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Case 1:13-cv-01169-TPG Document 5 Filed 06/03/13 Page 1 of 4

Corporation Counsel


NEW YORK, NY 10007

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Assistant Corporation Counsel
phone: (212) 788-1177
fax: (212) 788-9776
email: [email protected]

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Honorable Thomas Griesa

United States District Judge

United States District Court, Southern District of New York

Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007

Re: Diaz et al v. The City of New York, et al.

13-cv-0 1169-TPG

Your Honor:

I am an Assistant Corporation Counsel in the Office of Michael A. Cardozo,
Corporation Counsel of the City of New York, attorney for defendants City of New York and
Police Officer Evan Johnson in the above-referenced matter. This case is currently part of the
Southern District of New York's Section 1983 Plan. The complaint is brought by three plaintiffs
who were all in a car together on November 26, 2011 when they allegedly had an interaction
with police officers. According to the complaint, plaintiffs were in plaintiff Porfirio Diaz' car
when police officers opened the car door, threw Mr. Diaz to the ground, and arrested him.
Plaintiff Marcos Guzman alleges he was slammed against the trunk and arrested. Plaintiff
Taveras alleges he was handcuffed and arrested. Plaintiffs bring claims for, inter alia, false
arrest, malicious prosecution, and excessive force. Based on this Office's investigation into this
matter, it appears that the criminal charges against plaintiff Diaz stemming from his arrest
remain pending in Bronx County Criminal Court. Thus, for the reasons set forth herein,
defendants respectfully request a stay of the instant civil matter for at least sixty (60) days,
pending the conclusion of plaintiffs underlying criminal action. The parties have been hopeful
that a stay request would not be necessary and that plaintiff Diaz' criminal case would be
resolved at his last criminal court appearance on May 17, 2013, however the case has not been
resolved. Plaintiffs' counsel, David Zelman, consents to a stay of the proceedings as to Plaintiff
Diaz but not as to Plaintiffs Guzman and Taveras.

Case 1:13-cv-01169-TPG Document 5 Filed 06/03/13 Page 2 of 4

According to the New York State Unified Court System's website ("Webcrims"), attorneylLogin, plaintiffs criminal case is still open,
with the next court appearance scheduled for June 10, 2013. See also Case Details from the
Webrims website, attached as Exhibit A. In the interest of judicial economy, a stay of this matter
until the underlying criminal case is resolved is appropriate as the outcome of the criminal matter
may affect defendants' response to the complaint and defendant's subsequent discovery in this

It is well settled that a stay of a federal civil rights action pending the outcome of
parallel state court criminal proceedings is appropriate for reasons of judicial economy and the
resolution of parallel issues. See generally Wallace v. Kato, 127 S. Ct. 1091, 1098 (2007) ("[I]t
is within the power of the district court, and in accord with common practice, to stay the civil
action until the criminal case ... is ended."); see also,
Deakins v. Monaghan, 484 U.S. 193,
202 (1988) (Where in a 42 U.S.C. § 1983 ("§ 1983") action, the Court approved of a rule
requiring a district court to stay, rather than dismiss, a federal civil action in favor of parallel
state proceeding); Mack v. Varelas, 835 F.2d 995, 999-1000 (2d Cir. 1987) (Where, in ordering
a stay of a § 1983 action pending the resolution of parallel state criminal proceedings, the Circuit
concluded that "postponement of [federal] adjudication is prudentially warranted because one
possible outcome of the state court proceedings could negate an essential element of [plaintiffs]
claim"); Giulini v. Blessing, 654 F.2d 189,193 (2d Cir. 1981) ("[A] federal court is not
precluded, in the exercise of its discretion, from staying proceedings in the [civil] action before it
pending a decision by the state court, with a view to avoiding wasteful duplication of judicial
resources and having the benefit of the state court's views."); Estes-EI v. Long Island Jewish
Med. Ctr., 916 F. Supp. 268 (S.D.N.Y. 1995).

