1Pursuant to 5th Cir. R. 47.5, this Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5th Cir. R.

47.5.4.

1

United States Court of Appeals

Fifth Circuit

FILED

May 14, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 03-30914

Summary Calendar

_____________________

JAIME CAPDEBOSCQ, ET AL.,

Plaintiffs,

JAIME CAPDEBOSCQ,

Plaintiff - Appellee,

WHITNI CANDIOTTO,

Intervenor Plaintiff - Appellee,

versus

JOSEPH R. FRANCIS, ET AL.,

Defendants,

JOSEPH R. FRANCIS, MANTRA FILMS, INC.,

Defendants - Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

District Court Cause No. 03-CV-556

_________________________________________________________________

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1

PER CURIAM:

This appeal arose from the district court’s denial of the
228 U.S.C. § 1291 (2000).

3See E.E.O.C. v. Exxon Corp., 202 F.3d 755, 757 (5th Cir.

2000).

2

appellants’ motion to stay trial proceedings pending resolution

of a unrelated criminal case. Ordinarily, this Court's

jurisdiction is limited to the review of "final decisions of the

district courts of the United States ... except where a direct

review may be had in the Supreme Court."2 Because an order

denying a motion to stay is not a final judgment, this Court must

first examine the basis for appellate jurisdiction.

Appellate Jurisdiction

The appellants, Joseph R. Francis and Mantra Films, Inc.,

maintain appellate jurisdiction exists under the collateral order

doctrine. The appellees disagree and have asked this Court to

dismiss the appeal. The collateral order doctrine is applicable

where (1) the order conclusively determines the disputed

question, (2) the issue is important and separate from the merits

of the case, and (3) the order is effectively unreviewable on

appeal from final judgment.3

Whether the district court’s order conclusively determined

the disputed question. This action arose from the plaintiffappellees’ inclusion on the cover of the video “Girls Gone Wild

Doggy Style.” The plaintiff-appellees allege that Joseph R.

Francis–president and owner of Mantra Films, Inc., and Calvin

Broadus, a.k.a. Snoop Doggy Dog, pressured them to pose for them
3

by flashing their bare breasts, provided them with intoxicants,

and assured them that their likeness would not be used for the

video. Despite the alleged assurances, the plaintiff-appellees

appear on the cover of the video.

The plaintiff-appellees named Francis, Mantra Films and

Broadus as defendants in their lawsuit. Six months after the

case was filed, Francis and Mantra Films moved to stay trial

proceedings pending resolution of a criminal investigation and

prosecution against Francis in Florida. Francis and Mantra

contended that proceeding with the civil lawsuit would eviscerate

Francis’s constitutional right against self-incrimination, and

expose him to substantial and irreparable prejudice. In the

alternative, Francis and Mantra asked the district court to enter

a protective order that would preclude discovery into the acts

alleged in the Florida criminal proceedings, or ensure that any

information obtained from such inquiry was not shared with any

third-party, particularly with the Florida prosecutors. After a

hearing, the district court denied the motion for a stay, but

entered a protective order that prohibited the plaintiffappellees from inquiring into the Florida proceeding. That order

conclusively determined the question of whether trial proceedings

would be stayed.
4

Whether the issue is important and separate from the merits

of the case. The issue of whether to stay proceedings in the

civil case is important because discovery in the civil case might

implicate Francis’s right against self-incrimination, and staying

the case potentially prejudices the plaintiff-appellees from

prosecuting their lawsuit. But staying trial proceedings or

proceeding with the case has nothing to do with the merits of

either dispute. In the civil case, the plaintiff-appellees

complain about an events that allegedly occurred on February 12,

2002, Mardi Gras Day, on Bourbon Street in New Orleans. The

criminal proceeding alleges violations of Florida’s provisions

against racketeering; in particular, counts of alleged sexual

activity on the part of Francis during Spring Break 2003 in

Panama City, Florida. Francis and Mantra maintain the Florida

prosecution intends to use the Spring Break events to prove a

pattern and practice on the part of Francis. Because the civil

proceeding involves events different from the criminal

proceeding, the question of whether the civil case should be

stayed is separate from the merits of either case, and does not

require this Court to consider the merits of either case.

