Nesbitt v. Bemer

Filing 50

ORDER granting 28 Motion for Reconsideration and granting 31 Motion to Stay for the reasons set forth in the attached memorandum. The Clerk is directed to close this case without prejudice to re-filing upon motion by either party within seven ty (70) days after entry of a final judgment in State v. Bemer, Docket No. CR17-0155220-S.In light of this Order, the Court finds as moot 30 Motion to Dismiss and denies 43 Motion for Conference. Signed by Judge Vanessa L. Bryant on 10/30/2018. (Mattessich, William)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

WILLIAM NESBITT,
Plaintiff,
v.
BRUCE BEMER,
Defendant.

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No. 3:18-CV-00699 (VLB)

October 30, 2018

MEMORANDUM OF DECISION GRANTING MOTION FOR RECONSIDERATION
AND GRANTING MOTION TO STAY [DKTS. 28 AND 31]
Before the Court are Defendant’s Motion for Reconsideration [Dkt. 28],
requesting that the Court reconsider its Order denying Defendant’s Motion to
Stay pursuant to 18 U.S.C. § 1595(b)(1) [Dkt. 19], and Defendant’s Motion to Stay
in the Interest of Justice [Dkt. 31], requesting that the Court stay this civil action
until the state criminal proceeding against Defendant concludes. For the
following reasons, the Motion for Reconsideration [Dkt. 28] is GRANTED and the
Motion to Stay in the Interest of Justice [Dkt. 31] is GRANTED.1
I.

Procedural History
This civil action was filed in the Connecticut Superior Court, Judicial

District of Fairfield at Bridgeport, on March 23, 2018. [Dkt. No. 1 (Def.’s Notice of
Removal) ¶ 4]. Plaintiff, William Nesbitt (“Nesbitt”), alleges, inter alia, that

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The Court construes Defendant’s second Motion to Stay [Dkt. 31] as a
supplement to Defendant’s first Motion to Stay [Dkt. 19].
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Defendant Bruce Bemer (“Bemer”), violated the Trafficking Victims Protection Act
(“TVPA”), actionable pursuant to 18 U.S.C. § 1595(a). Id. Bemer removed the state
action to the District of Connecticut on the grounds that the plaintiff’s TVPA claim
“aris[es] under the Constitution, laws, or treaties of the United States.” See 28
U.S.C. § 1441(c)(1); [Dkt. 1 (Notice of Removal)]. The Court has supplemental
jurisdiction over the plaintiff’s state law claims pursuant to 28 U.S.C. § 1367(a).
A. Civil Proceeding
Nesbitt alleges in his complaint that beginning on or about March, 2010,
until about November, 2014, Nesbitt was in a relationship with Bemer in which
Bemer would pay Nesbitt to “engage in lewd and perverted acts, sexual and
otherwise, and would also ask Nesbitt to attempt to recruit other young men to do
likewise.” [Dkt. 1, ¶ 3]. Nesbitt’s complaint contains five claims against Bemer: (1)
violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen.
Stat. § 42-110a; (2) violation of the Trafficking Victims Protection Act (“TVPA”), 18
U.S.C. § 1595(a); (3) assault and battery; (4) reckless and wanton conduct; and (5)
intentional infliction of emotional distress.
B. Criminal Proceeding
On March 28, 2017, Bemer was arrested and charged with patronizing a
prostitute who is a minor or the victim of trafficking, in violation of Conn. Gen.
Stat. § 53a-83(c), and conspiracy to commit trafficking, in violation of Conn. Gen.
Stat. § 53a-192a. [Dkt. 28 (Def.’s Mot. for Reconsideration), at 2].

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In Bemer’s first Motion to Stay, he argued without asserting any
particularized facts supporting this claim that Nesbitt is a victim of the
occurrence which gave rise to the criminal action against Bemer and, therefore, a
stay of the civil action is mandatory under the TVPA. [Dkt. 19 (Def.’s
Memorandum of Law in Support of Mot. To Stay), at 2]. Specifically, Bemer
argued only that:
This civil action undoubtedly arises from the same occurrence for
which the Defendant is currently being prosecuted. As noted above,
the Defendant is being prosecuted by the State of Connecticut for
patronizing trafficked individuals and conspiring to commit
trafficking. The arrest warrant for the Defendant cites to at least
fifteen victims of the alleged criminal enterprise. Based upon the
Plaintiff’s civil complaint, he alleges to be a victim of the same
trafficking enterprise for which the Defendant is currently being
prosecuted. Accordingly, the evidence the Plaintiff will seek to prove
his case in this civil action is the same evidence which the State will
use in seeking to convict the Defendant.

