Fine v. Tumpkin et al

Filing 52

ORDER ON MOTIONS TO STAY granting 38 Motion to Stay Discovery Pending Resolution of Sovereign Immunity; and granting 43 Motion for Stay of Discovery and Further Proceedings by Magistrate Judge Michael E. Hegarty on 01/08/2018. Status Conference set for 3/5/2018 10:15 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. Counsel for the parties may appear by telephone by first teleconferencing together, then calling my chambers at [phone]. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-02140-WJM-MEH
PAMELA FINE,
Plaintiff,
v.
JOSEPH M. TUMPKIN,
MIKE MACINTYRE,
RICK GEORGE,
PHILIP DISTEFANO, and
BRUCE BENSON,
Defendants.

ORDER ON MOTIONS TO STAY

Michael E. Hegarty, United States Magistrate Judge.
Plaintiff initiated this diversity action on September 6, 2017 alleging claims of assault,
battery, false imprisonment, and outrageous conduct against Tumpkin, a former University of
Colorado (“CU”) assistant football coach, and claims of negligence and civil conspiracy against CU
officials MacIntyre (head football coach), George (athletic director), DiStefano (chancellor), and
Benson (president) (collectively, the “CU Defendants”).1 See Comp., ECF No. 1. Tumpkin filed
an answer in response to the Complaint, but the CU Defendants filed motions to dismiss primarily
arguing that they enjoy absolute immunity from suit pursuant to the Colorado Governmental
Immunity Act (“CGIA”). Mots., ECF Nos. 16, 17. With their replies to the motions to dismiss, the
CU Defendants filed a motion to stay these proceedings pending resolution of the immunity issue.
ECF No. 38. The following day, Tumpkin filed his motion to stay proceedings pending resolution

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The Defendants’ stated positions at CU are alleged for all times relevant in the Complaint.

of a “parallel state criminal action.” ECF No. 43. The motions to stay have been referred to this
Court for resolution and, for the following reasons, the Court grants both motions.
The decision to stay discovery rests within the sound discretion of the trial court. Wang v.
Hsu, 919 F.2d 130, 130 (10th Cir.1990). The Court’s discretion to stay proceedings arises from its
power to control its own docket. See Clinton v. Jones, 520 U.S. 681, 706–07 (1997) (citing Landis
v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936)). The Federal Rules of Civil
Procedure do not expressly provide for a stay of proceedings; however, Rule 26(c) does permit the
court, upon a showing of good cause, to “protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c).
I.

CU Defendants’ Motion to Stay
Legal questions regarding the court’s subject matter jurisdiction should be resolved as early

as possible in the litigation, before incurring the burdens of discovery. See Behrens v. Pelletier, 516
U.S. 299, 308, 310 (1996) (noting that discovery can be particularly disruptive when a dispositive
motion regarding immunity is pending); Moore v. Busby, 92 F. App’x 699, 702 (10th Cir. 2004)
(affirming trial court’s stay of discovery pending resolution of absolute immunity question); Albright
v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (“the Supreme Court has repeatedly ‘stressed the
importance of resolving immunity questions at the earliest possible stage in litigation.’” (citation
omitted)).
The CU Defendants raise immunity under the Colorado Governmental Immunity Act
(“CGIA”). Pursuant to the CGIA,
If a public employee raises the issue of sovereign immunity prior to or after the
commencement of discovery, the court shall suspend discovery; except that any
discovery necessary to decide the issue of sovereign immunity shall be allowed to
proceed, and the court shall decide such issue on motion. The court’s decision on
such motion shall be a final judgment and shall be subject to interlocutory appeal.

