In re Blankenship

• Decision Date: 08 June 2009
• Docket Number: Adversary No. 08-00260-BGC-7.,No. 08-04375-BGC-7.,08-04375-BGC-7.
• Parties: In re Lane BLANKENSHIP, Debtor. Gradco Corporation, Plaintiff, v. Lane Blankenship, Defendant.
• Court: United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Alabama

408 B.R. 854

In re Lane BLANKENSHIP, Debtor.

Gradco Corporation, Plaintiff, v. Lane Blankenship, Defendant.

No. 08-04375-BGC-7.

Adversary No. 08-00260-BGC-7.

United States Bankruptcy Court, N.D. Alabama, Southern Division.

June 8, 2009.

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Jenifer Champ Wallis, Campbell Gidiere Lee Sinclair & Williams, Kimberly B. Glass, Robert H. Adams, Haskell Slaughter Young & Rediker, LLC, Birmingham, AL, for Plaintiff.

Ted Stuckenschneider, P.C., Birmingham, AL, for Defendant.

Memorandum Opinion on the Debtor's Motion for a Stay or Abstention

BENJAMIN COHEN, Bankruptcy Judge.

The matter before the Court is the Motion to Abstain and Stay Action filed by the defendant on February 11, 2009 (A.P. Proceeding No. 19). After notice, a hearing was held on March 25, 2009, at 11:00 a.m. Mr. Ted Stuckenschneider, the attorney for the defendant, and Ms. Kimberly B. Glass, the attorney for the plaintiff, appeared. The matter was submitted on the pleadings, the defendant's motion, the plaintiff's response to that motion, the arguments of counsel, the record in this adversary proceeding and the record in Bankruptcy Case No. 08-04375-BGC-7.

I. Background

The complaint, Document Nos. 1 and 18, alleges that the defendant was the chief financial officer of Gradco Corporation, and while he was, he converted, embezzled, or stole money from the corporation and fraudulently covered up his actions when questioned by lying to Mr. Michael Summers, the corporation's primary shareholder, president, and executive officer. The same circumstances and activities are alleged in a parallel criminal prosecution in state court and a civil action filed by the plaintiff against the defendant in state court prior to bankruptcy.

The defendant asks this Court to stay the present adversary proceeding until the criminal prosecution is concluded. The defendant argues that he risks losing this proceeding and having a substantial nondischargeable judgment entered against him if he: (1) invokes his fifth amendment privilege against self-incrimination; (2) refuses to testify; or (3) provides information that may be used against him in his criminal trial.

A similar request was made in the state court civil action. The state court stayed that action until the criminal action is completed.

In the alternative, the defendant asks the Court to abstain pursuant to 28 U.S.C. § 1334(c)(1) from hearing and determining the issues in this adversary proceeding until the state civil action is completed. As explained above, that action is stayed until the state criminal action is completed.

II. Request for Stay of Proceeding

A. Discussion

The defendant argues that whatever information or testimony he will be asked to provide in this adversary proceeding, or whatever information would be proffered in his defense, may tend to incriminate him and may be used against him in the pending state court criminal action. As such, the defendant suggests that he should exercise his right under the Fifth Amendment and refuse to provide any such information and testimony.

1. Blanket Contention

As the cases cited below demonstrate, a blanket contention such as this one, as the only assertion, contention, argument, evidence or proof offered in support of a stay, is not sufficient for granting a stay of an adversary proceeding. SEC v. Wright, 261 Fed.Appx. 259, 263 (11th Cir. 2008); United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359, 364 (11th Cir.1994); Anglada v. Sprague, 822 F.2d 1035, 1037 (11th Cir.1987); Securities and Exchange Commission v. First Financial Group of Texas, Inc., 659 F.2d 660, 669 (5th Cir.1981); United States v. Malnik, 489 F.2d 682, 686 (5th Cir.1974), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974). "[A] blanket assertion of the privilege is an inadequate basis for the issuance of a stay." United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d at 364. "[T]he blanket assertion of the privilege against self-incrimination is an inadequate basis for the issuance of a stay." SEC v. Wright, 261 Fed.Appx. at 263. On that basis, the requested stay must be denied.

