JONATHAN D. GREENBERG, Magistrate Judge.
Pending before the Court is Defendant MUY Hamburger Partners, LLC's Motion to Dismiss.
On November 13, 2017, pro se Plaintiff Jacqueline D. Anglen (hereinafter "Plaintiff" or "Anglen"), filed a Complaint against MUY Hamburger Partners, LLC, Wendy's Headquarters, and Wendy's Store 3787. (Doc. No. 1 at 1.) Anglen entitled her Complaint "Motion Monetary Compensation to Loss Wages, Motion of Appeal EEOC Discrimination Decision [without] Just Cause, Thereby Prejudice Has Been Shown." (Id.) Therein, Anglen alleges a virtually incomprehensible claim against Defendants. Specifically, the Complaint provides the following:
(Doc. No. 1 at 2, 3.) Several exhibits are attached to Anglen's complaint including (1) a worksheet indicating Anglen was terminated from Wendy's store 3787 on July 1, 2017 due to gross misconduct and insubordination; (2) a worksheet indicating Anglen was terminated from Wendy's store 3787 on July 1, 2017 due to unacceptable attendance; (3) an EEOC Charge of Discrimination form, in which Anglen alleges she was "discriminated against because of [her] age;" (4) an EEOC Intake Questionnaire; (5) an EEOC Decision Not to File a Charge form; and (6) an EEOC Dismissal and Notice of Rights form. (Doc. Nos. 1-2, 1-3, 1-4.)
On the same date, November 13, 2017, Anglen concurrently filed a Complaint in the Cuyahoga County Court of Common Pleas. (Cuyahoga County Case No. CV-17-888950, Docket entry dated 11/13/17.) This Complaint (hereinafter "State Court Complaint"), including its attached exhibits, is identical to the Complaint filed in this Court, with the following additional paragraph:
(Id.) The State Court Complaint also adds one additional defendant, the Equal Employment Opportunity Commission ("EEOC"). (Id.)
On December 7, 2017, Defendant MUY Hamburger Partners, LLC, (hereinafter "Defendant" or "MUY Hamburger") filed this Motion to Dismiss. (Doc. No. 3.)
Generally, the mere existence of a state court action does not bar a federal court from exercising jurisdiction over a proceeding concerning the same subject matter.
If a proceeding does not fall within these three categories, the Supreme Court, in Colorado River, has provided abstention may still be appropriate in certain circumstances, due to "considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation." Id. at 817.
However, before reaching any conclusion as to abstention under Colorado River, a court must initially determine the state court and federal court actions are "parallel proceedings." Preferred Care of Delaware v. Vanarsdale, 676 Fed. App'x 388, 393 (6th Cir. Jan. 13, 2017). Two actions are considered "parallel," when "`the parties are substantially similar' and the claims raised in both suits are `predicated on the same allegations as to the same material facts.'" Id. They need not have a "perfect, or even near-perfect, symmetry of parties and causes of action" to satisfy this threshold requirement. Id. If the state and federal court actions are not parallel, then abstention under Colorado River is not applicable and the analysis ends.
Once a court establishes the state and federal court actions are parallel, the analysis proceeds to determining whether abstention is appropriate. The Supreme Court, in Colorado River and subsequent decisions, has articulated eight factors a court must consider when deciding whether to abstain from exercising jurisdiction due to a concurrent state court proceeding. Romine v. Compuserve Corp., 160 F.3d 337, 340-341 (6th Cir. 1998). The factors are (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) the 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 forum to protect the plaintiff's federal rights; (7) the relative progress of the state and federal court proceedings; and (8) the presence or absence of concurrent jurisdiction. Id. See also PaineWebber, Inc. v. Cohen, 276 F.3d 197, 206 (6th Cir. 2001).
Consideration of these factors is not a "mechanical checklist," but rather, "a 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." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 16 (1983).
