc., 953 F.3d 469, 475 (7th Cir. 2020). Deference to a 

state-court proceeding may be appropriate when it would promote “[w]ise judicial 

administration, giving regard to conservation of judicial resources and comprehensive 

disposition of litigation.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 

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817, 96 S. Ct. 1236 (1976) (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 

180, 183, 72 S. Ct. 219 (1952)) (internal quotation marks omitted). The Seventh Circuit employs 

a two-step analysis in Colorado River cases: First, the court asks whether the concurrent actions 

in state and federal court are parallel; if so, the court then asks “whether the necessary 

exceptional circumstances exist to support a stay or dismissal.” DePuy Synthes Sales, Inc., 953 

F.3d at 477 (citing LaDuke v. Burlington N. R.R., 879 F.2d 1556, 1559 (7th Cir. 1989)).

ANALYSIS

I. Parallel Proceedings

“Two suits are considered parallel ‘when substantially the same parties are 

contemporaneously litigating substantially the same issues in another forum.’” Id. (quoting Clark 

v. Lacy, 376 F.3d 682, 686 (7th Cir. 2004)). “Formal symmetry is unnecessary, as long as there 

is a ‘substantial likelihood that the state litigation will dispose of all claims presented in the 

federal case.’” Id. at 477–78 (quoting Clark, 376 F.3d at 686). “[A] district court should examine 

whether the suits involve the same parties, arise out of the same facts and raise similar factual 

and legal issues.” Tyrer v. City of S. Beloit, Ill., 456 F.3d 744, 752 (7th Cir. 2006) (citing Clark, 

376 F.3d at 686). The court must focus on “the parties’ litigation interests in the two lawsuits.” 

Clark, 376 F.3d at 686. The parties and issues in this case are “substantially the same” as those in 

the state case because, in each, Bryton sues a defendant who is liable only if Kids’ Work 

breached the lease. Although Cudnik is not a party to the eviction action, her interests are “nearly 

identical” to those of Kids’ Work. Clark, 376 F.3d at 686; cf. Caminiti & Iatarola, Ltd. v. Behnke 

Warehousing, Inc., 962 F.2d 698, 700–01 (7th Cir. 1992) (holding that a probate estate and a 

corporation that the estate partly owned were “substantially the same” because “their interests in 

the dispute . . . are nearly identical”).

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Further, Cudnik and Kids’ Work are “substantially the same” because their liability is 

coextensive. In Illinois, “the liability of a guarantor is limited by and is no greater than that of the 

principal debtor and if no recovery could be had against the principal debtor, the guarantor would 

also be absolved of liability.” Riley Acquisitions, Inc. v. Drexler, 946 N.E.2d 957, 963, 408 Ill. 

App. 3d 397 (2011) (quoting Edens Plaza Bank v. Demos, 660 N.E.2d 1, 6, 277 Ill. App. 3d 201

(1995)) (internal quotation marks omitted). “Although the language of a guaranty agreement 

ultimately determines a specific guarantor’s liability, the general rule is that discharge, 

satisfaction, or extinction of the principal obligation also ends the liability of the guarantor.” Id. 

(quoting Edens Plaza Bank, 660 N.E.2d at 6) (internal quotation marks omitted).

Here, the guaranty provides that Cudnik is liable only to the extent that Kids’ Work is:

Cudnik “guarantees ... the full and prompt payment of Rent, and any and all other sums and 

charges payable under the Lease by the Tenant ... [and] the full and timely performance and 

observance of all of the covenants, terms, conditions and agreements under the Lease provided to 

be performed and observed by the Tenant ....” (Dkt. 1 Exh. 2 (emphasis added).) The same is 

true of Cudnik’s promise to pay “all damages which Landlord may suffer in consequence of any 

default or breach under the Lease or this Guarantee.” (Id.) By the plain language of the 

guaranty, if Kids’ Work breached the lease, Cudnik is responsible, and if Kids’ Work did not 

breach the lease, Cudnik did not breach her guaranty.

This connection makes the parties and issues in state and federal court substantially the 

same. As one court in this district has persuasively explained, where “claims on the guaranty are 

only valid if its claims under the ... Loan Agreement are themselves valid,” and liability 

“depends directly on the validity and enforceability” of the principal agreement, actions against a 

guarantor and a principal obligor are parallel. Corus Bank, N.A. v. de Guardiola, 593 F. Supp. 2d 

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991, 994 (N.D. Ill. 2008). Bryton alleges in this case that Cudnik is liable only because Kids’ 

Work is liable. (Dkt. 1 ¶¶ 12–13.) These are the same allegations that Bryton must prove to 

obtain both possession and rent from Kids’ Work. (Dkt. 10-1 Exh. 3 ¶¶ 11–12, 18–19.) By the 

same token, Cudnik will defend against liability on the same grounds as Kids’ Work, primarily 

by asserting that the Stay-at-Home Order was a “casualty” under the lease, excusing Kids’ Work 

from paying “Rent.” (Dkt. 10-1 Exh. 1 at 7–35.) Because both Bryton’s rights to relief and the 

defendants’ defenses turn on the same issues in the state and federal actions, there is a substantial 

likelihood that the state court’s resolution of those issues will resolve Cudnik’s liability in this 

case. Thus, the federal breach of guaranty action and state breach of lease action are 

“substantially the same.”

