The Estate of JOANN MATOUK ROMAIN, deceased v. The CITY OF GROSSE POINTE FARMS et al

Filing 155

OPINION and ORDER Denying Defendants' 140 Joint Motion for Stay Pending FBI Criminal Investigation; and Plaintiffs' 143 Motion for Sanctions Pursuant to Federal Rule of Civil Procedure 11. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ESTATE OF JOANN MATOUK ROMAIN
and MICHELLE MARIE ROMAIN,
Plaintiffs,
v.

Case No. 14-12289
Honorable Linda V. Parker

CITY OF GROSSE POINTE FARMS,
et al.,
Defendants.
____________________________/
OPINION AND ORDER DENYING DEFENDANTS’ JOINT MOTION FOR
STAY PENDING FBI CRIMINAL INVESTIGATION [ECF NO. 140] AND
PLAINTIFFS’ MOTION FOR SANCTIONS PURSUANT TO FEDERAL
RULE OF CIVIL PROCEDURE 11 [ECF NO. 143]
Michelle Marie Romain (“Michelle Romain”), on her own behalf and as
personal representative of the estate of her deceased mother, JoAnn Matouk Romain
(“Ms. Romain”), filed this lawsuit against Defendants on June 10, 2014. Plaintiffs
claim that Defendants murdered and/or conspired to cover up the murder of Ms.
Romain on or around January 12, 2010. Presently before the Court is Defendants’
Joint Motion for Stay Pending FBI Criminal Investigation, filed November 24, 2015.
(ECF No. 140.) The motion has been fully briefed. (ECF Nos. 142, 145.) Plaintiffs
filed a motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure in
response to Defendants’ motion, which also is pending before the Court. (ECF No.
46.)

In their motion, Defendants seek to stay Plaintiffs’ lawsuit pending the FBI’s
investigation of the same facts and circumstances that form the basis of Plaintiffs’
civil claims. According to Defendants, they first learned of this FBI investigation
during Michelle Romain’s November 20, 2015 deposition. Defendants state that
Michelle Romain testified “that she met with FBI investigators on November 6, 2015
in the hope that there would be some sort of criminal prosecution related to her
mother’s death.” (ECF No. 140 at Pg ID 2277.) Defendants inform the Court that
they “have no idea or understanding of the target, parameters or contours of the FBI’s
investigation.” (Id.) Yet they contend that, as a result of the investigation, “the Fifth
Amendment privilege against self incrimination may prevent or drastically limit the
depositions of those Defendants not yet deposed.” (Id.)
A court has the broad discretion to stay a civil proceeding when there is a
pending or impending parallel criminal action. FTC v. E.M.A. Nationwide, Inc., 767
F.3d 611, 627 (6th Cir. 2014) (citing Chao v. Fleming, 498 F. Supp. 2d 1034, 1037
(W.D. Mich. 2007) (citing Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936)).
The failure to stay a civil proceeding when there is a pending parallel criminal action
targeting one of the parties to the civil action could undermine the party’s Fifth
Amendment privilege against self-incrimination. In re Par Pharm., Inc. Sec. Litig.,
133 F.R.D. 12, 13 (S.D.N.Y. 1990); see also E.M.A. Nationwide, 767 F.3d at 627
(identifying “the extent to which the defendant’s [F]ifth [A]mendment rights are
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implicated” as a factor to consider when deciding whether to grant a stay). Several
factors are relevant to a court’s decision whether to enter a stay, including:
“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 defendants have been indicted; 3) the private interests of the
plaintiffs in proceeding expeditiously weighed against the prejudice to
[the] 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.”
E.M.A. Nationwide, 767 F.3d at 627 (quoting Fleming, 498 F. Supp. 2d at 1037)
(additional quotation marks and citation omitted in E.M.A. Nationwide).
“In general, courts recognize that the case for a stay is strongest where the
defendant has already been indicted.” Fleming, 498 F. Supp. 2d at 1037 (citing
cases). As the Sixth Circuit provided in E.M.A. Nationwide:
“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.”
767 F.3d at 628 (quoting Trustees of Plumbers & Pipefitters Nat’l Pension Fund v.
Transworld Mech., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995)).
The Sixth Circuit further stated that “courts generally do not stay proceedings in the
absence of an indictment.” Id. In fact, some courts have expressed that, where a
defendant filing a motion to stay has not been indicted, the motion may be denied on

