`
`
`Plaintiff,
`
`
`vs.
`
`NETFLIX, INC.,
`DIRECTV, LLC,
`DISH NETWORK CORP.,
`DISH NETWORK, LLC,
`HULU, LLC, and
`DISNEY PLATFORM DISTRIBUTION,
`INC.,
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`Case No. 3:21-CV-807-MAB
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 1 of 15 Page ID #177
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
`
`
`
`MEMORANDUM AND ORDER
`
`
`BEATTY, Magistrate Judge:
`
`This case is currently before the Court on a motion to remand filed by Plaintiff, the
`
`Village of Shiloh, Illinois (Doc. 45). Defendants filed a response in opposition to the
`
`motion (Doc. 58). The Village of Shiloh did not file a reply. For the reasons explained in
`
`this Order, the motion is granted.
`
`BACKGROUND
`
`The Illinois Cable and Video Competition Law of 2007, 220 ILL. COMP. STAT. 5/21-
`
`100, et seq. (“the Act” or the “Illinois law”), requires providers of “cable service or video
`
`service” to obtain authorization to provide their services and pay fees to the local cities,
`
`villages, towns, and counties in which they do business and whose public rights-of-way
`
`the providers utilize in delivering their services. Many states have similar laws, and the
`
`
`
`
`Page 1 of 15
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 2 of 15 Page ID #178
`
`question being posed to courts across the country is whether streaming platforms, such
`
`as Netflix and Hulu, which came into being after the laws were enacted are subject to the
`
`laws and should be paying a fair share of fees.1
`
`On June 9, 2021, the City of East St. Louis, Illinois filed an original action in this
`
`district against a number of streaming platforms alleging they provide “video service”
`
`within the meaning of the Act but have failed to comply with its requirements, namely
`
`that they pay the required fees to local governments. City of East St. Louis v. Netflix, Inc.,
`
`et al., SDIL Case No. 21-cv-561-MAB, Doc. 1. The City of East St. Louis seeks declaratory
`
`and injunctive relief and damages relating to Defendants’ failure to pay fees under the
`
`Act on behalf of a putative class of all local units of government in which Defendants
`
`provide video service.
`
`Five days later, the Village of Shiloh, Illinois filed a substantially similar putative
`
`class action in the Circuit Court for the Twentieth Judicial Circuit in St. Clair County,
`
`Illinois (Doc. 1-1). Defendant Netflix removed the case to this district on July 15, 2021,
`
`asserting jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”)
`
`(Doc. 1). All other Defendants have since joined in or consented to removal (Docs. 6, 7,
`
`
`
` 1
`
`
`
`
` See, e.g., City of Fishers v. Netflix, Inc., 5 F.4th 750 (7th Cir. 2021) (Indiana's Video Service Franchises Act,
`Ind. Code §§ 8-1-34-1, et seq); City of New Boston v. Netflix, Inc., No. 5:20-CV-00135-RWS, - F.Supp.3d - , 2021
`WL 4771537 (E.D. Tex. Sept. 30, 2021) (Texas Video Services Providers Act); City of Ashdown v. Netflix, Inc.,
`No. 4:20-cv-4113, 2021 WL 4497855 (W.D. Ark. Sept. 30, 2021) (Arkansas Video Service Act); City of Lancaster
`v. Netflix, No. 21STCV01881, 2021 WL 4470939, at *1 (Cal. Super. Ct. Sep. 20, 2021) (California Digital
`Infrastructure and Video Competition Act of 2006); City of Reno, Nevada v. Netflix, Inc., No. 320-CV-9499-
`MMD-WGC, 2021 WL 4037491, at *1 (D. Nev. Sept. 3, 2021) (Nevada Video Service Law, NEV. REV. STAT.
`§§ 711.020, et seq.); Gwinnett Cty., Georgia v. Netflix, Inc., No. 1:21-CV-21-MLB, 2021 WL 3418083, at *1 (N.D.
