Parenteau et al v. Century Bank, A Florida Corporation
Filing
211
OPINION AND ORDER motion to stay 205 is DENIED. Plaintiff is GRANTED ten (10) days from the date of this Opinion and Order to file objections to the Report and Recommendation, Doc. No. 200 . Signed by Magistrate Judge Norah McCann King on 8/20/13. (rew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARSHA K. PARENTEAU, et al.,
Plaintiffs,
vs.
Civil Action 2:07-CV-851
Judge Watson
Magistrate Judge King
CENTURY BANK, A FLORIDA
CORPORATION,
Defendant.
OPINION AND ORDER
On May 29, 2013, it was recommended that the Motion for Award of
Damages, Doc. No. 193, filed on behalf of IberiaBank, N.A.,
(“IberiaBank”) be granted in part and denied in part.
Recommendation, Doc. No. 200.
Report and
Plaintiff Thomas E. Parenteau
(“Parenteau”) thereafter filed a motion seeking a 45-day extension of
time to respond to the Report and Recommendation and a stay of the
current case until after the United States Court of Appeals for the
Sixth Circuit issues a decision in his appeal from the judgment in his
criminal case, Case No. 2:08-cr-180(1).
Doc. No. 205.
The Court
granted plaintiff until July 13, 2013 to file objections to the Report
and Recommendation and reserved ruling on plaintiff’s motion to stay
pending briefing.
Order, Doc. No. 206.
This matter is now before the
Court for consideration of Plaintiff’s Motion to Stay, Doc. No. 205.
IberiaBank opposes Parenteau’s motion (“IberiaBank’s Response”), Doc.
No. 208.
Plaintiff has not filed a reply.
For the reasons that
follow, Plaintiff’s Motion to Stay is DENIED.
I.
Background
This Court previously set forth the background of this case:
Plaintiffs Thomas Parenteau and Marsha Parenteau instituted
this action against Century Bank, A Florida Corporation
(“Century Bank”) in August 2007 [on behalf of themselves
and of a Trust], alleging claims of breach of contract,
conversion, and unjust enrichment and seeking relief in the
form of damages, declaratory judgment, and preliminary and
permanent injunctions. Complaint, Doc. No. 2, pp. 1, 7, 9.
. . .
Century Bank thereafter asserted counterclaims and
third party claims against Marsha Parenteau, in her
individual and representative capacity, Thomas Parenteau,
and [Dennis] Sartain for breach of contract, conversion,
unjust enrichment, fraud, and violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. § 1962(c). See Second Amended Counterclaim Against
All Plaintiffs and Third Party Complaint Against New Third
Party Defendants, Doc. No. 89.
IberiaBank is the successor in interest to Century Bank and
was substituted for Century Bank in November 2010. Order,
Doc. No. 124, p. 2.
The parties’ claims arise out of a $12 million mortgage
loan (the “Loan”) made by Century Bank in 2007 to the Trust
and secured by the residence and real property located at
4500 Dublin Rd., Columbus, Ohio 43211, Parcel Nos. 200000358 and 200-003079 (the “Property”).
See Opinion and
Order, Doc. No. 187, pp. 2-7.
The Property was purchased
by plaintiffs Thomas and Marsha Parenteau through the Trust
in 2003 and refinanced with the Loan.
Id. at p. 3.
The
Loan required that, inter alia, plaintiffs deposit $3
million of the Loan proceeds in a certificate of deposit
with Century Bank until the Loan was paid down by $3
million or paid off.
Id. at pp. 6-7.
Plaintiffs’ claims
of breach of contract, conversion, and unjust enrichment
were all premised on the bank’s alleged wrongful conversion
of the certificate of deposit and failure to distribute the
full amount of the Loan proceeds. See Complaint, pp. 7-9.
The counterclaims and third party claims are premised on,
inter alia, Thomas and Marsha Parenteau and Sartain’s
representations
made
in
connection
with
the
Loan
application and the failure to pay the Loan according to
its terms.
