Cross Continent Development, LLC v. Town of Akron, Colorado et al

Filing 88

ORDER. ORDERED that the Amended Motion by Defendants for Stay of Litigation Pursuant to the Servicemembers Civil Relief Act Defendants Motion for Stay of Proceedings 77 is GRANTED. The case is STAYED until 06/28/12, EXCEPT THAT counsel for the part ies shall jointly contact the Court by August 18, 2011, to set a new trial date commencing after 06/28/12. ORDERED that the Final Trial Preparation Conference set for 12/19/11, at 10:00 a.m. and the ten-day jury trial set to commence on 01/09/12 are VACATED by Chief Judge Wiley Y. Daniel on 08/11/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02413-WYD-KMT
CROSS CONTINENT DEVELOPMENT, LLC, a Colorado limited liability corporation
Plaintiff,
v.
TOWN OF AKRON, Colorado, a Colorado municipal corporation;
THE AKRON TOWN COUNCIL;
CARL S. McGUIRE II, Esq., in his official capacity as Attorney for the Town of Akron;
THE BOARD OF TRUSTEES OF THE TOWN OF AKRON; and
THE COLORADO PLAINS REGIONAL AIRPORT DEVELOPMENT COMMITTEE,
Defendants.

ORDER STAYING THE CASE

THIS MATTER comes before the Court on the Amended Motion by Defendants
for Stay of Litigation Pursuant to the Servicemembers Civil Relief Act (filed June 28,
2011). The motion requests issuance of an Order staying all claims and proceedings in
this litigation, including vacating the trial date currently set to commence on January 9,
2012. The stay is sought due to the commencement of Defendant Carl S. McGuire, III’s
active duty with the United States Navy Reserve starting on May 25, 2011 and ending
no sooner than March 28, 2012.
Plaintiff filed a Notice of Partial Opposition to Defendants’ Amended Motion for
Stay of Litigation Pursuant to the Servicemembers Civil Relief Act on July 19, 2011.
Plaintiff does not oppose resetting the trial date while Defendant Lieutenant
Commander McGuire [“McGuire”] is deployed on active duty status. However, Plaintiff

does oppose Defendants’ request to stay the entire action. Plaintiff argues that
because all discovery has been completed and the only remaining pre-trial matters are
evidentiary issues that will be handled by counsel, McGuire’s rights, including his ability
to conduct his defense and ability to appear for court proceedings, will not be materially
affected by his military service. Defendants filed a Reply on August 5, 2011. The
motion is thus fully briefed.
Turning to my analysis, the Servicemembers Civil Relief Act, 50 App. U.S.C.
§ 501, was signed into law on December 19, 2003. One of the purposes of the Act is
“to provide for the temporary suspension of judicial and administrative proceedings and
transactions that may adversely affect the civil rights of servicemembers during their
military service.” 50 App. U.S.C. § 502(2). Pursuant to the Act, “the court . . . shall,
upon application by the servicemember, stay the action for a period not less than 90
days. . . .” Id., § 522(b). Such a stay is mandatory. See Pandolfo v. Labach, 727 F.
Supp. 2d 1172, 1175 (D.N.M. 2010).
I find that a stay of the entire proceeding is appropriate under the
Servicemembers Civil Relief Act. Defendant McGuire has substantiated that he is on
active duty, as he was involuntarily mobilized to support Operations Noble Eagle and
Enduring Freedom in Afghanistan. Defendants have also shown facts stating the
manner in which current military duty requirements materially affect McGuire’s ability to
appear. (See Exs. A and B to Defs.’ Am. Mot.)
While Plaintiff argues in its response that McGuire’s ability to conduct his defense
and ability to appear for court proceedings will not be materially affected by his military
-2-

service, I disagree. As Defendants note, when McGuire was initially deployed, his
involvement in the case was in his official capacity whereby the suit against him was a
claim against the entity (the Town of Akron). Now, however, pursuant to the filing of the
Second Amended Complaint, McGuire faces personal exposure on a claim for punitive
damages that is directed solely against him. The defense of this claim requires refuting
Plaintiff’s allegations regarding McGuire’s conduct and intent allegedly justifying punitive
damages. Such defense arguably necessitates that McGuire have unfettered access to
all evidence in this case and direct communication with his attorneys. I agree with
Defendants that McGuire cannot effectively defend this action from a war zone in
Afghanistan, more than 7,500 miles away and subject to a 10.5-hour time difference,
while still attending to his assigned duties. I also find that Plaintiff has not shown any
prejudice as a result of a stay of the entire proceeding.
Accordingly, I find that this case should be stayed in toto until June 28, 2012. I
also find that the current trial date should be vacated, and that counsel should contact
the Court to set a new trial date commencing after June 28, 2012. It is therefore
ORDERED that the Amended Motion by Defendants for Stay of Litigation
Pursuant to the Servicemembers Civil Relief Act Defendant’s Motion for Stay of
Proceedings (ECF No. 77) is GRANTED. The case is STAYED until Thursday, June
28, 2012, EXCEPT THAT counsel for the parties shall jointly contact the Court by
Thursday, August 18, 2011, to set a new trial date commencing after June 28, 2012.
It is

-3-

FURTHER ORDERED that the Final Trial Preparation Conference set for
Monday, December 19, 2011, at 10:00 a.m. and the ten-day jury trial set to commence
on Monday, January 9, 2012 are VACATED.
Dated this 11th day of August, 2011.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE

-4-