Cruz Mejia et al v. Brothers Petroleum, LLC et al
Filing
107
ORDER AND REASONS granting in part and denying in part 88 Motion to Stay. Signed by Judge Helen G. Berrigan on 09/02/2014. (kac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANIA GISELLE CRUS MEJIA, ET AL
CIVIL ACTION
VERSUS
BROTHERS PETROLEUM, L.L.C., ET AL
NO. 12‐2842
SECTION “C” (3)
ORDER AND REASONS
This matter comes before the Court on motion for stay of civil proceedings filed by
Brothers Petroleum, L.L.C. (ʺBrothersʺ) and Imad F. Hamdan (ʺHamdanʺ). Having
considered the record, the memoranda of counsel and the law, the Court rules as follows.
The plaintiffs in this collective action alleges violations of the Fair Labor Standards
Act of 1938 (ʺFSLAʺ), 29 U.S.C. § 201, et seq., in connection with their employment at
Brothers Food Marts in various locations around Louisiana. On July 16, 2014, the Court
granted the plaintiffsʹ motion to proceed as a collective action and facilitate notice, and
ordered that the defendants provide the plaintiffs ʺa computer‐readable data file
containing all potential opt‐in plaintiffsʹ names, last known mailing addresses, and email
addresses.ʺ Rec. Doc. 79 at 7‐8. On August 15, 2014, defense counsel sent plaintiffsʹ
counsel a letter in which she advised that ʺdefendant Imad Hamdan is invoking his
fundamental constitutional right against self‐incrimination under the Fifth Amendment
to the United States Constitution with respect to the identity of any additional potential
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opt‐in plaintiffs.ʺ Rec. Doc. 95‐1.
In this motion, both defendants seek that ʺthis case be stayed in its entiretyʺ based
on email correspondence from an Assistant United States Attorney indicating an effort to
interview certain persons employed by Brothers Food Mart convenience stores, along
with unsupported statements contained in the motion that administrative subpoenas
have been served on the defendants concerning the legal status of employees and former
employees at the stores. Rec. Doc. 88 at 1, 5, Exh. 1. No other proof of an investigation or
the nature of an investigation is provided in the motion. The plaintiffs argue that because
no charges have been filed and no indictment has issued, no criminal proceedings are
pending and a stay is inappropriate.
The district court has discretion to stay a civil case when the interests of justice so
require. United States v. Kordel, 397 U.S. 1, 12 n. 27 (1970). A civil action may be stayed
pending the resolution of criminal proceedings under ʺspecial circumstances.ʺ S.E.C. v.
First Financial Group, 659 F.2d 660, 668 (5th Cir. 1981). The parties agree that the propriety
of a such a stay is governed by balancing six factors:
(1)
(2)
(3)
(4)
(5)
the extent to which the issues in the criminal case overlap with those in the
civil case;
the status of the criminal case, including whether the defendants have been
indicted;
the private interest of the plaintiffs in proceeding expeditiously with the
civil litigation;
the private interest of, and burden on, the defendant;
the interest of the courts; and
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(6)
the public interest.
LeBouef v. Global X‐Ray, 2008 WL 239752 (E.D.La.); Southeast Recovery Group, L.L.C. v. BP
American, Inc., 278 F.R.D. 162, 166‐67 (E.D.La. 2012).
Because here, the only invocation of any Fifth Amendment privilege involves the
disclosure of the names of additional potential opt‐in plaintiffs by Hamdan alone, the
Court will restrict its ruling to that singular issue. The Court is mindful that some
jurisprudence suggests that corporations do not have a Fifth Amendment defense against
self‐incrimination, which is not discussed by either party relative to this motion. Braswell
v. United States, 487 U.,S. 99 (1988). In addition, a blanket refusal to answer questions
based on the Fifth Amendment is insufficient to relieve a party of the duty to respond to
questions. S.E.C. v. First Financial Group of Texas, Inc., 659 F.2d 660, 668‐69 (5th Cir. 1981).
