Boerste v. Ellis, LLC et al

Filing 29

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay on 12/12/2017 granting 18 Motion to Stay filed by Kevin Bewley. All pending and future discovery requests and deposition notices propounded on Bewley are STAYED pending the con clusion of his criminal case. The stay of discovery as to Cotton REMAINS IN EFFECT. (See DN 13 ) Cotton and Bewley are REQUIRED to file a status update or updates no later than three (3) days after the criminal proceedings are resolved OR 02/1 6/2018, whichever is earlier. The stay of these proceedings as to Saint Catharine REMAINS IN EFFECT. The scheduling order of 10/4/2017 (DN 17 ) REMAINS IN EFFECT as to all other parties. The Court's standing order regarding discovery-related motions REMAINS IN EFFECT. cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-298-GNS

BRYAN TYLER BOERSTE,

Plaintiff,

v.
ELLIS, LLC, et al.,

Defendants.
MEMORANDUM OPINION AND ORDER

This matter is before the Court on a motion to stay (DN 18) filed by Defendant Kevin
Bewley (“Bewley”). Plaintiff Bryan Tyler Boerste (“Boerste”) filed a response (DN 26), and
Bewley filed a reply (DN 27). For the following reasons, the motion to stay is granted.
BACKGROUND
On October 4, 2017, the Court entered a scheduling order (DN 17). In that order, the
Court discussed the existence of related criminal proceedings in state court against two
defendants in this civil action, Michael Cotton (“Cotton”) and Bewley. United States District
Judge Greg N. Stivers previously granted a motion filed by Cotton to stay discovery as to him.
(DN 7 (motion to stay); DN 13 (order granting stay).) Specifically, Judge Stivers held that “[a]ll
pending and future discovery requests propounded upon . . . Cotton are stayed until the
conclusion of his criminal case.” (DN 13.)
The October 4, 2017 scheduling order stated that the stay as to Cotton remains in effect
and noted that as Bewley had not requested or received a stay of discovery as to him, all
deadlines set forth in the scheduling order applied to him. (DN 17 at 2.) The Court also set a
date for Cotton and Bewley to file updated status reports regarding the criminal proceedings and
setting forth their positions as to whether case management deadlines should be stayed as to

Cotton and/or Bewley. (Id. at 3 (further stating that other parties may notify the Court of their
positions as to the same but were not required to do so.).) In compliance with that order, the
parties filed the following:
(1)
Bewley’s motion (DN 18) to stay these proceedings as to
him pending resolution of the underlying criminal proceedings;
(2)
Cotton’s status report and position on case management
deadlines (DN 20);
(3)

Bewley’s status report regarding same (DN 23);

(4)
Boerste’s response in opposition to Bewley’s motion to
stay (DN 26); and
(5)

Bewley’s reply in support of his motion to stay (DN 27).

