THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 UNITED STATES OF AMERICA, et al., CASE NO. C20-1746-JCC 10 Plaintiffs, and ORDER 11 PUYALLUP TRIBE OF INDIANS, 12 Plaintiff-Intervenor, 13 v. 14 ELECTRON HYDRO, LLC, 15 Defendant. 16
17 This matter comes before the Court on Plaintiff United States of America’s (“United 18 States”) motion for leave to file an amended complaint (Dkt. No. 51) and Defendant Electron 19 Hydro LLC’s (“Electron Hydro”) motion to stay discovery. (Dkt. No. 46.) Having thoroughly 20 considered the parties’ briefing and the relevant record, the Court hereby GRANTS the United 21 States’ motion for leave to amend (Dkt. No. 51) and DENIES Electron Hydro’s motion to stay 22 (Dkt. No. 46) for the reasons explained below. 23 I. BACKGROUND 24 Electron Hydro operates a hydroelectric facility located on the Puyallup River in Pierce 25 County, Washington. (Dkt. No. 51-2 at 1–2.) In July 2020, as alleged in the United States’ 26 proposed Amended Complaint, Electron Hydro started reconstructing the facility’s diversion 1 dam structure and spillway. (Id.) Under the supervision of its Chief Operating Officer, Thom A. 2 Fischer, Electron Hydro personnel created a bypass channel lined with waste field turf. (See id. at 3 2.) 4 On or about July 29, 2020, due to a partial breach of a plastic liner, approximately 617 5 square yards of the field turf and four to six cubic yards of crumb rubber discharged into the 6 river, portions of which continue to be found in various locations downstream. (Id. at 13, 14.) On 7 or about October 19, 2020, Electron Hydro then started constructing a diversion rock spillway, 8 discharging approximately 6,000 cubic yards of rock, gravel, and other fill material into the 9 Puyallup River. (Id. at 14.) On November 11, 2020, the United States sued under the Clean 10 Water Act to obtain injunctive relief and civil penalties against Electron Hydro for unauthorized 11 discharges into the Puyallup River. (Dkt. No. 1.) On January 10, 2022, the Washington State 12 Attorney General’s Office filed criminal charges in Pierce County Superior Court against 13 Electron Hydro and Mr. Fischer for, among other things, the unlawful discharge of pollutants 14 into the Puyallup River. (Dkt. Nos. 46 at 2, 48-1, 48-2.) 15 The United States now seeks leave to amend its complaint to, among other things, add 16 Mr. Fischer as a defendant in this action. (See Dkt. No. 51-2 (proposed amended complaint).) 17 Electron Hydro moves to stay all discovery in this matter pending resolution of the state criminal 18 proceedings, arguing that a stay is necessary to preserve Mr. Fischer’s Fifth Amendment 19 privilege against self-incrimination. (See generally Dkt. No. 46.) 20 II. DISCUSSION 21 A. United States’ Motion for Leave to File Amended Complaint 22 The United States moves to amend its complaint to add (1) Mr. Fischer as an individual 23 defendant in this matter; (2) a claim for the unpermitted discharge of fill material under Section 24 404 of the CWA, 33 U.S.C. § 1344; and (3) additional factual allegations supporting its claims. 25 (Id. at 1–2.) Electron Hydro does not oppose this request. (Dkt. No. 68.) Accordingly, the Court 26 finds that justice requires granting leave to amend to the United States under Federal Rule of 1 Civil Procedure 15(a)(2). 2 B. Electron Hydro’s Motion to Stay Discovery 3 The Constitution does not require a stay of civil proceedings pending the outcome of 4 criminal proceedings absent “substantial prejudice to the rights of the parties involved.” Keating 5 v. Office of Thrift Supervision, 45 F.3d 322, 325 (9th Cir. 1995); see also Whitsitt v. Allen & 6 Assocs., LLC, 2014 WL 11997865, slip op. at 2 (W.D. Wash. 2014) (noting that a stay of a civil 7 case pending conclusion of a related criminal case is an “extraordinary remedy”) (internal 8 quotations omitted). To determine whether a stay is appropriate, a court should consider “the 9 extent to which the defendant’s Fifth Amendment rights are implicated.” Keating, 45 F.3d at 10 324. 