JANE DOE, Nos. 1-10, Plaintiff-Appellee, v. DANIEL S. FITZGERALD, Defendant-Appellant, US ATTORNEY‘S OFFICE SOUTHERN DISTRICT OF NEW YORK, Real-party-in-interest-Appellee.
No. 22-56216
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
May 24, 2024
D.C. No. 2:20-cv-10713-MWF-RAO
FOR PUBLICATION
OPINION
Argued and Submitted March 29, 2024 Pasadena, California
Filed May 24, 2024
Before: Ronald M. Gould, Sandra S. Ikuta, and Danielle J. Forrest, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY*
Trafficking Victims Protection Reauthorization Act
The panel affirmed the district court‘s order staying proceedings in an action under the Trafficking Victims Protection Reauthorization Act pending the resolution of a criminal action.
Ten plaintiffs sued Daniel Fitzgerald under the civil remedy provision of the TVPRA,
Fitzgerald appealed the district court‘s stay order, arguing that the district court erroneously concluded that a stay was mandated under
The panel held that it had jurisdiction to review the stay order as final and appealable under
The panel held that the district court properly granted a mandatory stay under
The panel affirmed the district court‘s ruling, but it held that the district court erred in concluding that the government has a lower evidentiary burden than other litigants when seeking a stay under
The panel further held that, if a stay is required under
COUNSEL
Ernest E. Badway (argued), Fox Rothschild LLP, New York, New York; Jeffrey R. Whitley, Fox Rothschild LLP, Raleigh, North Carolina; Brandon A. Takahashi, Gordon Rees Scully Mansukhani LLP, Los Angeles, California; for Defendant-Appellant.
Alex J. Shepard (argued) and Marc J. Randazza, Randazza Legal Group PLLC, Las Vegas, Nevada; Mark A. DiCello, DiCello Levitt LLP, Mentor, Ohio; Deborah Dixon, Dixon Diab and Chambers LLP, San Diegо, California; Lisa D. Haba, The Haba Law Firm PA, Longwood, Florida; for Plaintiff-Appellee.
Jacqueline C. Kelly (argued), Nathan Rehn, and Won S. Shin, Assistant United States Attorneys; Damian Williams, United
OPINION
IKUTA, Circuit Judge:
Ten plaintiffs sued Daniel Fitzgerald under the civil remedy provision of the Trafficking Victims Protection Reauthorization Act (TVPRA),
I
A
In 2000, Congress passed the Trafficking Victims Protection Act (TVPA), Pub. L. No. 106-386, div. A, 114 Stat. 1466 (2000) (codified as amended at
An individual who is a victim of a violation of this chapter may bring a civil action against the perpetrator (or whoever knowingly benefits, or attempts or conspires to benefit, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in an act in violation of this chapter) in an appropriate district court of the United States and may recover damages and reasonable attorneys fees.
B
In December 2020, a New York grand jury charged Peter Nygard, “the leader
The indictment provided a specific description of how Nygard and his co-conspirators in the racketeering conspiracy allegedly used the Nygard business enterprise to “facilitate and to conceal their racketeering activity.” The racketeering conspiracy allegedly invоlved using funds from Nygard‘s business enterprise to host events, recruit victims (referred to as “girlfriends“), and arrange for travel, accommodation, and services to those victims for the purpose of luring them into Nygard‘s sex trafficking scheme. Among other activities, Nygard allegedly invited victims to his residences, including in the Bahamas and in Marina del Rey, California, “where Nygard regularly hosted dinner parties and larger, so-called ‘Pamper Parties’ for female guests.” The “Pamper Parties” were “named for the free food, drink, and spa services that Nygard made available at such parties.” At these events, Nygard allegedly “engaged in sexual ‘swaps’ with male friends and business associates, who would bring Nygard a ‘date’ for sex in exchange for access to one of Nygard‘s ‘girlfriends’ for sex.”