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Colo. Rev. Stat. § 24–10–118(2.5). “Such a rule comports with the CGIA’s purpose of ‘protect[ing]
the government from excessive fiscal burdens, which include not only the cost of judgments against
the government but the costs of unnecessary litigation as well.’” Chambers v. Bd. of Cnty. Comm'rs
of Cnty. of Eagle, No. 13–cv–00393–REB–MEH, 2013 WL 4052397, at *2 (D. Colo. Aug. 12, 2013)
(quoting Finnie v. Jefferson Cnty. Sch. Dist. R–1, 79 P.3d 1253, 1259 (Colo. 2003) and granting
motions to stay filed by entity and individuals)).
When exercising its discretion to enter a stay, the Court considers the following factors: (1)
the interest of the plaintiff in proceeding expeditiously and the potential prejudice to the plaintiff of
a delay; (2) the burden on the defendants; (3) the convenience to the Court; (4) the interests of
nonparties; and (5) the public interest. String Cheese Incident, LLC v. Stylus Shows, Inc., No.
02–cv–01934–LTB–PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006); see also Golden
Quality Ice Cream Co. v. Deerfield Speciality Papers, Inc., 87 F.R.D. 53, 56 (E.D. Pa. 1980).
In weighing the factors for determining the propriety of a stay, the Court finds that a
temporary stay is appropriate here, pending adjudication of the motions to dismiss. With respect
to the first and second factors, there can be no doubt that Plaintiff has an interest in proceeding
expeditiously, but the Court finds that the potential harm to Plaintiff in briefly awaiting a ruling on
the motions is outweighed by the burden Defendants would bear in requesting and responding to
discovery pending resolution of motions that could remove them from the case and change the
framework and scope of the litigation.
Furthermore, while this analysis determines procedure rather than substance according to the
Erie doctrine,2 the Court finds persuasive the Colorado Supreme Court’s mandate that discovery be
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“As a federal court sitting in diversity, the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S.
64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), dictates that state substantive law should apply, Hanna v.
Plumer, 380 U.S. 460, 466–68, 85 S. Ct. 1136, 14 L. Ed.2d 8 (1965), but that federal procedural
rules will nevertheless control the analysis.” Aspen Orthopaedics & Sports Med., LLC v. Aspen
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suspended. See Colo. Rev. Stat. § 24-10-118(2.5). The statute’s exception – that discovery
necessary to decide the issue of sovereign immunity should proceed – does not apply here, where
the Plaintiff has already filed responses to the motions to dismiss and, in so doing, sought no limited
discovery for such purpose.
Plaintiff argues that the CU Defendants’ discovery requirements will be no less burdensome
here than as third-party witnesses to the claims in this matter, and Plaintiff intends to serve third
party discovery on the CU Defendants if they are dismissed from this action. Resp. 2, 4. But, the
Court agrees with the Defendants that, if they are dismissed from the case, the action will focus
solely on Plaintiff’s claims against Tumpkin, which are separate and apart from the claims raised
against them. In other words, while Plaintiff’s claims against Tumpkin arise from her relationship
with him and from alleged events that occurred during the relationship, the claims against the CU
Defendants arise from alleged events that occurred after the relationship ended. See Comp. ¶¶ 64,
68. Dismissal of these latter claims would change the framework and scope of the action and, likely,
lessen the CU Defendants’ discovery burden. The Court finds the first and second factors weigh in
favor of a stay of the action.
With regard to the third factor, the Court finds it more efficient to stay this action against the
CU Defendants until it is clear that the case will proceed. See Chavous v. Dist. of Columbia Fin.
Responsibility & Mgmt. Assistance Auth., 201 F.R.D. 1, 5 (D.D.C. 2001) (staying discovery pending
a decision on a dispositive motion that would fully resolve the case “furthers the ends of economy
and efficiency, since if [the motion] is granted, there will be no need for [further proceedings].”).
The third factor weighs in favor of staying this matter.

Valley Hosp. Dist., 353 F.3d 832, 844 (10th Cir. 2003) (Briscoe, J. concurring) (interpreting Colo.
Rev. Stat. § 24-10-118(2.5) and finding that federal law applies in determining whether an order
denying a motion raising a CGIA immunity defense is final for purposes of appeal).
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Consideration of the remaining String Cheese factors (i.e., the interests of nonparties and the
public in general) do not prompt a different result and, thus, weigh neutrally. On the whole, the
Court holds that a temporary stay of discovery is appropriate pending the resolution of the immunity
questions raised in the CU Defendants’ motions to dismiss.
II.