11 Electron Hydro argues that a stay is appropriate because its civil case relies on the 12 testimony of Mr. Fischer, who would undoubtedly assert his Fifth Amendment privilege against 13 self-incrimination. (Dkt. No. 46 at 5–6.) The United States argues that this fact alone is not 14 determinative, and that less drastic means would be sufficient to protect Mr. Fischer’s Fifth 15 Amendment rights. (Dkt. Nos. 54 at 6–9, 63 at 4.) The Court agrees that less drastic alternatives 16 are available, such as delaying Mr. Fischer’s deposition. Additionally, the Court notes that 17 Electron Hydro fails to demonstrate substantial prejudice in the absence of a stay. 18 Courts have repeatedly emphasized that a defendant has “no absolute right not to be 19 forced to choose between testifying in a civil matter and asserting his Fifth Amendment 20 privilege.” Keating, 45 F.3d at 326. And Electron Hydro itself has no Fifth Amendment rights. 21 Curcio v. United States, 354 U.S. 118, 122 (1957). Nor does Electron Hydro demonstrate an 22 inability to respond to discovery with information that would not incriminate Mr. Fischer. And 23 generalized Fifth Amendment concerns are insufficient to establish substantial prejudice. See, 24 e.g., Federal Sav. and Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (9th Cir. 1989); Commodity 25 Futures Trading Comm’n. v. Fin. Tree, 2021 WL 2681920, slip op. at 3 (W.D. Wash. 2021)). 26 Moreover, although the extent to which Mr. Fischer’s Fifth Amendment privilege is 1 implicated is, indeed, a “significant factor” in determining whether a stay is warranted, it must be 2 weighed against:
3 (1) the interests of the plaintiffs in proceeding expeditiously with this litigation or 4 any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on 5 defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the 6 civil litigation; and (5) the interest of the public in the pending civil and criminal litigation. 7 Keating, 45 F.3d at 325. This Court finds that, after consideration of all the factors, the 8 extraordinary remedy of granting a stay is not appropriate. 9 1. Plaintiffs’ Interests 10 Plaintiffs’ interests in proceeding expeditiously and the potential prejudice caused by a 11 delay favors denying the motion to stay. They argue that toxins from the artificial turf remaining 12 in the river are causing ongoing environmental damage. (Dkt. Nos. 54 at 3–4, 6; 59 at 7; 63 at 3– 13 4.) Plaintiffs emphasize that the only available remedies in the state criminal case are jail time 14 and fines, which do not minimize or mitigate these ongoing harms. (Id.) Electron Hydro argues 15 that, even without any court orders in place, it has made an enormous effort to retrieve artificial 16 turf from the river. (Dkt. No. 66 at 1–2.) Regardless, Plaintiffs maintain that the harm caused by 17 Defendant’s conduct has not ceased and that turf, crumb rubber, and other pollutants remain in 18 the river. (Dkt. Nos. 54 at 6, 59 at 7, 63 at 3.) The evidence they provide supporting this 19 contention is compelling. (See Dkt. Nos. 56, 57-1–57-4, 58, 60, 60-1–60-23, 65-1.) 20 Moreover, courts generally find that a plaintiff’s interest is prejudiced when a stay would 21 cause a lengthy or indefinite delay. See, e.g., CommScope, Inc. of North Carolina v.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 UNITED STATES OF AMERICA, et al., CASE NO. C20-1746-JCC 10 Plaintiffs, and ORDER 11 PUYALLUP TRIBE OF INDIANS, 12 Plaintiff-Intervenor, 13 v. 14 ELECTRON HYDRO, LLC, 15 Defendant. 16
