MEMORANDUM OPINION & ORDER Plaintiff Morgan Weidinger, a professional musician and performing artist, brings this tort action against Defendant Erik Djokic, alleging that Djokic sent her lewd and threatening messages over the course of about ten months in 2021 and followed her to concert venues where she was performing. Pending before the Court is Djokic’s motion to dismiss three of the claims in the First Amended Complaint (the “Complaint”), and his motion to stay the case until the resolution of a parallel criminal proceeding against him. For the reasons that follow, the motion to stay is granted; the Court will defer a decision on Djokic’s motion to dismiss until the stay is lifted. FACTUAL BACKGROUND1 Weidinger is a resident of New York who performs in New York State and maintains a presence on social media platforms, streaming services, and blogs to promote her music and live performances. Compl. 6. She alleges upon information and belief that Djokic is a resident of Evanston, Illinois and Weston, Connecticut. Id. 4. Around January 2021, Djokic began sending Weidinger messages on social media that became increasingly threatening and harassing. Id. 8. According to the Complaint, Djokic sent Weidinger photos and videos of his genitals and of himself masturbating. Id. He professed his love for Weidinger, called her his wife and attempted to send her packages. Id. Djokic told Weidinger he was buying a house close to her so that they could live together, claimed to know her family, and allegedly contacted Weidinger’s sister. Id. On July 29, 2021, Djokic appeared at one of Weidinger’s shows in Manhattan. Id. 9. Although the venue’s security successfully persuaded Djokic to leave, Djokic’s appearance at one of Weidinger’s shows placed her “in immediate and genuine fear of being attacked, assaulted, and/or sexually assaulted by” Djokic. Id. Weidinger emailed Djokic on August 6, 2021, telling him that “he was scaring her, and that she wanted him to leave her alone and never contact her again.” Id. 12. In fear of being harmed by Djokic, Weidinger hired private security. Id. 15. On October 2, 2021, Djokic again appeared at one of Weidinger’s shows, this time at an outdoor music festival in Kingston, New York. Id. 16. Weidinger saw Djokic approaching her while she was walking from the bathroom facilities back to her vehicle, and ran in the opposite direction, contacting her private security and the Kingston Police Department. Id. The Kingston Police temporarily detained Djokic and confiscated a pocketknife he had in his possession, but did not place him in custody. Id. On October 17, 2021, Djokic attempted to see Weidinger a third time in person, traveling to Kingston, New York. Id. 17. Weidinger filed an order of protection against Djokic in Kingston City Court on October 17, 2021, which was served on him two days later. Id. On December 22, 2021, a criminal complaint was filed against Djokic in the Southern District of New York for one count of stalking in violation of 18 U.S.C. §§2261A(1)(B), 2261A(2)(B) and 2. United States v. Djokic, 21 Mag. 12285 (S.D.N.Y. Dec. 22, 2021); see also Krissoff Decl. Ex. B (the “Criminal Complaint”). Although the Criminal Complaint does not identify Weidinger by name, it alleges substantially similar conduct to that alleged in this action, including that Djokic sent harassing emails on an almost daily basis for around ten months, as well as photos of his genitalia and videos of himself masturbating. The Criminal Complaint further alleges that Djokic called “Victim-1″ his wife, demanded that she respond to him, and attempted to confront her “at least twice” at her musical performances, including on July 29, 2021 in New York and October 2, 2021 in Kingston, New York. On January 12, 2023, Magistrate Judge Lehrburger approved an eighteen-month deferred prosecution agreement between Djokic and the government. United States v. Djokic, 21 Mag. 12285 (S.D.N.Y. Jan. 12, 2023); see Krissoff Decl. Ex. D. The agreement requires Djokic to be employed or attend school and prohibits him from contacting Weidinger and from leaving the Northern District of Illinois without the permission of his pretrial services officer. It also requires him to maintain a curfew and submit to location monitoring, as well as to pay restitution in the amount of $14,760. The agreement provides that the government will move to dismiss the Complaint against Djokic after the completion of his term of supervision if he complies with the conditions of the agreement. It also makes clear that the U.S. Attorney’s Office “may at any time proceed with prosecution” if the Office “in its sole discretion, [should] deem such action advisable.” PROCEDURAL BACKGROUND Weidinger initiated this action on September 30, 2022, asserting tort claims for negligent infliction of emotional distress, intentional infliction of emotional distress, assault, and negligence. After Djokic moved to dismiss the Complaint, Weidinger amended, filing the First Amended Complaint on January 13, 2023. On February 23, 2023, Djokic moved to dismiss the instant Complaint and stay the action. DISCUSSION “The power to stay proceedings is incidental to 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.” Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d at 96 (2d Cir. 2012) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)).2 Although the Constitution “does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings,” this Court may nonetheless “decide in its discretion to stay civil proceedings…when the interests of justice seem…to require such action.” Kashi v. Gratsos, 790 F.2d 1050, 1057 (2d Cir. 1986) (internal quotation marks omitted). As the Second Circuit has observed, “[a] stay can protect a civil defendant from facing the difficult choice between being prejudiced in the civil litigation, if the defendant asserts his or her Fifth Amendment privilege, or from being prejudiced in the criminal litigation if he or she waives that privilege in the civil litigation.” Louis Vuitton, 676 F.3d at 97. The party seeking a stay “bears the burden of establishing its need.” Capak v. Epps, No. 18-CV-4325 (RA), 2018 WL 6726553, at *2 (S.D.N.Y. Dec. 21, 2018). In determining whether to stay a civil proceeding pending resolution of an ongoing criminal proceeding, courts in this Circuit consider such factors as (1) the extent to which the issues in the criminal case overlap with those presented in the civil case, (2) the status of the criminal case, (3) the private interests of and burden on the defendants, (4) the private interests of the plaintiffs, (5) the interests of the courts, and (6) the public interest. See Louis Vuitton, 676 F.3d at 99; Trustees of Plumbers & Pipefitters Nat. Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995) (listing factors and staying case where overlap between civil case and pending criminal case created “quandary of [defendants] choosing between waiving their Fifth Amendment rights or effectively forfeiting the civil case”). Consideration of these factors, however, “can do no more than act as a rough guide for the district court as it exercises its discretion,” which still “demands a particularized inquiry into the circumstances of, and the competing interests in, the case.” Louis Vuitton, 676 F.3d at 99 (quoting Banks v. Yokemick, 144 F. Supp. 2d 272, 275 (S.D.N.Y. 2001)). Djokic argues that a stay is warranted because proceeding in this action while the criminal case is pending would undermine his Fifth Amendment privilege against self-incrimination. He contends that because there is substantial overlap between this action and the criminal action, he would face considerable prejudice absent a stay, and that Weidinger would not be unduly prejudiced if a stay is granted. The Court agrees. 1. Overlap of the Cases As an initial matter, Djokic argues that there is “complete overlap” between his civil and criminal cases, thus supporting the grant of a stay. Def. Mot. at 19. Parallel cases substantially overlap when they “arise from the same facts and involve nearly identical issues.” SEC v. Blaszczak, No. 17-CV-3919 (AJN), 2018 WL 301091, at *2 (S.D.N.Y. Jan. 3, 2018). Here, both cases arise from the same alleged facts, namely, that Djokic sent unwanted and harassing emails to Weidinger and then attempted to confront Weidinger at two concerts in July 2021 and October 2021. See Compl.
8-18; Criminal Compl.