`Ga. Aug. 5, 2021) (Georgia Consumer Choice for Television Act, GA. CODE ANN. § 36-76-1, et seq.); City of
`Creve Coeur v. DIRECTV, LLC, No. 4:18cv1453, 2019 WL 3604631 (E.D. Mo. Aug. 6, 2019) (Missouri Video
`Services Providers Act, MO. REV. STAT. § 67.2675, et seq.);
`Page 2 of 15
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 3 of 15 Page ID #179
`
`11). Like the East St. Louis case, here the Village alleges that Defendants offer “video
`
`service” within the meaning of the Act but have failed to pay the required fees to local
`
`governments (Doc. 1-1). The Village seeks declaratory and injunctive relief and damages
`
`relating to Defendants’ failure to pay the fees under the Act on behalf of a putative class
`
`of all local units of government in which Defendants provide video service (Doc. 1-1).
`
`The Village timely filed the motion to remand that is presently before the Court
`
`(Doc. 45, Doc. 46). The Village does not dispute that the elements necessary for removal
`
`under CAFA are satisfied (the amount in controversy exceeds $5 million, there is minimal
`
`diversity of citizenship, and there are more than 100 putative class members) or that this
`
`Court’s subject matter jurisdiction over the case is secure (see Docs. 45, 46). 28 U.S.C. §
`
`1332(d). The Village instead argues that the Court should remand this case because under
`
`comity principles, this matter is more appropriately decided by the Illinois state courts
`
`(Doc. 45, Doc. 46).
`
`LEGAL STANDARD
`
`“Federal courts have a ‘virtually unflagging obligation’ to exercise the jurisdiction
`
`given them.” City of Fishers, Indiana v. DIRECTV, 5 F.4th 750, 752–53 (7th Cir. 2021)
`
`(quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).
`
`“Because a decision to abstain pushes against this obligation, ‘[a]bstention from the
`
`exercise of federal jurisdiction is the exception, not the rule.’” City of Fishers, 5 F.4th at 753
`
`(quoting Colo. River, 424 U.S. at 813).
`
`A judicially created doctrine known as comity abstention “counsels lower federal
`
`courts to resist engagement in certain cases falling within their jurisdiction,” particularly
`Page 3 of 15
`
`
`
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 4 of 15 Page ID #180
`
`cases challenging matters of “state taxation of commercial activity” and “revenue
`
`collection,” which are understood to be core functions of state governments. Levin v.
`
`Commerce Energy, Inc., 560 U.S. 413, 421 (2010); City of Fishers, 5 F.4th at 753, 759. The
`
`comity doctrine reflects “proper respect for state functions” and a “proper reluctance to
`
`interfere by prevention with the fiscal operations of the state governments . . . in all cases
`
`where the federal rights of the persons could otherwise be preserved unimpaired.” Levin,
`
`560 U.S. at 421, 422 (citations omitted); City of Fishers, 5 F.4th at 753, 754.
`
`This principle was partially codified by the Tax Injunction Act (“TIA”), which
`
`provides that a district court “shall not enjoin, suspend or restrain the assessment, levy
`
`or collection of any tax under State law where a plain, speedy and efficient remedy may
`
`be had in the courts of such State.” 28 U.S.C. § 1341; Levin, 560 U.S. at 424 (citation
`
`omitted). But alongside the TIA sits the “more embracive” doctrine of comity, which
`
`“restrains federal courts from entertaining claims for relief that risk disrupting state tax
`
`administration,” has “continuing sway . . . independent of the [TIA],” and bars some cases
`
`not barred by the TIA. Levin, 560 U.S. at 417, 423-24; see also A.F. Moore & Assocs., Inc. v.
`
`Pappas, 948 F.3d 889, 896 (7th Cir.), cert. denied sub nom. Kaegi v. A.F. Moore & Assocs., Inc.,
`
`141 S. Ct. 865 (2020), and cert. denied, 141 S. Ct. 866 (2020) (“Comity is a doctrine of
`
`abstention, rather than a jurisdictional bar, but in the state-taxation context it operates
`
`similarly to the Tax Injunction Act.”).
`
` “[C]omity-based abstention enjoys deep roots
`
`in the Supreme Court's
`
`jurisprudence”—for over 150 years, the Supreme Court has underscored the need for
`
`federal courts to avoid interfering with state and municipal fiscal operations. City of
`Page 4 of 15
`
`
`
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 5 of 15 Page ID #181
`
`Fishers, 5 F.4th at 753 (citing Dows v. City of Chicago, 78 U.S. 108, 110 (1870); Boise Artesian
`
`Hot & Cold-Water Co. v. Boise City, 213 U.S. 276, 282, 29 S. Ct. 426, 428 (1909) (“An
`
`examination of the decisions of this court shows that a proper reluctance to interfere by
`
`prevention with the fiscal operations of the state governments has caused it to refrain
`
`from so doing in all cases where the Federal rights of the persons could otherwise be
`
`preserved unimpaired.”); Fair Assessment in Real Estate Ass'n, Inc. v. McNary, 454 U.S. 100,
`
`116 (1981)).