In its Motion, Defendant MUY Hamburger asks the Court to dismiss this matter, with prejudice, as it is parallel with the state court proceedings, and the Colorado River factors "weigh in favor of abstention." (Doc. No. 3 at 6, 7.) MUY Hamburger maintains three of the Colorado River factors are "inapplicable," as the matter "does not involve property, both venues are comparably convenient for the parties, and there has been no material progress in either case." (Id. at 7.) MUY Hamburger argues three of the factors are "difficult to assess," as the "specific nature of Plaintiff's claims are unknown," due to the unclear nature of her Complaint. (Id.) MUY Hamburger asserts, however, abstention is appropriate because "there is a substantial risk that this Court and the Cuyahoga County Court of Common Pleas may render conflicting or duplicative decisions," and "Plaintiff filed the State Court Complaint first." (Id.)
For the following reasons, the Court finds abstention is appropriate. As an initial matter, it is clear the state and federal actions are "parallel," as contemplated under the Colorado River doctrine. As noted supra, beyond one additional paragraph in the State Court Complaint, the Complaints in both proceedings are identical. (Doc. No. 1 at 2, 3 and Cuyahoga County Case No. CV-17-888950, Docket entry dated 11/13/17.) The exhibits attached to both Complaints are also identical. (Doc. Nos. 1-2, 1-3, 1-4 and Cuyahoga County Case No. CV-17-888950, Docket entry dated 11/13/17.) The Defendants, beyond one additional Defendant in the state court action, are the same. Anglen also seeks the same relief in both of her Complaints. (Doc. No. 1 and Cuyahoga County Case No. CV-17-888950, Docket entry dated 11/13/17.) The Sixth Circuit has found where parties are substantially similar, and the claims are based upon the same allegations and material facts, the actions may be considered "parallel" for purposes of Colorado River abstention. Romine, 160 F.3d at 340.
Accordingly, and in the absence of any meaningful argument from Plaintiff to the contrary, the Court finds Anglen's state and federal court proceedings are parallel. The next step in the analysis is the weighing of the Colorado River abstention factors. As noted above, MUY Hamburger argues the factors weigh in favor of abstention. Anglen failed to respond to MUY Hamburger's Motion, and therefore, offers no argument with respect to any of the relevant factors.
The Court considers the Colorado River factors as follows. In respect to the first factor, the state has not assumed jurisdiction over any property. As to the second factor, both venues are equally convenient to the parties, as both actions are pending within courthouses located in Cleveland, Ohio. Contrary to MUY Hamburger's argument, however, this does not make the first two factors "inapplicable." Rather, it weighs against abstention. See Romine, 160 F.3d at 341 and PaineWebber, Inc., 276 F.3d at 207 (both finding where the state and federal actions were pending in the same city weighed against abstention.). See also Medical Quant USA, Inc. v. Karns, 2016 WL 6996149 at *4 (N.D. Ohio Nov. 29, 2016)("This Court will follow decisions from the Northern District and Sixth Circuit which have found that in cases where `no property is at issue between the parties, this first Colorado River factor is inapposite, supporting the exercise of jurisdiction by the federal court.")
The third factor, the avoidance of piecemeal litigation, however, weighs in favor of federal abstention. 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. Though the Supreme Court has not prescribed a ranking of the Colorado River factors, it has indicated this factor is of prime importance. Novogroder v. NOM Lima Shawnee, LLC, 2007 WL 2417368 at *2 (N.D. Ohio Aug. 21, 2017). See also Preferred Care of Delaware, 676 Fed. App'x at 395 (describing this factor as "paramount"). However, the mere existence of concurrent litigation does not provide a sufficient reason for a federal court to defer jurisdiction to the state court. Frame v. Humility of Mary Health Partners, 2009 WL 1659138 at *5 (N.D. Ohio June 12, 2009).
