COLOMBO v. THE BOARD OF EDUCATION FOR THE CLIFTON SCHOOL DISTRICT et al
Filing
33
OPINION. Signed by Judge Claire C. Cecchi on 11/4/11. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAWN COLOMBO
Civil Action No. 11-00785 (CCC)
Plaintiff,
v.
OPINION
THE BOARD OF EDUCATION FOR
THE CLIFTON SCHOOL DISTRICT,
MEMBERS OF THE BOARD OF
EDUCATION FOR THE CLIFTON
SCHOOL DISTRICT,
in their official capacity,
CLIFTON HIGH SCHOOL, & JIMMIE
WARREN in his official capacity,
Defendants.
CECCHI, District Judge.
I.
INTRODUCTION
This matter has come before the Court on motion by Defendant Jimmie Warren
(“Warren”), who moves to stay the proceedings pending the resolution of the criminal charges
against him. For the reasons stated herein, Defendant Warren’s motion to stay this proceeding
1
is GRANTED.
II.
BACKGROUND
Plaintiff Dawn Colombo (“Colombo”) brings this suit against Defendants Board of
Education for the Clifton School District and the members of the Board of Education in their
official capacity (jointly, “Board Defendants”), Clifton High School, and Jimmie Warren, in his
Warren and the Board Defendants have also moved to dismiss for failure to state a claim.
1
official capacity, for alleged violations of the First and Fourteenth Amendments to the United
States Constitution, 42 U.S.C.
Jersey Civil Rights Act.
§ 1983, New Jersey Law Against Discrimination, and the New
(Compi. ¶ 1).
Colombo is the mother of two children who were
students at Clifton High School at the time these events took place.
(Compl.
¶J 13, 44).
Plaintiff’s daughter is identified as “N.C.” and her son, who was a minor at the time of the events
at issue, is identified as “B.C.” Defendant Warren was the principal of Clifton High School until
he retired on April 1, 2011. (Compl.
¶ 9, Def. Br. 3).
According to Colombo, Warren engaged in a “continuing pattern of extremely
inappropriate, unwelcome, harassing, and sexually suggestive communications with Plaintiff.”
(Compi.
¶ 17). Colombo claims that Warren made sexually suggestive comments to her, asked
her to perform various sex acts, exposed his penis to her, touched her breasts, and arranged a
meeting in a hotel room with her. (Compi.
¶J 17-40). She contends that Warren offered to help
her son, who was frequently in trouble at school, and to promote him to the next grade level, if
she would perform sexual acts with Warren. (Compl.
¶J 8, 10). She further alleges that Warren
refused to lift a suspension imposed on B.C. because she rejected his sexual advances. (Compi.
¶{
42). Colombo claims that her daughter has been harassed and ridiculed by other students as a
result of Warren’s actions towards Colombo. (Compl.
¶ 44). Colombo claims that the Board
Defendants had notice of Warren’s actions, but did not rectify the situation, thereby ratifying
Warren’s conduct. (Compi.
¶ 25).
According to the Complaint, Warren has been charged with multiple criminal offenses
included multiple counts of lewdness, sexual contact and aggravated sexual contact, criminal
coercion, and luring and/or enticing. (Compi.
¶ 45). The criminal matter is being investigated
by the Passaic County Prosecutor’s Office, the Clifton Police Department, and potentially other
2
agencies. (Id.) Plaintiff brings a wide variety of claims related to Warren’s conduct, including,
violations of the following rights: equal protection, freedom of association, right to petition,
“thorough and efficient” education, and substantive due process, pursuant to 42 U.S.C.
1983, 1985.
(Compi. ¶j 46-65, 77-86).
Education Amendments of 1972, 20 U.S.C.
Plaintiff also brings claims under Title IX of the
§ 1681, the New Jersey Constitution, and the New
Jersey Law Against Discrimination, N.J.S.A. 10:5-1. (Compl.
III.
§ 1981,
¶J 66-76, 87-104).
DISCUSSION
It is well-settled that “the power to stay proceedings is incidental to the power inherent in
every court to control the disposition of the causes on its docket with economy of time and effort
for itself, for counsel, and for litigants. How this can best be done calls for the exercise of
judgment, which must weigh competing interests and maintain an even balance.” Landis v.
North American Co., 299 U.S. 248, 254-55 (1936) (citing Kansas City Southern Ry. Co. v. US.,
282 U.S. 760, 763 (1931)).
“In the exercise of its sound discretion, a court may hold one
lawsuit in abeyance to abide the outcome of another which may substantially affect it or be
dispositive of the issues.” Bechtel Corp. v. Laborers’International Union, 544 F.2d 1207, 1215
(3d. Cir. 1976). However, “it is well settled that before a stay may be issued, the [movant] must
demonstrate ‘a clear case of hardship or inequity,’ if there is ‘even a fair possibility’ that the stay
would work damage on another party.” Gold v. Johns-Mansville Sales Corp., 723 F.2d 1068,
1075-76 (3d Cir. 1983) (citing Landis, 299 U.S. at 255)).
