United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., District Judge
matter is before the Court on Defendant's Motion to
Dismiss. [DN 7]. Fully briefed, this matter is ripe for
decision. For the following reasons, the Defendant's
motion is GRANTED in part and DENIED
Brock Medical, LLC (“First Care”) hired Plaintiff
Lisa Moten in January 2017, as an as-needed X-Ray Technician.
[DN 1 at ¶¶ 7, 9]. After June 9, 2017, Ms. Moten
did not return to work for various medical reasons, including
an “emergency heart condition” and “open
heart surgery.” [Id. at ¶¶ 10, 11].
On or about September 7, 2017, First Care terminated Ms.
Moten from the personnel system, when she had not returned or
provided any definitive updates about her return.
[Id. at ¶ 39]. About a month thereafter, Ms.
Moten left a doctor's note at the front desk of the
clinic stating she could return to work. [Id. at
February 28, 2018, Ms. Moten filed a Kentucky Civil Rights
Act (“KCRA”) disability discrimination lawsuit
against First Care in Henderson Circuit Court, Henderson,
Kentucky. [DN 7-2]. Thereafter, on March 8, 2018, Ms. Moten
filed a Charge of Discrimination against First Care with the
Equal Employment Opportunity Commission (“EEOC”)
making the same disability discrimination allegations but
seeking relief under the Americans with Disabilities Act
(“ADA”). [DN 7-3]. On April 4, 2018, the EEOC
issued to Ms. Moten a Notice of Right to Sue. [DN 7-4]. Ms.
Moten did not add the ADA claims to the pending lawsuit in
Henderson Circuit Court but instead filed the instant lawsuit
on July 3, 2018.
Care's counsel called Ms. Moten's counsel and stated
they would not oppose a motion to amend to bring her KCRA
claims over to federal court, but Ms. Moten's counsel
declined. Thereafter, First Care filed the instant Motion to
Dismiss requesting that this Court abstain from exercising
jurisdiction, even though jurisdiction would otherwise be
proper. [DN 7]. Specifically, First Care argues that there
are parallel actions proceeding in both state and federal
courts. [DN 7-1 at 5-6]. As a result, First Care contends
that consideration of several factors is necessary to
determine whether abstention is proper and that, upon
consideration, those factors weigh in favor of abstention.
[Id. at 6-13].
Moten responded arguing that, as an initial matter, a request
for abstention is not proper under Rule 12. [DN 9 at 1-2].
Further, she argues that the state court proceeding is not
parallel with this federal proceeding because the claims are
not the same. [Id. at 4]. As such, she claims the
factors to consider when determining whether to abstain are
not relevant. [Id. at 5]. However, she argues in the
alternative that if this Court finds the proceedings to be
parallel, the factors weigh against the Court abstaining from
exercising jurisdiction. [DN 9 at 5-7]. Finally, First Care
replied contending first that the Motion to Dismiss was
procedurally proper and then expounding on prior arguments
that the proceedings are parallel, and that the relevant
factors weigh in favor of abstention. [DN 10].
preliminary matter, Ms. Moten takes issues with First
Care's procedural mechanism to request abstention.
Specifically, that First Care's argument “that this
court should abstain under Colorado River so that
Plaintiff's federal claims may proceed to state court . .
. is essentially the opposite of asserting that
Plaintiff's federal claims fail to state a claim under
Rule 12[b](6).” [DN 9 at 2]. First Care retorts that
“Rule 12(b)(1) permits the moving party to raise
defenses associated with subject matter jurisdiction.”
[DN 10 at 2]. First Care is correct. This Court has indeed
considered Colorado River abstention arguments made
by parties in motions to dismiss and will do so here.
See, e.g., Travelers Prop. Cas. Co. v.
Associated Eng'rs, Inc., 2013 WL 6230613 (W.D. Ky.
Dec. 2, 2013); Golden Gate Nat'l Senior Care, LLC v.
Hudson, 2017 WL 4274167 (W.D. Ky. Sept. 26, 2017).
Care argues that the Court should dismiss, or in the
alternative, stay this action under the doctrine announced by
the Supreme Court in Colorado River Water Conservation
District v. United States. 424 U.S. 800 (1976). Pursuant
to Colorado River, federal courts have a
“narrow exception” to their “virtually
unflagging obligation . . . to exercise the jurisdiction
given them” where there is (1) “parallel”
litigation pending in state court, and (2) the proposed
litigation in federal court would be duplicative or unwise.
