5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 JOSEPH ALLEN, 8 No. 2:21-cv-1097-BJR 9 Plaintiff, v. ORDER ON DEFENDANTS’ MOTION 10 FOR STAY OF PROCEEDINGS JEFF NELSON, et al., 11
12 Defendants.
13 This matter comes before the Court on Defendants’ Motion for Stay of Proceedings. Dkt. 14 No. 14. Having reviewed the materials submitted by the parties and the balance of the record in 15 16 this case, the Court DENIES the motion. The reasons for the Court’s decision are set forth 17 below. 18 I. Background 19 Plaintiff Joseph Allen filed this action on August 16, 2021, against Defendants Jeff 20 Nelson, the City of Auburn, and the Auburn Police Department. Plaintiff’s claims arise from his 21 arrest on August 23, 2018, by Defendant Nelson, who was an officer of the City of Auburn 22 Police Department. 23 24 Plaintiff’s complaint raises federal claims against all defendants for excessive force and 25 unlawful seizure, as well as state-law claims for outrage, negligence, and violation of the 26 Washington Law Against Discrimination, RCW 49.60. Plaintiff has also brought Monell claims
ORDER - 1 1 against the City of Auburn for violation of his constitutional rights, alleging that the City violated 2 its duty to use reasonable care in hiring, training, and supervising its employees and agents. This 3 case is currently scheduled for trial on January 9, 2023, with a discovery deadline of July 13, 4 2022. 5 Plaintiff’s complaint includes allegations that Defendant Nelson “has shot and killed 6 three people during his tenure as an Auburn Police Officer” and that Defendant Nelson “is 7 currently charged with Murder in the second degree for the killing of Jesse Sarey.” Dkt. No. 1 at 8 9 4. Defendants indicate that Defendant Nelson’s criminal trial in State v. Nelson is scheduled for 10 June 27, 2022, in King County Superior Court. Defendants also indicate that it is possible that 11 Defendant Nelson could face criminal charges for another deadly force incident (referred to by 12 Defendants as the “Obet incident”) in which Defendant Nelson shot a man in 2017. 13 Defendant Nelson has moved to stay all proceedings in this matter until his “criminal 14 prosecution has finally concluded.” Dkt. No. 14 at 3; see also Dkt. No. 14-1 at 2 (proposing that 15 16 the Court order that “[n]o further action shall occur in this matter until Defendant Nelson’s 17 criminal matter is fully and finally resolved.”). In the alternative, Defendant Nelson requests “a 18 stay limited to discovery propounded to him or a similar protective order.” Dkt. No. 14 at 13. 19 The City of Auburn joins in Defendant Nelson’s motion. 20 II. Discussion 21 A. Request to Stay Case in Its Entirety 22 “The Constitution does not ordinarily require a stay of civil proceedings pending the 23 24 outcome of criminal proceedings.” Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th 25 Cir. 1995). However, a court has discretion to stay civil proceedings when the interests of justice 26 so require. Id. “The decision whether to stay civil proceedings in the face of a parallel criminal
ORDER - 2 1 proceeding should be made ‘in light of the particular circumstances and competing interests 2 involved in the case.’” Id. (quoting Fed’l Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 3 (9th Cir. 1989)). 4 To determine whether to stay a civil proceeding in light of a pending criminal 5 proceeding, the Ninth Circuit has held that the trial court should consider: (1) the extent to which 6 the defendant’s Fifth Amendment rights are implicated; (2) the interest of the plaintiff in 7 proceeding expeditiously with the civil litigation or any particular aspect of it, and the potential 8 9 prejudice to plaintiff of a delay; (3) the burden which any particular aspect of the proceedings 10 may impose on the defendant; (4) the convenience of the court in managing its cases and the 11 efficient use of judicial resources; (5) the interests of persons not parties to the civil litigation; 12 and (6) the interest of the public in the pending civil and criminal litigation. Keating, 45 F.3d at 13 324. The Court considers these factors in turn below. 14 1. Extent to Which Defendants’ Fifth Amendment Rights are Implicated 15 16 Defendants argue that Defendant Nelson’s Fifth Amendment right against self- 17 incrimination is directly implicated in this case. Defendants argue that Plaintiff has alleged that 18 the deadly force incident at issue in State v. Nelson is relevant to his Monell claims. Defendants 19 also maintain that the prosecution in State v. Nelson will attempt to introduce evidence regarding 20 Defendant Nelson’s use of force during Plaintiff’s arrest, and that as a result Defendant Nelson 21 cannot respond to discovery or testify in this matter without implicating his Fifth Amendment 22 rights in the criminal proceeding. Defendants also maintain that “many questions concerning 23 24 training and police policy are at issue in both cases.” Dkt. No. 14 at 5. In addition, Defendants 25 argue that Plaintiff is likely to seek discovery responses from Defendant Nelson regarding the 26
