Opinion

Breaud v. Cantrell

Court
District Court, E.D. Louisiana
Filed
Oct 16, 2024
Cited by
0 cases
Authority
More cited than 31.4%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ANNE W. BREAUD CIVIL ACTION

VERSUS NO. 24-1865

LATOYA W. CANTRELL, et al. SECTION: “G”(5)

ORDER AND REASONS

Before the Court is Defendants’ Motion to Stay Proceedings.1 In this litigation, Plaintiff

Anne Breaud (“Breaud”) sues Defendants Latoya W. Cantrell, the City of New Orleans, the New

Orleans Police Department, Clifton Davis II, Victor Grant, Leslie D. Guzman, Ryan St. Martin,

and John/Jane Does Numbers 1-5 (“Defendants”) for allegedly violating federal law, state law, and

her civil rights in retaliation for Breaud capturing and circulating two photographs of Mayor

Latoya W. Cantrell (“Cantrell”) and New Orleans Police Officer Jeffrey Vappie (“Vappie”) at a

restaurant together.2 Defendants attempt to stay the proceedings in light of alleged open criminal

and administrative investigations into named Defendants.

This Court is tasked with consideration of six factors when a stay is requested in a civil

case filed in the face of a parallel criminal proceeding.3 Granting a stay is considered an

1 Rec. Doc. 10.

2 See Rec. Doc. 1.

3 Alcala v. Texas Webb Cnty., 625 F. Supp. 2d 391, 398–99 (S.D. Tex. 2009) (collecting cases). The

factors include: (1) the extent to which the issues in the criminal case overlap with those presented

in the civil case; (2) the status of the criminal case, including whether the defendant has been

indicted; (3) the private interests of the plaintiff in proceeding expeditiously, weighed against the

prejudice to the plaintiff caused by a delay; (4) the private interests of and burden on the defendant;

(5) the interests of the courts; and (6) the public interest. Id.

“extraordinary remedy,”4 and this Court possesses wide discretion on the question.5 Primarily

because there exist no indictments, no target letter, and no other official statement regarding any

ongoing investigations of the Defendants, the fact or scope of an imminent criminal proceeding is

merely speculative at this time. This fact coupled with the seriousness of Plaintiff’s allegations

against a sitting public official and public employees, that they allegedly abused their power of

office, conveys that the public and the Court have a strong interest in the resolution of this case.

For the reasons set forth in more detail below, Defendants have failed to convince the Court the

six factors weigh in favor of a stay.

I. Background

On Sunday, April 7, 2024, Breaud observed Cantrell, the Mayor of the City of New

Orleans, “appearing to be enjoying a meal and a bottle of wine” with NOPD Officer Vappie on the

balcony of Tableau Restaurant.6 Breaud claims she captured two photographs of Cantrell and

Vappie on the balcony.7 After taking these pictures, Breaud asserts she forwarded them to Raphael

Goyeneche, the President of the Metropolitan Crime Commission (the “Commission”).8

Thereafter, Breaud alleges the Commission reported the incident and provided the photographs to

Deputy Chief Keith Sanchez of the NOPD’s Public Integrity Bureau, requesting an investigation

of Vappie’s conduct with his protectee, Cantrell.9 Breaud states that at some point shortly after the

4 Trustees of Plumbers and Pipefitters Nat’l Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134,

1338, 1339 (S.D.N.Y. 1995) (citing In re Par Pharm., Inc., 133 F.R.D. 12, 13 (S.D.N.Y. 1990)).

5 In re Ramu Corp., 903 F.2d 312, 318 (5th Cir. 1990).

6 Rec. Doc. 1 at 6.

7 Id.

8 Id. at 7.

9 Id.

Commission’s report to the NOPD Public Integrity Bureau, which occurred on April 12, 2024,

various media outlets published the photographs Breaud captured of Cantrell and Vappie.10 As a

result of the publication of these pictures, Breaud claims her personal information was accessed,

obtained, and provided to Cantrell by certain Defendants somewhere between May 9, 2024 and

May 10, 2024.11 Breaud asserts Cantrell then filed a police report against Breaud, with Cantrell

claiming she was being “harassed” and “followed” by Breaud, as well as claims that Cantrell felt

“unsafe” because of Breaud.12 Cantrell then filed a “Petition for Protection” against Breaud in state

court, which Breaud claims contains defamatory statements.13 The state court issued a Temporary

Restraining Order against Breaud, but ultimately dismissed Cantrell’s Petition for Protection.14