Criminal proceedings relating to the Loan application were
brought against Thomas Parenteau, Marsha Parenteau, and
Sartain. Marsha Parenteau pleaded guilty to conspiracy to
commit money laundering, namely, the proceeds of the Loan
application, in violation of 18 U.S.C § 1956(h).
See
2
United States v. Parenteau, No. 12-3015, 2012 WL 5896561,
at *1-3 (6th Cir. Nov. 26, 2012).
In July 2010, a jury
found Thomas Parenteau guilty of conspiracy to commit money
laundering in connection with the Loan application; see
United States v. Thomas Parenteau, Case No. 2:08-cr-180(1)
(S.D. Ohio 2008), Doc. No. 256, at PAGEID 1997-2009; and
Sartain pleaded guilty to the same count of conspiracy to
commit money laundering, see United States v. Dennis
Sartain, 2:08-cr-180(2) (S.D. Ohio 2008).
On January 27, 2011, judgment was entered in favor of
IberiaBank
and
against
Thomas
Parenteau
and
Marsha
Parenteau on Count One (money judgment for default on the
note and mortgage) and Count Two (foreclosure) of the Third
Amended Counterclaim Against all Plaintiffs and Third Party
Complaint Against New Third Party Defendants (“Third
Amended Counterclaim”), Doc. No. 111. Consent Judgment,
Doc. No. 143. The Property was ordered sold at a
foreclosure sale, Consent Judgment, Doc. No. 143, p. 3, and
the Court appointed a Special Master for that purpose.
Order Appointing Special Master, Doc. No. 148.
IberiaBank purchased the Property at an April 19, 2012
public sale for a credit bid of $3,222,222.22.
Amended
Order of Confirmation of Sale Nunc Pro Tunc, Doc. No. 196;
Order of Confirmation of Sale, Doc. No. 182.
The sale was
confirmed and approved by the Court on June 13, 2012.
Amended Order of Confirmation of Sale Nunc Pro Tunc, Doc.
No. 196; Order of Confirmation of Sale, Doc. No. 182.
Marsha Parenteau and IberiaBank settled their claims and,
on July 18, 2012, the Court dismissed “with prejudice all
claims and counterclaims between Marsha Parenteau and
IberiaBank and dismisse[d] Marsha Parenteau from this
lawsuit with prejudice.”
Order, Doc. No. 184.
Marsha
Parenteau resigned as trustee of the Trust on January 14,
2011, and was substituted by Thomas Parenteau as the
trustee for the Trust on May 2, 2013. Order, Doc. No. 199.
IberiaBank moved for summary judgment on plaintiffs’ claims
against it and on its fraud and RICO claims against
plaintiffs and Sartain.
Defendant IberiaBank’s Motion for
Summary Judgment, Doc. No. 183.
On February 5, 2013, the
Court granted IberiaBank summary judgment on all of
plaintiffs’ claims and on its fraud and RICO claims against
plaintiffs and Sartain and referred this matter to the
undersigned for a recommended determination of IberiaBank’s
damages. [Order, Doc. No. 187] pp. 12, 14, 18-19.
Report and Recommendation, Doc. No. 200, pp. 1-4.
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Despite opportunity to do so, Parenteau made no response to
IberiaBank’s motion for award of damages.
On May 29, 2013, the
undersigned issued a Report and Recommendation, Doc. No. 200,
recommending that IberiaBank’s motion for award of damages be granted
in part and denied in part and specifically recommended that
IberiaBank be awarded $ 27,765,679.23 in actual and treble damages
plus $ 33,154.96 in attorneys’ fees and costs, for a total award of $
27,798,834.19. Report and Recommendation, Doc. No. 200.
As noted
supra, there has been no objection to that recommendation.
II.
Standard
A stay of civil proceedings due to a pending criminal
investigation is “̔an extraordinary remedy.’”
United States v.
Ogbazion, No. 3:12-cv-95, 2012 WL 4364306, at *1 (S.D. Ohio Sept. 24,
2012) (quoting Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d
83, 98 (2nd Cir. 2012)).