Id. at 817-818; Bates v. Van Buren Tp., 122
Fed.Appx. 803, 806 (6th Cir. 2004); Gottfried v. Medical
Planning Servs., Inc., 142 F.3d 326, 329 (6th Cir.
threshold question in the Colorado River abstention
analysis is whether there are parallel proceedings in state
court. Crawley v. Hamilton County Comm'rs, 744
F.2d 28, 31 (6th Cir. 1984). To be “parallel” the
proceedings must be “substantially similar.”
Romine v. Compuserve Corp., 160 F.3d 337, 340 (6th
Cir. 1998). This does not mean that the parties or the claims
must be identical. Heitmanis v. Austin, 899 F.2d
521, 528 (6th Cir. 1990). “However, cases are not
considered parallel if there is an issue that would not be
resolved by the state court upon the completion of the state
court action.” Kopacz v. Hopkinsville Surface and
Storm Water Utility, 714 F.Supp.2d 682, 686 (W.D. Ky.
2010) (citing E. ON U.S. Services, Inc. v. QSC Painting,
Inc., 2008 WL 3982499 (E.D. Ky. Aug. 26, 2008); PNC
Bank, National Assoc. v. Person, 2007 WL 1423744 (W.D.
Ky. May 8, 2007)); see also Wright v. Linebarger Googan
Blair & Sampson, LLP, 782 F.Supp.2d 593, 603-604
(W.D. Tenn. 2011). “‘The issue is not . . .
whether the proceedings could be modified to make them
parallel; the issue is whether the state court proceeding, as
it currently exists, is a parallel state-court
proceeding.'” Kopacz, 714 F.Supp.2d at
686-687 (quoting PNC Bank, 2007 WL 1423744) (citing
Baskin v. Bath Tp. Bd. of Zoning Appeals, 15 F.3d
569, 572 (6th Cir. 1994)) (emphasis in original). If the
Court determines the two concurrent actions in state and
federal court are parallel, it must then weigh various
factors that “rest on considerations of wise judicial
administration, [and give] regard to conservation of judicial
resources and comprehensive disposition of litigation.”
Romine, 160 F.3d at 339 (quotations omitted).
present case, it is evident that the two parties are
identical in both proceedings. The determination of whether
parallel proceedings exist thus turns on the likeness of the
claims. The Sixth Circuit has long held that so long as the
“claims raised in both suits are ‘predicated on
the same allegations as to the same material facts,' the
two actions will come close enough to count as
parallel.” Preferred Care of Delaware, Inc. v.
VanArsdale, 676 Fed.Appx. 388, 393 (6th Cir. 2017)
(quoting Romine, 160 F.3d at 340). That is the case
here. As well-summarized in First Care's Motion, Ms.
Moten relies on the same material facts in making both her
KCRA and ADA claims. [DN 7-1 at 6]. Additionally, Ms. Moten
is making the same allegations in both her state and federal
court complaints, despite the allegations' stylistic
differences. Ms. Moten argues that, “[b]ecause the KCRA
was not amended when Congress amended the ADA . . ., Kentucky
federal and state courts apply the older ADA standard to KCRA
claims, rather than the newer [Americans with Disabilities
Amendments Act]” and as such the allegations are not
the same. [DN 9 at 4]. However, First Care is correct that
“Ms. Moten ignores . . . the remaining substantially
[sic] similarity between the two statutes including the
proper legal analysis for disability claims beyond the
definition of what constitutes a disability.” [DN 10 at
3]; See, e.g., Stearman v. Ferro Coals,
Inc., 2018 WL 5778320, at *3 (6th Cir. Nov. 2, 2018)
(“KCRA-disability-discrimination claims are interpreted
consistently with the standards developed under federal
law-here the Americans with Disabilities Act.”)
(quotation omitted). In this instance, the resolution of the
state proceeding may very well dispose of the claims in this
federal action. Compare E. ON U.S. Servs., Inc. v. QSC
Painting, Inc., 2008 WL 3982499 (E.D. Ky. Aug. 26, 2008)
(finding the actions were not parallel where the primary
issue in the federal case will need to be decided regardless
of the outcome of the state court case). Both of Ms.
Moten's cases are principally about the legality of First
Care's actions regarding her employment and allege the
same civil rights violations. As such, the two cases
constitute parallel proceedings for purposes of Colorado
Other Colorad ...