United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
December 17, 2018, Defendants Seth Fezatte and Werner
Enterprises, Inc. (jointly, Defendants), filed a motion to
stay these civil proceedings pending resolution of Defendant
Mr. Fezatte's criminal case. On December 31, 2018,
Plaintiff Derrick Yazzie responded to the Motion, stating
that he opposes any motion to stay pre trial matters, but
does not object to staying the trial. On January 14, 2019,
Defendants replied. The Motion is fully briefed. After
reviewing the briefs and the pleadings, the Court will deny
the Motion in part and grant it in part.
BACKGROUND AND PROCEDURAL HISTORY
about November 22, 2013, in the late evening, Plaintiff
walked on the interstate highway. Weather conditions were
poor; it was sleeting. Mr. Fezatte was driving a
semi-tractor- trailer owned by Werner Enterprises, Inc.
(Werner). Mr. Fezatte struck the Plaintiff with the
semi-tractor-trailer and severely injured him.
hitting Plaintiff, Mr. Fezatte did not stop but continued
driving. He called Werner and told them he thought he had hit
a deer. Later, when highway patrol stopped Mr. Fezatte to ask
about the incident, Mr. Fezatte repeated that he had damaged
the semi-tractor-trailer when he struck a deer. The
authorities investigated and determined that Mr. Fezatte had
struck Plaintiff, but that it had been an accident. At that
time, the authorities did not bring any charges against Mr.
April 14, 2016, Plaintiff filed a civil suit in New Mexico
state court against Defendants, alleging the following
claims: 1) negligence against Mr. Fezatte directly and
against Werner under a theory of respondeat superior; 2)
negligence per se against both Defendants; and 3) negligent
training, hiring, supervision, retention, and entrustment
directly against Werner. Plaintiff also asked for punitive
damages against both Defendants. On May 24, 2016, under 28
U.S.C. § 1332, Defendants timely removed the case to
federal court based on diversity jurisdiction.
past several months, Plaintiff's punitive damage claim
against Mr. Fezatte has been extensively litigated by both
parties. After the Court ruled against Plaintiff on part of
his punitive damage claim, Plaintiff filed a motion asking
the Court to reconsider. Before the Court could rule on the
motion, on March 20, 2018, Mr. Fezatte filed for Chapter 7
bankruptcy in the United States Bankruptcy Court for the
Southern District of Ohio. On April 4, 2018, the Court stayed the
civil proceeding, and on June 15, 2018, the bankruptcy court
granted Plaintiff relief from the automatic
20, 2018, the Court granted in part and denied in part the
Plaintiff's motion to reconsider and directed both
parties to prepare additional briefing on Plaintiff's
punitive damage claims. On July 2, 2018, Plaintiff filed a
supplemental brief on the punitive damage
claims. Attached to the brief, was an affidavit
from a witness, Kimberly Ramay, who stated the following:
I currently work with Seth Fezatte and have for the last two
and a half months. While at work, Mr. Fezatte told me about
an incident that occurred in New Mexico when he was working
as a truck driver. Mr. Fezatte told me that he was involved
in an incident where he hit a person on a highway in New
Mexico while he was driving his truck. He told me that he
killed a person (he used the word “murdered”) but
that it didn't matter because it was one less Native
American. Mr. Fezatte told me that he saw the person before
he hit him and that he knew he had hit a person. Mr. Fezatte
told me that he called his mother right after it happened and
she told him not to admit anything, but instead told him to
say he had hit a deer. Mr. Fezatte told me he lied to the
authorities by telling them that he went back to check on
what he hit and didn't see anything. Mr. Fezatte told me
that he never went back to check on the person he hit, he
just kept driving. Mr. Fezatte told me that he was very tired
at the time of the incident and that he was just trying to
moved to strike the affidavit. To the Motion to Strike,
Defendants attached an affidavit from Mr. Fezatte, which
“continued to deny fault in this civil
proceeding” and specifically answered and denied each
allegation in Ms. Ramay's affidavit.
November 14, 2018, the Court held a hearing on the Motion to
Strike. At the end of the hearing, the Court denied the
Motion to Strike and reopened discovery for the limited
purpose of deposing Ms. Ramay and Mr. Fezatte and any other
potential witnesses of the events Ms. Ramay described and who
Plaintiff intends to use as a witness at trial. The Court
restricted any questions Plaintiff might ask of Mr. Fezatte
to issues raised in Ms. Ramay's affidavit and deposition.
The Court further stated that after additional discovery
concluded, Defendants could renew their motion to strike Ms.
days after the November hearing, on November 19, 2018, the
McKinley County District Attorney filed a criminal complaint
against Mr. Fezatte. The Complaint charges Mr. Fezatte with
the following two counts: (1) Great Bodily Harm by a Motor
Vehicle; and (2) Accident Involving Death or Personal
courts possess the inherent power to stay proceedings for
prudential reasons. Landis v. North American Co.,
299 U.S. 248, 254 (1936) (“[T]he power to stay
proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket
with economy of time and effort for itself, for counsel, and
for litigants.”); see also Pet Milk Co. v.
