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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ________________________________________ JOHN DOE 6 Plaintiff, v. THE PENNSYLVANIA STATE UNIVERSITY, THE SECOND MILE, and GERALD SANDUSKY

Defendants. ________________________________________

: : : : : Civil Action No. 13-0336 : : : : : : : :

MOTION FOR LEAVE TO FILE A REPLY IN SUPPORT OF MOTION FOR STAY OF DEFENDANT THE PENNSYLVANIA STATE UNIVERSITY For the reasons set forth below, Defendant The Pennsylvania State University (University) respectfully requests leave of the Court to file a short reply in support of its Motion for Stay. The proposed Reply is attached as Exhibit A. The Reply does not exceed five (5) pages in length and is incorporated herein by reference. The University desires to submit the Reply in order to briefly address Plaintiffs discussion of the factors the Court will consider in deciding whether to stay this action. The Reply further addresses the cases advanced by Plaintiff to support his argument that the University and The Second Miles request for a stay should be denied. For these reasons, as well as those set forth in full in the Universitys proposed Reply

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Brief and the proposed reply brief of The Second Mile, it is requested that the Court permit the Universitys Reply Brief to be filed, and grant the stay.

Respectfully submitted,

Date: March 12, 2013

/s James A. Keller James A. Keller (Atty. I.D. No. 78955) Joseph F. ODea (Atty. I.D. No. 48370) Gregory G. Schwab (Atty. I.D. No. 93310) Saul Ewing LLP Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA 19102 Counsel for The Pennsylvania State University

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ________________________________________ JOHN DOE 6 Plaintiff, v. THE PENNSYLVANIA STATE UNIVERSITY, THE SECOND MILE, and GERALD SANDUSKY

Defendants. ________________________________________

: : : : : Civil Action No. 13-0336 : : : : : : : :

REPLY IN FURTHER SUPPORT OF MOTION TO STAY OF DEFENDANT THE PENNSYLVANIA STATE UNIVERSITY Plaintiffs opposition to the motion for stay relies on cases that are inapposite or actually support the imposition of a stay. Defendant The Pennsylvania State University (the

University) provides this short reply to address a few key points. 1. The Burden on the University Would Be Significant Without a Stay Given the Meaningful Overlap Between The Criminal and Civil Cases Every court that has evaluated a claim filed by an alleged victim of Jerry Sandusky has confirmed that a stay makes legal and logical sense. Plaintiffs citation of different cases, in different contexts, where a court did not order a stay merely support the propositionwhich the University does not disputethat the decision whether to order a stay is within the discretion of the District Court. See Texaco., Inc. v. Borda, 383 F.2d 607, 608 (3d Cir. 1967); Golden Quality Ice Cream Co. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53 (E.D. Pa. 1980). The crucial factor in the Courts analysis in this case should be the extensive overlap between the allegations

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in this and other civil cases again, all of which have been stayed -- and the allegations of the ongoing criminal cases. Plaintiff has made it clear that Messrs. Spanier, Schultz, and Curley are the crux of his allegations that the University engaged in misconduct. individuals and their conduct throughout: Spanier - 72, 74, 86 Schultz - 58-62, 65-70, 72, 74, 86 Curley - 61, 65-67, 72, 74, 86 The Complaint references these

There can be little doubt that while their criminal proceedings are unresolved, Messrs. Spanier, Schultz, and Curley will assert their Fifth Amendment privilege to not testify against themselves, especially in a civil case where they are not named defendants and have no competing civil interest. The University will be unable to effectively defend itself when such key witnesses are unavailable. Plaintiffs suggestion that the University bears a minimal burden if this case moves forward is misguided. Messrs. Spanier, Schultz, and Curley are essentially unnamed defendants in this case. They are subject to criminal proceedings that are unquestionably moving forward, not just investigations, as in many of the cases cited by Plaintiff. The burden on the University results from the practical unavailability of these key witnesses whose actions are at the heart of Plaintiffs complaint. The sworn testimony of those individuals is critical, and not replaced by the findings in the Freeh Report and Plaintiffs repeated reference to it. See Pl. Resp. at 3, 8.

2. A Stay Makes Logistical Sense and Allows For Uniform Treatment Of Claims Logistically, it does not make sense for one abuse case involving Mr. Sandusky to move forward while the rest are stayed. While Plaintiff cites to the McQueary case as one in which the

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court did not grant a stay, that case is very different. That is an employment case where Mr. McQueary challenges recent actions of the University with regard to his employment. Among other things, Mr. McQueary is not part of the well-publicized settlement process under the supervision of Feinberg & Rozen involving victims and alleged victims of Jerry Sandusky. Allowing civil discovery to move forward, depositions to take place, and resources to be diverted while that settlement process is open an active will be harmful, if not destructive, to the ongoing and active settlement process.

3. Any Delay Will Be Incremental Plaintiff states that he has already suffered a delay of justice of more than a decade. (Docket No. 22 at 6). However, Plaintiff filed suit less than two months ago, on January 22, 2013. The conduct alleged to have given rise to Plaintiffs claims occurred in 1998. An incremental additional delay, at this stage, cannot warrant denial of an otherwise logical and appropriate stay. Moreover, as the event alleged in Plaintiffs complaint occurred in 1998, fifteen years ago, this minimizes the actual probability of any prejudice from, e.g., further relocation of witnesses and the fading of their memories beyond what has occurred up to this point in time. Pl. Resp. at 7. Plaintiff also seems to underestimate the benefits to all parties of an incremental, additional stay. As the related criminal matters proceed to trial in 2014, additional information may well emerge that will streamline matters in this civil action.

