Stohr et al v. Scharer et al

Filing 61

MEMORANDUM AND ORDER denying 53 Motion to Stay Case. Signed by Magistrate Judge K. Gary Sebelius on 5/30/2018. (wh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CYNTHIA STOHR, BRADLEY STOHR,
MATTHEW STOHR, JEFFREY STOHR, by and
through his guardian and conservator Cynthia
Stohr, and Cynthia Stohr as Administrator of
the Estate of Ernest A. Stohr, Deceased,

)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
PETER SCHARER and SHAWNEE SCHARER, )
Individually and as Trustees of the Scharer Living )
Trust, a/k/a The Scharer Family Trust
)
and DAVID FARRIS,
)
)
Defendants.
)

Case No. 17-1018-JWB

MEMORANDUM AND ORDER
This matter comes before the court upon defendant David Farris’ Motion to Stay Civil
Proceedings (ECF No. 53). For the following reasons, this motion is denied.
I.
Plaintiffs’ personal injury and wrongful death claims arise from the death of Ernest Stohr.
Plaintiffs are the Estate of Ernest Stohr and his heirs at law. They contend that Stohr’s death on
March 30, 2015 was caused by a fire on March 16, 2015 originating on the property of defendants
Peter Scharer and Shawnee Scharer. They allege that the fire was set and ignited by defendant
David Farris, who was an employee of the Scharers.
In this motion, Farris seeks to stay this action pending resolution of a criminal investigation
into the death of Ernest Stohr by the Reno County, Kansas Sheriff’s Office or, in the alternative,
the expiration of the applicable statutes of limitations. Farris contends that the prosecution of this
action will cause him undue prejudice and undermine his Fifth Amendment privilege against self-

incrimination.

Plaintiffs oppose Farris’ motion. They argue that a stay of this action is not

constitutionally mandated and that the court should exercise its discretion to allow the case to
proceed. They note that no criminal proceeding is pending against Farris and that a stay would
unfairly prejudice them.
II.
Detective Richard Jennings of the Reno County Sheriff’s Office has conducted a homicide
investigation regarding Stohr’s death.1 Records from the Reno County Sheriff’s Office reflect that
the fire on the Scharers’ property “was set by person(s) burning brush without a burn permit.” 2
Farris was interviewed by the Reno County Sheriff’s Office on at least two occasions regarding
the fire.3 Farris did not invoke his Fifth Amendment rights during either interview. The records
further indicate that on or about April 21, 2016, Detective Jennings reported that he was
“inactivating the case due to lack of leads.”4
During a deposition on March 1, 2018, Detective Jennings stated his office continues to
investigate the fire as a potential homicide.5 Detective Jennings testified that the Reno County
Sheriff’s Office has not made a determination whether any arrests regarding the fire will be made,
because the Sheriff’s Office does not yet have sufficient evidence to do so.6 As of the date of his
deposition, Detective Jennings was not aware of any eye witness who claimed to have seen the
fire started (by any person).7 Detective Jennings testified that he has “not completely ruled
[Defendant Farris] out [as a suspect].”8

1

Mem. in Support of Mot. to Stay Civil Proceedings, Exh. D., at 2 (ECF No. 53).
Id., Exh. C at 7.
3
Id., Exh. C, at 17.
4
Id., Exh. C, at 18.
5
Id., Exh. D at 2.
6
Id., Exh. D at 3.
7
Id., Exh. D at 5.
8
Id., Exh D at 6.
2

2

Detective Jennings further testified during his deposition that deposition testimony of
witnesses who claim to have information about the fire would “very much so” be of interest to him
and his investigation.9 He believes that sworn deposition testimony taken during litigation of the
above-styled case could be helpful to both his investigation of the fire and possible prosecution of
charges stemming from the same.10 Specifically, he agreed that if Farris were to answer questions
at a deposition in the pending case, his answers would be of interest to him and his investigation.11
As of the date of his deposition, Detective Jennings’ investigation into the fire at issue remained
inactive due to a lack of leads and witnesses.12
On April 17, 2018, plaintiffs filed a deposition notice for the deposition of Farris to occur
on May 21, 2018.13
III.
Although the Federal Rules of Civil Procedure do not expressly provide for a stay of
proceedings, this court has others have determined that Rule 26(c) governs requests to stay
discovery.14 Whether to stay or otherwise limit discovery lies within the sound discretion of the
court.15 The Tenth Circuit has provided the following guidance concerning the stay of a civil
matter when a litigant faces criminal charges:
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. 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. However, a defendant has no absolute right not to be forced to choose
9

Id., Exh. D at 7.
Id., Exh. D at 8-10.
11
Id., Exh. D at 11.
12
Id., Exh. D at 13-14.
13
Notice, ECF No. 52.
14
Steil v. Humana Health Care Plans, Inc., No. 99-2541-KHV, 2000 WL 730428, at *1 (D. Kan. May 1,
10

2000).
15

Kerr v. Dillard Store Servs., Inc., No. 07-2604-KHV-GLR, 2008 WL 687014, at *1 (D. Kan. Mar. 10,
2008); Evello Invs. N.V. v. Printed Media Servs., Inc., No. 94-2254-EEO, 1995 WL 135613, at *3 (D. Kan. Mar. 28,
1995).

