Capdeboscq v. Francis , 98 F. App'x 988 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 14, 2004
_____________________ Charles R. Fulbruge III
Clerk
No. 03-30914
Summary Calendar
_____________________
JAIME CAPDEBOSCQ, ET AL.,
Plaintiffs,
JAIME CAPDEBOSCQ,
Plaintiff - Appellee,
WHITNI CANDIOTTO,
Intervenor Plaintiff - Appellee,
versus
JOSEPH R. FRANCIS, ET AL.,
Defendants,
JOSEPH R. FRANCIS, MANTRA FILMS, INC.,
Defendants - Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
District Court Cause No. 03-CV-556
_________________________________________________________________
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.1
PER CURIAM:
This appeal arose from the district court’s denial of the
1
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
1
appellants’ motion to stay trial proceedings pending resolution
of a unrelated criminal case. Ordinarily, this Court's
jurisdiction is limited to the review of "final decisions of the
district courts of the United States ... except where a direct
review may be had in the Supreme Court."2 Because an order
denying a motion to stay is not a final judgment, this Court must
first examine the basis for appellate jurisdiction.
Appellate Jurisdiction
The appellants, Joseph R. Francis and Mantra Films, Inc.,
maintain appellate jurisdiction exists under the collateral order
doctrine. The appellees disagree and have asked this Court to
dismiss the appeal. The collateral order doctrine is applicable
where (1) the order conclusively determines the disputed
question, (2) the issue is important and separate from the merits
of the case, and (3) the order is effectively unreviewable on
appeal from final judgment.3
Whether the district court’s order conclusively determined
the disputed question. This action arose from the plaintiff-
appellees’ inclusion on the cover of the video “Girls Gone Wild
Doggy Style.” The plaintiff-appellees allege that Joseph R.
Francis–president and owner of Mantra Films, Inc., and Calvin
Broadus, a.k.a. Snoop Doggy Dog, pressured them to pose for them
2
28 U.S.C. § 1291 (2000).
3
See E.E.O.C. v. Exxon Corp., 202 F.3d 755, 757 (5th Cir.
2000).
2
by flashing their bare breasts, provided them with intoxicants,
and assured them that their likeness would not be used for the
video. Despite the alleged assurances, the plaintiff-appellees
appear on the cover of the video.
The plaintiff-appellees named Francis, Mantra Films and
Broadus as defendants in their lawsuit. Six months after the
case was filed, Francis and Mantra Films moved to stay trial
proceedings pending resolution of a criminal investigation and
prosecution against Francis in Florida. Francis and Mantra
contended that proceeding with the civil lawsuit would eviscerate
Francis’s constitutional right against self-incrimination, and
expose him to substantial and irreparable prejudice. In the
alternative, Francis and Mantra asked the district court to enter
a protective order that would preclude discovery into the acts
alleged in the Florida criminal proceedings, or ensure that any
information obtained from such inquiry was not shared with any
third-party, particularly with the Florida prosecutors. After a
hearing, the district court denied the motion for a stay, but
entered a protective order that prohibited the plaintiff-
appellees from inquiring into the Florida proceeding. That order
conclusively determined the question of whether trial proceedings
would be stayed.
3
Whether the issue is important and separate from the merits
of the case. The issue of whether to stay proceedings in the
civil case is important because discovery in the civil case might
implicate Francis’s right against self-incrimination, and staying
the case potentially prejudices the plaintiff-appellees from
prosecuting their lawsuit. But staying trial proceedings or
proceeding with the case has nothing to do with the merits of
either dispute. In the civil case, the plaintiff-appellees
complain about an events that allegedly occurred on February 12,
2002, Mardi Gras Day, on Bourbon Street in New Orleans. The
criminal proceeding alleges violations of Florida’s provisions
against racketeering; in particular, counts of alleged sexual
activity on the part of Francis during Spring Break 2003 in
Panama City, Florida. Francis and Mantra maintain the Florida
prosecution intends to use the Spring Break events to prove a
pattern and practice on the part of Francis. Because the civil
proceeding involves events different from the criminal
proceeding, the question of whether the civil case should be
stayed is separate from the merits of either case, and does not
require this Court to consider the merits of either case.
