United States District Court, D. New Jersey
MEMORANDUM OPINION & ORDER
MCNULTY, UNITED STATES DISTRICT JUDGE
Michael McSwain seeks to dissolve the current stay of this
litigation so that he may further pursue a motion to dismiss.
Plaintiff Sergei Aleynikov asks that the stay remain in place
while he pursues further post-trial motions in connection
with his criminal conviction in New York.
15, 2016, I entered an Order (ECF no. 38) and Opinion (ECF
no. 39) granting the motion to dismiss Counts 1 through 5 and
part of Count 10, and staying litigation of the remaining
counts "pending resolution of the appeal in state
court." On September 22, 2016, I filed an Opinion (ECF
no. 52) and Order (ECF no. 53) clarifying that the pending
motion to dismiss was administratively terminated without
prejudice to reassertion of all issues therein, including
qualified immunity, after the lifting of the stay.
January 24, 2017, the New York Appellate Division reversed
the trial judge's order of dismissal (i.e., restored the
conviction). (ECF no. 55-1) Counsel for Aleynikov expressed
an intention to pursue the appeal further. The Hon. Michael
A. Hammer, U.S.M.J., continued the stay "until further
order of the Court." (ECF no. 56)
York Court of Appeals granted leave to appeal from the
Appellate Division's decision. On May 3, 2018, it
affirmed the Appellate Division's decision. People v.
Aleynikov, No. 47, N.E.3d, 2018 WL 2048707 (May 3,
2018). Its opinion construed a New York criminal statute to
encompass the acts charged and proven at trial.
matter comes before the Court on the letter application of
defendant Michael McSwain (ECF no. 57) to dissolve the stay.
The reason for the stay, he urges, no longer exists;
Aleynikov's challenge to his conviction has been rejected
by the State's highest court. That means, says McSwain,
that there must have been probable cause for the prosecution
and that Aleynikov cannot satisfy the "favorable
termination" element of a malicious prosecution claim.
Because qualified immunity issues should be decided at the
earliest possible stage of the litigation, he says, the time
to litigate his motion to dismiss is now.
opposition (ECF no. 58), Aleynikov of course acknowledges the
Court of Appeals' decision. He states, however, that he
intends to bring challenges to his conviction aside from the
statutory-interpretation issue decided on appeal. In
particular, he will now move in the trial court to set aside
the verdict based on claims of resjudicata and an
alleged defect in the jury instructions in light of the Court
of Appeals' now-definitive statement of the law. Thus, he
says, the stay should remain in place.
persuaded that the stay should continue. It is true, as
McSwain says, that qualified immunity issues should be
resolved "at the earliest possible stage in
litigation." Wood v. Moss, 134 S.Ct. 2056, 2065
n.4 (2014) (citations omitted). On that score, however, I
reiterate the analysis in my earlier Opinion (ECF no. 52);
also true that qualified immunity should be addressed early.
That is not, however, a rigid rule that robs the court of
discretion to enter a stay in an appropriate case. Rather, it
is a more flexible command that defendants entitled to
qualified immunity should not be subjected to the burdens of
Because qualified immunity bestows immunity from suit, the
Supreme Court "repeatedly ha[s] stressed the importance
of resolving immunity questions at the earliest possible
stage in litigation." Hunter v. Bryant, 502
U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). The
Supreme Court has admonished that "[u]ntil this
threshold immunity question is resolved, discovery should not
be allowed." [quoting Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S.Ct. 2727 (1982)].
Thomas v. Indep. Twp., 463 F.3d 285, 291 (3d Cir.
2006). See also Mitchell v. Forsyth, 472 U.S. 511,
526, 105 S.Ct. 2806 (1985).
practicable to address qualified immunity as to Counts 1-4,
and I did so. It was not practicable to address qualified
immunity as to Counts 5-10, and I therefore stayed them. In
doing so, I honored the principle that the case should not
move forward to discovery or the merits before qualified
immunity has been considered.
as McSwain says, considerable time has passed, we are still
at the same "stage in litigation, " and
"discovery [has not been] allowed." See Thomas,
supra, quoting Hunter, supra. The stay has
frozen the case at the motion to dismiss stage. McSwain has
not been subjected to the burden of litigation or even of
responding to discovery. And indeed, he has little to
complain of. Although he initially opposed the stay, while it
has been pending his litigation position has only improved.
of "finality" aside, my earlier opinions noted the
reversals of fortune in the criminal case. To deny a stay
would have created precisely the risk of inconsistent
determinations that is the rationale for the
favorable-termination requirement itself. Cf. Heck v.
Humphrey,512 U.S. 477, 484, 114 S.Ct. 2364 (1994). In
short, the situation was in flux, and I wished to avoid a
provisional ruling that would be undercut by later
developments. See Linnen v. Armainis,991 F.2d 1102,
1107 (3d Cir. 1993) (staying civil case pending outcome of
appeal from denial of PCR based on ineffective assistance of
counsel, noting a "preference for holding federal civil
rights claims in abeyance until state appellate proceedings
that may affect the outcome of the federal action are
decided"). See also Herrera u. City of ...