Franks et al v. The City Of New York et al
OPINION AND ORDER re: 10 LETTER MOTION to Stay: After examining and balancing the parties' interests, it appears that the interests weigh in favor of the Plaintiffs. For the reasons set forth above, Defendant's motion to stay is DENIED without prejudice. The Clerk of Court is respectfully directed to terminate the motion, Doc. 10. (Signed by Judge Edgardo Ramos on 11/21/2017) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NKENIJIKA FRANKS and THEODORE TREASURE,
- against -
OPINION AND ORDER
THE CITY OF NEW YORK, POLICE OFFICER
EDWIN VEGA badge number 027670, POLICE
OFFICER JOHN DOE and POLICE OFFICER JOE
16 CV. 9938 (ER)
Nkenijika Franks (“Franks”) and Theodor Treasure (“Treasure”) (together, “Plaintiffs”)
bring this action pursuant to 42 U.S.C. §§ 1983 and 1988, alleging claims for unreasonable
search and seizure, false arrest and imprisonment, assault and battery, and malicious prosecution.
Doc. 9 (“Am. Compl.”) at 1. Before the Court is the City of New York’s 1 (“Defendant”) motion
to stay the action until the criminal prosecution of third-party Dashawn Johnson (“Johnson”) and
a Civilian Complaint Review Board (“CCRB”) investigation of one of the defendants conclude.
Doc. 10 (“Mot. to Stay”) at 1. For the reasons stated below, the motion is DENIED without
I. Background 2
Plaintiffs filed this § 1983 action based on three incidents with the police: an arrest on
October 20, 2016, a stop on December 24, 2016, and a stop on March 7th, 2017. Am. Compl. at
This motion to stay was filed on behalf of The City of New York only.
The following facts are drawn from the amended complaint and the parties’ submissions.
On October 20th, at approximately 9:00 p.m., Plaintiffs were in Treasure’s car which was
stopped at the side of the road near 225th St. and Schefflien Avenue in the Bronx, New York. Id.
at 4. Police officers approached in an unmarked car, and Treasure drove the car around the
corner where Plaintiffs were subsequently stopped, searched, and arrested for criminal
possession of a weapon in the second degree, in violation of N.Y. State Penal Law Section
265.03. Id. The police found no weapons in Plaintiffs’ possession. Id. Plaintiffs allege that
there was no probable cause for this stop, that Treasure’s car was subjected to a warrantless
search, and that they were subjected to excessive force near the car, at the 47th precinct, and at
central booking. Id.
Defendant maintains that another individual, Johnson, who was separately apprehended
for possession of two firearms, fled from Treasure’s car when the officers approached. Mot. to
Stay at 1. The Plaintiffs aver that Johnson was not in the car at the time of their arrest. Am.
Compl. at 5. Johnson was indicted for criminal possession of the two firearms and the charges
against him are currently pending. Mot. to Stay at 1.
The Bronx District Attorney’s Office declined to prosecute the Plaintiffs due to
insufficient evidence to support the weapons charge as to them. Doc. 12 (“Pls.’ Opp’n”) at 6.
As to the remaining incidents alleged in the Complaint, it is undisputed that Johnson was not
with the Plaintiffs on December 24th, 2016 or March 7th, 2017. Am. Compl. at 5. Plaintiffs
allege that on both of these dates, Officer Vega (“Vega”) stopped Treasure’s car and harassed
Currently, there is an ongoing CCRB investigation into Plaintiffs’ claims that Vega
harassed them on December 24, 2016 in violation of N.Y.P.D. rules and regulations. Mot. to
Stay at 3.
The question before the Court is whether to stay the instant case while the non-parallel
criminal action against Johnson proceeds. It is well settled that federal district courts have
discretion to stay civil matters pending a parallel criminal case, United States v. Kordel, 397 U.S.
1, 12 n.27 (1970), and courts in this circuit have held that the civil and criminal cases do not need
to be completely parallel to warrant a stay. See United States v. Banco Cafetero Int’l, 107 F.R.D.
361, 365 (S.D.N.Y. 1985) (noting that the identity of the parties and issues addressed in the civil
and criminal cases need not be identical) aff’d, 797 F.2d 1154, 1163 (2d Cir. 1986).