“A stay of a civil case where there are pending criminal proceedings is not
constitutionally required, however, it may be warranted in certain circumstances.” Walsh Sec.,
inc. v. Cristo Prop. z’vfgmt., Ltd., 7 F. Supp. 2d 523, 526 (D.N.J. 1998). In deciding whether to
stay a civil case pending the resolution of a criminal case, courts consider many factors,
3
including “1) the extent to which the issues in the criminal and civil cases overlap; 2) the status
of the case, including whether the defendants have been indicted; 3) the plaintiffs interest in
proceeding expeditiously weighed against the prejudice to plaintiff caused by a delay; 4) the
private interests of and burden on defendants; 5) the interests of the court; and 6) the public
interest.” Walsh, 7 F. Supp. 2d at 527. “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.” Id.
A. Do the Walsh Factors Apply?
Plaintiff argues that the Walsh factors do not apply in the instant case because Plaintiff
has sued Warren in his official capacity, as principal of Clifton High School, while the criminal
indictment is against him in his individual capacity. (P1. Br. 6). As such, Plaintiff contends that
her claims against Warren should be treated as though they were brought against a government
entity. (P1. Br. 6); see McGreevy v. Stroup, 413 F.3d 359, 369 (3d Cir. 2005) (finding that the
same analysis used to evaluate claims against a school district were to be used in evaluating
claims against the school superintendent and the school principal). In support of her argument,
Plaintiff cites to Forrest v. Corzine, 757 F. Supp. 2d 473 (D.N.J. 2010), in which an arrestee
brought action against the City of Camden and Camden police officers for violations of his civil
rights. Forrest, 757 F. Supp. 2d at 474-75. The City of Camden moved to stay the action
because the police officers in question refused to participate in discovery on the matter while
they were the subjects of a parallel criminal investigation. Id. at 474. Judge Schneider denied
the motion and found that the Walsh factors did not apply because the City of Camden was not
itself the subject of a related criminal investigation. Id. at 479.
Amendment rights were not at issue. Id. at 477.
4
Moreover, Camden’s Fifth
The case here differs from Forrest because unlike the City of Camden, Jimmie Warren is
both a defendant in this law suit as well as the subject of a criminal investigation and indictment.
(See Def. Reply Br. 9). As such, his Fifth Amendment right against self-incrimination is at issue.
Therefore, the Court will apply the Walsh factors in determining whether to grant a stay of the
civil proceedings.
B. Application of the Walsh Factors
1. Similarity of the Issues
The first Walsh factor requires the court to examine whether the criminal and civil
proceedings overlap. Walsh, 7 F. Supp. 2d at 527. “The similarity of issues has been termed
‘the most important issue at the threshold’ in determining whether or not to grant a stay.” Id.
(quoting Milton Pollack, Parallel Civil and C’rin2inal Proceedings, 129 F.R.D. 201, 203 (1989)).
Here, the Court finds that the evidence presented demonstrates significant overlap between the
civil and criminal cases. Plaintiff claims that Warren engaged in “inappropriate sexual conduct”
and that he offered to help her son if she would perform sexual acts. (Compl.
¶J 8, 10, 17-40,
42). Likewise, the criminal indictment against Warren alleges that he offered “special treatment
of students B.C. and N.C. in return for engaging in inappropriate sexual conduct with Dawn
Colombo, the parent of said students.” (Kantrowitz Certification, Ex. A).
Plaintiff again argues that her claim is based on the alleged inappropriate sexual conduct
of Jimmie Warren in his official capacity, while the criminal case is against him in his individual
capacity and therefore, the cases and issues do not overlap. (P1. Br. 8). However, as discussed
previously, Jimmie Warren is the subject of both the civil case and the criminal investigation.
See discussion supra Part lI1.A. Whether in his official capacity or his individual capacity, the
facts, evidence, and issues significantly overlap. Therefore, the Court finds that the first, and
5
most important factor, weighs in favor of a stay.
2. Status of the Criminal Case
As to the second Walsh factor, “the strongest case for a stay of discovery in the civil case
occurs during a criminal prosecution after an indictment is returned
self-incrimination.”
Walsh, 7 F. Supp. 2d at 527.
...
[due to] the potential for
Additionally, the right to a speedy trial
reduces the potential for a long delay. State Farm Mut. Auto. Ins. Co. v. Beckham-Easlev, No.
01-5530, 2002 WL 31111766, at *2 (E.D. Pa. Sept. 18, 2002).