[Id., at 2]. Bemer did not allege Nesbitt was named as a victim or otherwise
mentioned in the criminal indictment, arrest warrant or in any discovery produced
in the criminal case. Bemer did not attach any documentation to support his
factual conclusion. He also did not offer offer any reasoned analysis from which
the court could determine whether the cases arose out of the same facts and
were thus parallel proceedings.
In opposition to the Motion to Stay, Nesbitt argued the information filed in
the state criminal action alleges that Bemer solicited approximately four victims.
[Dkt. 24-1 (Pl.’s Obj. to Def.’s Mot. To Stay, Memorandum in Support), Ex. B, ¶ 31].
All four victims were involved in an alleged human trafficking ring, in which
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Bemer is charged with conspiring. [Id., ¶ 6]. Nesbitt further alleges that he had a
separate relationship with Bemer in which Bemer paid Nesbitt for sexual
encounters and asked Nesbitt to solicit other individuals for Bemer. [Id., ¶ 3].
Nesbitt swore he did not know the individuals named in the trial information
concerning the state-alleged ring. [Dkt. 24, at 22-3].
In support of his opposition to the original motion to stay Nesbitt also filed
an affidavit stating that he had reviewed the criminal information and arrest
warrant filed against Bemer and was not a victim of the occurrence giving rise to
the criminal prosecution. [Dkt. 24-1, Ex. C., at 1-2]. In essence, Nesbitt asserted
that he had a private intimate relationship with Bemer separate and distinct from
the relationships Bemer is alleged to have had with the alleged victims in the
state indictment. Bemer did not file a reply asserting any facts tending to show
the instant case and the state criminal case were parallel proceedings, other than
noting the similarity of the charged conduct. [Dkt. 19]
The Court denied the first Motion to Stay, holding that Bemer did not prove
that the cases were parallel, “‘aris[ing] out of the same occurrences’” underlying
the state criminal case. [Dkt. 26] (citing 18 U.S.C. 1595(b)(1)). Subsequently,
Bemer filed this Motion for Reconsideration [Dkt. 28] and Motion to Stay in the
Interest of Justice [Dkt. 31]. He submits that “the Court was deprived of a full
record upon which to render its decision because of Plaintiff’s one-sided affidavit
and because of the then-pending procedural posture of the case, i.e., the Court
was deprived of the Defendant’s reply brief." [Dkt. No. 26, at 2].

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II.