On July 26, 2024, Breaud filed a Complaint against Defendants in this Court for alleged

“violation of her civil rights, the violation of federal law by individuals acting under color of law,

and violations of state law, including defamation, abuse of process, abuse of right, intentional

infliction of emotional distress, malicious prosecution, general tort liability and vicarious

liability…”15 On September 10, 2024, Defendants filed this Motion to Stay Proceedings.16 Breaud

filed an Opposition on September 25, 2024,17 and Defendants filed a Reply on September 27,

10 Id. at 8.

11 Id. at 12.

12 Id. at 9–10.

13 Id. at 2.

14 Id. at 2–3.

15 Rec. Doc. 1 at 1.

16 Rec. Doc. 10.

17 Rec. Doc. 11.

2024.18

II. Parties’ Arguments

A. Defendants’ Arguments in Support of the Motion

Defendants cite a six-factor test in their Memorandum in Support of their Motion to Stay

the Proceedings, alleging the factors weigh in support of a stay.19 Defendants begin with the first

factor, the extent to which the issues in the criminal case and the civil case overlap, contending

this is “considered the most important threshold issue in determining whether to grant a stay.”20

Defendants assert that an alleged federal grand jury investigation currently ongoing is “inextricably

intertwined” with Breaud’s claims and the defenses available to Defendants.21

Defendants submit the actions of Breaud in taking photographs of Cantrell and Vappie are

the same conduct that is included in the indictment of Vappie.22 Defendants argue a relationship

between Vappie and a “Public Official 1,” presumed to be Cantrell, is mentioned in the Vappie

indictment, including details of how this Public Official and Vappie shared meals together at

restaurants.23 Defendants submit this demonstrates the cases are intertwined because Breaud

alleges in her Complaint that the Order of Protection sought against her was obtained for the

ulterior purpose of preventing Breaud from exposing Cantrell and Vappie’s allegedly inappropriate

relationship and criminal conduct for which Vappie has been indicted.24

18 Rec. Doc. 12.

19 Rec. Doc. 10-1.

20 Id. at 6

21 Id.

22 Id.

23 Id. at 7.

24 Id.

Defendants further assert the United States Attorney’s Office for the Eastern District of

Louisiana is currently conducting a wide-ranging investigation into Cantrell for activities that have

occurred during her tenure as Mayor of the City of New Orleans, including those that are related

to Vappie.25 Defendants point out any charges resulting from this investigation could include

witnesses that would be expected to testify in both matters.26 Defendants call attention to the fact

Defendants Gant, Guzman, and St. Martin are currently the subject of an investigation conducted

by the NOPD’s Public Integrity Bureau regarding the same conduct as that alleged in the

Complaint.27 Specifically, Defendants assert, they are under investigation for accessing and

disclosing private information about Breaud in response to Breaud releasing the photographs of

Cantrell and Vappie.28

Defendants then analyze the second factor, which calls for examination of the status of the

criminal case, particularly whether a party has been indicted.29 Despite no criminal charges

pending against any Defendants, Defendants contend the federal grand jury investigation is quite

active.30 Defendants further aver courts have not categorically denied stays in situations where

defendants have not yet been indicted,31 and subjecting Defendants to this civil action would

potentially cause Defendants to expose their criminal defense strategy in the discovery process.32

25 Id. at 7.

26 Id. at 8.

27 Id.

28 Id.

29 Id.

30 Id.

31 Id. (citing Chao v. Fleming, 498 F. Supp. 2d 1034, 1038 (W.D. Mich. 2007)).

32 Id. at 9.

Defendants move on to discuss the third factor, whether Breaud will be unduly prejudiced

by the stay.33 Defendants urge that courts require more prejudice than simply a delay in a plaintiff’s

right to expeditiously pursue their claim.34 They argue a stay could be fashioned so its duration is

tied to the length of the criminal proceeding, leaving Breaud full rights to bring all claims after any

potential criminal proceedings are completed.35

Regarding the fourth factor, the private interests and burden on defendants, Defendants

aver they will face substantial burdens if this civil action proceeds while Defendants are under

investigation.36 Specifically, even though criminal charges have not been filed, Defendants state

Cantrell “will be forced to choose between her civil discovery obligations and her ability to assert

her Fifth Amendment privilege against self-incrimination.”37 Defendants further argue the City of

New Orleans will likely not be able to fulfill its civil discovery obligations without the benefit of

Cantrell, Gant, Guzman, and St. Martin’s testimony if they choose to exercise their Fifth

Amendment rights.38

Next, Defendants address the fifth factor, the Court’s interest in the stay.39 Defendants

reason that conducting the criminal proceedings prior to this civil case would advance judicial

economy since the active investigations may “contribute to the more efficient preparation of this

33 Id.

34 Id. (citing Whitney Nat’l Bank v. Air Ambulance by B&C Flight Mgmt., Inc., 2007 WL 1468417, at *3

(S.D. Tex. Jun. 4, 2007)).

