Svistina v. Elbadramany, 1:22-cv-20525

Plaintiff Elena Svistina sued defendant Mark Elbadramany (and TDR Towers) for conduct alleged to have occurred June 18, 2021 at a cabana in Trump Towers Condominium (claims include sexual battery, negligence, negligent misrepresentation, false imprisonment, invasion of privacy, and a Fla. Stat. § 934.10 claim).
Elbadramany was criminally indicted in state court on March 10, 2022 for related conduct; that criminal trial was scheduled for July 11, 2022.
In the civil case Elbadramany invoked his Fifth Amendment privilege in response to plaintiff’s discovery requests and moved to stay the civil proceedings pending resolution of the criminal case.
Plaintiff argued Elbadramany waived the Fifth Amendment by submitting a declaration in support of a motion to dismiss and that a stay was unnecessary; defendant argued the declaration was limited and did not effect a blanket waiver and that proceeding would force him to choose between invoking the privilege or losing the civil case.
The Court found the declaration was limited (no blanket waiver), that invocation of the privilege posed a likely "certain loss" of the civil case on summary judgment because there are no other witnesses, and that the Rothstein factors collectively favored a short stay.
The Court granted the stay, administratively closed the case, canceled hearings, ordered a joint status report by July 25, 2022, and denied pending motions as moot.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant waived the Fifth Amendment by filing a declaration	Declaration in motion to dismiss waived privilege	Declaration was limited to jurisdictional facts and did not waive privilege broadly	No blanket waiver; waiver limited to matters testified about in declaration
Whether invocation of the Fifth justifies a stay	Stay unnecessary; prosecution outcome won't control civil case and delay prejudices plaintiff	Stay needed because invoking Fifth would force choice between waiving rights or losing civil case on summary judgment	Stay warranted because invoking Fifth would likely cause "certain loss" at summary judgment given lack of other witnesses
Degree of factual overlap between criminal and civil cases	Civil claims broader; only battery overlaps	Substantial/overwhelming overlap; both arise from same event	Overwhelming overlap—factor favors stay
Application of Rothstein factors (status, private interests, judicial/public interests, duration)	Delay and tactical advantage to defendant; prejudice to plaintiff and to TDR Towers	Case in infancy; criminal trial imminent; stay short and promotes judicial economy	All Rothstein factors weigh in favor of a limited stay; court stayed and administratively closed case

United States v. Lot 5, Fox Grove, Alachua County, Fla., 23 F.3d 359 (11th Cir. 1994) (stay of civil proceeding pending related criminal prosecution appropriate only when special circumstances require it).
United States v. Kordel, 397 U.S. 1 (1970) (courts may stay civil proceedings in the interest of justice when criminal proceedings are related).
Erwin v. Price, 778 F.2d 668 (11th Cir. 1985) (Fifth Amendment privilege applies in civil as well as criminal proceedings).
Lefkowitz v. Turley, 414 U.S. 70 (1973) (privilege against self-incrimination covers answers in civil proceedings that might incriminate in future criminal matters).
Shell Oil Co. v. Altina Associates, Inc., 866 F. Supp. 536 (M.D. Fla. 1994) (defendant may be forced to choose between waiving the privilege or losing the civil case).
Pervis v. State Farm Fire & Casualty Co., 901 F.2d 944 (11th Cir. 1990) (discussing the coercive choice a defendant faces when civil discovery implicates the Fifth Amendment).
Mitchell v. United States, 526 U.S. 314 (1999) (waiver of the Fifth Amendment privilege is limited to the matters to which a witness testifies).
Pellegrino v. Wengert, 147 F. Supp. 3d 1379 (S.D. Fla. 2015) (substantial overlap between civil and criminal matters supports stay).