Russell v. Chenevert

573 F.Supp.3d 391

Julia RUSSELL, Plaintiff,

v.Phillip Augustus CHENEVERT, II, Defendant.

2:21-cv-00191-JAW

United States District Court, D. Maine.

Signed November 23, 2021

Taylor Andrew Asen, Gideon Asen LLC, New Gloucester, ME, for Plaintiff.

Gene R. Libby, Tyler J. Smith, Libby O'Brien Kingsley & Champion, LLC, Kennebunk, ME, for Defendant.

ORDER ON MOTION TO STAY

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE

A plaintiff has filed suit alleging that the defendant, a family friend, repeatedly sexually abused her when she was very young. The defendant moved to stay the civil action pending resolution of any related criminal action. Applying a multi-factor assessment under First Circuit law, the Court dismisses without prejudice defendant's motion to stay.

I. PROCEDURAL HISTORY

On July 9, 2021, Julia Russell filed a two-count complaint against Philip Augustus Chenevert, II, in the United States District Court for the District of Maine alleging assault and battery and intentional infliction of emotional distress. Compl. at 3 (ECF No. 1). On August 5, 2021, Mr. Chenevert filed a motion to stay the case pending resolution of any related criminal prosecution. Mot. to Stay (ECF No. 8) (Def.’s Mot. ). On August 6, 2021, Ms. Russell responded in opposition to Mr. Chenevert's motion to stay the case. Pl.’s Opp'n to Def.’s Mot. to Stay (ECF No. 9) (Pl.’s Opp'n ). Mr. Chenevert replied to Ms. Russell's opposition on August 17, 2021. Def.’s Reply to Pl.’s Opp'n to Def.’s Mot. to Stay (ECF No. 10) (Def.’s Reply ). On August 17, 2021, Mr. Chenevert filed a motion to extend time to file his answer to the Complaint pending resolution of the motion to stay. Mot. to Extend Deadline to File Answer Pending Resolution of Mot. to Stay (ECF No. 11). The Court granted Mr. Chenevert's motion on August 18, 2021. Order (ECF No. 13). Finally, on September 21, 2021, Mr. Chenevert filed a motion for leave to supplement his motion to stay. Def.’s Mot. for Leave to Suppl. the Record on Def.’s Mot. to Stay (ECF No. 15) (Def.’s Suppl. ). The Court granted Mr. Chenevert's request to supplement the record that same day. Order (ECF No. 16).

II. FACTS

Ms. Russell alleges that between the ages of six and eight years old, Mr. Chenevert, who was a family friend, repeatedly sexually abused her. Compl. ¶¶ 16-17. Mr. Chenevert grew up with Ms. Russell's father and regularly visited the Russell household when she was a child. Id. ¶¶ 11, 13. Ms. Russell says that Mr. Chenevert began looking for ways to spend time with her but that because he was a family friend, Ms. Russell's parents implicitly trusted him, and thought nothing of Mr. Chenevert spending time with her alone. Id. ¶ 16. Ms. Russell submits that during the period of abuse, which lasted from 1992-1994, Mr. Chenevert's conduct included, among other things, "teaching" Ms. Russell how to French kiss, exposing himself to Ms. Russell, coaxing her to touch his exposed genitalia, and performing oral sex on Ms. Russell. Id. ¶¶ 17-18. On July 25, 2021, a Portland Press Herald article about Ms. Russell's civil lawsuit states that Ms. Russell filed a criminal complaint against Mr. Chenevert with the Biddeford Police Department. See Def.’s Mot. , Attach. 1, Bill Nemitz: For Almost Three Decades, She Kept Her Secret. No Longer , at 5 (Press Herald Article ). The article goes on to say that the "Biddeford Deputy Chief ... declined to discuss the case or even confirm that there is an investigation." Id.

III. THE PARTIES’ POSITIONS

A. Philip Chenevert's Position

In his motion, Mr. Chenevert "requests a stay pending further order of the Court ... to preserve [his] Fifth Amendment privilege in the event of a criminal prosecution based on the alleged occurrences described in the complaint, which the Plaintiff recently reported to the Biddeford Police Department." Def.’s Mot. at 1. Mr. Chenevert submits that if the Court does not stay the proceeding he will either have to "waiv[e] his Fifth Amendment privilege, subjecting him to the danger that information obtained in this case will be used in a criminal prosecution" or "invoke[e] his Fifth Amendment privilege, hampering his ability to adequately defend himself and potentially subjecting him to an adverse inference from his assertion of privilege." Id. at 4. He acknowledges that he "has not yet been notified of any formal criminal proceedings" but submits that "the York County District Attorney's Office has proven itself willing to prosecute cases based on decades-old allegations of sexual abuse" and "[a]n indictment could return at any time." Id. at 5-6.