35 Id. at 9.

36 Id. at 10.

37 Id. at 9.

38 Id.

39 Id. at 11.

civil case.”40 Lastly, Defendants argue the sixth factor, which examines the public interest, weighs

in favor of a stay.41 Defendants cite Campbell v. Eastland42 for the proposition that the public has

an interest in law enforcement, leading to the conclusion criminal proceedings should take

precedence over civil matters, the latter of which can be simply be stayed and adjudicated later.43

B. Breaud’s Arguments in Opposition to the Motion

In Opposition,44 Breaud cites the same six factor test. Regarding the first factor, the extent

to which the issues in the criminal case overlap with those in the civil case, Breaud asserts it “is

simply a matter of speculation whether the civil action and pending criminal investigation overlap”

due to the fact no indictments have been handed down.45 In regard to the second factor, which

examines the status of the criminal proceeding, Breaud maintains there is no indication any

investigation is active or that an indictment is imminent, which leads to the conclusion a stay is

not warranted.46 Breaud points to the lack of a target letter from an official source or corroboration

from the U.S. Attorney’s Office that there is an active investigation into Cantrell or any of the

other named Defendants for their alleged actions between May 8-10, 2024.47

Breaud then examines the third factor, Breaud’s interest in the civil action proceeding

40 Id.

41 Id.

42 307 F.2d 478, 487 (5th Cir. 1962).

43 Rec. Doc. 10-1 at 11–12.

44 Rec. Doc. 11.

45 Id. at 7.

46 Id. at 7–8.

47 Id. at 8.

without a stay weighed against the prejudice to Breaud if a stay is granted.48 Breaud argues a stay

could result in “memories of witnesses fad[ing] and documents and other evidence [being] lost or

destroyed.”49 Breaud contends no evidence has presently been seized and preserved by any party

and could be lost if a stay is granted.50 Additionally, Breaud contends courts may insist she

establish more prejudice than simply a delay in pursuing a claim, not that they must.51

In regard to the fourth factor, calling for contemplation of Defendants’ interests and burden

if a stay is not granted, Breaud avers it is “not unconstitutional to force a defendant to choose

between the negative inferences drawn from his silence and his Fifth Amendment privilege.”52

Breaud asserts those claiming prejudice to their Fifth Amendment rights must ‘“make a specific

showing of the harm it will suffer without a stay and why other methods of protecting its interests

are insufficient.’”53 At this point, Breaud contends, there exists no compelling information that

Cantrell or other named Defendants are likely to be forced to make a decision to assert their Fifth

Amendment right or defend themselves in this civil suit.54

Breaud then moves to the fifth factor, the Court’s interest in granting a stay.55 Breaud

admits courts can consider their own interest in the efficiency and judicial economy.56 But Breaud

48 Id. at 8–9.

49 Id. at 8.

50 Id.

51 Id. (citing Whitney Nat’l Bank, 2007 WL 1468417 at *3)

52 Id (citing Baxter v. Palmigiano, 425 U.S. 308, 318 (1975)).

53 Id (citing In re Ramu Corp., 903 F.2d at 320)

54 Id. at 10.

55 Id. 10–11.

56 Id. at 10.

contends the Court is not faced with a situation that would implicate efficiency or judicial economy

because duplicative discovery is not an issue when there exists no parallel criminal proceeding.57

Breaud asserts an investigation, but not a pending criminal proceeding, means there is no current

interest for the Court to postpone this civil proceeding.58

Lastly, Breaud scrutinizes the public interest factor. Breaud argues the public has an interest

in the prompt resolution of civil cases.59 Specific to this case, Breaud argues residents and visitors

of the City of New Orleans “need to know that they can legally exist within the boundaries of New

Orleans without fear of their civil rights being abridged or even outright violated.”60

Breaud then discusses the Public Integrity Bureau (“PIB”) investigation regarding

Guzman, Gant, and St Martin.61 Breaud claims any PIB investigation should not be considered by

this Court when weighing a stay.62 First, Breaud claims the PIB investigation is being conducted

by a third-party firm, Transcendent Law Group (“Transcendent”), which Breaud submits does not

have the power to initiate any criminal proceedings against Defendants Guzman, Gant, or St.

