Vallambrosa Plantation, LLC et al v. Sikorsky et al

Filing 28

ORDER granting 19 Motion to Stay Civil Case. Signed by Magistrate Judge G. R. Smith on 9/21/2015. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
VALLAMBROSA PLANTATION,
LLC, JERRY WILLIAMS, and
TAMMY LEE WILLIAMS,
Plaintiffs,
Case No. CV415-202
V.

DAVID SIKORSKY and MARY
SIKORSKY,
Defendants.

ORDER
Recently indicted in Chatham County Superior Court on charges
related to the same conduct at issue in this federal RICO case, defendant
David Sikorsky moves to stay these civil proceedings until the completion
of that prosecution. Doc. 19. Plaintiffs oppose "await[ing] justice" any
longer and want the motion denied. Doe. 26. District courts
unquestionably have "the power to stay a civil proceeding due to an
active, parallel criminal investigation." United States v. Pinnacle Quest

Int'l, 2008 WL 4274498 at * 1 (N.D. Fla. Sept. 11, 2008). But the
exercise of that power is guided by discretion, which itself travels on -- as
will be seen -- some subtle distinctions.

I. BACKGROUND
For many years, Sikorsky and his family used an 8,200 acre tract
(Vallambrosa Plantation) near his house for recreational purposes. Doc.
19 at 1. Plaintiffs recently acquired that tract and installed fencing, no
trespassing signs, and locks on gates that previously remained open. Id.
Sikorsky, by his own admission,' proceeded to put super glue in the locks,
rip down some of the signs, and cut the fence over a period of six months.

Id. at 2.
Plaintiffs sued the Sikorskys on June 12, 2015, alleging various tort
claims under state law and a federal RICO claim.

See doc. 1-1 (timely

removed to this Court on July 13, 2015). A little more than two months
later, a state grand jury indicted Sikorsky for four felonies: criminal
damage to property greater than $500, theft by taking, and two counts of
possession of tools for the commission of a crime. See doe. 27-1 at 1.2 He
was also indicted on eight counts of criminal trespass. Id.

1

Sikorsky admitted to the trespassing and damage to plaintiffs' property both to the
police and this Court. See doe. 19 at 2.
2

The grand jury originally indicted Sikorsky on August 5, 2015, see doe. 19-1, but
later returned a superseding indictment on August 19, 2015 that added the
possession of tools charges. Doe. 27-1 at 1.
2

II. ANALYSIS
Both parties agree that Sikorsky's admissions makes damages the
primary issue here. And to be guilty of criminal damage to property, the
damages must exceed $500. Sikorsky contends the significant overlap of
damages-related issues merits a stay to allow the criminal proceeding to
conclude. Doe. 19 at 6-7. If the two cases proceed simultaneously, he
says, protecting his Fifth Amendment rights will cripple his ability to
contest damages in this case.

Precisely because this case "is one

Id.

concerning damages, not liability," plaintiffs argue it "does not so
directly implicate the Fifth Amendment" as to warrant a stay. Doe. 26 at
3.
Plaintiffs' argument is facially attractive but fatally flawed.
Sikorsky's liability admission indeed presents an atypical situation.' But
Fifth Amendment implications remain because "the issue of damages in
the civil case goes directly to the monetary thresholds alleged in the
Indictment that elevated Mr. Sikorsky's conduct to felonies." Doe. 27 at
Cf., United States v. Lot 5, Fox Grove, Alachua Cnty., Fla., 23 F.3d 359, 364 (11th
Cir. 1994) (defendant never conceded civil forfeiture liability, but invoked right to
remain silent); Coquina Invs. v. Rothstein, 2011 WL 2530945 at *1 (S.D. Fla. June 24,
2011) (defendant invoked Fifth Amendment, never conceded liability); Lay v. Hixon,
2009 WL 1357384 at 2 (S.D. Ala. May 12, 2009) (same); Pinnacle Quest
International, 2008 WL 4274498 at * 1 (same).

