                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA



JANE DOE,

       Plaintiff,
               v.                                      Civil Action No. 11-875 (JEB)
WILLIAM A. SIPPER,

       Defendant.


                        MEMORANDUM OPINION AND ORDER

       Plaintiff Jane Doe filed this action on May 10, 2011, seeking damages from an incident in

which Defendant William Sipper allegedly raped her. The incident took place on November 12,

2010, while both parties were on a business trip in Washington, D.C.           A warrant was

subsequently issued for Defendant’s arrest over a year later, and he surrendered to police on

March 6, 2012. The criminal action in the Superior Court of the District of Columbia is

currently pending grand jury indictment. In the instant Motion, Defendant moves to stay the

civil case or, in the alternative, to obtain a protective order with respect to his deposition,

pending further developments in the criminal case. The Court finds Defendant has sufficiently

demonstrated that he would be prejudiced if the civil proceedings continue as currently

scheduled. It will therefore issue a stay for ninety days, at which point it will determine how

next to proceed.

I.     Background

       According to Plaintiff’s Complaint, at the time of the incident, Defendant was an

executive at New Leaf Brands, Inc., a tea company, and Plaintiff was a part-time employee.

Compl., ¶¶ 6, 10. On the evening of November 12, 2010, both were in Washington for business.

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Id., ¶ 11. After discussing Plaintiff’s future employment while at the hotel bar, the two went up

to Defendant’s room so he could book work-related travel for Plaintiff. Id., ¶¶ 25, 27-28. While

Defendant was purchasing the tickets, Plaintiff fell asleep on one of the two beds in Defendant’s

room and awoke to find Defendant raping her. Id., ¶¶ 28, 30. Plaintiff fled Defendant’s hotel

room, called 911, and received a medical examination later that night at Washington Hospital

Center.     Id., ¶¶ 32, 35-36.      When she returned to New York, she began medical and

psychological treatment and was diagnosed with post-traumatic stress disorder. Id., ¶ 45.

          Although Plaintiff reported the incident to the police right away, a warrant was not issued

for Defendant’s arrest until December 7, 2011. Def. Mem. at 2 n.1. The criminal case in

Superior Court, United States v. Sipper, Criminal No. I-2754-11, began March 6, 2012, when

Defendant surrendered to police. Id. at 1, 3. Defendant is charged with second-degree sexual

assault, Opp. at 5, and the case is currently pending action of the grand jury. Defendant has not

yet been indicted. Def. Mem. at 3. According to the defense, “[t]he expectation is that within a

few months, there should be clarification as to whether and how the criminal case will be going

forward.” Id.

          Defendant filed the instant Motion to Stay on May 18, and the briefing was completed on

June 11.

II.       Legal Standard

          The Court has the discretion to stay civil proceedings in the interest of justice and “in the

light of the particular circumstances of the case.” Sec. & Exch. Comm'n v. Dresser Indus., Inc.,

628 F.2d 1368, 1375 (D.C. Cir. 1980). As the Supreme Court has noted, “[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 ….” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). To prevail on a



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motion to stay, the movant needs to satisfy a high burden. Id. at 255. Another court in this

District recently outlined the factors that are commonly weighed when a party moves to stay

civil proceedings in light of parallel criminal proceedings. These are: 1) the relationship between

the civil and criminal actions; 2) the burden on the court; 3) the hardships or inequalities the

parties would face if a stay was granted; and 4) the duration of the requested stay. See U.S. ex

rel. Westrick v. Second Chance, No. 04-280, 2007 WL 1020808, at *2 (D.D.C. Mar. 31, 2007);

see also Horn v. Dist. of Columbia, 210 F.R.D. 13, 15 (D.D.C. 2002) (laying out similar factors).

The factors serve only as a “rough guide” for a court as it exercises its discretion. Louis Vuitton

Muleteer S.A. v. LY USA, Inc., 676 F.3d 83, 99 (2d Cir. 2012); see also Favaloro v. S/S Golden

Gate, 687 F. Supp. 475, 482 (N.D. Cal. 1987) (court’s decision based on “facts of each case”).

The Court may give each factor as much weight as it determines to be necessary. Gabriel L.

Gonzalez et. al., Parallel Civil and Criminal Proceedings, 30 Am. Crim. L. Rev. 1179, 1193

(1993).

