The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:21-cv-455-MOC-DCK
XYAVIER CALLISTE, )
)
Plaintiff, )
)
vs. ) ORDER
)
CITY OF CHARLOTTE, et al., )
)
Defendants. )
___________________________________ )
THIS MATTER is before the Court on Defendant City of Charlotte’s motion to stay.
(Doc. No. 58). Plaintiff opposes Defendant’s motion. (Doc. No. 59). The Court will, in its
discretion, grant Defendant’s motion to stay in the interest of judicial economy.
I. Background
Officer Xeng Lor, of the Charlotte-Mecklenburg Police Department (“CMPD”), was
acting under color of state law when he shot Plaintiff Xyavier Calliste at Charlotte-Douglas
International Airport on July 31, 2018. Plaintiff sued Officer Lor, Officer David Osorio (the
CMPD officer who interrogated Plaintiff after the shooting), and the City of Charlotte.
Defendants Lor, Osorio, and the City of Charlotte filed motions for summary judgment in
January 2023. The Court denied Officer Lor’s motion, granted the City of Charlotte’s motion in
part, and granted Officer Osorio’s motion in full. Defendant Lor appealed this Court’s denial of
his summary judgment motion. That appeal remains pending before the Fourth Circuit. This
matter’s trial is currently set for April 15, 2024.
Plaintiff’s only surviving claim against the City of Charlotte is for negligence per se. See
N.C. Gen. Stat. § 15A-401. Plaintiff’s negligence claim against the City is related to Plaintiff’s
remaining claims against Defendant Lor, because Plaintiff’s claim against the City effectively
operates as a claim against Defendant Lor in his official capacity. See Franklin v. City of
Charlotte, 64 F.4th 519, 538 n.3 (quoting Thompson v. Town of Dallas, 142 32 N.C. App. 651
(2001)). Ordinarily, Charlotte would be insulated from Plaintiff’s official capacity claim by
governmental immunity. Here, however, Charlotte has waived governmental immunity. See N.C.
Gen. Stat. § 160A-485.5.
Officer Lor’s public official immunity could shield the City of Charlotte from Plaintiff’s
negligence claim. But see Thompson v. Town of Dallas, 142 N.C. App. 651, 543 S.E.2d 901,
905 (N.C. Ct. App. 2001). But public official immunity is unavailable “to officers who violate
clearly established rights.” Bailey v. Kennedy, 349 F.3d 731, 742 (4th Cir. 2003). Consequently,
where an officer is not entitled to qualified immunity from a claim against them in their personal
capacity, the officer is likewise not entitled to public official immunity from a claim against them
in their official capacity. Thomas v. Holly, 533 Fed. App'x 208, 223 (4th Cir. 2013)
(unpublished) (citing Bailey, 349 F.3d at 745).1 This Court denied the City of Charlotte’s
summary judgment motion based on its finding that Defendant Lor had violated a clearly
established right, was thus not insulated by qualified immunity, and a fortiori not entitled to
public official immunity. If the Fourth Circuit reverses this Court’s findings with respect to
qualified immunity, this Court may need to revisit its public official immunity analysis. Even
then, however, it is hardly settled that Defendant Lor’s public official immunity would shield the
City of Charlotte against Plaintiff’s negligence claim.
1 In fact, to overcome qualified immunity a “plaintiff must establish an even greater degree of
excessive force than that required” to overcome public official immunity. Lee v. Town of
Seaboard, 863 F.3d 323, 328 (4th Cir. 2017) (quoting Fowler v. Valencourt, 108 N.C. App. 106,
115 (1992) rev'd in part on other grounds, 334 N.C. 18 345 (1993)); see also Myrick v. Cooley,
91 N.C. App 209, 215 (1988).
II. Legal Standard
"[T]he 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." Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Facing a motion to
stay, lower courts consider several factors: the applicant’s likelihood of success on the merits;
the possibility of irreparable injury; and the public interest. Hilton v. Braunskill, 481 U.S. 770,
776 (1987). “[S]ince the traditional stay factors contemplate individualized judgments in each
case, the formula cannot be reduced to a set of rigid rules.” Id. at 777.
Defendant casts Plaintiff’s opposition to stay as a request for bifurcation of claims. (Doc.
No. 60). While generally disfavored, Toler v. Gov't Emps. Ins. Co., 309 F.R.D. 223, 225 (S.D.W.
Va. 2015) (internal citation omitted), bifurcation is justified where separate trials would avoid
prejudice, promote judicial economy, and not unfairly prejudice the non-moving party. F and G
Scrolling Mouse, LLC v. IBM Corp., 190 F.R.D. 385, 387 (M.D.N.C. 1999). Like entering a
stay, bifurcating claims is within the Court’s discretion. Bowie v. Sorrell, 209 F.2d 49, 51 (4th
Cir. 1953); Fed. R. Civ. P. 42(b).
III. Analysis
Plaintiff argues that Defendant’s motion to stay “should be denied as contrary to law.”
(Doc. No. 59 at 1). But Plaintiff also recognizes—perplexingly—that the Court has discretion to
stay this matter. (Id. at 4–5) (citing Landis, 299 U.S. at 254). Plaintiff’s latter position is correct.
On these facts, most of the Hilton factors are neutral. First, neither party offers
convincing evidence that granting or denying a stay will cause irreparable harm. Plaintiff’s
“unnecessary delay in preparing trial exhibits, drafting stipulations of facts, and filing witness
lists,” is barely a harm, never mind irreparable. See (Doc. No. 59 at 9). Charlotte’s contention
that “[p]roviding staff for two trials stemming from the same incident he [sic] irreparably injure
[sic] the City” is even less compelling. See (Doc. No. 60 at 2). Of course, Defendant Lor might
suffer clear harm absent stay, which could favor granting the City’s motion. But if Defendant
Lor were concerned about that harm, he would have moved for stay himself.
Second, the City of Charlotte has not appealed this Court’s order denying summary
judgment, so the “likelihood of success on the merits” factor is largely irrelevant. While
Defendant Lor’s success on appeal would have some bearing on Charlotte’s negligence defense,
it would not be dispositive. Even if Lor wins, Charlotte can still lose.
The final Hilton factor—the public interest—ultimately justifies a stay. Plaintiff's claims
against Defendants Lor and the City of Charlotte arise from a common nucleus of operative fact.
Bifurcating Plaintiff's proceedings against Officer Lor and the City would waste public resources
and frustrate judicial economy.
ORDER
IT IS, THEREFORE, ORDERED that Defendant City of Charlotte’s motion to stay
(Doc. No. 58) is GRANTED. This matter is STAYED pending resolution of Defendant Lor’s
appeal by the Fourth Circuit.
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Max O. Cogburn i yg
United States District Judge Tt gg