Whether the order is effectively unreviewable on appeal from
final judgment. To be effectively unreviewable on appeal, an
issue must be “too important to be denied review and too
independent of the cause itself to require that appellate
4
consideration be deferred until the whole case is adjudicated."4
This Court has exercised jurisdiction over an interlocutory order
under the collateral order doctrine where an appeal from a final
judgment would result in the loss of a protected liberty
interest.5 The appellants maintain that Francis’s right against
self-incrimination is too important to be denied appellate review
and that denying the request for a stay is effectively
unreviewable on appeal from a final judgment because it will
result in loss of this protected interest.
The Fifth Amendment to the United States Constitution
provides that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” This right
against self-incrimination “not only protects the individual
against being involuntarily called as a witness against himself
in a criminal prosecution but also privileges him not to answer
official questions put to him in any other proceeding, civil or
criminal, formal or informal, where the answers might incriminate
him in future criminal proceedings.”6 “The central standard for
the privilege's application has been whether the claimant is
confronted by substantial and 'real,' and not merely trifling or
4
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949).
5
See In re Grand Jury Proceedings, 43 F.3d 966, 970 (5th
Cir. 1994) (considering turn-over of privileged documents as
irreparable injury, effectively not reviewable on appeal).
6
Lefkowitz v. Turley, 414 U.S. 414 70, 78 (1973).
5
imaginary, hazards of incrimination.”7 The right against self-
incrimination is undoubtably important, but whether that right is
implicated by the district court’s order is a more difficult
question.
The district court’s order required the plaintiff-appellees
to “limit their discovery (through depositions or otherwise) to
matters based on the conduct surrounding Mardi Gras 2002 in New
Orleans, Louisiana (and not Spring Break 2003 in Panama City,
Florida).” Thus, the only harm to befall the defendant-
appellants by continuing the civil lawsuit appears to be the
discovery of facts related to the appellants’ conduct during
Mardi Gras incident–the subject of the civil lawsuit. The
appellants, however, maintain this consequence constitutes
irreparable harm because the plaintiff-appellees have expressed
their intent to share the results of their discovery about the
Mardi Gras incident with the Florida prosecutors in an effort to
help prove violations of Florida’s provisions against
racketeering. Purportedly, information about the Mardi Gras
incident could demonstrate a pattern of activity supporting
violations of Florida provisions against racketeering.
The Florida criminal information charges Francis and Mantra
Films with two counts of violating the provisions of the Florida
Statutes that prohibit racketeering, based on conduct that
7
Marchetti v. United States, 88 S. Ct. 697, 705 (1968).
6
occurred “between and including March 3, 2003, and April 3,
2003,” in Bay County Florida. The information details 40
specific allegations of incidents of racketeering activity in
support of those counts. According to the information, each of
the allegations occurred on either March 31, 2003, or April 2,
2003. In addition, the information alleged 17 counts of
violations of other sections of the Florida Statutes occurring on
March 31, 2003; and 5 counts allegedly occurring on April 2,
2003. The information alleges that each count and each
allegation occurred in Bay County, Florida. As a result, answers
given in discovery in the civil lawsuit about the events that
allegedly occurred on February 12, 2002, in New Orleans cannot
incriminate Francis in his criminal proceeding in Florida because
the New Orleans events occurred at a different time than the acts
alleged in the criminal information. While discovery about the
Mardi Gras incident might assist the Florida prosecutor in
determining a trial strategy, the information is irrelevant to
the allegations in the criminal information and could not be used
in the criminal prosecution. This consequence does not implicate
Francis’s right against self-incrimination because nothing in the
record indicates the Florida prosecutor, or any other prosecutor
seeks to charge Francis with criminal violations stemming from
the February 12, 2002 Mardi Gras incident. Even though a Bay
County Sheriff’s Department investigator included the Mardi Gras
incident in an affidavit, neither the criminal complaint or the
7
information mentions the incident. In the absence of at least a
criminal investigation into the Mardi Gras incident, Francis does
not face any real or substantial harm from discovery in the civil
lawsuit.8 As a result, the appellants’ argument about why the
collateral order doctrine applies to this appeal fails, and the
doctrine does not apply. Because the doctrine does not apply,
this Court has no jurisdiction over the appeal. Accordingly, the
Court DISMISSES the appeal.
DISMISSED.
8
See Marchetti, 88 S. Ct. at 705.
8