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3. Put differently, his guilt or innocence of criminal charges depends not
only on his conduct, which he's admitted to, but also on whether that
conduct caused more than $500 in damage, which he disputes.

See

Clement v. State, 324 Ga. App. 39, 43 (2013) ("To sustain a conviction for
criminal damage to property in the second degree, the State must
present competent evidence showing that the defendant intentionally
caused in excess of $500 in damage to the property of another person
without his or her consent."). Testimony in this case (including
discovery request responses), where the primary issue is damages, could
therefore be used to establish his guilt in the criminal proceedings (at
least for the criminal damage to property count).' Incriminating
testimony like that, if compelled, is the Fifth Amendment's heartland,

see In re Grand Jury Proceedings, No. 4-10, 707 F.3d 1262, 1268 (11th
Cir. 2013) ("[TJhe Fifth Amendment protects [a] person . . . from
compelled self-incrimination."), and nothing about admitting to liability
'' Interrogatory No. 4, for example, requests that Sikorsky "[n]arrate fully and with
great detail in [his] words how the damages complained of by Plaintiff occurred and
the facts and circumstances surrounding said damages. Also fully describe all
conversations that have taken place regarding the damages complained of and why
you believe the damages claimed by the Plaintiff should not be awarded." Doc. 27-2 at
3 (emphasis added). An answer to the italicized material almost certainly would
relate in part to the amount of plaintiffs' damages and so could incriminate Sikorsky
regarding the criminal damage charge.

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in this case changes that since the amount of damage is an element of
one of Sikorsky's criminal charges.'
Still, the Fifth Amendment implications of this situation do not
alone decide whether the Court should grant the stay. Nor does the
"mere existence of parallel criminal and civil proceedings . . . mandate
entry of a stay of the latter." Lay v. Hixon, 2009 WL 1357384 at * 2 (S.D.
Ala. May 12, 2009). "Rather, a court must stay a civil proceeding
pending resolution of a related criminal prosecution only when 'special
circumstances' so require in the 'interests of justice."

United States v.

Plaintiffs also obliquely argue that Sikorsky waived his Fifth Amendment rights by
talking to police and filing pleadings here "admitting to almost all of the alleged
conduct." See doc. 26 at 3. True enough, but only to a point. Certainly Sikorsky
waived the privilege against self-incrimination in his criminal proceeding as to his
conduct. But waiver does not follow a defendant from proceeding to proceeding. See
In re Cotillion Invs., Inc., 343 B.R. 344, 350 (Bankr. S.D. Fla. 2006) ("It is settled by
the overwhelming weight of authority that a person who has waived his privilege of
silence in one trial or proceeding is not estopped to assert it as to the same matter in
a subsequent trial or proceeding."); see also United States v. Gary, 74 F.3d 304, 312
(1st Cir.1996) (it is "hornbook law" that a witness waiver of his right against selfincrimination is limited to the particular proceeding in which the witness appears).
And the scope of waiver is determined by the defendant and what he chooses to
discuss. See Brown v. United States, 356 U.S. 148, 154-155 (1958) ("[T]he breadth of
his waiver is determined by the scope of relevant cross-examination."); see also id. at
155 (a defendant "determines the area of disclosure and therefore of inquiry").
Looking only at these proceedings, Sikorsky waived his Fifth Amendment rights
as to his conduct by admitting to it in various filings, see, e.g., doc. 19 at 2 ("Sikorsky
removed some of the 'no trespass' signs, inserted gorilla glue into the locks, and cut
the wire fence over a period of 6 months. . . ."), but he's never waived the right as to
damages. In fact, he's consistently asserted his disagreement with plaintiffs' claimed
amount. See id.; doc. 5 (Sikorsky's answer, where six of eight affirmative defenses
surround plaintiffs' claimed damages).
5

Lot 5, Fox Grove, Alachua Cnty., Fla., 23 F.3d 359, 364 (11th Cir. 1994)
(quoting United States v. Kordel, 397 U.S. 1, 12 & n. 27 (1970)).
Conversely, a court may deny a stay so long as invoking the
privilege against self-incrimination "does not compel an adverse
judgment against the claimant."

