United States District Court, N.D. Mississippi, Greenville Division
SHARION AYCOCK, UNITED STATES DISTRICT JUDGE
action was originally filed in the Circuit Court of Bolivar
County, Mississippi but properly removed to this Court on
January 10, 2019. In its Complaint , Safway Services, LLC
alleges that it rented scaffolding and provided labor to
P.A.L Environmental Safety Corporation for a construction
project in Mississippi, and that P.A.L. failed to pay for the
scaffolding and labor. A similar action was filed previously
in a Wisconsin State Court. See Wisconsin State Court
Complaint [4-1]. The Defendants filed a Motion  to
Dismiss this Federal lawsuit arguing that it is duplicative
of the Wisconsin suit. Briefing is complete and the issues
are ripe for review.
and Procedural Background
entered into a Rental/Sales Agreement on May 8, 2017, with
Safway Services, LLC, for the rental of scaffolding materials
and labor. The Rental/Sales Agreement provided that any
dispute between the parties would be governed by Wisconsin
law and any lawsuit must be commenced either in the Waukesha
County Circuit Court in Waukesha, Wisconsin, or in the United
States District Court for the Eastern District of Wisconsin.
to Safway, it provided the materials and labor fulfilling its
contractual obligation. At the conclusion of the work, Safway
gave P.A.L. an invoice with a balance due of $716, 875.72.
According to Safway Services, P.A.L. never paid the balance.
This prompted Safway Services to file a Notice of
Construction Lien against the project. In order to continue
the work despite the construction lien, P.A.L. obtained a
Mechanic's Lien Discharge Bond issued by Fidelity and
Deposit Company of Maryland.
facts gave rise to two separate law suits. First, Safway
filed suit in the Circuit Court of Waukesha County,
Wisconsin, against P.A.L. for breach of contract and unjust
enrichment.Then, Safway filed a second law suit in the
Circuit Court of Bolivar County, Mississippi, against P.A.L.
and Fidelity for breach of contract, enforcement of the
construction lien, and prompt payment penalties. The
Defendants removed the Mississippi case to this Court,
premising federal jurisdiction on diversity of citizenship.
procedural postures of the two cases are different. While the
Mississippi case is still in its early stages of litigation,
the Wisconsin case is set for trial in the Summer of 2019.
Defendants in this Mississippi action filed a Motion  to
Dismiss claiming that the duplicative nature of the case
warrants a dismissal or in the alternative a stay until the
Wisconsin action is resolved. In opposition, the Plaintiff
argues that because this case involves a lien on property
located in Mississippi and because the cause of action
derives from Mississippi law, this case should be adjudicated
in Mississippi. While the parties disagree about dismissal of
the case, they agree that a stay is an appropriate remedy.
Standard and Discussion
their Motion , the Defendants urge the Court to abstain
from adjudicating this matter due to a duplicative suit filed
in Wisconsin. The Defendants also petition the Court in the
alternative for a stay of proceedings pending a jury verdict
in the Wisconsin state court matter.
is a two-part inquiry. The Court must first assess whether
the two actions are parallel, and if so, the court must apply
the test articulated in Colorado River Water Conservation
District v. United States. See African Methodist
Episcopal Church v. Lucien, 756 F.3d 788, 797 (5th Cir.
2014); Colorado River Water Conservation District v.
United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244,
47 L.Ed.2d 483 (1976).
federal court may stay an action pending disposition of a
state court action when the state and federal actions are
“parallel.” African Methodist Episcopal
Church, 756 F.3d at 797. The Fifth Circuit has
identified parallel actions as “those involving the
same parties and the same issues.” Id. Stated
differently, the court looks to the identity of the parties
and the associated claims in both pending suits and
determines whether there is substantial similarity between
the Mississippi action includes an additional defendant,
Fidelity, and an additional legal issue, enforcement of the
lien, the cases are not precisely parallel under the Fifth
Circuit's standard. The lack of formal symmetry, however,
does not automatically defeat a stay. See RepublicBank
Dallas Nat. Ass'n v. McIntosh, 828 F.2d 1120, 1121
(5th Cir. 1987) (finding that it may be that there need not
be applied in every instance a mincing on precise identity of
parties and issues.). “In light of our duty to consider
wise judicial administration, conservation of judicial
resources, and comprehensive disposition of litigation, we
look both to the named parties and to the substance of
the claims asserted in each proceeding.”
African Methodist Episcopal Church v. Lucien, 756
F.3d at 797 (emphasis added). “The decision whether to
dismiss a federal action because of parallel state-court
litigation does not rest on a mechanical checklist, but on 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 Const. Corp., 460 U.S. 1, 16, 103 S.Ct.
927, 937, 74 L.Ed.2d 765 (1983).
substance of the claims asserted in each proceeding differ
only as to the lien enforcement claim. The lien enforcement
claim depends wholly on the resolution of the Wisconsin
breach of contract claim because the statute which provides
the plaintiff an enforcement cause of action requires first a
party to prevail on the overarching claim. Here, the breach
of contract claim is the overarching claim. A dismissal of
the Mississippi action would deprive the Plaintiff of their
legal right to the cause of action as to the lien. For these