Again, no proof as to the nature of any criminal investigation is provided but,
accepting the defendantsʹ characterization as accurate, the alleged criminal issues relate to
undocumented workers and therefore overlap with the FLSA issues only to the extent
that covered undocumented workers were denied FLSA protections for purposes of the
first factor. The parties agree that undocumented workers are not precluded from
recovery under the FLSA and, therefore, are potential plaintiffs in this civil action. Again
accepting the defendantsʹ characterization of the potential criminal investigation, no
potential criminal exposure is argued with regard to the defendantsʹ documented
workers and no impediment to identifying and proceeding with discovery as to those
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documented workers is articulated by the defendants. The defendants also argue that
they anticipate overlapping witnesses in any future criminal proceeding and that
participation in civil discovery will expose criminal defense strategy. The Court finds
that the first factor does not weigh in favor of a total stay in light of the record.
For purposes of the second factor, the proof presented only indicates that the
status of any criminal case is at the interview stage. Regardless of whether that
circumstance ʺdoes not militate against the granting of a stay,ʺ the Court finds that it does
weigh against such a severe stay given the lack of proof provided by the defendants.
S.E.C. v. Offill, 2008 WL 958082 at *2‐3(N.D. Tex.). This factor does not lend support to a
total stay.
The defendants argue that the plaintiffs will not be prejudiced by the stay because
they will still be entitled to pursue their FLSA remedies and may actually benefit from the
information gathered in any criminal proceeding for purposes of the third factor
involving the private interest of the plaintiff in proceeding expeditiously weighed against
the prejudice to the plaintiff caused by delay. The plaintiffs counter that the delay not
only denies covered employees a timely recovery, but early distribution of the notice to
potential plaintiffs is essential for statute of limitations purposes. Although the plaintiffs
allegedly have already been denied timely recompense under the FLSA, the defense
argument ignores the issue of notice and prescription. The Court finds that this factor
does not weigh in favor of the stay sought.
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With regard to the fourth factor, the private interests and burden on the
defendants, the defendants argue a significant burden exists ʺif Mr. Hamdan is forced to
defend himself and his companies in the instant civil lawsuitʺ and that the corporate
defendant ʺwould likely be unable to fulfill its civil discovery obligations without the
benefit of testimony from Mr. Hamdan, the individual managers, and other witnesses
likely to invoke their Fifth Amendment rights.ʺ Rec. Doc. 88‐1 at 9. The Court notes that
only Hamdan and Brothers are named as defendants in this matter. Individual managers
are not named as defendants, and no legal authority is provided by the defendants that
they are the subject of a criminal investigation or that their fundamental constitutional
rights are being threatened. Rec. Doc. 88‐1 at 2. This factor weighs in favor of a limited
stay as to the two named defendants.
The defendants argue that the court and the public have an interest in the stay
sought because a criminal proceeding may lend efficiency to this civil matter and a stay
results only in a temporary delay. The Court finds that the interests of the courts and the
public interests implicated in the fifth and sixth factors do not support the stay requested.
At the same time, the Court finds, on balance, a temporary and limited stay as to
the outstanding discovery is appropriate until such time as the parameters of any
criminal investigation is determined. In the event any privilege is invoked by any party
in the future, the procedures outlined in Rule 26 as to privilege, motions to compel and
motions for protective orders should be followed. On balance and based on this record,
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IT IS ORDERED that the motion for stay of civil proceedings filed by Brothers
Petroleum, L.L.C. and Imad F. Hamdan is PARTIALLY GRANTED and PARTIALLY
DENIED. Rec. Doc. 88. The previously‐ordered list with a computer‐readable data file
containing all potential opt‐in plaintiffsʹ names, mailing addresses and email addresses
shall be provided within 15 days as to all potential opt‐in plaintiffs shown in the
defendantsʹ records to be documented workers. No discovery as to undocumented
worker may proceed for a period of two (2) months from the date of this order, at which
time the Court will consider appropriate motions including a motion to reopen and/or
another motion to stay, if appropriate.
IT IS FURTHER ORDERED that this limited stay does not apply to any motion by
the plaintiffs seeking protection from the statute of limitations as to any potential opt‐in
plaintiff whose identity is not being disclosed by virtue of this stay. THE COURT URGES
THE PARTIES TO ENTER INTO A STIPULATION AS TO THIS ISSUE.
New Orleans, Louisiana, this 2nd day of September , 2014.
____________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE
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