Plaintiff, Civil Action No. 11-00785 (CCC)

v.

OPINION

THE BOARD OF EDUCATION FORTHE CLIFTON SCHOOL DISTRICT,MEMBERS OF THE BOARD OF

EDUCATION FOR THE CLIFTONSCHOOL DISTRICT,

in their official capacity,CLIFTON HIGH SCHOOL, & JIMMIEWARREN in his official capacity,

Defendants.

CECCHI, District Judge.

I. INTRODUCTION

This matter has come before the Court on motion by Defendant Jimmie Warren

(“Warren”), who moves to stay the proceedings pending the resolution of the criminal charges

against him. 1 For the reasons stated herein, Defendant Warren’s motion to stay this proceeding

is GRANTED.

II. BACKGROUND

Plaintiff Dawn Colombo (“Colombo”) brings this suit against Defendants Board of

Education for the Clifton School District and the members of the Board of Education in their

official capacity (jointly, “Board Defendants”), Clifton High School, and Jimmie Warren, in his

Warren and the Board Defendants have also moved to dismiss for failure to state a claim.

1
Plaintiff’s daughter is identified as “N.C.” and her son, who was a minor at the time of the events

at issue, is identified as “B.C.” Defendant Warren was the principal of Clifton High School until

he retired on April 1, 2011. (Compl. ¶ 9, Def. Br. 3).

According to Colombo, Warren engaged in a “continuing pattern of extremely

inappropriate, unwelcome, harassing, and sexually suggestive communications with Plaintiff.”

(Compi. ¶ 17). Colombo claims that Warren made sexually suggestive comments to her, asked

her to perform various sex acts, exposed his penis to her, touched her breasts, and arranged ameeting in a hotel room with her. (Compi. ¶J 17-40). She contends that Warren offered to help

her son, who was frequently in trouble at school, and to promote him to the next grade level, if

she would perform sexual acts with Warren. (Compl. ¶J 8, 10). She further alleges that Warren

refused to lift a suspension imposed on B.C. because she rejected his sexual advances. (Compi. ¶{

42). Colombo claims that her daughter has been harassed and ridiculed by other students as a

result of Warren’s actions towards Colombo. (Compl. ¶ 44). Colombo claims that the Board

Defendants had notice of Warren’s actions, but did not rectify the situation, thereby ratifying

Warren’s conduct. (Compi. ¶ 25).

According to the Complaint, Warren has been charged with multiple criminal offenses

included multiple counts of lewdness, sexual contact and aggravated sexual contact, criminalcoercion, and luring and/or enticing. (Compi. ¶ 45). The criminal matter is being investigated

by the Passaic County Prosecutor’s Office, the Clifton Police Department, and potentially other

2
Education Amendments of 1972, 20 U.S.C. § 1681, the New Jersey Constitution, and the New

Jersey Law Against Discrimination, N.J.S.A. 10:5-1. (Compl. ¶J 66-76, 87-104).

III. DISCUSSION

It is well-settled that “the power to stay proceedings is incidental to the power inherent in

every court to control the disposition of the causes on its docket with economy of time and effort

for itself, for counsel, and for litigants. How this can best be done calls for the exercise of

judgment, which must weigh competing interests and maintain an even balance.” Landis v.

North American Co., 299 U.S. 248, 254-55 (1936) (citing Kansas City Southern Ry. Co. v. US.,

282 U.S. 760, 763 (1931)). “In the exercise of its sound discretion, a court may hold one

lawsuit in abeyance to abide the outcome of another which may substantially affect it or be

dispositive of the issues.” Bechtel Corp. v. Laborers’International Union, 544 F.2d 1207, 1215

(3d. Cir. 1976). However, “it is well settled that before a stay may be issued, the [movant] must

demonstrate ‘a clear case of hardship or inequity,’ if there is ‘even a fair possibility’ that the stay

would work damage on another party.” Gold v. Johns-Mansville Sales Corp., 723 F.2d 1068,

1075-76 (3d Cir. 1983) (citing Landis, 299 U.S. at 255)).