Tumpkin’s Motion to Stay
“The Constitution does not generally require a stay of civil proceedings pending the

outcome of criminal proceedings, absent substantial prejudice to a party’s rights.” Creative
Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 (10th Cir. 2009) (citations omitted); see
also Ben Ezra Weinstein & Co., Inc. v. Am. Online, Inc., 206 F.3d 980, 987 (10th Cir. 2000)
(“[w]hen applying for a stay, a party must demonstrate a clear case of hardship or inequity”)
(citations and internal quotations omitted). “When deciding whether the interests of justice seem
to require a stay, the court must consider the extent to which a party’s Fifth Amendment rights are
implicated. ... A defendant has no absolute right not to be forced to choose between testifying in a
civil matter and asserting his Fifth Amendment privilege.” Creative Consumer Concepts, Inc., 563
F.3d at 1080 (citations omitted). “A district court may also stay a civil proceeding in deference to
a parallel criminal proceeding for other reasons, such as to prevent either party from taking
advantage of broader civil discovery rights or to prevent the exposure of the criminal defense
strategy to the prosecution.” Id. at 1080–81.
In Creative Consumer Concepts, the Tenth Circuit upheld a district court’s denial of a motion
to stay civil proceedings pending a “parallel” criminal matter, finding “there was limited overlap
between the issues and evidence in the civil and criminal trials” (id. at 1081 (“In fact, the court
limited the scope of the bench trial so much, it is better considered ‘simultaneous’ than ‘parallel’ to
the criminal case.”)) and the plaintiff failed to demonstrate unfair prejudice from the denial of a stay

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(id. (“[Plaintiff] waived her Fifth Amendment privilege with respect to the questions she answered
during her deposition,” which occurred before she filed her motion to stay)).
Typically, courts consider the following factors “[w]hen exercising [their] discretion to stay
a case in light of pending criminal matters”:
(1) the extent to which the issues in the criminal case overlap with those presented
in the civil case; (2) the status of the [criminal] case, including whether the
defendants have been indicted; (3) the private interests of the plaintiffs in proceeding
expeditiously weighed against the prejudice to plaintiffs caused by the delay; (4) the
private interests of and burden on the defendants; (5) the interests of the courts; and
(6) the public interest.
Auto-Owners Ins. Co. v. Next Generation Energy, LLC, No. 14-cv-01580-REB-KLM, 2014 WL
7251678 at *2 (D. Colo. Dec. 19, 2014) (quoting In re CFS-Related Securities Fraud Litigation, 256
F. Supp. 2d 1227, 1236-37 (N.D. Okla. 2003)); see also Brancato v. Panio, No. 12-cv-02338-MSKMEH, 2012 WL 6137472, at *2–*3 (D. Colo. Dec. 7, 2012) (weighing the same factors as set forth
in U.S. S.E.C. v. Trujillo, No. 09-cv-00403-MSK-KMT, 2010 WL 2232388, at *2 (D. Colo. Jun. 1,
2010)).
The Court finds the first factor weighs in favor of a stay. Plaintiff’s argument that the issues
in the criminal case are only a portion of those alleged in this case is a non-starter. The first factor
focuses on the question of “overlap” to determine whether the defendant’s Fifth Amendment rights
are or may be implicated. The Court finds that the eight criminal charges of assault in the second
and third degrees, relating to Tumpkin’s alleged conduct during certain times in 2015 and 2016,
overlap with those alleged in this action; in particular, Count I relates to allegations made in ¶¶ 35,
36; Counts IV and VI relate to allegations made in ¶¶ 52, 53; Counts V and VIII relate to allegations
made in ¶¶ 62–64; and Counts II, III, and VII are subsumed in the allegations made in ¶ 37. Unlike
in Creative Consumer Concepts, the Court finds the criminal and civil actions here to be parallel for
purposes of determining whether Tumpkin’s Fifth Amendment rights are implicated.
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Regarding the second factor, it is not disputed that the State of Colorado has filed a criminal
complaint against Tumpkin. See ECF No. 43-1. Plaintiff contends, however, that Tumpkin has
“possibly strategically” delayed the course of the criminal action by appealing a discovery order that
still had not been resolved. Resp. 6, 7. The arguments and evidence presented here reflect that
Tumpkin appealed to the district court, pursuant to Colo. R. Civ. P. 106(a)(4)(V), Broomfield
County Court’s order granting the prosecution’s motion to issue a protective order and to review in
camera pictures and text messages downloaded from the alleged victim’s (Plaintiff) cell phone.
Petition, ECF No. 51-1 at 2–3. At the same time, Tumpkin filed a motion to stay the county court
proceedings pending his appeal, and the district court indicated that it would allow the presentation
of evidence at a hearing on the motion to stay. Id. at 3. The Broomfield County Court then
petitioned the Colorado Supreme Court pursuant to C.A.R. 21 on June 16, 2017, seeking an order
to show cause why the district court’s order should not be reversed. Id. at 22. That court issued an
order on December 7, 2017 essentially granting in part and denying in part the petition and directing
that the county court proceeding be stayed pending resolution of the Rule 106(a)(4) appeal “without
an evidentiary hearing.” Order, ECF No. 51-2.
The Court disagrees with the Plaintiff that Defendant is solely “to blame” for any delay in
the criminal proceedings. Rather, the parties engaged in what appears to be (without more
information) a reasonable dispute regarding whether a criminal defendant should be entitled to all
of the information provided to the prosecution; in the parallel matter, Tumpkin disagreed with the
county court’s order and, as was his prerogative, he chose to appeal the order to the district court.
There is no indication that Tumpkin had any responsibility for the subsequent months-long delay
arising from the county court’s petition to the Colorado Supreme Court. Accordingly, the Court
finds that the status of the criminal proceeding—that is, post-complaint—weighs in favor of a stay

