dissenting:
To have a complicated contract action based on the same facts and between substantially the same parties being litigated simultaneously in two jurisdictions is an incredible waste of judicial energy and is clearly “incompatible with the orderly and efficient administration of justice.” (People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 257, 357 N.E.2d 534, 538.) It is highly inappropriate for this court, or any Illinois court, to assume an Iowa tribunal would not provide fair and impartial justice to the litigants, just as it would be equally inappropriate for the Iowa judiciary to harbor such doubts toward this jurisdiction.
The majority does the common law doctrine of forum non conveniens a disservice, for the pendency of the second suit in Iowa takes this case out of the doctrine’s scope and, instead, makes the inquiry one under the Civil Practice Act. Section 48 (Ill. Rev. Stat. 1977, ch. 110, par. 48) provides, in part:
“(1) Defendant may, within the time for pleading, lile a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. ” ” #
# « «
(c) That there is another action pending between the same parties for the same cause.”
In Gitchoff, our supreme court held neither the parties nor the causes of action need be identical to form a basis for a section 48(1) (c) dismissal; a substantial similarity will suffice. A substantial similarity exists in this case.
The section 48(1) (c) question is not directly raised by Swift, but Swift’s allegation that it filed suit some 20 minutes before Staley goes unchallenged. A section 48(1) (c) dismissal does not require the exercise of judicial discretion except in those rare instances where complaints are filed simultaneously and neither court has priority of jurisdiction (Gerber v. First National Bank (1975), 30 Ill. App. 3d 776, 332 N.E.2d 615). In Gerber, the court said:
“The statutory language is unambiguous. It grants a right to dismiss, thus fostering orderly procedure and relieving litigants and courts of unnecessary burdens associated with multiple actions. The pendency of an action is determined by the date the complaint is filed. (People ex rel. Lehman v. Lehman (1966), 34 Ill. 2d 286, 215 N.E.2d 806.) A section 48(1) (c) motion should not require the exercise of judicial discretion except in those rare instances — this is not one — where complaints in both actions are filed simultaneously and neither court has priority of jurisdiction. (See, e.g., Skolnickv. Martin (1965), 32 Ill. 2d 55, 203 N.E.2d 428.) Gerber’s suit for declaratory judgment preceded the bank’s action in confessing judgment on the note. The declaratory suit involved the identical parties as the confession case and was brought for the same cause. Actions are for the same cause when relief is requested on substantially the same set of facts. Skolnick v. Martin.” 30 Ill. App. 3d 776, 780, 332 N.E.2d 615, 618-19.
In Baker v. Salomon (1975), 31 Ill. App. 3d 278, 334 N.E.2d 313, plaintiffs in Illinois circuit court filed an action against defendants some 59 minutes after defendants filed suit against them in the United States District Court for the Southern District of New York. The appellate court affirmed the trial court’s dismissal of the Illinois action under section 48(1)(c).
The result of the majority opinion in this case is to have litigation going on in Iowa and Illinois involving the same subject matter, between essentially the same parties, relating to the same issues; and the litigation would presumably go on at approximately the same time. Except for the benefit of full employment of counsel, I can conceive of no other useful purpose of such waste of judicial resources. The majority opinion remands. Upon remand, presumably Swift, if indeed it was the swiftest to the courthouse and filed the Iowa litigation first, can still file a motion to dismiss “within the time for pleading” (Ill. Rev. Stat. 1977, ch. 110, par. 48). In which event, the trial court under the language of Gerber and Baker would dismiss the matter and the cause would proceed to resolution in the Iowa court where it was first begun. I see no reason to presume a “home court advantage” in complex litigation: basketball games, yes, but not a lawsuit. Further, the adversary system does not require judicial wheel-spinning.
The Illinois litigation should be dismissed at this juncture under the cited section of the Civil Practice Act.