Answer to Defendant Alemond Motion to Stay Proceedings Pursuant to Service Members Civil Relief Act
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Transcript of Answer to Defendant Alemond Motion to Stay Proceedings Pursuant to Service Members Civil Relief Act
IN THE CIRCUIT COURTTWENTIETH JUDICIAL CIRCUITST. CLAIR COUNTY, ILLINOIS
Mark R. McCoy, ) )
Plaintiff, ) )
-VS- ) ) Case No. 10 L 75
CITY OF FAIRVIEW HEIGHTS, a )municipal corporation, JOSHUA )ALEMOND, and AARON NYMAN )
)Defendants. )
PLAINTIFF’S ANSWER TO DEFENDANT’S MOTION TO STAY PROCEEDINGS PURSUANT TO THE SERVICEMEMBER’S CIVIL RELIEF ACT, OBJECTIONS
THERETO, AND MOTION TO DENY SAME
NOW comes the Plaintiff, Mark R. McCoy, and hereby submits
his Answers to Defendant’s Motion to Stay Proceedings Pursuant to
the Servicemember’s Civil Relief Act, Objections thereto, and
Motion to Deny Same, and in response thereto states as follows:
Answer to Defendant’s Motion to Stay Proceedings
1. Plaintiff is in receipt of Defendant’s Motion to Stay
Proceedings Pursuant to the Servicemember’s Civil Relief Act and
Notice of Filing for the above captioned case.
2. Per Paragraph 1 of Defendant’s Motion to Stay, Defendant,
Joshua M. Alemond, states by way of said Motion that he is a
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member of the Illinois National Guard. Plaintiff can neither
confirm nor deny Defendant’s Paragraph 1, but will stipulate to
the assertion made therein.
3. Per Paragraph 2 of Defendant’s Motion to Stay, Defendant,
Joshua M. Alemond, claims to have received orders for reporting
to active duty for a period of time not to exceed 400 days.
Plaintiff can neither confirm nor deny Defendant’s assertion in
his Paragraph 2.
4. Per Defendant’s Exhibit A of Defendant’s Motion to Stay,
which is a document appearing to be issued under the authority of
the “DEPARTMENT OF MILITARY AFFAIRS” bearing the date of “23
MARCH 2010”, which the Defendant relies upon as “Orders” issued
to the Defendant Joshua M. Alemond. Plaintiff can neither confirm
or deny the authenticity or veracity of this attachment, as it
lacks any signature, has been tampered with by way of redaction
of information, speaks only to a specific period in time under
which circumstances may not apply to the present, is of such a
nature that only someone versed in understanding or interpreting
the language and symbols used therein may be privy to the meaning
of that attachment, and does not satisfy the intent nor the
requirements set forth in the Servicemember’s Civil Relief Act.
For aforesaid reasons, Plaintiff can neither confirm or deny the
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information represented by way of Defendant’s Exhibit A, nor
agrees with that Exhibit’s applicability or relevance in seeking
a Stay of these Proceedings pursuant to the Servicemember’s Civil
Relief Act and objects to same.
5. Per Paragraph 3 of Defendant’s Motion to Stay, Defense
counsel, Joshua Abern, claims to have spoken with an individual,
Assistant to the Chief of Staff of the Illinois National Guard,
Major Arthur Fager, represented to be within the chain of command
of the Defendant, Joshua M. Alemond, and by way of a private
conversation with said individual makes the claim of possessing
detailed knowledge of Defendant Alemond’s deployment. Plaintiff
can neither confirm nor deny that a conversation took place
between Defense counsel, Joshua Abern, and said individual in
which was discussed the Defendant, Joshua Alemond, and states
further by way of objection that Defendant’s Paragraph 3 amounts
to inadmissible hearsay, is of no value in satisfying
requirements necessary to support Defendant’s Motion to Stay
Proceedings, is unsubstantiated, and likewise of no relevance to
these proceedings.
6. Per Paragraph 4 of Defendant’s Motion to Stay, Defendant
relies upon 50 App. USCA §501, et seq., Servicemember’s Civil
Relief Act for the authority in receiving a stay in these
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Proceedings, and therefore controlling in this Case. Plaintiff
agrees with Defendant’s Paragraph 4 insofar that 50 App. USCA
§501, et seq., Servicemember’s Civil Relief Act is the proper
authority for a Servicemember seeking a Stay of Proceedings, but
disagrees that Defendant, Joshua M. Alemond, has satisfied all
requirements of said Act necessary to enjoy any benefit of said
Act.