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between testifying in a civil matter and asserting his Fifth Amendment privilege.
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.16
Other courts have typically considered the following factors when 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 defendant has been indicted; (3) the private interests of the plaintiff in
proceeding expeditiously weighed against the prejudice to plaintiff caused by the delay; (4) the
private interests of and burden on the defendant; (5) the interests of the courts; and (6) the public
interest.17
IV.
The similarity of issue issues has been termed “the most important issue at the threshold to
determine whether to grant a stay.”18 There is little dispute between the parties on this issue. This
factor weighs in favor of granting a stay because the civil and criminal cases involve the same
issue—who is responsible for setting the fire.
The second factor, the status of the criminal proceedings, presents a more difficult
consideration.

“The state of the parallel criminal proceeding may also substantially affect the

determination of whether a stay is warranted [as] ‘the strongest case for a stay of discovery in the
civil case occurs during a criminal prosecution after an indictment is returned ... [due to] the

16

Creative Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 (10th Cir. 2009)(citations omitted).
See Hartford Life and Accident Insurance Co. v. Nickel, No. 17-cv-02556-MJW, 2018 WL 1173150, at
*2(D.Colo. Mar. 6, 2018).
18
Walsh Securities, Inc. v. Cristo Prop. Management, Ltd., 7 F.Supp.2d 523, 527 (D.N.J. 1998)(citation
omitted).
17

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potential for self-incrimination’”.19

Based upon the fact that “there is less risk of self-

incrimination, and more uncertainty about the effect of a delay on the civil case, preindictment
requests for a stay are generally denied”.20 “However, each case must be evaluated individually
... [and] it is ‘still possible’ to obtain a stay ... if the Government is conducting an active parallel
criminal investigation”.21
Here, no charges have been filed against Farris. The Reno County Sheriff’s Office has
deemed the investigation inactive due to a lack of leads and witnesses. Nevertheless, Detective
Jennings remains interested in the proceedings in this case. Under these circumstances, the court
believes this factor weighs in favor of denying the request for stay. Farris has not been charged
and the investigation is inactive. The court cannot predict whether any criminal proceedings will
ever be initiated.
The third factor, the plaintiff’s interest in expeditious civil proceedings weighed against
the prejudice to the plaintiff caused by the delay, heavily favors denying the stay. Plaintiffs have
a clear interest in having discovery occur. The granting of the requested stay would substantially
delay the resolution of plaintiffs’ claims.
The fourth factor, the burden on the defendants, weighs in favor of granting the stay. Farris
has a clear interest in protecting himself from self-incrimination during the discovery of the civil
matter.

If Farris were forced to assert his Fifth Amendment rights, this would unduly prejudice

him because plaintiffs would undoubtedly seek an adverse inference against him.
The fifth factor, the interests of the court, weighs in favor of denying the stay. The length
of the potential stay will significantly delay the progress of this case. The statute of limitations

19

Id. (quoting Judge Milton Pollack, Parallel Civil and Criminal Proceedings, 129 F.R.D. 201, 203
(S.D.N.Y. 1989)).
20
Id.
21
Id. (quoting Parallel Proceedings, 129 F.R.D. at 204).

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for arson in Kansas is five years.22 The statute of limitations for manslaughter is also five years.23
Thus, the requested stay would delay discovery at least concerning Farris until March 16, 2020.
The court has an interest in judicial efficiency in terms of managing its caseload.
The final factor, the public’s interest, is not implicated until an indictment or criminal
charge is initiated. Without an indictment or criminal charge, the public interest in seeing civil
disputes resolved in an efficient and timely manner supersedes defendant Farris’ suspicions that
he might be exposed to criminal liability.
On balance, the court shall deny defendant Farris’ motion to stay. The court finds, although
the issue is a close one, the applicable factors weigh in favor of denying the stay.
Accordingly,
IT IS THEREFORE ORDERED that defendant David Farris’ Motion to Stay Civil
Proceedings (ECF No. 53) is hereby denied.
IT IS SO ORDERED.
Dated this 30th day of May, 2018, at Topeka, Kansas.

s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge

22
23

K.S.A. §§ 21-5207(d) and 21-5812.
K.S.A. §§ 21-5207(d), 21-5404 and 21-5405.

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