ALEYNIKOV v. MCSWAIN et al
Filing
59
MEMORANDUM OPINION AND ORDER Denying 57 Letter/Application to dissolve the stay; The stay of this action currently in effect (see ECF nos. 38, 53, 56) shall remain in effect until further order of the Court. Signed by Judge Kevin McNulty on 05/09/2018. (ek)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SERGEYALEYNIKOV,
Civ. No. 15-1170 (1CM)
Plaintiff,
MEMORANDUM OPINION &
ORDER
V.
MICHAEL McSWMN, et al.,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
Defendant Michael McSwain seeks to dissolve the current stay of this
litigation so that he may further pursue a motion to dismiss. Plaintiff Sergei
Aleynikov asks that the stay remain in place while he pursues further post-trial
motions in connection with his criminal conviction in New York.
On June 15, 2016, I entered an Order (ECF no. 38) and Opinion (ECF no.
39) granting the motion to dismiss Counts 1 through 5 and part of Count 10,
and staying litigation of the remaining counts “pending resolution of the appeal
in state court.”
On September 22, 2016, I filed an Opinion (ECF no. 52) and Order (ECF
no. 53) clarifying that the pending motion to dismiss was administratively
terminated without prejudice to reassertion of all issues therein, including
qualified immunity, after the lifting of the stay.
On January 24, 2017, the New York Appellate Division reversed the trial
judge’s order of dismissal (i.e., restored the conviction). (ECF no. 55-1) Counsel
for Aleynikov expressed an intention to pursue the appeal further. The Hon.
1
Michael A. Hammer, U.S.M.J., continued the stay “until further order of the
Court.” (ECF no. 56)’
The New York Court of Appeals granted leave to appeal from the
Appellate Division’s decision. On May 3, 2018, it affirmed the Appellate
Division’s decision. People ic Aleynikov, No. 47,
—
N.E.3d
—‘
2018 WL
2048707 (May 3, 2018). Its opinion construed a New York criminal statute to
encompass the acts charged and proven at trial.
This matter comes before the Court on the letter application of defendant
Michael McSwain (ECF no. 57) to dissolve the stay. The reason for the stay, he
urges, no longer exists; Aleynikov’s challenge to his conviction has been
rejected by the State’s highest court. That means, says McSwain, that there
must have been probable cause for the prosecution and that Aleynikov cannot
satisfy the “favorable termination” element of a malicious prosecution claim.
Because qualified immunity issues should be decided at the earliest possible
stage of the litigation, he says, the time to litigate his motion to dismiss is now.
In opposition (ECF no. 58), Aleynikov of course acknowledges the Court
of Appeals’ decision. He states, however, that he intends to bring challenges to
his conviction aside from the statutory-interpretation issue decided on appeal.
In particular, he will now move in the trial court to set aside the verdict based
on claims of res judicata and an alleged defect in the jury instructions in light
of the Court of Appeals’ now-definitive statement of the law. Thus, he says, the
stay should remain in place.
I am persuaded that the stay should continue. It is true, as McSwain
says, that qualified immunity issues should be resolved “at the earliest possible
stage in litigation.” Wood z.’. Moss, 134 S. Ct. 2056, 2065 n.4 (2014) (citations
omitted). On that score, however, I reiterate the analysis in my earlier Opinion
(ECF no. 52):
Both sides cite the language of the earlier stay order “pending resolution of the
appeal in state court.” I here note, however, that Judge Hammer’s superseding
continuation of the stay was “until further order of the Court.”
I
2
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:
Because qualified immunity bestows immunity from suit,
the Supreme Court “repeatedly ha[s] stressed the
importance of resolving immunity questions at the earliest
possible stage in litigation.” Hunter a Bryant, 502 U.S. 224,
227, 112 5. Ct. 534, 116 L.Ed.2d 589 (1991). The Supreme
Court has admonished that “[u]nfil this threshold immunity
question is resolved, discovery should not be allowed.”
[quoting Harlow a Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727 (1982)].
Thomas u. Indep. Twp., 463 F.3d 285, 291 (3d Cir. 2006). See also
Mitchell u. Forsyth, 472 U.S. 511, 526, 105 5. 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 before qualified immunity
has been considered.
Although, as McSwain says, considerable time has passed, we are still at
the same “stage in litigation,” and “discovery [has not been] allowed.” See
Thomas, supra, quoting Hunter, supra. The stay has frozen the case at the
motion to dismiss stage. McSwain has not been subjected to the burden of
litigation or even of responding to discovery. And indeed, he has little to
complain of. Although he initially opposed the stay, while it has been pending
his litigation position has only improved.
Technicalities of “finality” aside, my earlier opinions noted the reversals
of fortune in the criminal case. To deny a stay would have created precisely the
risk of inconsistent determinations that is the rationale for the favorabletermination requirement itself. Cf Heck a Humphrey, 512 U.S. 477, 484, 114
S. Ct. 2364 (1994). In short, the situation was in flux, and I wished to avoid a
provisional ruling that would be undercut by later developments. See Lint-ten v.
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Annainis, 991 F.2d 1102, 1107 (3d Cir. 1993) (staying civil case pending
outcome of appeal from denial of PCR based on ineffective assistance of
counsel, 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 Hen-era v. City of New Brunswick, Civ. No. 043002, 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).
The same considerations point in the direction of continuation of the stay
now.2 Neither side has provided a basis for a careful assessment of Aleynikov’s
chances of success on his remaining challenges. (Meynikov at least briefly
describes the legal grounds for his challenges; McSwain merely says his
chances are “infinitesimal.”) In any event, however, caution is called for.
Should I vacate the stay and grant the motion dismiss now, a subsequent
ruling in Aleynikov’s favor would potentially undercut the entire basis for that
ruling. The potential damage to Meynikov, and to the judiciary system’s public
interest in consistent adjudications, is apparent. On the other hand, should I
continue the stay, the burden on McSwain would consist solely of the bare
pendency of this action; he is not called upon to do anything in this litigation,
and his rights are preserved. Should the New York courts enter a ruling
adverse to Aleynikov, as McSwain predicts, then McSwain’s position will only
have been enhanced.
2
I take as a guide the traditional equitable factors: probability of success on the
merits; irreparable harm if the stay is denied; harm to the opposing party; and the
public interest.
4
ORDER
ACCORDINGLY, IT IS this
9th
day of May, 2018
ORDERED that the application to dissolve the stay (ECF no. 57) is
DENIED. The stay of this action currently in effect (see ECF nos. 38, 53, 56)
shall remain in effect until further order of the Court.
/
KEVIN MCNULTY
United States District Judge
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