Martin.63 Second, Breaud avers it was the City Attorney Donesia Turner (“Turner”) that chose

Transcendent to perform the investigation and is “by all evidence available” the City of New

Orleans’ primary contact with Transcendent.64 Third, Breaud contends Turner has “directed the

57 Id.

58 Id.

59 Id. at 11.

60 Id. at 12.

61 Id.

62 Id. at 13–14.

63 Id. 13.

64 Id.

manner” in which Transcendent has conducted the PIB investigation into Defendants Guzman,

Gant, and St. Martin.65 And Fourth, Breaud asserts Turner, in her capacity as City Attorney, is

actively defending Defendants in this civil suit.66 In sum, Breaud claims the lead investigator in

the PIB investigation into Defendants Guzman, Gant, and St. Martin is also the lead attorney for

those same individuals in this suit.67 Thus, because Defendants’ attorney is so intertwined with the

alleged PIB investigation of these officers, Breaud concludes the PIB investigation should not be

considered in weighing a stay.68

C. Defendants’ Reply

In Reply,69 Defendants first submit Breaud’s Opposition is untimely considering it was

filed on September 25, 2024, seven days prior to the submission date of October 2, 2024.70

Defendants cite Local Civil Rule 7.5, which states opposing motions must be filed “no later than

eight days before the noticed submission date.”71 Defendants argue Breaud has not made the

required showing of “good cause” to excuse the untimely submission, and thus, Breaud’s

Opposition Memorandum should not be considered.72

Defendants then move on to address the merits of Breaud’s Opposition. Defendants

maintain the investigations, along with any future criminal proceedings, present a real risk of self-

65 Id.

66 Id.

67 Id.

68 Id. at 13–14.

69 Rec. Doc. 12.

70 Id. at 1.

71 Id. at 2.

72 Id. at 3.

incrimination if Defendants are asked to defend themselves and the City of New Orleans in the

instant civil case.73 Defendants reason the City would be unable to fulfill its discovery obligations

or defend itself adequately without the cooperation of the individual Defendants named.74

Defendants then reiterate their contentions as to each of the six factors courts examine in

deciding whether a stay is proper. First, Defendants reurge there is an “intuitive overlap” between

the criminal investigations and the civil action by Breaud.75 Second, Defendants maintain an

indictment is not necessary for the granting of a stay in this situation.76 Third, Defendants reiterate

Breaud will not be prejudiced by a stay because she can bring her claims after the conclusion of

criminal proceedings.77 Fourth, Defendants stand by their argument that Defendants will be

significantly burdened in defending themselves due to Defendants’ anticipated assertion of their

Fifth Amendment rights.78 Fifth, Defendants restate the judicial interest in a stay, claiming the

Court can cut down on discovery costs by allowing the investigations to run their course,

potentially curbing the necessary discovery in this civil matter.79 Sixth, Defendants explain the

public interest is better served by the criminal proceedings taking place first, which will encourage

the public safety and determine if there was any wrongdoing.80

Lastly, Defendants address the PIB investigation. Defendants accuse Breaud of resorting

73 Id.

74 Id. at 3–4.

75 Id. at 4–5.

76 Id.

77 Id. at 6.

78 Id. at 6–7.

79 Id. at 7.

80 Id. at 8.

to “baseless, meritless, ad hominem attacks against the City Attorney [Turner].”81 Defendants

assert there is no basis for Breaud’s implication the investigation is biased or that the City controls

the outcome.82 Defendants further claim the PIB investigation could result in criminal charges if

warranted by the facts.83

III. Legal Standard

“The stay of a pending matter is ordinarily within the trial court’s wide discretion to control

the course of litigation, which includes the authority to control the scope and pace of discovery.”84

This discretion grants district courts with the “power to stay proceedings before it in the control of

its docket and in the interests of justice.”85 While district courts possess broad discretion in this

area, “such control is not unbounded.”86 “Proper use of this authority calls for the exercise of

judgment, which must weigh competing interests and maintain an even balance.”87

The discretion to stay civil proceedings extends to situations in which a civil case is filed

while there is a pending criminal proceeding or the “likelihood of a criminal case” exists.88 In these

contexts, “[c]ourts are afforded this discretion because the denial of a stay could impair a party’s

Fifth Amendment privilege against self-incrimination, extend criminal discovery beyond the limits

81 Id.

82 Id.

83 Id.

84 In re Ramu Corp., 903 F.2d at 318 (citing Matter of Evangeline Refining Co., 890 F.2d 1312, 1320 (5th

Cir. 1989); Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979)).