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that ground alone. State Farm Mut. Auto. Ins. Co. v. Beckham-Easley, No. Civ. A.
01-5530, 2002 WL 31111766, at *2 (E.D. Pa. Sept. 18, 2002) (citing United States v.
Private Sanitation Indus. Ass’n of Nassau/Suffolk, Inc., 811 F. Supp. 802 (E.D.N.Y.
1992); SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1376 (D.C. Cir.1980)). In any
event, as relevant to the current civil action, not only have there been no indictments
issued, but there have been no criminal proceedings initiated and there is no evidence
that there is even an ongoing criminal investigation. Thus the second factor does not
favor a stay.
Defendants base their request for a stay on Michelle Romain’s testimony that
she met with FBI investigators “in the hope that there would be some sort of criminal
prosecution . . ..” As Defendants indicate in their reply brief, Michelle Romain
“actively solicitated [sic] an investigation from the FBI as early as February/March
2010[.]” (ECF No. 145 at Pg ID 2341, citing Ex. 1 at 151, 152.) And according to
Plaintiffs’ Amended Complaint, four years ago, eye-witness Paul Hawk went to the
FBI to report that on the night of Ms. Romain’s disappearance, he was driving on
Lakeshore Drive near St. Paul’s Catholic Church (where Ms. Romain’s abandoned car
had been found) when he saw Ms. Romain sitting on the break-wall of Lake Saint
Clair with two men standing nearby (one of whom Mr. Hawk has identified as
Defendant Timothy Matouk). (ECF No. 3 at ¶ 53.) Mr. Hawk also reported that he
was concerned Ms. Romain was in danger based on her appearance and the conduct of
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the men, including the fact that when Mr. Hawk started to slow down, one of the men
motioned in a manner suggesting that he had a gun and then directed Mr. Hawk to
drive through. (Id.) Yet, as of today, there is no indication that the FBI has decided to
move forward with any investigation concerning Ms. Romain’s disappearance.
Absent evidence of a pending investigation, the Court cannot determine, inter
alia, who is being investigated or the conduct for which they are being investigated.
As such, the Court has no way of assessing whether there is any overlap between the
civil and hypothetical criminal proceedings. “If there is no overlap, then there would
be no danger of self-incrimination and no need for a stay.” Fleming, 498 F. Supp. 2d
at 1039 (internal quotation marks and citation omitted). For that reason, the district
court in Fleming found the extent of the overlap to be “the most important factor” in
the court’s analysis of whether a stay is appropriate. Id. This Court believes that the
other factors relevant to determining whether a stay is appropriate also weigh in favor
of denying Defendants’ request.
Plaintiffs clearly have an interest in proceeding expeditiously in this case which
has been pending for a year and a half already. Michelle Romain has been attempting
to uncover information concerning her mother’s disappearance for six years. Without
any indication that an FBI investigation has begun or that a criminal prosecution
arising from such an investigation is likely, Plaintiffs face an uncertainty of how long
the delay in this case would last if the Court enters a stay. The Court finds little risk
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of prejudice to Defendants’ interests or any burden on them if the matter is not stayed.
At this point, all but one of the named Defendants has been deposed and none of the
deposed defendants invoked their Fifth Amendment rights.
The Court’s interests are not benefitted by issuing a stay given the uncertainty
surrounding when, if ever, indictments will be issued. Rather than reducing or
eliminating the need for discovery or increasing the likelihood of a settlement, the
Court believes that a stay would only delay the work that needs to be done and
interfere with the Court’s ability to expeditiously resolve this matter. Plaintiffs
contend that the public’s interest in having an individual’s injuries remedied in a
timely manner weigh in favor of denying Defendants’ request for a stay. (ECF No.
142 at Pg ID 2325, citing E.M.A. Nationwide, 767 F.3d at 629.) Although courts have
found this interest also served through a criminal prosecution, see McGee v. Madison
Cnty., No. 1:15-cv-01069, 2015 U.S. Dist. LEXIS 74801, at * (W.D. Tenn. June 10,
2015), the uncertainty of whether criminal proceedings will ever materialize leads this
Court to conclude that the public’s interest is best served by not staying these civil
proceedings.
For the above reasons, the Court finds no justification for a stay of these civil
proceedings. Nevertheless, the Court cannot conclude that Defendants requested the
stay to abuse the legal process.

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Accordingly,
IT IS ORDERED, that Defendants’ Joint Motion for Stay Pending FBI
Criminal Investigation (ECF No. 140) is DENIED;
IT IS FURTHER ORDERED, that Plaintiffs’ Motion for Sanctions Pursuant
to Federal Rule of Civil Procedure 11 (ECF No. 143) is DENIED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: February 11, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, February 11, 2016, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

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