4. The Cases Cited By Plaintiff Are Inapposite The cases cited by Plaintiff do not support his position that his action must proceed at this time. For example, in Sothebys Intl Realty, Inc. v. Black, 472 F.Supp.2d 481 (S.D.N.Y. 2006),

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a significant factor considered by the court was the potential that the defendant would be unable to satisfy a civil judgment after the expense of a complex white collar criminal proceeding. Therefore, the court decided that a stay should not be entered because it was in the plaintiffs interest to try to get civil damages before the defendants assets were used up in criminal defense. This was the same conclusion reached by a court in another case cited by Plaintiff. See Sterling National Bank v. A-1 Hotels International, Inc., 175 F.Supp.2d 573, 579(S.D.N.Y. 2001) (noting that plaintiffs interest in proceeding expeditiously was pronounced where it was unclear that defendants had sufficient assets to permit any meaningful recovery and further delay would only dissipate such assets). In this case, as Plaintiff has pointed out, the University is not defending against criminal charges. And there is no contention that the University will be unable to satisfy a judgment, if any, in this case.

5. The Interest of Non-Parties Militates in Favor of a Stay Plaintiff contends that another factor for consideration of a stay the interest of nonparties also cautions against a stay. Plaintiff states that thirty young men will be affected as they are pressing claims related to sexual abuse. (Pl. Resp. at 11). This assertion is belied by those other parties, who have either had their cases stayed, have not filed civil actions at all, and are participating in the Feinberg & Rozen settlement process. The interests of non-parties actually support a stay. The cases relied upon in Plaintiffs opposition illustrate this point. For example, in Shirsat v. Mutual Pharmaceutical Co., No. 933202, 1995 WL 695109 (E.D.Pa. Nov. 21, 1995), the court stated: The interests of non-parties are usually the same as those of defendants: diversion of resources from their criminal defense and risk of abuse of the civil discovery process. Id. at *4. The court in Golden Quality Ice Cream v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53 (E.D.Pa. 1980) noted:

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the pressures of civil discovery are likely to weigh most heavily on certain key managerial officials in defendant companies. Although corporate defendants have no Fifth Amendment right to refuse to respond to civil discovery, corporations speak only through their officers and other upper-level managers. Among the senior management of the corporations defending these civil cases are persons who, together with their corporate employers, face criminal charges, and so it may be anticipated that some of these persons will have Fifth Amendment rights to be reckoned with. The dilemma for such persons is severe because they face serious penalties in the event of a criminal conviction, and because they are not themselves parties to this civil action. Id. at 58. The court in Golden Quality went on to note that even taking certain measures like limiting discovery would not cure the problem, because of the possibility of inadvertent disclosure of the civil discovery. Id. This is precisely the dilemma presented for the University (and likely The Second Mile) vis--vis Messrs. Spanier, Schultz, and Curley. The interests of non-parties those other victims who are not pressing forward with litigation while seeking alternative resolution, and the other employees and representatives of the University who would face substantial disruption universally support a stay. 6. Conclusion For all of the foregoing reasons, and those stated in Defendants initial motion, Defendant The Pennsylvania State University requests that the Court enter an Order granting a stay pending the outcome of the related and overlapping criminal matters. Respectfully submitted, Date: March 12, 2013 /s James A. Keller James A. Keller (Atty. I.D. No. 78955) Joseph F. ODea (Atty. I.D. No. 48370) Gregory G. Schwab (Atty. I.D. No. 93310) Saul Ewing LLP Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA 19102 Counsel for The Pennsylvania State University
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CERTIFICATE OF SERVICE I, James A. Keller, hereby certify that a true and correct copy of the foregoing Motion For Leave to File Reply in Support of Motion for Stay of Defendants The Pennsylvania State University and The Second Mile, proposed Order, and proposed Reply were filed via the ECF filing system which constitutes valid service upon the following registered users:

Howard Janet, Esquire Hal Kleinman, Esquire Jason Penn, Esquire Kenneth Suggs, Esquire Janet Jenner & Suggs LLC 1829 Reistertown Rd Ste 320 Baltimore, MD 21208 Counsel for Plaintiff

Patrick J. Doran, Esquire Howard A. Rosenthal, Esquire Archer & Greiner, P.C. One Liberty Place, 32nd Floor 1650 Market Street Philadelphia, PA 19103 William J. Conroy, Esquire Meaghann C. Porth, Esquire Brian D. McElvaine, Esquire Campbell, Campbell Edwards & Conroy, PC Two Penn Center Plaza, Suite 200 Philadelphia, PA 19102-1706 Counsel for The Second Mile

Date: March 12, 2013

/s James A. Keller James A. Keller

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ________________________________________ JOHN DOE 6 Plaintiff, v. THE PENNSYLVANIA STATE UNIVERSITY, THE SECOND MILE, and GERALD SANDUSKY

Defendants. ________________________________________

: : : : : Civil Action No. 13-0336 : : : : : : : :

ORDER AND NOW, this _______ day of ________________, 2013, upon consideration of the Motion For Leave to File a Reply of The Pennsylvania State University, and any response thereto, it is hereby ORDERED that: (1) (2) for Leave. The Motion is GRANTED; The Clerk of the Court shall docket the Reply attached as Exhibit A to the Motion

BY THE COURT: ______________________________ Anita B. Brody, J.

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