85 McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982).

86 Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 545 (5th Cir. 1983).

87 Id. (internal quotation marks and citations omitted).

88 Wallace v. Kato, 549 U.S. 384, 394 (2007).

set forth in Federal Rule of Criminal Procedure 16(b), expose the defense’s theory to the

prosecution in advance of trial, or otherwise prejudice the criminal case.”89 But, the “mere

possibility of prejudice” is not enough for a party to obtain a stay, and the party moving for the

stay decidedly bears the burden of establishing it is necessary.90

In this Circuit, courts are tasked with balancing six factors in determining if a stay is

warranted when a civil case is filed while a parallel criminal proceeding is pending.91 These

factors, cited and applied by both parties in their memoranda, include:

(1) the extent to which the issues in the criminal case overlap with those presented

in the civil case; (2) the status of the criminal case, including whether the defendant

has been indicted; (3) the private interests of the plaintiff in proceeding

expeditiously, weighed against the prejudice to the plaintiff caused by a delay; (4)

the private interests of and burden on the defendant; (5) the interests of the courts;

and (6) the public interest.92

Even with the examination of these factors, the stay of a civil action until the conclusion of a

related criminal proceeding is considered an “extraordinary remedy,”93 and there exists a “strong

presumption” in favor of proceeding forward in the civil matter to discovery.94

IV. Analysis

As an initial matter, this Court exercises its discretion to consider Breaud’s Opposition

89 Plumbers and Pipefitters, 886 F. Supp. at 1338 (internal citations omitted).

90 In re Ramu Corp., 903 F.2d at 320; Ruiz v. Estelle, 666 F.2d at 856.

91 Alcala v. Texas Webb Cnty., 625 F. Supp. 2d at 398-99 (collecting cases). As discussed in Alcala, these six

factors were originally articulated by District Judge Denny Chin in Plumbers and Pipefitters, 886 F. Supp. at

1139. These factors are commonly applied by district courts in the Fifth Circuit. See Alcala, 625 F. Supp. 2d

at 398.

92 Alcala, 625 F. Supp. 2d at 398–99 (collecting cases).

93 Plumbers and Pipefitters, 886 F. Supp. 1339 (citing In re Par Pharmacuetical, Inc., 133 F.R.D. 12, 13

(S.D.N.Y. 1990)).

94 Alcala, 625 F. Supp. 2d at 397.

despite it being filed one day late pursuant to Local Rule 7.5. Defendants have not demonstrated

prejudice in the face of the untimely filing, as they were able to file a timely Reply to Breaud’s

Opposition. Thus, this Court will exercise its discretion to consider the Opposition in full. Next,

the Court applies the factors courts in this Circuit consider when deciding whether a stay of civil

proceedings in the face of a parallel criminal proceeding is proper.95

1. Overlap of Issues in the Criminal Proceeding and Civil Case

The first factor this Court examines is the “extent to which the issues in the criminal case

overlap with those presented in the civil case.”96 Some courts have found “’the similarity of issues

in the underlying civil and criminal actions . . . the most important threshold issue in determining

whether to grant the stay.’”97 However, prior to an indictment, courts have reasoned “whether the

issues will even overlap is a mere ‘matter of speculation.’”98 Post-indictment is generally “when

the degree of overlap between a criminal and civil case can most readily be determined.99

In the instant case, no indictments have been handed down pertaining to any Defendants

named in the Complaint.100 While Defendants may be subject to criminal and administrative

investigations,101 with no indictments, the Court possesses little information to gauge the overlap

95 Id. at 398–99.

96 Id. at 398.

97 Waste Management of Louisiana, LLC v. River Birch, Inc., 2012 WL 520660, at *4 (E.D. La. Apr. 19,

2012) (citing Dominguez v. Hartford Fin. Servs. Grp., Inc., 530 F. Supp. 2d 902, 906–07 (S.D. Tex. 2008)).

98 Alcala, 625 F. Supp. 2d at 401 (citing United States ex rel. Shank v. Lewis Enters., Inc., 2006 WL 1064072,

at *4 (S.D. Ill. Apr. 21, 2006); Square D Co. v. Showmen Supplies, Inc., 2007 WL 1430723, at *4 (N.D. Ind.

May 14, 2007)).