Nevertheless, a stay of a civil case is an extraordinary remedy, Jackson v. Johnson, 985 F. Supp.
422, 424 (S.D.N.Y. 1997), and the strongest case for a stay is when the party under criminal
indictment is also the party defending a civil suit arising from the same set of facts. Volmar
Distribs., Inc. v. New York Post Co., 152 F.R.D. 36, 39 (S.D.N.Y. 1993).
The party moving for a stay “bears the burden of establishing its need.” Louis Vuitton
Malletier S.A v. LY USA Inc., 676 F.3d 83, 97 (2d Cir. 2012) (quoting Clinton v. Jones, 520 U.S.
681, 708 (1997)). If the moving party cannot establish that it will suffer undue prejudice or that
its constitutional rights will be violated, the non-moving party should not be delayed in its efforts
to diligently proceed to sustain its claim. Transatlantic Reinsurance Co. v. Salatore Ditrapani,
Int’l, No. 90 Civ. 3884 (JMC), 1991 WL 12135, at *2 (S.D.N.Y. Jan. 28, 1991) (quoting Paine,
Webber, Jackson & Curtis Inc. v. Malon S. Andrus, Inc., 486 F. Supp. 1118, 1119 (S.D.N.Y.
In determining whether to grant a stay, the court balances the following factors: “1) the
extent to which the issues in the criminal case overlap with those presented in the civil case; 2)
the status of the case, including whether the defendants have been indicted; 3) the private
interests of the plaintiffs in proceeding expeditiously weighed against the prejudice to 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.” Trs. of the Plumbers & Pipefitters Nat’l Pension Fund v.
Transworld Mech., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995).
A. Overlap of Issues
As stated above, Plaintiffs allege a number of federal and state civil causes of action.
Neither the Plaintiffs nor the Defendant is a party to the criminal action against Johnson for
possession of firearms. While courts have held that the civil and criminal cases do not need to be
completely parallel in order to justify a stay, there still has to be a “strong connection” between
the cases. Banco Cafetero Int’l., 107 F.R.D., at 365 (S.D.N.Y. 1985).
Defendant argues that the “strong connection” arises from the fact that Johnson was
arrested after fleeing from Treasure’s car. Mot. to Stay at 1. Specifically, Defendant claims that
it will “likely depose” Johnson relating to statements he made to the police “either admitting or
denying” possession of the firearms which formed the basis for Plaintiffs’ arrests. Mot. to Stay
at 2. Defendant has not made any specific arguments relating to these statements, nor is there
any allegation that Johnson even made post-arrest statements. Even assuming arguendo that
Johnson claims joint possession of the firearms, according to N.Y. Penal Law, when a weapon is
found upon an individual – as happened here – it overrides the presumption that all persons
occupying an automobile share its possession if the weapon is found in the car. N.Y. Penal Law
Defendant relies on three cases in support of its contention that a stay should be granted
despite the fact that the underlying prosecution is against a non-party. Mot. to Stay at 2. One of
these cases, Gustave v. City of New York, does not support Defendant’s position since in Gustave,
one of the plaintiffs in the civil suit was also the defendant in the criminal prosecution arising
from the same set of facts. No. 10 Civ. 3314 (KAM), 2010 WL 3943428, at *3 (E.D.N.Y. Oct. 6,
2010) (noting that denying a stay for one plaintiff and not the other would not make sense since
their factual and legal claims were intertwined).
The other two cases are unpersuasive since, in each, there was a stronger connection
between the plaintiff’s civil case and the non-party’s criminal prosecution than exists in the
present case. In Swinson v. City of New York, Randy Swinson (“Swinson”) alleged that he was
assaulted and stabbed in the shower area of MDC because of correctional officers’ misconduct.
No. 12 Civ. 6080 (VB), 2015 WL 873390, at *1 (S.D.N.Y. Aug. 6, 2010). The City’s motion to
stay was granted even though the related criminal prosecution was against non-party Chandler
Burch (“Burch”). No. 12 Civ. 6080 (VB) (S.D.N.Y. Aug. 6, 2010) (ECF Order Feb. 11, 2013).