Defendant’s Motion for Reconsideration

The Court first addresses Bemer’s Motion for Reconsideration. [Dkt. No. 28].
The Court sua sponte noted it would consider a motion to stay pursuant to the
statutory provision 18 U.S.C. § 1595(b)(1) because of the compelling
constitutional rights at issue. [Dkt. No. 18]. That provision reads, “[a]ny civil
action filed under subsection (a) shall be stayed during the pendency of any
criminal action arising out of the same occurrence in which the claimant is the
victim.” § 1595(b)(1). Thereafter, Bemer filed a Motion to Stay [Dkt. 19]. The
Court denied Bemer’s motion, noting that Bemer did not prove that Nesbitt is a
victim of the occurrence giving rise to the state criminal action. [Dkt. 26]. Bemer
then filed this Motion for Reconsideration.
Pursuant to D. Conn. Local R. 7(c), motions for reconsideration “shall be filed
within seven days of the filing of the decision or order from which relief is
sought.” Failing to timely file a motion for reconsideration constitutes sufficient
grounds for denying the motion. Lopez v. Smiley, 375 F. Supp. 2d 19, 21 (D. Conn.
2005). However, Courts in this District have exercised their discretion to review
even untimely motions. Palmer v. Sena, 474 F. Supp. 2d 353, 354 (D. Conn. 2007);
Lopez v. Smiley, 375 F. Supp. 2d 19, 21 (D. Conn. 2005) (Court will exercise its
discretion to address [plaintiff’s] untimely motion for [reconsideration], in view of
the issues raised in the [motion] and since defendants do not claim any prejudice
from the delay); Cope v. Wal-Mart Stores E., LP, Civil Action No. 3:15-cv-01523
(CSH), 2017 U.S. Dist. LEXIS 168123, at *7 (D. Conn. Oct. 11, 2017) (Courts in this
District have exercised their discretion in reviewing even untimely motions when
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the movant puts forth a reasonable excuse for failing to timely file). The Court
denied Bemer’s Motion to Stay on June 1, 2018. [Dkt. 26]. Bemer then filed his
Motion for Reconsideration on June 14, 2018, seven days past the deadline for
filing. See [Dkt. 28]. Although Bemer gives no excuse for the untimeliness of the
motion, the Court will exercise its discretion to review the motion.
“Motions for reconsideration shall not be routinely filed and shall satisfy the
strict standard applicable to such motions.” D. Conn. Local R. 7(c)(1). “Such
motions will generally be denied unless the movant can point to controlling
decisions or data that the court overlooked in the initial decision or order…” Id.
The grounds justifying reconsideration are “an intervening change of controlling
law, the availability of new evidence, or the need to correct a clear error or
prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992). “The standard for granting a motion for
reconsideration is strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked,
in other words, that might reasonably be expected to alter the conclusion reached
by the court.” Shrader v CSX Transp., 70 F.3d 255, 257 (2d Cir. 1995). A motion to
reconsider should not be granted when the movant seeks to relitigate an issue
that has already been decided. Id. See Zdanok v. Glidden Co., Durkee Famous
Foods Div., 327 F.2d 944, 953 (2d Cir 1964).
Furthermore, “even if . . . parties [can] request district courts to revisit earlier
rulings, the moving party must do so within the strictures of the law of the case
doctrine.” Virgin Atl. Airways, Ltd. 956 F.2d at 1255. The “law of the case”
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doctrine prescribes that an issue already decided by the court at one stage of
litigation becomes binding precedent to be followed during subsequent stages of
the same case. Liona Corp. v. PCH Assocs. (In re PCH Assocs.), 949 F.2d 585, 592
(2d Cir. 1991). When a court has ruled on an issue, that decision should generally
be adhered to by that court in subsequent stages in the same case unless
“cogent and compelling reasons militate otherwise”. De Johnson v. Holder, 564
F.3d 95, 99 (2d Cir. 2009) (internal quotation marks omitted). However, this
doctrine is discretionary and does not limit a court’s power to reconsider an
issue. Liona Corp., at 592. Applying the strict standard for reconsideration and
considering law of the case doctrine, the Court determines that reconsideration is
necessary in order to prevent manifest injustice.
Although Bemer does not point to any intervening change of controlling law,
he has brought forth additional facts in support of his request for consideration
and appears to suggest the procedural posture of the criminal case constrained
his ability to make a more fulsome argument. In light of this supplemental
information discussed in detail below and the gravity of Bemer's constitutional
rights at issue, the Court determines that reconsideration is in order.
III.

Defendant's Renewed Motion to Stay

Bemer argues that similarity in wording between Nesbitt’s complaint and that
of another civil litigant’s complaint in Connecticut Superior Court should move
the court to reconsider its decision. Bemer states “notably, Plaintiff’s TVPA
allegation is substantively indistinguishable from the TVPA allegation in John

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Doe v. Bemer et al. (FBT-CV-17-5032760-S), a case involving plaintiffs who were
named in the Arrest Warrant Application.” [Dkt. 28, at 3-4]. Bemer points out that
in Doe v. Bemer (-2760-S) the plaintiffs allege the following:
‘The defendant, Bruce Bemer, is an individual who engaged in a continuous
course of depraved and corrupt business activity over many years, targeting
mentally disabled and/or drug addicted individuals and/or minors for sexual
exploitation and/or willingly engaged in a conspiracy to sexually traffic
individuals, including the plaintiffs, throughout the State of Connecticut and
other states, for financial gain and/or depraved sexual gratification in lieu of or
in addition to financial gain. Bemer, upon information and belief and an
opportunity for further discovery, has been infected with the HIV virus for
decades and knowingly engaged in unprotected sexual acts with the plaintiffs
without disclosure of the fact that he is/was infected with HIV.’
[Id., at 4] (citations omitted). Bemer compares this language to the complaint in
the instant case, which contains the following passage:
‘The defendant, Bruce Bemer, is an individual who engaged in a continuous
course of depraved and corrupt business activity over many years, targeting
vulnerable individuals for sexual exploitation, and who willingly engaged in a
conspiracy to sexually abuse and traffic individuals, including plaintiff,
throughout the State of Connecticut, for financial gain and/or sexual
gratification in lieu of or in addition to financial gain. The defendant, upon
information and belief, and an opportunity for further discovery, has been
infected with the HIV virus for decades and knowingly engaged in unprotected
sexual acts with the plaintiff without disclosure of the fact that he is/was
infected with HIV.’
[Dkt. 37, ¶ 2 (emphasis added)].
The complaint to which Bemer refers in his motion was filed on March 5, 2018.
Doe v. Bemer, No. FBT-CV-17-5032760-S (Super. Ct. 2017) (CT Judicial Case
Lookup). The complaint in Doe was amended to reflect the above language on
March 5, 2018. Doe, Dkt. No. 204 (Pl. Req. Amend Comp.), at 3-4. Thereafter,
Nesbitt filed the present civil action against Bemer in Connecticut Superior Court

