Opinion
Civil Action No. 3:02-CV-2095-D
November 5, 2002
MEMORANDUM OPINION AND ORDER
Defendant MS. Carriers, Inc. ("MSC") moves the court to abate this action, or to abate it in part, until the conclusion of a pending criminal case against Michael Keith Nichols ("Nichols"). The court grants the motion to the extent that it abates the action in part.
I
Plaintiffs bring this action arising from a tragic vehicular collision that took the life of one person and seriously injured another. According to plaintiffs, Manuel Victor Perez ("Perez") was killed and Juan Cipriano Marcos ("Marcos") was seriously injured when an MSC tractor-trailer rig being driven by Nichols ran a stop sign and collided with a car in which Perez and Marcos were passengers. A state grand jury has indicted Nichols for criminally negligent homicide. MSC moves the court to abate the action in its entirely, or at least with respect to discovery as it relates to Nichols, until the criminal case against him has been concluded. It maintains that Nichols is subject to criminal prosecution, has separate counsel for the criminal case, and has the right to invoke his Fifth Amendment privilege against self-incrimination. MSC argues that plaintiffs' claims against it arise from an alleged agency relationship between it and Nichols, but that Nichols is unable to participate in discovery or in MSC's defense, thereby stymieing its ability to defend itself
This case is now pending in its fourth forum. Plaintiffs filed it in state court in Webb County, Texas, MSC removed it to the Southern District of Texas, that court transferred it to the Western District of Texas (while suggesting that it probably should be transferred to the Northern District of Texas but that the court was powerless to make such a transfer), and the Western District of Texas granted an unopposed motion to transfer the case to the Northern District of Texas, Dallas Division. The court is not confident that the case should be pending in this division, because plaintiffs' connection to this court appears to be the Fort Worth Division, not the Dallas Division. Nevertheless, because, at some point, this case must come to rest, the court will not direct that it be transferred still again.
MSC filed its motion to abate on July 16, 2002 in the Western District of Texas, where the case was then pending. Plaintiffs filed their response on August 2, 2002. MSC did not file a reply brief. On October 21, 2002 MSC filed in this court a request for ruling by submission, in which it asked the court to decide the motion. On October 30, 2002 plaintiffs filed the response to MSC's request. They join the request that the court decide the motion. The court grants the request for ruling, and decides the motion today.
Plaintiffs oppose a stay. They argue that MSC lacks standing to seek abatement, that MSC's motion effectively serves as an impermissible blanket assertion of the Fifth Amendment privilege, and that total abatement is unwarranted, since significant discovery can be taken without Nichols' complete and/or limited participation.
The court will not organize its analysis based on plaintiffs' arguments, because in some respects they misunderstand the apposite jurisprudence. For example, their contention that MSC lacks standing is based erroneously on the personal nature of the Fifth Amendment privilege. While it is true that MSC cannot invoked Nichols' right against self-incrimination, it can certainly rely on the fact that he has that right to seek a stay of discovery.
II
"As the Fifth Circuit has instructed, in ruling on requests for stays of the civil side of parallel civil/criminal proceedings, "Judicial discretion and procedural flexibility should be utilized to harmonize the conflicting rules and to prevent the rules and policies applicable to one suit from doing violence to those pertaining to the other. In some situations it may be appropriate to stay the civil proceeding. In others it may be preferable for the civil suit to proceed — unstayed.'" United States v. Gieger Transfer Serv., Inc., 174 F.R.D. 382, 385 (S.D. Miss. 1997) (quoting Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962) (citation omitted)). "Certainly, a district court may stay a civil proceeding during the pendency of a parallel criminal proceeding. Such a stay contemplates `special circumstances' and the need to avoid "substantial and irreparable prejudice.'" United States v. Little Al, 712 F.2d 133, 136 (5th Cir. 1983) (citing SEC v. First Fin. Group of Tex., Inc., 659 F.2d 660, 668 (5th Cir. Oct. 1981)).Courts from other jurisdictions have outlined several factors that should be considered in determining whether "special circumstances" warrant a stay, including: (1) the extent to which the issues in the criminal case overlap with those presented in the civil case; (2) the status of the criminal case, including whether the defendants have been indicted; (3) the private interests of the plaintiffs in proceeding expeditiously, weighed against the prejudice to plaintiffs caused by the delay; (4) the private interests of and burden on the defendants; (5) the interests of the courts; and (6) the public interest. See, e.g., Trustees of Plumbers and Pipefitters Nat'l Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995) (citing Parallel Civil and criminal proceedings, 129 F.R.D. 201, 201-3 (Pollack, J.) ("Parallel Proceedings")); Volmar Distribs., Inc. v. The New York Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993).
