Narragansett Indian Meeting Church v. Johnson

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
NARRAGANSETT INDIAN 	)
MEETING CHURCH, 	)
Plaintiff, 	)
)
v. 	) 	No. 1:21-cv-00332-MSM-PAS
)
IRVING JOHNSON, 	)
Defendant. 	)
____________________________________)
ORDER
Mary S. McElroy, United States District Judge.
I. 	INTRODUCTION
The Narragansett Indian Meeting Church (“the Church”) has alleged and
supported in its Complaint that the defendant, Irving Johnson (“Mr. Johnson”) an
enrolled member of the Narragansett Indian Tribe, trespassed upon and removed
trees from private Church property. 	The State of Rhode Island, in a separate state
court case, charged Mr. Johnson with one count of vandalism and one count of willful
trespass.
	See docket, R.I Super. Ct. W3-21-0030A. Mr. Johnson was tried by a jury
and found guilty of both charges. He timely appealed the guilty verdict, and, in this
Court, moved to stay discovery while the related criminal matter remains pending in
the Rhode Island Supreme Court. (ECF No. 19.) 	Having reviewed Mr. Johnson’s
Case 1:21-cv-00332-MSM-PAS Document 22 Filed 08/09/23 Page 1 of 7 PageID #:
<pageID>

2
memorandum in support of his motion and the plaintiff’s memorandum in opposition,
the Court GRANTS Mr. Johnson’s motion to stay discovery.
II. 	BACKGROUND
On July 23, 2014, the Narragansett Indian Tribe’s Land and Water Resource
Commission 	(“Commission”) 	approved 	Mr. 	Johnson’s 	request 	to 	construct 	a
greenhouse on Tract #6 of tribal lands of which the Church claims to be the deeded
owner. 	The Commission conditioned its approval on the following: (1) limited
disturbance of soil and vegetation around the worksite and (2) leaving untouched all
areas outside the work zone. 	The greenhouse was completed in 2015. In this court
the Church has alleged that, on April 13, 2017, Mr. Johnson cut and removed three
trees from Church property, near the greenhouse, without prior approval. 	The
Church also alleged that on May 9, 2019, Mr. Johnson parked his “camping trailer”
on Church property near the greenhouse, again without permission. 	Between 2017
and 2019, Mr. Johnson was served with four cease and desist orders.
Mr. Johnson maintains, and the Church does not refute, that he has since
stopped all unauthorized tree cutting and has voluntarily vacated the property.
III. 	STANDARD OF REVIEW
The First Circuit, in
Microfinancial, Inc. v. Premier Holidays Int’l, Inc., has
noted the following “typical” factors when ruling on a motion to stay discovery:
(i) the interests of the civil plaintiff in proceeding expeditiously
with the civil litigation, including the avoidance of any prejudice
to the plaintiff should a delay transpire; (ii) the hardship to the
defendant, including the burden placed upon him should the
Case 1:21-cv-00332-MSM-PAS Document 22 Filed 08/09/23 Page 2 of 7 PageID #:
<pageID>

3
cases go forward in tandem; (iii) the convenience of both the civil
and criminal courts; (iv) the interests of third parties; and (v) the
public interest.
385 F.3d 72, 78 (1st Cir. 2004). 	The Court also considered the good faith of the
litigants and the “foot-dragging” that had already occurred.
Id. at 79. 	The moving
party bears a “heavy burden” of demonstrating a “clear case of hardship” if a stay is
not issued.
Id. at 77. “The pendency of a parallel or related criminal proceeding can
constitute [a good] reason” for a stay, although a parallel criminal proceeding is not
dispositive.
Id. Finally, the decision whether to stay civil litigation is discretionary.
Id.
IV. 	ANALYSIS
A. The First Factor
In the case before the Court the Church has a limited interest in proceeding
expeditiously. 	Mr. Johnson alleged, and the Church has not refuted, that he has
voluntarily vacated Church property, removed the camping trailer, and ceased the
removal of trees and disturbance of the land. 	The Church awaits a decision on
damages, a decision which it does not argue need be resolved expeditiously. Nor does
the record suggest that postponement of the litigation would cause a prejudicial loss
of evidence.
Clinton v. Jones, 520 U.S. 681, 707-08 (1997).
B. The Second Factor
Mr. Johnson has argued, and the Court agrees, that his Fifth Amendment
privilege against self-incrimination in the criminal case could be jeopardized if the
matters go forward in tandem. 	“The Fifth Amendment provides that ‘[n]o person…
Case 1:21-cv-00332-MSM-PAS Document 22 Filed 08/09/23 Page 3 of 7 PageID #:
<pageID>

