May, J.
BFD Enterprises, LLC (“BFD”) appeals following the trial court’s order dismissing its lawsuit against Jeff Koepnick and Shamarie Schauer stemming from an automobile accident that occurred in Indiana. BFD raises two issues on appeal, which we revise and restate as:
1. Whether the trial court abused its discretion when, in deference to a Kentucky lawsuit filed by Schauer against BFD, the trial court dismissed BFD’s lawsuit pursuant to comity principles; and
2. Whether the trial court abused its discretion in dismissing BFD’s lawsuit pursuant to Trial Rule 4.4(C) on the ground that Kentucky was a more convenient forum.
We affirm.
….
“Generally, where an action concerning the same parties and the same subject matter has been commenced in another jurisdiction capable of granting prompt and complete justice, comity should require staying or dismissing of a subsequent action filed in a different jurisdiction.” Id. In deciding whether to dismiss a lawsuit based on comity, the trial court may consider: “(1) whether the first filed suit has been proceeding normally, without delay, and (2) whether there is a danger the parties may be subjected to multiple or inconsistent judgments.” Id. We review a trial court’s decision to dismiss a suit based on comity for an abuse of discretion. [Footnote omitted.] Brightpoint, Inc. v. Pedersen, 930 N.E.2d 34, 39 (Ind. Ct. App. 2010), trans. denied. An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before it. Id.
1.1. First Filed
BFD argues the trial court abused its discretion in dismissing the Indiana Lawsuit because it was the first-filed case…
…. BFD asserts May stands for the principle that a first-filed suit cannot be dismissed based on comity.
We do not agree May created such a bright-line rule. Even though the Indiana Lawsuit was filed five days before the Kentucky Lawsuit, the Kentucky Lawsuit is further along than the Indiana Lawsuit because of BFD’s delay in serving Schauer. As the trial court noted in its order granting Schauer’s motion to dismiss, the Kentucky state court obtained jurisdiction over Schauer and BFD months before the Indiana state court did. (App. Vol. II at 13 (citing Ind. T.R. 4(A) (“The court acquires jurisdiction over a party or person who under these rules . . . is served with summons or enters an appearance . . .”)). The Indiana Lawsuit has not advanced past the pleadings stage, but the parties have already started discovery in the Kentucky Lawsuit. Moreover, BFD did not successfully serve Schauer with the Indiana Lawsuit until after the Kentucky state court denied BFD’s motion to dismiss the Kentucky Lawsuit. Even though the Indiana Lawsuit was the first-filed suit, the additional progress in the Kentucky Lawsuit as compared to the Indiana Lawsuit supports the trial court’s decision to dismiss the Indiana Lawsuit. See Bowlers Country Club, Inc. v. Royal Links USA, Inc., 846 N.E.2d 732, 737 (Ind. Ct. App. 2006) (dismissing a case based on comity principles, and noting, among other factors, that “Bowlers had already filed a motion to dismiss the Iowa action,” and the Iowa court had denied that motion), trans. denied.
1.2. Parties, Subject Matter, and Remedy
In addition to arguing the Indiana Lawsuit should not be dismissed because it was the first-filed action, BFD contends the factors we use to consider whether to dismiss a lawsuit based on the principal of comity weigh against dismissing the Indiana Lawsuit. We look to caselaw interpreting Trial Rule 12(B)(8), which allows for dismissal of a suit if a similar suit is pending in another Indiana state court, for guidance in deciding issues of comity. Angelopoulos, 2 N.E.3d at 695. In Vannatta v. Chandler, we explained that “when faced with a challenge to a trial court’s dismissal on the basis of T.R. 12(B)(8), the critical question before us is ‘whether the parties, subject matter, and remedies are either precisely or substantially the same.” 810 N.E.2d 1108, 1111 (Ind. Ct. App. 2004) (quoting Davidson v. Perron, 716 N.E.2d 29, 35 (Ind. Ct. App. 1999), trans. denied). BFD argues dismissing the Indiana Lawsuit was error “because the actions do not involve the same parties, the same subject matter, or the same remedy.” (Appellant’s Br. at 15.) In contrast, Schauer maintains the trial court correctly dismissed the Indiana Lawsuit. She argues the two lawsuits involve the same parties – Schauer and BFD – and both lawsuits concern injuries stemming from the August 20, 2020, truck accident. Schauer also contends both lawsuits involve substantially similar remedies because both Schauer and BFD seek monetary relief.
1.2.1. Parties
BFD argues the parties in the Indiana Lawsuit and the Kentucky Lawsuit are not the same because while Koepnick is named in the Indiana Lawsuit, he is not a party in the Kentucky Lawsuit. BFD asserts it “has multiple claims against Koepnick and those claims are at risk of never seeing the light of day if the trial court’s order of dismissal is not reversed.”…
Moreover, even though Koepnick is not named in the Kentucky Lawsuit, BFD could have brought suit against him in Kentucky…
1.2.2. Subject Matter
BFD additionally contends “BFD’s claims in the Indiana action are wholly distinct and unrelated to Schauer’s theory of liability in the Kentucky case.” (Appellant’s Br. at 25.) It argues the factual determinations necessary in the Indiana Lawsuit concern what occurred during the journey and accident. In contrast, BFD maintains, the factual determinations of the Kentucky Lawsuit concern questions regarding Koepnick’s employment relationship with BFD, including the scope of Koepnick’s employment, BFD’s training practices, and BFD’s knowledge of Koepnick engaging in any unsafe driving practices.
