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Cress v. City of Ventnor

March 18, 2009


The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge

[Doc. No. 42]


This matter is before the Court on the "Motion for Administrative Stay" [Doc. No. 42] filed by Robert P. Merenich, Esquire, counsel for Defendants Egg Harbor Township, Police Officer James Donaldson, Egg Harbor Sergeant Joseph Bonsall and Egg Harbor Lieutenant James Wood. The motion is joined in by the Margate Defendants [Doc. No. 44], the Ventnor Defendants [Doc. No. 47], and Defendant Sean Clancey [Doc. No. 49]. The Court has conducted oral argument on Defendants' motion. Defendants seek a stay of all proceedings in the case pending the completion of Plaintiff Daniel Lombardi's criminal trial. Plaintiffs Lisa Cress, on behalf of herself and her two minor children, and Daniel Lombardi oppose Defendants' Motion [Doc. No. 43]. For the reasons set forth below, Defendants' Motion is DENIED.


Plaintiffs allege, inter alia, that Defendants violated their Fourth, Eighth and Fourteenth Amendment rights. Plaintiffs contend that on March 15, 2008, Defendants used excessive force while executing a "no knock" warrant when they detonated three "flash-bang" or concussion grenades in Plaintiffs' home. (Second Amended Complaint [Doc. No. 31] at ¶¶ 1-2.) Plaintiffs also allege Defendants punched, kicked, and shoved Lombardi's head in broken glass while he was handcuffed, struck Cress in the face with a blunt object, shoved her down a flight of stairs and held minors K.C. and C.C. without allowing them to see their mother. (Id. ¶¶ 4-5.) Subsequently, Lombardi was charged with resisting arrest based on the March 15, 2008 incident. According to the criminal complaint filed against him, Lombardi used or threatened to use physical force or violence against Defendant Donaldson, refused to comply with Donaldson's commands, and laid on the floor with his hands under his body and resisted attempts to be handcuffed. (Def. Opp. Br. [Doc. No. 42-4] at Exhibit B.) According to a letter recently received from defense counsel, Lombardi's criminal trial on the resisting arrest charge was scheduled to begin on February 20, 2009, however, it has been postponed and no rescheduled date has been set. (Doc. Nos. 52 and 53.)

Defendants argue that a stay of this civil case is required because Lombardi's "anticipated conviction may be impugned by a discordant civil ruling." (Def. Rep. Br. [Doc. No. 48] at 2.) According to Defendants, a finding that Lombardi was falsely arrested in the civil proceeding would impugn a possible criminal conviction of resisting arrest. Defendants also argue there will likely be rulings in the criminal proceeding that will relate to Lombardi's excessive force claim. In addition, Defendants argue this case should be stayed until after the criminal trial is completed to avoid any decisions that would be inconsistent with the outcome of the criminal case. (Id. at 3.) Defendants also argue that, without a stay, Lombardi could take advantage of the liberal civil discovery rules to advance his defense in his criminal case where discovery is more limited. (Id. at 2.)

Plaintiff opposes a stay arguing that Lombardi is not asserting a false arrest claim, rather an excessive force claim. Plaintiffs argue that Lombardi's potential conviction for resisting arrest will not be impugned by a finding for Lombardi on his excessive force claim in this civil case.


The stay of a civil proceeding is an extraordinary remedy. Walsh Securities, Inc. v. Cristo Property Management, Ltd., 7 F. Supp. 2d 523, 526 (D.N.J. 1998). However, a court has the discretion to stay a case if the interests of justice so require. U.S. v. Kordel, 397 U.S. 1, 12 n. 27 (1970). A stay of a civil case where there are pending criminal proceedings is not constitutionally required but may be warranted in certain circumstances. Id.; see also Warner v. Kozub, Civil No. 05-2871 (JBS), 2007 WL 162766, at *3 (D.N.J. January 18, 2007) (staying the case pending the outcome of the pro se plaintiff's criminal prosecution following plaintiff's invocation of his Fifth Amendment rights throughout discovery). The factors to be considered in deciding whether to grant a stay are:

1) the extent to which the issues in the criminal and civil cases overlap; 2) the status of the case, including whether the defendants have been indicted; 3) the plaintiff's interests in proceeding expeditiously weighed against the prejudice to plaintiff caused by a delay; 4) the private interests of and burden on defendants; 5) the interests of the court; and 6) the public interest.

Walsh Securities, 7 F. Supp. 2d at 527.

Under the first Walsh Securities factor, the court must examine the extent to which the issues in the criminal and civil proceedings overlap. Id. In this case, the issues in Lombardi's civil and criminal cases overlap in some but not all aspects. The criminal charge against Lombardi for resisting arrest arises out of the same March 15, 2008 incident which forms the basis of Plaintiffs' Complaint. However, Plaintiffs' claims are much broader than just the arrest of Lombardi. Plaintiffs allege Defendants used excessive force against all four Plaintiffs, not just Lombardi. Thus, although not conclusive, the first Walsh Securities factor weighs in favor of Plaintiffs. A court is less likely to grant a stay if the issues in parallel civil and criminal proceedings do not completely overlap.

According to the court in Walsh Securities, "the strongest case for a stay of discovery in the civil case" is if a criminal indictment has been returned. Id. The return of an indictment is important because the potential for self-incrimination is greatest while the potential harm of delay to civil litigants is reduced due to the promise of a speedy trial. Id. Thus, a court will generally stay a civil proceeding when an indictment has been returned against the proponent of a stay. See In re Par Pharmaceutical, Inc., 133 F.R.D. 12, 13 (S.D.N.Y.1990). No indictment has been returned against Lombardi, although the City of Ventnor issued a criminal complaint against him that has been transferred to Buena Vista to be heard. Unlike when an indictment has been returned, here there is less certainty that Lombardi's criminal trial will begin shortly. Thus, a stay would be indefinite, prejudicing Plaintiffs. Additionally, in the typical case the criminal defendant moves for a stay to protect his Fifth Amendment rights. But here, the criminal defendant, Lombardi, is willing to forgo that right. Because in this instance it is the Defendants who moved for a stay and a stay would be indefinite, the second Walsh Securities factor weighs in Plaintiff's favor.*fn1

As to the third Walsh Securities factor, Lombardi clearly has an interest in the expeditious resolution of his civil action. Additionally, Lombardi is not the only plaintiff in the case. Cress and her two minor children also have an interest in the timely resolution of the case. Clearly they would be prejudiced if the action is indefinitely stayed pending ...

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