DISTRICT COURT, COUNTY OF BOULDER

STATE OF COLORADO
DATE FILED: July 21, 2020 2:34 PM
Court Address: FILING ID: 4A000DCE999DF
CASE NUMBER: 2020CV30522

Plaintiff(s): ASHLEY W. MARIE

v.

Defendant(s): JUSTIN L. BANNAN and BLACK LAB  COURT USE ONLY 

SPORTS FUND I, LLC d/b/a BLACK LAB SPORTS,
LLC, a Delaware limited liability company Case Number: 2020CV30522

Attorneys for Defendant Justin Bannan:

Kevin G. Ripplinger, #35165
Div.: 3
Brian D. Kennedy, #33023
PATTERSON RIPPLINGER, P.C.
5613 DTC Parkway, Suite 400
Greenwood Village, Colorado 80111
Phone Number: (303) 741-4539
Fax Number: Not designated.

MOTION TO STAY PROCEEDINGS

Defendant Justin L. Bannan, by and through his attorneys, Patterson Ripplinger, P.C.,

submits the following Motion to Stay Proceedings. Defendant provides:

Certification Pursuant to C.R.C.P. 121, § 1-15(8): Undersigned counsel has

conferred with counsel for Plaintiff concerning the relief requested herein. This Motion will be

opposed.

I. INTRODUCTION

This action arises from a shooting that Plaintiff alleges took place on October 16, 2019 at

or near 3550 Frontier Ave., Unit D, Boulder, CO 80301. Plaintiff claims that she was lawfully

on the premises and that, while she was in the process of opening a locked door and entering a

room at the location, she was shot by Defendant Bannan while he was intoxicated because of his
use of cocaine and/or other substances. See Pl. Compl., ¶¶ 4, 7-8, 10-12, 14-15. Plaintiff alleges

that she has suffered severe and permanent injuries and asserts that her damages exceed

$100,000. See Pl. Compl., ¶¶ 11-12, 23-26; see also Civil Case Cover Sheet. Plaintiff brought

this civil action on June 25, 2020. Defendant Bannan was arrested by law enforcement officers

near the time of the alleged incident and has been charged with: two counts of Attempted Murder

(F2), based on alternate theories of criminal liability; two counts of Assault in the First Degree

(F3), based on alternate theories of criminal liability; one count of Possession of a Weapon on

School Grounds (F6); and sentence enhancement counts asserting that Defendant Bannan’s

alleged actions constitute crimes of violence. See Criminal Complaint attached as Exhibit A.

The case number of the Criminal action is Boulder County, Colorado, District Court Case No.

2019CR2042.

The Court in the criminal action held a preliminary hearing on February 14, 2020. The

court found probable cause and bound the case over. The arraignment has been continued

several times. The final arraignment is now set for August 6, 2020 at 8:15 a.m. As the Court is,

no doubt, well aware, Defendant Bannan has an absolute right to remain silent in the context of

the criminal case. He may not be compelled to testify without his consent, and he need not give

any statements. Given the seriousness of the criminal charges, he will likely avail himself of that

right. In the context of the civil case now pending, Defendant Bannan may, similarly, decline to

answer or respond to questions to prevent his answers from being used in the criminal case now

pending. However, should he elect to do so, his assertion of his Fifth Amendment privilege may

be used against him in the civil action. This effectively leaves Defendant with a Hobson’s

choice: risk severe prejudice and potential loss in his civil case by invoking his Fifth Amendment

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right, or risk the use of any civil testimony or responses being used against him in his criminal

case.

It is not necessary or appropriate to place Defendant Bannan in this untenable position,

particularly given the seriousness of both the criminal and civil claims. A far better option

would be to stay the civil proceedings until the criminal litigation is concluded. This would

preserve the Plaintiff’s right to seek to recover her alleged damages but would also preserve

Defendant Bannan’s right to defend both the civil and criminal actions on their respective merits.

II. ARGUMENT

A. Legal Standards.

A trial court generally has discretion to grant or deny a stay. This discretion derives from

the power inherent in every court to control the disposition of the causes on its docket with

economy of time and effort for itself, for counsel, and for litigants. In re Application for Water

Rights of U.S., 101 P.3d 1072, 1080–81 (Colo. 2004)(citing Landis v. N. Am. Co., 299 U.S. 248,

254–55, 57 S.Ct. 163, 81 L.Ed. 153 (1936); In re Marriage of Fleet, 701 P.2d 1245, 1247

(Colo.App.1985)). The party requesting a stay must demonstrate a pressing need, and that it will

suffer prejudice that exceeds potential harm to the other parties if the stay is not granted. Id. at

1081.

