Jostens, Inc. v. Hammons, Jr.
Filing
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MEMORANDUMOPINION AND ORDER denying 45 MOTION to Stay Civil Case Pending Resolution of Criminal Case filed by Jerry Dean Hammons, Jr. Signed by District Judge Amos L. Mazzant, III on 2/25/2021. (mem)
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JOSTENS, INC.,
Plaintiff
v.
JERRY DEAN HAMMONS, JR. and
SANDRA LOUISE ARNOLD
HAMMONS,
Defendant
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Civil Action No. 4:20-cv-00225
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant’s Motion to Abate Civil Case Pending Resolution
of Criminal Case (Dkt. #45). Having considered the motion and the relevant pleadings, the Court
finds the Motion should be DENIED.
BACKGROUND
This case is about the theft of gold rings from the jewelry making facility Jostens, Inc. by
Jerry Hammons, Jr. (Dkt. # 45).
On March 18, 2020, Plaintiff filed this civil suit against Defendant (Dkt. #1). On January
6, 2021, Defendant filed a motion to abate this case pending resolution of a to-be-filed criminal
case (Dkt. #45). On January 20, 2021, Plaintiff responded (Dkt. #46).
LEGAL STANDARD
A district court has discretion to stay any case in the interest of justice. United States v.
Kordel, 397 U.S. 1, 12 n. 27 (1970). However, there is no “general federal constitutional, statutory,
or common law rule barring the simultaneous prosecution of separate civil and criminal actions.”
S.E.C. & Exch. Comm’n v. First Fin. Grp. of Texas, Inc., 659 F.2d 660, 666 (5th Cir. 1981). In
fact, simultaneous prosecutions of civil and criminal actions are “generally unobjectionable.”
Standard Sanitary Manufacturing Co. v. United States, 226 U.S. 20, 52 (1912). Though a stay
may be appropriate in some cases to avoid prejudicing the defendant, “in others it may be
preferable for the civil suit to proceed unstayed.” Campbell v. Eastland, 307 F.2d 478, 487 (5th
Cir. 1962).
A stay is only warranted where “special circumstances” exist to prevent a party from
suffering substantial and irreparable prejudice. United States v. Little Al, 712 F.2d 133, 136 (5th
Cir. 1983). Courts consider six factors to determine if “special circumstances” exist: (1) the
overlap between issues in the criminal and civil cases; (2) the status of the criminal case; (3) the
interest of the plaintiff to proceed expeditiously and prejudice of a delay to plaintiff; (4) the interest
of and burden on the defendant; (5) the interests of the courts; and (6) the public interest. Alcala v.
Tex. Webb Cty., 625 F. Supp. 2d 391, 399 (S.D. Tex. 2009) (collecting district court cases within
the Fifth Circuit applying this test). The party seeking a stay bears the burden of justifying the
delay. Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 545 (5th Cir. 1983).
ANALYSIS
Defendant asks the Court to abate the civil case pending resolution of a criminal case on
the matter (Dkt. #45).1 Defendant argues continuing with the civil case would cause substantial
and irreparable prejudice in the criminal case. Plaintiff disagrees and argues that no special
circumstances exist warranting abatement because there is no active criminal case (Dkt. #46).
Weighing the six factors utilized by Courts when determining if “special circumstances”
exist, no active criminal case exists, Plaintiff has a significant interest in resolving the civil case,
There is no active criminal case. Defendant alleges the District Attorney’s Office is waiting for the Plaintiff to
determine the amount Defendant allegedly stole before bringing criminal charges. But, absent an active criminal
case, Defendant effectively requests an indefinite abatement.
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the delay would not burden Defendant, and both the Court and public have an interest in a speedy
trial. The Court therefore finds the motion should be denied.
I.
Overlap
The Court must consider whether the overlap of issues between the civil case and criminal
case supports abatement. Defendant argues the Court should abate the civil case because the civil
case and criminal case have identical issues. Plaintiff asserts there is no overlap warranting
abatement because Defendant has not yet been indicted.
