United States District Court, E.D. New York
MEMORANDUM AND ORDER
L. MANN CHIEF UNITED STATES MAGISTRATE JUDGE
pending before this Court, in a section 1983 action brought
by pro se plaintiff James Philogene-Bey
(“plaintiff”), is (1) a motion filed by the City
of New York and various individual municipal defendants
(collectively, “defendants”) to stay the action
because Police Officer Roman Rushtlion
(“Rushtlion” or “Officer Rushtlion”),
a defendant who has not yet appeared in the action, is
currently on extended military leave, serving a tour of duty
in the United States Armed Forces, see Motion to
Stay (Aug. 15, 2017) (“Def. Motion”), Electronic
Case Filing Docket Entry (“DE”) #26; and (2)
plaintiff's request for a certificate of default against
defendants “New York City Police Commissioner James P.
O'Neil et[ ] al[.], ” see Request for
Certificate of Default (docketed Aug. 24, 2017) (“Pl.
Default Request”), DE #28. Plaintiff, whom defense
counsel failed to consult before filing defendants'
motion to stay, opposes that motion. See [Sealed]
Letter dated 8/21/17, DE #27. For the reasons that follow,
defendants' motion is denied; defendants other than
Officer Rushtlion are directed to respond to the complaint by
September 22, 2017; if already properly served, Officer
Rushtlion is directed to respond to the complaint by October
27, 2017; and plaintiff's request for certificates of
default is denied without prejudice.
Defendants' Motion for a Stay
moving to stay this entire action, defendants rely upon and
quote 50 U.S.C. app. § 521. See Def. Motion at
1 & n.1. However, the statutory provision on which their
motion is predicated was amended in 2003, and is now codified
at 50 U.S.C. § 3932 (titled “Stay of proceedings
when servicemember has notice”). The applicable
statutory section now provides that, “[a]t any stage
before final judgment in a civil action or proceeding in
which a service- member . . . is a party, the court may on
its own motion and shall, upon application by the service-
member, stay the action for a period of not less than 90
days, if the conditions in paragraph (2) are met.” 50
U.S.C. § 3932(b)(1). Paragraph (2) in turn provides that
“[a]n application for a stay under paragraph (1) shall
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.”
50 U.S.C. § 3932(b)(2).
motion for a stay fails to meet the statutory prerequisites
embodied in section 3932(b)(2). As an initial matter, the motion
is unsupported by the requisite “letter or other
communication from the servicemember's commanding officer
stating that [Officer Rushtlion's] current military duty
prevents [his] appearance and that military leave is not
authorized for the servicemember . . . .” 50 U.S.C.
§ 3932(b)(2)(B). Even if the Court were inclined to
overlook that deficiency, counsel's letter fails to
proffer any “facts stating the manner in which
[Rushtlion's] current military duty requirements
materially affect [his] ability to appear . . . .” 50
U.S.C. § 3932(b)(2)(A). The motion does not identify
where Officer Rushtlion is stationed or whether he is
accessible by email or telephone. Moreover, even assuming
that he has “vital information” regarding the
events surrounding plaintiff's encounter with the police,
see Def. Motion at 2, his brief absence from the
district - wherever he may be - does not deprive the City of
the ability to “offer a version of the events in
question [or] prepare a defense responsive to the claims
asserted by plaintiff.” Def. Motion at 2. The
City's argument to the contrary ignores the arrest
reports and other documentary evidence in its possession, as
well as other portions of plaintiff's pleading which
identify by name two other law enforcement officers -
Sergeants Olsen and Sandoval - who are alleged to have
participated with Officer Rushtlion in the stop, arrest,
search and alleged use of force that are the subject of this
lawsuit. See Complaint (Mar. 16, 2017) &&
34-42, DE #1. Particularly in light of the fact that Officer
Rushtlion's tentative military discharge date is only one
month away, no reason appears why the entire case must be
stayed until his return to the NYPD.
to the implications of defendants' application, “a
stay is not mandated simply because the moving party is in
the military service.” Hackman v. Postel, 675
F.Supp. 1132, 1133 (N.D. Ill. 1988); see Branch v.
Stukes, No. 01 CIV 520 (RMB)(HBP), 2001 WL 1550903, at
*1 (S.D.N.Y. Dec. 5, 2001) (“a stay. . . is not
appropriate upon a ‘mere showing that the defendant [is
outside the jurisdiction] in the military service'”
(quoting, with alteration, Boone v. Lightner, 319
U.S. 561, 568 (1943))); Keefe, 533 F.Supp. at 50
(the Act “does not provide an automatic stay in every
case”). Simply put, “a stay of proceedings under
the Act is not a matter of absolute right, but is instead
left to a judicial evaluation of whether the defense would be
materially affected by [the servicemember's]
absence.” Forcier v. U.S. E.P.A., NO.
301CV1463M., 2002 WL 368525, at *1 (N.D. Tex. Mar. 5, 2002).
This is a “discretionary determination, ” see
Bown v. Hammerskin Nation, No. ED CV 00-163 (RT) (JWJx),
2001 WL 36097484, at *2 (C.D. Cal. May 24, 2001); see
Hackman 675 F.Supp. at 1133, with the court retaining
“flexibility, ” Forcier, 2002 WL 368525,
at *1, to consider “‘all the circumstances of the
case[, ]'” Comer v. City of Palm Bay,
Fla., 265 F.3d 1186, 1191 (11th Cir. 2001) (quoting
Tabor v. Miller, 389 F.2d 645, 647 (3d Cir. 1968)).
case remains at the early pretrial stage, with answers not
yet filed and depositions and trial a long way off. The
motion for a stay reflects that Officer Rushtlion is expected
to receive his military discharge on September 30, 2017, and
to return to the NYPD by December 29, 2017, see Def.
Motion, Ex. A, but the application is silent as to his
availability in the interim. Where, as here, the application
for a stay lacks any evidence that the servicemember will be
unable to maintain contact with counsel while on leave, or
that his rights would be materially affected by virtue of his
military service, “[c]ourts have summarily denied
requests for a stay . . . .” Antioch Co. v.
Scrapbook Borders, Inc., 210 F.R.D 645, 649 (D. Minn.
2002); see, e.g., Bown, 2001 WL 36097484,
at *3; Branch, 2001 WL 1550902, at *1;
Hackman, 675 F.Supp. at 1134. In any event, even if
a stay were warranted with respect to Officer Rushtlion, such
a stay would not extend to those defendants, including the
City of New York, who are not covered by the Act. See
Antioch Co., 210 F.R.D. at 649 n.3; Forcier,
2002 WL 368525, at *2.
foregoing reasons, the defense motion for a stay is denied.
Plaintiff's Request for Certificates of Default
the fact that defendants have not answered the complaint by
the August 15th deadline set by the Court, see
Memorandum and Order (June 14, 2017) at 3, DE #18, plaintiff
has requested the issuance of certificates of default,
see Pl. Default Request. Plaintiff's application
is denied. As to Officer Rushtlion, the Court has doubts that
he was properly served, as he reportedly has been on military
leave from the NYPD since January 4, 2016. See Def.
Motion, Ex. A. As for the City of New York and the remaining
defendants, they did move to stay the action - albeit
unsuccessfully - by the August 15th deadline.
Under the circumstances, the Court declines to authorize
certificates of default. ...