Ex parte Doe

Decision Date09 July 2021
Docket Number1191073
PartiesEx parte Jane Doe, individually and as mother and next friend of her minor children, Judy Doe and John Doe (In re: Jane Doe, individually and as mother and next friend of her minor children, Judy Doe and John Doe v. Campus Evolution Villages, LLC, et al.)
CourtAlabama Supreme Court

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

PETITION FOR WRIT OF MANDAMUS

(Tuscaloosa Circuit Court, CV-20-900175)

WISE, Justice.

Jane Doe ("Doe"), individually and as mother and next friend of her minor children, Judy Doe and John Doe, petitions this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to vacate its August 18, 2020, order staying all discovery in this case. We grant the petition and issue the writ.

Facts and Procedural History

On August 25, 2019, Doe was dropping off her children to stay with a friend at the Campus Evolution Villages apartments in Tuscaloosa. Doe alleges that, while she was in the common area of the apartments, Tereza Demone Jones assaulted her and raped her in front of her children and then fled the scene. Jones was later arrested and is being prosecuted by the State of Alabama for first-degree rape, a violation of § 13A-6-61(a)(1), Ala. Code 1975.

On February 14, 2020, Doe sued Campus Evolution Villages, LLC; Pinnacle Campus Living, LLC ("Pinnacle"); Pinnacle Property Management Services, LLC; Jones; and various fictitiously named defendants in the Tuscaloosa Circuit Court. On April 23, 2020, Doe amended the complaint to dismiss Pinnacle Property ManagementServices, LLC, and Campus Evolution Villages, LLC, without prejudice and to substitute CEV Tuscaloosa, LLC; Signal 88, LLC; Gulf South Security Solutions, LLC ("Gulf South"); and CEV Tuscaloosa, LP, for fictitiously named defendants. The amended complaint included counts alleging assault and battery, invasion of privacy, and the tort of outrage against Jones and counts alleging negligence and/or wantonness and negligence and/or wantonness based on a premises-liability theory against CEV Tuscaloosa, LLC, CEV Tuscaloosa, LP, Pinnacle, Signal 88, and Gulf South.

On July 31, 2020, Doe filed a motion for the entry of a default against Jones. She alleged that the summons, complaint, and amended complaint had been served on Jones on June 16, 2020, and that he had not answered or otherwise responded.

On August 13, 2020, Gulf South and Pinnacle filed a joint motion to stay the civil action pending the outcome of the criminal proceeding against Jones. They alleged that no discovery had been conducted in the case; that Doe and the defendants would need to conduct discovery relating to the incident, including taking the deposition of Jones; and that,because any such deposition would involve questions relating to the matters at issue in the criminal proceeding, conducting discovery in this case must be stayed until the criminal proceeding is concluded. Gulf South and Pinnacle also alleged that this civil proceeding and the criminal proceeding against Jones are parallel; that Jones's privilege against self-incrimination under the Fifth Amendment to the United States Constitution would be threatened if he is called for a deposition in this case while the criminal proceeding is still pending; and that the factors in the balancing test set forth in Ex parte Baugh, 530 So. 2d 238, 244 (Ala. 1988), and Ex parte Ebbers, 871 So. 2d 776, 789 (Ala. 2003), weigh in favor of allowing the criminal proceeding to be concluded before conducting discovery in this proceeding.

On August 18, 2020, the trial court granted the motion to stay. On that same date, it denied Doe's motion for the entry of a default against Jones.

On August 24, 2020, Doe filed a motion to reconsider both orders and asked the trial court to enter an order allowing her to pursue discovery and permitting the circuit clerk to enter a default against Jones. OnSeptember 2, 2020, the trial court denied Doe's motion to reconsider. This petition followed.

Standard of Review
"A petition for a writ of mandamus is a proper method by which to challenge a trial court's decision on a motion to stay a civil proceeding when a party to that proceeding is the subject of a criminal investigation. See, e.g., Ex parte Rawls, 953 So. 2d 374 (Ala. 2006); Ex parte Weems, 711 So. 2d 1011 (Ala. 1998).
" ' "A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So. 2d 1116, 1119 (Ala. 2004). A writ of mandamus is 'appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272 (Ala. 2001)."
" 'Ex parte Antonucci, 917 So. 2d 825, 830 (Ala. 2005).'
"Rawls, 953 So. 2d at 377. '[T]he purpose of our review is to determine only if the petitioner has shown that the trial court exceeded the discretion accorded it in determining whether togrant the requested stay.' Ex parte Antonucci, 917 So. 2d 825, 830 (Ala. 2005)."