99 Id. (citing U.S. ex rel. Gonzalez v. Fresenius Medical Care North America, 571 F. Supp. 2d 758, 762 (W.D.

Tex. 2008)).

100 See Rec. Doc. 1.

101 Cantrell is allegedly the subject of a federal grand jury investigation, while Guzman, Gant, and St. Martin

are allegedly subject to an administrative investigation by the PIB.

between a possible criminal proceeding and the civil case at hand. Further, no target letter or other

documentation of a federal grand jury investigation has been provided to this Court, leaving the

Court a dearth of information on its scope or target and how it may overlap with this civil case.

The only document provided to this Court detailing any of the alleged investigations is a

letter from the President of the Metropolitan Crime Commission, Rafael C. Goyeneche III

(“Goyeneche”), in relation to the PIB investigation.102 The letter requests PIB investigate “Officer

Vappie’s behavior and conduct on the weekend of April 7th,” the same weekend Breaud snapped

the photographs of Cantrell and Vappie.103 However, this letter merely requests an investigation,

it provides no detail on whether the investigation is currently active and what the current target of

an investigation may be.104 Even if we were to assume Goyeneche’s request became the target of

the investigation, the letter suggests that any potential investigation centers around Vappie’s

conduct and his compliance with NOPD procedures and policies, not the actions of Cantrell or any

other named Defendants in this case.105 This letter does not indicate an overlap of issues between

cases, and thus, does not support granting a stay in this civil matter.

2. Status of the Criminal Proceedings

The Court next analyzes the “status of the criminal case, including whether the defendant

has been indicted.”106 In general, a “stay of a civil case is most appropriate where a party to the

102 Rec. Doc. 1 at 38–39.

103 Id. at 38.

104 See id.

105 See id.

106 Alcala, 625 F. Supp. 2d at 399.

civil case has already been indicted for the same conduct . . .”107 Courts typically “decline to

impose a stay where the defendant is under criminal investigation, but has yet to be indicted,”108

and some courts have gone as far as to deny a motion to stay based on “this ground alone.”109

Accordingly, the fact none of the named Defendants in this case have been indicted weighs heavily

in favor of denying the stay.

Defendants rely on Waste Management, where this Court noted a lack of criminal charges

does not “militate against the granting of a stay of discovery.”110 While that is true, in Waste

Management, the fact co-conspirators had been indicted and/or had plead guilty along with an

active criminal investigation convinced this Court that indictments of named Defendants in the

civil case were “imminent,” which was an important factor weighing in favor of a stay.111 Here,

none of the Defendants have been indicted and no alleged co-conspirators were named in the

Complaint; nor are any named Defendants alleged to be unindicted co-conspirators. Defendants

have not demonstrated an indictment is imminent or even what the investigations target. By

Cantrell’s own admission, she has been under countless investigations since her time as a city

council member and later as mayor.112 None of these investigations have resulted in an indictment,

and Cantrell has provided no evidence that one is imminent related to conduct at issue in this civil

107 Plumbers and Pipefitters, 886 F. Supp. at 1139.

108 Alcala, 625 F. Supp. 2d at 401.

109 Citibank, N.A. v. Hakim, 1993 WL 481335, at *1 (S.D.N.Y. Nov. 18, 1993).

110 Waste Management of Louisiana, 2012 WL 520660 at *4 (internal citations and quotations omitted).

111 Id.

112 Rec. Doc. 11 at 6. Plaintiff cites one of Cantrell’s press conferences, see Lindsay Kornick, New Orleans

Mayor Suggests Investigations Against Her Driven by Race: “Prevalent Relative to Black Leadership”, FOX

NEWS, https://www.foxnews.com/media/new-orleans-mayor-suggests-investigations-against-driven-race-

prevalent-relative-black-leadership (Nov. 23, 2023).

case.

As of July 19, 2024, it is true that Vappie has been indicted for wire fraud and making false

statements to investigators.113 The U.S. Attorney had the opportunity to indict Cantrell or any of

the other Defendants here if the facts that make up this case were so overlapping and intertwined,

but the indictment solely charges Vappie.114 As such, the status of Vappie’s criminal proceeding

has no apparent bearing on whether this civil matter against the named Defendants should move

forward. Accordingly, this factor weighs against granting a stay.