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on March 22, 2018. [Dkt. 28, at 1]. The Court agrees with Bemer that the wording
of the complaint is nearly identical to the civil action.
Bemer introduces evidence that Nesbitt moved to consolidate his case with
state court cases filed by plaintiffs who are named as victims of the scheme at
issue in the criminal action. [Dkt. 28, at 5]. Bemer states in his motion for
reconsideration. “[w]hen this case was pending in the Superior Court, the Plaintiff
moved to consolidate his case with [four other pending state proceedings]
because ‘all five cases arise out of the same factual setting.’” [Id.]. “Bemer
attached as Exhibit A to his renewed Motion to Stay Nesbitt's Motion to
consolidate admitting as much. [Id.]. Thus while the case was in the Connecticut
Superior Court, Nesbitt admitted this case arose out of the same facts as the civil
cases brought by the alleged victims of the criminal conduct charged in the
indictment. Two of the four civil pending cases are cases which do involve
individuals who were named in the Arrest Warrant Application. [Id.].
Nesbitt argues in his objection to Bemer’s first Motion to Stay that he has
reviewed the Arrest Warrant Application and is not listed as a victim nor is he a
victim. [Dkt. 24, at 3]. Indeed, the Court has reviewed the Information and Arrest
Warrant Application, and concludes that none of the victims listed in the report
allege they were ever at Bemer’s office at New England Cycle Center. Nesbitt, in
his complaint, alleges that all of the misconduct took place at that location. [Dkt.
1 (Pl. Comp.)]. These lacunae do not affect the court's analysis.

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An “information shall be a plain, concise and definite written statement of the
offense charged. [It] need not contain a formal commencement, a formal
conclusion or any other matter not necessary to such statement.” Conn. Practice
Book § 36-13. “It may be alleged in a single count that the means by which the
defendant committed the offense are unknown or that the defendant committed
the offense by one or more specified means.” Id. An information need not name
every victim for the offense charged. The information is solely a summary of
alleged facts against the accused used to determine the judicial authority if there
is “sufficient evidence or cause to justify the bringing . . . of such information . .
..” Conn. Gen. Stat. § 54-56. Nor need it state all places in which the offense
charged occurred. [Id.]. Even in the Arrest Warrant Application itself, the affiant
states, “because this affidavit is being submitted for the limited purpose of
securing a criminal complaint and arrest warrant the affiant has not included each
and every fact regarding this investigation of which the affiant is aware.” [Dkt.
No. 24 (Pl.’s Obj. to Def.’s Mot. To Stay, Ex. B), at ¶4]. “Rather, the affiant has set
forth only the facts necessary to establish probable cause to believe that Bruce
Bemer has violated [Conn. Gen. Stat. § 53a-82(c)(2)(A)]. . . .” [Id.]. A conspiracy
need not occur at a single place and all of the conspirators need not participate in
or even be aware of all aspects of the conspiracy. State v. Pond . 315 Conn. 451
(2015)
Critical to the Court's analysis is the language of Nesbitt's complaint. A close
reading of the complaint reveals Nesbitt's claim alleges Bemer engaged in
conduct not only with him, but with other unspecified individuals for financial
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gain. [Dkt. No. 37, ¶ 2]. Thus, Nesbitt's complaint does allege the type of conduct
charged in the criminal indictment and also the civil cases filed by the victims of
the conduct charged in the criminal indictment. While the Amended Complaint
does not identify the other individuals or state how Bemer intended to reap
financial gain, the complaint is sufficiently broad to come within the possible
ambit of the conduct for which Bemer is criminally charged. This conclusion is
firmly supported by Nesbitt's admission in his motion to consolidate that this
case arises out of the same facts and should be tried together with the cases filed
by victims of Bemer's alleged criminal conduct.
Finally, Nesbitt, has not opposed the persuasive arguments made in the
current motion for reconsideration. Although he is not required to file an
opposition, his failure to challenge or explain his complaint or the admission in
his motion to consolidate and to challenge Bemer's persuasive arguments leaves
little doubt that critical facts not brought to the fore earlier should be considered.
While this conclusion is not drawn from information which Bemer could not
have brought forth in the first instance, manifest justice compels the Court to
consider the constitutional implications of denying the motion to stay. As
Defendant took the unorthodox step of filing a second motion on the same
subject as his motion to reconsider, the Court considers the second Motion to
Stay to be a supplement to the original motion. The Court will therefore exercise
its discretion and reconsider whether to stay this case.