Determining whether to stay a civil proceeding pending the outcome of a parallel

criminal proceeding lies within the sound discretion of the court. See Ben Ezra, Weinstein & Co.

v. Am. Online, Inc., 206 F.3d 980, 987 (10th Cir. 2000); Mid-America Process Serv. v. Ellison,

767 F.2d 684, 687 (10th Cir. 1985). “When applying for a stay, a party must show ‘a clear case

of hardship or inequity’ if ‘even a fair possibility’ exists that the stay would damage another

party.” Ben Ezra, 206 F.3d at 987. “Faced with a request for a stay, the trial court must examine

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all the circumstances of the case before it.” In re Application for Water Rights of U.S., 101 P.3d

at 1081.

“When deciding whether the interests of justice seem to require a stay, the court must

consider the extent to which a party’s Fifth Amendment rights are implicated.” Creative

Consumer Concepts, Inc. v. Kreisler, 563 F.3d 1070, 1080 (10th Cir. 2009). The Fifth

Amendment of the United States Constitution protects an individual from giving incriminating

testimony against himself. The Fifth Amendment privilege is available to a witness, or party, in

both civil and criminal proceedings. Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977)(citing

Malloy v. Hogan, 378 U.S. 1, 11 (1964)). The United States Supreme Court has “broadly

construed” the protection afforded by the Fifth Amendment privilege. Maness v. Meyers, 419

U.S. 449, 461 (1975); see also Hoffman v. United States, 341 U.S. 479, 486 (1951) (instructing

lower courts to give the 5th Amendment privilege a “liberal construction.”). The Fifth

Amendment “protects against any disclosures which the witness reasonably believes could be

used in a criminal prosecution or could lead to other evidence that might so be used.” Kastigar v.

United States, 406 U.S. 441, 445 (1972).

While the implication of a defendant’s 5th Amendment rights is one consideration in

assessing the propriety of a stay of civil proceedings pending the outcome of a criminal matter,

the court may also consider “some combination” of the following factors: (1) the extent to which

the issues in the criminal case overlap with those presented in the civil case; (2) the status of the

case, including whether the defendant has been indicted; (3) the interests of the plaintiff in

proceeding expeditiously weighed against the prejudice to plaintiff caused by the delay; (4) the

private interests of and burden on the defendant; (5) the interests of the courts; (6) the public

interest. Hilda M. v. Brown, 2010 WL 5313755, at *3 (D.Colo. Dec. 20, 2010) (citing Trustees of

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the Plumbers and Pipefitters Nat’l Pension Fund v. Transworld Mechanical, Inc., 886 F.Supp.

1134, 1139 (S.D.N.Y. 1995)).

B. Fifth Amendment Implications and Overlap of Issues.

“Simultaneous criminal and civil cases involving the same or closely related facts may

give rise to Fifth Amendment concerns sufficient to warrant a stay of the civil proceedings.”

Chao v. Fleming, 498 F. Supp. 2d 1034, 1037 (W.D. Mich. 2007). The extent of overlap is the

“most important factor in ruling on a motion to stay.” SEC v. Nicholas, 569 F. Supp. 2d 1065,

1070 (C.D. Cal. 2008) (citing Milton Pollack, PARALLEL CIVIL & CRIMINAL

PROCEEDINGS, 129 F.R.D. 201, 203 (1989))(emphasis added).

In the criminal action, the principal issues are: whether Defendant Bannan was present at

3550 Frontier Ave., Unit D, Boulder, CO 80301 on October 16, 2019, whether he had a firearm

at the time, whether he fired at Plaintiff, and if so, what was Defendant Bannan’s intent and

mental state at the time. This would include examining whether and to what extent Defendant

Bannan was intoxicated and whether he voluntarily consumed intoxicating substances. Jurors in

the criminal case will be asked to determine whether and to what extent Defendant Bannan

appreciated the risk of his alleged conduct. The criminal case would also involve evidence of

whether Plaintiff was shot and the extent of her injuries. In other words, the criminal action will

cover Plaintiff’s injuries and the question of causation.