`
`In Levin v. Commerce Energy, Inc., the Supreme Court made clear that the comity
`
`doctrine serves to “restrain[ ] federal courts from entertaining claims for relief that risk
`
`disrupting state tax administration.” 560 U.S. at 417, 130 S. Ct. 2323. The Court reasoned
`
`that “it is upon taxation that the several States chiefly rely to obtain the means to carry
`
`on their respective governments, and it is of the utmost importance to all of them that the
`
`modes adopted to enforce the taxes levied should be interfered with as little as
`
`possible.” Id. at 421-22, 130 S. Ct. 2323 (quoting Dows, 11 Wall. 108, 110, 20 L.Ed. 65
`
`(1871) (alterations omitted)). The Court cited a “confluence of factors” in reaching its
`
`decision that comity warranted abstention under the facts before it. Levin, 560 U.S. at 431,
`
`130 S. Ct. at 2336.
`
`The first factor is whether the subject of an action is one over which a state enjoys
`
`“wide regulatory latitude.” City of Fishers, 5 F.4th at 756 (citing Levin, 560 U.S. at 431–32).
`
`The second factor is whether a party is seeking federal aid to improve their competitive
`
`position. City of Fishers, 5 F.4th at 756 (citing Levin, 560 U.S. at 431–32). And the third factor
`
`is whether a state court is better positioned to resolve the dispute due to familiarity with
`Page 5 of 15
`
`
`
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 6 of 15 Page ID #182
`
`“state legislative preferences” and because the Tax Injunction Act poses no constraints.
`
`City of Fishers, 5 F.4th at 756 (citing Levin, 560 U.S. at 431–32).2
`
`As Defendants repeatedly emphasized, remand based on the comity abstention
`
`principles at the heart of Levin is discretionary (Doc. 58, pp. 11, 18-19). See City of Fishers,
`
`5 F.4th at 755 (citing Hammer v. United States Dep't of Health & Hum. Servs., 905 F.3d 517,
`
`530 (7th Cir. 2018)) (reviewing district court’s decision to abstain from exercising its
`
`jurisdiction based on the Levin factors for an abuse of discretion). See also Levin, 560 U.S.
`
`at 432 (“Comity . . . is a prudential doctrine.”).
`
`DISCUSSION
`
`As the Court previously noted, this is not the first case of its kind in which
`
`municipalities have sued streaming platforms for failure to pay franchise fees. Indeed,
`
`many other federal courts, including the Seventh Circuit Court of Appeals, have already
`
`been asked the question being posed here—whether the Court should decline to exercise
`
`federal jurisdiction and thus remand the case back to state court under the doctrine of
`
`comity abstention because the case involves local revenue collection and taxation under
`
`a specific state’s regulatory scheme. The courts that have been asked this question have
`
`all favored remand. City of Fishers v. Netflix, Inc., 501 F. Supp. 3d 653, 2020 WL 6778426
`
`
`
`Page 6 of 15
`
` 2
`
`
`
`
` The Tax Injunction Act (“TIA”) provides that a district court “shall not enjoin, suspend or restrain the
`assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may
`be had in the courts of such State.” 28 U.S.C. § 1341. “In practice, then, [it] ensures that challenges to state
`taxes are litigated, if at all, in the state courts.” City of Fishers, 5 F.4th at 753. When it comes to taxes and
`revenue authorized by state statutes, “a federal court's obligation to stay its hand comes most often from
`the [TIA.]” Id. The TIA does not, however, bar federal adjudication of collection suits initiated by states of
`municipalities. Id. Consequently, neither party argues that the TIA completely defeats federal jurisdiction
`(see Docs. 46, 58).
