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Boerste v. Ellis, LLC

United States District Court, W.D. Kentucky, Louisville Division

December 12, 2017

ELLIS, LLC, et al., Defendants.


          Colin Lindsay, Magistrate Judge

         This matter is before the Court on a motion to stay (DN 18) filed by Defendant Kevin Bewley (“Bewley”). Plaintiff Bryan Tyler Boerste (“Boerste”) filed a response (DN 26), and Bewley filed a reply (DN 27). For the following reasons, the motion to stay is granted.


         On October 4, 2017, the Court entered a scheduling order (DN 17). In that order, the Court discussed the existence of related criminal proceedings in state court against two defendants in this civil action, Michael Cotton (“Cotton”) and Bewley. United States District Judge Greg N. Stivers previously granted a motion filed by Cotton to stay discovery as to him. (DN 7 (motion to stay); DN 13 (order granting stay).) Specifically, Judge Stivers held that “[a]ll pending and future discovery requests propounded upon . . . Cotton are stayed until the conclusion of his criminal case.” (DN 13.)

         The October 4, 2017 scheduling order stated that the stay as to Cotton remains in effect and noted that as Bewley had not requested or received a stay of discovery as to him, all deadlines set forth in the scheduling order applied to him. (DN 17 at 2.) The Court also set a date for Cotton and Bewley to file updated status reports regarding the criminal proceedings and setting forth their positions as to whether case management deadlines should be stayed as to Cotton and/or Bewley. (Id. at 3 (further stating that other parties may notify the Court of their positions as to the same but were not required to do so.).) In compliance with that order, the parties filed the following:

(1) Bewley's motion (DN 18) to stay these proceedings as to him pending resolution of the underlying criminal proceedings;
(2) Cotton's status report and position on case management deadlines (DN 20);
(3) Bewley's status report regarding same (DN 23);
(4) Boerste's response in opposition to Bewley's motion to stay (DN 26); and
(5) Bewley's reply in support of his motion to stay (DN 27).

         The purpose of the instant memorandum opinion and order is to address those filings.

         In the motion to stay, Bewley assets that a trial in his related criminal matter is set for February 6, 2018. (DN 18 at 1.) He asks the Court to stay discovery, both written discovery and depositions, as to him pending resolution of the criminal matter. As grounds for the motion, Bewley contends that entry of a stay is proper under a set of six factors recognized by the Sixth Circuit. He argues that the criminal case arises out of the same set of facts as this case; that a trial date has been set; that the Court already granted a similar stay to Cotton; that without a stay, he would likely invoke his Fifth Amendment privilege against self-incrimination, which would likely require a second deposition; and that it would be a waste of Court resources to engage in a lengthy determination of what elements of discovery are covered by the Fifth Amendment privilege in this case.

         In response, Boerste argues that Bewley has not shown a pressing need to delay discovery in this matter. (DN 26.) Boerste asks that the motion to stay be denied, “or at a minimum, limited to stay only discovery related to Defendant Bewley's state of mind regarding the events that injured Plaintiff.” (Id. at 1.) Boerste asks the Court to permit him to take discovery from Bewley on topics that he says are unrelated to the criminal charges, such as his employment history and training, driving history, personal financial history, process for responding to calls for a tow truck, and the number of times that he has towed trucks from Saint Catharine College (“Saint Catharine”). (Id. at 4.) Noting that the incident underlying this case occurred on April 16, 2016 and that trial is not set to begin until February 6, 2018, Boerste argues that to stay discovery as to Bewley would further delay this case and prejudice Boerste's ability to move forward with the lawsuit in a timely manner. (Id.) Boerste argues that a stay is not automatically granted in a civil matter involving a defendant who is implicated in related criminal proceedings, and urges the Court to exercise its discretion and make a decision on a case-specific basis. (Id. at 2.) He contends that Bewley has not met his burden to show that there is a pressing need for delay, arguing that Bewley does not provide any specific examples regarding why it would be necessary to invoke his Fifth Amendment privilege. (Id. at 2-3.) Boerste argues that the possibility of follow-up discovery or a subsequent deposition after a stay is lifted does not outweigh the prejudice to him of being unable to complete discovery in an efficient manner. (Id. at 3.)

         Bewley filed a reply (DN 27), in which he again notes that the Court previously granted a stay of discovery as to Cotton. Further, he points to a January 2017 email from Boerste's counsel stating that Boerste would not sit for a deposition until then-pending criminal charges against him were resolved. (DN 27 at 2-3; DN 27-1 at 1 (“Moreover, Tyler [Boerste] is currently under indictment and we will schedule his deposition once that criminal matter is concluded.”).) Bewley argues that there is no reason to treat him differently than the Court has treated Cotton or than as Boerste's counsel requested that he be treated. Bewley also notes that the criminal trial is set for less than three months from now, on the same date as Cotton's trial, giving the delay in this case a “finite end” that is not likely to affect the existing discovery deadline of ...

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