Moreover, "the non-criminal proceeding, if not deferred, might undermine the
party's Fifth Amendment privilege against self-incrimination, expand rights of criminal
discovery beyond the limits of Federal Rule of Criminal Procedure 16(b ) [or governing state
law], expose the basis of the defense to the prosecution in advance of the criminal trial, or
otherwise prejudice the case." United States v. Certain Real Property, 751 F. Supp. 1060, 1062
(E.D.N.Y. 1989) (quoting Brock v. Tolkow, 109 F.R.D. 116,119 (E.D.N.Y. 1985)). See also
Johnson v. N.Y. City Police Dep't., No. 01 Civ. 6570 (RCC) (JCF), 2003 U.S. Dist. LEXIS
12111, at *5 (S.D.N.Y. July 16,2003) ("the civil action, if not stayed, might undermine the
criminal defendant's Fifth Amendment privilege against self-incrimination, expand the rights of
discovery beyond the limits of the state's criminal procedure law, expose the basis of the
defense to the prosecution, or otherwise prejudice the criminal case.")

In deciding whether to grant the stay, the Court should consider (1) the private
interest of the plaintiff in proceeding expeditiously with the civil litigation as balanced against
the prejudice to the plaintiff if delayed, (2) the private interests of, and burden on, the
defendants, (3) the convenience of the courts, (4) the interests of persons not parties to the civil
litigation, and (5) the public interest. Twenty-First Century Corp. v. LaBianca, 801 F. Supp.
1007, 1010 (E.D.N.Y. 1992). Here, it should be noted that plaintiff would not suffer any
prejudice if a stay is granted, particularly since the alleged incident occurred in January 2012,
the statute of limitations is not an issue requiring the need to immediately proceed with this civil


Case 1:13-cv-01169-TPG Document 5 Filed 06/03/13 Page 3 of 4

Moreover, as one court in this Circuit has opined, "[a] stay of civil proceedings is
most likely to be granted where the civil and criminal actions involve the same subject matter."
Johnson v. N.Y. City Police Dep'1., No. 01 Civ. 6570, 2003 U.S. Dis1. LEXIS 12111, at *4
(S.D.N.Y. July 16,2003) (quoting Brock v. Tolkow, 109 F.R.D. 116, 119 (E.D.N.Y. 1985)).
Here, both the criminal and civil cases arise out of the same incident: plaintiff Porfirio Diaz'
arrest on or about November 26, 2011. There is, therefore, substantial overlap between the
criminal and civil cases. Additionally, a conviction in plaintiff Diaz' criminal case would have a
substantial impact on this § 1983 action. Should plaintiff Diaz be convicted, any claim for false
arrest and malicious prosecution brought by him would be barred. Mack v. Varelas, 835 F.2d
995,999 (2d Cif. 1987) (stay warranted where one possible outcome of the criminal proceedings
could negate an essential element of plaintiffs § 1983 claim); Johnson, 2003 U.S. Dis1. Lexis
12111, at *4 (stay granted where civil and criminal actions arose out of the same events and "a
conviction in the criminal action would bar [plaintiffs] false arrest and malicious prosecution
claims."). See also, Heck v. Humphrey, 512 U. S. 477, 486-87 (1994) (holding that a § 1983
action for false arrest or malicious prosecution is barred if plaintiff was convicted and the
conviction was not invalidated).

This office further seeks a stay of this civil suit at this early stage of the litigation
to avoid creating the additional discovery obligations in the criminal and civil cases that would
arise if an answer to the complaint were required. Before this office may answer the complaint
on behalf of the City, we must fulfill our obligation under Fed. R. Civ. P. II(b) by conducting an
investigation into the underlying facts of this case. Such an investigation would require
conducting an interview of the arresting officer and any other officer involved in plaintiffs'
arrests. As the incident that gives rise to the complaint is also the basis for plaintiff Diaz'
pending criminal prosecution, any statements made by involved police officers may create
additional discovery obligations for the District Attorney's Office in the criminal matter pursuant
to People v. Rosario, 9 N.Y.2d 286 (N.Y. 1961).