“A stay of a civil case where there are pending criminal proceedings is not

constitutionally required, however, it may be warranted in certain circumstances.” Walsh Sec.,

inc. v. Cristo Prop. z’vfgmt., Ltd., 7 F. Supp. 2d 523, 526 (D.N.J. 1998). In deciding whether to

stay a civil case pending the resolution of a criminal case, courts consider many factors,

3
interest.” Walsh, 7 F. Supp. 2d at 527. “However, each case must be evaluated individually.

[and] it is still possible to obtain a stay. . . if the Government is conducting an active parallel

criminal investigation.” Id.

A. Do the Walsh Factors Apply?Plaintiff argues that the Walsh factors do not apply in the instant case because Plaintiff

has sued Warren in his official capacity, as principal of Clifton High School, while the criminal

indictment is against him in his individual capacity. (P1. Br. 6). As such, Plaintiff contends that

her claims against Warren should be treated as though they were brought against a government

entity. (P1. Br. 6); see McGreevy v. Stroup, 413 F.3d 359, 369 (3d Cir. 2005) (finding that the

same analysis used to evaluate claims against a school district were to be used in evaluating

claims against the school superintendent and the school principal). In support of her argument,Plaintiff cites to Forrest v. Corzine, 757 F. Supp. 2d 473 (D.N.J. 2010), in which an arrestee

brought action against the City of Camden and Camden police officers for violations of his civil

rights. Forrest, 757 F. Supp. 2d at 474-75. The City of Camden moved to stay the action

because the police officers in question refused to participate in discovery on the matter while

they were the subjects of a parallel criminal investigation. Id. at 474. Judge Schneider deniedthe motion and found that the Walsh factors did not apply because the City of Camden was notitself the subject of a related criminal investigation. Id. at 479. Moreover, Camden’s FifthAmendment rights were not at issue. Id. at 477.

4
civil proceedings.

B. Application of the Walsh Factors

1. Similarity of the Issues

The first Walsh factor requires the court to examine whether the criminal and civil

proceedings overlap. Walsh, 7 F. Supp. 2d at 527. “The similarity of issues has been termed

‘the most important issue at the threshold’ in determining whether or not to grant a stay.” Id.

(quoting Milton Pollack, Parallel Civil and C’rin2inal Proceedings, 129 F.R.D. 201, 203 (1989)).

Here, the Court finds that the evidence presented demonstrates significant overlap between the

civil and criminal cases. Plaintiff claims that Warren engaged in “inappropriate sexual conduct”

and that he offered to help her son if she would perform sexual acts. (Compl. ¶J 8, 10, 17-40,

42). Likewise, the criminal indictment against Warren alleges that he offered “special treatment

of students B.C. and N.C. in return for engaging in inappropriate sexual conduct with Dawn

Colombo, the parent of said students.” (Kantrowitz Certification, Ex. A).

Plaintiff again argues that her claim is based on the alleged inappropriate sexual conduct

of Jimmie Warren in his official capacity, while the criminal case is against him in his individual

capacity and therefore, the cases and issues do not overlap. (P1. Br. 8). However, as discussed

previously, Jimmie Warren is the subject of both the civil case and the criminal investigation.

See discussion supra Part lI1.A. Whether in his official capacity or his individual capacity, the

facts, evidence, and issues significantly overlap. Therefore, the Court finds that the first, and

5
self-incrimination.” Walsh, 7 F. Supp. 2d at 527. Additionally, the right to a speedy trial

reduces the potential for a long delay. State Farm Mut. Auto. Ins. Co. v. Beckham-Easlev, No.

01-5530, 2002 WL 31111766, at *2 (E.D. Pa. Sept. 18, 2002).