17 This matter comes before the Court on Plaintiff United States of America’s (“United 18 States”) motion for leave to file an amended complaint (Dkt. No. 51) and Defendant Electron 19 Hydro LLC’s (“Electron Hydro”) motion to stay discovery. (Dkt. No. 46.) Having thoroughly 20 considered the parties’ briefing and the relevant record, the Court hereby GRANTS the United 21 States’ motion for leave to amend (Dkt. No. 51) and DENIES Electron Hydro’s motion to stay 22 (Dkt. No. 46) for the reasons explained below. 23 I. BACKGROUND 24 Electron Hydro operates a hydroelectric facility located on the Puyallup River in Pierce 25 County, Washington. (Dkt. No. 51-2 at 1–2.) In July 2020, as alleged in the United States’ 26 proposed Amended Complaint, Electron Hydro started reconstructing the facility’s diversion 1 dam structure and spillway. (Id.) Under the supervision of its Chief Operating Officer, Thom A. 2 Fischer, Electron Hydro personnel created a bypass channel lined with waste field turf. (See id. at 3 2.) 4 On or about July 29, 2020, due to a partial breach of a plastic liner, approximately 617 5 square yards of the field turf and four to six cubic yards of crumb rubber discharged into the 6 river, portions of which continue to be found in various locations downstream. (Id. at 13, 14.) On 7 or about October 19, 2020, Electron Hydro then started constructing a diversion rock spillway, 8 discharging approximately 6,000 cubic yards of rock, gravel, and other fill material into the 9 Puyallup River. (Id. at 14.) On November 11, 2020, the United States sued under the Clean 10 Water Act to obtain injunctive relief and civil penalties against Electron Hydro for unauthorized 11 discharges into the Puyallup River. (Dkt. No. 1.) On January 10, 2022, the Washington State 12 Attorney General’s Office filed criminal charges in Pierce County Superior Court against 13 Electron Hydro and Mr. Fischer for, among other things, the unlawful discharge of pollutants 14 into the Puyallup River. (Dkt. Nos. 46 at 2, 48-1, 48-2.) 15 The United States now seeks leave to amend its complaint to, among other things, add 16 Mr. Fischer as a defendant in this action. (See Dkt. No. 51-2 (proposed amended complaint).) 17 Electron Hydro moves to stay all discovery in this matter pending resolution of the state criminal 18 proceedings, arguing that a stay is necessary to preserve Mr. Fischer’s Fifth Amendment 19 privilege against self-incrimination. (See generally Dkt. No. 46.) 20 II. DISCUSSION 21 A. United States’ Motion for Leave to File Amended Complaint 22 The United States moves to amend its complaint to add (1) Mr. Fischer as an individual 23 defendant in this matter; (2) a claim for the unpermitted discharge of fill material under Section 24 404 of the CWA, 33 U.S.C. § 1344; and (3) additional factual allegations supporting its claims. 25 (Id. at 1–2.) Electron Hydro does not oppose this request. (Dkt. No. 68.) Accordingly, the Court 26 finds that justice requires granting leave to amend to the United States under Federal Rule of 1 Civil Procedure 15(a)(2). 2 B. Electron Hydro’s Motion to Stay Discovery 3 The Constitution does not require a stay of civil proceedings pending the outcome of 4 criminal proceedings absent “substantial prejudice to the rights of the parties involved.” Keating 5 v. Office of Thrift Supervision, 45 F.3d 322, 325 (9th Cir. 1995); see also Whitsitt v. Allen & 6 Assocs., LLC, 2014 WL 11997865, slip op. at 2 (W.D. Wash. 2014) (noting that a stay of a civil 7 case pending conclusion of a related criminal case is an “extraordinary remedy”) (internal 8 quotations omitted). To determine whether a stay is appropriate, a court should consider “the 9 extent to which the defendant’s Fifth Amendment rights are implicated.” Keating, 45 F.3d at 10 324. 11 Electron Hydro argues that a stay is appropriate because its civil case relies on the 12 testimony of Mr. Fischer, who would undoubtedly assert his Fifth Amendment privilege against 13 self-incrimination. (Dkt. No. 46 at 5–6.) The United States argues that this fact alone is not 14 determinative, and that less drastic means would be sufficient to protect Mr. Fischer’s Fifth 15 Amendment rights. (Dkt. Nos. 54 at 6–9, 63 at 4.) The Court agrees that less drastic alternatives 16 are available, such as delaying Mr. Fischer’s deposition. Additionally, the Court notes that 17 Electron Hydro fails to demonstrate substantial prejudice in the absence of a stay. 18 Courts have repeatedly emphasized that a defendant has “no absolute right not to be 19 forced to choose between testifying in a civil matter and asserting his Fifth Amendment 20 privilege.” Keating, 45 F.3d at 326. And Electron Hydro itself has no Fifth Amendment rights. 