7. Per Paragraph 4 of Defendant’s Motion to Stay, Defendant,
Joshua M. Alemond, seeks relief from these proceedings by way of
the 50 App. USCA §501, et seq., Servicemember’s Civil Relief Act.
Plaintiff agrees with Defendant’s Paragraph 4.
8. Per Paragraph 4 of Defendant’s Motion to Stay, Defendant has
included, by way of his Motion, excerpts from said Act, upon
which he is relying for support. Plaintiff agrees with
Defendant’s Paragraph 4 insofar as said Paragraph adequately
represents pertinent provisions of the Servicemember’s Civil
Relief Act upon which the Defendant may base a claim for relief
thereof.
9. Per Paragraph 5 of Defendant’s Motion to Stay, Defendant
claims that all conditions have been met. Plaintiff disagrees and
claims that the Defendant has failed to meet all the requirements
of the Servicemember’s Civil Relief Act necessary to support his
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Motion.
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PLAINTIFF’S OBJECTIONS
1. Plaintiff objects to DEFENDANT’S MOTION TO STAY PROCEEDINGS
PURSUANT TO THE SERVICEMEMBER’S CIVIL RELIEF ACT (hereinafter
referred to as SCRA) for lack of sufficiency in meeting necessary
requirements.
2. Defendant has failed to provide, by way of his Motion,
information necessary to satisfy the requirements imposed under
50 App. USCA §501, et seq., (SCRA).
3. Defendant is entitled to a stay, upon application by the
servicemember, for a period of not less than 90 days provided
that conditions in paragraph (2) are met. 50 App. USCA §522(b)
(1).(Emphasis added) An additional stay (one which exceeds the
initial 90 days) requires an additional request, which may be
made at the time of the initial application, but which must
include information required under subsection (b)(2). 50 App.
USCA §522(d). Requirements for how such application by the
servicemember shall be made is found at 50 App. USCA §522(b)(2).
Plaintiff objects to Defendant’s Motion on the basis that the
Defendant has failed to provide, by way of his application, a
letter or other communication which sets forth the facts which
state the manner in which current military duty requirements
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materially affect the servicemember’s ability to appear.
Defendant has only alleged hearsay, by way of his Motion
(Paragraph 3), which is not a “letter or other communication” and
which sets forth no “facts which state the manner in which
current military duty requirements materially affect the
servicemember’s ability to appear”.
Defendant’s “orders” (Exhibit A) also fail to conform to the same
requirements. Any alleged “facts” are not stated clearly and
subject to interpretation as well as the absence of any
identifiable “material affect” regarding the Defendant’s ability
to appear.
Defendant has also failed to meet requirements of 50 App. USCA
§522(b)(2)(B) which require, “A letter or other communication
from the servicemember’s commanding officer stating that the
service member’s current military duty prevents appearance and
that military leave is not authorized for the servicemember at
the time of the letter.” (Emphasis added)
Both the alleged conversation between Defense Counsel and Major
Arthur Fager, as well as Exhibit A, fail to meet requirements of
SCRA. Major Arthur Fager is not the Defendant’s commanding
officer, the conversation is not a letter or other communication
(that which is in writing), and makes no mention of how the
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Defendant’s current military duty prevents appearance, nor that
military leave is not authorized. For reasons stated above
Plaintiff objects to Defendant’s Motion.