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 7 of 15 Page ID #183
`
`(S.D. Ind. Nov. 18, 2020) (remanding case based on comity abstention where streaming
`
`services were sued for their failure to pay franchise fees to Indiana municipalities under
`
`Indiana's Video Service Franchises Act, Ind. Code §§ 8-1-34-1, et seq.), affirmed 5 F.4th 750
`
`(7th Cir. 2021). See also City of Creve Coeur v. DIRECTV, LLC, No. 4:18-cv-1453, 2019 WL
`
`3604631 (E.D. Mo. Aug. 6, 2019) (remanding case based on comity abstention where
`
`streaming services were sued for their failure to pay fees under Missouri’s Video Services
`
`Providers Act, MO. REV. STAT. § 67.2675, et seq.), leave to appeal denied No. 19-8016, 2019
`
`WL 7945996 (8th Cir. Sept. 12, 2019); Gwinnett Cty., Georgia v. Netflix, Inc., No. 1:21-CV-
`
`21-MLB, 2021 WL 3418083 (N.D. Ga. Aug. 5, 2021) (remanding case based on comity
`
`abstention where streaming services were sued for their failure to pay fees under
`
`Georgia's Consumer Choice for Television Act, GA. CODE ANN. § 36-76-1, et seq.), appeal
`
`docketed Eleventh Circuit Case No. 21-CV-13111.
`
`In City of Fishers, four cities in Indiana filed suit against DirecTV, Dish Network,
`
`Netflix, Hulu, and Disney DTC in Indiana state court based on the defendants’ failure to
`
`pay franchise fees to Indiana municipalities under Indiana's Video Service Franchises
`
`Act, Ind. Code §§ 8-1-34-1, et seq. City of Fishers, 5 F.4th at 752. The defendants removed
`
`the case to federal court under the Class Action Fairness Act of 2005 and the plaintiffs
`
`(the cities) then sought remand, invoking the Levin comity abstention doctrine. Id. The
`
`district court agreed with the cities and remanded, and the decision was affirmed by the
`
`Seventh Circuit. Id.3
`
`
`
` 3
`
`
`
`
` Generally speaking, an order remanding a case to state court is not reviewable on appeal or otherwise
`(except if it was removed pursuant to 28 U.S.C. § 1442 or § 1443). See 28 U.S.C. § 1447(d). However,
`Page 7 of 15
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 8 of 15 Page ID #184
`
`In affirming the district court’s remand order, the Court of Appeals made clear
`
`that careful consideration of the Levin factors was appropriate. As to the first Levin factor,
`
`the Seventh Circuit explained that the State of Indiana and its municipal governments
`
`have broad authority over utility and right-of-way regulation within the State. City of
`
`Fishers, 5 F. 4th at 756. And the Indiana statute was enacted to regulate video services in
`
`a way that benefits local governments. Id. Therefore, by asking the federal court to
`
`interpret the Indiana statute, the defendants sought to inject a federal court into matters
`
`affecting local revenue over which the State of Indiana and its municipalities enjoy wide
`
`regulatory latitude. Id.
`
`With regard to the second Levin factor, the Seventh Circuit held the streaming
`
`platforms removed the case and oppose the cities’ demand for fees as part of an attempt
`
`to maintain a competitive advantage over traditional cable providers, who have been
`
`paying the required fees for years. City of Fishers, 5 F.4th at 751, 756.
`
`And as to the third Levin factor, the Seventh Circuit held that the Indiana courts
`
`were well-positioned to interpret the state’s Video Service Franchises Act in order to
`
`adjudicate the cities’ claims arising under the Act and to resolve the streaming platforms’
`
`defenses, including those defenses rooted in federal law. City of Fishers, 5 F.4th at 756, 757.
`
`
`
`
`in Quackenbush v. Allstate Insurance Co., the Supreme Court clarified that § 1447(d) does not preclude
`appellate jurisdiction over abstention-based remand orders and held that such orders are appealable
`under 28 U.S.C. § 1291. See 517 U.S. 706, 715, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). This exception carved out
`by Quackenbush thus provided the Seventh Circuit Court of Appeals the basis for which to review the
`district court’s remand order on appeal. See City of Fishers, Indiana, 5 F.4th at 752.