3. Breaud’s Interest

Next the Court examines “the private interests of the plaintiff in proceeding expeditiously,

weighed against the prejudice to the plaintiff caused by a delay.”115 In addition to the general

interest Breaud possesses in expeditiously pursuing this civil action, Breaud faces the potential for

loss of evidence and the ability to put on an effective case as time passes.116 Once Cantrell leaves

office, which she will in almost a year, records and documents could be lost or destroyed as a new

administration takes over. There is no certainty evidence has been collected and preserved by any

investigatory agency in the alleged investigations ongoing pertaining to Defendants. Even if

evidence has been preserved, there is no indication it would be relevant to this case or discoverable.

The potential loss of evidence is bolstered by there being no indication an indictment is soon

forthcoming against any of the named Defendants, which would result in a stay for an indefinite

period. A lengthy delay in this civil matter has the potential to greatly prejudice Breaud’s ability

113 United States v. Vappie, Case No. 24-CR-165, Rec. Doc. 1 at 1.

114 See id.

115 Alcala, 625 F. Supp. 2d at 399.

116 Id. at 405 (citing Fresenius Medical, 571 F. Supp. 2d at 763; Sidari v. Orleans County, 180 F.R.D 226,

230 (W.D.N.Y. 1997); SEC v. Brown, 2007 WL 4192000, at *2 (D. Minn. July 16, 2007)).

to present her case. Consequently, this factor weighs against a stay.

4. The Private Interests and Burden on Defendant

Next, the Court considers “the private interests of and burden on the defendant” if the stay

is not granted.117 Defendants assert, if the civil matter moves forward, Cantrell and the other named

Defendants “will be forced to choose between [their] civil discovery obligations and [their] ability

to assert [their] Fifth Amendment privilege against self-incrimination.”118

The party who requests a stay “must make out a clear case of hardship or inequity in being

required to go forward, if there is even a fair possibility that the stay for which he prays will work

damage to some one else.”119 Consequently, a “mere possibility of prejudice” arising from civil

discovery is not enough to grant a stay.120 “Allegations” alone of prejudice to a criminal case from

civil discovery are “conclusory and insufficient to warrant a stay . . . ”121

Defendants have presented no more than the “mere possibility of prejudice” to their Fifth

Amendment rights that could result from proceeding with civil discovery in this case. Without

more information on the target of the criminal investigations, it is not clear how answering

questions in this civil case would open Defendants to self-incrimination. Defendants seem to

contend this prejudice could come from a “negative inference” accompanying asserting their Firth

Amendment rights in a civil case.122 While courts have held the Fifth Amendment does “not forbid

117 Alcala, 625 F. Supp. 2d at 399.

118 Rec. Doc. 10-1 at 9.

119 Landis v. North American Co., 299 U.S. 248, 255 (1936).

120 In re Ramu Corp., 903 F.2d at 320.

121 U.S. v. Banco Cafetero Intern., 107 F.R.D. 361, 366 (S.D.N.Y. 1985)

122 Rec. Doc. 10-1 at 4.

adverse inferences against parties to civil actions when they refuse to testify,”123 there exists no

precedent asserting fact finders are required to draw such negative inferences.124 Thus, at this

stage, any prejudice to Defendants’ Fifth Amendment rights is speculative, and Defendants have

failed to demonstrate a clear case of hardship resulting from a denial of the stay.

Defendants additionally argue the City of New Orleans will face prejudice as a result of

Defendants pleading their Fifth Amendment rights because the City of New Orleans will not be

able to fulfill its discovery obligations without Defendants’ testimony.125 It is not apparent what

testimony from Defendants will be necessary for the City to defend itself and it is not clear what

topics or questions Defendants will plead their Fifth Amendment rights in response to. Nor do

Defendants explain why there would be no other way for the City to fulfill discovery obligations.

Considering all named Defendants are either public officials or the City itself, much of the

evidence relevant to this case should be a matter of public record and readily available through

public record requests. The notion that the only way for Defendants to adequately defend

themselves is through testimony from Defendants seems an overreach.

If Defendants do assert their Fifth Amendment rights, they must do so particularly, and

“protection must be confined to instances where the witness has reasonable cause to apprehend

danger from a direct answer.”126 Ultimately, “it is for the court to say whether [a witness’s] silence

is justified,” and the court can require an answer if it is clear the witness is mistaken in their belief

123 Burdine v. Johnson, 262 F.3d 336, 366 (5th Cir. 2001).

124 Hernandez v. Theriot, 709 F. App’x 755, 757 (5th Cir. 2017).

125 Rec. Doc. 10-1 at 10–11.

126 Hoffman v. U. S., 341 U.S. 479, 486 (1951).

that an answer would hazard incrimination.127 Therefore, whether the City will face prejudice as a

result of Defendants’ anticipated invocation of their Fifth Amendment rights remains speculative,

reflecting a mere possibility of prejudice.

