The Ninth Circuit has held a postponement of civil proceedings until the conclusion of the related criminal investigation is the preferred alternative to the dilemma facing defendants in parallel cases. See, London v. Patterson, 463 F.2d at 98 (9th Cir. 1972), cert. denied, 411 U.S. 906 (1973))
The question is the legally permissible definition of ‘related’.
Once the issue of ‘related’ is satisfied, the Ninth Circuit has articulated a five-pronged approach focusing on
- (1) the interest of the plaintiffs in proceeding expeditiously with the litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay;
( In the instance case the inability to proceed expeditiously has resulted in the need to file a federal law suit against the Clerk of the Court and her Chief Deputy, which itself has defaulted in a bad faith refusal to recognize the summons of the federal court and Defendants in this civil action immediately dissipated assets in illegal acts of fraud, within a month of the filing of the complaint. One defendant has since fled to Alaska. There is significant prejudice to plaintiffs in withholding a civil default case judgment and final orders FOUR YEARS after the crime or crimes were committed in the Clerk’s office and TWO YEARS after the court ordered no further hearings in the case. ) - (2) the burden which any particular aspect of the proceedings may impose on defendants;
(Defendants have been permitted to sell businesses, hide assets and expand their business interests showing not one burden with a delay of release of the civil case and significant prejudice against the plaintiffs. Since the civil case is finished other than release of any orders from it, there is no potential of Fifth Amendment self incrimination.) - (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources;
(The civil case has been made dormant not affording any convenience or efficient use of anything.) - (4) the interests of persons not parties to the civil litigation; and
(The only persons or entities with any interest that are not parties to the civil litigation are defendant counsel and the insurance companies who employed them.) - (5) the interest of the public in the pending civil and criminal litigation.
(The public interest is vast and has already been informed through the filing of the federal law suit of corruption within the office of the Clerk of Court of Pinal County, the violations of rules, oath and state law by the elected Clerk of Court and he Chief Deputy (who has since been severed of her employment with the State.))
See FSLIC v. Molinaro, 889 F.2d 899, 903 (9th Cir. 1989) (quoting Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 56 (E.D. Pa. 1980)); accord Keating v. OTS, 45 F.3d 322, 325 (9th Cir. 1995).
Relatively few decisions have declined to stay civil proceedings because of significant prejudice to plaintiffs. But in Molinaro, supra, 889 F.2d at 903 the denial of stay was upheld because the defendant was dissipating assets and potentially depriving the government of recovery. The government does not enjoy any greater rights than a citizen plaintiff. Defendants in this civil action dissipated assets in illegal acts of fraud, within a month of the filing of the complaint. One defendant has since fled to Alaska.
In a legal sense the term ‘related’ means having the same origins and belonging to the same group. Another definition of related is causally connected. In a legal context a case is related to another case if the issues of the case are similar or stem from the same cause. A criminal case that is not at all related to the cause of the civil case cannot preclude the civil case from being completed as it is not related.
We must proceed on the assumption that although not known to be fact, the most logical cause of the withholding of the civil case in this matter can only be due to a parallel criminal proceeding. As a general rule, parallel proceedings is a term that refers to two different circumstances. The first involves two actions, one civil and one criminal, both brought by the government, either concurrently or successively, in which the allegations of unlawful conduct arise out of the same set of facts. The second involves two actions, again arising out of the same facts or transactions, and again concurrent or successive, one of which is brought by the government as a criminal prosecution or enforcement action, while the other is brought as a civil action by a private plaintiff.
In the second rule of parallel proceedings any criminal process responsible for withholding the civil case in this matter CANNOT POSSIBLY have arisen from the same facts or transactions. Although crimes were alleged in the defaulted original complaint, they were federal in scope and far too insignificant for the United States Department of Justice to even consider enforcing, let alone if enforced to have taken over four years to investigate.
What we must consider in our assumption that a prudent prosecutor would be pursuing criminal prosecution as the only reason a withholding of the civil case exists is : what did happen in the Superior Court office of the Clerk was in some way; whether by promise of later consideration, immediate payment or consideration or some other means, an orchestrated attempt to fix the outcome of the civil case took place. That act cause a default in this civil case. That is the only relationship any criminal proceeding can have with the civil case.
The parties are not the same. The victim of the criminal act or acts inside the clerk’s office is the State of Arizona as it is a state office. Plaintiffs in the civil case are not at all involved in the criminal issue other than whistle-blowers in having uncovered and reported the incidents. That can only mean that plaintiff’s civil case being withheld is NOT related to any criminal case potentially arising out of the criminal acts. The civil case does not relate to the criminal issue as the transaction of filing of civil case took place far before the transaction of the responses of defendants being filed then illegally hid away from the docket never having been entered upon it until the documents were found some four days later.