21 Curcio v. United States, 354 U.S. 118, 122 (1957). Nor does Electron Hydro demonstrate an 22 inability to respond to discovery with information that would not incriminate Mr. Fischer. And 23 generalized Fifth Amendment concerns are insufficient to establish substantial prejudice. See, 24 e.g., Federal Sav. and Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (9th Cir. 1989); Commodity 25 Futures Trading Comm’n. v. Fin. Tree, 2021 WL 2681920, slip op. at 3 (W.D. Wash. 2021)). 26 Moreover, although the extent to which Mr. Fischer’s Fifth Amendment privilege is 1 implicated is, indeed, a “significant factor” in determining whether a stay is warranted, it must be 2 weighed against:
3 (1) the interests of the plaintiffs in proceeding expeditiously with this litigation or 4 any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on 5 defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the 6 civil litigation; and (5) the interest of the public in the pending civil and criminal litigation. 7 Keating, 45 F.3d at 325. This Court finds that, after consideration of all the factors, the 8 extraordinary remedy of granting a stay is not appropriate. 9 1. Plaintiffs’ Interests 10 Plaintiffs’ interests in proceeding expeditiously and the potential prejudice caused by a 11 delay favors denying the motion to stay. They argue that toxins from the artificial turf remaining 12 in the river are causing ongoing environmental damage. (Dkt. Nos. 54 at 3–4, 6; 59 at 7; 63 at 3– 13 4.) Plaintiffs emphasize that the only available remedies in the state criminal case are jail time 14 and fines, which do not minimize or mitigate these ongoing harms. (Id.) Electron Hydro argues 15 that, even without any court orders in place, it has made an enormous effort to retrieve artificial 16 turf from the river. (Dkt. No. 66 at 1–2.) Regardless, Plaintiffs maintain that the harm caused by 17 Defendant’s conduct has not ceased and that turf, crumb rubber, and other pollutants remain in 18 the river. (Dkt. Nos. 54 at 6, 59 at 7, 63 at 3.) The evidence they provide supporting this 19 contention is compelling. (See Dkt. Nos. 56, 57-1–57-4, 58, 60, 60-1–60-23, 65-1.) 20 Moreover, courts generally find that a plaintiff’s interest is prejudiced when a stay would 21 cause a lengthy or indefinite delay. See, e.g., CommScope, Inc. of North Carolina v. Electro 22 Products, Inc., 2007 WL 9775629, slip op. at 3 (W.D. Wash. 2007); Whitsitt, 2014 WL 23 11997865, slip op. at 3. Here, Electron Hydro requests a stay until the criminal proceedings are 24 resolved. (Dkt. No. 46 at 1.) But even though a preliminary trial date has been set, see Pierce 25 County Sup. Ct., Case Nos. 22-1-00044-1, 22-1-00045-9, the reality is final resolution of the 26 1 criminal matters could take years. (Dkt. No. 54 at 11.) And the civil proceeding has already been 2 pending for sixteen months. (See Dkt. No. 1.) Thus, this factor weighs strongly against a stay. 3 2. Burden on Electron Hydro and Mr. Fischer 4 In addition to concerns regarding the exercise of Mr. Fischer’s Fifth Amendment 5 privilege, Electron Hydro is concerned about potential cooperation between the United States 6 and state prosecutors. Specifically, Defendant argues that the United States is sharing documents 7 it obtained from Electron Hydro with state prosecutors, which could prejudice Electron Hydro’s 8 criminal defense. (Dkt. Nos. 46 at 6, 66 at 5–6.) More generally, Defendant is concerned that this 9 civil proceeding, if not stayed, might allow state prosecutors to take advantage of broader civil 10 discovery rules and could expose the criminal defense’s theories to prosecutors in advance of the 11 criminal trial. (Id.) 12 Electron Hydro’s concerns are entirely speculative. Moreover, Electron Hydro does not 13 suggest that this civil proceeding was “commenced solely to obtain evidence for a criminal 14 prosecution” or as a pretext for a criminal investigation. See United