United Technologies Corp. v. Dean

906 F. Supp. 27, 1995 U.S. Dist. LEXIS 20134, 1995 WL 737169
CourtDistrict Court, D. Massachusetts
DecidedSeptember 22, 1995
DocketCiv. A. No. 95-30035 MAP
StatusPublished
Cited by2 cases

This text of 906 F. Supp. 27 (United Technologies Corp. v. Dean) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United Technologies Corp. v. Dean, 906 F. Supp. 27, 1995 U.S. Dist. LEXIS 20134, 1995 WL 737169 (D. Mass. 1995).

Opinion

MEMORANDUM AND ORDER REGARDING PLAINTIFF ROBERTA ELLIS DEAN’S MOTION TO STAY ACTION

NEIMAN, United States Magistrate Judge.

Defendant Roberta Ellis Foley (“Dean”) has moved to stay this civil action pending the resolution of criminal proceedings against her in Connecticut. On December 23, 1994, a criminal information was filed against Dean in the Connecticut Superior Court at Enfield, charging her with one count of first degree larceny. Connecticut General Statute § 53a-122. In support of her motion, Defendant advocates a “balancing of the interests,” arguing that she will be prejudiced if forced to continue this action while such criminal proceedings go forward, that a stay would not injure the. public interest, and that the interests of Plaintiff United Technologies Corporation (“UTC”) are adequately protected and will not be impaired by a stay.

UTC’s civil action was commenced on February 15, 1995. Dean’s husband, David L. Foley, Jr., (“Foley”) is also a named defendant. UTC asserts that Dean, a former employee, embezzled approximately $145,000 from the corporation. Proceeds of the monies were allegedly used to renovate the home of Dean and Foley, pay for limousines [28]*28for their wedding party, and compensate their attorneys. At the time of the hearing on Dean’s motion for stay, the criminal case against her was still pending and a trial had not yet been scheduled. A further pretrial conference is evidently scheduled for October 20, 1995.

ARGUMENTS

Dean is most concerned with the prejudice she would endure if a stay were not granted. She contends that the identity of the subject matter between this and the criminal proceeding, coupled with UTC’s discovery requests, forces her to make the untenable “Hobson’s choice” between invoking her privilege against self incrimination or answering discovery questions and risking negative criminal ramifications. Dean asserts that, in the interests of justice, the Court has the power, to stay civil proceedings, postpone civil discovery or impose protective orders and conditions to protect a criminal defendant. See SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1375 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980); Brock v. Tolkow, 109 F.R.D. 116, 119 (E.D.N.Y.1985). Dean asserts that, absent a corresponding public interest, a civil action may be deferred where going forward would expose a defendant to a real and appreciable risk of self incrimination, expand criminal discovery beyond what is otherwise available, reveal the basis of the criminal defense in advance of the criminal trial, or otherwise undercut due process protections. See, Dresser, 628 F.2d at 1375; United States v. Kordel, 397 U.S. 1, 8-9, 90 S.Ct. 763, 767-68, 25 L.Ed.2d 1 (1970); Brock, 109 F.R.D. at 119; U.S. v. Henry, 491 F.2d 702 (6th Cir. 1974); Gordon v. Federal Deposit Ins. Corp., 427 F.2d 578 (D.C.Cir.1970); Texaco, Inc. v. Borda, 383 F.2d 607, 608-609 (3rd Cir.1967); and Silver v. McCamey, 221 F.2d 873, 874-875 (D.C.Cir.1955). According to Dean, the public interest is not implicated here, in that the stay of this action would present no tangible threat of immediate and serious harm to the public at large. Compare, Dresser (dissemination of false and misleading investing information to the public); Kor-del (involving widespread distribution of mis-branded drugs); and Arthurs v. Stern, 560 F.2d 477, 480 (1st Cir.1977) (involving prompt administrative discipline of errant physicians), cert. denied, 434 U.S. 1034, 98 S.Ct. 768, 54 L.Ed.2d 782 (1978).

Finally, Dean argues that UTC’s interests are adequately protected and would not be impaired by a stay. She notes that UTC has sought and obtained attachments against both Defendants and that the resolution of the criminal proceeding, including potential restitution, may simplify discovery or otherwise narrow the issues in this case. Texaco, 383 F.2d at 609 (advocating weighing of computing interests in determining stay); Corbin v. Federal Deposit Ins. Corp., 74 F.R.D. 147, 149-150 (E.D.N.Y.1977) (protection of Defendants’ constitutional rights against self incrimination is more important than inconvenience and delay to the Plaintiff).

UTC, in response, notes that the Constitution does not require a stay of civil proceedings pending the outcome of parallel criminal proceedings. See Dresser, 628 F.2d at 1375; Arthurs, 560 F.2d at 479-80; and Arden Way Assocs. v. Boesky, 660 F.Supp. 1494, 1496 (S.D.N.Y.1987). First, UTC argues that a stay will prejudice its interests, given that witnesses and documents need to be gathered quickly before memories fade or become stale, witnesses become unavailable, records are purged, and documents disappear. UTC asserts that any delay will impair its ability to collect a substantial judgment against the Defendants. UTC fears the shrinking of the Defendants’ funds, worries that they may transfer and/or liquidate other assets, and notes that any claim it has in Defendants’ real estate is modest given the limited equity of the property and its senior mortgages. In addition, UTC argues that the completion of criminal proceedings will not simplify or narrow the issues in this case. For example, according to UTC, Connecticut probationary restitution order, if entered, would be limited to five years, and the amount ordered may be less than the sum necessary to fully compensate a victim. See Connecticut General Statutes §§ 53a-29(D) and 53a-30.

UTC also disputes Dean’s claim of jeopardy by having to choose between responding [29]*29to civil discovery and asserting a fifth amendment privilege. UTC asserts that Dean, in fact, has already made her choice by asserting her Fifth Amendment privilege, both in answer to the criminal complaint and to certain discovery. UTC asserts that the Constitution neither requires a stay nor forbids an adverse inference from a party’s assertion of the privilege. See Baxter v. Palmigiano, 425 U.S. 308, 317-318, 96 S.Ct. 1551, 1557-58, 47 L.Ed.2d 810 (1976); and Bellum v. Vose, 848 F.Supp. 1065, 1067 (D.Mass.1994). UTC labels Dean’s claim of prejudice as conelusory, theoretical, speculative, and insufficient to justify a stay. See United States v. All Funds On Deposit, etc., 767 F.Supp. 36, 42 (E.D.N.Y.1991). Finally, UTC argues that speedy and efficient handling of the case is in the public’s interest.

DISCUSSION

As more specifically described below, the Court will allow Dean’s motion for a stay, but only in part. First, Dean has sought to stay this proceeding entirely, rather than merely certain aspects of it. For this proposition, Dean has relied primarily on cases in which the government is both civil and criminal litigant — where the fear of prejudice to a defendant is more pressing than here.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Green v. Cosby
177 F. Supp. 3d 673 (D. Massachusetts, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
906 F. Supp. 27, 1995 U.S. Dist. LEXIS 20134, 1995 WL 737169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-technologies-corp-v-dean-mad-1995.