Opinion
Civil Action No. 03-1490-A.
September 7, 2005
RULING
After reviewing the entire record, including Plaintiff's "Objection to Magistrate Recommendation" [sic] previously filed herein, and in concurring in part with the magistrate judge's findings under the applicable law.
Defendant Charles Christy's motion for summary judgment will be GRANTED pursuant to the magistrate's recommendation. A separate judgment will issue accordingly.
The magistrate's recommendation to dismiss defendant Toby Mayran must be modified to an order staying the proceedings against him pending his return from Iraq and Kuwait. The Service Members Civil Relief Act ( 50 App. U.S.C.A. § 521(d)) requires that a court stay proceedings for a minimum of ninety (90) days when a defendant is in military service. Although this is a 2003 case, the record does not reflect any change in defendant Mayran's status. The Fifth Circuit in White v. Black, 190 F.3d 366 (1999) concluded that the statute precludes a court from dismissing an action against a defendant in the military, even when the dismissal is without prejudice. Rather, the Court may only stay the action before it until the record is appropriately clarified. Accordingly,
IT IS ORDERED that this action, as to Defendant Mayran, is hereby STAYED.