Knopf et al v. Esposito et al

Filing 328

MEMORANDUM OPINION AND ORDER: re: 317 LETTER MOTION to Stay addressed to Judge Denise L. Cote from Frank Esposito dated January 28, 2021. filed by Frank M. Esposito. Espositos January 28, 2021 application for a stay is denied. So Ordered. (Signed by Judge Denise L. Cote on 2/3/2021) (js)

Case 1:17-cv-05833-DLC Document 328 Filed 02/03/21 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
NORMA KNOPF and MICHAEL KNOPF,
:
:
Plaintiffs,
:
-v:
:
FRANK M. ESPOSITO, DORSEY & WHITNEY,
:
LLP, NATHANIEL H. AKERMAN, EDWARD S.
:
FELDMAN, and MICHAEL HAYDEN SANFORD,
:
:
Defendants.
:
:
-------------------------------------- X

17cv5833(DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
In a letter of January 28, 2021, defendant Frank Esposito
requests that this case be stayed or in the alternative that his
deposition, which is scheduled to be taken shortly, be stayed
pending the outcome of an ongoing criminal investigation by a
local prosecutor’s office.

While no other defendant has

requested a stay, only the plaintiffs have opposed Esposito’s
request.
“[T]he Constitution does not ordinarily require a stay of
civil proceedings pending the outcome of criminal proceedings.
Nevertheless, a court may decide in its discretion to stay civil
proceedings when the interests of justice seem to require such
action.”

Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986)

(citation omitted).

See also Louis Vuitton Malletier S.A. v. LY

USA, Inc., 676 F.3d 83, 98 (2d Cir. 2012).

A stay may be

Case 1:17-cv-05833-DLC Document 328 Filed 02/03/21 Page 2 of 3

entered to address the interests of a defendant who faces the
choice of being prejudiced in the civil litigation if he asserts
his Fifth Amendment rights or prejudiced in the criminal
litigation if those rights are waived.

United States v. Certain

Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn,
N.Y., 55 F.3d 78, 84 n.6 (2d Cir. 1995).

In deciding whether to

enter a stay, courts in the Second Circuit consider numerous
factors, including:
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.
Louis Vuitton, 676 F.3d at 99.
Esposito has not demonstrated that the interests of justice
require a stay, nor has he shown that the relevant factors weigh
in favor of a stay.

Esposito has already provided hours of

testimony in a related case and produced documents on the issues
being explored in this lawsuit.

While the issues in the

criminal matter and this action overlap, the prosecutor has not
requested a stay or joined in this request for a stay, and
Esposito has presented nothing regarding the status of the
criminal investigation to suggest that any prosecutorial
decision is imminent.

While the fact that the plaintiffs appear

2

Case 1:17-cv-05833-DLC Document 328 Filed 02/03/21 Page 3 of 3

to have initiated the criminal investigation weighs in favor of
the stay, that factor does not overcome the balance of the other
interests that favor the completion of this lawsuit.
This lawsuit is part of litigation that has been ongoing
since 2009.

As an individual action, it has been proceeding

since 2017.

It is nearing the end of discovery; the plaintiffs’

motion for summary judgment is due on March 12.

It is in the

interest of the court, the public, and all parties involved to
conclude this action.

Should he decide to invoke his Fifth

Amendment privilege, Esposito may renew his request that no
adverse inference be drawn from that invocation at the time the
plaintiffs or another party request that such an inference be
drawn.
Conclusion
Esposito’s January 28, 2021 application for a stay is
denied.

Dated:

New York, New York
February 3, 2021

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