United States v. Waller et al

Filing 24

ORDER granting 20 Motion to Stay. Signed by Magistrate Judge George Foley, Jr on 12/6/2016. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,
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vs.
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WILLIAM WALLER, et al.,
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Defendants.
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__________________________________________)

Case No. 2:16-cv-00352-JCM-GWF
ORDER

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This matter is before the Court on Defendant William Waller’s (“Waller”) Motion to Stay

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(ECF No. 20), filed on November 10, 2016. Defendant Wells Fargo filed an Opposition (ECF No.

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The Government brought the instant action against Defendant Waller to reduce federal tax

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assessments to judgment and to foreclose tax liens on certain real property. See Amended Complaint

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(ECF No. 9). The Government also brought this action against Wells Fargo because Wells Fargo has

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a competing interest in the subject real property. Id. Waller alleges that he is the subject of an on-

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going criminal investigation and asserts that he cannot proceed in the instant civil action without

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compromising his Fifth Amendment right against self-incrimination. Motion to Stay (ECF No. 20),

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pg. 1–2. Waller specifically references a subpoena issued to Burbank Holding, LLC (“Burbank”)

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requesting Burbank to testify before a grand jury on March 22, 2016 regarding “All corporate records

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and books of account relative to the financial transactions of BURBANK HOLDINGS, LLC,

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WILLIAM WALLER, and/or TERESA BONIFATTO” for the years 2004-2015. Id., at pg. 7. Based

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on this subpoena, Waller requests that this matter be stayed pending the completion of the criminal

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investigation. The Government does not oppose a stay. However, Defendant Wells Fargo asserts that

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a stay is not warranted because Waller has failed to “meet any of the grounds required to obtain a stay

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in circumstances of pending criminal litigation.” Opposition (ECF No. 22), 2:23–24.

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“The Constitution does not ordinarily require a stay of civil proceedings pending the outcome

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of criminal proceedings.” Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995).

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Absent “substantial prejudice” to the parties, parallel civil and criminal proceedings are

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unobjectionable under Ninth Circuit precedent. Id. (quotation omitted). However, it remains in the

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court’s discretion to determine whether to stay a civil case pending the outcome of criminal

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proceedings. Id.

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When determining whether to stay a civil proceeding pending a the outcome of a parallel

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criminal proceeding, the court must consider “the extent to which the defendant's Fifth Amendment

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rights are implicated.” Id. (quotation omitted). This decision should be made “in light of the

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particular circumstances and competing interests involved in the case.” Id. (quotation omitted).

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Additionally, the court should consider the following factors: (1) the plaintiff's interest in proceeding

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expeditiously with the case or any particular aspect of it, and the potential prejudice to the plaintiff of

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a delay; (2) the burden that any particular aspect of the proceedings may impose on the defendant; (3)

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the court's convenience in managing its cases and judicial efficiency; (4) non-parties' interests; and (5)

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the public's interest in the pending civil and criminal proceedings. Id. at 324-25.

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On balance, the Court finds that a brief stay of the instant civil proceeding is warranted. The

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Government does not oppose a stay and does not assert that it will be prejudiced by a stay. While

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Wells Fargo opposes the stay, it does not argue that a stay would prejudice it in any way. In addition,

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Waller’s Fifth Amendment right against self incrimination may be implicated if he is required to

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respond to the Government’s written discovery requests at this time. However, because there has not

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been a formal indictment brought against Waller, the Court will only impose a six month stay or until

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criminal charges have been brought, whichever occurs first. If charges are not filed against Waller,

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the stay will automatically dissolve unless Waller files an additional motion to stay or the parties

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stipulate to the same. Defendant Waller is cautioned that if, at the end of the six month stay no

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criminal charges have been brought and he decides to file an additional motion, he must set forth

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compelling reasons for a stay consistent with the factors discussed above. Accordingly,
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IT IS HEREBY ORDERED that Defendant William Waller’s Motion to Stay (ECF No. 20)
is granted as follows:
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This case shall be stayed for six (6) months from the date of this Order or until

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criminal charges have been brought against Defendant Waller, whichever occurs first.

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If criminal charges are not brought within that time, the stay will automatically

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dissolve unless one or all of the parties brings a motion or stipulation to further stay

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the proceedings.

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2.

No later than forty-five (45) days after the stay is dissolved, the parties shall file a new
case management order resetting the following discovery deadlines:

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a.

Expert Disclosures;

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b.

Rebuttal Expert Disclosures; and

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c.

Discovery Cut-Off.

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DATED this 6th day of December, 2016.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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