Bryton does not persuade the court that differences between the guaranty and the lease 

destroy the parallels between the state and federal cases. First, Bryton argues that Cudnik may be 

liable even if Kids’ Work is not. The court is not persuaded. Although a creditor may overcome 

the presumption that a guarantor’s liability depends on the principal’s liability, Riley 

Acquisitions, 964 N.E.2d at 964–65, the presumption is strong because “a guarantor ‘is a favorite 

of the law.’” Id. at 965 (quoting Hensler v. Busey Bank, 596 N.E.2d 1269, 1274 (Ill. App. Ct. 

1992)). “A guarantor is to be accorded the benefit of any doubt which may arise from the 

language of the contract, and his liability is not to be varied or extended by construction or 

implication beyond its precise terms.” Id. (quoting Hensler, 596 N.E.2d at 1274) (internal 

quotation marks omitted). Nothing in Cudnik’s guaranty overrides this presumption. She has 

guaranteed performance of Kids’ Work’s obligations under the lease, nothing more, nothing less.

Bryton cites the provision in the guaranty that Bryton “shall have the right to enforce this 

[guaranty] irrespective of whether or not other proceedings or steps are pending or being taken 

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seeking to collect from” Kids’ Work. (Dkt. 14 at 12.) While this provision establishes Bryton’s 

option to pursue payment from Cudnik alone, it does not establish that Cudnik is liable for 

anything other than Kids’ Work’s breaches of the lease. Had Bryton chosen to sue only Cudnik, 

for instance, this court still would have determined whether Kids’ Work breached the lease to 

decide whether Cudnik breached her guaranty. Moreover, Bryton did not exercise its option to 

sue only Cudnik, instead suing both Cudnik in federal court and Kids’ Work in state court, 

asking two courts to address the same issues. The cases are still parallel.

Second, Bryton cites the provision that Cudnik’s liability “shall in no way be affected or 

impaired . . . by any compromise, waiver, settlement, change, subordination, modification or 

disposition of any Guaranteed Payment or Guaranteed Obligation” under the lease. (Dkt. 10 at 

225; dkt. 14 at 12. While this language limits the effect on Bryton’s rights under the guaranty of 

any alternative resolution of the eviction case, it also reinforces the principle that liability under 

the guaranty hinges on whether a payment or obligation is owed under the lease. In other words, 

although Cudnik might still be liable if Bryton settles its dispute with Kids’ Work before the 

state court can resolve the identical issues in that case, that does not make the issues any less 

identical. In any case where Colorado River applies, the state case could end without resolving 

the underlying issues, such as by voluntary dismissal. The appropriate course is to lift the stay if 

that happens, not to refuse a stay in the first place.

Nor does Bryton persuade the court that Colorado River should not apply when the state 

case involves a principal obligor and the federal case involves a guarantor. Bryton cites several 

cases declining Colorado River stays under those circumstances and concludes that Colorado 

River categorically does not apply here. E.g., Wells Fargo Bank, N.A. v. Leafs Hockey Club, Inc., 

No. 13 C 2247, 2013 WL 5433789 (N.D. Ill. Sep. 30, 2013); JLM Financial Investments 4 LLC 

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v. Aktipis, No. 11 C 2561, 2012 WL 74856, at *2 (N.D. Ill. Jan. 9, 2012); Bank of Montreal v. 

McKenzie Methane Corp., No. 93 C 3610, 1993 WL 420985, at *7 (N.D. Ill. Oct. 18, 1993); 

Mitsui Taiyo Kobe Bank, Ltd. v. First Nat. Realty & Dev. Co., 788 F. Supp. 1007 (N.D. Ill. 

1992). But the Seventh Circuit encourages “painstaking comparison of the federal and state 

complaints,” Tyrer, 456 F.3d at 752, and this court will not refuse a stay on such categorical 

grounds. In the cases Bryton cites, the courts held that a stay would force the plaintiff to attempt 

to collect payment from the principal obligor first, essentially nullifying the purpose of the 

guaranty. E.g., JLM, 2012 WL 74856, at *2. In this case, however, both the state and federal 

cases involve the same genuine and substantial contractual dispute about whether any obligation 

exists. This is therefore not a case where Cudnik asks Bryton to wait until a state court inevitably 

rules against Kids’ Work, thereby forcing Bryton to try to collect from Kids’ Work first. Rather,

Bryton cannot collect payment from anyone until some court decides the novel issue of whether 

the Stay-at-Home Order is a “casualty.” The question is whether two courts should decide the 

same issue or whether this court should defer to the state court. 

The court thus concludes that the state and federal actions are parallel.

