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Yazzie v. Fezatte

United States District Court, D. New Mexico

April 25, 2019



         On 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.[1] 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.[2] On January 14, 2019, Defendants replied.[3] 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.


         On or 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.

         After 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. Fezatte.

         On 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.[4]

         For the 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.[5] 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.[6] On April 4, 2018, the Court stayed the civil proceeding, and on June 15, 2018, the bankruptcy court granted Plaintiff relief from the automatic stay.[7]

         On June 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.[8] On July 2, 2018, Plaintiff filed a supplemental brief on the punitive damage claims.[9] 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 make time.[10]

         Defendants moved to strike the affidavit.[11] 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.[12]

         On 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[13] 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. Ramay's affidavit.

         Five 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 Injuries.[14]

         Defendants' Motion followed.

         II. ANALYSIS

         Federal 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 citations omitted).

         Defendants 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.

         Defendants 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 Amendment rights.

         The 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).

         Only an 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”).

         Mr. 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.

         A party 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.” Id.

         A 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 ...

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