Kolbek et al v. Twenty First Century Holiness Tabernacle Church, Inc. et al
MEMORANDUM OPINION AND ORDER denying 196 Motion to Stay, filed by Sharon Alamo, Armful of Help, Action Distributors Inc., Bernie Lazar Hoffman, Music Square Church, Sally Demoulin, Tony and Susan Alamo Foundation, Twenty First Century Holiness Tabe rnacle Church, Inc., SJ Distributing, Inc., Gloryland Christian Church, denying 199 Motion to Stay filed by Advantage Food Group, denying 197 Motion to Stay filed by Jeanne Estates Apartments Inc.,denying 201 Motion to Stay, filed by Robert W Gilmore, denying 208 Motion to Stay, filed by Steve Johnson as set forth. Signed by Honorable P. K. Holmes, III on October 31, 2011. (dmc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
DESIREE KOLBEK et al
Case No. 4:10-CV-04124
TWENTY FIRST CENTURY HOLINESS
TABERNACLE CHURCH, INC. et al
MEMORANDUM OPINION AND ORDER
Currently before the Court are nineteen (19) separate motions filed by the parties in this case.
All of which have been filed within a period of approximately nine weeks. Also before the Court are
the various accompanying documents in support, responses, replies, sur-replies, adoptions, etc. filed
in relation to the currently pending motions. While the Court has strived diligently to stay on top of
the filings in this case, the Court notes that this is not the only case it has on its docket, and the
proliferation of filings in this case, which the Court deems are often unnecessary or duplicative, only
complicates and delays the matter further. The Court recognizes that this is an unusually complex
matter, involving many litigants. However, the Court continues to encourage all parties and counsel
to work together to resolve matters without court intervention whenever possible. Communication
between the parties, or lack thereof, seems to be a recurring issue raised in the various filings, and
miscommunication and misunderstandings often result in a flurry of yet more docket entries.
Most recently, the parties have engaged in a bout of frantic filing related to the issue of the
application of a stay in this case. The Alamo Defendants1 first filed a Motion to Stay on October 18,
Twenty First Century Holiness Tabernacle Church, Inc., Gloryland Christian Church,
Armful of Help, Tony and Susan Alamo Foundation, Music Square Church, SJ Distributing, Inc.,
Action Distributors, Inc., Sharon Alamo, Sally Demoulin, and Bernie Lazar Hoffman a/k/a Tony
2011 (Doc. 196). This was then followed by four parallel, separate motions or “suggestions” by
Jeanne Estates Apartments, Inc. (“JEA”) (Doc. 197), Advantage Food Group (“AFG”) (Doc. 199),
Robert Gilmore (Doc. 201), and Steve Johnson (Doc. 208). The Alamo Defendants also filed a
purported Memorandum in Support and Supplement to their Motion to Stay (Doc. 209), which was
incorporated in a Response to Motion to Compel. The various defendants also filed parallel, but
separate, objections to Plaintiffs’ Supplemental Motion for Leave to Depose Bernie Hoffman,
perhaps out of an overabundance of caution, stating their respective positions that any ruling on such
Motion should be made subject to the stay issue already raised. In an effort to reduce confusion,
consternation, and the continuance of duplicative and overzealous filings regarding this issue, the
Court sets forth herein its findings as to the stay issue raised by the various defendants in this case.
In the interest of resolving this issue as expeditiously as possible, the Court declines to
recite the lengthy and complex factual background of this case, but assures the parties that the Court
is familiar with that factual background and is sufficiently advised so as to render this opinion.
Plaintiffs in this case assert causes of action pursuant to 18 U.S.C. § 2255 and 18 U.S.C. § 1595.
(Doc. 98, ¶ 23). Under the Trafficking Victims Protection Reauthorization Act (“TVPRA”), codified
at 18 U.S.C. § 1595, “[a]ny civil action filed under this section shall be stayed during the pendency
of any criminal action arising out of the same occurrence in which the claimant is the victim.” The
statute further clarifies that “a ‘criminal action’ includes investigation and prosecution and is pending
until final adjudication in the trial court.” 18 U.S.C. § 1595(b)(2). Defendants argue that this case
is subject to a mandatory, automatic stay under the statute, as they claim that the criminal
investigation in this case is not over.