2. Adverse Judgment

In addition, a stay is not mandated unless the invocation of the privilege in the civil proceeding will necessarily compel, require, or result in the entry of an adverse judgment against the claimant. United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d at 364; Anglada v. Sprague, 822 F.2d at 1037; Hoover v. Knight, 678 F.2d 578, 580-581 (5th Cir. 1982). In other words, a stay is generally not warranted unless the claimant's, "refusal to waive the fifth amendment privilege standing alone and without regard to other evidence," will result in an adverse judgment being entered against him. Hoover v. Knight, 678 F.2d at 580-581. "The court may deny a stay so long as the privilege's invocation does not compel an adverse judgment against the claimant." United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d at 364.

A stay is not warranted: (1) where a judgment must be supported by sufficient evidence proffered by the plaintiff; (2) the defendant's silence is in and of itself insufficient to support any such judgment; (3) the defendant will not in consequence of his silence be automatically found liable for the conduct complained of; and (4) where the defendant's refusal to waive the Fifth Amendment privilege and submit to interrogation will not, standing alone and without regard to the other evidence, result in a judgment being rendered against him, then a stay is unwarranted. In those circumstances, the defendant will not suffer forfeiture of any property or benefit as a consequence of exercising his fifth amendment privilege, and, therefore, failure to stay the proceeding will have no impermissible effect on that privilege. Baxter v. Palmigiano, 425 U.S. 308, 317-318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); United States v. White, 589 F.2d 1283, 1286-1287 (5th Cir.1979).

The defendant's invocation of his Fifth Amendment privilege in this proceeding will not compel the entry of a judgment of nondischargeability against him. This case is not in a procedural posture for a judgment to be entered against the defendant. No summary judgment motion is pending. The case is not set for trial. And even if the defendant ultimately elects not to provide testimony, the plaintiff must still prove its case by positive evidence. Any judgment against the defendant must be based on that evidence. The defendant's silence will be insufficient in and of itself to support any such judgment. The defendant will not be automatically found liable for the conduct complained of by the plaintiff based on the defendant's silence. The defendant's refusal to waive the Fifth Amendment privilege and submit to interrogation will not, standing alone and without regard to the other evidence, result in a judgment being rendered against him. And if a judgment of nondischargeability is rendered against the defendant, it will not have resulted from the defendant's invocation of his Fifth Amendment privilege, but instead will have resulted from the positive production of evidence by the plaintiff.

3. Automatic Judgment

The defendant's stay request must be denied also because he has not shown that invocation of his Fifth Amendment privilege against self-incrimination will, standing alone and without regard to other evidence, automatically require that a judgment of nondischargeability be entered against him. While the defendant will be faced with difficult choices regarding the manner of his defense in this case, and his defense may be rendered more difficult by exercising his privilege, he is not entitled to a stay because he is not faced with the absolute prospect of either waiving his privilege or suffering the mandatory imposition of a judgment against him. Hoover v. Knight, 678 F.2d 578, 582 (5th Cir.1982). "He [will] not [be] forced to surrender his privilege against self-incrimination in order to prevent a judgment against him; although he may [be] denied his most effective defense by remaining silent, there is no indication that invocation of the Fifth Amendment [will] necessarily [result] in an adverse judgment." United States v. White, 589 F.2d 1283, 1286 (5th Cir.1979) (parentheticals added).

Where a defendant has, "`free choice to admit, to deny, or to refuse to answer,'" because he will not in consequence of his silence be automatically found liable for the alleged nondischargeable debt, there is "full vindication of the Fifth Amendment privilege against self-incrimination." Luman v. Tanzler, 411 F.2d 164, 167 (5th Cir.1969) (citation omitted). Hence, the mere existence of a parallel criminal proceeding does not justify a stay, because it "does not alone undercut [the defendant's] privilege against self-incrimination, even [if] the pendency of the criminal action `force[s] him to choose between preserving his privilege against self-incrimination and losing the civil suit,'" as a result of his defense being rendered more difficult by his exercise of that privilege. United States v. Little Al, 712 F.2d 133, 136 (5th Cir.1983)(quoting Hoover v. Knight, 678 F.2d 578, 581 (5th Cir.1982)).

4. Prompt Resolution

Other considerations support denying the stay request. It has been represented that Mr. Michael Summers, the plaintiff's owner, president and chief executive officer, is in poor health. It has been represented that he has congestive heart failure and has been hospitalized for extended periods over the past several years. In fact, it was represented that he was in the hospital during 22 of the 30 days preceding the hearing on the present motion. The Court understands that Mr. Summers prognosis is poor as he has been told that he does not have long to live. If he does not survive until this matter is resolved, both the plaintiff and he will be prejudiced.

In contrast to Mr. Summers' situation, the...