Philogene-Bey v. New York City Police Commissioner James P. O'Neill et al
MEMORANDUM AND ORDER denying 26 Motion to Stay; denying 28 Request for Certificate of Default. All defendants who have been served are directed to respond to the complaint by September 22, 2017, except that Officer Rushtlion, if already properly served, has until October 27, 2017 to respond. See attached for discussion. Ordered by Chief Mag. Judge Roanne L. Mann on 8/30/2017. (Proujansky, Josh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NEW YORK CITY POLICE COMMISSIONER
JAMES P. O'NEILL, et al.,
ROANNE L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE:
Currently 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, 1
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
Defense counsel seeks to justify this omission by stating that he was “unable to reach plaintiff,” “as he did not
provide a telephone number . . . .” Def. Motion at 1. Defendants’ excuse is unavailing, as defense counsel has
access to plaintiff’s mailing address and thus has a means of communicating with him.
is directed to respond to the complaint by October 27, 2017; and plaintiff’s request for
certificates of default is denied without prejudice.
I. Defendants’ Motion for a Stay
In 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). 2 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
(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
50 U.S.C. § 3932(b)(2).
A separate statutory section, 50 U.S.C. § 3931, is titled “Protection of servicemembers against default
judgments.” However, defendants moved for a stay before plaintiff filed his pending motion for entry of default.
Defendants’ motion for a stay fails to meet the statutory prerequisites embodied in
section 3932(b)(2). 3
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). 4 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 addition, the motion was not made by the servicemember but rather by his employer, which lacks standing to
invoke the protections afforded by section 3932. See Keefe v. Spangenberg, 533 F.Supp, 49, 49 (W.D. Okla. 1981)
(“defendant City of Oklahoma City has no standing to invoke the provisions of the Act”).
Attached to the motion to stay is a letter from a lieutenant at the New York City Police Department (“NYPD”)
stating that Officer Rushtlion is on a military leave of absence, with a tentative military discharge date of September
30, 2017. See Def. Motion, Ex. A, DE #26-1. That letter is not from Rushtlion’s commanding officer in the
military, nor does it contain the information mandated by paragraph (2) of the statute.
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.
Contrary to the implications of defendants’ application, “a stay is not mandated simply
because the moving party is in the military service.” 5
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)).
This 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
Again, here it is not even the servicemember who is moving for the stay.
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.
For the foregoing reasons, the defense motion for a stay is denied.
II. Plaintiff’s Request for Certificates of Default
Citing 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.6
defendants are directed to respond to the complaint by September 22, 2017. Assuming
This is not the first time that plaintiff prematurely moved for default before the expiration of the deadline for
defendants to respond to the complaint. See Request for Certificate of Default (June 15, 2017), DE #19; Order
(June 19, 2017), DE #20.
arguendo that Officer Rushtlion was properly served, he is directed to respond by October 27,
For the foregoing reasons, defendants’ motion to stay the case is denied, as is plaintiff’s
request for certificates of default. All defendants who have been served are directed to
respond to the complaint by September 22, 2017, except that Officer Rushtlion, if already
properly served, has until October 27, 2017 to respond.
Dated: Brooklyn, New York
August 30, 2017
Roanne L. Mann
ROANNE L. MANN
CHIEF UNITED STATES MAGISTRATE JUDGE
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