IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SARAH FORD and BLAIR YOUNG,
guardians ad litem for J.Y., a minor, and
SARAH FORD and BLAIR YOUNG,
Individually, C.A. No. K21C-02-005 NEP
Plaintiffs,
V.
TELAMON CORPORATION, a foreign
Corporation, and TIMOTHY MCCRARY,
an individual,
Se a ea ae ae ae ee ee eee
Defendants.
SHAWNTIA MCLEISH, guardian ad litem
for L.F., a minor, and SHAWNTIA
MCLEISH, individually, C.A. No. K21C-02-010 NEP
Plaintiffs,
TELAMON CORPORATION, a foreign
Corporation, and TIMOTHY MCCRARY,
an individual,
)
)
)
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Vv. )
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Defendants. )
Submitted: May 26, 2021
Decided: June 17, 2021
Upon the Motion of Defendant Timothy McCrary to Stay Civil Proceedings
GRANTED in part and DENIED in part
Before the Court is a Motion to Stay Civil Proceedings (the ““Motion”) filed
by Defendant Timothy McCrary (“McCrary”) in the above-captioned matters.!
McCrary seeks to stay those civil proceedings until the resolution of his related
criminal matter. Plaintiffs have filed responses opposing the Motion or, in the
alternative, asking for a partial stay. Having considered the written submissions of
the parties, the Court finds that the Motion should be GRANTED in part and
DENIED in part for the reasons that follow:
1. In February 2021, Plaintiffs initiated the instant civil actions.” Plaintiffs
allege that McCrary caused them personal injuries and damages resulting from
criminal conduct of a sexual nature. McCrary has not filed an answer, or a motion
pursuant to Superior Court Civil Rule 12(b), in response to either complaint.
2. Prior to the filing of the complaints, McCrary was charged with
criminal offenses mirroring the allegations contained in Plaintiffs’ civil complaints.
McCrary’s criminal trial was previously scheduled to commence on June 1, 2021,
but it is now scheduled to begin on August 16, 2021.
3. McCrary filed the present Motion asking the Court to stay the civil
lawsuits pending resolution of the criminal matter. In support of his Motion, he
contends that staying the civil matters would foster judicial economy because it
would reduce the number of occasions this Court would need to address scheduling
issues and discovery disputes. McCrary also contends that a stay is appropriate
because, if he is subject to discovery, he intends to assert his Fifth Amendment right
against self-incrimination. He argues that a stay of the civil cases would allow for a
more substantive and meaningful discovery process once the criminal matter has
resolved.
' While Defendant Telamon Corporation (“Telamon”) has filed no submissions in support of the
Motion, Telamon’s counsel did indicate that Telamon supported the Motion at a hearing held on
April 14, 2021, on Plaintiffs’ motion to consolidate.
* By order of the Court dated April 14, 2021, the cases were consolidated for purposes of discovery
only.
4. Plaintiffs oppose the Motion, arguing that the Fifth Amendment does
not apply to all statements made by McCrary. Furthermore, Plaintiffs assert that
they will be prejudiced by a complete stay because memories fade as time goes on,
which could result in the loss of evidence. Plaintiffs suggest that a partial stay to
permit the civil cases to proceed generally, but that prevents Plaintiffs from taking
discovery directly from McCrary until the conclusion of his criminal case, would be
a way to alleviate McCrary’s concerns of having to subject himself to questions that
would require him to raise a Fifth Amendment challenge, and would at least permit
the civil cases to move forward by allowing discovery to be taken from Telamon.
5. Delaware law provides that this Court has the inherent authority to stay
proceedings to control its docket—this requires the Court to balance the competing
interests and find that the interests weigh in favor of a stay.> In addition to
considering the cases on its docket, the Court must consider the “economy of time
and effort for itself, for counsel, and for litigants.” “The Court may grant a stay
where forwarding a proceeding would threaten the constitutional rights of any
”> However, “[t]he moving party has the burden of showing how that party’s
party.
constitutional rights will be violated.
6. In A. Schulman, Inc. v. Citadel Plastic Holdings, LLC,’ the Court of
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Chancery adopted a test to be used in determining whether a civil case should be
stayed pending resolution of a corresponding criminal matter.’ While not binding
on this Court, that test is helpful in analyzing the current Motion. The test calls for
> Ins. Co. of N. Am. V. Steigler, 300 A.2d 16, 18 (Del. Super. Dec. 13, 1972), aff'd, 306 A.2d 742
(Del. 1973); State v. Spicer, 1999 WL 463548, at *3 (Del. Super. Mar. 31, 1999).