However, we disagree that the subject matter of the claims can be separated from each other. Litigation may concern the same subject matter for comity purposes even though the theories advanced by the parties do not completely overlap…
1.2.3. Remedies
BFD also contends remedies available to it in the Indiana Lawsuit are not available to it in the Kentucky Lawsuit. BFD notes that, in May, the potential remedy available through the Indiana appeal was different from the potential remedy available through the Illinois lawsuit. We explained, “whether May can seek injunctive relief in Indiana is unlikely to be an issue in the pending action in Illinois; thus, the parties do not risk facing conflicting decisions.” May, 629 N.E.2d at 260. BFD likens the instant case to May and claims “the uncertainty regarding the recognition of Indiana’s statutory and common law claims under Kentucky law (e.g., BFD’s dram shop claim against Schauer), demand that comity not be applied[.]” (Appellant’s Br. at 27-28.)
However, both BFD and Schauer are seeking money damages. Moreover, BFD’s dram shop claim and its assertion Schauer is responsible for the accident are inextricably linked….
1.2.4. Risk of Inconsistent Rulings
….
BFD contends “[t]he material facts, evidence, and relevant law will be entirely different in the two actions and, thus, the risk of inconsistent rulings is negligible[.]” (Appellant’s Br. at 28.) However, we cannot agree. As we have explained above, both BFD and Schauer blame the other for actions that resulted in the August 20, 2020, semi-truck accident. Therefore, the risk of inconsistent findings in allowing both the Kentucky Lawsuit and the Indiana Lawsuit to move forward is real, and dismissal of the Indiana Lawsuit on the basis of comity serves to alleviate that risk. See Am. Econ. Ins. Co. v. Felts, 759 N.E.2d 649, 661 (Ind. Ct. App. 2001) (“Because a court of our sister state is adjudicating this very issue and the same parties are litigating this very issue, there was no abuse of discretion in dismissing American Economy’s declaratory judgment action.”).
1.2.5 Weighing of Comity Factors
In the two lawsuits, both BFD and Schauer seek monetary relief, and each one seeks the relief from the other. Thus, the parties and the remedies are the same in both the Indiana Lawsuit and the Kentucky Lawsuit. The August 20, 2020, truck accident plays a central role in both lawsuits as each case concerns who contributed to the accident and in what ways that party contributed. These facts also create a risk of inconsistent results if both lawsuits are allowed to move forward. Thus, the comity factors weigh in favor of dismissing the Indiana Lawsuit. See Bowlers Country Club, Inc., 846 N.E.2d at 737 (holding trial court did not abuse its discretion when it dismissed Indiana action based on the principles of comity).
….
The record supports the trial court’s conclusion Kentucky is a more convenient forum than Indiana. The trial court found both Schauer and BFD are residents of Kentucky. Kentucky is also a convenient forum for BFD as evidenced by its specification of Kentucky as the preferred forum in the release of liability it requires all passengers to execute before accompanying the company’s drivers on their trips. While the parties may wish to call Indiana residents as witnesses in the Kentucky Lawsuit, both Indiana and Kentucky have adopted the Uniform Interstate Depositions and Discovery Act, and therefore, the courts of one state may secure the attendance of witnesses in the other state. [Footnote omitted.] Consequently, we hold the trial court did not abuse its discretion when it dismissed the Indiana Lawsuit pursuant to Trial Rule 4.4(C). [Footnote omitted.] See Anyango, 971 N.E.2d at 663-64 (holding Canada was more convenient forum for suit stemming from helicopter accident that killed pedestrian and dismissing lawsuit filed in Indiana).
Conclusion
The principal of comity supports dismissing the Indiana Lawsuit. Even though the Indiana Lawsuit was filed days before the Kentucky Lawsuit, the Kentucky court acquired jurisdiction over the parties before the Indiana court and the Kentucky Lawsuit is further along in the litigation process. Moreover, both the Kentucky Lawsuit and the Indiana Lawsuit involve Schauer and BFD asserting claims for damages against each other stemming from the August 20, 2020, truck accident. Allowing both suits to proceed creates a risk of inconsistent results.
In addition, Trial Rule 4.4(C) supports dismissing the Indiana Lawsuit on the basis Kentucky is a more convenient forum. Schauer is a Kentucky resident and initiated suit in Kentucky. BFD is likewise a Kentucky corporation, and BFD designates Kentucky as the preferred forum in the release of liability it requires of passengers. Consequently, BFD cannot sincerely assert it is uncomfortable litigating in Kentucky. Therefore, we affirm.
Affirmed.
Brown, J., and Pyle, J., concur.