The purpose of the instant memorandum opinion and order is to address those filings.
In the motion to stay, Bewley assets that a trial in his related criminal matter is set for
February 6, 2018. (DN 18 at 1.) He asks the Court to stay discovery, both written discovery and
depositions, as to him pending resolution of the criminal matter. As grounds for the motion,
Bewley contends that entry of a stay is proper under a set of six factors recognized by the Sixth
Circuit. He argues that the criminal case arises out of the same set of facts as this case; that a
trial date has been set; that the Court already granted a similar stay to Cotton; that without a stay,
he would likely invoke his Fifth Amendment privilege against self-incrimination, which would
likely require a second deposition; and that it would be a waste of Court resources to engage in a
lengthy determination of what elements of discovery are covered by the Fifth Amendment
privilege in this case.
In response, Boerste argues that Bewley has not shown a pressing need to delay
discovery in this matter. (DN 26.) Boerste asks that the motion to stay be denied, “or at a
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minimum, limited to stay only discovery related to Defendant Bewley’s state of mind regarding
the events that injured Plaintiff.” (Id. at 1.) Boerste asks the Court to permit him to take
discovery from Bewley on topics that he says are unrelated to the criminal charges, such as his
employment history and training, driving history, personal financial history, process for
responding to calls for a tow truck, and the number of times that he has towed trucks from Saint
Catharine College (“Saint Catharine”). (Id. at 4.) Noting that the incident underlying this case
occurred on April 16, 2016 and that trial is not set to begin until February 6, 2018, Boerste
argues that to stay discovery as to Bewley would further delay this case and prejudice Boerste’s
ability to move forward with the lawsuit in a timely manner. (Id.) Boerste argues that a stay is
not automatically granted in a civil matter involving a defendant who is implicated in related
criminal proceedings, and urges the Court to exercise its discretion and make a decision on a
case-specific basis. (Id. at 2.) He contends that Bewley has not met his burden to show that
there is a pressing need for delay, arguing that Bewley does not provide any specific examples
regarding why it would be necessary to invoke his Fifth Amendment privilege. (Id. at 2-3.)
Boerste argues that the possibility of follow-up discovery or a subsequent deposition after a stay
is lifted does not outweigh the prejudice to him of being unable to complete discovery in an
efficient manner. (Id. at 3.)
Bewley filed a reply (DN 27), in which he again notes that the Court previously granted a
stay of discovery as to Cotton. Further, he points to a January 2017 email from Boerste’s
counsel stating that Boerste would not sit for a deposition until then-pending criminal charges
against him were resolved. (DN 27 at 2-3; DN 27-1 at 1 (“Moreover, Tyler [Boerste] is currently
under indictment and we will schedule his deposition once that criminal matter is concluded.”).)

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Bewley argues that there is no reason to treat him differently than the Court has treated Cotton or
than as Boerste’s counsel requested that he be treated. Bewley also notes that the criminal trial is
set for less than three months from now, on the same date as Cotton’s trial, giving the delay in
this case a “finite end” that is not likely to affect the existing discovery deadline of June 1, 2018.
(DN 27 at 3 (citing DN 17 at 3).) Finally, in a status report filed on October 13, 2017 (DN 23),
Bewley reiterates the February 6, 2018 trial date in the criminal matter and asks the Court to
grant his motion for a stay.
Cotton also filed a status report on October 13, 2017 (DN 20). Therein, he states that in
his criminal matter, a pretrial conference is set for December 20, 2017 and trial is set for
February 6, 2018. (Id. at 1.) Cotton asserts that the stay of discovery as to him should remain in
effect because he “fully intends to continue to assert his Fifth Amendment Privilege against selfincrimination during the pendency of criminal proceedings against him.” (Id. at 2.) Looking to
the same six factors discussed by the parties in relation to Bewley’s motion to stay, Cotton
argues that a stay is appropriate because the criminal and civil actions stem from the same
incident and are closely related; because waiting until the criminal action is resolved would not
affect the ability of Boerste and Defendant Ellis Towing, LLC to recover monetary damages in
this action; and because there will be time for the other parties to depose Cotton in the period
between the conclusion of the criminal trial and the June 1, 2018 discovery deadline. (Id.)
DISCUSSION
A. Legal Standard
“[N]othing in the Constitution requires a civil action to be stayed in the face of a pending
or impending criminal indictment.” FTC v. E.M.A. Nationwide, Inc., 767 F.3d 611, 627 (6th Cir.
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2014) (quoting Chao v. Fleming, 498 F. Supp. 2d 1034, 1037 (W.D. Mich. 2007)); id. (further
stating that “there is no requirement that a civil proceeding be stayed pending the outcome of
criminal proceedings”) (quoting S.E.C. v. Novaferon Labs, Inc., 1991 U.S. App. LEXIS 19406,
*2 (6th Cir. Aug. 14, 1991)). Accordingly, district courts have broad discretion in determining
whether to stay a civil action while a criminal action is pending or impending. Id. (citing Chao,
498 F. Supp. 2d at 1037).
The Sixth Circuit has recognized six factors that “[d]istrict courts generally consider and
balance . . . when determining whether a stay of civil proceedings is appropriate in a given case.”
E.M.A. Nationwide, 767 F.3d at 627. Those factors are as follows:
(1)
The extent to which the issues in the criminal case overlap
with those presented in the civil case;
(2)
The status of the 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.