“However, simultaneous criminal and civil
cases involving the same or closely related facts may give rise to
Fifth Amendment concerns sufficient to warrant a stay of the civil
proceedings.’”
Claborn v. Ohio, No. 2:11-cv-679, 2011 WL 5999040, at
*1 (S.D. Ohio Nov. 30, 2011) (quoting Chao v. Fleming, 498 F.Supp.2d
1034, 1037 (W.D. Mich. 2007)).
District courts may, in the exercise
of their discretion, stay a civil action pending the outcome of a
parallel criminal proceeding.
Baird v. Daniels, No. 1:12-cv-945, 2013
WL 4008750, at *1 (S.D. Ohio Aug. 5, 2013) (citing McCullaugh v.
Krendick, No. 5:07-cv-2341, 2009 WL 2929306 (N.D. Ohio Sept. 9,
2009)); Ogbazion, 2012 WL 4364306 at *1 (citations omitted); Kanaan v.
Falsetti, No. 12-11680, 2012 WL 2829951, at *1 (E.D. Mich. July 10,
4
2012) (citations omitted).
In determining whether to stay a
proceeding, courts are guided by the circumstances, such as:
“(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 [a party has] been
indicted;
(3)
the
private
interests
of
the
[civil
claimants] in proceeding expeditiously weighed against the
prejudice to [them] caused by the delay; (4) the private
interests of and burden on the [party defending against the
claim]; (5) the interests of the courts; and (6) the public
interest.”
Baird, 2013 WL 4008750 at *1 (quoting McCloskey v. White, No. 3:09-cv1273, 2011 WL 780793, at *1 (N.D. Ohio Mar. 1, 2011)).
III. Discussion
Parenteau represents that the requested stay is appropriate for
several reasons: he is preceding pro se, he is incarcerated, he has
not yet received certain transcripts and public records, and the
proceedings in this action are related to the matters raised on appeal
and pending before the Sixth Circuit.
2-3.
Plaintiff’s Motion to Stay, pp.
Parenteau’s arguments are without merit.
Although IberiaBank’s claims are premised on the same
transactions underlying plaintiff’s criminal conviction, the issues in
plaintiff’s criminal case do not overlap with this action at this
time.
Parenteau’s liability on IberiaBank’s fraud and RICO claims has
been established and IberiaBank has been granted summary judgment on
Parenteau’s claims against it. Order, Doc. No. 187.
No evidentiary
issues remain in this action or in Parenteau’s criminal action, and
Parenteau’s liability on IberiaBank’s claims does not depend on the
finality of his criminal conviction.
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Indeed, the only issue remaining
for resolution in this action is the amount of IberiaBank’s damages.
See id.
Parenteau made no response to IberiaBank’s motion for damages and
he has not objected to the recommendation that IberiaBank be awarded
damages. Significantly, Parenteau does not invoke any rights under the
Fifth Amendment. Most important, the United States Court of Appeals
for the Sixth Circuit has now affirmed Parenteau’s criminal
conviction. United States v. Thomas Parenteau, -- Fed.Appx. --, 2013
WL 3214934 (6th Cir. June 27, 2013). Finally, IberiaBank represents,
and Parenteau does not contest, that IberiaBank will be significantly
prejudiced by a stay of the resolution of the single remaining issue
in this action.
See IberiaBank’s Response, p. 3.
Accordingly, the Court concludes that the circumstances in this
case weigh overwhelmingly against issuing a stay of the action.
Plaintiff’s Motion to Stay, Doc. No. 205, is therefore DENIED.
As discussed supra, plaintiff has not filed objections to the
Report and Recommendation, Doc. No. 200, despite being granted until
July 13, 2013 in which to do so.
Plaintiff is nevertheless GRANTED
ten (10) days from the date of this Opinion and Order to file
objections to the Report and Recommendation, Doc. No. 200.
There will
be no further extension of this date.
August 20, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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