As for the Indictment of Vappie, which alleges he committed wire fraud and made false

statements to investigators during his time as a member of Cantrell’s Executive Protection Unit, it

in no way contends he acted in concert with or in a conspiracy with Public Official 1, presumably

Cantrell, or any of the other named Defendants.128 Cantrell is not named as a defendant in that

case, and Vappie is not named as a defendant in this case. The instant case is not about whether

Cantrell and Vappie were engaged in an inappropriate relationship or if Cantrell was involved in

Vappie’s alleged criminal conduct. Instead, it is about whether a public official and/or employees

abused their power to intimidate Plaintiff while in public office. Accordingly, the Court is hard

pressed to understand how Cantrell’s Fifth Amendment right against self-incrimination could be

prejudiced by her participation in this civil case based on an indictment against Vappie for wire

fraud and making false statements to investigators. Even considering the fact Cantrell could be

called as a witness in Vappie’s criminal matter, the potential of having to testify as a witness in a

criminal case does not necessarily raise a Fifth Amendment issue in an allegedly parallel civil

matter. In other words, simply because Cantrell’s testimony may have a negative impact on

Vappie’s criminal case does not automatically give rise to implication of her Fifth Amendment

right against self-incrimination in this civil case.

5. Interest of the Court

Under this factor, “a court can consider its own interests in efficient administration and

127 Id.

128 United States v. Vappie, Case No. 24-CR-165, Rec. Doc. 1.

judicial economy,” including the interest of moving cases to a swift conclusion.129 Courts have

been wary to “guess what criminal acts” defendants may be charged with if there is uncertainty as

to when or whether a defendant may be indicted.130 Considering no indictments have been handed

down against any Defendants in this civil case and no evidence has been produced that indictments

may be imminent, a stay under these circumstances could prove unreasonably lengthy and impede

on the expedient resolution of this case. In the end, a stay may not even be necessary considering

the possibility no criminal charges will be brought.131 Therefore, this factor weighs in favor of

denying the stay, at this time.

6. The Public Interest

Lastly, the Court considers the public interest in a stay. On the one hand, Breaud argues

the public has an interest in quick adjudication of this civil case because visitors and residents of

New Orleans deserve to know if they can exist in New Orleans without fear of their civil rights

being violated.132 On the other hand, Defendants claim the public has an interest in law

enforcement, meaning the criminal proceedings should take precedence over this civil matter.133

While the public does have an interest in law enforcement, it also has an interest in the timely

adjudication of this civil case, especially when no criminal proceeding is underway. The truth

regarding whether the public officials named in this suit abused their office by violating Breaud’s

129 Fresenius, 571 F. Supp. 2d at 765 (internal citations omitted).

130 Citibank, N.A. v. Hakim, 1993 WL 481335, at *2 (S.D.N.Y. 1993); Lewis Enterprises, 2006 WL 1064072

at *5 (giving weight to the fact that granting a stay “could delay the progress of this case for a number of

years—even assuming the indictments come down soon” in the Court’s decision to deny the stay).

131 See Lewis Enterprise, 2006 WL 1064072 at *5 (noting that “given the uncertainty as to whether the

[defendants] will be indicted, there is a real possibility that this action will be stayed for no reason.”).

132 Rec. Doc. 11 at 12.

133 Rec. Doc. 10-1 at 11–12.

civil rights, among other allegations, lies in the resolution of this civil case, a fact lending great

weight to the public’s interest in its efficient administration. Further, trust in civic leaders is not

the only public interest implicated in this case. Equally important is public confidence in the courts’

ability to efficiently and fairly manage cases before them. This interest would not be served by a

possibly lengthy and ultimately unnecessary stay for a criminal prosecution that may never

materialize.

V. Conclusion

Based on the foregoing, the Court denies the motion to stay because all six factors weigh

against staying this civil action. Considering that no indictments have been handed down against

any of the named Defendants and no target letter outlining the scope of the allegedly ongoing

investigations has been provided, the Court finds that a stay is not warranted at this time.

Defendants may reurge a motion to stay 1f circumstances change.

Accordingly,

IT IS HEREBY ORDERED that the Motion to Stay!** is DENIED.

NEW ORLEANS, LOUISIANA, this 16th day of October, 2024.

Dorcel Sobveit. 05.

NANNETTE IVETTE BROWN (our

CHIEF JUDGE

UNITED STATES DISTRICT COURT

Rec. Doc. 10.

22

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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