Anda di halaman 1dari 12

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION JOHN DOE 6 : : : : : : : : : : : : : :

Plaintiff v. THE PENNSYLVANIA STATE UNIVERSITY, THE SECOND MILE AND GERALD SANDUSKY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY FOR THE SECOND MILE, Defendants

No. 2:13-cv-00336-AB

JURY TRIAL DEMANDED

______________________________________________________________________________ PLAINTIFFS OPPOSITION TO DEFENDANT PENN STATE UNIVERSITYS MOTION TO STAY For the reasons set forth in the Memorandum of Law filed concurrently with this Motion, Plaintiff John Doe 6 opposes the Motion of Defendant Pennsylvania State University for a stay in this action. Plaintiff incorporates its Memorandum of Law in Opposition to the Motion to Stay as though fully set forth herein at length. Dated this ___1st____ day of _______March____, 2013

By:

__________/s/___________________ Brian Ketterer, Esquire ( Bar # 88898) Hal Kleinman, Esquire (Bar # 92702) JANET, JENNER & SUGGS, LLC 1777 Reisterstown Road Suite 165 Baltimore, MD 21208 (410) 653-3200 (410) 653-6903 (fax)

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 2 of 12

________/s/______________________ Howard Alan Janet, Esquire (Pro Hac Vice) Kenneth M. Suggs, Esquire (Pro Hac Vice) Jason B. Penn, Esquire (Pro Hac Vice) JANET, JENNER & SUGGS, LLC 1777 Reisterstown Road, Suite 165 Baltimore, MD 21208 (410) 653-3200 (410) 653-6903 (fax) Attorneys for Plaintiffs

-2-

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 3 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION : : : : Plaintiff : : No. 2:13-cv-00336-AB v. : : THE PENNSYLVANIA STATE : UNIVERSITY, THE SECOND MILE AND : GERALD SANDUSKY, INDIVIDUALLY : AND IN HIS OFFICIAL CAPACITY FOR : JURY TRIAL DEMANDED THE SECOND MILE, : : Defendants : ______________________________________________________________________________ JOHN DOE 6 MEMORANDUM OF LAW OF PLAINTIFF JOHN DOE 6 IN OPPOSITION TO DEFENDANT PENN STATE UNIVERSITYS MOTION TO STAY Plaintiff John Doe 6 (hereafter Plaintiff or John Doe 6), by his attorneys, Janet, Jenner & Suggs, LLC, submits the following Memorandum of Law in Opposition to the Motion to Stay submitted by Defendant The Pennsylvania State University (hereafter PSU.) BACKGROUND Beginning in May 1998, Defendant Gerald Sandusky engaged in indecent contact with John Doe 6 and sexually abused him. According to a report prepared at PSUs behest by former Judge and FBI Director Louis Freeh, (attached hereto as Exhibit 1) Sandusky had engaged in sexually deviate conduct on the Penn State Campus as early as the 1970s. PSU recognized and/or should have recognized that Sandusky was using his position as a University employee and University facilities to bring minor boys

-3-

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 4 of 12

to its campus, including Plaintiff herein, and was doing so for inappropriate and illicit purposes. John Doe 6 was subjected to serious physical harm as a result of PSU and Second Miles concealment of and/or failure to disclose Sanduskys harmful contact with young boys. PSU and Second Mile knew, or should have known that Sandusky committed repeated acts of childhood sexual abuse by having sexual intercourse, deviate sexual intercourse, and/or indecent contact with minor boys. As a direct result of PSUs failure to take reasonable and necessary precautions in light of the information available to it, Sandusky was enabled to groom and sexually molest and assault young boys, and have indecent contact with them. Sandusky did, in fact, sexually molest, assault and have indecent contact with Plaintiff. In 1998, John Doe 6, with the assistance of his mother, came forward and reported Sanduskys sexual assault to the PSU police department. Through a deliberate course of action, however,

Defendants attempted to silence plaintiff. The then eleven year old was told that he would get Sandusky in trouble, was interviewed multiple times (while Sandusky himself was not interviewed), and was subjected to an examination by an unlicensed counselor of PSUs choice. For nearly 15 years, PSU has taken actions to keep its reprehensible actions a secret and out of the public eye. At every turn, PSU has attempted to prevent John Doe 6 from holding Defendants accountable for their actions (and inaction). True to form, PSU now seeks to further delay John Doe 6 from proceeding in Court and, most importantly, to begin the healing process. PSU has filed its Motion to Stay this action, joined in by other defendants, asking that the Court delay further proceedings while parallel criminal investigations and prosecutions proceed. 1 Plaintiff opposes that request.

