Opinion
No. CIV 05-322 MCA/WPL.
August 11, 2005
ORDER
THIS MATTER comes before the Court on the parties' responses [Doc. No. 16, 17] to the Order to Show Cause [Doc. No. 15] why further proceedings in this action should not be stayed pursuant to 50 U.S.C. Appx. § 522 due to Defendant Herbert L. Hinders' active military duty. Having reviewed the submissions of the parties, the relevant law, and otherwise being fully advised in the premises, the Court finds that Defendant Herbert L. Hinders is currently on active military duty in Iraq such that he is unable to defend himself in this action. Therefore, with the exceptions noted below, the Court orders that all proceedings in this action shall be stayed until July 1, 2006, or until Defendant Hinders returns from active military duty in Iraq, whichever is earlier.
On February 25, 2005, Plaintiffs filed this civil action against Defendants New Mexico State Police (NMSP), Herbert L. Hinders, and Angela Duran in the First Judicial District Court for the County of Santa Fe, State of New Mexico. The action was subsequently removed to this Court before all Defendants were served.
On May 23, 2005, the Court received a letter from Defendant Hinders dated May 5, 2005, which states that he has been called to active military duty in Iraq and wishes to invoke his rights under the provisions of the Servicemembers Civil Relief Act, 50 U.S.C. Appx. § 522. [Ex. A to Doc. No. 15.] On May 27, 2005, the Court received a second letter regarding Defendant Hinders from John P. Linney, the Legal Assistance Attorney at the Department of the Army's Office of the Staff Judge Advocate in Fort Gordon, Georgia. Mr. Linney's letter is dated May 17, 2005, and it also requests a stay of proceedings in this matter until July 1, 2006, based on the provisions of the Servicemembers Civil Relief Act. [Ex. B to Doc. No. 15.] The Court ordered the other parties to show cause why the requested stay should not be granted.
The relevant provision of the Servicemembers Civil Relief Act states that: "At any time before final judgment in a civil action or proceeding in which a servicemember . . . is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days. . . ." 50 U.S.C. Appx. § 522(b)(1). This provision "applies to any civil action or proceeding in which the defendant at the time of filing an application . . . is in military service or is within 90 days after termination of or release from military service" and "has received notice of the action or proceeding."Id. § 522(a). In order to qualify for the mandatory relief provided in Section 522(b)(1), the servicemember's application must include the following:
(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear.
(B) A letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.Id. § 521(b)(2). A servicemember who is granted a stay under the above provisions also "may apply for an additional stay based on continuing material affect of military duty on the servicemember's ability to appear." Id. § 522(d).
In this case, Defendant Hinders and a representative of the Department of the Army's Office of Staff Judge Advocate have submitted letters requesting a stay of proceedings until at least July 2006 pursuant to the above provisions of the Servicemembers Civil Relief Act. After considering the parties' responses to the Order to Show Cause regarding this issue, I conclude in the exercise of my discretion that a stay of proceedings is warranted on the Court's own motion, regardless of whether the letters submitted to the Court by or on behalf of Defendant Hinders meet all of the requirements for a mandatory stay under Section 521(b)(2). It is unrealistic to expect that Defendant Hinders can defend himself in this action while on active military duty in Iraq, and it is equally unrealistic to expect that he will be granted leave from his present military duties in order to attend to the needs of this litigation. Further, the parties' responses to the Order to Show Cause indicate that Defendant Hinders played a key role in the actions which are the subject of this lawsuit, such that the lawsuit cannot proceed through the completion of discovery and trial without him.
Nevertheless, I will afford the parties the opportunity to identify with particularity those aspects of this litigation which they believe may proceed in Defendant Hinders' absence without unfair prejudice to him. To the extent that the other parties wish to pursue discovery for the purpose of preserving testimony and other evidence during the period in which the matter is stayed due to Defendant Hinders' absence, they may file a written motion requesting leave of the Court to lift the stay for the limited purpose of completing such discovery. Similarly, if Defendant Duran wishes to raise the defense of qualified immunity during Defendant Hinders' absence, she also may file a written motion requesting leave of the Court to lift the stay for this limited purpose.
IT IS, THEREFORE, ORDERED that all further proceedings in this action are stayed until July 1, 2006, or until Defendant Hinders returns from active military duty in Iraq, whichever is earlier.
IT IS FURTHER ORDERED that notwithstanding this stay, the parties may file written motions seeking leave of Court to lift the stay for the limited purposes described above.
SO ORDERED.