Here, there is a clear risk of piecemeal litigation. Anglen has filed the same action, against the same defendants,
The next factor, the order in which jurisdiction was obtained, weighs against abstention. MUY Hamburger makes much of the fact Anglen filed the State Court Complaint first, arguing this weighs in favor of abstention. (Doc. No. 3 at 4, 7.) The Court disagrees. Anglen filed her State Court Complaint just over an hour prior to filing her Complaint in this Court on November 13, 2017. (Doc. No. 1 and Cuyahoga County Case No. CV-17-888950, Docket entry dated 11/13/17.) The Sixth Circuit has found a found a difference of two days between filings to be insignificant. PaineWebber, Inc., 276 F.3d at 207. Thus, a mere hour is inconsequential when considering this factor, and therefore weighs against abstention.
Next, consideration must be given to the source of governing law. As correctly noted by MUY Hamburger, it is difficult to assess the exact source of law for Anglen's claims, due to the confusing nature of her Complaint. (See Doc. No. 1.) However, Anglen has several EEOC documents attached to her Complaint, which reference a possible age discrimination claim. (Doc. No. 1-3 at 1, Doc. No. 1-4 at 1.) If Anglen is indeed attempting to raise age discrimination claims against her former employer, these claims could be raised under either or both state and federal law. Both the Ohio Revised Code and the Age Discrimination in Employment Act ("ADEA") prohibit discrimination by employers on the basis of age. See O.R.C. §4112.02(A) and 29 U.S.C. §623.
However, this factor is relevant only when there is "substantive federal law" or "novel or difficult" questions of state law. Frame, 2009 WL 1659138 at *6. See also Medical Quant USA, Inc., 2016 WL 6996149 at *6. It does not appear Anglen's claims are governed exclusively by either state or federal law. Because there is no indication she is raising a novel issue of Ohio law, this factor neither favors or disfavors abstention. See Preferred Care of Delaware, Inc., 676 Fed. App'x at 396. Morever, the substantial federal law factor is "less significant when the states and federal courts have concurrent jurisdiction." Bates, 122 Fed. App'x at 807.
Here, the state court and this Court have concurrent jurisdiction over any possible age discrimination claims Anglen may be attempting to raise. This favors abstention, albeit marginally. See PaineWebber, Inc., 276 F.3d at 208; Preferred Care of Delaware, Inc., 676 Fed. App'x at 397 ("where the source of the relevant law lies at least partly with the state, this factor accordingly tips, however slightly, in favor of abstention."). Moreover, the state court action is an adequate forum to protect Anglen's interests. As noted supra, Ohio law provides for protection against age discrimination by employers. Moreover, the ADEA provides jurisdiction to both state and federal courts. 29 U.S.C. §626(c)(1). There is no legitimate concern the state court will be unable to safeguard Anglen's rights. Thus, this factor supports abstention. See Preferred Care of Delaware, Inc., 676 Fed. App'x at 396.
The final inquiry under Colorado River is the relative progress of the state and federal proceedings. A review of the state court docket indicates the state court proceedings have progressed slightly further than the proceedings in this Court, as a case management conference has been scheduled in the state court case for May 30, 2018. (Cuyahoga County Case No. CV-17-888950, Docket entry dated 1/4/18). Regardless, each case is still in the early stages of litigation. Thus, as there is not a "substantial difference in the relative advancement" of the proceedings, this factor weighs against abstention. See Bates, 122 Fed. App'x at 807.
On balance, after applying the Colorado River factors, the Court recommends abstention from jurisdiction in this matter. While neither case has progressed significantly, the avoidance of piecemeal litigation weighs in favor of abstention. Moreover, the presence of concurrent jurisdiction, as well as the adequacy of the state court to protect Anglen's rights further tips the scale towards abstention.
Finally, and in any event, Anglen has not responded to MUY Hamburger's Motion to Dismiss. Thus, this Court finds the Motion to Dismiss to be unopposed. See Brown v. Panther Premium Logistics, Inc., 2017 WL 6502822 at *1 (N.D. Ohio Sept. 12, 2017)("This Court may interpret the absence of a response to a motion to dismiss as a waiver of opposition.").
For the foregoing reasons, it is recommended that Defendant MUY Hamburger's Motion to Dismiss be GRANTED in part and DENIED in part as follows: The Court recommends abstention from jurisdiction, with this matter being dismissed without prejudice.