Defendants ignore entirely the myriad options available to the court to remedy Defendants concerns. Courts may chose to continue, to stay proceedings, postpone civil discovery, or issue a protective order as an alternative to entirely staying a civil case. See, e.g. Securities Exchange Commission v. Dresser Indus., Inc., 202 U.S. App. D.C. 345 (D.C. Cir 1980).

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 5 of 12

ARGUMENT There exists no constitutional requirement that civil proceedings be stayed pending the outcome of criminal proceedings. There is no basis in law for the notion that defendants in a criminal prosecution have a due process right to stay proceedings in related civil actions lest they be forced to defend themselves on two legal fronts simultaneously. Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53 (E.D. Pa. 1980). The Commonwealth of Pennsylvania is

proceeding with criminal perjury charges against Timothy Mark Curley and Gary Charles Schultz. Neither Mr. Curley nor Mr. Schultz is a defendant in the instant matter. Penn State is not under criminal investigation. Penn State has been punished by its governing body (the National Collegiate Athletic Association) and accepted the penalty imposed by that body. Notably, Defendant Sandusky has not requested a stay of this matter. 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. Id. The Court may stay parallel civil litigation if the interests of justice require it. See United States v. Kordel, 397 U.S. 1, 12 n.27, 90 S. Ct. 763, 25 L. Ed. 2d 1 (1970). Determination of whether to grant a stay due to parallel criminal litigation involves balancing the interests of the plaintiff, the defendants, and the public. Broadly stated, the principal factors are fivefold: (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. Golden Quality Ice Cream Co., 87 F.R.D. at 56. The party seeking a stay bears a heavy burden. See, e.g., Bayoil Supply & Trading v. Jorgen Jahre Shipping AS, 54 F. Supp. 2d 691 (1999)(Absent statutory authorization, the moving party bears a heavy burden to show why a stay should be granted. In
5

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 6 of 12

fact, a court should grant a discretionary stay only upon the showing of something close to genuine necessity.)
1. Plaintiffs interest in proceeding expeditiously

Any plaintiff in the federal courts enjoys the right to pursue his case and to vindicate his claim expeditiously. No claimant is presumed to enter a civil case fully prepared for trial or fully aware of the issues which may later develop. It is only through the discovery procedure that a plaintiff can determine the merit (or lack of merit) in his case and develop the strategy which will guide him throughout the litigation. Indeed, it is only through early discovery that later discovery may be suggested. Quality Ice Cream Co., 87 F.R.D. at 56. Golden

Entry of a stay will impose a delay on Plaintiff, who has a

significant interest in obtaining resolution of his claims and who has already suffered a delay of justice of more than a decade. This is an important consideration weighing against a stay, particularly because the delay may be substantial, given the potential breadth of the ongoing criminal investigations. In Sotheby's Intern. Realty, Inc. v. Black, 472 F. Supp. 2d 481 (S.D. N.Y. 2006), a case in which a condominium owner faced both a suit by a real estate broker for commissions and criminal fraud and a forfeiture case, the court ruled that no stay of the civil case was required during the pendency of the criminal matter, in part reasoning that a stay of the action would delay the plaintiff's ability to recover, through what could be a years-long legal battle. If the plaintiff's allegations proved true, it was entitled to payment of its commission, the court emphasized. The defendant claimed that any delay resulting from a stay would be minimal because criminal matters have docket priority and, therefore, the criminal action would come to trial far more quickly than the newly commenced civil case but the court rejected this argument, noting the time-consuming nature of complex white-collar criminal litigation. Further, if the defendant were convicted, the plaintiff's chances of collecting any judgment entered after expensive seriatim criminal and civil litigation could be impaired. Accordingly, Defendants motion to stay the proceedings was denied. See also Shirsat v. Mutual Pharmaceutical Co., Inc., 1995 WL 695109 (E.D.
6

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 7 of 12

Pa. 1995) (Plaintiff alleged that the defendant company wrongfully discharged him from employment in retaliation for his reporting to the authorities certain of the company's practices in violation of the Federal Food, Drug, and Cosmetic Act. The company sought a stay because of a parallel criminal case, the court denied the stay, finding that the plaintiff's interests favored moving forward with the civil matter. The Court held that a civil plaintiff enjoys the right to pursue his case and to vindicate his claim expeditiously. When a case is delayed, a plaintiff may suffer prejudice as a result of the death or relocation of witnesses and the fading of witnesses' memories.) Emphasizing the weighty interests of the plaintiffs in proceeding with a civil action the court in Sterling Nat. Bank v. A-1 Hotels Intern., Inc., 175 F. Supp. 2d 573 (S.D. N.Y. 2001), declined from issuing a stay, despite the fact that the defendants also faced a federal criminal investigation. The court emphasized that it was far from clear that the delay would be limited to the initial six months requested by defendants since if a stay were granted, it was completely unpredictable how the criminal investigation would have progressed over the following six months. Unless the government had completed its investigation by that time, and was prepared to say that it would not bring charges, the argument for a further stay would continue to be potent. Effectively, then, the defendants sought to delay the entire civil case indefinitely, a weighty burden on the plaintiff. Accordingly, the court denied the application for a stay. John Doe 6 is a victim of child sex abuse perpetrated and consented to by Defendants. Defendants outrageous conduct toward Plaintiff began in 1998 and Defendants have yet to answer for the damages caused to him. Defendants now seek, through motions practice, to further delay accepting responsibility for their actions. John Doe 6 should be permitted to conduct discovery, develop