C 1
The first question to be resolved is the extent to which the issues in Nichols' criminal case overlap with those in the present case, because self-incrimination is more likely if there is significant overlap. See Volmar Distribs., 152 F.R.D. at 39 (quoting Parallel Proceedings, 129 F.R.D. at 203) ("The most important factor at the threshold is the degree to which the civil issues overlap with the criminal issues."). "If there is no overlap, there would be no danger of self-incrimination and accordingly no need for a stay." Trustees, 886 F. Supp. at 1139 (citing Parallel Proceedings, 129 F.R.D. at 203).
The subject matter of the criminal charges against Nichols is substantially, if not precisely, the subject matter of the instant civil suit. The criminal case and this suit both arise from allegations about Nichols' conduct related to the December 11, 2001 accident that took Perez's life and maimed Marcos. The court finds that this overlap of issues between the civil and criminal actions weighs in favor of a stay.
The second factor to be considered is the status of the criminal case. "A stay of a civil case is most appropriate where a party to the civil case has already been indicted for the same conduct for two reasons; first, the likelihood that a defendant may make incriminating statements is greatest after an indictment has issued, and second, the prejudice to the plaintiffs in the civil case is reduced since the criminal case will likely be quickly resolved due to Speedy Trial Act considerations." Trustees, 886 F. Supp. at 1139. Although Nichols is not a party to the instant case, he is a person whose testimony is essential to its fair adjudication, because it is his alleged conduct that serves as the basis for plaintiffs'claims. Since Nichols is under indictment rather than merely under investigation, the court finds that the status of the criminal case weighs in favor of a stay.
In ruling on a motion for stay, the court should also weigh the private interests of the plaintiffs in proceeding expeditiously against the prejudice that will be caused by the delay that will result from the stay. Plaintiffs assert that the criminal case against Nichols is proceeding slowly and uncertainly, with no specific trial date. Nevertheless, Texas law recognizes a right to a speedy trial. Therefore, the court concludes that consideration of the burden to be placed on the plaintiffs does not weigh heavily against a stay.
The court recognizes that, even if convicted, Nichols' Fifth Amendment privilege may continue throughout the pendency of his direct appeal. See, e.g., Frank v. United States, 347 F.2d 486, 491 (D.C. Cir. 1965). Because the issuance and duration of a stay are committed to the court's sound discretion, and because imposition of a stay lasting throughout the duration of Nichols' direct appeal (if he is convicted) would likely be unduly burdensome to plaintiffs' interests, the court contemplates that the stay granted today will remain in effect only through sentencing. If he is acquitted, the stay will terminate upon the return of a not guilty verdict.
4
The court has also considered the private interest of MSC in securing the stay and the burden on it that would result were the stay denied. As discussed above, absent a stay, Nichols faces a conflict between asserting his Fifth Amendment rights and fulfilling his legal obligations as a witness in this civil action. This conflict may be largely, if not completely, eliminated by granting a stay of appropriate scope. Moreover, the court discerns no substantial prejudice to plaintiffs from granting a partial stay. Therefore, the court finds that MSC's private interest weighs in favor of abatement in part.
Because the court concludes that granting a stay will not unduly interfere with the court's management of its docket, it finds that the court's interests do not weigh against a stay. Additionally, the court holds that the interests of the public do not weigh against a stay.
6
MSC seeks abatement of the entire suit, contending that Nichols is unable to participate in discovery or in MSC's defense, thereby compromising its ability to defend itself. The court is not persuaded that all discovery must be halted. There would appear to be a great deal of discovery that both parties could undertake, including that concerning the physical evidence from the accident, the extent, nature, and costs of the medical expenses rendered to Marcos, and the personal injuries that plaintiffs suffered as a result of the death of Perez and the injuries to Marcos. Instead, the court abates the case to the extent that plaintiffs are precluded from taking Nichols' deposition and from conducting any discovery that MSC can show, by motion, will or is likely to subject it to undue prejudice by reason of Nichols' unavailability as a witness to MSC or to assist it in its defense.
This is intended as an illustrative, nonexclusive list, not a catalogue of the limits of available discovery.
* * *
Based on its consideration of the above factors, and in the interests of justice, the court grants in part MSC's motion to abate and, to the extent set forth above, abates discovery in this case until such time as a verdict of not guilty has been returned or sentencing has been completed in the criminal action against Nichols.
SO ORDERED.