The Court finds there are no overlapping issues because there is no active criminal case.
Prior to an indictment, whether the issues overlap is a “matter of speculation” and courts generally
disfavor abatement. See Alcala v. Texas Webb County, 625 F.Supp.2d 391, 401 (S.D. Tex. 2009)
(citing United States ex rel. Shank v. Lewis Enters., Inc., No. 04-cv-4105-JPG, 2006 WL 1064072,
at *4 (S.D.Ill. Apr. 21, 2006)). This civil case involves the theft of jewelry from Plaintiff,
specifically: (1) civil theft in violation of the Texas Theft Liability Act; and (2) breach of fiduciary
duty (Dkt. #45 at p. 1). But authorities have not brought any criminal charges in the eleven months
since Defendant’s arrest. Defendant argues “the issues in the criminal case and the civil case are
identical,” but does not provide further explanation (Dkt. #45 at p. 3). While Defendant may face
criminal charges at a later date, there is no active criminal case to overlap with the civil case.
Even assuming an active criminal case existed, the overlap would be minimal because
Plaintiff is a private party—not the Government. The risk of overlap is generally reduced when
there is no risk the Government is relying on the civil case to gain an advantage before bringing
an indictment. Alcala, 625 F. Supp. 2d at 402. Here, Plaintiff’s interest in recovering its stolen
property is distinct from the Government’s interest in enforcing criminal laws.
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II.
Criminal Case Status
The Court next considers whether the status of the criminal case supports abatement.
Defendant argues the Court should abate the civil case because a formal indictment is imminent.
Plaintiff argues there is no active criminal case, and there is no basis to believe a criminal case will
occur in the foreseeable future.
The Court finds the status of the criminal case weighs against abatement because there is
no indictment. Further, it is speculative whether an indictment will occur in the future. Courts
generally decline to abate a civil case where the defendant is still under criminal investigation and
has not been indicted. See, e.g., Alcala, 625 F.Supp.2d at 401; In re CFS, 256 F.Supp.2d 1227,
1237 (N.D. Okla. 2003).
Defendant cites United States v. Little Al to support the proposition that, even if there is no
indictment, courts usually stay a civil proceeding “during the pendency of a parallel criminal
proceeding.” 172 F.2d 133, 136 (5th Cir. 1983). But Little Al involves a pending criminal appeal
post-conviction—not a speculative criminal case without an indictment. Id. at 134.
Here,
Defendant was arrested on March 5, 2020, and Plaintiff filed this civil case on March 18, 2020
(Dkt. #45 at p. 2). An indictment has not been brought in the eleven months since his arrest. There
is no active criminal case, and the facts do not indicate one is imminent.
III.
Plaintiff’s Interest
The Court also considers whether Plaintiff’s interest supports abatement. Defendant argues
Plaintiff will not suffer prejudice by abating the civil case because Plaintiff could receive equal
restitution from the criminal case. Plaintiff argues abatement will prejudice its ability to present
an effective case by delaying the discovery and hindering the preservation of evidence. Plaintiff
also argues that, at minimum, it should be allowed to begin discovery of non-compelled testimonial
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matters.
The Court finds Plaintiff’s interest in a speedy trial, preserving evidence, and recovering
from the theft weighs against abatement. Generally, a “civil plaintiff has an interest in the prompt
resolution of his claims.” S.E.C. v. Mutuals.com, Inc., No. 3:03-CV-2912-D, 2004 WL 1629929,
at *3 (N.D. Tex. July 20, 2004). The Court finds that this interest includes obtaining discovery—
especially when evidence may fade and frustrate the ability to present an effective case in the
future.
Defendant argues Plaintiff could recover restitution from the criminal case, so the civil case
is unimportant. However, there is no indication when, or if, an indictment will ever be brought.
Plaintiff also has an interest in discovering the existence of an alleged middleperson involved in
the theft before the statute of limitations expires on its claim. At minimum, Plaintiff has an interest
in proceeding with discovery of non-compelled testimonial evidence from Defendant and
nonparties.
