Patel v. City of Madison, Alabama

Filing 37

MEMORANDUM OPINION AND ORDER DENYING 30 MOTION To Lift Stay. Signed by Judge Virginia Emerson Hopkins on 3/17/2016. (JLC)

FILED
2016 Mar-17 PM 01:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SURESHBHAI PATEL,
Plaintiff,
v.
CITY OF MADISON, ALABAMA,
and ERIC SLOAN PARKER,
Defendants.

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) Case No.: 5:15-CV-0253-VEH
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MEMORANDUM OPINION AND ORDER
I.

Introduction and Procedural History
Due to pendency of multiple related criminal cases against Defendant Eric

Sloan Parker (“Mr. Parker”), this federal and state law civil action was stayed on May
4, 2015, by the prior judge to which it was assigned (Doc. 18), and has remained
stayed upon reassignment to the undersigned. (Doc. 19). With Mr. Parker acquitted
of any federal criminal civil rights charges earlier this year in United States v. Parker,
No. 5:15-CR-0055-MHH-HGD,1 currently only a state criminal misdemeanor assault
charge remains pending against Mr. Parker in the Circuit Court of Limestone
County–State of Alabama v. Eric Sloan Parker, DC-15-253.

1

(See Doc. 113 (memorandum opinion granting Mr. Parker’s renewed motion for judgment
of acquittal)).

Pending before the court is Plaintiff Sureshbhai Patel’s (“Mr. Patel”) Motion
To Lift Stay (Doc. 30) (the “Motion”) filed on February 26, 2016. The Motion has
been briefed by the parties with both defendants–Mr. Parker and the City of
Madison–expressing their objections to lifting the stay. (Docs. 32, 33, 35, 36).
Because several compelling factors as bolstered by binding as well as persuasive
authorities favor keeping the stay in place, Mr. Patel’s Motion is DENIED.
II.

Standard
Regarding orders to stay:
The general rule is well settled that, ‘* * * the 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.’ Landis v. North American Co., 1936, 299
U.S. 248, 254, 255, 57 S. Ct. 163, 81 L. Ed. 153.

Nelson v. Grooms, 307 F.2d 76, 78 (5th Cir. 1962).2
III.

Analysis
Mr. Patel articulates two grounds in support of his Motion. First, Mr. Patel

asserts that the recent retirement of the state court judge presiding over the assault
criminal case and an anticipated appeal of any conviction mean that Mr. Parker’s

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down
prior to October 1, 1981.
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“assault charge [] is unlikely to be resolved any time soon.” (Doc. 30 at 1 ¶ 2); (see
also Doc. 30-1 (attaching article announcing assigned judge’s retirement and
observing that before criminal case can proceed the governor will need to appoint
someone to fill the judicial vacancy)).
Second, Mr. Patel contends that because Mr. Parker has testified twice during
the pendency of the federal criminal case,3 no Fifth Amendment basis for continuing
the stay in this civil case exists. Mr. Patel relies upon EMC Prop. & Cas. Co. v. 205
Customz, LLC, No. 2:15-CV-00293-RDP, 2015 WL 3554737, at *2-*3 (N.D. Ala.
June 5, 2015),4 an insurance declaratory judgment action brought against a defendant
with related arson and insurance fraud changes pending in state district court, id., at
*1, to show that Mr. Parker has waived his Fifth Amendment privilege.
In EMC, the court “assumed without deciding that [the defendant] ha[d] waived
the privilege against self-incrimination[,]” 2015 WL 3554737, at *2, because of his
prior willingness “to sit for an extensive examination under oath” in an effort to
collect proceeds under the same fire insurance policy that the insurance carrier, by
way of the declaratory action, was contesting. Id., at *1. Thus, unlike the situation
3

Two different juries deadlocked in the federal criminal prosecution of Mr. Parker and
mistrials were declared. (See CM/ECF minute entries in 15-CR-0055-MHH-HGD dated Sept. 11,
2015, and Nov. 4, 2015).
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Both Mr. Patel (Doc. 36 at 1-2 ¶ 2) and Mr. Parker (Doc. 35 at 5 ¶ 12) rely upon EMC as
persuasive authority.
3

here which involves a purported waiver resulting from Mr. Parker’s testimony during
a related but, nonetheless, distinct criminal proceeding, the defendant’s (assumed)
waiver of his privilege in EMC sprang from his voluntary actions taken in furtherance
of his contractual rights under the same insurance policy that was the subject of the
civil suit. Cf. United States v. Fortin, 685 F.2d 1297, 1298 (11th Cir. 1982) (“While
the rule [of waiver] being urged by the Government is a valid one, it is generally only
applicable when the ‘disclosure of the details’ is being sought in the same proceeding
where the initial ‘criminating facts have been voluntarily revealed.’”) (emphasis
added).
As the City of Madison correctly points out (Doc. 32 at 2-4 ¶ 3), the Eleventh
Circuit’s rule regarding the scope of a witness’s right to assert the Fifth Amendment
privilege when that same person is called upon to testify in more than one case is
much broader than Mr. Patel contends:
[T]he privilege (against self-incrimination) attaches to the witness in
each particular case in which he may be called on to testify, and whether
or not he may claim it is to be determined without reference to what he
said when testifying as a witness on some other trial, or on a former trial
of the same case, and without reference to his declarations at some other
time or place.
United States v. Fortin, 685 F.2d 1297, 1298-99 (11th Cir. 1982) (emphasis added)
(quoting In re Neff, 206 F.2d 149, 152 (3d Cir. 1953)); see also Ballantyne v. United