Unlike in the instant case where the connection between the Plaintiffs and Johnson is disputed, it
was undisputed that Swinson and Burch were involved in a fight and therefore, that Burch’s
actions were relevant to Swinson’s civil claim. In Aytch v. Redmond, the court granted a stay for
the ongoing criminal prosecution of a non-party who had been arrested for firearm possession
while driving the plaintiff’s rental car. No. 12 Civ. 3416 (RRM) (E.D.N.Y Jul. 10, 2012) (ECF
Order May 13, 2013). Although both Aytch and the instant case involve a car and gun
possession, in Aytch there was a clearer connection between the cases since the non-party was
driving the plaintiff’s car and the gun was found in the glove compartment, a shared space, rather
than on the non-party in a separate location.
As to the interactions with the police on December 24, 2016 and March 7, 2017, it is
undisputed that Johnson was not present and therefore that his criminal proceeding is in no way
related to these incidents. See McLellan v. City of New York, No. 15 Civ. 6758 (TPG), 2016 WL
107489, at *2 (S.D.N.Y. Jan. 8, 2016) (reasoning that there was not an overlap of issues since the
criminal defendant, who was not a party in the civil case, was only relevant to one of the arrests
on which the plaintiff’s § 1983 claim was based).
Given that Defendant’s only argument for an overlap of issues is Johnson’s possible
deposition regarding possession of the firearms, the Court finds that Defendant has not met its
burden of demonstrating a strong connection between the cases. This factor tips in favor of
denying the stay.
B. Status of the Criminal Case
As mentioned above, the strongest case for a stay is when the same party who is under
criminal indictment is defending a civil case. Volmar, 152 F.R.D. at 39. Plaintiffs were arrested
on October 20, 2016. However, the charges against them were dismissed and they are not parties
to the criminal action that forms the basis for the motion to stay.
Johnson was indicted on October 26, 2016 and is set to appear in court on December 5,
2017. People v. Johnson, No. 03336-2016 (Bronx Sup. Ct. filed Oct. 21, 2016). Defendant
suggests that the fact that Johnson was indicted and the criminal case is proceeding is a reason to
grant the stay. While an indictment is a highly persuasive reason to grant a stay when the cases
are parallel, see Volmar, 152 F.R.D. at 39, when the cases are not parallel, the status of the
criminal case is relevant in determining whether the cases have enough overlap to warrant a stay.
See Citibank, N.A. v. Super Sayin’ Pub., LLC, 86 F. Supp. 3d 244, 247-48 (S.D.N.Y. 2015)
(citing Trs. of the Plumbers & Pipefitters Nat’l Pension Fund, 886 F. Supp. at 1139). The Court
recognizes Defendant’s concern that Johnson will likely invoke his 5th amendment right against
self-incrimination if deposed pending the conclusion of the criminal prosecution, and while the
City may be prejudiced by that invocation, that is not reason enough to stay all discovery in a
case that raises numerous additional issues, including those arising out of the December 2016
and March 2017 stops. Given these additional concerns, the status of the criminal case also tips
in favor of denying the stay. However, the denial will be without prejudice to review after
completion of all other discovery.
C. Weighing the Private and Public Interests
Plaintiffs have a strong interest in efficiently litigating their case and Defendant has not
provided sufficient evidence that it will be unduly prejudiced, or that its constitutional rights will
be violated without a stay. McLellan, 2016 WL 107489, at *2 (“[p]revailing law in this district
holds that a plaintiff should not be delayed in diligently proceeding with his claim unless the
party moving for a stay would otherwise suffer undue prejudice or its constitutional rights would
be violated without a stay.”) Defendant’s main argument in favor of a stay is that it will “likely
depose” Mr. Johnson and, without a stay, his Fifth Amendment right will render his deposition
and some physical evidence useless. Mot. to Stay at 2. This argument is unpersuasive since it
relies on a speculative deposition that may potentially impact the present case. See McLellan,
2016 WL 107489, at *2 (reasoning that a “speculative disadvantage” did not prejudice the
defendant). If the Court granted the motion to stay it would surely delay resolution of this case.
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