White v. YMCA Central Branch LLC et al

Filing 30

MEMORANDUM OPINION- GRANTING IN PART, DENNYING IN PART 28 Motion to Stay. On or before 8/5/2013, the Plaintiff may file an application to extend the stay. However, the application must satisfy the requirements of the SCRA. Notice of Compliance deadline set for 8/5/2013. Signed by Judge Sherry R. Fallon on 5/6/2013. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BYRON WHITE,
Plaintiff,
v.
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF DELAWARE,
RICK GOULD, and DONNA BEVERIN,
Defendants.

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Civil Action No. 12-515-RGA-SRF

MEMORANDUM OPINION
I.

INTRODUCTION
Pending before the court in this matter is the Plaintiffs Motion to Stay (the "Motion")

(D.I. 28), filed under the Servicemembers Civil Relief Act ("SCRA"), 50 App. U.S.C.A. § 522.
For the reasons which follow, the Motion is GRANTED IN PART and DENIED IN PART
without prejudice, subject to the limitations outlined below.

II.

BACKGROUND
The Plaintiff filed this action on April 24, 2012, alleging violations of the Fair Labor

Standards Act under 28 U.S.C. §§ 201 et seq. 1 (D.I. 1) On August 7, 2012, the court entered a
Scheduling Order (D .I. 16), which set a discovery completion date of January 31, 2013.

In September of 2012, the Plaintiffs attorney's cases were assigned to a receiver. The
Plaintiff has not presently retained new counsel.
On January 7, 2013, the court entered an Order for the Plaintiff to advise the court of the
status of the case. (D.I. 23) The Order required:
1

The Plaintiff also asserts common law claims for breach of contract, breach of the implied
covenant of good faith and fair dealing, and promissory estoppel. (D.I. 1 ,-r,-r 36-45) On July 26,
2012, the Plaintiff filed a First Amended Complaint (D.I. 15) to correct the name of one
Defendant.

1

1. Plaintiffs substitute counsel [to] file an entry of appearance; or
2. Plaintiff [to] provide written notice of Plaintiffs intention to proceed
with the litigation of the case pro se; or
3. A written application for a stay of the case under the Servicemembers
Civil Relief Act, pursuant to 50 App. U.S.C.A. § 522, [to] be submitted on behalf
of the Plaintiff ....
(D.I. 23)
On January 30, 2013, the Plaintiffs father filed on behalf of the Plaintiff an application
requesting that the court stay this case. (D.I. 24) The application indicated that the Plaintiff is in
the United States Air Force ("Air Force") and currently is deployed on active duty training in
Lackland, Texas. 2 (D.I. 24) The application further stated: "[The Plaintiffs] orders are good until
2-22-2013 but he is expected to be there until April 2013 and maybe later. Currently we are
looking for another lawyer and will notify the Court as soon as we get one. Please stay my case
until my son returns." (!d.)
The Defendants filed a response opposing the request on the ground that the Plaintiffs
application failed to satisfy the statutory requirements for a stay set forth in the SCRA. (D.I. 25)
On March 5, 2013, the court entered an Order stating, in pertinent part:
[T]he [Plaintiffs application] is deficient, as it neither "stat[es] a date when the
servicemember Plaintiff will be available to appear" nor does it include "[a] letter
or other written communication from the servicemember Plaintiffs commanding
officer stating that the servicemember Plaintiffs current military duty prevents
appearance and that military leave is not authorized for the servicemember
Plaintiff at the time of letter."
(D.I. 27) The court directed the Plaintiff to submit the relevant information identified in the
SCRA, and instructed the Plaintiff to "advise the court whether he will hire substitute counsel, or
alternatively, proceed with the litigation ofthe case pro se." 3 (!d.)

