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Green v. Cosby

United States District Court, D. Massachusetts

April 4, 2016

TAMARA GREEN, et al., Plaintiffs,
WILLIAM H. COSBY, JR. Defendant.


MARK G. MASTROIANNI United States District Judge

I. Introduction

In this action, Tamara Green, Therese Serignese, Linda Traitz, Louisa Moritz, Barbara Bowman, Joan Tarshis, and Angela Leslie (“Plaintiffs”) assert claims for defamation, invasion of privacy (false light), and intentional infliction of emotional distress against William H. Cosby, Jr. (“Defendant”). Plaintiffs’ claims stem from statements issued on behalf of Defendant in response to public allegations made by Plaintiffs in which they accused Defendant of sexual misconduct.[1] On December 30, 2015, Defendant was charged with aggravated indecent assault in Montgomery County, Pennsylvania, based on allegations of sexual misconduct which are similar, but separate, from those at issue in this case. Presently before the court is Defendant’s motion to stay this action during the pendency of that criminal case. (Dkt. No. 185.) For the following reasons, the court will grant in part and deny in part Defendant’s motion. Specifically, the court will stay discovery addressed to Defendant in order to avoid the precarious dilemma of Defendant having to choose whether to assert his Fifth Amendment privilege against self-incrimination (which could place him at a severe disadvantage in this case) or waive that privilege (and thus potentially incriminate himself in the criminal case). The court will not, however, stay this action in any other respect.

II. Background and Procedural History

This action commenced on December 10, 2014, when Green filed the original complaint. (Dkt. No. 1, Compl.) A second amended complaint, which included Serignese and Traitz as plaintiffs along with Green, was filed on April 16, 2015. (Dkt. No. 48, Second Am. Compl.) On October 9, 2015, the court denied Defendant’s motion to dismiss, concluding the second amended complaint alleged actionable defamation claims. See Green v. Cosby, --- F.Supp.3d ----, 2015 WL 5923553 (D. Mass. Oct. 9, 2015). Thereafter, on November 13, 2015, a third amended complaint was filed, adding as plaintiffs Moritz, Bowman, Tarshis, and Leslie, and adding claims for invasion of privacy (false light) and intentional infliction of emotional distress on behalf of all Plaintiffs. (Dkt. No. 109, Third Am. Compl.) The third amended complaint alleges that Defendant sexually assaulted Plaintiffs and, as to most Plaintiffs, did so after providing drugs which rendered them incapacitated during the assaults; that Plaintiffs subsequently disclosed the assaults to the public; and that Defendant, directly or through spokespeople, falsely and publicly denied the allegations. (See generally id.)

Meanwhile, on July 10, 2015, the District Attorney of Montgomery County, Pennsylvania reopened an investigation into an alleged sexual assault committed by Defendant against Andrea Constand in early 2004. (Dkt. No. 186, Ex. 3, at 11.) According to an affidavit of probable cause attached to the criminal complaint, the reopening was prompted by the release of portions of deposition testimony given by Defendant in relation to a civil suit filed by Constand. (Id.)[2] On December 30, 2015, the Montgomery County District Attorney charged Defendant with the aggravated indecent assault of Constand. (Id. at 1-3.) The criminal complaint alleges that when Constand visited Defendant at his home in Cheltenham, Pennsylvania in January or February of 2004, Defendant convinced her to take blue pills to help her relax; shortly thereafter, Constand became incapacitated and Defendant sexually assaulted her. (Id. at 14-19.) On January 11, 2016, Defendant filed in the criminal case a petition for habeas corpus and motion to disqualify the Montgomery County District Attorney’s office, arguing the charges should be dismissed because of a purported agreement between Defendant and the then-District Attorney of Montgomery County. (Dkt. No. 186, Ex. 4.)[3] On February 4, 2016, the Pennsylvania trial court, the Montgomery County Court of Common Pleas, denied Defendant’s dismissal request. (Dkt. No. 186, Exs. 6, 7.) However, the criminal proceedings have been temporarily stayed while the state intermediate appellate court, the Pennsylvania Superior Court, decides whether to hear an appeal of Defendant’s dismissal request. (Dkt. No. 268, at 7.) See Commonwealth v. William Henry Cosby, Jr., 2312/Commonwealth-v-William-Henry-Cosby-Jr (last visited Apr. 4, 2016).

