1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 8 MACKIE,ETAL. CaseNo.4:19-CV-2096-YGR 9 Plaintiffs, ORDERGRANTINGPLAINTIFFS’MOTION

TO REOPENCASE,LIFT STAY,ANDSET A

10 v. CASEMANAGEMENT CONFERENCE 11 COUNTY OF SANTACRUZ,ETAL. Re: Dkt. No. 96. 12 Defendants. 13 14 The Court is in receipt of plaintiffs’ motion to reopen this case, lift the current stay, and set 15 a case management conference. Having carefully considered the papers submitted in this action, 16 and for the reasons set forth below, the Court hereby GRANTS the Motion.1 17 I. FACTUAL BACKGROUND 18 Plaintiff filed this action in 2019 following a series of incidents from the year prior. As 19 alleged, defendant Ralph Millar shot plaintiff Jennifer Mackie following the County of Santa 20 Cruz’s (“County’s”) failure to protect her, despite knowledge of the threat Millar posed. The 21 complaint alleges that Mackie’s landlord granted Millar unauthorized access to Mackie’s home, 22 after which time Millar harassed and ultimately shot her. From the time Mackie first learned of 23 Millar’s unauthorized access to her home, she was in repeated contact with local law enforcement 24 and emergency response services, who she alleges failed to adequately prevent the shooting. 25 The shooting occurred on August 15, 2018. On March 31, 2020, then-District Court Judge 26 Koh granted the parties’ joint stipulation to stay this civil matter pending resolution of Millar’s 27 28 1 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds this motion appropriate for decision without oral argument. 1 criminal trial stemming from the same underlying events. After Millar accepted a plea and began 2 serving his sentence, plaintiffs moved to lift the stay. The County opposed the motion.The County 3 argues the stay should remain in place until the resolution of Millar’s appeal based on ineffective 4 assistance of counsel. 5 II. LEGAL STANDARD 6 The Constitution does not require civil matters be stayed pending resolution of parallel 7 criminal proceedings, Fed. Sav. & Loan Ins. Corp. v. Molinaro, 889 F.2d 899, 902 (9th Cir. 1989), 8 but a court may order such a stay in “the interests of justice.” SEC v. Dresser Indus., 628 F.2d 9 1368, 1375 (D.C. Cir. 1980). In addition to weighing a defendant’s Fifth Amendment rights, courts 10 consider the five Keating factors in deciding whether to allow parallel civil and criminal actions to 11 proceed simultaneously. See, Cisco Sys., Inc. v. Sheikh, 2020 WL 7408229 at *1 (N.D. Cal. 2020). 12 Those are: (1)the interest of the plaintiffs in proceeding expeditiously with this litigation or any 13 particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the 14 burden which any particular aspect of the proceedings may impose on defendants; (3)the convenience of the court in the management of its cases, and the efficient use 15 of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation. 16 Id.(quoting Keating v. Off. of Thrift Supervision, 45 F.3d 322, 324-25 (9th Cir. 1995).) 17

III. ANALYSIS

18 The County’s primary argument against lifting the stay concerns Millar’s Fifth Amendment 19 Rights. It argues that because “both cases involve the same general set of facts[,] it is possible that 20 statements Mr. Millar makes in the course of the civil proceeding could be used against him in a 21 possible retrial of his criminal case.” (Dkt. No. 98 at 3.) 22 As an initial matter, the Court notes that the final three Keating factors weigh in favor of 23 lifting the stay. “First, case law is replete with examples of the need to resolve cases expeditiously.” 24 Sheikh, 2020 WL 7408229 at *1. There appear to be no implicated third parties with interests in 25 maintaining the stay, and the public interest favors quick resolution of this case, given that it 26 implicates possible gross failures of the County to maintain public trust and safety. 27 28 1 Next, the Court considers Millar’s Fifth Amendment rights. “A defendant has no absolute 2 right not to be forced to choose between testifying in a civil matter and asserting his Fifth 3 Amendment privilege.” Keating, 45 F.3d at 326. The appropriate question in this context, therefore, 4 is not whether any tension exists between Millar’s interests in the two proceedings, but merely 5 whether lifting the stay “would result in ‘substantial prejudice to’” his Fifth Amendment rights. 6 Thissel v. Murphy, 2017 WL 694502 at *2 (N.D. Cal. 2017) (quoting Keating, 45 F.3d at 324) 7 (emphasis in original). The County offers no evidence of such substantial prejudice. Instead, the 8 motion notes only the mere possibility that Millar’s statements offered in the civil context could end 9 up being used at a possible retrial. Absent more, the argument fails for several reasons. First, well- 10 known protections already exist to guard against the erosion of Millar’s rights against self- 11 incrimination. Millar could always decline to answer specific questions at deposition or a civil trial, 12 for instance. Second, the possibility that the civil proceedings will implicate Millar’s Fifth 13 Amendment rights depends on several intervening events, none of which is guaranteed to occur. 14 Third, there being numerous defendants and multiple causes of action against them, lifting the stay 15 will not necessarily mean plaintiffs will take Millar’s deposition or call him to testify at trial any 16 time soon. The parties anticipate significant discovery in this matter which has not begun in earnest 17 yet. The parties can thus work with the Court to craft a case management schedule once the stay has 18 been lifted that affords Millar the constitutional protections to which he is entitled. 19 Weighed against the remaining Keating factors, plaintiffs’ interest in continuing with the 20 case outweighs any opposing interest in continuing the stay. First, “stays of an undefined period are 21 disfavored.” Sheikh, 2020 WL 7408229 at *1. Second, in this instance, almost six years have 22 passed since the shooting. Plaintiffs undoubtedly have an interest in moving this case forward. 23 “Witnesses relocate, memories fade, and persons allegedly aggrieved are unable to seek vindication 24 or redress for indefinite periods of time on end.” Sw. Marine, Inc. v. Triple A Mach. Shop, Inc., 720 25 F. Supp. 805, 809 (N.D. Cal. 1989.) 26 In balancing the interests of plaintiffs, the Court, and the public in litigating this matter 27 against Millar’s in maintaining the stay, the Court finds in favor of allowing plaintiffs to have their 28 day in court. 1 IV. CONCLUSION 2 For the reasons set forth above, plaintiffs’ motion to reopen the case, lift the stay, and set a 3 || case management conference is hereby GRANTED. 4 This terminates Docket No. 96. 5 IT Is SO ORDERED. 6 || Date: August 1, 2024 L—~ nase fllteo- ty ONNE GONZAWZ R@@ERS =O 7 UNITED STATES DISTRICT COURT JUDGE 8 9 10 11 12

E 13 “a oO 14

15 2

2 16 A

E17

19 20 21 22 23 24 25 26 27 28