`
`
`
`
`
`
`Page 8 of 15
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 9 of 15 Page ID #185
`
`Here, this Court sees no reason why the Seventh Circuit’s analysis in City of Fishers
`
`does not also hold true. The Village seeks the same relief under Illinois law that the
`
`plaintiffs in City of Fishers sought under the related Indiana law (and the plaintiffs in City
`
`of Creve Coeur and Gwinnett County sought under the related Missouri and Georgia laws).
`
`Specifically, they all sought a declaration that streaming platforms are video service
`
`providers and therefore must pay a small percentage of their earnings to local units of
`
`government in which they do business. As to the first Levin factor, Defendants seek to
`
`inject a federal court into matters affecting local revenue over which the State of Illinois
`
`and its municipalities enjoy wide regulatory latitude. As to the second factor, Defendants
`
`claim they did not invoke federal court jurisdiction in the instant case to improve their
`
`competitive position, but rather to avoid duplicative litigation (Doc. 58, pp. 12–13). It may
`
`very well be true that in removing this case, the Defendants were trying to avoid
`
`duplicative litigation. But that does not negate the fact that they invoked federal court
`
`jurisdiction and a win for Defendants in this tribunal would improve their competitive
`
`position by allowing them to avoid the fees that traditional cable companies are forced to
`
`pay. As for the third Levin factor, Defendants argue that “the federal court is capable of
`
`deciding matters of state law when, as here, it has been asked to do so by a local
`
`government plaintiff.” (Doc. 58, p. 13). But the question here is not whether this Court is
`
`capable of interpreting the Illinois statute. It is. Rather, the question is whether in spite of
`
`its capability to interpret the Illinois statute, this Court should abstain from doing so out
`
`of respect and deference for state sovereignty and the need to allow states to carry on
`
`their fiscal operations without interference from federal courts. See Levin, 560 U.S. at 421–
`Page 9 of 15
`
`
`
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 10 of 15 Page ID #186
`
`22; City of Fishers, 5 F.4th at 758 (“abstention doctrines reflect foundational features of our
`
`federal constitutional system, including respect for dual sovereignty and caution against
`
`interfering with traditional state functions, like taxation.”). And in this instance, the
`
`answer is “yes,” because this matter involves an interpretation of Illinois state law—
`
`specifically, certain provisions of the Illinois Cable and Video Competition Law of 2007—
`
`for which there is no existing state court guidance. But the Court must note that here this
`
`consideration is indeed mitigated by the fact that regardless of where this case is litigated,
`
`this Court will be called upon to resolve the issues of state law raised in the East St. Louis
`
`case involving this same controversy. See City of East St. Louis v. Netflix, Inc., et al., SDIL
`
`Case No. 21-cv-561-MAB.
`
`Defendants, however, oppose remand and make several arguments as to why the
`
`Court should exercise its discretion and deny remand. To begin with, Defendants
`
`suggest, but do not affirmatively assert, that when a case is properly removed under
`
`CAFA, federal courts can only remand the case based on the express exceptions set forth
`
`in the statute (i.e., the “local controversy” exception and the home-state exception) and
`
`lack the authority to remand the case based on non-statutory grounds, such as the comity
`
`abstention principles at the heart of Levin (Doc. 58, pp. 16–18). In City of Fishers, the
`
`Seventh Circuit gave a thorough explanation in dicta as to why this argument was
`
`unavailing but declined to make it a definitive holding because the defendants had
`
`waived the argument. City of Fishers, 5 F.4th at 758.4 Defendants here have not offered
`
`
`
` 4
`
`
`
`
` Specifically, the Seventh Circuit acknowledged that the exceptions in CAFA allowing remand (such as
`the “local controversy” exception or home-state exception) reflect Congress’s judgment that a class action
`Page 10 of 15
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 11 of 15 Page ID #187
`
`any argument that persuasively pushes back against the Seventh Circuit’s explanation of
`
`how statutes conferring federal jurisdiction must still be considered in tandem with
`
`comity abstention principles, when appropriate (see Doc. 58, pp. 16–18).
`
`Defendants also contend that because it was “a taxing authority,” meaning the
`
`City of East St. Louis and the Village of Shiloh, who initiated suit to determine the proper
`
`interpretation and application of the Act, this case is different than all of the other
`
`taxpayer-initiated lawsuits in which comity abstention was warranted (Doc. 58, pp. 19–
`
`20). But this argument has also been rebuffed by the Seventh Circuit. City of Fishers, 5
`
`F.4th 755. Specifically, the Seventh Circuit held that the fees at issue, which yield revenue
`
`for municipalities, much like a tax, could thus be understood as a tax for Levin purposes.