Discovery issues are better addressed as they arise, not by speculating whether they will
arise in the future. As Plaintiff has a significant interest in pursuing the civil case, this factor
weighs heavily against abatement.
IV.
Defendant’s Interest
The Court next considers whether Defendant’s interest supports abatement. Defendant
argues it will be burdensome to defend the civil case during the pendency of the criminal case.
Plaintiff’s argument is twofold: (1) Defendant’s statement is conclusory and insufficient to meet
the burden of proof; and (2) any threat to Defendant’s Fifth Amendment rights is better addressed
when the threat arises.
The Court finds continuing the civil case would not significantly burden Defendant. Under
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In re Ramu Corp., asserting prejudice “requires more than the mere possibility of prejudice”
because depriving claimants of property without a hearing for an extended time “is an extremely
harsh consequence.” 902 F.3d 312, 320 (5th Cir. 1990). Here, Defendant does not provide any
facts indicating what burden they would suffer if the civil case moved forward. Further, there is
no active criminal case and any future case is speculative. As a compromise, Plaintiff agrees a
protective order may be useful to narrow the range of discovery and protect Defendant’s Fifth
Amendment rights.
As Defendant does not provide argument on how abatement is necessary to prevent
prejudice, and Plaintiff is amendable to a protective order in the future, Defendant’s interest weighs
against abatement.
V.
Court’s Interest
The Court further considers whether its own interest supports abatement. Defendant argues
the Court only has a limited interest because abatement would be limited to the conclusion of the
criminal case. Plaintiff argues the Court has an interest in speedy resolution of the case.
The Court finds the judicial interest in a speedy resolution of the case weighs against
abatement. Courts have a “strong interest in moving matters expeditiously through the judicial
system.” SEC v. Kiselak Capital Grp., LLC, No. 4:09–CV–256–A, 2011 WL 4398443, at *4 (N.D.
Tex. Sept. 20, 2011). Defendant’s argument that no harm exists because the abatement is only
temporary is unpersuasive. The civil case is eleven months old, and there is no indication when
or if Defendant will be indicted. Though resolution of the criminal case may streamline the civil
litigation, abating the civil case risks leaving it stalled indefinitely.
As the Court has an interest in managing its docket and expeditiously resolving cases, the
Court’s interest weighs heavily against abatement.
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VI.
Public’s Interest
Lastly, the Court considers whether the public’s interest supports abatement. Defendant
argues the public has no interest in the case because it is less than one year old. Plaintiff argues
that, analogous to the Court, the public has an interest in speedy resolution of the case.
The Court finds the public interest weighs against abatement because the public does have
an interest in a speedy trial. Even though the case is in its early stages, the public still has an
interest in a prompt resolution of the dispute. See SEC v. Kiselak Capital Grp., LLC, No. 4:09–
CV–256–A, 2011 WL 4398443, (N.D. Tex. Sept. 20, 2011) (“The public has an interest in the just
and constitutional resolution of disputes with minimal delay.”). While the public also has an
interest in protecting constitutional rights, there is minimal risk to Defendant because there is no
active criminal case and litigating this case would not be burdensome.
As the public does have an interest in a speedy trial, this factor weighs against abatement.
Balancing the foregoing factors, the Court finds there are no special circumstances
warranting abatement. Plaintiff’s interest, the Court’s interest, the public’s interest, and the status
of the criminal case weigh heavily in favor of continuing the civil case. While a future criminal
case may overlap with the civil case, and this overlap may burden Defendant, there is currently no
indictment and it is uncertain if one will be brought in the future.
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CONCLUSION
As Defendant did not demonstrate how this civil case presents special circumstances, the
case should proceed. It is therefore ORDERED that Defendant’s Motion to Abate Civil Case
Pending Resolution of Criminal Case (Dkt. #45) is hereby DENIED.
SIGNED this 25th day of February, 2021.
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___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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