In questioning the validity of any withholding of the civil case we turn to U.S. v. Hudson, 522 U.S. 93, 118 S. Ct. 488 (1997). The civil case is a matter of default. Failure to appear to defend by all defendants. It was made default by the purposeful withholding of the filed responses from the active docket long after the time to respond had expired. There is absolutely no possibility that such massive delay was created by a backlog, as the court refused to recognize the appearance of the counsel intended to represent the majority of the defendants. Such entry of appearance never occurred in the case.
The act of default is NOT a criminal act. In Hudson, the court established that it must examine the statute to see if the legislature indicated whether a law is criminal or civil. If the legislative intent is found to be civil, the analysis must still go on to evaluate whether “the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.”
The remedy of default is a simple entry, as a matter of law that the non appearing parties have no objection to the facts as presented and the claims as made and the demands as offered in the complaint, thereby making it a fact of law. That is the furthest from a criminal penalty possible. Admission is not a penalty.
The analysis of whether a statute was transformed by its harshness into a criminal law is governed by factors established in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554 (1963). :
(1) “whether the sanction involves an affirmative disability or restraint”;
(2) “whether it has historically been regarded as a punishment”;
(3) “whether it comes into play only on a finding of scienter”;
(4) “whether its operation will promote the traditional aims of punishment — retribution and deterrence”;
(5) “whether the behavior to which it applies is already a crime”;
(6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and
(7) “whether it appears excessive in relation to the alternative purpose assigned.”
In law, a default is the failure to do something required by law or to appear at a required time in legal proceedings. The ninth circuit defines it as Default Judgment – A judgment awarding a plaintiff the relief sought in the complaint because the defendant has failed to appear in court or otherwise respond to the complaint.
Such relief passes the Hudson requirement meaning an adjudication by a civil court that default had occurred does not violate the rights to be protected from double jeopardy of the defendants of the civil case. Any such act perpetrated to illegally cause the default to occur would have been attributed to counsel NOT to the defendants.
That means that any withholding of the civil case in order to continue, start or execute any criminal proceeding against any person for causing said default would not, other than inference, involve the defendants of the civil case, rending the withholding of the civil case a violation of due process and equal protection under the law afforded by the 4th and 14th amendments to the United States Constitution.
Any action taken against any counsel or defendant in the civil case under the Federal False Claims Act or the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§§ 1961-1968; would be directly related to only the commission of a crime within the office of the Clerk of Court and not in any way related to the issue of medical malpractice the civil case is about. In fact, such criminal act would have been perpetrated outside of the civil case, not related to it at all, would not substantially prejudice any fifth amendments rights of the civil case defendants; which can only then result in the delay and withholding of the civil case is for the sole purpose of pursuing criminal prosecution.
In SEC v. Dresser Inc., 628 F 2d 1368 (D.C.Cir. 1980), cert den’d, 449 U.S. 993 (1980), the court identified an investigation “…conducted solely for [a] criminal enforcement purpose” as a bad faith use of process.
In Keating v. Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995) The appeals court stated that the district court acted within its discretion in denying a stay premised on
the defendant’s parallel criminal proceedings because the defendant failed to demonstrate that his Fifth Amendment rights would be implicated by amendment of the judgment. “In the absence of substantial prejudice to the rights of the parties involved, simultaneous parallel civil and criminal proceedings are unobjectionable under our jurisprudence. . . .”) (citation and alterations omitted).
The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself.” Such is also applicable in civil cases but in this specific civil case a default has occurred making no possible assertion of any Fifth Amendment rights regarding the civil case. That means there is absolutely no related inference possible with this civil case and any assumed criminal parallel prosecution.
On the other hand: if we are forced to assume that no criminal prosecution is underway (we have been fighting for release of Arizona Superior Court default orders for almost a decade, by default to be worth well over $80,000,000.00! and suffering the same ‘pause’ in release of opinions in the 9th Circuit Appeals Court for over 3 years!),… that no criminal prosecution is underway; that the stay or withholding of the civil case is without parallel criminal purpose all the way into the 9th Circuit criminal activity: then the matter takes on a wholly different approach for which we have already placed notices.
On another hand: we do recognize the importance of national security, for which there can be no greater justice in our system and we shall respect that process to its conclusion before proceeding. But not one moment longer.