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IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS 

IRENE SIMMONS, 

Plaintiff,

v.

CITY OF CHICAGO; CHICAGO POLICE 

OFFICERS DAVID SALGADO, XAVIER 

ELIZONDO, 

ROBERTO RAMIREZ, RICHARD 

MOSTOWSKI, LISA TORRES, ARNOLDO 

LUEVANO, MARCOS PEREZ, and 

UNKNOWN OFFICERS, 

Defendants.

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JURY TRIAL DEMANDED 

PLAINTIFF’S RESPONSE TO DEFENDANT SALGADO’S 

MOTION TO STAY PROCEEDINGS 

Plaintiff, by and through her attorneys, Loevy & Loevy, file this response objecting to 

Defendant Salgado’s motion to stay the proceedings, stating as follows: 

Defendants Salgado and Elizondo were recently convicted in federal court on corruption 

related charges. Their motions for new trial were denied and they are awaiting sentencing. 

Defendant Salgado has moved to stay these civil proceedings for an unspecified amount of 

time1

—which he only describes as until “full and complete resolution of the Criminal Case.” 

Dkt. 27, at 1. 

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 Defendant Salgado filed a similar motion in the case of Cruz v. City of Chicago, No. 20 CV 

250. The complaint therein was filed on the same day, by the same undersigned attorneys, and is

assigned to Judge Kness. Plaintiffs in Cruz filed a similar response to the motion to stay.

No. 20 CV 478

Case: 1:20-cv-00478 Document #: 30 Filed: 02/28/20 Page 1 of 5 PageID #:86
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 The crux of Defendant Salgado’s motion is that his criminal case involves “the same 

subject matter as the criminal investigation,” which is a crucial factor in deciding whether a stay 

should be granted in these circumstances. Cruz v. County of DuPage, 1997WL 161683 (N.D. Ill. 

June 27, 1997) at *2. Defendant Salgado notes that absent a stay in these circumstances, a 

defendant is put in the untenable situation of choosing between preserving the right against selfincrimination or fully defending against the civil action, Dkt. 27, at 2, and it is true that, despite 

stays being “the exception, not the rule,” in those situations, courts have generally agreed that a 

stay is appropriate. See, e.g., Estate of Swayzer v. Armor Correctional Health Services, Inc., No. 

16-CV-1703, 2018 WL 1535953, *2-3 (E.D. Wis., Mar. 29, 2018) (citing cases). 

However, this case does not involve the same subject matter as the criminal case. 

Defendant Salgado was not convicted for any criminal conduct related to Plaintiff; Plaintiff did 

not testify as Rule 404(b) witnesses or otherwise; Plaintiff is not listed as a witness at Defendant 

Salgado’s sentencing hearing. Accordingly, it is squarely not the same subject matter. See Estate 

of Swayzer, 2018 WL 1535953, *2-3 (E.D.WI, March 29, 2018) (distinguishing cases where “the 

victim of the crime concurrently pursues a civil action for injuries resulting from the criminal 

conduct” from the case therein, where the defendant had pending criminal charges related to his 

actions as a correctional officer that did not squarely involve the plaintiff’s factual allegations); 

B.A. v. Bohlmann, No. 09-CV-346-BBC, 2009 WL 3270124, at *3 (W.D. Wis. Oct. 8, 2009) 

(denying a stay because “none of the plaintiffs in this case are complainants in the pending 

criminal case;” the fact that “they involve ‘similar allegations’” was insufficient to grant a stay). 

Plaintiff agrees that the allegations made by them are “similar” and “related” to the facts 

underlying Defendant Salgado’s criminal conviction. There is no question that at some point 

during discovery in this matter, Plaintiff intends to inquire of Defendant Salgado about facts 

Case: 1:20-cv-00478 Document #: 30 Filed: 02/28/20 Page 2 of 5 PageID #:87
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underlying his criminal conviction. Plaintiff agrees to delay questioning on these topics for an 

appropriate amount of time to ensure that Defendant Salgado is not placed in a position of having 

to choose between defending against those issues or his constitutional rights. Plaintiff’s counsel 

has no doubt that the parties can communicate and confer on these issues as discovery moves 

forward to resolve any issues that arise. And if there comes a point where the parties cannot 

reach an agreement on discovery disputes, this Court can intervene, and even, if needed, revisit 

the question of whether a stay is, in fact, appropriate. 

But given that Plaintiff’s allegations play no role in Defendant Salgado’s criminal case, 

Plaintiffs certainly should be allowed to inquire of Defendant Salgado about their specific 

allegations. Defendant Salgado points to nothing to indicate why, after “full and complete 

resolution of the criminal case,” he will be in any different position related to specific inquires 

about Plaintiff’s allegations. Indeed, the very fact that Defendant Salgado gives no specific 

timetable to lift the proposed stay is telling. He is already convicted and his motion for new trial 

has been denied. Is Defendant Salgado suggesting that his appeal is likely to be successful? If 

that proves to be the case, does that mean this case must be stayed pending the completion of 

Defendant Salgado’s re-trial, and the potential appeal (if convicted) of that re-trial? If Defendant 

Salgado is suggesting that his appeal is unlikely to be successful, then why should there be a stay 

at all? And if it is unsuccessful, does the stay continue through any potential appeal to the U.S. 

Supreme Court or any potential collateral pleadings filed by Defendant Salgado? 

Grappling with these questions of how long a stay should remain intact may be 

appropriate when the civil case involves the “same subject matter.” But it is not appropriate 

where, as here, it does not. In those instances, plaintiffs’ right to their day in court, the 

adjudication of their issues, the fear of fading memories or the death or disappearance of 

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witnesses as time passes become paramount, and public interest favors denial of the stay. See 

B.A., 2009 WL 3270124, at *2 

 WHEREFORE, Plaintiffs respectfully request that this Court deny Defendant Salgado’s 

motion for a stay and order this litigation and discovery to proceed. 

Respectfully submitted, 

 /s/ Joshua Tepfer 

 One of Plaintiffs’ Attorneys 

Jon Loevy 

Arthur Loevy 

Scott Rauscher 

Joshua Tepfer 

Theresa Kleinhaus 

Loevy & Loevy 

311 North Aberdeen Street 

Third Floor 

Chicago, Illinois 60607 

Phone: (312) 243-5900 

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CERTIFICATE OF SERVICE 

 I, Joshua Tepfer, an attorney, hereby certify that on February 28, 2020, I caused the 

foregoing to be filed using the Court’s CM/ECF system, which effected service on all counsel of 

record. 

 Respectfully submitted, 

 /s/ Joshua Tepfer 

One of the Attorneys for Plaintiff 

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