III.      Analysis

          In making its determination, the Court will look at each of the four aforementioned

factors in turn.

          A. Relationship Between Two Actions

          The civil and criminal actions here indisputably stem from identical events. Plaintiff has

sued Defendant for his actions in connection with the alleged rape, and the criminal case charges

him with sexual abuse. See Dresser, 628 F.2d at 1375-76 (strongest case for stay is where both

actions involve same matter). If both cases proceeded at the same time, this could implicate

Defendant’s Fifth Amendment rights. Defendant would be forced to choose between waiving his

Fifth Amendment right to defend himself in the civil suit or “asserting the privilege and probably



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losing the civil case.” Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F. Supp. 2d 523, 528

(D.N.J. 1998). A close relationship between the two actions, furthermore, is often viewed as the

most significant factor in the balancing test. See id. at 527.

       Plaintiff argues that there is no parallel criminal action because Defendant has not been

indicted. Opp. at 6. It is true that the lack of an indictment makes the case for a stay “far

weaker,” Dresser, 628 F.2d at 1376, and “inevitably much reduced.” A-1 Hotels, 175 F. Supp.

2d at 577; see also Fed. Savings & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (9th Cir.

1989) (case for pre-indictment stay is far weaker); Walsh, 7 F. Supp. 2d at 527 (case for pre-

indictment stay generally denied); Barry Farm Resident Council, Inc. v. U.S. Dept. of Navy, No.

96-01450, 1997 WL 118412, at *3 (D.D.C. Feb. 18, 1997) (prior to criminal indictment, any

harm alleged by a civil defendant is “entirely speculative”).

       Yet a criminal indictment is not necessary in order to grant a stay of parallel civil

proceedings. See United States v. Kordel, 397 U.S. 1, 3 (1970) (court considered motion to stay

prior to institution of criminal action); Dresser, 628 F. 2d at 1371-74 (court considered motion to

stay prior to outcome of grand jury investigation). A stay in a civil proceeding prior to an

indictment remains within a “court’s inherent powers.” S.E.C. v. Healthsouth Corp., 261 F.

Supp. 2d 1298, 1327 (N.D. Ala. 2003). The final determination remains within the discretion of

the trial court. See Dresser, 628 F.2d at 1375; Second Chance, 2007 WL 1020808, at *2.

       An important consideration here is that the case is not merely in an investigative phase,

following which indictment may conceivably occur.           On the contrary, Defendant has been

arrested on a warrant issued upon probable cause. This substantially improves Defendant’s

argument for a stay. See Walsh, 7 F. Supp. 2d at 527 (pre-indictment stay appropriate where




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Government had executed search warrants and issued subpoenas). Defendant’s alleged harm is

without a doubt more than “entirely speculative.” This factor thus tips in favor of a stay.

       B. Burden on the Court

       Defendant also argues that granting the Motion has the “potential” to facilitate the civil

case, whereby the burden on the Court would be eased. Def. Mem. at 9; see also Estate of

Gaither ex rel. Gaither v. Dist. of Columbia, 2005 WL 3272130, at *4 (D.D.C. Dec. 2, 2005)

(stay in civil case until resolution of criminal case may later “streamline discovery” in the civil

action). Indeed, the Court has an interest in avoiding unnecessary litigation that would burden its

docket and “hamper judicial economy.” Id. at *6 (litigation in civil case might prove duplicative

prior to conclusion of parallel criminal case). Plaintiff argues, in contrast, that denying the

Motion would assist judicial economy because “there is no certainty that any criminal

investigation will ever result in an indictment.” Opp. at 13.

       Although this factor does not carry strong weight either way, the possibility in the next

few months that Defendant may enter into a plea deal in the criminal case and a concomitant

settlement of this case is worth something.

       C. Balance of Interests

       There are many interests a plaintiff could assert in opposing a motion to stay. See, e.g.,

D'Ippolito v. Am. Oil Co., 272 F. Supp. 310, 312 (S.D.N.Y. 1967) (denial necessary to preserve

testimony); Fed. Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 903 (9th Cir. 1989) (denial

necessary to preserve potential assets). Plaintiff, however, only argues that a stay of the civil

proceedings here would unduly burden her because it would “further delay her recovery from the

emotional and psychological harms of the rape.” Opp. at 12. In support of this claim, Plaintiff

argues that Defendant’s own expert has stated that her “symptoms will improve once the civil



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and criminal matters are resolved.” Id. Although Plaintiff’s desire for an end to litigation is

certainly understandable, it is not much more compelling here than in many civil cases in which

plaintiffs seek closure. In addition, any desire for a financial recovery is blunted because she has

already settled with the corporate Defendant.