Defendants’ argument that this case is subject to a stay is premised on their belief that the
U.S. Attorney’s Office is continuing to investigate the case. This belief is based on a quote by an
Assistant U.S. Attorney in a newspaper article in July of 2009, stating that “This investigation is not
over.” Defendants also claim that a USAO financial investigator visited some Alamo properties on
October 10, 2011. A representative of the USAO stated that the investigator was there for
restitutionary purposes, but defendants theorize that the investigator may, in fact, have been there
to collect information which could be used to prosecute others for what happened on those
properties. Finally, defendants cite the fact that the government denied production of certain files in
response to a subpoena issued by Separate Defendant Gilmore and in response to a Freedom of
Information Act request. Defendants argue that, in denying production, the government did not deny
that there was an ongoing investigation.
The case law on application of a stay under the TVPRA is scant. However, in the case law
that the Court has found, stays have been imposed in cases where the government has intervened in
a case, informed the Court of an ongoing investigation, and advised that the civil case was subject
to a mandatory stay under the TVPRA. See, e.g., Ara v. Khan, 2007 U.S. Dist. LEXIS 43170 (E.D.
NY 2007) (imposing a stay after allowing the United States to Intervene). It seems to the Court
illogical, and contrary to the purpose of the statute, that a stay may be mandatorily imposed by force
of a civil defendant who can only surmise as to whether a criminal investigation may be ongoing.
The evidence of an ongoing investigation offered by the defendants in this case is weak. If such
evidence were able to subject a civil case to an automatic stay, victims bringing actions under the
TVPRA could often be denied justice, having their trial delayed indefinitely by a civil defendant who
merely theorizes that an investigation might possibly be ongoing. Such an application of the statute
would be nonsensical and contrary to the statute’s purpose.
The legislative history of the TVPRA indicates that the Department of Justice (“DOJ”)
objected to amendment of the Act to include a private right of action. The DOJ suggested that, if a
private right of action were to be included, “[t]he subsection should stay all pending civil actions in
the wake of a criminal prosecution.” H.R. REP. 108-264(II) at *14. The DOJ argued that, without
providing “the suit would be stayed until a prosecution was complete, this provision . . . could hinder
prosecutors’ abilities to try a case unfettered by the complications of civil discovery . . . We believe
that prosecutions should take priority over civil redress and that prosecutions should be complete
prior to going forward with civil suits.” Id. Congress has also stated that “[t]he Trafficking Victims
Protection Act [“TVPA”] was enacted . . . to combat trafficking in persons, ensure the prosecution
of traffickers of children, women and men, and to protect the victims of trafficking.” Id. at *11. The
TVPA was amended in order to “strengthen the U.S. Government’s ability to combat the
worldwide scourge of trafficking in persons by enhancing provisions on prevention or trafficking,
protection of victims of trafficking, and prosecution of traffickers.” Id. at 10. In other words, the
statute was not created to protect civil defendants. Nor was the statute amended, in providing for a
private right of action and mandatory stay, in order to protect the rights of civil defendants. Rather,
based on the legislative history, and the very name of the Act, the purpose of the Trafficking Victims
Protection Act, as amended by the TVPRA, was to protect the victims of trafficking and strengthen
the government’s ability to prosecute perpetrators. Therefore, the Court concludes that the
government may exercise its rights under the statute to impose a mandatory stay if and when
appropriate. Defendants, however, may not mandate the imposition of a stay under the statute based
on mere speculation that the government may be involved in an ongoing investigation.
If the government is continuing to investigate any criminal action related to this case, the
government may intervene and file a notice of stay. However, based on the evidence currently before
this Court, the Court finds that this case is not subject to an automatic stay under 18 U.S.C. § 1595,
and the Court declines to otherwise impose or recognize a stay of the instant proceedings. As such,
Defendants’ various Motions for Stay are DENIED.
For all the reasons set forth above, IT IS HEREBY ORDERED that Defendants’ Motions
for Stay (Docs. 196, 197, 199, 201, 208) are DENIED.
IT IS SO ORDERED this 31st day of October, 2011.
/s/P. K. Holmes, III
P.K. HOLMES, III
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?