United States District Court, W.D. New York
DECISION AND ORDER
JEREMIAH J. McCARTHY, Magistrate Judge.
This action has been referred to me by District Judge William M. Skretny for supervision of pretrial proceedings . Before me are motions by defendants Sean Warner, Matthew Raddemacher and Erik Hibsch for a continuation of the stay of proceedings in this action pending the conclusion of a criminal investigation [57, 58, 59]. Plaintiff opposes the motions . Oral argument was held on May 11, 2015 . For the following reasons, the motions are denied.
Plaintiff commenced this action in State of New York Supreme Court, Kings County on January 17, 2012, seeking damages under 42 U.S.C. §1983 for an alleged assault by defendants, correctional officers at Attica Correctional facility, on August 9, 2011. Summons with Notice , p. 16 of 28. On March 29, 2012 defendants removed the action to the United States District Court for the Eastern District of New York . On June 5, 2012 Magistrate Judge Joan Azrack stayed all discovery (other than medical authorizations) pending resolution of criminal proceedings against defendants , and the action was transferred to this district on September 26, 2013 .
On March 2, 2015 defendants Swack, Raddemacher and Warner pled guilty to a charge of official misconduct, a Class A misdemeanor under New York Penal Law §195.00(1), were sentenced to a conditional discharge, and resigned their positions as correctional officers. Meyers Buth Affidavit , ¶15. Allegedly as a result of adverse publicity and calls for a further investigation (id., ¶¶19-21), counsel for defendant Warner "subsequently contacted federal authorities and learned that an AUSA has been assigned to the case and a criminal investigation has been opened. Deponent, however, was unable to obtain any information about the time frame or scope of the investigation or likelihood that federal criminal charges would be brought against these defendants". Id., ¶22.
Defendants blame plaintiff for their predicament, arguing that they "are potential targets of a federal investigation which [they] believe was initiated, in part, because of Plaintiff's cooperation with the press and his comments about the subject matter of this lawsuit.... Upon information and belief, the U.S. Attorney's Office had absolutely no involvement in this case until after the media coverage and public calls for the Office of Civil Rights to investigate". Id., ¶¶44-45. They note that "[i]f the Court lifts the stay the Defendants are faced with a classic Hobson's choice: to either assert their Fifth Amendment privilege and have a negative inference drawn in the civil trial, or, provide answers in discovery proceedings and risk of those responses being used to incriminate them in the pending federal criminal investigation". Id., p. 19.
Defendants suggest either that the stay continue until the five-year federal statute of limitations expires in approximately 15 months (id., ¶31),  or that only non-party discovery be allowed at this time. Id., p. 19. Plaintiff opposes both suggestions, counsel stating at oral argument that he has little need for additional non-party discovery, and wishes to proceed with defendants' depositions.
"[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.... How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance." Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 96-97 (2d Cir. 2012). "The person seeking a stay bears the burden of establishing its need." Id. at 97.
In determining whether to stay civil proceedings in view of pending criminal proceedings, "[t]he district courts of this Circuit... have often utilized a six-factor balancing test first set forth by then-district court judge Chin: 1) the extent to which the issues in the criminal case overlap with those presented in the civil case; 2) the status of the 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." Id. at 99.
While not mandating that each court consider all of these factors, the Second Circuit has stated that "[w]ere we forced to choose... we would likely prefer Judge Chin's six-part formulation because it explicitly considers the degree to which the issues in the civil and criminal proceedings overlap". Id. at 100, n. 14. Accordingly, each of these factors will be considered:
1. The extent to which the issues in the criminal case overlap with those presented in the civil case -
At this point there is no criminal case pending, and defendants have been "unable to obtain any information about the time frame for scope of the investigation". Meyers Buth Affidavit , ¶22. As plaintiff points out, "since defendants allege that the purported DOJ investigation of Attica is not limited to allegations of civil rights violations against [plaintiff], presumably the DOJ is also is investigating claims of abuse against other Attica inmates. Carrying defendants' argument to its logical extreme therefore would require a stay of all pending lawsuits brought by Attica ...