ORDER - 3 1 2017 Obet deadly force incident, which raises Fifth Amendment implications because Defendant 2 Nelson could still be subject to criminal charges related to that incident. 3 In response, Plaintiff points out that Defendant Nelson is not the only defendant in this 4 case. Plaintiff notes that the City of Auburn and the Auburn Police Department are also 5 defendants in this action and do not have any Fifth Amendment rights that are implicated here. 6 Plaintiff also argues that this civil case and State v. Nelson are “not significantly overlapping” 7 and notes that Defendant Nelson “is not going on trial for the acts he committed against the 8 9 Plaintiff here.” Dkt. No. 21 at 2. 10 It is not clear to the Court how substantially the issues in this case may or may not 11 ultimately overlap with the issues in State v. Nelson. The criminal case involves charges arising 12 from an entirely different incident than this civil case, and it is unclear to the Court that the 13 prosecution in State v. Nelson would be permitted to offer evidence regarding Defendant 14 Nelson’s conduct toward Plaintiff. In any event, as Plaintiff notes, Defendant Nelson is not the 15 16 only defendant in this case, and Defendants City of Auburn and Auburn Police Department do 17 not have Fifth Amendment rights to assert in this matter. As a result, the Court finds that this 18 factor does not weigh in favor of staying this case in its entirety pending the resolution of 19 criminal proceedings against Defendant Nelson. Any possible implications of Defendant 20 Nelson’s Fifth Amendment rights in this matter do not warrant bringing the entire case to a halt 21 pending the final resolution of Defendant Nelson’s criminal case. 22 2. Plaintiff’s Interests 23 24 The Court next considers Plaintiff’s interests in proceeding expeditiously with the civil 25 litigation or any particular aspect of it, and the potential prejudice to Plaintiff resulting from a 26 delay. Here, Plaintiff has a strong interest in proceeding expeditiously with his case. Plaintiff’s
ORDER - 4 1 counsel has represented that Plaintiff has stage five kidney disease. Plaintiff also has a financial 2 interest in providing for his family members through a potential recovery of damages in this 3 case. The Court finds that this factor weighs against staying this case in its entirety. 4 3.
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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 JOSEPH ALLEN, 8 No. 2:21-cv-1097-BJR 9 Plaintiff, v. ORDER ON DEFENDANTS’ MOTION 10 FOR STAY OF PROCEEDINGS JEFF NELSON, et al., 11
12 Defendants.
13 This matter comes before the Court on Defendants’ Motion for Stay of Proceedings. Dkt. 14 No. 14. Having reviewed the materials submitted by the parties and the balance of the record in 15 16 this case, the Court DENIES the motion. The reasons for the Court’s decision are set forth 17 below. 18 I. Background 19 Plaintiff Joseph Allen filed this action on August 16, 2021, against Defendants Jeff 20 Nelson, the City of Auburn, and the Auburn Police Department. Plaintiff’s claims arise from his 21 arrest on August 23, 2018, by Defendant Nelson, who was an officer of the City of Auburn 22 Police Department. 23 24 Plaintiff’s complaint raises federal claims against all defendants for excessive force and 25 unlawful seizure, as well as state-law claims for outrage, negligence, and violation of the 26 Washington Law Against Discrimination, RCW 49.60. Plaintiff has also brought Monell claims
ORDER - 1 1 against the City of Auburn for violation of his constitutional rights, alleging that the City violated 2 its duty to use reasonable care in hiring, training, and supervising its employees and agents. This 3 case is currently scheduled for trial on January 9, 2023, with a discovery deadline of July 13, 4 2022. 5 Plaintiff’s complaint includes allegations that Defendant Nelson “has shot and killed 6 three people during his tenure as an Auburn Police Officer” and that Defendant Nelson “is 7 currently charged with Murder in the second degree for the killing of Jesse Sarey.” Dkt. No. 1 at 8 9 4. Defendants indicate that Defendant Nelson’s criminal trial in State v. Nelson is scheduled for 10 June 27, 2022, in King County Superior Court. Defendants also indicate that it is possible that 11 Defendant Nelson could face criminal charges for another deadly force incident (referred to by 12 Defendants as the “Obet incident”) in which Defendant Nelson shot a man in 2017. 13 Defendant Nelson has moved to stay all proceedings in this matter until his “criminal 14 prosecution has finally concluded.” Dkt. No. 14 at 3; see also Dkt. No. 14-1 at 2 (proposing that 15 16 the Court order that “[n]o further action shall occur in this matter until Defendant Nelson’s 17 criminal matter is fully and finally resolved.”). In the alternative, Defendant Nelson requests “a 18 stay limited to discovery propounded to him or a similar protective order.” Dkt. No. 14 at 13. 19 The City of Auburn joins in Defendant Nelson’s motion. 20 II. Discussion 21 A. Request to Stay Case in Its Entirety 22 “The Constitution does not ordinarily require a stay of civil proceedings pending the 23 24 outcome of criminal proceedings.” Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th 25 Cir. 1995). However, a court has discretion to stay civil proceedings when the interests of justice 26 so require. Id. “The decision whether to stay civil proceedings in the face of a parallel criminal