Whether the order is effectively unreviewable on appeal from

final judgment. To be effectively unreviewable on appeal, an

issue must be “too important to be denied review and too

independent of the cause itself to require that appellate
4Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546

(1949).

5See In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th

Cir. 1994) (considering turn-over of privileged documents as

irreparable injury, effectively not reviewable on appeal).

6Lefkowitz v. Turley, 414 U.S. 414 70, 78 (1973).

5

consideration be deferred until the whole case is adjudicated."4

This Court has exercised jurisdiction over an interlocutory order

under the collateral order doctrine where an appeal from a final

judgment would result in the loss of a protected liberty

interest.5 The appellants maintain that Francis’s right against

self-incrimination is too important to be denied appellate review

and that denying the request for a stay is effectively

unreviewable on appeal from a final judgment because it will

result in loss of this protected interest.

The Fifth Amendment to the United States Constitution

provides that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” This right

against self-incrimination “not only protects the individual

against being involuntarily called as a witness against himself

in a criminal prosecution but also privileges him not to answer

official questions put to him in any other proceeding, civil or

criminal, formal or informal, where the answers might incriminate

him in future criminal proceedings.”6 “The central standard for

the privilege's application has been whether the claimant is

confronted by substantial and 'real,' and not merely trifling or
7

Marchetti v. United States, 88 S. Ct. 697, 705 (1968).

6

imaginary, hazards of incrimination.”7 The right against selfincrimination is undoubtably important, but whether that right is

implicated by the district court’s order is a more difficult

question.

The district court’s order required the plaintiff-appellees

to “limit their discovery (through depositions or otherwise) to

matters based on the conduct surrounding Mardi Gras 2002 in New

Orleans, Louisiana (and not Spring Break 2003 in Panama City,

Florida).” Thus, the only harm to befall the defendantappellants by continuing the civil lawsuit appears to be the

discovery of facts related to the appellants’ conduct during

Mardi Gras incident–the subject of the civil lawsuit. The

appellants, however, maintain this consequence constitutes

irreparable harm because the plaintiff-appellees have expressed

their intent to share the results of their discovery about the

Mardi Gras incident with the Florida prosecutors in an effort to

help prove violations of Florida’s provisions against

racketeering. Purportedly, information about the Mardi Gras

incident could demonstrate a pattern of activity supporting

violations of Florida provisions against racketeering.

The Florida criminal information charges Francis and Mantra

Films with two counts of violating the provisions of the Florida

Statutes that prohibit racketeering, based on conduct that
7

occurred “between and including March 3, 2003, and April 3,

2003,” in Bay County Florida. The information details 40

specific allegations of incidents of racketeering activity in

support of those counts. According to the information, each of

the allegations occurred on either March 31, 2003, or April 2,

2003. In addition, the information alleged 17 counts of

violations of other sections of the Florida Statutes occurring on

March 31, 2003; and 5 counts allegedly occurring on April 2,

2003. The information alleges that each count and each

allegation occurred in Bay County, Florida. As a result, answers

given in discovery in the civil lawsuit about the events that

allegedly occurred on February 12, 2002, in New Orleans cannot

incriminate Francis in his criminal proceeding in Florida because

the New Orleans events occurred at a different time than the acts

alleged in the criminal information. While discovery about the

Mardi Gras incident might assist the Florida prosecutor in

determining a trial strategy, the information is irrelevant to

the allegations in the criminal information and could not be used

in the criminal prosecution. This consequence does not implicate

Francis’s right against self-incrimination because nothing in the

record indicates the Florida prosecutor, or any other prosecutor

seeks to charge Francis with criminal violations stemming from

the February 12, 2002 Mardi Gras incident. Even though a Bay

County Sheriff’s Department investigator included the Mardi Gras

incident in an affidavit, neither the criminal complaint or the
8See Marchetti, 88 S. Ct. at 705.

8

information mentions the incident. In the absence of at least a

criminal investigation into the Mardi Gras incident, Francis does

not face any real or substantial harm from discovery in the civil

lawsuit.8 As a result, the appellants’ argument about why the

collateral order doctrine applies to this appeal fails, and the

doctrine does not apply. Because the doctrine does not apply,

this Court has no jurisdiction over the appeal. Accordingly, the

Court DISMISSES the appeal.

DISMISSED.