ALEYNIKOV v. MCSWAIN et al

Filing 52

OPINION fld. Signed by Judge Kevin McNulty on 9/22/16. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SERGEY ALEYNIKOV,

Civ. No. 15-1170 (KM)

Plaintiff,
MEMORANDUM OPINION

V.

MICHAEL McSWAIN, et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
This matter comes before the court on the motion of defendant Michael
McSwain to amend my decision of June 15, 2016 (ECF nos. 38, 39), pursuant
to Rule 59(e), Fed. R. Civ. P. I will not tarry over the issue of whether this is
properly considered a motion to amend judgment under that rule; if that is not
the appropriate vehicle, then a motion for reconsideration under Local Rule
7.1(e) would be, and I would excuse its untimeliness. The thrust of McSwain’s
argument is that the court should have dismissed, not stayed, Counts 5—10. By
failing to do so, he argues, the Court, having granted qualified immunity as to
Counts 1—4, effectively denied his right to qualified immunity as to Counts 5—
10.
McSwain is correct that I denied his motion to dismiss without reaching
the merits of Counts 5—10. It is also true that qualified immunity should be
addressed early. That is not, however, a rigid rule that robs the court of
discretion to enter a stay in an appropriate case. Rather, it is a more flexible
command that defendants entitled to qualified immunity should not be
subjected to the burdens of litigation:

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Because qualified immunity bestows immunity from suit, the
Supreme Court “repeatedly ha[sj stressed the importance of
resolving immunity questions at the earliest possible stage in
litigation.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116
L.Ed.2d 589 (1991). The Supreme Court has admonished that
“[ujntil this threshold immunity question is resolved, discovery
should not be allowed.” [quoting Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S. Ct. 2727 (1982)].
Thomas v. Indep. Twp., 463 F.3d 285, 291 (3d Cir. 2006). Mitchell v. Forsyth,
472 U.S. 511, 526, 105 S. Ct. 2806 (1985).
It was practicable to address qualified immunity as to Counts 1—4, and I
did so. It was not practicable to address qualified immunity as to Counts 5—10,
and I therefore stayed them. In doing so, I honored the principle that the case
should not move forward to discovery or the merits unless and until qualified
immunity is denied.
I stayed Counts 5—10 in response to defendants’ urging that, although
Aleynikov had been acquitted of the state criminal charges, that acquittal
should not be treated as “final” for purposes of malicious prosecution because
the State’s appeal was pending. That proposition is by no means obvious. For
res judicata purposes, for example, New York treats a trial court judgment as
final, despite the pendency of an appeal. See, e.g., CVR Energy, Inc. v. Wachtell,
No. 14-CV-6566(RJS), 2016 WL 1271686, at *4 (S.D.N.Y. Mar. 29, 2016);
Antonious v. Muhammad, 873 F. Supp. 817, 824 (S.D.N.Y. 1995), affd, 8 F.
App’x 78 (2d Cir. 2001). As things stand today, Aleynikov has prevailed and
has arguably fulfilled the finality prerequisite for a malicious prosecution
action.
As I explained in my earlier opinion, however, I stayed Counts 5—10 for
practical reasons. To go forward would create precisely the risk of inconsistent
determinations that is the rationale for the favorable-termination requirement.
Cf Heck v. Humphrey, 512 U.S. 477, 484, 114 S. Ct. 2364 (1994). As I
discussed in my earlier opinion, under one appellate scenario, Aleyriikov may
be foreclosed from asserting a claim at all. Under another, he may be entitled
to go forward. Also possible are mixed outcomes that will require a ruling as to
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whether there was a favorable termination. (See ECF no. 38 at 27.) The
situation is in flux, and the eventual resolution may have a fundamental effect
on the viability of any claim. Any rulings in the interim would be to some
degree provisional and hypothetical. Thus a stay seemed the better course.
In Linnen v. Armainis, 991 F.2d 1.102 (3d Cir. 1993), for example, a
criminal defendant brought a

§ 1983 civil rights action based on the State’s

allegedly unconstitutional search and seizure of his property as evidence in his
criminal prosecution. In post-conviction relief proceedings in the criminal case,
he challenged the search (indirectly, via a claim that counsel was ineffective for
failing to have the evidence suppressed). The state court had denied the PCR
petition, but an appeal was pending. The Third Circuit reversed the district
court’s entry of summary judgment for the police in the 1983 action. It
§
directed the district court to stay the § 1983 action pending the outcome of the
appeal. Id. at 1107 (noting a “preference for holding federal civil rights claims in
abeyance until state appellate proceedings that may affect the outcome of the
federal action are decided”). See also Herrera v. City of New Brunswick, Civ. No.
04-3002, 2008 WL 305275, at *9 (D.N.J. Feb. 1, 2008)(staying 1983
§
malicious prosecution claim pending the outcome of defendant’s appeal of her
conviction).
Kossler v. Cristani, 564 F.3d 181, 187 (3d Cir. 2009), discussed in my
earlier opinion, is not to the contrary. Kossler does not address the issue of
whether dismissal, rather than a stay, is the proper course when the viability
of
a federal claim may depend on the outcome of a pending state appeal.
I will, however, clarify in one respect. McSwain is concerned that he may
have lost his opportunity to assert his qualified immunity defense and his
substantive legal objections to Counts 5—10 as pled. That was not my intent;
the motion to dismiss was denied in the sense of “not granted,” but I did not
intend to prejudice renewal of the motion if and when the stay is lifted. I do
not
foreclose McSwain’s arguments; I merely await the outcome of the State
criminal appeal.

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For what it is worth, Aleynikov appears to agree. To remove doubt,
however, my prior order will be amended to clarify that the motion to dismis
s
Counts 5—10 is not denied outright, but administratively terminated,
without
prejudice to renewal in light of the outcome of the State criminal appeal
and! or
the lifting of the stay. To be clear, this is not a dismissal on the merits
or a
denial of qualified immunity. Those issues are simply postponed while
the stay
is in effect. During the pendency of the stay, as contemplated by Thoma
s,
supra, and Mitchell, supra, defendant will not be put to the burden of
litigating
these claims.

CONCLUSION
For the foregoing reasons, the Order (ECF no. 39) is amended to clarify
that the motion to dismiss (ECF no. 13), insofar as it addresses Counts
5-10,

is

administratively terminated, without prejudice to renewal as approp
riate after
the lifting of the stay. An amended order is filed herewith.
Dated: September 22, 2016
Newark, New Jersey

/L/(
(
KEVIN MCNULTY
United States District Judge

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