Ritter, 323 F.2d 586, 588 (10th Cir. 1983). Because
district courts conduct a balancing test between the
parties' interests when determining whether to grant a
stay, the Supreme Court has observed that there are no set
rules to apply because “[s]uch a formula . . . is too
mechanical and narrow.” Id. at 255. “The
proponent of a stay bears the burden of establishing its
need.” Clinton v. Jones, 520 U.S. 681, 708
(1997). “When applying for a stay, a party must
demonstrate ‘a clear case of hardship or inequity'
if ‘even a fair possibility' exists that the stay
would damage another party.” Ben Ezra, Weinstein
and Company, Inc. v. America Online Inc., 206 F.3d 980,
987 (10th Cir. 2000) (quoting Span-Eng. Assocs. v.
Weidner, 771 F.2d 464, 468 (10th Cir. 1984) (other
seek a stay of the civil trial, arguing that if the civil
case continues concurrent with the criminal case, it will
burden Mr. Fezatte's Fifth Amendment rights in the
criminal proceeding and, thereby, irreparably harm him.
Plaintiff is not opposed to a stay of the trial, agreeing
with Defendants that defending a civil case while
simultaneously defending criminal charges could impair Mr.
Fezatte's constitutional rights. In the absence of any
disagreement between the parties, the Court will grant a stay
of the civil trial proceedings.
also pursue a stay of the limited discovery and pretrial
proceedings ordered by the Court at the hearing on November
14, 2018. Plaintiff opposes any stay of the limited discovery
or pretrial proceedings arguing that the civil proceedings
have already been significantly delayed and further delay
would harm Plaintiff. Defendants argue that additional
discovery in the civil proceeding while the state pursues the
criminal case against him will harm Defendants' Fifth
Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against
himself.” U.S. Const. amend. V. “The Fifth
Amendment allows an individual to not ‘answer official
questions put to him in any proceeding, civil or criminal,
formal or informal, where the answers might incriminate him
in future criminal proceedings.'” S.E.C. v.
Smart, 678 F.3d 850, 854 (10th Cir. 2012) (quoting
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). The
right against self-incrimination is applied to the states
through the Fourteenth Amendment. See Malloy v.
Hogan, 378 U.S. 1, 6 (1964).
individual may assert a Fifth Amendment right. “[F]or
purposes of the Fifth Amendment, corporations and other
collective entities are treated differently from
individuals.” Braswell v. United States, 487
U.S. 99, 104-105 (1988). Collective entities do not have a
Fifth Amendment privilege. High Desert Relief, Inc. v.
United States, 917 F.3d 1170, 1188-89 (10th Cir. 2019).
Werner is not an individual but an entity. As an entity,
Werner cannot assert a privilege in these civil proceedings,
nor may it assert Mr. Fezatte's privilege. See, e.g.,
United States v. Kordel, 397 U.S. 1, 8 (1970) (observing
that a corporation may not “assert on its own behalf
the personal privilege of its individual agents”).
Fezatte is an individual who has been charged with two felony
counts in a state criminal proceeding. The two felony counts
arise out of the same factual events contested in the civil
case. Mr. Fezatte has a clear Fifth Amendment privilege. What
remains at issue is whether Mr. Fezatte's Fifth Amendment
privilege precludes additional civil discovery while the
state pursues a state criminal case based on the same facts.
does not have constitutional protection from parallel
criminal and civil proceedings. Kordel, 397 U.S. at
11. When a party is faced with ongoing parallel proceedings,
a stay is not warranted “absent substantial prejudice
to a party's rights.” Creative Consumer
Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 (10th
Cir. 2009). In weighing the prejudice to a party's right,
“the court must consider the extent to which a
party's Fifth Amendment rights are implicated.”
motion for a stay based on parallel civil and criminal
proceedings requires a court to engage in a fact-specific
inquiry. For this purpose, many Circuit Courts have developed
multi-factor tests. See e.g., Louis Vuitton Malletier
S.A. v. LY USA, Inc et al., 676 F.3d 83, 99 (2d Cir.
2012) (observing that the courts in the Second Circuit apply
a six factor test when weighing a stay of civil proceedings
when criminal proceedings are contemplated or have been
initiated); Microfinancial, Inc. v. Premier Holidays
Intern. Incl, 385 F.3d 72, 78 (1st Cir. 2004) (applying
a five-factor test but also considering “the status of
the case” and “the good faith or the
litigants”); Fed. Sav. & Loan Ins. Corp. v.
Molinaro, 889 F.2d 899, 903 (9th Cir. 1989)
(establishing a five-factor test). These tests vary in the
number of factors but are substantively similar. Id.
While the Tenth Circuit has not delineated the precise
factors a court should consider when weighing a stay based on
parallel proceedings, district courts in the Tenth Circuit
have consistently used a six-factor test like the tests
employed in other circuits. See, e.g., Chand v. Corizon
Medical, 2018 WL 3935038 (D.N.M. August 16, 2018) at *2.
These factors are: (1) the extent to which ...