The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER GRANTING DEFENDANT'S MOTION FOR STAY AND VACATING APRIL 22,
2005 HEARING DATE
Pursuant to Local Rule 7-1(b), the Court finds that defendant's
motion to stay may be determined without oral argument. Having
carefully considered the papers submitted, the Court hereby
GRANTS defendant's motion for stay and VACATES the April 22, 2005
This Court currently has two cases involving Victor Conte
pending before it. United States v. Victor Conte, et al., CR
04-0044 SI, is a multi-defendant criminal case regarding
allegations of unlawful distribution of performance-enhancing
drugs. While under indictment in the criminal case, Conte made a
series of statements in the print and television media involving
performance-enhancing drugs and professional athletes, including
Marion Jones. As a result, on December 15, 2004 Jones
("plaintiff") filed a complaint alleging defamation and tortious
interference with business relations against Conte ("defendant").
In January, 2005, plaintiff filed a Notice of Related Case
stating that her civil suit was related to United States v.
Victor Conte. The Court agreed and ordered the cases related.
Defendant now brings a motion to stay the civil case until the
resolution of the pending criminalmatter.
DISCUSSION A court may decide in its discretion to stay civil proceedings
"when the interests of justice seem to require such an action."
Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th
Cir. 1995). The decision whether to stay civil proceedings in the
face of a parallel criminal proceeding should be determined based
on the circumstances and competing interests involved in the
case. Id. The court should consider the following factors: 1)
the extent to which the defendant's Fifth Amendment rights are
implicated; 2) the interest of the plaintiff in proceeding with
the litigation and the potential prejudice to plaintiff of a
delay; 3) the convenience of the court and the efficient use of
judicialresources; 4) the interests of third parties; and 5) the
interests of the public. Id. at 324-25.
The Court finds that the factors establish that a temporary
stay is appropriate in the pending civil action. "[T]he strongest
case for deferring civil proceedings until after completion of
criminal proceedings is where a party under indictment for a
serious offense is required to defend a civil or administrative
action involving the same matter." Securities and Exchange
Commission v. Dresser Industries, Inc., 628 F.2d 1368, 1375-76
(D.C. Cir. 1980). Both the civil and criminal cases arise from
defendant's alleged involvement in the distribution of
performance-enhancing drugs, as the veracity of his statements
regarding plaintiff's actions directly relate to his involvement
with the distribution of performance-enhancing drugs.
Plaintiff argues that defendant's Fifth Amendment rights will
not be implicated if the civil case continues because defendant
has already issued public statements about the matter.
Plaintiff's argument relies on Federal Trade Commission v. J.K.
Publications, Inc., 99 F.Supp.2d 1176 (C.D. Cal. 2000) and IBM
Corp. v. Brown, 857 F.Supp. 1384 (C.D. Cal. 1994). However, in
both of those cases defendants had already submitted sworn
testimony in the civil matter, which minimized the remaining
Fifth Amendment protection they could assert. J.K. Publications,
Inc., 99 F.Supp.2d at 1199; I.B.M. Corp., 857 F.Supp. at 1390.
In the current case, defendant has not submitted deposition
testimony or sworn statements in any "proceeding"; therefore,
defendant retains full protection under the Fifth Amendment.
See United States v. Licavoli, 604 F.2d 613, 623 (9th Cir.
1979) (holding that waiver of the Fifth Amendment privilege is
limited to the "particular proceeding in which the waiver
occurs"). The Court finds that a stay is proper because "[i]f
discovery moves forward, [the] defendant will be faced with the
difficult choice between asserting [his] right against
self-incrimination, thereby inviting prejudice in the civil case,
or waiving those rights, thereby courting liability in the civil
case." Javier H. v. Garcia-Botello, 218 F.R.D. 72, 75 (W.D.N.Y. 2003).
Plaintiff argues that a stay is unwarranted because it will
cause her prejudice. However, the harm she alleges relates to
endorsement and sponsorship opportunities, as well as eligibility
at certain track and field events. These harms may be remedied by
monetary damages and plaintiff can be adequately compensated even
if she obtains a judgment in her favor after the stay has lifted.
To the extent that the remaining factors are implicated in this
case, they turn in favor of defendant. Staying the case makes
efficient use of judicial resources by "insuring that common
issues of fact will be resolved and subsequent civil discovery
will proceed unobstructed by concerns regarding
self-incrimination." Javier H., 218 F.R.D. at 75. Furthermore,
the public interest is furthered by a stay because "the public's
interest in the integrity of the criminal case is entitled to
precedence over the civil litigant." Id. Therefore, the Court
finds that a stay ensures the efficient use of judicial resources
and supports the public interest.
Based on its finding that the Keating factors support
defendant's motion, the Court GRANTS defendant's motion and STAYS
the civil matter until the resolution of United States v. Victor
Conte, CR 04-0044 SI, or until October 21, 2005, whichever
occurs first. At that time, the parties are instructed to meet
with the Court for a case management conference at 2:00 p.m. to
discuss further proceedings.
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