Mr. Chenevert further argues that while "all litigants ... share an interest in expeditious resolution of a lawsuit ... the ‘protection of defendant's constitutional rights against self incrimination is the more important consideration,’ " id. at 6 (quoting Green v. Cosby , 177 F. Supp. 3d 673, 681 (D. Mass 2016) ), which is "especially so here, where [Ms.] Russell waited many years to file her Complaint." Id. Thus "a comparatively modest stay of proceedings is unlikely to cause any prejudice that will outweigh Mr. Chenevert's interest in preserving his Fifth Amendment privilege." Id. at 7.

B. Julia Russell's Position

Relying on the so-called Microfinancial, Inc. factors, Ms. Russell argues that the relevant considerations weigh against granting Mr. Chenevert's motion to stay. Pl.’s Opp'n at 2-3; see also Microfinancial, Inc. v. Premier Holidays Int'l, Inc. , 385 F.3d 72, 78 (1st Cir. 2004). First, she argues that she has "a clear interest in proceeding expeditiously" because Mr. Chenevert "is now 72 years old, and a stay ... could prejudice [her] ability to hold [him] accountable in court ... and could provide [him] with the opportunity to dissipate his assets." Id.

Second, Ms. Russell contends that Mr. Chenevert lacks a compelling interest to warrant a stay of the case because there "is not a parallel criminal proceeding ... [and] no evidence before this Court that [he] will be imminently indicted, or even that he will be indicted at all." Id. at 4. Additionally, Ms. Russell submits that because the state of Maine no longer has a statute of limitations for "prosecution[s] of incest, rape or gross sexual assault" for victims under the age of sixteen at the time of the crime, Mr. Chenevert's dilemma of "whether to waive his Fifth Amendment privilege ... will not abate over time," noting that courts "are, and should be, reluctant to grant stays where the moving party is unable to point to a time at which the party will be safe from prosecution." Id. at 4-5.

Third, Ms. Russell argues that the issue of convenience to the civil and criminal courts weighs in her favor because "a stay will needlessly clog up this Court's docket." Id. at 5.

Fourth, "the public has an interest in prompt resolution of civil cases" and Mr. Chenevert has "offered nothing to offset that presumption." Id. at 6 (quoting Microfinancial, Inc. , 385 F.3d at 79 n.4 ).

Finally, as to the status of the cases, Ms. Russell restates that the "criminal case that undergirds this motion is non-existent." Id.

C. Philip Chenevert's Reply and Supplement

In reply, Mr. Chenevert states that his age should not be a consideration because it was "[Ms. Russell's] own decision to wait approximately seventeen years after reaching the age of majority to file her lawsuit." Def.’s Reply. Moreover, he reasons that she will not be prejudiced by a stay because she "can always file a motion to lift the stay upon a showing that the York County District Attorney appears uninterested in pursuing her complaint." Id.

Second, Mr. Chenevert argues that "[e]ven though the argument would be more forceful if [he] were already under indictment, an indictment is not a requirement to a stay." Id. at 2. Additionally, he suggests that it is unlikely that the York County District Attorney's office will sit on this case and that "[t]o the contrary, a stay of this action will likely prompt the York County District Attorney to decide whether or not to prosecute [the] case." Id. at 3.

Third, Mr. Chenevert asserts that the " ‘convenience to the court’ factor does not overcome the need for a stay" because he "moved for a stay at the earliest opportunity, before any significant judicial resources had been devoted to the case." Id. (quoting Microfinancial, Inc. , 385 F.3d at 79 ).

Fourth, he argues that the public interest does not weigh against a stay because "the public interest benefits from safeguarding a litigant's Fifth Amendment privilege." Id.

Fifth, Mr. Chenevert contends that the status of the case weighs in favor of a stay because the "case is in its infancy, which is the opportune time to stay the matter." Id. at 4.

Sixth, Mr. Chenevert states that "the request for a stay was brought in good faith" as "another factor supporting a stay." Id.

Finally, in his motion to supplement, Mr. Chenevert notes that on September 21, 2021, his counsel, Attorney Smith, emailed District Attorney Kathryn Slattery to confirm whether the York County District Attorney is pursuing criminal charges against Mr. Chenevert. Def.’s Suppl. , Attach. 1, Email at 1-2. Attorney Slattery responded that "[a]ll [she] can tell [Attorney Smith] at this point is that [the District Attorney had] noted [Attorney Smith's] appearance for Mr. Chenevert." Id. In his motion to supplement, Mr. Chenevert contrasts Attorney Slattery's response to his inquiry regarding Mr. Chenevert with her response in another case where she confirmed that there was an investigation but specified that her office would not be prosecuting because "there was not enough evidence to prove the charges ‘beyond a reasonable doubt.’ " Def.’s Suppl. at 2. Mr. Chenevert argues that the difference in response "is all the more reason to believe that a criminal prosecution is forthcoming" and for the Court to grant his motion to stay. Id.

IV. LEGAL STANDARD

The seminal First Circuit case on whether a court should stay a civil action while a parallel criminal case is being...