4
shall be compelled in any criminal case to be a witness against himself.’”
	Green v.
Cosby, 177 F. Supp. 3d 673, 679 (D. Mass. 2016). The Fifth Amendment applies with
equal force to civil proceedings as it does to criminal proceedings.
Id. Further, “the
privilege covers not only answers that would themselves support a conviction, but
likewise embraces those which would furnish a link in the chain of evidence needed
to prosecute… or which might lead to other evidence that could be used in a criminal
prosecution against the witness.”
Green, 177 F. Supp. 3d at 679 (
citing In re Kave,
760 F.2d 343, 354 (1st Cir. 1985)). “[A] defendant who waives his Fifth Amendment
privilege in the civil case faces the prospect of incriminating himself by disclosing
evidence that may tend to support a conviction.”
Green, 177 F. Supp. 3d at 679. Mr.
Johnson argues that the discovery material proffered in response to the civil discovery
requests could be used against him by the State of Rhode Island in the criminal
matter. Both actions put the same contested facts in issue.
Along with the Fifth Amendment claim, Mr. Johnson makes the point that
parallel discovery would give the State an unfair advantage. Unlike Fed. R. Civ. P.
34, which requires a party served with a discovery request to respond or object to the
request, R.I. Super. R. Crim. P. 16 does not obligate the defendant to comply with
discovery requests if he does not serve a discovery request on the State: discovery
from a criminal defendant is only reciprocal. Mr. Johnson did not request discovery
from the State in the original criminal case and may choose not to in a retrial if his
appeal is successful. 	Discovery in the civil case could result in the State’s having
possession of material from him to which it would not otherwise be privy.
Case 1:21-cv-00332-MSM-PAS Document 22 Filed 08/09/23 Page 4 of 7 PageID #:
<pageID>

5
C. The Third Factor
The First Circuit gives “substantial weight” to the convenience to the court.
Microfinancial, 385 F.3d at 79. 	The Court “must work a complicated equation,
balancing fairness to the parties with the need to manage crowded dockets.”
Macaulay v. Anas, 321 F.3d 45, 51 (1st Cir. 2003). Delay here is likely to last a few
months since the criminal case is proceeding through the pre-briefing process in the
Rhode Island Supreme Court.
See docket of R.I. Sup. Ct. SU-2023-0099. The Church
does not point to any negative impact from the delay.
D. Fourth Factor
There is a third party interested in the civil litigation before the Court—the
Narragansett Indian Tribe. The Tribe, like the Church, alleges ownership over the
property at the center of the dispute, but unlike the Church, the Tribe does not
support its ownership claim with a deed. Therefore, the Tribe’s interest in the
litigation is minimal. 	More importantly, as Mr. Johnson is no longer entering the
property, the Tribe’s potential interest is not adversely affected.
E. The Fifth Factor
The public has no specific interest in expeditious litigation because this civil
case concerns trespass on private property. 	The Church does not point to any bad
faith on the part of the defendant for his request to stay discovery. Mr. Johnson put
forward a meritorious argument, sufficiently grounded in law, that suggests he would
be substantially prejudiced if forced to defend both cases in tandem. While the civil
Case 1:21-cv-00332-MSM-PAS Document 22 Filed 08/09/23 Page 5 of 7 PageID #:
<pageID>

6
case has remained on the Court’s docket since 2021, the delay was not caused by “the
foot-dragging” of either party.
Microfinancial, 385 F.3d at 79.
F. Federal Rule 33/34 Waiver
The Church, in its objection to Mr. Johnson’s motion to stay discovery, asserts
that Mr. Johnson has “waived” any objection to interrogatories or requests for
production of documents pursuant to Fed. R. Civ. P. 33(b)(4) and 34(b)(2)(A) and (C).
(ECF No. 20-1, at 1.) 	Rule 33(b)(4) provides that “[t]he grounds for objecting to an
interrogatory must be stated with specificity. 	Any ground not stated in a timely
objection is waived unless the court, for good cause, excuses the failure.” Fed. R. Civ.
P. 33(b)(4). Rule 34(b)(2)(A) gives every party served with a discovery request 30 days
to respond. An objection to the discovery request, pursuant to Rule 34(b)(2)(C), “must
state whether any responsive materials are being withheld on the basis of that
objection.” Fed. R. Civ. P. 34(b)(2)(C). While the Court acknowledges, and Mr.
Johnson accepts as true, the defendant’s untimely discovery responses, for this
decision, the Court finds the plaintiff’s argument to be moot. Even if Mr. Johnson
“waived” any objection to discovery requests under Rules 33 and 34, the prejudicial
harm caused by a denial of the defendant’s motion to stay discovery is “good cause”
under Fed. R. Civ. P. 33(b)(4).
V. 	CONCLUSION
The harm to Mr. Johnson if he were required to participate in concurrent
discovery outweighs any incidental impact to the court or other parties. 	For the
foregoing 	reasons, 	Mr. 	Johnson’s 	Motion 	to 	Stay 	Discovery 	(ECF 	No. 	19) 	is
Case 1:21-cv-00332-MSM-PAS Document 22 Filed 08/09/23 Page 6 of 7 PageID #:
<pageID>

7
GRANTED. The parties shall notify the Court promptly upon the disposition of R.I.
Sup. Ct. SU-2023-0099.
IT IS SO ORDERED:
______________________________
Mary S. McElroy,
United States District Judge
August 9, 2023
Case 1:21-cv-00332-MSM-PAS Document 22 Filed 08/09/23 Page 7 of 7 PageID #:
<pageID>