In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3254
M EANITH H UON,
Plaintiff-Appellant,
v.
JOHNSON & B ELL, L TD., 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.
A RGUED JUNE 14, 2011—D ECIDED S EPTEMBER 21, 2011
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Meanith Huon is a lawyer rep-
resenting 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 at-
torneys. 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, assign-
ments, salary, or opportunity for probation before his
discharge. Huon also threw in a supplemental state-
law 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 ap-
pealed from that order, arguing that his two suits
were not parallel and that the district court abused its
discretion because no exceptional circumstances justi-
fied 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 com-
ments that Huon “requires a higher level of supervision,”
that someone of his “experience should be working
more independently,” and that he had “deadline prob-
lems” and was “incompetent.” Huon also asserted that
the attorneys’ statements constituted intentional inflic-
tion 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 asser-
tion 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 state-
ments, 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-to-
sue 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 al-
legations 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 discrim-
ination 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 con-
tinued, 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’ perform-
ance reviews in which they reported that he
performed unsatisfactorily were defamatory and
caused him emotional distress. In the instant pro-
ceeding, he asserts that because he performed satis-
factorily, his termination must have been the result
of discrimination, and defendants’ reports that he
performed unsatisfactorily tortiously interfered
with his expectation of continued employment. Be-
cause the claims arise from the same core of opera-
tive 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 con-
cluded 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 state-
court 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 Su-
preme Court has emphasized that federal courts have
a “virtually unflagging obligation” to exercise the juris-
diction 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 justifica-
tions,’ . . . 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 ab-
stention, 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 pro-
ceeding will be “ ‘an adequate vehicle for the complete
and prompt resolution of the issues between the par-
ties,’ ” a stay would be a “ ‘serious abuse of discre-
tion,’ ” 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 inter-
ference 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 per-
formance evaluation, his federal discrimination claims
(he says) encompass a much broader scope of alleged
misconduct over a longer period of time, including unfa-
vorable 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. Al-
though all of Huon’s claims relate to alleged mistreat-
ment 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 pur-
poses 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 simi-
larly situated employees. None of this would neces-
sarily 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 dis-
criminatory 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 ex-
ceptional 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 ad-
dressed 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 discrim-
ination 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 ad-
vanced because his suit was dismissed on the com-
plaint, 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 explana-
tion from the district court’s decision justifying the re-
linquishment of its jurisdiction. See Tyrer, 456 F.3d at 754-
55 (noting that “what is required is a carefully con-
sidered 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 con-
sideration 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 pre-
scribed 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) (re-
versing 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 possi-
bility that his federal suit is barred by claim preclusion,
if the dismissal of his state complaint is upheld on ap-
peal. 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 incon-
sistent 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 V ACATE
the district court’s stay and R EMAND this case for
further proceedings consistent with this order.
9-21-11