States v. Stringer, 535 F.3d 15 929, 938–39 (9th Cir. 2008). Nor could it, given the timing—the civil case predated the criminal 16 case by more than a year. In addition, Electron Hydro does not argue that state prosecutors are 17 interfering with the civil proceedings or have “accessed inappropriate material.” See S.E.C. v. 18 Sandifur, 2006 WL 1719920, slip op. at 2 (W.D. Wash. 2006). Instead, it merely expresses 19 concern over an e-mail distribution list’s existence, even though Electron Hydro concedes it does 20 not know what information has been shared through this medium. (Dkt. No. 66 at 6.) Thus, this 21 factor is neutral or, at most, weighs only slightly in favor of a stay. 22 3. Convenience of the Court and Efficient Use of Judicial Resources 23 Judicial economy also does not weigh heavily in favor of a stay. To determine whether 24 judicial economy favors staying a case, courts examine whether the proceedings “arise out of the 25 same event” and the “potential for complexity, overlapping issues, duplicative rulings, and 26 conflict between the rulings of this Court and the criminal court.” See Lakey v. Washington, 2020 1 WL 8617405, slip op. at 3 (W.D. Wash. 2020). However, courts also have an interest in clearing 2 their dockets and avoiding indefinite delays. Molinaro, 889 F.2d at 903. 3 Here, it is undisputed that the civil and criminal proceedings both arise out of Electron 4 Hydro’s alleged unauthorized discharge of pollutants. (See generally Dkt. Nos. 46, 54.) Because 5 the proceedings arise out of the same alleged misconduct, there is a potential for overlap and 6 duplicative or conflicting rulings between this case and the criminal proceeding. Plaintiffs point 7 out, though, that the resolution of the state criminal case is not necessary for this civil action to 8 proceed because the two proceedings seek different relief under different laws and require 9 separate remedies. (Dkt. Nos. 54 at 11, 63 at 4.) This Court also has an interest in avoiding 10 indeterminate stays. 11 Based on this analysis, this factor, at most, weighs only slightly in favor of a stay. 12 4. Interests of Non-Parties and the Public 13 Finally, the interests of non-parties and the public weigh strongly against a stay. Non- 14 parties and the public have an interest in the speedy resolution of civil enforcement actions. See 15 Sandifur, 2006 WL 1719920, slip op. at 3. Here, the public’s interest in deterring future 16 wrongdoing and in having confidence in enforcement of environmental protections is best served 17 by prompt resolution of this case. 18 Electron Hydro cites Javier H. v. Garcia-Botello, 218 F.R.D. 72 (W.D.N.Y. 2003), and 19 Jones v. Conte, 2005 WL 1287017(N.D. Cal. 2005), to argue that the public has an interest in the 20 integrity of criminal cases, which takes precedence over civil litigants. (Dkt. No. 46 at 7.) 21 However, these two cases are not persuasive here, because this case involves not just private 22 litigants enforcing their own rights and interests, but government, tribal, and public-interest 23 organizations representing significantly larger interests than in the cases Defendant cites. 24 Moreover, for reasons discussed above, this Court is unpersuaded that the integrity of the parallel 25 criminal proceedings would be compromised. This factor therefore also weighs strongly against 26 a stay. 1 On balance, because Plaintiffs’ and the public’s interests in resolving this matter 2 outweigh any potential burden on Electron Hydro from its continued litigation, the Court finds 3 that a stay is not appropriate. 4 III. CONCLUSION 5 For the foregoing reasons, the United States’ motion for leave to amend its complaint 6 (Dkt. No. 51) is GRANTED. The United States shall file its amended complaint, as proposed 7 (Dkt. No. 51-2), within seven (7) days of this Order. Electron Hydro’s motion to stay discovery 8 (Dkt. No. 46) is DENIED. 9 DATED this 28th day of February 2022. A 10 11 12 John C. Coughenour 13 UNITED STATES DISTRICT JUDGE
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