
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ______________________          No. 94-1695                               ELMENDORF GRAFICA, INC.,                                Plaintiff, Appellant,                                          v.                    D.S. AMERICA (EAST), INC. d/b/a SCREEN (EAST),                                 Defendant, Appellee.                                   _______________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion of this Court  issued on February  21, 1995, is          amended as follows:               Page 5, line 11:  Change "April 8, 1993" to "April 8, 1994".                                          1                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1695                               ELMENDORF GRAFICA, INC.,                                Plaintiff, Appellant,                                          v.                    D.S. AMERICA (EAST), INC. d/b/a SCREEN (EAST),                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                          and Boyle, Senior District Judge.*                                     _____________________                                 ____________________            Jose  L. Rivero  Vergne, Moredo  & Moredo,  Ramon  Rosado-Vila and            _______________________  ________________   __________________        Ramon Rosado-Vila Law Offices on brief for appellant.        _____________________________            Francisco M.  Troncoso, Troncoso  & Becker,  Edward J.  Underhill,            ______________________  __________________   ____________________        Steven L.  Katz, and Masuda, Funai,  Eifert & Mitchell, Ltd.  on brief        _______________      _______________________________________        for appellee.                                 ____________________                                  February 21, 1995                                 ____________________                                    ____________________        *Of the District of Rhode Island, sitting by designation.                      CAMPBELL, Senior Circuit Judge.  Elmendorf Grafica,                                ____________________            Inc. appeals  from an  order of the  district court  granting            D.S. America (East), Inc.'s motion  to stay a pending federal            diversity action until similar litigation in the state courts            of Illinois is  concluded.  The United  States District Court            for the  District of Puerto Rico  accepted the recommendation            of  the  magistrate judge  that  a stay  was  justified under            principles  declared  in  Colorado  River  Water Conservation                                      ___________________________________            District  v. United States, 424  U.S. 800 (1976).   We vacate            ________     _____________            the stay and remand for proceedings in the district court.                                            I.                                          I.                      This case arises out of a dispute between Elmendorf            Grafica, Inc.,  a Puerto Rico corporation  with its principal            place  of business  in Puerto  Nuevo, Puerto  Rico, and  D.S.            America  (East),  Inc.,   d/b/a  Screen  (East)  (hereinafter            "Screen"),  an Illinois corporation  with its principal place            of business in Rolling Meadows, Illinois.  On March 20, 1992,            the  parties  entered into  an  equipment purchase  agreement            under which  Elmendorf agreed  to purchase computer  hardware            and  software at a price of $120,000.  Elmendorf paid $84,000            in  advance, leaving a balance due of $36,000.  The equipment            failed  to  perform  to  its   satisfaction,  and  Elmendorf,            claiming ongoing damage to  its business as a result  of this            failure, refused to pay.                      A.   The Illinois Action                      A.   The Illinois Action                                         -3-                                          3                      On  November  25, 1992,  Screen sued  Elmendorf for            $36,000 in the Circuit  Court of Cook County, Illinois.   The            summons and complaint in that case were served on Elmendorf's            president  on  December  3,  1992.    Instead  of  answering,            Elmendorf filed a  limited appearance.  On  February 2, 1993,            Elmendorf moved to dismiss  for want of personal jurisdiction            and,  after briefing  and argument,  the Cook  County Circuit            Court  allowed  Elmendorf's  motion  on  May  17,  1993,  and            dismissed Screen's action for want of  personal jurisdiction.            While  the  court modified  its order  on  June 8,  1993, the            dismissal  remained.     Screen  appealed  to   the  Illinois            Appellate Court,  seeking to overturn the  dismissal, on July            8, 1993.                      The parties  thereupon engaged in a  war of motions            in the appellate forum.  On October 14, 1993, Screen  filed a            motion for  stay of  proceedings to  amend record on  appeal,            which included  a  request for  additional time  to file  its            brief.   The appellate court  denied that motion  in February            1994.   Elmendorf, having  strongly opposed Screen's  motion,            filed  its own motion for  leave to supplement  the record on            March 24, 1994, requesting additional time to file its brief.            After  the  appellate  court's  disposition of  this  motion,            Elmendorf  moved for  clarification on  May 11,  1994.   That            motion  was allowed  on  August 10,  1994,  with yet  another            extension  of time  for  Elmendorf to  file  its brief.    On                                         -4-                                          4            September  16,  1994, Elmendorf  filed  a  third request  for            additional  time to file  its brief because  its attorney was            preparing for  another trial and  lacked the time  to prepare            its brief.  