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Boerste v. Ellis, LLC

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

October 31, 2019

BRYAN TYLER BOERSTE, Plaintiff,
v.
ELLIS, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          COLIN H LINDSAY, MAGISTRATE JUDGE

         Before the Court is the Renewed Motion for Stay of Proceedings and Discovery filed by Defendant, Kevin Bewley (“Bewley”). (DN 85.) Plaintiff, Bryan Tyler Boerste (“Boerste”), filed a response (DN 88), and Bewley filed a reply (DN 89). Therefore, this matter is ripe for review.

         For the reasons set forth below, Bewley's Motion (DN 85) is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         A. Factual and Procedural Background

         This case stems from an April 16, 2016, incident in which Boerste was injured after falling from the roof of his car, which was being towed by a vehicle allegedly owned by Defendant Ellis Towing, LLC and driven by Bewley. (DN 1-12, at PageID # 544-59.) Boerste initially filed suit in Washington Circuit Court on June 15, 2016. (DN 1-2, at PageID # 6-14.) On August 4, 2016, Boerste attempted to take the deposition of Bewley, but Bewley refused to answer many questions posed to him on the basis of his Fifth Amendment privilege against self-incrimination. (DN 61-1.) Bewley was indicted in Washington Circuit Court on a charge of assault second degree on August 18, 2016, related to the incident that is the subject of this case (the “Washington Circuit Court action”). Commonwealth v. Bewley, No. 16-CR-00041-001, Washington Circuit Court, Washington County, Kentucky (filed Aug. 18, 2018).

         On May 11, 2017, the matter was removed to this court. (DN 1.) Thereafter, on October 11, 2017, Bewley moved to stay the proceedings against him because of the pending Washington Circuit Court action related to the same events. (DN 18.) The Court granted Bewley's motion over Boerste's objections (DN 26). (DN 29.) In doing so, the Court relied on the significant overlap between the instant case and the Washington Circuit Court action, the likelihood that Bewley's criminal trial would take place in the relatively near future, and the fact that Boerste would still have four months after Bewley's then-scheduled February 6, 2018, trial to take discovery, among other factors. (Id. at PageID # 891-94.)

         On August 13, 2018, Bewley entered an Alford plea to the amended charge of wanton endangerment-first degree. (DN 85, at PageID # 1479-80.) Bewley then entered into a pretrial diversion agreement, diverting his case for a period of three years. (DN 85-2.) The pretrial diversion agreement required Bewley to refrain from committing another offense during the diversion period, remain drug and alcohol free, and subject himself to random drug testing. (Id. at PageID # 1488.) The pretrial diversion agreement also provided that Bewley could keep his “gun collection” while on pretrial diversion. (Id.) Thereafter, the Parties advised the Court that they had agreed to allow discovery to proceed as to Bewley, and the Court lifted the stay. (DN 56.) On October 28, 2018, Boerste attempted to take a second deposition of Bewley but encountered a dispute regarding the interplay between Bewley's second deposition and the previous August 4, 2016, deposition. Boerste ultimately filed a Motion to Continue Bewley's Deposition as a result of this dispute. (DN 61.)

         While awaiting the Court's ruling on Boerste's Motion (DN 61), Bewley was involved in an unrelated incident during which he allegedly discharged a firearm at a moving vehicle. He was arrested on March 19, 2019. Uniform Citation, Commonwealth v. Bewley, No. 19-F-00011, Spencer District Court, Spencer County, Kentucky (filed Mar. 19, 2019). On April 1, 2019, the Commonwealth filed a Motion to Revoke Bewley's pretrial diversion in the Washington Circuit Court action as a result of the new Spencer County, Kentucky, charges. Motion to Revoke, Commonwealth v. Bewley, No. 16-CR-00041-001, Washington Circuit Court, Washington County, Kentucky (filed Apr. 1, 2019). On June 10, 2019, Bewley was indicted for wanton endangerment-first degree and being a convicted felon in possession of a handgun as a result of the March 19, 2019, incident (the “Spencer Circuit Court action”). Commonwealth v. Bewley, No. 19-CR-00019, Spencer Circuit Court, Spencer County, Kentucky (filed June 10, 2019). Bewley filed the instant motion to stay on August 8, 2019. (DN 85.)

         B. The Instant Motions

         Bewley argued that a stay of these proceedings and any discovery propounded to him was appropriate given that he again faced potential penalties in the Washington Circuit Court action because he was in danger of his pretrial diversion agreement being revoked. (DN 85, at PageID # 1479-80.) Bewley indicated that the Spencer Circuit Court action is presently set for a hearing on September 5, 2019, to determine whether Bewley was validly charged with being a felon in possession of a handgun given that his pretrial diversion agreement specifically allowed him to maintain his gun collection. (Id. at 1480.) Further, he represented that the Washington Circuit Court action was also set for a hearing on August 28, 2019, on the Commonwealth's Motion to Revoke his diversion. (Id. at 1480-81.) He indicated that at the revocation hearing, the Washington Circuit Court would have to address the constitutionality of its form pretrial diversion agreement given the conflict between the agreement's treatment of a participant's ability to possess a firearm and KRS § 527.040.[1] (Id. at 1481.) Under these circumstances, he stated that “[r]esponding to discovery or participating in a deposition at this time would require [him] to invoke his Fifth Amendment privilege.” (Id. at 1481.) He further argued that all of the relevant factors weighed in favor of a stay of proceedings and discovery as to him in this matter. (Id.)

         In response, Boerste argued that entering an indefinite stay of discovery was unwarranted at this phase in the case. (DN 88.) Boerste noted that the new criminal charges in the Spencer Circuit Court action are factually unrelated to the instant action. (Id. at PageID # 1626-27.) He criticized Bewley for waiting nearly four months after the Commonwealth filed its motion to revoke to file a motion to stay given that the delay deprived the Court of the opportunity to resolve the issue further in advance of the fact discovery deadline. (Id. at 1627.) Further, Boerste argued that the relevant factors now weigh against a stay of discovery. (Id. at 1628-30.)

         In reply, Bewley indicated he did not wish to indefinitely stay proceedings either. (DN 89.) He argued that at the very least, a stay should be granted until the conclusion of the August 28, 2019, hearing in the Washington Circuit Court action when the issue can then be ...


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