United States District Court, E.D. Louisiana
DANIA GISELLE CRUZ MEJIA, ET AL.
BROTHERS PETROLEUM, LLC, ET AL.
ORDER AND REASONS
S. VANCE, UNITED STATES DISTRICT JUDGE
the Court are: (1) defendants' motion to extend the stay
in this case,  and (2) defendants' objections to
plaintiffs' requests for discovery.The Court extends
the stay in this case except as to document discovery to
which neither party has objected.
a collective action lawsuit seeking damages for alleged
violations of overtime and minimum wage provisions of the
Fair Labor Standards Act (FLSA). 29 U.S.C. §§ 206,
207. Defendants are a network of convenience stores operating
under the name “Brothers Food Mart, ” and the
owners of the businesses-Imad Faiez Hamdan, Abdel Raoyf
Mousa, and Ziad Mousa. Plaintiffs allege that they were
employed as cooks, cashiers, store operators, and similar
positions at the convenience stores, and that they worked
between fifty and eighty hours per week but were not paid
16, 2014, Judge Helen Berrigan conditionally certified the
plaintiffs to proceed as a collective action and requested a
full list of opt-in plaintiffs. On August 5, 2014, defendants
moved to stay all proceedings because defendants had become
aware that the U.S. Attorney's Office was conducting a
criminal investigation into defendant Imad Hamdan's
alleged hiring of undocumented workers. On August 15,
2014, before the motion to stay was fully briefed, defendants
produced a partial list of employees who worked for Hamdan at
the Brother Food Mart convenience stores. Hamdan invoked
his Fifth Amendment right against self-incrimination
“with respect to the identity of any additional opt-in
plaintiffs.” On September 3, 2014, Judge Berrigan
imposed a limited stay on the proceedings. She ordered
defendants to produce a full list of all documented workers,
but she stayed discovery as to any undocumented
September 12, 2014, the case was reassigned to this
Section. The Court extended the partial stay on
December 11, 2014,  and again on June 12,
2015. On September 9, 2015, the Court
converted the partial stay into a complete stay because of
the active criminal investigation and close connection
between the civil and criminal cases. Between
September 3, 2014, when the limited stay was imposed, and
September 9, 2015, when the complete stay was imposed,
plaintiffs were free to conduct discovery as to the
documented workers, and several plaintiffs opted into the
collective action. Following the Court's originally
imposed complete stay, it has extended the stay three times
due to the continuing active criminal
March 29, 2019, the government issued an indictment naming
Hamdan and Ziad Mousa. Shortly thereafter, defendants filed
the instant motion to extend the stay on the basis of the
indictment. On April 23, 2019, the Court held a
status conference, at which the Court raised the possibility
of the parties' agreeing to limited document discovery
pertaining to documented workers in order to alleviate
potential prejudice to plaintiffs given the extended length
of the stay. To this end, the Court ordered plaintiffs to
identify the materials that they were seeking from
defendants.It ordered the defendants to confer with
Hamdan's and Ziad Mousa's criminal attorneys and
brief their position on the disclosure of the requested
materials. The Court also ordered defendants to
produce a list of all documented workers that had not yet
been disclosed to plaintiffs.
9, 2019, defendants filed objections to plaintiffs'
requested materials. Plaintiffs have responded to the
objections. They also oppose the defendants'
motion to extend the stay.
defendant in a civil case is facing criminal charges, a
district court may, in its discretion, stay the civil action.
United States v. Kordel, 397 U.S. 1, 12 (1970);
see also In re Ramu Corp., 903 F.2d 312, 318 (5th
Cir. 1990) (“The stay of a pending matter is ordinarily
within the trial court's wide discretion to control the
course of litigation, which includes authority to control the
scope and pace of discovery.”). The Fifth Circuit has
instructed that, in ruling on requests for stays of the civil
side of parallel civil/criminal proceedings, “judicial
discretion and procedural flexibility should be utilized to
harmonize the conflicting rules and to prevent the rules and
policies applicable to one suit from doing violence to those
pertaining to the other.” United States v. Gieger
Transfer Serv., Inc., 174 F.R.D. 382, 385 (S.D.Miss.
