United States District Court, W.D. New York
May 18, 2005.
JASON JOHNSON, KRISHNA SINGH, Plaintiffs,
DOUGLAS WESTERVELT, et al., Defendants.
The opinion of the court was delivered by: HUGH SCOTT, Magistrate Judge
Parties have consented to proceed before the undersigned as
Magistrate Judge to try this action (Docket No. 18). Presently
before the Court is plaintiffs' application (joined by
defendants) for extension of the amended Scheduling Order (see
Docket Nos. 21, 24) by six months. Plaintiffs note that two of
the defendants are overseas in military deployments (plaintiffs'
counsel's letter to Chambers, May 13, 2005; see defense
counsel's letter to Chambers, May 17, 2005). Plaintiffs identify
defendant Timothy Harris as being currently deployed in Iraq and
defendant Timothy Paluch as deployed in Afghanistan. (Plaintiffs'
The initial Scheduling Order (Docket No. 17, Apr. 16, 2004) was
amended (Docket No. 20, June 24, 2004) and later extended by nine
months to allow parties to work out discovery issues (Docket No.
21, September 15, 2004). A further extension delaying the entire
case is denied. However, the Court will issue a stay under the Servicemembers
Civil Relief Act, 50 U.S.C. App. § 522(b) (as amended in
2003),*fn1 as to the affected servicemember defendants. This
act allows servicemembers to devote their entire energy to the
defense needs of this nation and temporarily suspends judicial
proceedings that may adversely affect the civil rights of
servicemembers during their military service. 50 U.S.C. App. §
502. Under this act, the Court, on its own motion, may move to
stay the action against a servicemember for at least 90 days.
Id. § 522(b).
This stay is granted to defendants Harris and Paluch, who
have received notice of this action and are not otherwise in
default, cf. id. § 522(a), until 90 days after each defendant
is released from military service. These defendants then may
apply for an additional stay under 50 U.S.C. App. § 522(d)(1)
based upon "continuing material affect of military duty on the
servicemember's ability to appear."
As for the remaining defendants, this action shall go forward
under the existing Scheduling Order (Docket Nos. 21, 24
(scheduling pretrial conference for August 10, 2005)).