`
`Id. Therefore, “regardless of who brought the underlying suit, the district court’s
`
`resolution of the merits issues will risk or result in federal court interference with the
`
`fiscal affairs of local government—the principal concern of Levin” because the district
`
`court’s decision “will impact the cities’ ability to generate revenue, either by permitting
`
`the collection of franchise fees or by cutting off a line of potential income.” Id.; see also
`
`Gwinnett Cty., Georgia v. Netflix, Inc., No. 1:21-CV-21-MLB, 2021 WL 3418083, at *6 (N.D.
`
`
`
`
`with deep roots in a single state belongs in that state rather than a federal tribunal. City of Fishers, 5 F.4th at
`758. But CAFA’s exceptions to federal jurisdiction do not eliminate a federal court’s “ability, if not
`obligation” to also consider the comity abstention principles at the heart of Levin. Id. In short, the Court
`explained that statutes conferring federal jurisdiction (such as CAFA) must still be considered with
`sensitivity to federal-state relations and wise judicial administration. Id.; see also Saskatchewan Mut. Ins. Co.
`v. CE Design, Ltd., 865 F.3d 537, 542 (7th Cir. 2017) (noting that CAFA is a jurisdictional statute that must
`be read with “sensitivity to federal-state relations and wise judicial administration” and noting that it
`“seems to us neither sensitive nor wise for federal courts to insert themselves into litigation that has busied
`the Illinois and Saskatchewan courts for a considerable time.”) (internal quotations omitted).
`
`
`
`
`
`Page 11 of 15
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 12 of 15 Page ID #188
`
`Ga. Aug. 5, 2021).
`
`Defendants’ remaining arguments all revolve around their attempt to distinguish
`
`the instant case from the City of Fishers by asserting that the Village is attempting to
`
`pursue unnecessary and duplicative “copycat litigation” in state court, and under these
`
`circumstances comity abstention is not warranted (Doc. 58). As previously mentioned,
`
`the East St. Louis case was filed in federal court while this case started in state court.
`
`Defendants argue that they removed this case in order to avoid duplicative litigation in
`
`two different forums (see Doc. 58). And now, the Village is trying to remand it back to
`
`state court, which would “guarantee” duplicative litigation of two almost identical class
`
`actions in two different forums (Doc. 58, p. 13). Defendants argue that the duty to avoid
`
`duplicative litigation outweighs any comity concerns (Doc. 58, pp. 7, 8). According to
`
`Defendants, the Court should keep this case and employ one of several case management
`
`options, such staying this case, consolidating it in full or in part with the East St. Louis
`
`case, or coordinating the two proceedings to maximize efficiency and avoid duplication
`
`of effort (Doc. 58, pp. 7–8, n.1).
`
`The issue is whether the Court should first consider the procedural or
`
`administrative issue of how to manage duplicative class actions or whether it should first
`
`consider the propriety of exercising its discretion to remand this case under the comity
`
`abstention doctrine. The parties have pointed the Court to cases that deal with similar
`
`situations, and the Court has also found some others during the course of its own
`
`research. See, e.g., Washington v. Burley, No. CIV.A. 3-12-154, 2012 WL 5289682, at *2 (S.D.
`
`Tex. Oct. 23, 2012) (deciding whether to first address a consolidation motion or a motion
`Page 12 of 15
`
`
`
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 13 of 15 Page ID #189
`
`seeking discretionary remand of state law claims pursuant to 28 U.S.C. § 1367(c)). The
`
`Court, however, notes there is one glaring difference in this case and the other cases it
`
`has reviewed — here, there is no motion or formal request asking this Court to
`
`consolidate, stay, or dismiss this case. In the other cases, a formal motion had been filed
`
`requesting the relief the Defendants sought. Id. at * 1 (concluding that the court will first
`
`consider the motion to remand and denying that motion and then considering the motion
`
`to consolidate and granting that motion). But here, Defendants took no action following
`
`removal to affirmatively and formally put the issue of how to manage the two duplicative
`
`cases before the Court. In fact, they specifically asked the Court to excuse them from filing
`
`anything until after the motion to remand had been ruled on (Doc. 27). And now they’re
`
`asking the Court to defer ruling on the only issue formally presented to it—whether to
`
`remand under the Levin comity abstention doctrine is warranted—based on matters of
`
`hypothetical case management that Defendants have not yet addressed nor firmly
`
`committed to addressing in the future should the Court agree with them and deny the
`
`motion to remand (see Doc. 58). As the Court sees it, Defendants put the cart before the
`
`horse.