ORDER - 2 1 proceeding should be made ‘in light of the particular circumstances and competing interests 2 involved in the case.’” Id. (quoting Fed’l Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 3 (9th Cir. 1989)). 4 To determine whether to stay a civil proceeding in light of a pending criminal 5 proceeding, the Ninth Circuit has held that the trial court should consider: (1) the extent to which 6 the defendant’s Fifth Amendment rights are implicated; (2) the interest of the plaintiff in 7 proceeding expeditiously with the civil litigation or any particular aspect of it, and the potential 8 9 prejudice to plaintiff of a delay; (3) the burden which any particular aspect of the proceedings 10 may impose on the defendant; (4) the convenience of the court in managing its cases and the 11 efficient use of judicial resources; (5) the interests of persons not parties to the civil litigation; 12 and (6) the interest of the public in the pending civil and criminal litigation. Keating, 45 F.3d at 13 324. The Court considers these factors in turn below. 14 1. Extent to Which Defendants’ Fifth Amendment Rights are Implicated 15 16 Defendants argue that Defendant Nelson’s Fifth Amendment right against self- 17 incrimination is directly implicated in this case. Defendants argue that Plaintiff has alleged that 18 the deadly force incident at issue in State v. Nelson is relevant to his Monell claims. Defendants 19 also maintain that the prosecution in State v. Nelson will attempt to introduce evidence regarding 20 Defendant Nelson’s use of force during Plaintiff’s arrest, and that as a result Defendant Nelson 21 cannot respond to discovery or testify in this matter without implicating his Fifth Amendment 22 rights in the criminal proceeding. Defendants also maintain that “many questions concerning 23 24 training and police policy are at issue in both cases.” Dkt. No. 14 at 5. In addition, Defendants 25 argue that Plaintiff is likely to seek discovery responses from Defendant Nelson regarding the 26
ORDER - 3 1 2017 Obet deadly force incident, which raises Fifth Amendment implications because Defendant 2 Nelson could still be subject to criminal charges related to that incident. 3 In response, Plaintiff points out that Defendant Nelson is not the only defendant in this 4 case. Plaintiff notes that the City of Auburn and the Auburn Police Department are also 5 defendants in this action and do not have any Fifth Amendment rights that are implicated here. 6 Plaintiff also argues that this civil case and State v. Nelson are “not significantly overlapping” 7 and notes that Defendant Nelson “is not going on trial for the acts he committed against the 8 9 Plaintiff here.” Dkt. No. 21 at 2. 10 It is not clear to the Court how substantially the issues in this case may or may not 11 ultimately overlap with the issues in State v. Nelson. The criminal case involves charges arising 12 from an entirely different incident than this civil case, and it is unclear to the Court that the 13 prosecution in State v. Nelson would be permitted to offer evidence regarding Defendant 14 Nelson’s conduct toward Plaintiff. In any event, as Plaintiff notes, Defendant Nelson is not the 15 16 only defendant in this case, and Defendants City of Auburn and Auburn Police Department do 17 not have Fifth Amendment rights to assert in this matter. As a result, the Court finds that this 18 factor does not weigh in favor of staying this case in its entirety pending the resolution of 19 criminal proceedings against Defendant Nelson. Any possible implications of Defendant 20 Nelson’s Fifth Amendment rights in this matter do not warrant bringing the entire case to a halt 21 pending the final resolution of Defendant Nelson’s criminal case. 22 2. Plaintiff’s Interests 23 24 The Court next considers Plaintiff’s interests in proceeding expeditiously with the civil 25 litigation or any particular aspect of it, and the potential prejudice to Plaintiff resulting from a 26 delay. Here, Plaintiff has a strong interest in proceeding expeditiously with his case. Plaintiff’s