Id. (citing Chao, 489 F. Supp. 2d at 1037). In addition to the factors listed above, district courts
are directed to consider the extent to which the defendant’s Fifth Amendment rights are
implicated. Id. (citing Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995))
(quotation omitted). The party seeking a stay bears the burden of showing a pressing need for
delay and that neither the other parties nor the public will suffer harm from entry of the order.
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Id. at 627-28 (citing Ohio Envtl. Council v. U.S. Dist. Ct., S. Dist. of Ohio, E. Div., 565 F.2d 393,
396 (6th Cir. 1977)).
B. Bewley’s Motion to Stay
The Court will now apply the six factors set forth above to the circumstances presented
by Bewley’s motion to stay discovery. First, it appears to be undisputed that there is an overlap
of issues in the criminal and civil matters. The parties agree that the criminal and civil matters
stem from the same events. Accordingly, the first factor weighs in favor of granting a stay of
discovery as to Bewley pending resolution of the criminal proceedings against him.
Second, the status of the case also weighs in favor of staying discovery as to Bewley. “A
stay of a civil case is most appropriate where a party to the civil case has already been indicted
for the same conduct for two reasons: first, the likelihood that a defendant may make
incriminating statements is greatest after an indictment has issued, and second, the prejudice to
the plaintiffs in the civil case is reduced since the criminal case will likely be quickly resolved
due to Speedy Trial Act considerations.” E.M.A. Nationwide, 767 F.3d at 628 (quoting Trs. of
Plumbers & Pipefitters Nat. Pension Fund v. Transworld Mechanical, 886 F. Supp. 1134, 1139
(S.D.N.Y. 1995)). In the instant case, not only have criminal charges been filed, but a trial date
is set for February 6, 2018.1 Bewley filed the motion to stay just under four months prior to the
trial date, and the instant memorandum opinion and order is entered approximately two months
prior to the trial date. The Court finds that the likelihood of Bewley making incriminating
statements is, naturally, greater now than it would be if there was no pending criminal matter.
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The Court notes that there is no guarantee that the criminal trials will go forward as scheduled. Indeed,
during a telephonic conference on November 27, 2017, counsel for Cotton stated that Cotton’s criminal trial has
been continued more than once. Nevertheless, as of the date of entry of the instant opinion, Cotton and Bewley’s
trials are both set for February 6, 2018, and the Court has no information before it suggesting that the trials will not
begin on that date.

