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1

 As of this date, there is a parallel criminal action pending before the Circuit Court of the Fourteenth

Judicial Circuit of Florida in Bay County, Florida arising from the same facts and involving the same

Defendants and several of the same Plaintiffs as the instant action. See State v. MRA Holding, LLC, No. 03-

1036H.

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JOHN DOE 1, et al.,

Plaintiffs,

v. Case No. 5:03cv260/MCR/WCS

JOSEPH R. FRANCIS, et al.,

Defendants.

________________________________/

O R D E R 

This matter comes before the Court upon Plaintiffs JOHN DOE 1, PLAINTIFF

C, JOHN DOE 2, PLAINTIFF D, JANE DOE 1, PLAINTIFF B, PLAINTIFF M, JANE DOE

2, PLAINTIFF J, JANE DOE 3, PLAINTIFF S AND PLAINTIFF L’S Motion to Reconsider

Plaintiffs’ Motion to Lift Stay and For Status Conference (doc. 92). By order entered

on February 10, 2005, Plaintiffs’ Motion to Lift Stay and For Status Conference and

Amended Motion to Lift Stay and For Status Conference were denied. In those

motions, Plaintiffs sought to have this Court lift the stay entered on February 4, 2004,

(doc. 43) so that discovery may proceed in this action,1 claiming that staying this

case until the conclusion of the state criminal trial will place an onerous burden on

them, as there is potential for disappearance of witnesses and failure of witnesses

to recall precise facts relating to the underlying events. Plaintiffs further claimed in

their amended motion for stay that Plaintiff J has been in a state of depression since

the events of spring 2003 that are the basis for this case, that she has been

prescribed psychiatric medications and has had a constant problem with the

notoriety surrounding the incident. Plaintiff J attempted to harm herself by

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2

 The Court noted that the response to Plaintiffs’ motion to lift the stay was filed by Defendants

JOSEPH R. FRANCIS, MRA HOLDING, LLC, MANTRA FILMS, INC., and AERO FALCONS, LLC (the

“Mantra Defendants”). Defendants MARK D. SCHMITZ and RYAN DAVID SIMKIN are each represented by

separate counsel and neither joined in the Mantra Defendants response nor filed a response on their own

behalf to Plaintiffs’ motions to stay. The Court notes that the response to the instant motion for

reconsideration is filed on behalf of the Mantra defendants only.

3

 Specifically, 18 U.S.C. § 3509(k ) provides that:

If, at any tim e that a cause of action for recovery of compensation for damage or injury to the person

of a child exists, a criminal action is pending which arises out of the same occurrence and in which

the child is the victim, the civil action shall be stayed until the end of all phases of the criminal action

and any mention of the civil action during the criminal proceeding is prohibited. As used in this

subsection, a criminal action is pending until its final adjudication in the trial court.

repeatedly cutting her wrists, to the point that she significantly injured herself and

was treated in the emergency room at a local hospital. (See doc. 83). Plaintiffs

alleged that there were similar emotional circumstances ongoing with several of the

other Plaintiffs stemming from the underlying events and sought to have the stay

lifted so that this matter may proceed toward mediation or trial.

In their response to the amended motion to stay (doc. 85), Defendants2

maintained that the stay is mandated by statute.3 Defendants argued that

proceeding with the instant case would prevent the use of evidence now held as

contraband in the state criminal action, and would create numerous discovery and

evidentiary issues. Defendants further argued that the issues in the state criminal

action and the instant case overlap such that resolution of the criminal case may

lead to a speedy settlement in this civil action. Moreover, Defendants claimed that

they will assert their Fifth Amendment privilege in response to discovery in this

matter.

After review and upon finding that Plaintiffs offered no legal authority or

evidence to support their argument that the stay should be lifted, the Court denied

both motions for stay, finding that the stay in this case must remain in effect until

final adjudication of the criminal case by the state court. The Court did, however,

advise Plaintiffs that they could file a motion for reconsideration at a later date

should they find legal authority to support their argument that the stay should be

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lifted. It is upon this basis that Plaintiffs have filed the instant motion for

reconsideration.

In their motion, Plaintiffs again seek to have the stay lifted and discovery

proceed in this civil action. Plaintiffs advise the Court that they have found no case

law addressing the lifting of a stay imposed pursuant to § 3509(k); instead they

argue that “the context in which that subsection is found coupled with changed

circumstances of the [P]laintiffs justifies this Court’s reversal of its order.”