Id.

Even then, courts retain

"substantial discretion to stay the civil proceedings in deference to the
parallel criminal action where the interests of justice favor doing so. Lay

v. Hixon, 2009 WL 1357384 at * 2 (S.D. Ala. May 12, 2009). That
"interests of justice" inquiry in turn "should be made 'in light of the
particular circumstances and competing interests involved in the case,"

id. (quoting Keating v. Office of Thrift Supervision, 45 F.3d 322, 324-25
(9th Cir. 1995) (cites omitted), including potential prejudice to the nonmovant from a delayed decision, docket management considerations, and
"the most important threshold issue," "[t]he degree to which the issues
in the simultaneous civil and criminal proceedings overlap."

Pinnacle

Quest International, 2008 WL 4274498 at * 2 (quoting SEC v.
Healthsouth Corp., 261 F. Supp. 2d 1298, 1326 (S.D. Ala. 2003)).
This case lands firmly within the broad bounds of the Court's
discretion to grant stays. Denying the motion, and in turn forcing

Sikorsky to invoke his Fifth Amendment rights, would not "compel an
adverse judgment against"' him here and so no stay is mandated. Lot 5,
23 F.3d at 364. At the same time, a stay is not foreclosed so long as the
"interests of justice favor" granting one. Lay, 2009 WL 1357384 at * 2.
They do. First and foremost, Sikorsky's criminal proceeding and
this case "share the same operative facts, arise out of the same general
allegations, and involve . . . the same defendant[]."

Pinnacle Quest

International, 2008 WL 4274498 at * 2. The overlap between the two -the "most important threshold issue," id. -- is substantial if not complete
because Sikorsky's confession satisfies all but the monetary element of
his criminal charges, while leaving damages as the primary issue here
too. Both cases, in other words, will revolve almost entirely around how
much damage Sikorsky caused.

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At worst, Sikorsky would lose the benefit of affirmatively contesting the plaintiffs'
evidence of damages; he would not automatically lose the case on summary judgment.
See United States v. Two Parcels of Real Property Located in Russell Cnty., Ala., 92
F.3d 1123, 1129 (11th Cir. 1996) (no adverse inference allowed against party refusing
to testify on Fifth Amendment grounds where that party "is forced to choose between
waiving the privilege and losing the case on summary judgment"); Global Aerospace,
Inc. v. Platinum Jet Mgmt., LLC, 2009 WL 2589116 at * 2 (S.D. Fla. Aug. 19, 2009)
(adverse judgment that requires a stay "must be an actual adverse judgment, and not
merely the loss of the defendant's most effective defense"). Plaintiffs would still bear
the burden of proving their damages and Sikorsky could still fully defend the RICO
and battery claims he believes "far exceed[ his] admitted conduct." Doc. 27 at 3.
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Weighing the prejudice to plaintiffs from a stay against the burden
going forward would impose on defendants also counsels granting
Sikorsky's motion. Plaintiffs claim that they've "awaited justice since
November of 2014," and "should not be asked to wait further." Doc. 26
at 3. That, however, is true of most plaintiffs, who would prefer to have
cases decided in their favor as soon as possible. By contrast, Sikorsky, if
this case is not stayed, must either testify and respond here and possibly
harm his defense in the criminal proceeding, or invoke his Fifth
Amendment rights and in doing so damage his ability to defend against
plaintiffs' claims.
At bottom, then, the Court must balance plaintiffs' desire for a
speedier resolution against Sikorsky's wish not to face the
aforementioned Catch-22. Speedy dispute resolution is unquestionably a
mandatory goal of civil litigation, see Fed. R. Civ. P. 1, and is something
litigants should be able to rely on. But "speedy" is a relative term. It
never means resolution within a set time. Speed, then, while not
unimportant, can sometimes share space with other goals, like giving
negligently tardy filers a second chance. See, e.g., In re Bailey, 411 B.R.
492, 495-96 (Bankr. S.D. Ga. 2009) ("[WJhile the opening of any default

