Hardy v. City of Vanceboro et al

Filing 35

ORDER granting 28 Motion to Stay: This action is STAYED until July 2, 2012 or 90 days after Akers release from military service, whichever occurs first. Signed by US District Judge James C. Dever III on 5/12/2011. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

No.4:10-CV-189-D

LOIS HARDY,
Plaintiff,

v.
CITY OF VANCEBORO, et aI.,
Defendants.

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ORDER

On February 16,2011, defendant Russell Akers ("Akers" or "defendant") requested a stay

pursuant to the Servicemembers Civil Relief Act, 50 U.S.C. app. §§ 501-597 [D.E. 28]. On
February 23, 2011, plaintiff Lois Hardy ("Hardy" or plaintiff) responded in opposition [D.E. 32].
On March 7, 2011, Akers replied [D.E. 34].
The Servicemembers Civil Relief Act provides that in "any civil action ... in which the
plaintiff or defendant ... is in military service or is within 90 days after termination of or release
from military service . . . the court may on its motion and shall, upon application by the
servicemember, stay the action ...." 50 U.S.C. app. § 522(a)(1), (b)(1). An application for a stay
must set forth the facts stating the manner in which military duties materially affect the ability of
the servicemember to appear and state a date when the servicemember will be available to appear.
Id., § 522(b)(2)(A). Furthermore, an application must include a statement from the servicemember's
commanding officer stating that military duty prevents the appearance and that military leave is not
authorized for the servicemember. Id., § 522(b)(2)(B).
Here, Akers submitted two letters from his commanding officer and a copy of his unit's
mobilization orders that indicate Akers has been mobilized as a member of the Oklahoma Anny

National Guard, ordered to report to Camp Shelby, Mississippi on March 27,2011, and deploy in
support of operations in Afghanistan, and is expected to return to the United States in April 2012.
Mot. Stay, Attach; Def.'s Reply, Attach. Furthermore, Akers is not authorized to take leave while
deployed. Def.'s Reply, Attach. Hardy contends Akers failed to comply with the provisions of 50
U.S.C. app. § 522(b)(2) because the documents do not state an exact date of his deployment to
Afghanistan, nor do they provide an exact date ofhis return. Pl.'s Resp. 2.
"The [Servicemembers] Civil Relief Act is always to be liberally construed to protect those
who have been obliged to drop their own affairs to take up the burdens of the nation." Boone v.
Lightner, 319 U.S. 561, 575 (1943). Akers has complied with the requirements of the statute,
triggering a mandatory stay. Accordingly, this action is STAYED until July 2,2012 or 90 days
after Akers release from military service, whichever occurs first.
SO ORDERED. This

11- day of May 2011.

States District Judge

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