In the civil case, the issues are likely to be almost identical, except that Plaintiff will also

seek to present evidence as to the details of any injury or disability, the cost of medical services

and amounts of economic and noneconomic damages, as well as the role, if any, of Black Lab

Sports Fund I, LLC, a company of which Plaintiff claims is an owner of the premises located at

3550 Frontier Ave., Unit D, Boulder, CO 80301 and of which Plaintiff claims Bannan is a part

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owner. Thus, particularly to the extent Defendant Bannan might be required to respond to

discovery or to testify, the subjects upon which he would be examined are almost certain to be

identical to the issues in the criminal case. This means, in practical terms, that any answer or

response Defendant Bannan might give, any document he might produce and anything he might

say in the context of the civil case will be directly relevant to the criminal action. Indeed, even if

Defendant Bannan were simply to answer Plaintiff’s complaint, he must make potentially

incriminating statements, because he would be required to admit or deny each factual allegation

pleaded by Plaintiff. Those factual allegations go to the heart of the issues in the criminal case.

Any information provided by Defendant Bannan in this civil action can be used against

him at trial and an in any pre or post-trial proceeding. This is precisely the type of danger the 5th

Amendment protects against. See Hoffman, 341 U.S. at 486-87 (the prospective witness must

show at the very least that he is faced with some authentic danger of incrimination).

Demonstration of some authentic danger is not a particularly onerous burden. While chimerical

fears will not suffice, the prospective witness need only show some reasonable possibility that,

by testifying, he may open himself to prosecution. See In Re Kave, 760 F.2d 343, 354 (1st Cir.

1985). Where there is a criminal case ongoing and where the top two counts are class two

felonies, with crime of violence sentence enhancers being alleged by the People, there is

obviously an authentic danger to Defendant Bannan here.

If this matter is not stayed, Defendant Bannan will be put in the untenable position of

risking severe prejudice and potential loss in his civil case by invoking his Fifth Amendment

right or risking the use of any testimony or other responses against him should his criminal case.

See Cruz v. County of Dupage, 1997 U.S. Dist, LEXIS 9220 (N.D. Ill. June 27, 1997); see also

Brumfield v. Shelton, 727 F. Supp. 282, 284 (E.D. La. 1989) (where there is real and appreciable

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risk of self-incrimination an appropriate remedy would be to [stay] the civil case until

termination of the criminal action); Brock v. Tolkow, 109 F.R.D. 116, 120 (E.D.N.Y 1985) (a

stay until after criminal proceedings will enable the defendant to defend the civil case vigorously

with fear of subsequent prosecution.). Thus, a stay is appropriate.

C. Status of the Respective Cases.

This civil action is in its very early stages. No defendant has filed an answer or a motion

to dismiss. No case management order has been issued. No disclosures have been made. No

trial date has been set, and no discovery is underway. The criminal action, in contrast, is well

under way. The preliminary hearing has been held, and the Court in the criminal action has

indicated that the August 6, 2020 arraignment date will be the final arraignment date, meaning

that a plea of not guilty will likely be entered on August 6, 2020, and trial will be scheduled at

that time. The status of the respective cases also militates in favor of a stay.

D. Plaintiff’s Interests.

Defendant Bannan anticipates that Plaintiff will argue a stay pending the outcome of the

criminal case will cause delay in the conclusion of this civil action. However, any modest

concern about inconvenience or delay in the civil matter is clearly overshadowed by Defendant

Bannan’s interest in “avoiding the quandary of choosing between waiving [his] Fifth

Amendment rights or effectively forfeiting the civil case.” Trustees of the Plumbers and

Pipefitters Nat’l Pension Fund v. Transworld Mechanical, Inc., 886 F.Supp. 1134, 1140

(S.D.N.Y. 1995). This is particularly true when, as here, the subject matter of the civil and

criminal matter is identical. See Id.

Further, generally the concern in avoiding delay has focused on a plaintiff’s ability to

quickly collect a judgment. However, under the circumstances of this case any delay in this

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regard is non-existent or de minimus. Defendant Bannan is on supervised release. He is not

going anywhere, and there is no indication he has or will dissipate any assets he has. Plaintiff’s

interest in resolution of this civil matter and collection of a judgment does not favor a denial of

stay. In fact, Plaintiff’s interests will not be prejudiced by a stay in any meaningful way.

Additionally, in light of the COVID-19 crisis, civil jury trials are being continued well

into 2021 and even 2022. Even without a stay, it is extremely unlikely that this civil action can

be resolved quickly. A stay would, therefore, change little in terms of the timing of the

resolution of the civil action, but it would protect Defendant Bannan’s rights, preventing him

from being forced to choose between waiving his Fifth Amendment rights or effectively

forfeiting the civil case.