Here, Warren has been indicted and he intends to invoke his Fifth Amendment privilege
against self-incrimination. (Def. Br. 12). Plaintiff contends that Warren has already waived his
Fifth Amendment rights by providing a statement to Detectives for the Clifton Police
Department on November 23, 2010. (P1. Br. 8-9). In reply, Defendant argues that Warren did
not waive his Fifth Amendment rights when he gave his statement to the police because that
statement was not testimony. (Def. Reply Br. 11).
In Mitchell v. US., 526 U.S. 314, 321(1999), the Court determined that a defendant who
pled guilty to a crime is permitted to assert his Fifth Amendment right later at sentencing. The
Court found that while a witness may not testify about facts and then later refuse to be crossexamined about those facts, the defendant’s prior statement did not waive his Fifth Amendment
rights at sentencing. Id. at 324.
Furthermore, a witness may refuse to answer a question asked in court even if the witness
previously answered that question in out-of-court interview or discussion with an investigator.
Ginvard v. United States, 816 A.2d 21, 33 (D.C. App. 2003); see also United States v. Rivas
Macias, 537 F.3d 1271, 1280 (10th Cir. 2008) (finding that witness did not waive right to invoke
Fifth Amendment at trial after giving pretrial unsworn statement to authorities); United States v.
6
Perkins. 138 F.3d 421, 425 (D.C. Cir. 1998) (finding that a witness did not waive Fifth
Amendment privilege by making disclosure in recantation letter).
However, in-court testimony is not the only way in which the privilege’s protection might
be lost. If a witness makes an admission in an affidavit submitted in a proceeding, she may lose
her ability to invoke the privilege when asked about the substance of that admission later in the
proceeding.
See, e.g., In re Edmond, 934 F.2d 1304, 1309 (4th Cir. 1991) (“An affidavit
operates like other testimonial statements to raise the possibility that the witness has waived the
Fifth Amendment privilege.”); OSRecoverv, Inc. v. One Groupe intern., Inc., 262 F.Supp. 2d
302, 309 (S.D.N.Y. 2003) (witness lost Fifth Amendment protection by making statements in
affidavit during deposition); Commonwealth v. Slonka, 680 N.E.2d 103, 109—10 (Mass. App. Ct.
1997) (finding that witness waived Fifth Amendment privilege, if his sworn statement made to
defense counsel was given voluntarily).
Here, Warren has not yet provided testimony, nor has he provided a sworn statement or
affidavit; he only provided a statement to the Clifton Police Department. (Sciarra Certification,
Ex. E). Therefore, his Fifth Amendment rights remain at issue. Moreover, he has expressed his
intention to invoke the Fifth Amendment during the discovery phase of this case and during trial.
(Def Br. 12). Therefore, the Court finds that because an indictment has been returned in the
parallel criminal proceeding and because Warren’s Fifth Amendment rights are it issue, this
factor weighs in favor of granting the stay.
3.
Prejudice to Plaintiff
Under the third Walsh factor, the Court must weigh the Plaintiffs interest in proceeding
expeditiously against the prejudice a delay will cause to Plaintiff. Tucker v. New York Police
Dept.. No. 08-cv-2156, 2010 WL 703189. at *7 (D.N.J. Feb. 23, 2010). The mere fact that
7
additional time will pass does not establish prejudice to the Plaintiff. Id. To establish prejudice,
the plaintiff must show a unique injury such as fading memories, asset dissipation, or an attempt
to gain an unfair advantage from the stay. In re Herley Indies. Sees. Litig., No. 06-2596, 2007
U.S. Dist. LEXIS 27201, at
*
7 (E.D. Pa. Apr. 11, 2007); see State Farm, 2002 WL 31111766, at
*2; Walsh Sec., 7 F. Supp. 2d at 528.
Plaintiff contends that unless the case proceeds expeditiously, she and her family will
suffer prejudice.
(P1. Br. 7).
In particular, she claims that her daughter, N.C. has suffered
ridicule and harassment at school due to the events at issue and unless her claims are addressed
quickly and her daughter is moved to another school, this harassment will continue. (P1. Br. 78).
In contrast, Warren argues that “all parties will benefit by waiting for the criminal
proceeding to be completed.” (Def. Br. 12). He contends that once the criminal proceeding is
completed, they will then have access to the trial transcript and evidence. (Def. Br. 12). He also
argues that because Plaintiff’s daughter is not a party to this case, this Court cannot address the
issue of N.C.’s educational placement. (Def. Reply Br. 10-11). Furthermore, the Defendant
argues that N.C.’s alternative educational placement should be addressed by the Commissioner
of Education. (Def. Br. 11).
Defendant relies on NJS.A. l8A:6-9, which vests the Commissioner of Education with
‘jurisdiction to hear and determine
.