Here, Warren has been indicted and he intends to invoke his Fifth Amendment privilege

against self-incrimination. (Def. Br. 12). Plaintiff contends that Warren has already waived his

Fifth Amendment rights by providing a statement to Detectives for the Clifton Police

Department on November 23, 2010. (P1. Br. 8-9). In reply, Defendant argues that Warren did

not waive his Fifth Amendment rights when he gave his statement to the police because that

statement was not testimony. (Def. Reply Br. 11).

In Mitchell v. US., 526 U.S. 314, 321(1999), the Court determined that a defendant who

pled guilty to a crime is permitted to assert his Fifth Amendment right later at sentencing. The

Court found that while a witness may not testify about facts and then later refuse to be crossexamined about those facts, the defendant’s prior statement did not waive his Fifth Amendment

rights at sentencing. Id. at 324.

Furthermore, a witness may refuse to answer a question asked in court even ifthe witness

previously answered that question in out-of-court interview or discussion with an investigator.

Ginvard v. United States, 816 A.2d 21, 33 (D.C. App. 2003); see also United States v. Rivas

Macias, 537 F.3d 1271, 1280 (10th Cir. 2008) (finding that witness did not waive right to invoke

Fifth Amendment at trial after giving pretrial unsworn statement to authorities); United States v.

6
her ability to invoke the privilege when asked about the substance of that admission later in the

proceeding. See, e.g., In re Edmond, 934 F.2d 1304, 1309 (4th Cir. 1991) (“An affidavit

operates like other testimonial statements to raise the possibility that the witness has waived the

Fifth Amendment privilege.”); OSRecoverv, Inc. v. One Groupe intern., Inc., 262 F.Supp. 2d

302, 309 (S.D.N.Y. 2003) (witness lost Fifth Amendment protection by making statements in

affidavit during deposition); Commonwealth v. Slonka, 680 N.E.2d 103, 109—10 (Mass. App. Ct.

1997) (finding that witness waived Fifth Amendment privilege, if his sworn statement made to

defense counsel was given voluntarily).

Here, Warren has not yet provided testimony, nor has he provided a sworn statement or

affidavit; he only provided a statement to the Clifton Police Department. (Sciarra Certification,

Ex. E). Therefore, his Fifth Amendment rights remain at issue. Moreover, he has expressed his

intention to invoke the Fifth Amendment during the discovery phase of this case and during trial.

(Def Br. 12). Therefore, the Court finds that because an indictment has been returned in the

parallel criminal proceeding and because Warren’s Fifth Amendment rights are it issue, this

factor weighs in favor of granting the stay.

3. Prejudice to Plaintiff

Under the third Walsh factor, the Court must weigh the Plaintiffs interest in proceeding

expeditiously against the prejudice a delay will cause to Plaintiff. Tucker v. New York Police

Dept.. No. 08-cv-2156, 2010 WL 703189. at *7 (D.N.J. Feb. 23, 2010). The mere fact that

7
*2; Walsh Sec., 7 F. Supp. 2d at 528.

Plaintiff contends that unless the case proceeds expeditiously, she and her family will

suffer prejudice. (P1. Br. 7). In particular, she claims that her daughter, N.C. has suffered

ridicule and harassment at school due to the events at issue and unless her claims are addressedquickly and her daughter is moved to another school, this harassment will continue. (P1. Br. 7-

8). In contrast, Warren argues that “all parties will benefit by waiting for the criminal

proceeding to be completed.” (Def. Br. 12). He contends that once the criminal proceeding is

completed, they will then have access to the trial transcript and evidence. (Def. Br. 12). He alsoargues that because Plaintiff’s daughter is not a party to this case, this Court cannot address theissue of N.C.’s educational placement. (Def. Reply Br. 10-11). Furthermore, the Defendantargues that N.C.’s alternative educational placement should be addressed by the Commissionerof Education. (Def. Br. 11).