       Defendant, on the other hand, has presented two interests he claims would be promoted

by a stay: 1) expending personal and legal resources on two cases; and 2) choosing to waive or

assert his Fifth Amendment privilege. Def. Mem. at 8-9. While Defendant does not explain how

the Court should value his desire not to split resources, his Fifth Amendment dilemma is

significant, as discussed in Section III.A., supra. See Wehling v. Columbia Broad. Sys., 608

F.2d 1084, 1088-89 (5th Cir. 1979) (not fair to force party to choose between Fifth Amendment

privilege and the civil action). If Defendant were to invoke his Fifth Amendment right and

decline, e.g., to answer deposition questions, his invocation could be used against him to

establish civil liability. See Louis Vuitton, 676 F.3d at 98.

       Plaintiff first responds with the broad statement that “[s]ince no indictment has been

issued, there are no Fifth Amendment privileges to assert.” Opp. at 8. This is plainly wrong.

Defendant’s constitutional right against self-incrimination may be invoked in any proceeding,

and it was clearly triggered by his arrest. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966).

Plaintiff next argues that Defendant waived his Fifth Amendment rights by answering

interrogatories and providing other information. Opp. at 9. She relies on Microfinancial, Inc. v.

Premier Holidays Int'l, Inc., 385 F.3d 72 (1st Cir. 2004), in which the defendant had given

“lengthy deposition testimony” and “composed and signed a detailed affidavit” prior to

requesting a stay. See id. at 79. Although Defendant here has answered interrogatories, he has

not testified in a deposition or been examined under oath, and a waiver is “not lightly to be



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inferred.” Smith v. United States, 337 U.S. 137, 150 (1949) (footnote omitted). In addition,

Defendant argues that at the point he answered the interrogatories, he was “unaware that an

arrest warrant had issued for him,” and his answers were not adverse to his case. Reply at 3.

The Court thus cannot find a clear waiver here.

       Some courts have also taken into account the public interest in deciding whether to grant

a motion to stay. See, e.g., Molinaro, 889 F.2d at 903. In the present case, neither party has

presented a strong argument that the public interest would be significantly influenced by the

Court’s decision. Plaintiff’s claim, for example, that “there is a public interest in allowing crime

victims to pursue civil litigation while the related criminal litigation has not crystallized or lags

behind” is too nebulous. Opp. at 14. The balancing of interests thus favors Defendant.

       D. Duration of Stay

       Defendant here has requested a stay or, alternatively, a protective order “pending further

developments in the criminal case clarifying how that case will proceed.” Mot. at 1. He

estimates such a clarification will “occur[] within the next few months.” Def. Mem. at 4.

Defendant acknowledges that the stay would likely need to be revisited if the criminal case

proceeded to indictment and trial, and he thus asks the court to revisit the proposed stay after

ninety days. Id. A stay with a limited duration, as presented here, is more likely to be granted

than an indefinite one. See Landis, 299 U.S. at 254-55 (abuse of court’s discretion to grant

indefinite stay without pressing need).

       The criminal action is currently pending grand jury review, and it is unclear how long this

will take. Although the Superior Court has the discretion to enlarge the timeframe, the grand

jury must take action on the criminal case within nine months after Defendant’s arrest or the case

will be deemed abandoned. See D.C. Code § 23-102. As Defendant was arrested on March 6,



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2012, the grand jury must take action by December 6. Given this framework, a temporary stay

of ninety days until late September seems reasonable.

       As the four factors thus militate in favor of a ninety-day stay, the Court will grant

Defendant’s Motion.

IV.    Conclusion

       As set forth above, the Court ORDERS that:

       1. Defendant’s Motion is GRANTED; and

       2. The case is STAYED until Sept. 24, 2012.



                                                    /s/ James E. Boasberg
                                                    JAMES E. BOASBERG
                                                    United States District Judge


Date: June 25, 2012




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