.
all controversies and disputes arising under the school
laws.” See also Theodore v. Dover Bd. of Ed., 183 NJ. Super. 407, 412-13 (App. Div. 1982)
(finding that disputes related to school law are not decided by trial courts); State In re G.S., 330
N.J. Super. 383, 388 (Ch. Div. 2000) (noting that an appeal of a school board’s decision to expel
a student would be within the jurisdictional domain of the Commissioner of Education).
8
the
Based on the foregoing, the Court finds that it does not have jurisdiction to decide
Plaintiff has
educational placement for Plaintiffs daughter. Furthermore, the Court finds that
time if a stay is
not established that she will suffer any additional prejudice due to the passage of
granted.
n for
While her daughter’s educational placement is a valid and significant concer
that this factor
Plaintiff, it is not an issue that this Court can address. Therefore, the Court finds
weighs in favor of granting a stay.
4. Burden on Defendant
when
With respect to the fourth Walsh factor, Defendant experiences a significant burden
himself in the civil
he must choose between waiving his Fifth Amendment rights by defending
Farm, 2002 WL
lawsuit and asserting the privilege and possibly losing the civil case. State
the choice
3111176, at *3 However, it is not unconstitutional to force a defendant to make
v. Palmigiano,
between waiving his Fifth Amendment rights and losing the civil case. Baxter
425 U.S. 308, 318-19 (1976).
his
Here, Warren argues that if the civil case proceeds, he will either be forced to waive
invoke the privilege
Fifth Amendment rights in order to defend himself in this matter or he will
expressed his
and suffer the adverse inferences that may arise. (Def. Br. 12). He has already
again argues that
intention to invoke his Fifth Amendment privilege. (Def. Br. 12). Plaintiff
Warren has already waived his Fifth Amendment rights.
(P1. Br. 9).
However, as already
waived those rights.
discussed, Warren’s Fifth Amendment rights are at issue and he has not yet
having to defend
ed
See discussion supra Part IILB.2. Therefore, Defendant will be burden by
of granting the
these parallel civil and criminal proceedings. Thus, this factor weighs in favor
stay.
9
5. The Interest of the Court
The Court has an interest in the efficient management of its docket.
A stay of a civil
case where there are pending criminal proceedings promotes judicial economy “because there is
a reasonable expectation that the criminal investigation could clarify and define some issues in
the civil matter.” United States SEC v. Ott, 2006 U.S. Dist. LEXIS 86541 (D.N.J. Nov. 29,
2006).
While Plaintiff is entitled to the expeditious resolution of her lawsuit, Defendant’s
assertion of his Fifth Amendment right will result in a numerous privilege issues that will delay
discovery. Furthermore, a stay in the civil matter will further the goal of discovery and promote
efficiency, since many of the legal and factual issues in this case may be resolved in the criminal
*3 (E.D. Pa. Oct. 28, 2009).
proceeding. See Soroush v. A/i, No. 09-3703, 2009 WL 3467897, at
Therefore, this factor also weighs in favor of granting a stay.
6. The Public Interest
The public interest is promoted by allowing a complete, unimpeded criminal
investigation. Maloney v. Gordon, 328 F. Supp. 2d 508, 510 (D. Del. 2004). Furthermore, “the
public’s interest in the integrity of the criminal case is entitled to precedence of the civil litigant.”
Javier FL v, Garcia-Botello, 218 F.R.D. 72, 74 (W.D.N.Y, 2003). Plaintiff argues that the public
has an interest in scrutinizing the officials who are charged with overseeing children. (P1. Br. 910). However, civil litigation is not the only avenue used to protect this interest. In fact, the
detectives on the criminal matter are furthering this interest with their investigation. Thus, the
criminal matter should be able to continue without the interference of the civil matter. The Court
finds that this factor weighs in favor of granting a stay.
10
Plaintiff has asked that a stay should only be granted regarding the case against Warren,
if at all. (P1. Br. 10). However, Plaintiff’s claims relate directly to Warren’s alleged actions.
(See Compl. 17).
Therefore, discovery with regard to the Board Defendants will likely be
impeded, or affected, when Warren invokes his Fifih Amendment privilege. Thus, in the interest
of efficiency and in avoiding piecemeal litigation, the Court finds that the stay is granted with
regard to all of the parties.
IV. CONCLUSION
In sum, Defendant’s motion for a stay pending the outcome of the related criminal
proceedings is GRANTED. Having considered each of the Walsh factors, this Court will stay all
of Plaintiff’s civil claims pending the outcome of the related criminal proceedings. This matter,
and all applications and motions that are pending at the time of this Opinion, may hereby be
reopened upon application of either party within ninety days of the conclusion of the criminal
proceedings. In addition, within sixty (60) days of the date of this decision, the parties shall
update the Court as to the status of the criminal proceedings.
An appropriate Order follows.
CLAIRE C. CECCHI, U.S.D.J.
DATED:
,
2011
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?