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Further, taking into account the usual course of federal civil matters, the criminal trial will take
place in the relatively near future. The Court concludes that Boerste will not be prejudiced by
having to wait approximately two more months before taking discovery from Bewley.
The third factor, the private interests of the plaintiff in proceeding expeditiously, weighed
against the prejudice to him caused by the delay, also weighs in favor of granting the motion to
stay. As Bewley stresses in his motion and reply, the deadline for completion of discovery in
this case is June 1, 2018. (See DN 17.) Accordingly, after completion of a criminal trial and the
consequential resolution of that case in early- to mid-February, the parties will have nearly four
months to complete discovery involving Bewley. Moreover, the parties are currently free to
conduct discovery as to all aspects of this case, with the exceptions of seeking discovery from
Cotton, Third-Party Defendant Saint Catharine, and, upon entry of the instant order, from
Bewley. (See DN 17 at 2 (discussing stay of discovery as to Cotton and stay of action as to Saint
Catharine); id. at 3 (“All parties may proceed with discovery.”).) While the Court understands
Boerste’s desire to move forward with discovery related to Bewley, Boerste remains free to seek
discovery from a number of other parties in this case, as well as nonparties, and he will have
several months to take discovery from Bewley in the period between the resolution of the
criminal matter and the deadline for completion of discovery. Additionally, it is worth noting
that in the email attached to Bewley’s reply, Boerste’s counsel seemed to take it as understood
that her client would not sit for a deposition until the criminal matter against him was resolved.
(See DN 27-1 at 1.) It would seem, therefore, that Boerste can understand why Bewley seeks the
same outcome. For the foregoing reasons, the Court concludes that the third factor weighs in
favor of granting the motion to stay discovery as to Bewley.
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The fourth factor, the private interests of and burden on Bewley, also weighs in favor of
granting the motion to stay. The Court agrees with Bewley that it would be a burden on him to
have to sit for a deposition in the civil case, during which he would assert his Fifth Amendment
privilege, and then almost certainly have to reconvene a deposition after the criminal matter is
resolved. This would be not be an efficient use of Bewley’s time and resources. The Court
acknowledges Boerste’s argument that he could initiate discovery from Bewley in relation to
certain topics that do not involve Bewley’s mental state at the time of the incident. While it is
possible that discovery could proceed in that manner, it would be more cumbersome for all
parties and burdensome to Bewley, especially when the alternative course is to simply grant a
stay and then allow discovery involving Bewley to proceed wholesale in February 2018 after the
criminal matter is resolved. Moreover, as is discussed above, there is no barrier to the parties
proceeding with discovery involving parties (and nonparties) as to whom discovery has not been
stayed, such as Boerste and the Defendants and Third-Party Defendants not including Bewley,
Cotton, and Saint Catharine.
Fifth, it is in the Court’s interest to grant a stay. It would not be an efficient use of Court
resources to deny a stay and then to have to handle disputes regarding Bewley’s assertion of his
Fifth Amendment privilege against self-incrimination.

This is especially true when one

considers the relatively short length of the stay, as the criminal matter should be resolved in less
than three months.
Sixth, and finally, the Court finds that the public interest also weighs in favor of granting
a stay. It is in the public interest for Court resources to be utilized wisely and efficiently.
Further, to the extent that there is a general public interest in the prompt resolution of this civil
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matter, the relatively short length of a stay required under these circumstances indicates that the
burden, if any, on that interest caused by this decision would be minimal.
Based upon the foregoing, the Court finds that all six factors recognized by the Sixth
Circuit weigh in favor of granting a stay of discovery as to Bewley. The Court further finds that
Bewley has satisfied his burden of showing a pressing need for delay and that neither the other
parties nor the public will suffer harm from entry of the instant order. Accordingly, the Court
concludes that Bewley’s motion to stay discovery as to him should be granted.
C. Status of the Stay as to Cotton
Finally, the Court already granted a stay of discovery as to Cotton. (DN 13 (“All pending
and future discovery requests propounded upon [] Cotton are stayed until the conclusion of his
criminal case.”).) For the same reasons that the six factors analyzed above weigh in favor of
granting a stay of discovery as to Bewley, the Court concludes that the stay as to Cotton should
remain in effect pending resolution of his criminal proceedings.
ORDER
Accordingly, IT IS HEREBY ORDERED as follows:
(1)

Bewley’s motion to stay (DN 18) is GRANTED.

All pending and future

discovery requests and deposition notices propounded on Bewley are STAYED pending the
conclusion of his criminal case.
(2)

The stay of discovery as to Cotton REMAINS IN EFFECT. (See DN 13.)

(3)

Consistent with the Court’s order of November 28, 2017 (DN 28), Cotton and

Bewley are REQUIRED to file a status update or updates no later than three (3) days after the
criminal proceedings are resolved OR February 16, 2018, whichever is earlier.
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(4)

The stay of these proceedings as to Saint Catharine REMAINS IN EFFECT.

(5)

The scheduling order of October 4, 2017 (DN 17) REMAINS IN EFFECT as to

all other parties.
(6)

The Court’s standing order regarding discovery-related motions REMAINS IN

EFFECT. (See DN 17 at 4-5, ¶ 13.)

Colin Lindsay, MagistrateJudge
United States District Court

December 12, 2017

cc: Counsel of record

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