Defendant relies on NJS.A. l8A:6-9, which vests the Commissioner of Education with

‘jurisdiction to hear and determine . . all controversies and disputes arising under the schoollaws.” See also Theodore v. Dover Bd. of Ed., 183 NJ. Super. 407, 412-13 (App. Div. 1982)(finding that disputes related to school law are not decided by trial courts); State In re G.S., 330

N.J. Super. 383, 388 (Ch. Div. 2000) (noting that an appeal of a school board’s decision to expel

a student would be within the jurisdictional domain of the Commissioner of Education).

8
Plaintiff, it is not an issue that this Court can address. Therefore, the Court finds that this factorweighs in favor of granting a stay.

4. Burden on Defendant

With respect to the fourth Walsh factor, Defendant experiences a significant burden when

he must choose between waiving his Fifth Amendment rights by defending himself in the civil

lawsuit and asserting the privilege and possibly losing the civil case. State Farm, 2002 WL

3111176, at *3 However, it is not unconstitutional to force a defendant to make the choicebetween waiving his Fifth Amendment rights and losing the civil case. Baxter v. Palmigiano,

425 U.S. 308, 318-19 (1976).

Here, Warren argues that if the civil case proceeds, he will either be forced to waive his

Fifth Amendment rights in order to defend himself in this matter or he will invoke the privilege

and suffer the adverse inferences that may arise. (Def. Br. 12). He has already expressed his

intention to invoke his Fifth Amendment privilege. (Def. Br. 12). Plaintiff again argues that

Warren has already waived his Fifth Amendment rights. (P1. Br. 9). However, as already

discussed, Warren’s Fifth Amendment rights are at issue and he has not yet waived those rights.

See discussion supra Part IILB.2. Therefore, Defendant will be burdened by having to defend

these parallel civil and criminal proceedings. Thus, this factor weighs in favor of granting the

stay.

9
the civil matter.” United States SEC v. Ott, 2006 U.S. Dist. LEXIS 86541 (D.N.J. Nov. 29,

2006).

While Plaintiff is entitled to the expeditious resolution of her lawsuit, Defendant’s

assertion of his Fifth Amendment right will result in a numerous privilege issues that will delay

discovery. Furthermore, a stay in the civil matter will further the goal of discovery and promote

efficiency, since many of the legal and factual issues in this case may be resolved in the criminal

proceeding. See Soroush v. A/i, No. 09-3703, 2009 WL 3467897, at *3 (E.D. Pa. Oct. 28, 2009).

Therefore, this factor also weighs in favor of granting a stay.

6. The Public InterestThe public interest is promoted by allowing a complete, unimpeded criminal

investigation. Maloney v. Gordon, 328 F. Supp. 2d 508, 510 (D. Del. 2004). Furthermore, “the

public’s interest in the integrity of the criminal case is entitled to precedence ofthe civil litigant.”

Javier FL v, Garcia-Botello, 218 F.R.D. 72, 74 (W.D.N.Y, 2003). Plaintiff argues that the public

has an interest in scrutinizing the officials who are charged with overseeing children. (P1. Br. 9-

10). However, civil litigation is not the only avenue used to protect this interest. In fact, the

detectives on the criminal matter are furthering this interest with their investigation. Thus, the

criminal matter should be able to continue without the interference of the civil matter. The Court

finds that this factor weighs in favor of granting a stay.

10
of efficiency and in avoiding piecemeal litigation, the Court finds that the stay is granted withregard to all of the parties.

IV. CONCLUSION

In sum, Defendant’s motion for a stay pending the outcome of the related criminal

proceedings is GRANTED. Having considered each of the Walsh factors, this Court will stay all

of Plaintiff’s civil claims pending the outcome of the related criminal proceedings. This matter,

and all applications and motions that are pending at the time of this Opinion, may hereby be

reopened upon application of either party within ninety days of the conclusion of the criminal

proceedings. In addition, within sixty (60) days of the date of this decision, the parties shall

update the Court as to the status of the criminal proceedings.

An appropriate Order follows.

CLAIRE C. CECCHI, U.S.D.J.

DATED: , 2011

11