On December 14, 2020, Nygard was arrested in Canada, where he remains in custody pending extradition to the United States. Nygard has not yet entered an appearance in the New York criminal case. In the meantime, the government is engaged in an ongoing investigation into Nygard‘s co-conspirators. News reports indicate that Canada has also brought criminal charges against Nygard, resulting in a guilty verdict by a Toronto jury and pending criminal prosecutions in Winnipeg and Montreal. Vjosa Isai, Peter Nygard, Former Fashion Mogul, Convicted of Sexual Assault, N.Y. Times (Nov. 12, 2023), https://www.nytimes.com/2023/11/12/world/canada/peter-nygard-sexual-assault-verdict.html. At oral argument, counsel for the government stated that Nygard would be extradited to the United States “following the resolutiоn of” the Canadian cases. The government represented that it could “not provide a date certain” for when Nygard would be extradited, but that “there is forward movement” in the Canadian criminal actions against Nygard.
C
In June 2022, ten plaintiffs (Jane Doe Nos. 1-10) filed the operative fourth amended complaint (complaint) against Daniel Fitzgerald under the TVPRA‘s civil remedy provision,
The complaint refers extensively to the Nygard criminal indictment and alleges that Fitzgerald was a conspirator in Nygard‘s sex trafficking venture and also formed his own sex trafficking venture.3 For instance, the complaint quotes the Nygard indictment‘s allegation that Nygard used “force, frаud, and coercion to cause women to engage in commercial sex with Nygard and others,” and claims that Fitzgerald was “one of the others” that participated in the coerced sexual acts, including with several Plaintiffs in this case. The complaint also quotes the Nygard indictment‘s allegation that Nygard and his associates, including Fitzgerald, “used fraud, force and coercion to cause at least dozens of adult and minor-aged female victims to engage in commercial sex ... for Nygard‘s sexual gratification and, on occasion, the gratification of Nygard‘s personal friends and business associates.” It then alleges that Fitzgerald “was one of Nygard‘s ‘personal friends’ who engaged in the coerced commerciаl sex acts with adult and minor-aged female victims.” In addition, the complaint quotes the Nygard indictment‘s allegation that Nygard would engage in “‘sexual swaps’ with male friends and business associates, who would bring Nygard a ‘date’ for sex in exchange for access to one of Nygard‘s ‘girlfriends’ for sex.” The complaint alleges that Fitzgerald was “one of the ‘male friends’ referred to in the [Nygard] indictment.” The complaint also alleges that Fitzgerald “was Nygard‘s companion at the pamper parties and dinners,” where “Nygard would instruct his young girlfriends to engage in sex acts” with Fitzgerald. According to the complaint, Fitzgerald “would routinely be at Nygard‘s house, engaging in numerous commercial sex acts” when Nygard was in Marina del Rey.
The complaint further asserts that some оf the plaintiffs were victims of Nygard‘s sex trafficking venture that was described in the indictment. The complaint alleges that Jane Doe Nos. 1-4 and 7-9 were “survivors of the ‘sexual swap’ trafficking scheme exploited by” Fitzgerald and Nygard, and that they can attest that “they were ‘shared’ by Nygard, as part of a coerced sex swap with” Fitzgerald. More specifically, the complaint alleges that Jane Doe No. 1 was swapped and forced to engage in sexual acts with Fitzgerald at a party at Nygard‘s Marina del Rey property. Jane Doe No. 2 alleges she “was lured into a bedroom at Nygard‘s Marina del Rey Property” where she was forced to engage in sex acts with Fitzgerald against her will. The complaint likewise alleges that Jane Doe Nos. 3, 4, 7, and 9 were forced to engage in sex acts with Fitzgerald against their will at parties at Nygard‘s Marina del Rey Property.
In July 2022, Fitzgerald answered the complaint and asserted counterclaims of libel and conspiracy to commit fraud. Fitzgerald alleged that Jane Doe No. 5 attempted to lure him into compromising situations and developed false evidence in order to make false allegations and claims against him.