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States, 237 F.2d 657, 665 (5th Cir. 1956) (citing with approval the holding from Neff
that “waiver of the privilege before the Grand Jury did not carry through to the
subsequent trial”). Mr. Patel offers nothing to refute these Fifth Amendment
“hornbook”5 principles, and this court is bound by them. Therefore, Mr. Parker’s
privilege against self-incrimination remains intact in this civil lawsuit, despite his
testimony provided in his defense during the federal criminal case.
Additionally, turning back to Mr. Patel’s reliance upon EMC, even though that
court found that the factor of defendant’s waiver supported denying the request to
stay, ultimately it determined that staying the case was the appropriate action to take.
As the EMC court summarized its reasons for staying the civil litigation, “the
significant overlap between this case and its criminal counterpart counsel in favor of
conserving judicial resources and sparing the parties from potentially inconsistent
rulings.” EMC, 2015 WL 3554737, at *5. Here, the overlap between the assault
criminal case (which apparently applies a recklessness standard (Doc. 33 at 1 ¶ 3))6
and this civil action which incorporates several state law claims, including an
allegation that the City of Madison is liable for assault and battery “[t]o the extent

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Fortin, 685 F.2d at 1299 (internal quotation marks omitted) (quoting United States v. Cain,
544 F.2d 1113, 1117 (1st Cir. 1976) (“It is hornbook law that the waiver is limited to the particular
proceeding in which the witness appears.”)).
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Mr. Patel does not dispute Mr. Parker’s characterization of the criminal standard applicable
to the pending assault charge.
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that the conduct of PARKER was negligent or careless” (Doc. 2 at 7 ¶ 50)7 is
similarly “significant” and favors keeping the stay in place to conserve judicial
resources and avoid potentially inconsistent rulings.
IV.

Conclusion
Therefore, while the court is not unsympathetic to Mr. Patel’s efforts to lift the

stay of this civil case on account of the still pending but indefinitely delayed state
criminal proceeding against Mr. Parker, the weight of the authorities relied upon by
the parties,8 the significant overlap between the criminal and civil proceedings, and
Mr. Parker’s still viable Fifth Amendment privilege against self-incrimination lead
this court to DENY his Motion.9
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See also Ala. Code § 11-47-190 (“No city or town shall be liable for damages for injury
done to or wrong suffered by any person or corporation, unless such injury or wrong was done or
suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employee of
the municipality engaged in work therefor and while acting in the line of his or her duty . . . .”).
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Noticeably absent from Mr. Patel’s filings is any authority that even persuasively shows
why the court should grant his Motion and lift the stay. Instead, Mr. Patel’s case-related focus is
almost entirely limited to EMC, which decision misses the mark in furthering his cause for the
reasons explained above. The only other opinion that Mr. Patel cites to–United States v. Argomaniz,
925 F.2d 1349 (11th Cir. 1991)–is an IRS civil summons enforcement action. Mr. Patel relies upon
Argomaniz, for the proposition that “[a] court must make a particularized inquiry” when addressing
claims of Fifth Amendment privilege. Id. at 1355 (internal quotation marks omitted) (quoting United
States v. Melchor Moreno, 536 F.2d 1042, 1049 (5th Cir.1976)); (Doc. 36 at 3 ¶ 7). While the district
court in Argomaniz did stay enforcement of the IRS summons pending the defendant’s appeal, 925
F.2d at 1352, the decision sheds no light on whether a stay is appropriate given the criminal versus
civil trial priorities and Fifth Amendment privilege conflicts that are present here.
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Mr. Patel suggests, without explaining, that all the remaining EMC factors favor him. (Doc.
36 at 3 ¶ 8). The court disagrees. However, even assuming that Mr. Patel is correct, the combined
strength of these less compelling factors does not overpower those more critical ones relied upon by
the EMC court when it decided to stay that case. See, e.g., EMC, 2015 WL 3554737, at *2
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DONE and ORDERED this the 17th day of March, 2016.

VIRGINIA EMERSON HOPKINS
United States District Judge

(“Although no factor is necessarily dispositive, ‘[t]he degree to which the issues in the simultaneous
civil and criminal proceedings overlap is the most important threshold issue in deciding whether the
court should stay the civil proceeding.’” (quoting Walsh Sec., Inc. v. Cristo Prop. Mgmt., 7 F. Supp.
2d 523, 527 (D.N.J. 1998))).
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