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IV.

Motion To Stay

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. Louis Vuitton Malletier S.A. v.
LY USA, Inc., 676 F.3d 83, 96 (2d Cir. 2012); citing Landis v. N. Am. Co, 299 U.S.
248 (1936). A district court has the discretionary authority to stay a civil
proceeding pending the outcome of a parallel criminal case. Bridgeport Harbour
Place I, LLC v. Ganim, 269 F. Supp. 2d 6, 8 (D. Conn. 2002). “Courts have
generally been concerned about the extent to which continuing the civil
proceeding would unduly burden a defendant’s exercise of his rights under the
Fifth Amendment, which provides that ‘[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.’” Louis Vuitton, at 97. A stay can
protect a defendant from making a “Hobson’s choice” of choosing to be
prejudiced in the civil litigation if the defendant asserts his Fifth Amendment
privilege, or from being prejudiced in the criminal proceeding if he or she waives
that privilege in the civil litigation. Id.
Bemer argues that, until the conclusion of his criminal proceeding, he will be
forced to assert his Fifth Amendment right against self-incrimination in response
to discovery requests and depositions. [Dkt. No. 31, at 5]. “[E]vidence of other
sexual misconduct is admissible in a criminal case to establish that the defendant
had a tendency or a propensity to engage in aberrant and compulsive sexual
misconduct . . . .” Conn. Code of Evidence 4-4(b). “[E]vidence of other crimes,
wrong or acts of a person is admissible . . . to prove intent, identity, malice,
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motive, common plan or scheme, absence of mistake or accident, knowledge, a
system or criminal activity or an element of the crime, or to corroborate crucial
prosecution testimony.” Conn. Code of Evidence 4-4(c). Discovery of facts
concerning Nesbitt's claim that Bremer engaged in misconduct with other
individuals for financial gain will be greatly hampered by Bemer's inevitable
invocation of his Fifth Amendment right against incrimination.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial . . . .” U.S. CONST.
Amend. VI. Civil discovery is intrusive and time consuming. Engaging in civil
discovery, including depositions and interrogatory compliance, may inhibit
Bemer’s ability to zealously defend this civil case while at the same time
preserving his right to defend against the criminal charges. To the extent he is
forced to make the “Hobson’s choice” between protecting his financial interests
by defending himself in this civil action and his penal interests by defending
himself in the criminal charges, his Sixth Amendment rights to a fair and speedy
trial will be abridged if not denied.
It is now clear that any effort to seek discovery about Bremer's conduct either
with other individuals or for financial gain as alleged in Nesbitt's complaint is
likely to draw an objection on the basis of the Fifth or Sixth Amendment or
perhaps deprive Bemer of his constitutional right of access to the courts. See Ex
parte Hull, 312 U.S. 546 (1941).

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Defendant failed in the first instance to sustain his burden of
establishing that this case is parallel to the criminal case. Defendant simply
seeks to re-litigate an issue previously decided by putting forth facts available to
be presented in the first instance. The Court, mindful of its role as a neutral
arbiter and not an advocate for either party, the Court concludes that the
constitutional issues at stake are of sufficient gravity that denying a stay would
be manifestly unjust to the defendant for the same reasons the Court decided to
reconsider its decision not to stay the case. It would also be judicially inefficient
as the Court would inevitably be tasked to resolve discovery disputes predicated
on these constitutional principles. Allowing the case to proceed on that basis is
inconsistent with the first and most fundamental rule of civil procedure, Federal
Rule of Civil Procedure 1, which is to secure the just, speedy, and inexpensive
determination of every action and proceeding. Fed. R. Civ. P. 1.

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V.

Conclusion

For the foregoing reasons, Defendant’s Motion for Reconsideration is
GRANTED and Defendant’s Motion to Stay in the Interest of Justice is GRANTED.
As the case cannot be adjudicated, it is dismissed without prejudice to reopening by either party within seventy (70) days after entry of a final judgment in
State v. Bemer, Docket No. CR17-0155220-S. The parties are ORDERED to file
within 21 days of any motion to reopen a Rule 26(f) Planning Report requesting
entry of a scheduling order.
SO ORDERED this 30th day of October, 2018, at Hartford, Connecticut.

__________/s/____________
Hon. Vanessa L. Bryant
United States District Judge

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