II. Extraordinary Circumstances

As noted above, if concurrent actions are parallel, the court then asks “whether the 

necessary exceptional circumstances exist to support a stay or dismissal.” DePuy Synthes Sales, 

Inc., 953 F.3d at 477 (citing LaDuke, 879 F.2d at 1559). Ten factors inform the answer to this 

second question: (1) whether “the case concerns rights in property, and if so, whether the state 

has assumed jurisdiction over that property”; (2) the “convenience of the federal forum”; (3) the 

“value in avoiding ‘piecemeal’ or broken-up proceedings”; (4) the “order in which jurisdiction 

was obtained”; (5) the source of governing law; (6) the “adequacy of the state-court action to 

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protect the federal plaintiff’s rights”; (7) the “relative progress of the state and federal 

proceedings”; (8) the “presence or absence of concurrent jurisdiction”; (9) the availability of 

removal; and (10) whether “the federal action is vexatious or contrived.” Id. A district court may 

also consider any “special characteristic of the case before it.” Id.

Because Bryton does not ask this court and the state court to “concurrently assume 

jurisdiction over the same” property, the first factor is not relevant. Tyrer, 456 F.3d at 751. The 

second factor is neutral because both actions have been filed in and are based on events 

occurring in Chicago. (Dkt. 10-1 at 72, 86.) The third factor—avoiding piecemeal or broken-up 

proceedings—weighs strongly in favor of a stay. As the court in DePuy noted, “the danger of 

piecemeal litigation does not turn on formal identity of issues but on concerns about the efficient 

use of judicial resources and the public’s perception of the legitimacy of judicial authority.” 953 

F.3d at 478. “[A] high risk of inconsistent results and wasteful duplication” concerned the court 

and weighed “strongly in favor of abstention.” Id. In this case, if the federal action moves

forward, both this court and the state court would have to ascertain Kids’ Work’s obligations 

under the lease, risking inconsistent results and duplicated efforts.

Factors four and five, likewise, weigh in favor of a stay. The state court obtained 

jurisdiction first, a sequence Bryton chose. Illinois law governs both actions, which weighs in 

favor of abstaining to let the state court interpret its own law. That weight increases because of 

unique legal issues involved: How the state’s response to the COVID-19 pandemic affects leases 

presents novel and important state-law questions. DePuy Synthes Sales, 953 F.3d at 477 

(authorizing district court to consider “a special characteristic of the case before it”).

The sixth factor weighs slightly against a stay because Bryton likely cannot join its 

breach of guaranty claim in its state court action. Illinois statute severely limits claims that can 

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be joined to a forcible entry and detainer action in state court to only those “matters . . . germane 

to the distinctive purpose of the proceeding,” with a special exception for claims for rent. 735 Ill. 

Comp. Stat. 5/9-106. In Twin-City Inn v. Hahne Enters., Inc., 37 Ill. 2d 133, 139 (Ill. 1967), the 

Illinois Supreme Court concluded that an action for breach of guaranty was not “germane” and 

therefore improperly joined. Nonetheless, because Cudnik’s obligations to Bryton under the 

guaranty flow from Kids’ Work’s obligations under the lease, Bryton will have a full and fair 

opportunity to litigate the critical issues that will resolve Cudnik’s liability. Whatever obligations 

the state court finds flowing to Bryton under the lease, those obligations will then be enforceable 

to the full extent provided for under the guaranty. And finally, because eviction actions are so 

narrowly focused, they also resolve quickly, minimizing the length of the stay. Bem I, L.L.C. v.

Anthropologie, Inc., No. 98 C 358, 1999 WL 1212643, at *5 (N.D. Ill. Dec. 14, 1999), aff’d, 301 

F.3d 548 (7th Cir. 2002), and aff’d, 301 F.3d 548 (7th Cir. 2002) (“[T]he purpose of the Illinois 

statute is to provide summary proceedings with a quick resolution on the issue of possession 

only[.]”). The sixth factor therefore weighs only slightly against abstention.

Factors seven, eight, and nine also weigh in favor of abstention. The state court 

proceedings are slightly more advanced than the federal proceedings, as Kids’ Work has 

answered Bryton’s complaint and filed both affirmative defenses and counterclaims. (Dkt. 10-1 

Exh. 1.) While this court sitting in diversity has jurisdiction over the guaranty dispute, the state 

court is capable of exercising jurisdiction over all of the relevant issues, including possession and 

liability under the lease. In a similar vein, the fact that the eviction action cannot be removed to 

federal court (because there is no diversity of citizenship), but must, instead, proceed in state 

court, weighs in favor of a stay. The tenth factor is neutral because there is no indication that the 

federal action is vexatious or contrived.

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On balance, with several factors weighing in favor of abstention and only one weighing 

slightly against, the court finds that exceptional circumstances warrant a stay.

ORDER

Cudnik’s motion to stay (dkt. 10) is granted. The parties shall file a joint status report by 

December 31, 2020, or within seven days after the state court rules on whether Kids’ Work 

breached the lease, whichever comes first.

Date: November 16, 2020 _______________________________

U.S. District Judge Joan H. Lefkow

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