all of its requirements of certain steel products from Wheeling for a period commencing January 1, 1964 and terminating December 31, 1972; that the contract is illegal and unenforceable by virtue of 15 U.S.C. §§ 1 and 14; and that "the parties therefore were and are under no obligation to and might not and may not lawfully continue to perform said contract or comply with its terms and conditions." The relief sought is a determination by this Court that the contract is illegal and unenforceable.
This litigation arises out of an action previously instituted by Wheeling against Triangle in the Circuit Court of Ohio County, West Virginia. In that action Wheeling, as plaintiff, brought suit against Triangle on the same contract alleging breach by reason of failure of Triangle to perform according to the agreement after November 5, 1965.
Triangle filed an answer to the complaint in the West Virginia suit admitting the existence of the contract and alleging that "it advised plaintiff that the contract no longer was in effect and had not been in effect since at least July 1, 1964." It asserted by way of an affirmative defense as it does by the allegations of its complaint in this Court that the contract was illegal and unenforceable by virtue of 15 U.S.C. §§ 1 and 14. Further affirmative defenses asserted in the answer filed by Triangle in the West Virginia action allege breach of the agreement by Wheeling for which damages were sought by the allegations of the counterclaim.
Wheeling moves to dismiss the complaint of Triangle or, in the alternate, for a stay of proceedings while the West Virginia action is pending. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337 and 2201.
Considering the allegations of Triangle's complaint in this Court together with the pleadings in the West Virginia court, it seems clear that what Triangle seeks in this action is a determination of the validity of its anti-trust defense in the West Virginia action. Generally a federal court should not entertain a declaratory judgment action when the same issue is subject to adjudication in a prior pending state court action. The exercise of jurisdiction under the Federal Declaratory Judgment Act is discretionary, not compulsory. Brillhart v. Excess Insurance Co., 316 U.S. 491, 494-495, 86 L. Ed. 1620, 62 S. Ct. 1173 (1942); Zemel v. Rusk, 381 U.S. 1, 19, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1964). The exception to this rule is that the action of the court may not constitute an abuse of its discretion. It should not abstain where under federal law it has a clear duty to act. In the instant case there appears to be no sound reason why this Court should intervene by way of declaratory judgment to establish the validity of a defense under anti-trust laws interposed in the West Virginia action. In Public Service Commission of Utah v. Wycoff, 344 U.S. 237, 248, 97 L. Ed. 291, 73 S. Ct. 236 (1952) the Supreme Court stated:
"Where a complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is a federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law. Tennessee v. Union and Planters' Bank, 152 U.S. 454, 38 L. Ed. 511, 14 S. Ct. 654; The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 57 L. Ed. 716, 33 S. Ct. 410; Taylor v. Anderson, 234 U.S. 74, 58 L. Ed. 1218, 34 S. Ct. 724."