`
`Furthermore, it is not manifestly evident which of the case management tactics
`
`would be the best route to take or which the parties would be most amenable to. As a
`
`result, this issue is not one that the Court is inclined to address sua sponte without any
`
`briefing from the parties.
`
`Finally, Defendants assert that the duty to avoid duplicative litigation overrides
`
`comity concerns. But they do not cite to any cases that actually say as much (see Doc. 58).
`Page 13 of 15
`
`
`
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 14 of 15 Page ID #190
`
`Defendants also do not cite any cases where a federal district court found all of the Levin
`
`factors weighed in favor of abstention but the court nevertheless declined to abstain for
`
`administrative or case-management-type reasons (see id.). The conspicuous absence of
`
`authority on this point is important. It simply cannot be overlooked.
`
`The Court acknowledges that remand will result in a situation where duplicative
`
`lawsuits are proceeding in state and federal court. This situation is certainly not ideal.
`
`East St. Louis voluntarily chose to submit to a federal forum to decide the same questions
`
`that the Village of Shiloh contends should not be decided by a federal court. But
`
`Defendants are not doomed to proceed simultaneously in both forums. Perhaps they will
`
`ask the state court judge to stay this case once it is remanded. Or they can move to stay
`
`the East St. Louis case that will remain in this District. See Clark v. Lacy, 376 F.3d 682, 685
`
`(7th Cir. 2004) (quoting Colo. River, 424 U.S. at 818) (“Under the Colorado River abstention
`
`doctrine, a federal court may stay a suit in exceptional circumstances when there is a
`
`concurrent state proceeding and the stay would promote ‘wise judicial administration.’”).
`
`Simply put, there are options that can be used to avoid duplicative efforts in the state
`
`court or in this Court.
`
`In sum, the question of whether a court should decline federal jurisdiction and
`
`remand a case back to state court under the comity abstention doctrine is, of course, a use
`
`of the Court’s discretion. However, every other court that has been asked to answer this
`
`question in nearly identical cases around the country have chosen to remand. See supra
`
`pp. 6-7. And in one instance, the district court’s remand order was affirmed by the
`
`Seventh Circuit Court of Appeals. Id. Of course, this case presented a wrinkle in that a
`Page 14 of 15
`
`
`
`
`
`
`Case 3:21-cv-00807-MAB Document 68 Filed 03/24/22 Page 15 of 15 Page ID #191
`
`similar lawsuit was filed as an original action in this Court and the undersigned may soon
`
`be deciding motions to dismiss in that case. See City of East St. Louis v. Netflix, Inc., et al.,
`
`SDIL Case No. 21-cv-561-MAB. But here, the Defendants never formally committed to
`
`moving this Court to stay this case. Nor did they formally ask the Court to consolidate or
`
`coordinate the two, or employ some other case-management tool with respect to the two
`
`cases. The Court is not a clairvoyant and this is simply not the type of issue this Court
`
`can and should address sua sponte without formal briefing and a full-throated discussion
`
`on the topic because the path forward is not manifestly clear. And finally, no party has
`
`pointed this Court to any authority where a federal district court found all of the Levin
`
`factors weighed in favor of abstention, but nevertheless declined to abstain based on case-
`
`management reasons. Accordingly, the Court must remand this case to state court.
`
`CONCLUSION
`
`Plaintiff, Village of Shiloh’s motion to remand (Doc. 45) is GRANTED. This case
`
`is REMANDED to the Circuit Court for the Twentieth Judicial Circuit, St. Clair County,
`
`Illinois.
`
`IT IS SO ORDERED.
`
`DATED: March 24, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`s/ Mark A. Beatty
`
`MARK A. BEATTY
`United States Magistrate Judge
`
`
`
`
`Page 15 of 15
`
`
`
`
`
`
`
`
`
`