Ex parte McDaniel, 291 So. 3d 847, 851 (Ala. 2019).

Discussion

Doe argues that the trial court exceeded its discretion by granting Gulf South and Pinnacle's motion to stay based on speculation that Jones might assert his Fifth Amendment privilege against self-incrimination in response to discovery, or questioning he might face in a deposition, that might be served on him in this case. Specifically, she contends that Gulf South and Pinnacle "cannot assert the Fifth Amendment for Jones and [that] they failed to present evidence that Jones had asserted or would assert his Fifth Amendment right against self-incrimination in response to discovery that might, at some point in the future, be served on him in this case, so as to justify the stay imposed by the trial court." We agree that Gulf South and Pinnacle cannot assert the Fifth Amendment on behalf of Jones.

In Ex parte Rawls, 953 So. 2d 374, 378 (Ala. 2006), this Court set forth the following method for determining whether a stay is warranted when a Fifth Amendment privilege against self-incrimination is invoked:

"This Court stated in Ex parte Baugh, 530 So. 2d 238, 241 (Ala. 1988):
" 'Under the Fifth Amendment to the Constitution of the United States, "no person ... shall be compelled in any criminal case to be a witness against himself." The privilege against self-incrimination must be liberally construed in favor of the accused or the witness, Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951), and is applicable not only to federal proceedings but also to state proceedings, Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). "The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection." Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979), citing with approval Lefkowitz v. Cunningham, 431 U.S. 801, 9[7] S. Ct. 2132, 53 L. Ed. 2d 1 (1977); McCarthy v. Arndstein, 266 U.S. 34, 45 S. Ct. 16, 69 L. Ed. [] 158 (1924).'
"The United States Constitution, however, does not mandate that under all circumstances the civil proceedings in which the privilege against self-incrimination is asserted be stayed; whether to stay those proceedings is within the trial court's discretion.
" ' While the Constitution does not require a stay of civil proceedings pending the outcome of potential criminal proceedings, a court has the discretion to postpone civil discovery when "justice requires" that it do so "to protect a party or persons from annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c), Ala. R. Civ. P.'
"Ex parte Coastal Training Inst., 583 So. 2d 979, 980-81 (Ala. 1991).
"In the present case, three issues must be addressed to determine if a stay in the civil ... proceedings based on Fifth Amendment concerns in a pending criminal action is warranted: (1) whether the civil proceeding and the criminal proceeding are parallel, seeEx parte Weems, 711 So. 2d 1011, 1013 (Ala. 1998); (2) whether the moving party's Fifth Amendment protection against self-incrimination will be threatened if the civil proceeding is not stayed, seeEx parte Windom, 763 So. 2d 946, 950 (Ala. 2000); and (3) whether the requirements of the balancing test set out in Ex parte Baugh, 530 So. 2d at 244, and Ex parte Ebbers, 871 So. 2d 776, 789 (Ala. 2003), are met."

953 So. 2d at 378.

Although the parties dispute whether this civil proceeding and the criminal proceeding against Jones are parallel, we need not resolve that dispute because the issue as to who could properly file the motion for a stay based on Fifth Amendment principles is dispositive in this case.Jones, the only defendant against whom criminal charges have been filed regarding the underlying incident, had not filed an appearance in this civil action and had not invoked his Fifth Amendment privilege against self-incrimination when Gulf South and Pinnacle filed their motion for a stay. Instead, Gulf South and Pinnacle, which are corporations, filed the motion to stay based on speculation that Jones might later invoke his Fifth Amendment privilege against self-incrimination in response to discovery in this civil action.1 However,

"[i]t has long been settled in federal jurisprudence that the constitutional privilege against self-incrimination is 'essentially a personal one, applying only to natural individuals.' It 'cannot be utilized by or on behalf of any organization, such as a
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