Insofar as we are aware, the appeal has yet to be            decided.                      B.   The Puerto Rico Action                      B.   The Puerto Rico Action                      On January  15, 1993, two months  after Screen sued            Elmendorf in Illinois, and a few weeks before Elmendorf moved            to dismiss that action, Elmendorf sued Screen in the Superior            Court of Puerto  Rico, San Juan  Part, alleging, inter  alia,                                                             ___________            breach of  contract, false  advertising,  and fraud  stemming            from  the same  equipment  purchase agreement  which was  the            subject of  the Illinois  litigation.  Elmendorf  requested a            declaration that the agreement was  null and void, damages in            the amount  of $684,700  plus interest, and  reimbursement of            the  $84,000 advance payment.  Screen was not served with the            summons  and complaint in  the Puerto Rico  action until June            14, 1993,  one week  after the  Cook  County Circuit  Court's            amended dismissal of the Illinois action for want of personal            jurisdiction.                      On   July   13,   1993,   alleging   diversity   of            citizenship,  Screen removed  the Puerto  Rico action  to the            United States District Court for the District of Puerto Rico.            On September 8, 1993, Screen moved to dismiss and/or stay the            Puerto Rico federal proceedings citing principles established                                         -5-                                          5            by  the Supreme  Court in  Colorado River  Water Conservation                                       __________________________________            District v. United States, 424 U.S. 800 (1976) and subsequent            ________    _____________            cases.   This motion was referred to a magistrate judge, who,            on October 12, 1993, and in the absence of any  opposition by            Elmendorf,  recommended  a  stay of  proceedings  pending the            outcome  of the  Illinois  litigation.   Elmendorf filed  its            opposition on  October 15, 1993, apparently  before receiving            word of the magistrate judge's  decision, and on October  21,            1993, also filed objections  to the magistrate judge's report            and recommendations, along with  an explanation for the delay            in  filing its opposition.   The district  court referred the            matter to  the magistrate judge for  reconsideration in light            of Elmendorf's objections.                      On  April 8,  1994, the  magistrate judge  issued a            second report,  again recommending  a stay.   Elmendorf filed            objections to this  second report on April 25, 1994.1  On May                                            ____________________            1.  Screen states in its brief  that "it is unclear  whether"            Elmendorf's  objections  to  the  April  8,  1994  magistrate            judge's report,  filed on April  25, 1994, were  filed within            the  10-day  period  required  by 28  U.S.C.     636(b)(1)(C)            (1988).    This  seems   to  suggest  that  we   should  deem            Elmendorf's appeal waived.  See, e.g., Henley Drilling Co. v.                                        ___  ____  ___________________            McGee, 36 F.3d 143, 150-51 (1st Cir. 1994) (failure to object            _____            within     636(b)(1)(C)'s  ten-day period  waives  claim  for            purposes of appellate review); Fed.  R. Civ. P. 72(b) (same).            However, it  appears that Elmendorf's objections  were timely            filed.  See Fed. R.  Civ. P. 72(b) (allowing service  by mail                    ___            of  magistrate's report);  Fed.  R.  Civ.  P.  6(a)  and  (e)            (describing  method of  computing time  period  under federal            rules, and stating that, where period allowed is less than 11            days, intervening  Saturdays, Sundays and holidays  shall not            be counted,  and, where service upon a party is to be made by            mail, adding three days to the period is allowed).                                         -6-                                          6            5,  1994,  the district  court issued  an order  adopting the            magistrate  judge's conclusions  and ordering  a stay  of the            proceedings.  Elmendorf appeals.                                         II.                                         II.                      A.   A Preliminary Matter                      A.   A Preliminary Matter                      Elmendorf argues that the  district court failed to            perform  a de novo review  of the magistrate judge's proposed                       _______            findings, as  required by  28 U.S.C.    636(b)(1)(C) (1988).2                                            ____________________            2.  28 U.S.C.   636 states, in pertinent part:                      (b)(1)  Notwithstanding any  provision of                      law to the contrary--                           (A)   a  judge may  designate a                           magistrate    to    hear    and                           determine  any pretrial  matter                           pending   before   the   court,                           except   a  motion  .  .  .  to                           involuntarily dismiss an action                           . . . .                           (B)  a judge may also designate                           a magistrate . . . to submit to                           a judge of  the court  proposed                           findings     of     fact    and                           recommendations     for     the                           disposition, by a judge  of the                           court,  of any  motion excepted                           in subparagraph (A) . . . .                           (C)  the magistrate  shall file                           his   proposed   findings   and                           recommendations           under                           subparagraph (B) with the court                           and a copy  shall forthwith  be                           mailed to all parties.                      Within ten days after being served with a                      copy,  any  party   may  serve  and  file                      written   objections  to   such  proposed                      findings and  recommendations as provided                      by rules of court.  A judge of  the court                      shall make  a  de novo  determination  of                      those portions of the report or specified                                         -7-                                          7            The district court's order of May 5, 1994 states, "The Court,            having reviewed the conclusions of the U.S. Magistrate in the            two Report and Recommendations filed in this case, finds that            his decisions  are warranted  in  law and  fact."   Elmendorf            argues  that  this statement  is  inconsistent  with    636's            requirement.                      Elmendorf has called no  authority to our attention            holding that, in order to demonstrate compliance with   636's            de  novo  review  requirement,  a district  court  must  make            ________            findings and rulings of its own rather than adopting those of            the magistrate  judge.   The statute authorizes  the district            court  to adopt  in  whole as  well as  in part  the proposed            findings or recommendations of  the magistrate judge.  Where,            as  here,  the  magistrate  judge decided  on  an  undisputed            factual record, the district court was certainly not required            to  rehash the magistrate judge's reasoning.  The role of the            magistrate judge is "to  relieve courts of unnecessary work."            Henley  Drilling Co.  v. McGee,  36 F.3d  143, 151  (1st Cir.            ____________________     _____                                            ____________________                      proposed  findings or  recommendations to                      which objection is made.   A judge of the                      court  may accept, reject,  or modify, in                             __________                      __                      whole  or  in   part,  the  findings   or                      _____                      recommendations  made by  the magistrate.                      The  judge  may   also  receive   further                      evidence  or recommit  the matter  to the                      magistrate with instructions.            28 U.S.C.   636(b)(1) (1988) (emphasis added).                                         -8-                                          8            1994), quoting Park Motor  Mart, Inc. v. Ford Motor  Co., 616                   _______ ______________________    _______________            F.2d 603, 605 (1st Cir. 1980).                                         III.                                         III.                      A.   The Colorado River Doctrine                      A.   The Colorado River Doctrine                               ______________                      The Supreme Court in  Colorado River established  a                                            ______________            narrow  basis for district courts to  stay or dismiss federal            lawsuits  in deference  to parallel  state proceedings.   The            Court held that, in  "exceptional" circumstances, 424 U.S. at            818,  a federal  court  could decline  jurisdiction based  on            "'considerations of "[w]ise  judicial administration,  giving            regard   to   conservation   of   judicial    resources   and            comprehensive  disposition of  litigation,"'" Moses  H. Cone,                                                          ______________            460  U.S.  at 15  (quoting Colorado  River,  424 U.S.  at 817                                       _______________            (quoting Kerotest  Mfg. Co. v.  C-O-Two Fire Equip.  Co., 342                     __________________     ________________________            U.S. 180, 183 (1952))).                      The   Court  in   Colorado  River   mentioned  four                                        _______________            illustrative  factors  for  determining whether  "exceptional            circumstances"  exist: (1)  whether either court  has assumed            jurisdiction over a res; (2) the inconvenience of the federal                                ___            forum; (3) the desirability of avoiding piecemeal litigation,            and (4) the order in  which the forums obtained jurisdiction.            In Moses H. Cone, the Court added two additional factors: (5)               _____________            whether state or  federal law controls, and  (6) the adequacy            of the state forum  to protect the parties' rights.   Another            factor,  mentioned but not applied in Moses H. Cone, 460 U.S.                                                  _____________                                         -9-                                          9            at  17 n.20, and counted by  some courts, is the vexatious or            reactive nature of the federal lawsuit, see, e.g., Fuller Co.                                                    _________  __________            v. Ramon I. Gil, Inc., 782 F.2d 306, 308-10 (1st Cir. 1986).               __________________                      In  Colorado  River, the  Supreme  Court emphasized                          _______________            that the  stay or dismissal  authorized there should  be used            sparingly.   