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of the proceedings here.
For the third factor, Plaintiff contends that Tumpkin’s arguments in support of a stay,
including his assertion that Plaintiff could be compensated with prejudgment interest should the
Court impose a stay, “reflect a callous perspective of this entire matter.” Resp. 8. The Court is not
entirely convinced and notes that Plaintiff’s two requests for relief in this action are (1) monetary
damages, including costs and attorney’s fees, and (2) “such other and further relief as this Court
deems just and equitable under the circumstances.” Comp., ECF No. 1 at 32. In any case, the
Plaintiff argues that she needs resolution and healing, as well as to “ help[ ] the University and larger
community by forcing people of authority and power to take responsibility for violence and abuse.”
Resp. 8. Plaintiff also notes a concern about preserving evidence and fading memories and asserts
that “no date has been scheduled for Tumpkin’s criminal trial, and there is virtually no prospect of
the criminal case being quickly resolved.” Id. at 9.
The Court acknowledges Plaintiff’s concerns as real and important. However, a stay of this
civil matter does not mean that all aspects of the adjudication of Plaintiff’s allegations are halted.
The criminal case will continue and, as with many such cases, the prosecution will receive
discovery, and the Court understands that in this case some, if not all, of what the prosecution
receives has been (and apparently will be) shared with the Plaintiff. Reply 12 (“Colorado law
affords [Plaintiff] special rights in the criminal case that require the prosecution to confer with her
about important points and give her the opportunity to inform the criminal court of her position on
those issues. See Colo. Const. art. II, § 16a; §§ 24-4.1-302.5, 24-4.1-303, and 24-31-106, C.R.S.
(2017).”). Furthermore, there is nothing demonstrating a bar to Plaintiff advancing her interests in
alerting the public to violence and abuse through the criminal case, but the Court recognizes that
Plaintiff has more control over the distribution of such information in her civil case. Weighing the