* Steigler, 300 A.2d at 18 (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)).
> Estate of Bennett v. Tice, 2014 WL 997142, at *1 (Del. Super. Mar. 13, 2014).
6 Id.
72017 WL 5035497 (Del. Ch. Nov. 2, 2017).
8 As the Schulman court noted, that test had previously been adopted by the federal courts,
including the United States Court of Appeals for the Third Circuit. /d. at *2 (citing Texaco, Inc.
v. Borda, 383 F.2d 607, 608 (3d. Cir. 1967)).
a court to analyze two overarching considerations: (1) “the status of the criminal
case, including whether the defendant[] [has] been indicted,” and (2) “the extent to
which the issues in the criminal and civil cases overlap.””
7. Keeping these overarching factors in mind, the court then considers the
following five additional factors:
(1) the interest of the plaintiff in proceeding expeditiously with [its]
case and any potential prejudice it may suffer from any delay; (2) the
burden upon the defendants from going forward with any aspects of the
proceedings, in particular any prejudice to their rights; (3) the
convenience of the court and the efficient management of judicial
resources; (4) the interests of any non-parties; and (5) the interest of the
public in the pending civil and criminal litigation.'°
8. In balancing the competing interests, and employing the elements of the
Schulman test, the Court finds that a partial stay along the lines proposed by
Plaintiffs would be appropriate.
9. The first two factors of the Schulman test—the status of the criminal
case and the extent to which the issues in the criminal and civil cases overlap—argue
in favor of at least a partial stay. The criminal case is in an advanced stage, i.e., post-
indictment and less than two months short of trial. Moreover, the criminal and civil
cases involve the same individuals and arose from the same instances of alleged
sexual misconduct. Accordingly, there is at least some danger that the criminal case
could be prejudiced by, e.g., “expanding the scope of criminal discovery” and
“exposing the basis of the [criminal] defense to the prosecution in advance of trial,””!!
particularly if McCrary were subjected to direct discovery in the civil cases.
10. The other five Schulman factors weigh in favor of a partial, but not a
complete, stay. First, Plaintiffs have an interest in proceeding expeditiously with
their civil cases and may suffer prejudice if evidence becomes stale or unavailable
” Id. (quoting In re Herley Indus. Inc. Sec. Litig., 2007 WL 1120246, at *1 (E.D. Pa. 2007)).
'° Id. (quoting Herley, 2007 WL 1120246, at *2).
'! Id. (quoting Herley, 2007 WL 1120246, at *1).
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while the criminal case is pending, particularly if McCrary’s criminal trial is
continued further or if the criminal case is extended beyond the trial by an appeal or
by post-trial motion practice. Second, moving forward with the civil cases would
not prejudice McCrary, particularly if no discovery is directed to him. Third, a
partial stay will serve judicial economy, as it will allow the parties to begin the
discovery process while limiting or pre-empting potential discovery disputes related
to McCrary’s invocation of his Fifth Amendment right against self-incrimination.
Fourth, the Court knows of no non-parties whose interests would be threatened by a
partial stay. Fifth, the public has an interest in resolving the civil litigation as
expeditiously as possible while protecting McCrary’s constitutional rights.
Il. Finally, the Court notes that the Schulman court itself, in setting forth
the above factors, acknowledged that “a total stay of a civil case is an ‘extraordinary
remedy.’”!?
WHEREFORE, Defendant’s Motion to Stay Civil Proceedings is
GRANTED in part and DENIED in part. Plaintiffs may not seek discovery from
McCrary until the criminal matter has been resolved. Plaintiffs may seek discovery
from Telamon. In addition, McCrary will not be required to file an answer or
otherwise respond to the civil complaints until the criminal matter is resolved.
However, should the criminal matter remain unresolved as of October 1, 2021, due,
e.g., to a further continuance of the criminal trial, post-trial motions, an appeal, or a
mistrial, Plaintiffs may seek relief from the partial stay. Finally, the parties are
required to file joint status reports regarding the civil cases by no later than October
15, 2021.
IT IS SO ORDERED.
/s/ Noel Eason Primos
Judge
'2 Id. (quoting Walsh Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F.Supp. 2d 523, 526 (D.N.J. 1998)).
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