E. Judicial Economy and Conservation of Parties’ Resources.

Judicial economy and conserving the resources of the parties is also a consideration.

Should this matter proceed before the conclusion of the criminal action, the court will have to

consume considerable time and resources determining the parameters of Defendant Bannan’s

Fifth Amendment right. While these concerns could certainly be addressed, the consumption of

time and resources involved in dealing with these issues can be avoided altogether by a stay.

Perhaps more importantly, a stay would conserve the resources of the parties. At the criminal

trial, it is likely that most of the witnesses who might be called in the civil case will testify.

Their testimony will be recorded or captured by a court reporter. Transcripts of this testimony

will be available to the parties in this action, likely eliminating the need for a significant amount

of discovery and deposition time. Rather than permitting the case to move forward immediately,

effectively forcing the parties to commence discovery efforts in order to complete the process

and disclose experts on time, it makes more sense to stay the case so that the parties will have

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access to the criminal case materials when making decisions about what discovery will be

necessary. This will save time and money and will avoid the need to burden non-parties by

requiring them to attend depositions covering the same topics that will be addressed during the

criminal trial. While it is certainly true that some discovery will need to be done, it can be

meaningfully reduced by a stay. Thus, this factor also militates in favor of staying the

proceedings.

F. Public Interest.

There is no clear public interest in these civil proceeding going forward immediately. To

the extent the public good is at stake, the citizens of the State of Colorado have an interest in

ensuring that the justice system functions fairly. That requires the criminal case against

Defendant Bannan go forward with appropriate guarantees of Defendant Bannan’s Constitutional

rights. This helps ensure that he will receive a fair trial, providing the public some assurance that

an innocent man is not convicted and that, if a conviction is to occur, that is on the correct

charge(s). Similarly, the public’s interest in the civil case is to ensure that no party is subject to

significant unfair prejudice so that the outcome is fair and trustworthy. Certainly, putting

Defendant Bannan in the position of having to choose between exercising his rights in the

criminal case and forfeiting the civil case or waiving his rights in a criminal case where he could

be sentenced to a lengthy prison term would constitute a substantial and unfair prejudice. Thus,

to the extent the public has an interest in this case, it would be better served by a stay.

G. Logistics.

It would be most appropriate to stay this matter immediately, rather than requiring an

answer be filed by Defendant Bannan. In order to avoid multiple motions, Defendant Bannan

requests this matter remain stayed until further order of the Court. To keep the court apprised of

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progress in the criminal case, Defendant Bannan suggests that his counsel file a brief status

report every 60 days. In the event the criminal case is resolved through dismissal, plea or trial,

Defendant Bannan’s counsel would notify the court within 72 hours of such an event.

III. CONCLUSION

Permitting this case to go forward before the criminal case has been concluded will

severely and needlessly prejudice Defendant Bannan. Bannan is facing serious felony charges

that could result in his being imprisoned for the rest of his life. It is imperative that he be able to

defend the criminal case to the best of his ability. Where this case is just beginning and where

the criminal case is well underway, there is no reason to put Defendant Bannan in the impossible

position of choosing between exercising a right to remain silent enshrined in the United States

Constitution and defending this civil action. A stay would permit him to do both. Granting a stay

would also be consistent with the public interest in ensuring fair trials and with principles of

judicial economy and conserving the resources of the parties.

Granting a stay would not significantly prejudice Plaintiff. There is no meaningful risk

of dissipation of Defendant Bannan’s assets, particularly given that bring this civil matter to trial

will, at present, likely be substantially delayed by the COVID-19 crisis regardless. Weighed

against the startling prejudice Defendant Bannan would face if the action is not stayed, a stay is

clearly appropriate.

WHEREFORE, Defendant Justin L. Bannan prays for an Order staying all proceedings in

this civil action until further order of the Court.

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 Respectfully submitted this 21st day of July, 2020.

PATTERSON RIPPLINGER, P.C.

___s/ Brian D. Kennedy

Kevin G. Ripplinger, #35165
Brian D. Kennedy, #33023
Attorneys for Defendant

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was e-filed this 21st day of
July, 2020, via Colorado Courts E-Filing with instructions to serve the following:

Marc Harden
Yerin Cho
ZANER HARDEN LAW, LLP
1610 Wynkoop St., Suite 120
Denver, CO 80202
Attorneys for Plaintiff

Stewart D. Cables
HASSAN + CABLES, LLC
1035 Pearl St., #200
Boulder, CO 80302
Attorney for Plaintiff

__s/ Brenda Contreras

Brenda Contreras

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