The  Court  spoke of  the "virtually  unflagging            obligation of the federal courts to exercise the jurisdiction            given  them," 424 U.S. at 817, and cautioned that "[o]nly the            clearest  of justifications will  warrant dismissal,"  id. at                                                                   ___            819.   The weight a  court should give  any single factor may            vary greatly depending on  the case, and "[n]o one  factor is            necessarily  determinative;  a carefully  considered judgment            taking  into   account  both   the  obligation   to  exercise            jurisdiction  and  the  combination  of  factors  counselling            against  that exercise  is  required," id.  at  818-19.   The                                                   ___            district  court must  weigh the  important factors  "with the            balance  heavily  weighted  in   favor  of  the  exercise  of            jurisdiction," Moses H. Cone, 460 U.S. at 16.                           _____________                      The decision whether  to surrender jurisdiction  is            "necessarily  left to the discretion of the district court in            the  first instance,"  id. at  19, and  the district  court's                                   ___            decision  may   be  reversed  only  for  an   abuse  of  that            discretion.   Such  discretion must  be  exercised,  however,            within  the  constraints  of  the  "exceptional-circumstances            test."    Id.; see  also Villa  Marina  Yacht Sales,  Inc. v.                      ___  _________ _________________________________                                         -10-                                          10            Hatteras Yachts, 947 F.2d 529 (1st  Cir. 1991), cert. denied,            _______________                                 ____________            __ U.S.  __, 112 S. Ct.  1674 (1992).  In  a discussion which            concluded that it made no  difference in this context whether            the  district court  ordered a stay  or dismissal,  the Court            emphasized the limits of this discretion, saying:                      When a district  court decides to dismiss                      or   stay   under   Colorado  River,   it                                          _______________                      presumably  concludes  that the  parallel                      state-court   litigation   will   be   an                      adequate  vehicle  for  the complete  and                      prompt resolution of  the issues  between                      the parties.  If there is any substantial                      doubt as  to this, it would  be a serious                      abuse of discretion to grant the stay  or                      dismissal at all.            Moses H. Cone, 460 U.S at 28.            _____________                      B.   The Magistrate Judge's Recommendation                      B.   The Magistrate Judge's Recommendation                      The   magistrate   judge's   second    report   and            recommendation considered Colorado River, reiterating rightly                                      ______________            that the balance  in any  decision to stay  or dismiss  under            that doctrine  should be  "heavily weighted  in favor  of the            exercise of jurisdiction."   The magistrate judge nonetheless            felt that a stay was appropriate here:                      In this case, plaintiff is not seeking to                      obtain possession of a res.  The evidence                      and witnesses are split  between Illinois                      and Puerto  Rico.   No one forum  is more                      convenient  for both parties  at the same                      time.     If  this  court  exercises  its                      jurisdiction,  the  two parties  would be                      litigating  very  similar  issues in  two                      separate  forums.  The Illinois court was                      the first to  assume jurisdiction.  Since                      the  purchase  agreement entered  into by                      the parties provides for  the application                      of  Illinois   law,  it  would   be  more                                         -11-                                          11                      appropriate  for  the  Illinois court  to                      interpret it.   In  sum, the totality  of                      the circumstances favors the stay pending                      resolution of the Illinois litigation.            Id.  at 3.   As the district court  adopted this analysis, we            ___            focus on the magistrate judge's reasoning.                                         IV.                                         IV.                      In the  first three sentences  of the  above-quoted            reasoning, the magistrate judge concluded that the factors he            was considering favored neither party.  We have no difficulty            with the magistrate judge's assessment of those three items.                      The magistrate judge went  on to conclude, however,            that the next three  factors weighed in favor of  staying the            federal action so that Screen  could go forward in  Illinois.            We disagree.  In  our view, the magistrate judge did not give            appropriate attention to the fact that, at the time the issue            of a stay  was before  the district court  (indeed, up  until            now), the Illinois action consisted of no more than a pending            appeal  from the  order  of  the  Cook County  Circuit  Court            dismissing  the  action for  lack  of  personal jurisdiction.            This  was  not a  case where  the  parallel state  action was            strongly underway, making it perhaps reasonable, depending on            the  facts, to  await the  outcome in  the state  case before            proceeding in the federal  court.  