On the civil side, the Rosario discovery obligation could serve to vitiate the
confidentiality of attorney-client communications in the present lawsuit. Furthermore, because of
the Fifth Amendment protections afforded criminal defendants, defendant may be unable to
obtain information, discovery or testimony from plaintiff Diaz until the conclusion of his
criminal case. Additionally, the District Attorney's Office will not turn over its file related to the
criminal prosecution while the criminal case is still pending. Defendants respectfully submit that
any prejudice to plaintiffs caused by staying this matter would be minimal.

Defendants further submit that a stay of this case would be in the interest of the
Court and the public, as civil discovery could be streamlined with the benefit of transcripts from
the criminal proceedings and rulings from the criminal court. Johnson, 2003 U.S. Dist. LEXIS
12111, at **5-6 (citing Giulini v. Blessing, 654 F.2d 189, 193 (2d Cir. 1981)). Additionally, a
conviction in the criminal case could have a preclusive effect on some of the claims of the
complaint, such as false arrest, imprisonment and/or illegal search, thereby narrowing the issues
before the Court in the civil suit. See Diggs v. N.Y. Police Dep't, 04 Civ. 1849 (CBA)(LB),
2005 U.S. Dist. LEXIS 38244, at *6-*7 (RD.N.Y. Dec. 22, 2005) (quoting Allen v. McCurry,
449 U.S, 90, 102 (1980)) (collateral estoppel "applies when § 1983 plaintiffs attempt to
relitigate in federal court issues decided against them in state criminal proceedings."); Houston
v. N.Y. State Troopers, 96 Civ. 1987 (DAB), 1997 U.S. Dist. LEXIS 15999, at *5-*6 (S.D.N.Y.


Case 1:13-cv-01169-TPG Document 5 Filed 06/03/13 Page 4 of 4

Oct. 10, 1997) ("it is well-established that a defendant who pleads guilty waives any challenge
to the constitutionality of his arrest, interrogation, search and prosecution."). Hence, the
resolution of plaintiff Diaz' criminal case carries with it the possibility of significantly
simplifying the present action.

Defendants further submit that because the plaintiffs all have claims arising out
of the same incident, a stay of this entire matter as to all plaintiffs is warranted. According to
the complaint, all three plaintiffs were in the same car when they were arrested. Therefore, each
of the plaintiffs would have been a witness to the interactions between police officers and the
other two plaintiffs. Consequently, the three plaintiffs' claims are intertwined (further evident
by the fact that the plaintiffs brought this lawsuit together in one complaint). Any police
officers on scene may have been witnesses to all three plaintiffs' interactions with police
officers, thereby making any defenses and testimony about the incident intertwined. Thus, for
example, when testifying about their interactions with plaintiffs Guzman and Taveras, a police
officer would necessarily also discuss the interaction with plaintiff Diaz. This would create
Rosario issues discussed above and would make depositions as to only parts of the incident
impractical. Therefore, Defendants respectfully submit that a full stay of the entire case would
be most appropriate.

While the entry of a stay is, of course, a matter for the Court's discretion,
defendants respectfully submit that on balance, the factors outlined above warrant such action in
this case. Should the Court grant this request, it is further respectfully requested that defendants
be permitted two weeks from the time such stay is lifted to answer or otherwise respond to the

Accordingly, for the reasons set forth above, Defendants respectfully request a
stay of the instant civil matter until July 22, 2013. Defendants propose updating the Court on
July 22, 2013 about the status of the plaintiffs criminal court proceeding, should a further
request for a stay be necessary at that time.

I thank the Court for its consideration of this request.


Linda Mindrutiu
Assistant Corporation Counsel
Special Federal Litigation Division


Via Email
David Zelman, attorney for plaintiffs