ORDER - 4 1 counsel has represented that Plaintiff has stage five kidney disease. Plaintiff also has a financial 2 interest in providing for his family members through a potential recovery of damages in this 3 case. The Court finds that this factor weighs against staying this case in its entirety. 4 3. Burden on Defendants 5 This factor requires the Court to consider the burden which any particular aspect of the 6 proceedings may impose on Defendants. “Courts have found that even when a defendant's Fifth 7 Amendment rights are implicated, this factor does not support granting a stay unless the 8 9 defendant can show other ‘compelling factors as described in Keating.’” ESG Capital Partners 10 LP v. Stratos, 22 F. Supp. 3d 1042, 1046 (C.D. Cal. 2014) 11 Aside from the potential implication of his Fifth Amendment rights, Defendant Nelson 12 does not identify additional burdens that he may face if this case is not stayed. The City of 13 Auburn asserts that “it will be unable to properly defend against the Monell claim (and all claims 14 that create vicarious liability) without Nelson’s testimony.” Dkt. No. 14 at 2. However, the 15 16 extent to which Defendant Nelson’s testimony in this matter would require invoking the Fifth 17 Amendment is not clear, given that the criminal charges he faces in State v. Nelson do not arise 18 from his arrest of Plaintiff. The Court finds that this concern does not weigh in favor of staying 19 this matter in its entirety. 20 4. Judicial Efficiency 21 The Court next considers the convenience of the Court in managing its cases and the 22 efficient use of judicial resources. “Courts have recognized that this . . . factor normally does not 23 24 favor granting a stay.” ESG Capital Partners, 22 F. Supp. 3d at 1042. 25 Defendants suggest that judicial efficiency would be served by a stay because resolution 26 of State v. Nelson would “relieve the Court of having to decide numerous Fifth Amendment
ORDER - 5 1 issues” and could possibly streamline discovery in this case. Dkt. No. 14 at 11-12. However, 2 there is no certainty that the Fifth Amendment issues in this case will be resolved when the 3 criminal trial in State v. Nelson is completed, given that: (1) Defendant Nelson could pursue an 4 appeal if he is convicted in the criminal proceeding; and (2) it is unclear whether Defendant 5 Nelson may face criminal charges for the 2017 Obet deadly force incident. Should either of 6 these possibilities occur, Fifth Amendment issues would still need to be addressed. 7 5. Interests of Persons Not Parties to the Civil Litigation 8 9 Both sides agree that this factor is not implicated in this case. 10 6. Public Interest 11 Finally, the Court considers the interest of the public in the pending civil and criminal 12 litigation. Courts have noted that “[t]he public has an interest in relatively speedy resolution of 13 civil matters.” Apothio, LLC v. Kern County, No. 1:20-cv-00522, 2021 WL 75243, at *6 (C.D. 14 Cal. Jan. 8, 2021). Plaintiff also argues that there is “no question that the public has an interest 15 16 in public safety, police accountability and the training provided to the police.” Dkt. No. 18 at 6. 17 Under the circumstances here, the Court finds that the public interest does not favor 18 staying this case in its entirety. The public has a strong interest in the issues presented in this 19 case. Furthermore, staying this case in its entirety until Defendant Nelson’s criminal case is fully 20 and finally resolved would not serve the public’s interest in relatively speedy resolutions of civil 21 cases, particularly because such a stay could potentially delay this case well beyond the June 22 2022 trial in State v. Nelson. 23 24 7. Summary 25 In light of its consideration of the factors above, the Court finds that a stay of this matter 26 in its entirety is not warranted.
ORDER - 6 1 B. Alternative Request for Protective Order 2 In the alternative, Defendant Nelson requests a stay of discovery from him alone. In 3 effect, a request to stay discovery from a party is a motion for a protective order under Federal 4 Rule of Civil Procedure 26(c). See, e.g., Grand Canyon Skywalk Development LLC v. Steele, 5 No. 2-13-cv-00596, 2014 WL 60216, at *3 (D. Nev. Jan. 7, 2014) (noting “[a] motion to stay 6 discovery is governed by Rule 26(c) of the Federal Rules of Civil Procedure”). 7 Local Civil Rule 26(c) provides that “[a]ny motion for a protective order must include a 8 9 certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good 10 faith meet and confer conference with other affected parties in an effort to resolve the dispute 11 without court action,” along with other requirements.1 Here, Defendants have not included such 12 a certification in their motion or the accompanying declarations. 13 Because it appears that Defendants have not satisfied the meet and confer requirements of 14 Local Civil Rule 26(c), the Court will deny Defendants’ request for a protective order at this 15 16 time. The Court notes that Plaintiff has indicated in his surreply to Defendants’ motion that he is 17 “open to [the] possibility of a protective order in relation to all Defendants’ answers.” Dkt. No. 18 21 at 3. The parties should meet and confer promptly in a manner consistent with Local Civil 19 Rule 26(c) to determine if they can reach an agreement on a protective order before seeking 20 further involvement of the Court on this issue. 21 22 23 24 25 26 1 The parties are also reminded that the Court’s Standing Order for All Civil Cases includes meet and confer requirements prior to filing most types of motions. See Dkt. No. 6 at 3. ORDER - 7 1 III. Conclusion 2 For the foregoing reasons, Defendants’ Motion for Stay of Proceedings (Dkt. No. 14) is 3 DENIED. 4 Dated: March 8, 2022 5 A 6
7 Barbara Jacobs Rothstein 8 U.S. District Court Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
ORDER - 8