Here, if the  Cook Country            Circuit Court's  dismissal for lack of  personal jurisdiction            should  be affirmed  by the  Illinois Appellate  Court, there            will  be left in existence no state action whatever; while if                                         -12-                                          12            the lower court's dismissal should be reversed on appeal, the            parties  will merely  be back  at the  very beginning  of the            process of litigating the merits of their controversy.  Under            such  circumstances, the  federal diversity action  in Puerto            Rico,   which   was   not   encumbered   by   any   threshold            jurisdictional question,  was the more  immediately available            vehicle for litigating the dispute.                      The  magistrate  judge said  that  if  the district            court action  were allowed to proceed, "the two parties would            be litigating  very similar  issues in two  separate forums."            But this description suggests a parallelism that did not then            exist, given  that the  Illinois case  had been  dismissed on            jurisdictional  grounds,  leaving  only an  appeal  from  the            dismissal.  Only if  plaintiffs were to win the  appeal would            the Illinois  proceedings become  truly parallel to  those in            the federal  district court.   By then,  were it not  for the            stay,  the district court in  Puerto Rico might  be well into            the merits of the controversy.  To be sure, calling a halt to            the federal case would permit the parties to devote all their            energies  to the  battle  over jurisdiction  in the  Illinois            appellate  court,  and,  depending on  the  outcome,  perhaps            eventually to litigate their  dispute in the Illinois circuit            court.  But forcing the plaintiff in the federal  case to sit            on its hands for so long is not consonant with Colorado River                                                           ______________            and  its  progeny, which  describe  the  balance as  "heavily                                         -13-                                          13            weighted  in  favor  of   the  exercise  of  [federal  court]            jurisdiction.  Moses H. Cone,  460 U. S. at 16.   Those cases                           _____________            require   an  affirmative   showing   of  "the   clearest  of            justifications,"  Colorado River,  424 U.S.  at 819,  or some                              ______________            "exceptional basis," before a  federal court properly  defers            to a state court proceeding.  Burns  v. Watler, 931 F.2d 140,                                          _____     ______            146 (1st Cir. 1991).                      Here, given the problem with  the state proceedings            we  have mentioned,  we cannot  discern an  exceptional basis            clearly favoring  federal court deference.   Screen's primary            argument  to the district court  was that to  proceed in both            courts would entail a duplication of "the costs and delays of            litigation."    Duplication,  standing alone,  is  rarely  an            exceptional basis  that warrants a  stay or dismissal  of the            federal action.   Rojas-Hernandez v. Puerto  Rico Elec. Power                              _______________    ________________________            Auth., 925 F.2d  492, 496 (1st Cir. 1991).  But even assuming            _____            duplication were  an important concern, the  cure is scarcely            to  abandon a viable federal forum in favor of a questionable            state one.                      Nor are  we impressed with Screen's  argument that,            if  forced to proceed in  the federal action  in Puerto Rico,            its  state claim will be  subject to dismissal  because of an            Illinois procedural rule providing for dismissal "where there            is another  action pending between  the same parties  for the            same cause."   Whatever the  force of this  argument in  some                                         -14-                                          14            different  factual  context,  we see  no  good  reason for  a            federal  court to  defer  to a  problematic state  proceeding            merely because the existence of the federal case may give the            state courts some further reason to dismiss the state action.            Indeed,  if Screen's  argument  is  correctly  premised,  the            duplication of  proceedings which worries Screen  will cease.            And,  of course, Screen  is free to  assert its claim  to the            balance  due  under the  equipment  purchase  agreement as  a            counterclaim in the federal action, see Fed. R. Civ. P. 13.                                                  ___                      We further  disagree that deference  should be paid            to the Illinois court simply because that court was the first            "to assume jurisdiction."   It is true the Illinois  case was            filed first.   But soon after the Illinois case was filed, it            was dismissed for lack of personal jurisdiction, and that was            the posture of events when the federal court decided the stay            motion.   In such circumstances, it is hard to understand why            the mere fact of priority in filing would be a point in favor            of a stay.  To be sure, if jurisdiction were found on appeal,            the Illinois case could eventually go  forward on the merits.            But in Moses  H. Cone  the Supreme Court  indicated that  the                   ______________            order in  which jurisdiction  was taken  is not  a mechanical            concept automatically favoring the party who files first, but            rather  a concept  that  favors the  case  that is  the  more            advanced at  the time the  Colorado River balancing  is being                                       ______________            done.  Moses H. Cone, 460 U.S. at 21.   