Duncan v. Banks
1:15-cv-02104
D. Colo.Sep 21, 2017Background
- This civil case (filed Sept. 25, 2015) between Tim Duncan (plaintiff) and Charles Banks/Gameday Entertainment (defendants) had been stayed after a federal indictment was issued against Banks in the Western District of Texas; the stay was initially granted pending resolution of the criminal proceedings.
- Following a criminal judgment and an appeal by Banks, Banks moved to continue (renew) the stay of the civil case while his criminal appeal proceeds; the motion was opposed by Duncan.
- Banks argued the stay was necessary to protect his Fifth Amendment rights, citing overlap between the criminal charges and civil claims and noting a $7.5 million restitution/deposit in the Texas court registry that he says affects the civil dispute.
- Duncan countered that Banks pled guilty only to a scheme related to a 2013 guaranty/subordination agreement (not the 2012 loan underlying Duncan’s investment), that the criminal case does not fully overlap with civil issues, and that the civil case seeks damages beyond the restitution amount.
- The magistrate judge found Banks failed to show good cause for an extended or indefinite stay, rejected the Fifth Amendment and overlap arguments as speculative or insufficient, and denied the renewed motion to continue the stay (Order dated Sept. 21, 2017).
Issues
| Issue | Plaintiff's Argument (Duncan) | Defendant's Argument (Banks) | Held |
|---|---|---|---|
| Whether to continue/stay civil discovery pending Banks’ criminal appeal | Stay should be lifted to avoid further delay; civil claims differ from criminal ones | Stay should continue pending appeal to protect Banks and avoid prejudice | Denied — no good cause for continued/indefinite stay |
| Fifth Amendment risk from civil discovery | Fifth Amendment concern is speculative and does not justify stay | Proceeding would impinge Banks’ Fifth Amendment rights | Rejected — speculative; insufficient to show clearly defined, serious injury |
| Degree of factual/legal overlap between criminal and civil matters | Criminal plea concerned 2013 guaranty; 2012 loan and other civil damages differ, so limited overlap | Criminal proceedings involve same harm and $7.5M at issue; overlap supports stay | Court found meaningful differences; overlap insufficient to justify stay |
| Claims of special financial burden from defending civil case | Normal litigation costs do not justify a stay; defendant hasn’t shown special hardship | Defending plus intended counter/cross-claims creates undue burden | Rejected — mere burden of litigation is not special hardship |
Key Cases Cited
- Wang v. Hsu, 919 F.2d 130 (10th Cir. 1990) (trial court has discretion to issue protective orders and stay discovery)
- Tolbert-Smith v. Bodman, 253 F.R.D. 2 (D.D.C. 2008) (movant must show specific facts of clearly defined and serious injury to obtain protective order)
- Exum v. United States Olympic Comm., 209 F.R.D. 201 (D. Colo. 2002) (party cannot rely on speculation or conclusory statements to show good cause for protective relief)