Specifically, Plaintiffs argue that: (1) only three of the seven Plaintiffs in this civil

action are victims in the criminal case; (2) those three victims are now over 18 years

of age; (3) these three victims are requesting that the stay be lifted; (4) the state

criminal case has “languished for almost two years with no end in sight;” and (5) the

delay in the instant case has caused all Plaintiffs in both the state criminal case and

this civil action to be prejudiced and to suffer continuing mental harm.

Plaintiffs’ instant motion presents no new legal arguments from those

presented in the previously filed motions to lift the stay in this case. As Plaintiffs

admit in their memorandum, they have found no case law discussing the lifting of

a stay entered pursuant to § 3509(k) and the Court’s own research has not found any

authority to support such action. Moreover, Plaintiffs have not offered any authority

to support their position that the stay should be lifted due to the fact that the minor

Plaintiffs have now reached the age of majority during the pendency of the state

criminal case. See 18 U.S.C. § 3509(a)(2). Section 3509(k) does not provide, nor

have Plaintiffs presented, any legal basis that would authorize much less require a

stay to be lifted in a case such as this where the victims were minors at the time of

the events giving rise to the criminal charges and reached the age of 18 while both

the criminal case and a parallel civil action based on the same events were pending.

Instead, Plaintiffs argue that the general standard for a stay of discovery of civil

proceedings is now applicable and that the facts of this case do not support the

continuation of the stay.

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Upon review, the Court finds this argument unavailing. Plaintiffs argue that

§ 3509(k) no longer applies in this case. They claim that, because there “is no

similar statutory stay provision for adult victims/witnesses involved in overlapping

criminal and civil cases, this Court should apply the balancing test universally

applied by the courts to these types of concurrent cases.” (Doc. 92, p. 7). However,

Plaintiffs provide no basis for the Court to apply such a test over that prescribed by

§ 3509(k) which has already been deemed applicable here given the victims’ minor

status at the time of the events giving rise to the underlying claims. See 18 U.S.C.

§ 3509(k). Moreover, their claim that the state criminal case has “languished for

almost two years with no end in sight,” is a matter to be addressed in state court.

As Plaintiffs aptly point out, this Court has no control over the state criminal

proceedings and thus cannot provide relief in this civil action by lifting the stay

simply because the state matter is not progressing as fast as they would hope. 

Plaintiffs’ next argument posits that, because four of the seven victims in the

instant case are not victims in the criminal case, discovery should proceed as to

their claims. Plaintiffs further allege that “the criminal case contains some

allegations in common with some of the [P]laintiffs’ claims here, but the two cases

have more differences than similarities.” (Doc. 92, p. 10). However, they fail to

expound upon this argument and do not explain what differences they refer to. This

claim, without more, does not provide a sufficient basis upon which the Court could

lift a statutorily mandated stay.

Finally, as to Plaintiffs argument that they are suffering ongoing and

increasing mental harm due to “the frustrating delay in both the criminal case and

this case,” the Court, while cognizant of Plaintiffs’ claimed distress, again finds this

to be an insufficient ground for lifting the stay. As Defendants argue in their

response to the instant motion, Plaintiffs have presented no evidence to

demonstrate that proceeding with discovery will alleviate their suffering. Rather,

Plaintiffs’ argument centers upon the premise thatDefendants’prior alleged conduct

has caused long term deleterious effects upon them. While ultimate resolution of

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this case may aid in reducing Plaintiffs’ distress, the Court cannot overlook the plain

language of § 3509(k). Again, that statute requires a stay in a case such as this

where there is a parallel criminal action pending which arises from the same

occurrence involving minor victims. See 18 U.S.C. § 3509(k). Because the Court has

no evidence before it to demonstrate that the state criminal case and the instant civil

case arise from different circumstances and because the victims were minors at the

time of the Defendants’ actions alleged in both cases, § 3509(k) applies and requires

that the stay in this case remain in effect until final adjudication of the criminal case

by the state court.

Accordingly, it is hereby ordered that Plaintiffs’ Motion to Reconsider (doc. 92)

is DENIED.

ORDERED on this 20th day of April, 2005.

 s/ M. Casey Rodgers 

M. CASEY RODGERS

United States District Judge

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