4. “Paragraph (2)(A)” states that an application for a stay
under paragraph 1 “shall include the following”: A letter or
other communication setting forth the 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. 50 App. USCA §522(b)
(2)(A) (Emphasis added)
5. Plaintiff objects to Defendant’s Motion on the basis that he
has not satisfied the requirement imposed by “Paragraph (2)(A)”
(Conditions for stay), as he has not provided “A letter or other
communication.” It is the Plaintiff’s belief that “letter or
other communication” means something reduced to writing and does
not include a reference to a private conversation, as presented
in Defendant’s Paragraph 3. Plaintiff objects further on the
basis that alleged facts in Defendant’s Paragraph 3 are
inadmissible hearsay and fail to meet any statutory or common law
exceptions to rules governing hearsay. Plaintiff has no
opportunity to cross-examine or impeach the declarant, nor
ascertain the veracity of the statement proffered. For a
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statement to considered in offering any kind of factual evidence
the party making such assertions must be subject to cross-
examination unless such assertions fall within an allowable
exception. People v. Armstead, 322 Ill App 3d, 748 NE2d 691
(2001). Defendant’s counsel claims to have had a conversation
with “Assistant to the Chief of Staff of the Illinois National
Guard, Major Arthur Fager”, who, by Defendant’s own admission in
Paragraph 3, is not the Defendant’s commanding officer (which
lays the foundation for objections to follow), but who
“represented” (Emphasis added) that “the Chief of Staff (a person
unnamed) was within the chain of command of Alemond”. Plaintiff
makes the objection that the alleged statement of Major Arthur
Fager constitutes hearsay within hearsay. Even if the initial
statement is within an exception to the hearsay rule, the
statement itself contains impermissible hearsay. Neither of the
parties upon whom the Defendant relies in supporting his
assertions in Paragraph 3 can be considered unavailable for
purposes of hearsay exceptions as there was apparently a
conversation as recent as July 6, 2010 between Defense counsel
and Major Arthur Fager. Nevertheless, upon the Plaintiff’s
objection to Defendant’s Paragraph 3 for containing inadmissible
hearsay and hearsay within hearsay, it is the Defendant’s burden
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to establish the applicability of any exception in overcoming
Plaintiff’s objection. People v. Smith, 152 Ill 2d 229, 604 NE2d
858 (1992); People v. Fomond, 273 Ill App 3d 1053, 652 NE2d 1322
(1995).
6. Plaintiff objects to Defendant’s Motion on the basis that he
has not satisfied the requirement imposed by “Paragraph (2)(A)”
(Conditions for stay), as he has not provided “A letter or other
communication.” It is the Plaintiff’s belief that “letter or
other communication” means something reduced to writing and does
not include a copy of the alleged orders issued to Defendant,
Joshua M. Alemond, as presented by way of Defendant’s Paragraph 2
and Exhibit A. Defendant’s Exhibit A should be considered a
private document for internal use specific to the functions of
the Department of Military Affairs. Defendant’s Exhibit A are
“orders” allegedly issued to Defendant, Joshua M. Alemond, and
not a letter or other communication addressed to the Court for
the purposes of seeking relief under the SCRA. Defendant’s
Exhibit A displays redactions and superfluous information which
is cryptic and indiscernible in supporting a request for stay
pursuant to the SCRA. Plaintiff objects further on the basis that
Defendant’s Exhibit A is inadmissible hearsay, as there is no
authentication or other proof of genuineness and no witness upon
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whom a basis for authentication may be relied. Exhibit A is
inadmissible because it does not satisfy the best evidence rule.
Plaintiff will stipulate that it may be unreasonable to demand
the production of the original orders alleged to have been issued
to the Defendant, but will defer to the Secondary Evidence
Exception for the purposes of this objection. Defendant’s Exhibit
A lacks necessary foundation for introduction as evidence as it
has not been marked for identification. Also lacking is any
evidence which establishes the existence of the original
document, attests to the accuracy of the duplication, describes
the time and place the copy was made, or explains why the
original is unavailable. If Defendant’s Exhibit A is in-fact a
representation of actual orders then the Exhibit cannot be relied
upon it has been altered or modified from its original condition
by way of redaction of information, and therefore not a true or
accurate representation of the alleged orders issued to the
Defendant. Defendant fails to explain the necessity for any
alterations, as well as omitting the process by which the copy
came to be and the person by whom it was created.
