Arries v. University OB/GYN LLC et al

Filing 80

ORDER: Plaintiff's 79 Motion for Reconsideration of the Court's Order Denying Plaintiffs' Motion to Stay Discovery Pending the Outcome of a Parallel Criminal Proceeding is denied. See order for complete details. Signed by Judge Neil V Wake on 4/6/12. (NKS)

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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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Plaintiffs/Counterdefendants, )
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vs.
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University OB/GYN LLC, et al.,
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Defendants/Counterclaimants.)
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Bobbie E. Arries, et al.,

No. CV 10-08219-PCT-NVW
ORDER

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Before the Court is Plaintiff’s Motion for Reconsideration of the Court’s Order

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Denying Plaintiffs’ Motion to Stay Discovery Pending the Outcome of a Parallel Criminal

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Proceeding (Doc. 79).

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“The Court will ordinarily deny a motion for reconsideration of an Order absent a

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showing of manifest error or a showing of new facts or legal authority that could not have

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been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1).

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A court should reconsider its ruling if it is presented with newly discovered evidence, if a

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party shows that the court has committed clear error, or if there is an intervening change

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in controlling law. See School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5

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F.3d 1255, 1263 (9th Cir. 1993).

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This Court has not held that a plaintiff waives her right against self incrimination.

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Rather, in applying the factors concerning the requested stay, the legitimate interests of

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Defendant/Counterclaimant University OB/GYN LLC strongly favor proceeding with its

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defense and counterclaim. University OB/GYN LLC alleges that Plaintiff stole more

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than $80,000 while employed. University OB/GYN LLC is in the distressful condition of

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thinking it has a claim and knowing that lack of diligence will likely deprive it of

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recovery on its claim even if it is meritorious. Plaintiff now says, “These statements,

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however, are entirely speculative in nature . . . .” They are not at all speculative. At oral

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argument counsel acknowledged that Plaintiff is unemployed. Her husband is employed.

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She is expending resources in prosecuting two civil actions in this Court. She is being

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criminally prosecuted. She is being defended by another lawyer in the same law firm that

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represents her in this case. Thus, she is expending further resources on her own criminal

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defense. She must be expending resources for the necessities of life as well. It is not

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“speculative” but virtually certain that Plaintiff is expending the fruits of the alleged theft

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and other resources while she asks to delay University OB/GYN LLC. Plaintiff does not

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need to hide assets to prejudice University OB/GYN LLC. She only needs to continue

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consuming them in the open. She has not proposed any alternative that would protect

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University OB/GYN LLC during a lengthy stay.

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The Fifth Amendment entitles Plaintiff to not help the state in its criminal

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prosecution against her. It does not entitle her to shield herself from a diligent creditor

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whose money she will dissipate during the delay. Plaintiff disregards the obvious facts in

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her Motion for Reconsideration.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion for Reconsideration of the

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Court’s Order Denying Plaintiffs’ Motion to Stay Discovery Pending the Outcome of a

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Parallel Criminal Proceeding (Doc. 79) is denied.

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DATED this 6th day of April, 2012.

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