Defendant filed the instant motion on February 9, 2016, Plaintiffs filed a partial opposition on February 29, 2016, and Defendant replied on March 7, 2016. (Dkt. Nos. 185, 217, 229.) Defendant argues this case should be stayed in its entirety pending the resolution of the criminal case in Pennsylvania. (Dkt. No. 186.) Without a stay, Defendant argues, he

will likely repeatedly face the quandary of having to either: (1) invoke his [Fifth Amendment] privilege during civil discovery-which would not only prevent him from adequately defending his position, but which may subject him to an adverse inference from his refusal to testify; or (2) waive his Fifth Amendment privilege, and having any evidence adduced in the civil case be then used against him in the criminal trial.

(Id. at 1.) Defendant asserts “the allegations of the criminal and civil cases are parallel, with both the evidence and witnesses likely to overlap.” (Id. at 13.) In particular, he contends Plaintiffs may be called as witnesses in a criminal trial, citing Pennsylvania Rule of Evidence 404. (Id. at 4, 13.) Defendant also argues any interests Plaintiffs have in an expeditious resolution of this action is outweighed by his Fifth Amendment concern, a stay will not inconvenience the court because the case is still in the early stages of discovery, and third-party and public interests will not be harmed because the criminal case vindicates the public interest in these disputes. (Id. at 6-7, 10-12.)

In their opposition, Plaintiffs argue that Defendant has not shown good cause to completely stay this action. (Dkt. No. 217, at 1.) In particular, Plaintiffs take issue with Defendant’s assertion that this case and the criminal case overlap, as the two cases concern different alleged sexual assaults. (Id. at 7-8.) Moreover, Plaintiffs argue, Defendant has not demonstrated that any evidence discovered in this case will be admissible in the criminal case. (Id. at 8-9.) Plaintiffs also fault Defendant for failing to file the motion to stay earlier, rather than waiting five days after the Montgomery County Court of Common Pleas denied his request to dismiss the criminal case. (Id. at 12-13.) Nevertheless, Plaintiffs explain that they do not oppose staying discovery directed at Defendant, but only if, in the interest of fairness, discovery directed at Plaintiffs is also stayed. (Id. at 1-2, 9-10, 13-14.) However, despite agreeing to a limited stay, Plaintiffs ask the court to resolve a motion to compel Defendant’s discovery responses, which challenges, among other things, the breadth of Defendant’s Fifth Amendment right against self-incrimination. (Id. at 1, 9, 19.)[4] They explain that “[t]he outcome of that motion to compel, and/or developments in the Constand criminal action, may provide cause to fully resume discovery again in this action.” (Id. at 19.) Plaintiffs also request that the court require Defendant to submit a personally signed declaration that he intends to invoke the Fifth Amendment at his deposition because, they argue, only he can invoke that right and not his attorneys. (Id. at 2 n.1, 9 n.6, 19.)

III. Standard of Review

It is axiomatic that “federal courts possess the inherent power to stay proceedings for prudential reasons.” Microfinancial, Inc. v. Premier Holidays Int’l, Inc., 385 F.3d 72, 77 (1st Cir. 2004). “The pendency of a parallel or related criminal proceeding can constitute such a reason.” Id. (emphasis added). The decision whether to stay civil litigation in deference to pending criminal proceedings is “discretionary, ” and the “movant must carry a heavy burden to succeed in such an endeavor.” Id. In this regard, “a defendant has no constitutional right to a stay simply because a parallel criminal proceeding is in the works.” Id. at 77-78. In making a stay determination, a court should balance “the interests of the parties, the court, and the public.” Id. at 78. “The touchstone, of course, is that a district court’s discretionary power to stay civil proceedings in deference to parallel criminal proceedings should be invoked when the interests of justice counsel in favor of such a course.” Id. Accordingly, as the First Circuit has recognized, “[t]hat determination is highly nuanced” in light of the “competing interests” and “the idiosyncratic circumstances” of each case. Id.

Although each case is unique, the First Circuit has highlighted a number of factors courts often consider

that typically bear on the decisional calculus: (i) the interests of the civil plaintiff in proceeding expeditiously with the civil litigation, including the avoidance of any prejudice to the plaintiff should a delay transpire; (ii) the hardship to the defendant, including the burden placed upon him should the cases go forward in tandem; (iii) the convenience of both the civil and criminal courts; (iv) the interests of third parties; and (v) the public interest. . ...

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