2

The submission also included a copy of the Plaintiffs active duty orders. (D.I. 24)

3

Because the Plaintiffs father claimed to hold Power of Attorney for the Plaintiff, and has been
communicating with the court on the Plaintiffs behalf, the Order requires that "[a]ll subsequent
2

On April 17, 2013, the Plaintiffs father filed the pending Motion to Stay, requesting that
the court stay this case through February 2014. (D.I. 28) The Motion indicates that the Plaintiff
"will be getting substitute counsel" after he "returns from military service."4 (Id.) The Plaintiffs
father submitted with the Motion a copy of the Plaintiffs amended active duty orders, dated
March 26, 2013, and a letter from a commander in the Air Force, dated April 13, 2013. The
amended orders reflect that the Plaintiff will be on active duty until May 11, 2013. (!d.) The Air
Force commander's letter states that the Plaintiff
is currently serving on military orders for the purpose of gaining initial aircrew
skills qualification. As a part of the training, [the Plaintiff] will be performing
aircrew flight duties on airlift missions destined for Afghanistan as well as other
overseas locations. Performing aircrew flight duties while under supervision of an
instructor is vital to successful completion [sic] the training program. . . . [The
Plaintiffs] flight training is conducted on strategic airlift missions, which are
determined by current world events. Training is anticipated to be completed Feb
[sic] 2014.
(Id.)

On April 22, 2013, the Defendants filed a response in opposition to the Motion, arguing
that the Plaintiffs "application still does not comply with [the SCRA]." (D.I. 29) Specifically,
the Defendants contend that the letter submitted with the Motion
does not explain why [the Plaintiffs] training will prevent him from prosecuting
his case for the next ten months. . . . [It] does not even explain where [the
Plaintiff] is currently living or will be living over the next ten months .... [T]he
letter fails to address whether the [P]laintiff is eligible for leave over the next ten
months in the event that he is required to appear for a deposition or court
proceeding in Delaware.
(Id.)

filings submitted by Plaintiffs father, on behalf of the Plaintiff, [] include and attach a copy of
the Power of Attorney." (D.I. 27)
4

The Plaintiffs father indicated that he "ha[s] talked to several lawyers, but they will not take
the case until they can talk to [the Plaintiff]." (D.I. 28)

3

III.

LEGAL STANDARD

The Servicemembers Civil Relief Act "applies to any civil action . . . in which the
plaintiff or defendant at the time of filing an application [to stay] ... is in military service or is
within 90 days after termination of or release from military service; and ... has received notice
of the action or proceeding." 50 App. U.S.C.A. § 522(a). Section 522(b) of the SCRA provides:
At any stage before final judgment in a civil action or proceeding in which
a servicemember described in subsection (a) is a party, the court may on its own
motion and shall, upon application by the servicemember, stay the action for a
period of not less than 90 days, if the conditions in paragraph (2) are met.
(2) Conditions for stay. An application for a stay ... 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.
§ 522(b).
The decision to grant a request to stay under the SCRA is within the discretion of the
district court. Tabor v. Miller, 389 F.2d 645, 647 (3d Cir. 1968). However, the SCRA must
"always []be liberally construed to protect those who have been obliged to drop their own affairs
to take up the burdens ofthe nation." Boone v. Lightner, 319 U.S. 561, 575 (1943).
IV.

DISCUSSION

The court finds that the Plaintiffs Motion to Stay does not precisely satisfy all the
elements of the SCRA. However, the Motion sufficiently demonstrates that the Plaintiffs current
military duties prevent him from participating in this action. Therefore, the court will grant a
limited stay of the proceedings for 90 days, to effectuate the purpose of the SCRA.

4

In order for the court to stay a case under § 522, the plaintiff must satisfy two
requirements. First, the plaintiff must submit to the court "[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." § 522(b)(2)(A). Second, the plaintiff must provide "[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." § 522(b)(2)(B). While the SCRA must be liberally
construed, the Supreme Court has explained that it "cannot be construed to require continuance
on mere showing that the [party is] in ... the military service." Boone, 319 U.S. at 565.
In the present case, the Plaintiff has not satisfied all of the statutory requirements for a
stay under§ 522 of the SCRA. With respect to the first element, described in§ 522(b)(2)(A), the
Plaintiff has established only that he is on active military duty in the Air Force, and his training
is "anticipated to be completed" in February 2014. (D.I. 28) The Plaintiff, however, has not
"stat[ed] a date when [he] will be available to appear."§ 522(b)(2)(A).
The Plaintiffs Motion, likewise, does not satisfy the second requirement for a stay
described in§ 522(b)(2)(B). The SCRA specifically requires "[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 ofthe letter."§ 522(b)(2)(B). In the present case, the Air Force commander's letter included
with the Motion states only that the Plaintiffs performance of "aircrew flight duties while under
supervision of an instructor is vital to successful completion [of] the training program." (D .I. 28)
The letter does not indicate whether or not military leave is authorized. See§ 522(b)(2)(B).