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Plaintiff’s concerns and the fact that some adjudication of her allegations will proceed in the
instance of a stay here, the Court finds this factor weighs slightly against a stay.
The interests and burden on Tumpkin should the Court proceed with this case are not light.
As set forth above, the Court finds the criminal case parallel to the allegations raised here and, thus,
Tumpkin’s Fifth Amendment rights are implicated. Plaintiff argues that a stay is not justified simply
because a party must choose between testifying in a civil matter and asserting his Fifth Amendment
privilege. Resp 9. While this is true, the Court also finds compelling the Tenth Circuit’s finding
in Creative Consumer Concepts that “[a] district court may also stay a civil proceeding in deference
to a parallel criminal proceeding for other reasons, such as to prevent either party from taking
advantage of broader civil discovery rights or to prevent the exposure of the criminal defense
strategy to the prosecution.” 563 F.3d at 1080–81. Because the allegations in the criminal
proceeding are essentially the same as those raised here, and the Plaintiff admits that “Tumpkin’s
civil liability is broader” (Resp. 5), the Court must take care to ensure that no party gains an
advantage from engaging in discovery in the civil case while the criminal case proceeds, and that
the civil proceeding does not expose Tumpkin’s criminal defense strategy to the Plaintiff/criminal
victim. The safest way to prevent these issues is to stay civil discovery temporarily until the
criminal matter resolves.
Plaintiff argues that actions “less drastic” than a stay of proceedings may be imposed, such
as a protective order and/or restricting any discovery documents filed on the public docket. The
Court finds that, while these less restrictive actions may be effective in other cases, in this case, such
actions would not prevent the issues identified above since the Plaintiff is entitled (unless otherwise
ordered) to have access to all discovery exchanged in her case. Plaintiff neither suggests nor argues
for the imposition of an “attorney’s eyes only” provision in a blanket protective order and, without

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further argument, the Court is not convinced it would be effective. The Court concludes that the
fourth factor weighs in favor of a stay.
As for the fifth and sixth factors, the Court looks to Fed. R. Civ. P. 1, which requires that the
federal rules of civil procedure, including Rule 26(c), “be construed, administered, and employed
by the court and the parties to secure the just, speedy, and inexpensive determination of every action
and proceeding.” While true that a stay of this action will result in a delay of the proceedings and,
thus, contravene any “speedy” administration of the case, the Court must also ensure a “just”
determination of the action. In this respect, the Court finds Tumpkin’s interests in avoiding
exposure of his criminal defense strategy to Plaintiff outweighs the Plaintiff’s interest in proceeding
in this matter with all due speed. Thus, these factors weigh slightly in favor of imposing a stay.
Consideration of all six factors reveals that they weigh in favor of imposing a stay of the civil
proceedings of this matter against Tumpkin pending resolution of Tumpkin’s criminal case. In
addition, the Court finds the factual circumstances here distinguishable from those in Creative
Consumer Concepts, In re CFS-Related Securities Fraud Litigation, 256 F. Supp. 2d at 1236-37,
and Brancato, 2012 WL 6137472, at *2–*3 in which the courts concluded that stays were not
necessary.
III.

Conclusion
In sum, the Court finds that the CU Defendants have demonstrated good cause to impose a

temporary stay of discovery in this case pending resolution of their motions to dismiss raising the
jurisdictional question of whether they are immune from suit pursuant to the CGIA, and that
Tumpkin demonstrates good cause to impose a stay of the proceedings against him pending
resolution of the parallel criminal case. Therefore, the CU Defendants’ Motion to Stay Discovery
Pending Resolution of Sovereign Immunity [filed November 28, 2017; ECF No. 38] is granted and

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Tumpkin’s Motion for Stay of Discovery and Further Proceedings [filed November 29, 2017; ECF
No. 43] is granted. The Court will hold a Status Conference on March 5, 2018 at 10:15 a.m. at
which counsel for the parties may appear by telephone by first teleconferencing together, then
calling my chambers at [phone].
DATED at Denver, Colorado, this 8th day of January, 2018.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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