Fernandez v. Phoenix, City of et al

Filing 62

ORDER denying 46 Chrisman's Motion to Stay. Signed by Judge Frederick J Martone on 5/25/2012.(KAR)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Elvira Fernandez, individually and as Co-)
Personal Representative of the Estate of)
Daniel Frank Rodriguez; Frank Rodriquez,)
individually and as Co-Personal)
Representative of the Estate of Daniel)
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Frank Rodriguez,
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Plaintiffs,
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vs.
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City of Phoenix; Richard Allen Chrisman,)
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Defendants.
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CV 11-02001-PHX-FJM
ORDER

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We have before us Chrisman's motion to stay (doc. 46), plaintiffs' response (doc. 57),
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and Chrisman's reply (doc. 59).
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On October 5, 2010, Chrisman, then a Phoenix police officer, allegedly shot and killed
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plaintiffs' son and his dog. Chrisman was charged the next day with second degree murder,
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aggravated assault, and animal cruelty. The criminal case, which has been continued many
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times and has been designated complex, is set for trial on August 8, 2012.1 Plaintiffs filed

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this action on August 31, 2011. A Rule 16 Scheduling Order was issued on January 13, 2012
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(doc. 13). The deadline for plaintiffs' expert disclosures has passed. Discovery will close
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on September 14, 2012. A firm civil trial date is set for April 16, 2013.
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According to the criminal docket, this appears to be the sixth trial setting.

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There is no requirement that all civil proceedings must be stayed pending the outcome

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of a related criminal case. Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir.

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1995). A criminal defendant "has no absolute right not to be forced to choose between

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testifying in a civil matter and asserting his Fifth Amendment privilege." Id. at 326. Not

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only may the civil and criminal actions proceed concurrently, but a trier of fact in the civil

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action can draw adverse inferences if the Fifth Amendment is invoked. Id. The decision

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whether to stay an action is made on a case-by-case basis. Id. In making this determination,

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we consider the extent to which Fifth Amendment rights are implicated, and also generally

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consider

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(1) the interest of the plaintiffs in proceeding expeditiously with this litigation
or 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 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 civil litigation; and (5) the interest of the public in the
pending civil and criminal litigation.

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Id. at 325. Defendant concedes that the interests of non-parties is not an issue here, but

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argues that the remaining factors support staying this action.

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Chrisman's Fifth Amendment rights might be implicated in the civil proceeding. Both

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this action and the criminal charges Chrisman faces arise out of the circumstances of the

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shooting. And plaintiffs have already noticed Chrisman's deposition.

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Implication of Fifth Amendment rights is only one of the factors to consider. Id. at

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326. In this case, plaintiffs have an interest in proceeding expeditiously. Their son died over

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a year and a half ago. It is impossible to predict when Chrisman's criminal case will

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conclude. It has already been pending eighteen months, and there is no guarantee that the

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August 2012 trial date is firm. Indeed, Chrisman has repeatedly waived his Arizona speedy

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trial rights under Rule 8, Ariz. R. Crim. P. and requested continuances of his trial date. See

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Response, exs. B-F. His latest motion to continue the criminal trial was granted on March

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14, 2012, only a few weeks before he filed the motion to stay. Response, ex. F. If Chrisman

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is convicted and decides to appeal, his Fifth Amendment rights may be implicated for

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significantly longer. See Arries v. Univ. OB/GYN, LLC, CV-10-08219-PCT-NVW, 2012
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WL 896355, at *2 (D. Ariz. Mar. 16, 2012). Delay frustrates plaintiffs' chance to be made

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whole in a reasonable period of time. An indefinite stay serves neither plaintiffs' nor this

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court's interests.

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Contrary to Chrisman's argument, this action is not in its infancy. A scheduling

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conference was held four months ago. Discovery will close in less than four months.

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Moreover, Chrisman has actively participated in this litigation. He participated in the

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scheduling conference (doc. 12), served his initial disclosure statement (doc. 14), answered

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the complaint (doc. 29), and filed a dispositive motion on the state law claims (doc. 33). On

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balance, the circumstances of this case counsel against the issuance of a stay. In particular,

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this action is in the heart of discovery and the timing of the criminal trial is uncertain, in part

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due to Chrisman's repeated requests for continuances.

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Although we appreciate the dilemma Chrisman faces as to whether to invoke his Fifth

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Amendment rights, we note that the Rule 16 scheduling order offers him the flexibility to

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avoid making this choice. By Chrisman's own design, his criminal trial is set for August 8,

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2012. Discovery in this action will not close until September 14, 2012. Chrisman could

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decide not to seek further continuances in his criminal case, go to trial in August, and

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schedule his deposition after his trial and before discovery closes. We encourage the parties

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to work together to reach an amenable solution, subject as always to the Rule 16 scheduling

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order, which controls the pace of litigation.

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However, if Chrisman chooses to further delay his criminal case, he will face the

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possibility of electing to invoke his Fifth Amendment rights here and inviting an adverse

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inference. That decision rests not with the court, but with Chrisman.

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IT IS ORDERED DENYING Chrisman's motion to stay (doc. 46).

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DATED this 25th day of May, 2012.

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