LL Capital Partners I, L.P. v. Tambur

1

LL CAPITAL PARTNERS I, LP, SIF V, LLC, and TAMMAC HOLDINGS CORPORATION, Plaintiffs, v. ROBERT TAMBUR, individually and as Trustee for ROBERT S. TAMBURRO 2005 IRREVOCABLE TRUST and LIZA TAMBUR ROLAND 2005 IRREVOCABLE TRUST, VIRGINIA S. TAMBUR, ROBERT S. TAMBURRO, LIZA TAMBUR ROLAND, JEFFREY POTH, JAMES MAHON, JAMES JOHN MAHON V, AC2B CONTRACTING SERVICES, and MARIE KENNEDY, Defendants.

No. 01400

Common Pleas Court of Philadelphia County, Pennsylvania

July 7, 2023

COMMERCE PROGRAM 1405 EDA 2023

OPINION

NINA W. PADILLA, J.

Six of the defendants in this action, specifically, Robert Tambur individually and as Trustee for Robert S. Tamburro 2005 Irrevocable Trust and Liza Tambur Roland 2005 Irrevocable Trust, Virginia S. Tambur, Robert S. Tamburro, and Liza Tambur Roland (collectively, the "Tambur Defendants"), have appealed from this court's Order docketed on May 5, 2023, in which the court denied their Motion to Stay this civil action pending resolution of an alleged federal criminal investigation.

The other five defendants, Jeffrey Poth, James Mahon, James John Mahon V, AC2B Contracting Services, and Marie Kennedy, did not join the request for a stay, and the plaintiffs LL Capital Partners I, LP, SIF V, LLC, and Tammac Holdings Corporation, actively opposed the request for stay.

The Tambur Defendants apparently fear that the fraud and other wrongdoing of which they are accused in the Complaint in this civil action may rise to the level of a federal crime for which one or more of them may eventually be indicted. No such indictments have been issued yet, so the Tambur Defendants can only speculate regarding the nature of the federal investigation.

In support of their Motion, the Tambur Defendants allege that plaintiff, Tammac Holdings Corporation, was subpoenaed by the U.S Attorney's Office and the Federal Bureau of Investigation, and its CEO, who is not a party here, was apparently interviewed by representatives of those investigatory agencies in October or November of 2022. ^[1] Since none of the Tambur Defendants have themselves been subpoenaed or interviewed, they necessarily have not been able to proffer any evidence of the specific subject matter of those investigations, nor how long such investigations may take, nor whether such investigations may result in any criminal prosecutions. Yet they desire this court to issue an indefinite stay of this civil action, which is progressing towards trial, slowly but surely.^[2]

In deciding whether to stay a civil case pending the resolution of a related criminal case, courts consider many factors, including: (1) the extent to which the issues in the civil and criminal cases overlap; (2) the status of the criminal proceedings, including whether any defendants have been indicted; (3) the plaintiffs interests in expeditious civil proceedings weighed against the prejudice to the plaintiff caused by the delay; (4) the burden on the defendants; (5) the interests of the court; and (6) the public interest.^[3]

In this case, consideration of those six factors does not support staying this action at this time. With respect to the first factor, there is no actual criminal "case" to compare to this civil case, so the court and the parties can only guess whether there is any overlap between the allegations in the Complaint in this action and the investigations undertaken by the F.B.I, and U.S. Attorney. Second, the criminal "proceeding" appears to be in its investigatory infancy, no one has been indicted,^[4] and it is quite possible no one ever will be. Third, plaintiffs necessarily have an interest in moving these proceedings forward to their natural conclusion. This case has already been delayed due to numerous discovery disputes, and, even without the requested stay, this case will not be resolved within the two-year time frame recommended by the American Bar Association ("ABA").^[5]

Fourth the burden on the Tambur Defendants at this juncture apparently takes the form of a fear that they may say or produce something in discovery here that will cause the criminal investigators to focus their attentions upon the Tambur Defendants. However, those defendants have already invoked their rights not to incriminate themselves in this civil matter,^[6] so that burden has been lessened. The Tambur Defendants also made no showing that they are unable to defend themselves properly in this action, since the defenses they raise are focused on plaintiffs' knowledge and actions, rather than their own.^[7]

Fifth and sixth, at this juncture, the interests of the court and the public are to have this civil action proceed to its resolution, unless and until such time as it may...