strategies, avoiding the further relocation of witnesses and the fading of their memories. The notion that there would be no prejudice to Plaintiff by delaying this litigation ad infinitum is wrong. Defendants

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 8 of 12

have been actively concealing the facts surrounding John Doe 6s abuse for years. The central issue in this case is the ongoing harm that John Doe 6 suffers as a result of Defendants conduct. His harm is continuous. There is no good cause offered by Defendants supporting the notion that he does not deserve his day in court. It would be perverse if plaintiffs who claim to be victims of criminal activity were to receive slower justice than other plaintiffs because the behavior they allege is sufficiently egregious to have attracted the attention of criminal authorities. Sterling National Bank v. A-1 Hotels Intl, Inc., 175 F. Supp. 2d 573, 575 (2d Cir. 2001). This factor weighs against a stay. 2. Burden imposed on Defendants Defendants are not confronted with the

The burden imposed on Defendants is minimal.

necessity of developing a defense to complex criminal charges. Id. As noted supra, neither PSU nor Second Mile have been charged with a crime. There is no possibility of substantial penalties in a criminal action. Id. Penn State has been punished by its governing body (the National Collegiate Athletic Association) and agreed to pay a quasi-criminal finepayment of $60 million and other athletic program penalties. Defendants have ample resources to devote to discovery in this case. Responding Defendants are in a better position to timely answer Plaintiffs Complaint and proceed with discovery than most defendants the onset of a lawsuit. Responding Defendants have been aware of these allegations since the 1970s. Defendants and their counsel-the same counsel seeking to stay this matter-presumably investigated the facts and legal issues alleged by Plaintiff years ago. Defendants enter this suit with an uncommon mastery of the facts and legal issues in dispute and have demonstrated the ability to dedicate tremendous time and resources. In fact, at least one of the responding Defendants, PSU, hired independent outside counsel, former FBI chief Louis Freeh, to investigate this matter, resulting in a lengthy and public document detailing his results.

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 9 of 12

PSU has claimed that other civil actions pending in other jurisdictions have been stayed because of the pending criminal trial. PSU has failed to note the decision of Judge Gavin in the Dauphin County Court of Common Pleas. The decision involved a suit by former assistant coach McQueary, and the court reportedly rejected a stay. (See attached order, Exhibit 2) Defendants should not be heard to argue that materials unearthed during civil discovery may inure to the benefit of the Government in the prosecution of the criminal action and therefore warrant a stay. Courts have dismissed this rationale, noting that while any action which delays discovery in the civil case might have the incidental effect of limiting the Governments fortuitous access to information arguably relevant in the criminal case, this is not a factor which should or will influence the decision whether to grant a stay. See also DeVita v. Sills, 422 F.2d 1172-81 (3d Cir. 1970.) Indeed, this factor also weighs against a stay. 3. Convenience of the court At issue is the courts responsibility to control the disposition of the cases on its docket with the economy of time and effort. It is Defendants clear intention to allow this case to languish on the courts docket indefinitely. The pending state criminal case is at a relatively early stage. PSU does not suggest (nor can they accurately predict) how long a stay may last. The criminal proceedings have the potential to continue, either in the trial court or on appeal, for years. The preliminary hearing in the pending criminal cases has itself been stayed or delayed pending resolution of pre-trial motions filed by the criminal defendants. Those motions, particularly one involving whether former PSU counsel should be permitted to testify for the Commonwealth, could very well end up in the appellate courts, given the nature of the allegations and the significance of the issues subject to the motions. Plaintiff, then, would be subjected to a further delay.