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would cause delay and therefore would be somewhat prejudicial," it is
nevertheless warranted where defendants plead potentially meritorious
defenses and the period of default is not unreasonably long); see id. at
496 (even if the reason for default, and thus delay, "is not a compelling
excuse," so long as no judgment has been entered and no prejudice would
be incurred, "the general policy favoring decisions based on the merits"
counsels setting aside the default).
Contrast that with criminal proceedings, where, for example, very
limited exceptions to the exclusionary rule exist when police violate a
defendant's right to remain silent.

See, e.g., New York v. Quarles, 467

U.S. 649, 656 (1984) ("[W]e do not believe that the doctrinal
underpinnings of Miranda require that it be applied in all its rigor to a
situation in which police officers ask questions reasonably prompted by a
concern for the public safety."). When faced with values like expediency,
which have some give in the civil context, and constitutional rights of
criminal procedure, which are much less flexible, the former should
accommodate the latter if possible. Particularly since a temporary
restraining order (doc. 12) prevents defendants from inflicting further

property damage to plaintiffs,' see Pinnacle Quest International, 2008
WL 4274498 at * 2 ("[Un light of the injunction [barring defendants from
engaging in the offending conduct], neither the parties nor the public has
a special or particular interest in having the civil case decided before or
contemporaneously with the criminal case."), the Court finds that
Sikorsky's burden outweighs what little prejudice a stay would impose on
plaintiffs.
The Court too has an interest in staying this litigation. If Sikorsky
pleads guilty to (or is otherwise convicted of) causing a particular dollar
amount of damage, the criminal proceeding may have some preclusive
effect here.

See Matter of Raiford, 695 F.2d 521, 523 (11th Cir. 1983)

("The use of a criminal conviction as conclusive of an issue in subsequent
civil litigation. . . is well established today."); Lay, 2009 WL 1357384 at *
4 ("If the criminal proceeding is resolved adversely to Lay, then such an
adjudication may have preclusive effect here, thereby obviating
altogether the need to litigate this salvage action."). Even if preclusion is
'' TROs expire (this one is set to end on October 29, 2015, see doc. 12) and thus so
does this rationale. But both defendants say they have "no objection to extending the
terms of the TRO while this case is stayed," and, in any case, that the bond
conditions the state court placed on Sikorsky "are similar to the TRO restrictions
agreed upon by the parties." Doc. 19 at 7. Although extending the TRO is a matter
for the district judge assigned to this case, defendants' larger point is well-taken and
the rationale of Pinnacle Quest thus continues to apply.
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not available, a conviction might lead to an award of restitution, which
also would influence any damages award granted plaintiffs in this case.
"Rather than devoting scarce judicial resources to a[n] . . . action that
may (or may not) be mooted. . . by parallel criminal proceedings in state
court, a far more sensible approach would be to stay this action to allow
the criminal case to reach a resolution." Lay, 2009 WL 1357384 at * 4.
The "particular circumstances" here -- the substantial overlap of
issues in Sikorsky's two cases, slight prejudice to plaintiffs from a stay,
and the court's interest in avoiding resource expenditures on litigation
that may be moot -- counsel that the "interests of justice" favor a stay.
Lay, 2009 WL 1357384 at * 2.

III. CONCLUSION
Accordingly, the Court GRANTS defendants' motion to stay (doc.
19). The case will remain stayed until the conclusion of Sikorsky's
criminal proceedings.' The burden to notify both plaintiffs and the
Court of that case's conclusion lies with Sikorsky.

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The Court is not oblivious to the fact that state criminal proceedings can, on
occasion, take a while to resolve. Whether that occurs here remains to be seen. If it
does, however, the stay's prejudice to plaintiffs will grow. Plaintiffs, of course, will
remain free to move the Court to lift the stay if the circumstances justifying its
issuance change.
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SO ORDERED, this1y of September, 2015.
cMAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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