Courts are instructed                   _____________                                         -15-                                          15            by  the Supreme Court to measure  which action    the suit in            the federal court or that  in the state court    is  the more            advanced in a "pragmatic, flexible manner, with a view to the            realities of the case at hand."  Id.  Here  the dismissal for                                             ___            lack of personal  jurisdiction in the Illinois  case made the            federal action  the front-runner.   Hence, having  regard for            "the  realities of the case at hand," the Illinois action did            not enjoy priority  in time  over the federal  case, and  the            magistrate  judge erred in citing this factor as a reason for            the stay.                        The  magistrate judge  was also impressed  with the            fact  that Illinois  law  is likely  to  be involved  in  the            present contract  dispute.  We will concede  the expertise of            an Illinois court in its own law, and that federal law is not            in  issue here,  but we do  not believe  that this  factor is            entitled  to  much  weight  for present  purposes.    Nothing            suggests that the parties' claims present particularly novel,            unusual  or  difficult  questions  of  legal  interpretation.            Federal courts are used to researching  and analyzing the law            of different  jurisdictions.   The federal district  court in            Puerto  Rico will be able to apply Illinois law to the extent            required.   See Gonzalez  v. Cruz,  926 F.2d  1, 5  (1st Cir.                        ___ ________     ____            1991)  ("The  mere  fact that  the  outcome  of  the case  is            governed by state law  does not warrant dismissal     to hold            otherwise would  undermine the  purpose and reach  of federal                                         -16-                                          16            diversity jurisdiction."); Rojas-Hernandez,  925 F.2d at  496                                       _______________            (reversing  a  stay  where the  issues  of  state  law to  be            considered by  the federal court were  "neither unsettled nor            complex").                          A further  factor, which  the magistrate judge  did            not mention, and which strongly counsels against a stay here,            is  whether  the  state  forum  can  adequately  protect  the            parties' rights.   Moses H. Cone, 460 U.S. at 26.3  Given the                               _____________            fact that when the district court was considering the request            for a stay,  it was entirely  uncertain whether the  Illinois            courts had jurisdiction over the person of the defendant, the            protection available  to the parties' rights  in Illinois was            necessarily  problematic.    The  Illinois  court  would,  of            course, be  as well able as  the federal court to  dispose of            the case if  it had  jurisdiction, but unless  and until  the            personal   jurisdictional  question   was  resolved   by  the            appellate  court  in  favor  of  plaintiff,  the  utility  of            Illinois as a forum remained in grave doubt.4                                             ____________________            3.  As we have  previously mentioned, the  Court in Moses  H.                                                                _________            Cone also spoke of the need to find "that the parallel state-            ____            court litigation will be an adequate vehicle for the complete            and  prompt resolution  of the  issues between  the parties."            460 U.S. at 28.  Should there be doubt of this,  it would be,            the  Court said, "a serious  abuse of discretion"  to grant a            stay.  Id.                   ___            4.  We also note Screen's  contention that the federal action            is vexatious and reactive.  See Moses H. Cone, 460 U.S. at 17                                        ___ _____________            n.20; Fuller, 782  F.2d at 308-310.  We do  not find merit in                  ______            this argument.  Elmendorf's action was filed two months after            Screen's, but  Elmendorf waited to serve  process upon Screen                                         -17-                                          17                      We  hold,  therefore,  that  the   balance  of  the            Colorado   River  factors  favored   denying  the  stay,  and            ________________            certainly did  not favor granting  it, having regard  for the            uncertain status of the Illinois litigation.  The exceptional            circumstances that Colorado River calls  for in order to stay                               ______________            or dismiss an action brought in a  federal court, in favor of            proceedings  in  a state  tribunal,  were not  present.   The            district court should expeditiously proceed with the action.                 Stay vacated and case remanded to the district court for                 ________________________________________________________            continued  proceedings  consistent   herewith.    Costs   for            _____________________________________________     ___________            appellant.            _________                                                         ____________________            until after the circuit court's dismissal of the state action            for want of personal  jurisdiction over Elmendorf.   In these            circumstances, Elmendorf's decisions to fight jurisdiction in            Illinois  and sue in its  home court in  Puerto Rico were not            improper tactics such as to weigh in favor of a stay.                                         -18-                                          18