5

Because the SCRA is to be liberally construed in favor of the servicemember, the court
will stay this matter for 90 days. 5 Granting the stay effectuates the purposes of the Statute:
(1) to provide for, strengthen, and expedite the national defense through
protection extended by [the] Act to servicemembers of the United States to enable
such persons to devote their entire energy to the defense needs of the Nation; and
(2) 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.A. § 502. Furthermore, the SCRA must always be liberally construed in favor of
servicemembers on active duty who have "drop[ped] their own affairs to take up the burdens of
the nation."6 Boone, 319 U.S. at 575. In this regard, federal courts have granted stays despite
servicemembers' failure to comply strictly with the requirements if the SCRA. 7

5

Pursuant to the SCRA, "the court may on its own motion and shall, upon application by the
servicemember, stay the action for a period not less than 90 days[] .... " § 522(b) (emphasis
added).
6

See also Flagstar Bank v. Pemberton, 2010 WL 924253, at *1 (D.V.I. Mar. 11, 2010)
(explaining that the provisions of the SCRA are to be "applied in a broad spirit of gratitude
towards service personnel" (citation omitted)).
7

See, e.g., Campos v. Steen, 2010 WL 1949589, at *1 (D. Nev. May 12, 2010) (granting stay
under§ 522 because "the district court's discretion to grant a stay [under the SCRA] should not
be withheld on rigid procedures and rules"); Hoi Dang v. McMinn Cnty., 2010 WL 419960, at *1
(E.D. Tenn. Jan. 29, 2010) (granting stay under§ 522, despite servicemember's failure to comply
with technical requirements, because "[t]he purpose of the act is to protect the rights of those
serving in the military, and courts should not deny motions for failing to comply with procedural
technicalities"); Keane v. McMullen, 2009 WL 331455, at *3 (N.D. Cal. Feb. 11, 2009) (granting
stay despite failure to comply with § 522 technical requirements, because "[n]ot only does the
court have the inherent power to control its docket, the SCRA provides the Court may grant a
stay on its own motion, when a servicemember is a party to a suit, and [his] absence would
materially prejudice its prosecution"); Hunt v. United Auto Workers Local 1762, 2006 WL
572805, at *1-2 (E.D. Ark. Mar. 7, 2006) (granting stay despite failure to satisfy requirements of
§ 522 because the SCRA "is to be administered . . . to accomplish substantial justice" and
"plaintiffs rights in this litigation would [otherwise] not be protected during his active
deployment").
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V.

CONCLUSION

For the foregoing reasons, the Motion to Stay is GRANTED IN PART and DENIED IN
PART without prejudice.

This matter is hereby STAYED for 90 days, until Monday, August 5, 2013. On or before
that date, the Plaintiff may file 8 an application to extend the stay. However, the application must
satisfy the requirements of the SCRA. Specifically, the Plaintiff must:
(1) Explain to the court "the manner in which current [Air Force} duty requirements

materially affect the [Plaintiff's} ability to appear" and "stat[e]a date when the [Plaintifj] will
be available to appear"; and
(2) provide a letter from the Plaintiffs commanding officer "stating that the [Plaintiff's]

current military duty prevents appearance and that military leave is not authorized for the
[Plaintifj] at the time ofthe letter."§ 522(b)(2) (emphasis added).
This Memorandum Order is filed pursuant to 28 U.S.C. § 636(b)(l)(A), Fed. R.
Civ. P. 72(a), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Memorandum Order. Fed. R.
Civ. P. 72(a). The objections and responses to the objections are limited to ten (10) pages each.
The parties are directed to the court's Standing Order in Pro Se Matters for Objections
Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is available on the
court's website, http://www.ded.uscourts.gov.

Dated: May 6, 2013
Shefy

Fa

n

Unite Sta s r•gistrate Judge
8

The court reiterates from its March 5, 2013 Order (D.I. 27) that all subsequent filings submitted
by Plaintiffs father, on behalf of the Plaintiff, must include and attach a copy of the Power of
Attorney held by Plaintiffs father; otherwise, such filings will not be accepted.

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