1997) (citing Campbell v. Eastland, 307 F.2d 478,
487 (5th Cir. 1962)).
determining whether a stay is warranted, courts consider: (1)
the extent of overlap between the criminal case and the civil
case; (2) the status of the criminal case, including whether
the defendant has been indicted; (3) the interests of the
plaintiff in proceeding expeditiously, weighed against the
prejudice to the plaintiff caused by the delay; (4) the
interests of and the burden on the defendant; (5) the
interests of the courts; and (6) the public interest.
Alcala v. Tex. Webb Cty., 625 F.Supp.2d 391, 399
(S.D. Tex. 2009) (collecting district court cases in the
Fifth Circuit applying this test). Of these, the first factor
is the most important. Dominguez v. Hartford Fin. Servs.
Grp., Inc., 530 F.Supp.2d 902, 907 (S.D. Tex. 2008).
Although district courts have wide discretion to determine
whether a stay is warranted, “[e]ven discretionary
stays . . . will be reversed when they are immoderate or of
an indefinite duration.” In re Ramu Corp., 903
F.2d at 318 (internal citations omitted).
request that the Court extend the complete stay in this case.
The Court finds that such an extension is warranted because
many of the same conditions that formed the basis for the
Court's initial decision to impose a stay still exist,
and the issuance of an indictment has only strengthened the
basis for the stay.
the first Alcala factor, there is significant
overlap between the criminal case and the civil case. For
example, the allegations that Hamdan and Mousa failed to
withhold taxes and underreported their employees' income
are closely connected to the civil allegations that
defendants underpaid their employees by failing to pay
overtime wages. Further, there is a significant likelihood
that key witnesses-such as Hamdan, Mousa, and the store
managers-would assert their Fifth Amendment
rights to avoid possible criminal exposure. A party claiming
a Fifth Amendment privilege can constitute a “special
circumstance” in which a stay is necessary “to
prevent a party from suffering substantial and irreparable
prejudice.” SEC v. First Fin. Grp. of Tex.
Inc., 659 F.2d 660, 668 (5th Cir. 1981). When a
significant portion of questions posed to a defendant would
likely result in the defendant's asserting his Fifth
Amendment rights, this weighs heavily in favor of a stay.
Dominguez v. Hartford Fin. Servs. Grp., Inc., 530
F.Supp.2d 902, 907 (S.D. Tex. 2008). The Court cannot avoid
this problem by requiring the witnesses to testify under a
protective order. See Andover Data Servs., a Div. of
Players Computer, Inc. v. Statistical Tabulating Corp.,
876 F.2d 1080, 1084 (2d Cir. 1989) (holding that “a
non-consenting witness may not be forced to answer
potentially incriminating questions in reliance upon [a
protective] order” because “the protections of a
Rule 26(c) order simply are not as ‘certain' as the
protections of either the fifth amendment or a statutory
grant of use immunity”). The first factor, the most
important, therefore weighs heavily in favor of a stay.
the second factor, the recent return of a criminal indictment
requires that the Court “strongly consider staying the
civil proceedings until the related criminal proceedings are
resolved.” Whitney Nat. Bank v. Air Ambulance ex
rel. B & C Flight Mgmt., Inc., No. 04-2220, 2007 WL
1468417, at *3 (S.D. Tex. May 18, 2007); see also
Cazaubon v. MR Precious Metals, LLC, No. 14-2241, 2015
WL 4937888, at *3 (E.D. La. Aug. 17, 2015) (finding that a
stay is more likely to be necessary after an indictment is
issued because “there is greater risk of
self-incrimination”). Skipping to the fourth factor for
the moment, a stay is necessary when, as here, a defendant
must choose between exercising his Fifth Amendment rights and
jeopardizing his defense in a civil suit. Doe v.
Morris, No. 11-1532, 2012 WL 359315, at *2 (E.D. La.
Feb. 2, 2012).
under the fifth and sixth factors, the Court has an interest
in adjudicating this dispute efficiently. State Farm
Lloyds v. Wood, No. 06-503, 2006 WL 3691115, at *3 (S.D.
Tex. Dec. 12, 2006). A stay serves this goal because it
allows the Court to avoid the lengthy discovery disputes
prompted by requiring the defendants to object individually
to every document request and question that implicates their
Fifth Amendment rights. Further, “[t]he public has an
interest in the resolution of disputes with minimal ...