In October 2022, after discovery commenced in the civil action, the government moved to intervene and stay the proceedings under
The district court granted the motion as to all claims, counterclaims, and parties. It determined that because the complaint alleged that Fitzgerald was a co-conspirator with Nygard, and the government asserted that some of the plaintiffs in the civil action were victims in the criminal action against Nygard, a stay was mandatory under
Fitzgerald now appeals the district court‘s stay order, arguing that the district court erroneously concluded that a stay was mandated under
II
We begin by determining whether we have appellate jurisdiction under
A
We “have jurisdiction of appeals from all final decisions of the district courts of the United States.”
The Supreme Court has held that a stay order is final and appealable if it places the litigants “effectively out of court.” Moses H. Cone Mem‘l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 (1983) (quoting Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715 n.2 (1962) (per curiam)).
In Idlewild, a district court declined to convene a three-judge panel to consider a federal suit challenging the constitutionality of a state statute, on the ground that it should abstain from deciding the case under R.R. Comm‘n of Tex. v. Pullman Co., 312 U.S. 496 (1941). See Moses H. Cone, 460 U.S. at 9 (explaining Idlewild). Idlewild held that the district court‘s abstention ruling put the appellant “effectively out of court” and therefore was final and reviewable. Id. (quoting Idlewild, 370 U.S. at 715 n.2). In Moses H. Cone, a district court stayed an action seeking to compel arbitration of a contract dispute pending resolution of the same arbitrability issue in state court. Id. at 7. In light of its decision in Idlewild, the Supreme Court concluded that the stаy order was a final decision under
Moses H. Cone characterized its rule narrowly, stating that “[w]e hold only that a stay order is final when the sole purpose and effect of the stay is precisely to surrender jurisdiction of a federal suit to a state court.” 460 U.S. at 10 n.11. However, we have expanded the Moses H. Cone doctrine in a series of cases. First, we have applied the doctrine even when a district court‘s stay order would not necessarily result in surrendering jurisdiction of a federal action to a state court. For instance, in Lockyer v. Mirant Corp., we cоnsidered a district court‘s stay of a state attorney general‘s antitrust proceeding against a corporation pending the resolution of that corporation‘s Chapter 11 bankruptcy petitions. 398 F.3d 1098, 1100 (9th Cir. 2005). We noted that the parties and the district court thought there was a “substantial possibility” that the bankruptcy proceedings would moot the attorney general‘s action, although such mooting was not inevitable. Id. at 1102-03. We concluded that the stay put the attorney general “effectively out of court,” and therefore we had jurisdiction to consider the stay order. Id. at 1103.
We took this one step further in Blue Cross & Blue Shield of Alabama v. Unity Outpatient Surgery Center, Inc., where we applied the Moses H. Cone doctrine in circumstances where the stays at issue were “lengthy and indefinite” even though the district court could be expected to resume proceedings after its stay orders had expired. 490 F.3d 718, 724 (9th Cir. 2007). In Blue Cross, a district court issued several orders staying a civil suit pending the resolution of related criminal proceedings in state or federal court, or both. Id. at 723. Although “[t]he precise duration of the stays [was] difficult to discern,” we noted that “most of the defendants requested stays ‘pending the resolution of the criminal investigations and/or prosecutions that have arisen in connection with the acts alleged in plaintiffs’ complaint.‘” Id. After reviewing cases in other circuits, we concluded that “lengthy and indefinite stays place a plaintiff effectively out of court.” Id. at 724. While acknowledging that the plaintiffs’ civil litigation “may eventually resume,” we nevertheless thought that “such stays create а danger of denying justice by delay,” raising “the risk that witnesses’ memories will fade and evidence will become stale,” or that “plaintiffs may go out of business awaiting recovery
Finally, we have applied the Moses H. Cone doctrine in a case where the duration of the district court‘s stay order did not depend on the conclusion of proceedings in another court. See Davis, 745 F.3d at 1307. In Davis, a district court stayed the federal civil rights claim of a prisoner until he was found restored to competency. Id. We held that the stay was “both lengthy and indefinite, if not infinite,” and had “already lasted longer than the 18-month delay we deemed sufficient for review in Blue Cross.” Id. at 1309. Therefore, we concluded that the stay put the plaintiff effectively out of court, and that we had jurisdiction under
In sum, our cases have applied the Moses H. Cone doctrinе broadly. We have asserted jurisdiction over a district court‘s stay order that effects a lengthy and indefinite stay, regardless whether the district court is surrendering jurisdiction to a state or federal court, and even when it is possible that the district court issuing the stay will resume proceedings after the stay has expired. We have also indicated that an 18-month delay may qualify as a “lengthy” stay for purposes of this doctrine. Blue Cross, 490 F.3d at 724; Davis, 745 F.3d at 1309. While we have established no “categorical rule” for how long a stay must last to be considered a final order, 18 months is a “guidepost for our analysis.” In re PG&E Corp. Sec. Litig., No. 22-16711, --- F.4th ---, 2024 WL 1947143, at *6 (9th Cir. May 3, 2024).