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 10 of 12

Moreover, PSU seeks a stay not only until the criminal trials are over, but until the criminal investigations are completed. Even less certain is the amount of time that a criminal investigation of this magnitude can last. The court in Arden Way Associates v. Boesky, 660 F. Supp. 1494, Fed. Sec. L. Rep. (CCH) P 93261 (S.D. N.Y. 1987), refused to stay a civil fraud action despite the defendant's co-operation agreement with the government, arising out of a parallel criminal case, which allegedly precluded him from disclosing matters that were the subjects of ongoing investigation. The plaintiffs alleged that the defendant fraudulently sold them limited partnership interests. Meanwhile, the defendant had been criminally investigated for the same wrongdoing, pleaded guilty, and was scheduled for sentencing. In addition, he co-operated with the government and claimed he had entered into a confidentiality agreement with the government which precluded him from answering the factual allegations of the plaintiffs' civil complaint. He stated that the credit he hoped to receive for his co-operation, as well as the extent of his sentence on the criminal charges, could be adversely affected by disclosure information through discovery. Hence, he moved to stay the claims against him. Further, the defendant stated that if he was not relieved from the obligation to answer the complaint, he would invoke his Fifth Amendment privilege. The court acknowledged that a policy of issuing a stay solely because a litigant was defending simultaneous multiple suits would threaten to become a constant source of delay and an interference with judicial administration. Thus, absent a showing of undue prejudice upon the defendant or interference with his constitutional rights, the court found no reason why the plaintiffs should be delayed in their efforts to diligently proceed to sustain their claims. The court commented that the plaintiffs had a substantial interest in the efficient conduct of the complex civil litigation. Stalling the case for a defendant who had ample means to protect himself otherwise, or fragmenting the defendant's participation would be counterproductive and prejudicial to the plaintiffs, especially where there were so

10

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 11 of 12

many claimants to the potentially limited funds for satisfaction of the potential damages in this and related litigation in which the defendant was involved. Finally, the court was not receptive to deferral of the defendant's answer on the ground that he preferred the option of including unprivileged confidential information in his answer without being faced with a decision of whether to compromise his cooperation agreement. Hence, the court denied the defendant's motions for a stay. PSU, despite bearing the burden as the moving party, has failed to show that it would suffer undue prejudice or that its constitutional rights would be infringed upon if discovery proceeded in this matter. Moreover, PSU has failed to demonstrate any manner in which proceeding with discovery would be inconvenient to this Court. Balancing this factor with the rest, this Court should deny Defendants request for a stay. 4. Interests of Persons Not Related to Civil Litigation More than thirty young men have come forward and revealed that they were victims of sexual abuse committed by and consented to by Defendants. Akin to John Doe 6, their lives have been destroyed because of Sanduskys atrocities, and the institutional Defendants gross and reckless attempts to secret his activities. John Doe 6, the other victims that have come forward, and the victims that have not come forward, have had their lives destroyed. Each of these victims, in addition to the untold thousands of victims of sexual abuse, has a keen interest in having this case proceed thru discovery toward trial. Defendants actions have created a personal tragedy in the life of John Doe 6, and on a larger scale, impacted an entire network of abuse victims. It is time for this matter to move forward to allow the healing process to begin. Undoubtedly, this factor weighs in favor of moving forward and denying Defendants request. 5. Effect of Stay on Public Interest

11

Case 2:13-cv-00336-AB Document 22 Filed 03/01/13 Page 12 of 12

The public has an interest in the prompt disposition of civil litigation, an interest that has been enacted into positive law via the Civil Justice Reform Act of 1990. See 28 USC 471-82. A stay quite obviously will impair that interest. The public interest in this matter has been unprecedented and well documented. It is beyond cavil that the public interest lies squarely with seeing PSU, Second Mile, and Gerald Sandusky be held civilly liable for their roles in the sexual abuse of young boys. This factor also weighs in Plaintiffs favor. 2 For all of the reasons set forth herein, therefore, Plaintiff John Doe 6 respectfully requests that this Court deny the motion of The Pennsylvania State University for a stay in this action. ORAL HEARING REQUESTED Dated this 1st day of March, 2013

By:

_________/s/__________________ Howard Alan Janet, Esquire (Admitted Pro Hac Vice) Kenneth M. Suggs, Esquire (Admitted Pro Hac Vice) Brian Ketterer, Esquire ( Bar # 88898) Hal Kleinman, Esquire (Bar # 92702) Jason B. Penn, Esquire (Admitted Pro Hac Vice) JANET, JENNER & SUGGS, LLC 1777 Reisterstown Road Suite 165 Baltimore, MD 21208 (410) 653-3200 (410) 653-6903 (fax) Attorneys for Plaintiffs

In the weighing of the factors, even when there are factors that weigh in favor of a stay, Courts have held that the correct course of action is to proceed with the part of the civil case which would be neither duplicative of, nor intrusive with respect to, the criminal case. See generally, Id.

12

Anda mungkin juga menyukai