United States District Court, D. Idaho
SUZETTE BAKER; CAMILLE ADAMS; DONJUA MOSELEY; JENALI GRAHAM; CHERYL STONE; GLORIA PRIETO; FALLON MATTHEWS; PENNY DALTON; CHARISSE STEVENSON; KODI TWISS; TRINA SMITH; DORETTA LOPEZ; ELIZABETH CARDINET; CRISTINA MASCCORRO; CARLA WEAVER; and HEIDI SKAGGS, Plaintiffs,
TEMP R. PATTERSON, M.D.; TEMP R. PATTERSON, M.D., P.A.; AMBULATORY SURGERY CENTER OF BURLEY, L.L.C.; JOSEPH R. PETERSEN, M.D., and JOHN DOES 1 THROUGH 10, Defendants.
MEMORANDUM OPINION AND ORDER REGARDING MOTIONS TO
DISMISS AND TO STAY
W. BENNETT U.S. DISTRICT COURT JUDGE
MOTION TO STAY
MOTIONS TO DISMISS
Sufficiency Of The Pleading Of The RICO Claims
Leave To Amend
action, involving civil claims pursuant to the federal
Racketeering Influenced and Corrupt Organization Act (RICO),
and various state law claims, arises from a doctor's
alleged importation and use of Chinese manufactured
counterfeit Botox and Chinese manufactured breast implants,
which were not approved by the Federal Drug Administration
(FDA), on various patients of the doctor's practice in
Burley, Idaho. Two of the named defendants are the doctor and
his professional association (the Patterson Defendants). Two
other named defendants are a surgery center, where the doctor
performed his breast implants, and another doctor, who
operated that surgery center and leased office space to the
doctor (the Petersen Defendants). This case is now before me
on the following motions: (1) the Patterson Defendants'
June 15, 2016, Motion To Dismiss Pursuant To F.R.C.P.
12(b)(1) And 12(b)(6) (docket no. 17); (2) the Petersen
Defendants' June 16, 2016, Motion To Dismiss (docket no.
20); and (3) the Patterson Defendants' July 11, 2016,
Motion To Stay Civil Proceedings (docket no.
Pursuant to a Stipulation To Stay Proceedings (docket no.
29), filed by the parties on July 18, 2016, briefing on these
motions was completed on August 11, 2016. I find it
appropriate to consider these motions on the parties'
written submissions, without oral arguments.
THE MOTION TO STAY
it is the last motion filed, I will consider, first, the
Patterson Defendants' July 11, 2016, Motion To Stay Civil
Proceedings (docket no. 27), because it challenges the
propriety of further proceedings in this action while
individual defendant Temp R. Patterson is under investigation
by the FDA, which may result in criminal charges and
proceedings. Patterson argues the FDA's investigation has
already involved the confiscation of the breast implants
removed from one of the plaintiffs and the execution of a
search warrant by six federal agents and additional law
enforcement officers at his home and office, resulting in the
seizure of records, computers, and other items. He argues
that, under these circumstances, this civil action, involving
alleged predicate offenses of mail fraud and wire fraud,
should be stayed. Patterson argues that, in the absence of a
stay, he faces the dilemma of asserting his Fifth Amendment
right against self-incrimination or adequately defending this
action. The plaintiffs counter that there is, as yet, no
criminal indictment against Patterson, so that a criminal
prosecution is speculative. They also argue that this case
can be adequately prosecuted and defended on the basis of
information available from sources other than Patterson, so
that it is appropriate to proceed with their claims in light
of Patterson's wrongful conduct toward them.
Ninth Circuit Court of Appeals has explained,
The Constitution does not ordinarily require a stay of civil
proceedings pending the outcome of criminal proceedings.
Federal Sav. & Loan Ins. Corp. v. Molinaro, 889
F.2d 899, 902 (9th Cir.1989); Securities & Exchange
Comm'n v. Dresser Indus., 628 F.2d 1368, 1375 (D.C.
Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66
L.Ed.2d 289 (1980). “In the absence of substantial
prejudice to the rights of the parties involved,
[simultaneous] parallel [civil and criminal] proceedings are
unobjectionable under our jurisprudence.”
Dresser, 628 F.2d at 1374. “Nevertheless, a
court may decide in its discretion to stay civil proceedings
... ‘when the interests of justice seem [ ] to require
such action.'” Id. at 1375 (quoting
United States v. Kordel, 397 U.S. 1, 12 n. 27, 90
S.Ct. 763, 769 n. 27, 25 L.Ed.2d 1 (1970)).
The decision whether to stay civil proceedings in the face of
a parallel criminal proceeding should be made “in light
of the particular circumstances and competing interests
involved in the case.” Molinaro, 889 F.2d at
902. This means the decisionmaker should consider “the
extent to which the defendant's fifth amendment rights
are implicated.” Id. In addition, the
decisionmaker should generally consider the following
factors: (1) the interest of the plaintiffs in proceeding
expeditiously with this litigation or any particular aspect
of it, and the potential prejudice to plaintiffs of a delay;
(2) the burden which any particular aspect of the proceedings
may impose on defendants; (3) the convenience of the court in
the management of its cases, and the efficient use of
judicial resources; (4) the interests of persons not parties
to the civil litigation; and (5) the interest of the public
in the pending civil and criminal litigation. Id. at
Keating v. Office of Thrift Supervision, 45 F.3d
322, 324-25 (9th Cir. 1995).
Keating, the court rejected the civil
defendant's assertion, like Patterson's, here, that a
stay was required in light of the potential implication of
his Fifth Amendment rights. Id. at 326. The court
A defendant has no absolute right not to be forced to choose
between testifying in a civil matter and asserting his Fifth
Amendment privilege. Not only is it permissible to conduct a
civil proceeding at the same time as a related criminal
proceeding, even if that necessitates invocation of the Fifth
Amendment privilege, but it is even permissible for the trier
of fact to draw adverse inferences from the invocation of the
Fifth Amendment in a civil proceeding. Baxter v.
Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557, 47
L.Ed.2d 810 (1976).
In deciding whether to proceed with the hearing, the extent
to which the defendant's Fifth Amendment rights are
implicated is a significant factor for the [civil judge] to
consider, but it is only one consideration to be weighed
against others. Molinaro, 889 F.2d at 902.
Keating, 45 F.3d at 326. In that case, the court
found that the civil defendant had adequate time to prepare
for both proceedings, while the public's interest in
speedy resolution of the civil proceedings would have been
unnecessarily impaired by a stay, and the civil
defendant's due ...