B
In light of our precedent, we conclude that the district court‘s stay order here effectively placed the litigants out of court and is therefore a final decision under
In contesting this conclusion, the government argues that the Moses H. Cone doctrine applies when the stay order places the plaintiff effectively out of court, but not when the stay order places the
The government makes several additional arguments based on distinctions between this case and relevant precedent. First, it argues that the stay order at issue here is not final because Fitzgerald failed to show that “the sole purpose and effect of thе stay” was to surrender jurisdiction of the plaintiffs’ civil claims to the court where the relevant criminal action is pending, as was the case in Moses H. Cone.
It further argues that Fitzgerald failed to establish that the stay order “amounts to a dismissal of the suit,” Moses H. Cone, 460 U.S. at 10, or “amounts to a refusal to proceed to a disposition on the merits,” Blue Cross, 490 F.3d at 724. But under our precedent, a district court‘s stay order need not effect a surrender of jurisdiction to another court, Davis, 745 F.3d at 1309, and an “indefinite delay amounts to a refusal to proceed to a disposition on the merits,” Blue Cross, 490 F.3d at 724. Therefore, the government‘s arguments fail. The government also contends that the Moses H. Cone doctrine does not apply here because the stay is not likely “infinite” as was the case in Davis. 745 F.3d at 1309. This argument also fails, because Davis did not modify Blue Cross‘s requirement that the stay order need оnly be lengthy and indefinite. Finally, the government argues that the Moses H. Cone doctrine does not apply here because “the TVPRA itself contemplates the possibility of lengthy stay orders, as it mandates a stay even on the existence of a criminal ‘investigation.‘” Again, we disagree. While the language of
III
Having confirmed our jurisdiction, we now consider whether the district court erred in issuing a stay under
A
In considering whether the district court erred in granting the mandatory stay, we begin with the text of the statute. See United States v. Brown, 42 F.4th 1142, 1146 (9th Cir. 2022).
Under
Fitzgerald argues that
This argument fails, because it is based on the аssumption that if a civil action and criminal action arise out of the same occurrence, then the defendants in the civil action and the criminal action must be the same. But this is not necessarily the case. For instance, where an occurrence involves multiple perpetrators or persons who benefit from a TVPRA violation, the government may choose to prosecute only some of the perpetrators or culpable individuals involved, while a plaintiff may choose to bring a civil action against additional persons involved in the same occurrence.
B
Having identified the three requirements that, if present, mandate the issuance of a stay, we consider whether those requirements are satisfied here.
First, there is no dispute that a criminal action is pending. Nygard has been charged in a criminal indictment, and the government‘s investigation into Nygard remains ongoing.