7. Plaintiff objects to Defendant’s Motion on the basis that he
has not satisfied the requirement imposed by “Paragraph (2)(A)”
(Conditions for stay), as he has not “set forth the facts stating
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the manner in which current military duty requirements materially
affect the servicemember’s ability to appear”. The facts and
supporting statements/Exhibits relied upon by the Defendant
merely allude to, but do not prove, an obligation to report for
active duty and how that duty materially affects the Defendant’s
ability to appear. Active duty military service is, in itself, a
mere contention of unavailability want of affirmative
representations which do not warrant relief under SCRA. The Judge
Advocate General’s Legal Center & School, U.S. Army, JA 260,
Servicemembers Civil Relief Act, 59 (2006); Hibbard v. Hibbard,
431 N.W.2d 637, 639-40 (Neb. 1988). See also Hackman v. Postel,
675 Supp. 1132, 1134 (E.D. Ill. 1988. Taking into consideration
the status of these proceedings which the Defendant seeks relief
by way of SCRA, it is questionable whether an immediate or
foreseeable appearance by the Defendant is at issue, thereby
warranting a stay at this time. Both the Plaintiff and Defendant
are involved in the discovery phase of this case. Plaintiff has
not requested any discovery, such as depositions, which would
demand the Defendant’s physical presence. If discovery demands
evolve to include interaction with the Defendant while on active
duty, there are alternatives available with the aid of technology
which may permit such discovery while Defendant is deployed. A
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stay, as it may relate to discovery, is not appropriate.
Plaintiff does not disagree that the direction of these
proceedings may, at some time, place a demand for the Defendant
to physically appear, and is willing to entertain a subsequent
Motion to Stay Proceedings pursuant to SCRA at that time, but it
is the Plaintiff’s belief that the SCRA affords, insofar as the
present demands placed upon all parties exist, relief from
personally appearing for legal proceedings. The Judge Advocate
General’s Legal Center & School, U.S. Army, JA 260,
Servicemembers Civil Relief Act, 65 (2006); Keefe v. Spangenberg,
533 F. Supp. 49 (W.D. Okla. 1981) (court denied stay request to
delay deposition, and suggested that service member agree to
videotape deposition in accordance with Federal Rules of Civil
Procedure Rule 30(b)(4)); see also In re Diaz, 82 B.R. 162, 165
(Bankr. D. Ga. 1988) (service members in Germany may make video
depositions for use in trials in the United States, so Section
201 stay is not appropriate to delay discovery).
The Defendant has not only failed to provide facts which speak to
materiality, but he has also failed to identify the current
military requirements of the Defendant, and whether there exists
a demand on the Defendant to appear for discovery which would
necessitate application to this Court for relief pursuant to
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SCRA. Defendant has failed to meet the requirement of setting
forth facts which state the manner in which the current military
requirements materially affect the Defendant’s ability to appear,
or more appropriately, whether an appearance is even required at
the time of application for relief under SCRA.
8. Plaintiff objects to Defendant’s Motion on the basis that he
has not satisfied the requirement imposed by “Paragraph (2)(A)”
(Conditions for stay), as he has not stated a date when the
servicemember will be available to appear. Defendant has only
alluded to a future period in time, and not a date, as required
by 50 App. USCA §522(b)(2)(A). Defendant states by way of
Paragraph 3 of his Motion, “until May or June 2011”, which is not
a date.
Motion to Deny Defendant’s Motion for Stay of Proceedings
Plaintiff moves this Honorable Court to deny Defendant’s
Motion to Stay Proceedings Pursuant to the Servicemember’s Civil
Relief Act based upon the forgoing Answers and Objections herein
stated.
WHEREFORE, Plaintiff, Mark R. McCoy, hereby submits his
Answers and Objections to Defendant’s Motion to Stay Proceedings
Pursuant to the Servicemember’s Civil Relief Act, upon which
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relies his Motion to Deny Defendant’s application for relief
thereto, and thereby, prays this Honorable Court to deny
Defendant’s Motion.
Mark McCoy, Plaintiff
Date
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STATE OF ILLINOIS )) SS
COUNTY OF ST. CLAIR )
CERTIFICATE OF SERVICE
I, the undersigned, on oath state that I served the forgoing Plaintiff’s Answers to Defendant’s First Request to Produce for Case No.: 10 L 75 to the following person(s):
Julie A. BruchJoshua S. AbernO’Halloran Kosoff Geitner & Cook, LLC650 Dundee Road, Suite 475Northbrook, Illinois 60062
and
Dawn A. SallersonHinshaw & Culbertson, LLPP.O. Box 509521 West Main StreetBelleville, Illinois 62222
and
Clerk of the Circuit CourtSt. Clair County Courthouse10 Public SquareBelleville, Illinois 62220
via U.S. Mail by placing true and correct copies of the same in an envelope(s) addressed as set forth above and entrusting the receipt and care of said envelope(s) with a desk clerk at the U.S. Post Office in Collinsville, Illinois, 62234 on July 15, 2010.
Mark R. McCoy, Plaintiff
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