We next consider whether this civil action and the Nygard criminal action arose out of the “same occurrence.” Because the phrase “same occurrence” is not defined in the statute, our textual analysis “begins by consulting contemporaneous dictionaries, because we are ‘bound to assume that the legislative purpose is expressed by the ordinary meaning of the words used.‘” Diaz-Rodriguez v. Garland, 55 F.4th 697, 712 (9th Cir. 2022) (en banc) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)). In 2003, when the TVPRA was enacted, the word “same” meant “resembling in every relevant respect,” Merriam-Webster‘s Collegiate Dictionary 1099 (11th ed. 2003), and “occurrence” meаnt “something that occurs” or “something that happens or takes place,” id. at 858. Therefore, we must determine whether one or more of the events that took place and gave rise to the claims in the plaintiffs’ action resembles in every relevant respect one or more of the events that gave rise to the charges in the indictment.
Because the government did not introduce any evidence on this issue, we make this determination based on the pleadings. Contrary to Fitzgerald‘s argument that a litigant may not satisfy
(D.C. Cir. 2009) (comparing plaintiff‘s complaint to charging documents in criminal prosecutions in order to determine whether the actions were sufficiently “related” under
In arguing that there must be a “baseline evidentiary threshold” beyond the pleadings, Fitzgerald relies on two unreported district court cases, Tianming Wang v. Gold Mantis Construction Decoration (CNMI), LLC., No. 1:18-cv-0030, 2020 WL 5983939 (D. N. Mar. I. Oct. 9, 2020), and Cortez-Romero v. Marin J Corp, No. 2:20-cv-14058, 2020 WL 3162979 (S.D. Fla. June 11, 2020). Neither is on point. In Tianming Wang, the district court denied the defendant‘s motion for a stay under
Comparing the plaintiffs’ complaint and the Nygard indictment here, we conclude that the complaint alleges events that are identical to the events that gave rise to the claims in the indictment. To start, a clear connection exists between the events alleged in the indictment and the events at issue in the complaint. For instance, the complaint quotes the indictment‘s allegations that Nygard used “force, fraud, and coercion to cause women to engage in commercial sex with Nygard and others,” and alleges that Fitzgerald was “one of the others” that participated in the coerced sexual acts, including with several Plaintiffs in this case. The complaint also quotes the indictment‘s allegations that “Nygard would engage in sexual ‘swaps’ with male friends and business associates, who would bring Nygard a ‘date’ for sex in exchange for access to one of Nygard‘s ‘girlfriends’ for sex,” and alleges that Fitzgerald was “one of the ‘male friends’ referred to in the [Nygard] indictment.” Further, the complaint alleges that Fitzgerald was involved in specific events described in the indictment. According to the indictment, Nygard hosted “Pamper Parties” and dinners at his property in Marina del Rey, and forced victims to comply with his sexual demands. The complaint alleges that Fitzgerald “was Nygard‘s companion at the pamper parties and dinners,” where “Nygard would instruct his young girlfriends to engage in sex acts” with Fitzgerald, and that Fitzgerald “would routinely be at Nygard‘s house, engaging in numerous commercial sex acts” in Marina del Rey. This establishes that the complaint is based, at least
The third element, that the plaintiffs in the civil action are the victims of the same occurrence alleged in the criminal action, is also satisfied. The complaint alleges that seven of the plaintiffs, Jane Doe Nos. 1-4 and 7-9, “are survivors of the ‘sexual swap’ trafficking scheme exploited by [Fitzgerald] and Nygard,” and that “they were ‘shared’ by Nygard, as part of a coerced sex swap with” Fitzgerald. The complaint also alleges that Jane Doe Nos. 1-4, 7, and 9 were swapped or forced by Nygard to engage in sexual acts with Fitzgerald at various events at Nygard‘s Marina del Rey property. Therefore, the complaint sufficiently alleges that some of the plaintiffs were victims in some of the same occurrences that gave rise to the criminal action against Nygard.
We conclude that the three requirements that mandate the issuance of a stay under
C
Finally, we consider whether, if a stay is required under
Section 1595(b)(1) provides that “[a]ny civil action filed under [
AFFIRMED.