Plaintiffs Reply Brief in Support of His Objections to Defendants Motion to Stay

8/9/2019 Plaintiffs Reply Brief in Support of His Objections to Defendants Motion to Stay

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1IN THE CIRCUIT COURT

TWENTIETH JUDICIAL CIRCUIT

ST. 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. )

PLAINTIFFS REPLY BRIEF IN SUPPORT OF HIS OBJECTIONS TO

DEFENDANTS MOTION TO STAY AND HIS MOTION TO DENY SAME

NOW comes the Plaintiff, Mark R. McCoy, and in response to

Defendants Reply Brief In Support of Their Motion to Stay,

further clarifies and replies as follows:

Defendants respond to Plaintiffs Objection by focusing on

only two of the reasons stated therein, viz, (1) There being no

letter attached to the Defendants motion from Alemonds

commanding officer; and (2) Alemond is not required to

immediately appear and therefore would suffer no prejudice.

Defendant mischaracterizes Plaintiffs Objections as being

limited to the aforementioned. Plaintiffs preceding Answer and

Objections address a number of defects in Defendants Motion to

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Stay, which need not be revisited here. Plaintiff will speak to

the two items upon which the Defendant has chosen to rest his

argument by way of attacking Plaintiffs Objection.

Defendant relies upon, and claims, that Defendants

counsels private conversation with Major Arthur Fager, Assistant

to the Chief of Staff, satisfies the requirement imposed by 50

App. USCA 522(b)(2). Defendant contends that a private

conversation falls within the other communication from the

servicemembers commanding officer and therefore need not be in

writing. Defendants Motion to Stay states by way of Paragraph 3

that Major Arthur Fager represented that the Chief of Staffwas

within the chain of command of Alemond. (Emphasis added) This

says that the Chief of Saff, who is not Major Fager, is Alemonds

commanding officer and upon whom the duty falls for communicating

by way of letter or other communication that the

servicemembers current military duty prevents appearance and

that military leave is not authorized for the servicemember at

the time of the letter. Defendants Reply Brief In Support Of

Their Motion To Stay, Second Paragraph. (Emphasis added) However,

in Defendants Reply Brief they rely upon the word of Major

Fager, who previously was only representing the Chief of Staff,

Alemonds commanding officer, and who now is claimed to be one

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of his commanding officers.Defendant claims he has satisfied

requirements imposed by 50 App. USCA 522(b)(2), having spoken

with one of Alemonds commanding officers, thereby constituting

other communication. Plaintiff disagrees on the following

points.

First, the Defendant uses a selective recitation of the Act.

When read in its entirety, focusing on the relevant wording, it

says at 50 App. USCA 522(b)(2)(1)(A), A letter or other

communication from the servicemembers commanding officer stating

that the servicemembers current military duty prevents

appearance and that military leave is not authorized for the

servicemember at the time of the letter.(Emphasis added)

Plaintiff has provided further support for his argument by way of

his Exhibit A titled, A Servicemembers Civil Relief Act Guide,

published by the Administrative & Civil Law Deartment of The

Judge Advocate Generals School, United States Army. The SCRA

does not ask for a letter or other communication from one of the

servicemembers commanding officers, but from the servicemembers

commanding officer. (Emphasis added) It is clear by Defendants

Motion to Stay that Major Fager is not Alemonds commanding

officer, but later claimed to be one of Alemonds commanding

officers. Plaintiff believes the wording of the Act is clear and

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unambiguous. If it were left to any person within a potentially

long chain of command to make representations regarding the

servicemembers military duty then reliability, accountability,

accuracy, currency, and responsibility for any statement upon

which a servicemember may seek relief under the Act would be

inconsistent and indiscernible. If, as Defendant claims in his

Motion to Stay, the unnamed person serving as Chief of Staff is

Alemonds commanding officer then it is not unreasonable for the

Court to be provided with a letter or other communication from

that individual, as required by the Act. There are contradictions

in Defendants pleadings which require clarification before a

stay can be considered. Notwithstanding the ambiguous chain of

command of Alemond, there has been no mention by any of Alemonds

numerous and unidentified commanding officers that military leave

is not authorized for the servivcemember at the time of the

letter, as required by the Act. Also, to further expound upon the

reasonable interpretation of other communication, Plaintiff

directs the courts attention to the attached Exhibit B titled,

A Judges Guide To The Servicemembers Civil Relief Actwhich

contains relevant analysis of the SCRA, in the Plaintiffs

opinion. The second page of this Exhibit, displaying page number

3, indicates that the acceptable forms of communication may

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include, a letter, a formal memo, or even an e-mail message.

This indicates that the Defendants argument that notice need not

be in writing is mistaken or misleading. The other form of

communication merely distinguishes other forms of communication

from a letter, but which still requires something in writing,

but in a form other than a letter.

In addressing Defendants second exception to Plaintiffs

Objections, Defendant again mischaracterizes or misunderstands

Plaintiffs Objections. Nowhere in Plaintiffs Objections does he

state that Alemond is needed immediately. Plaintiff states that

Alemond is not needed to appear at the time application for

relief under SCRA is made, which is a requirement for relief.

Defendant states in his Reply Brief that, once written discovery

is complete, it is anticipated that Alemonds deposition will

proceed shortly thereafter. Plaintiff is unclear as to the

immediacy of something which is anticipated, but not yet complete

and shortly thereafter. It is the Plaintiffs understanding that

the word immediate is taken to be understood by all parties

without further debate or inquiry. Even if Defendant relies upon

the pending Interrogatories, Alemonds presence is not necessary

to complete said Interrogatories. There are other means by which

depositions, if needed at some time in the future, may be taken

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without requiring the physical presence of Alemond. Therefore,

Plaintiff believes that an application for a stay at this time is

unwarranted since there is no requirement for Alemond to be

present for any proceedings at the time application is made.

Plaintiff wishes to further address the claim by Defendant,

by way of his Reply Brief that Alemond will be prejudiced by lack

of a stay for his deployment to Egypt. Defendants reliance upon

Continental Illinois National Bank and Trust Co. v. University of

Notre Dame Du Lac, 394 Ill. 584, 589-90 (1946) states that,

Absence, when ones rights or liabilities are being adjudged is

usually prima facie prejudicial. (Emphasis added) Defendant has

made a prima facie argument, which will stand absent a challenge

from the opposing party. Plaintiff directs the Courts attention

to his Exhibit A, page number 3-32, Paragraph e. Burden of Proof,

which summarizes that setting forth facts, it is safe to assume

that the burden of proof will normally be on the servicemember.

The making of a prima facie case is not enough, which is what the

Defendant has sought to rely upon for relief under SCRA.

Finally, Plaintiff wishes to bring to the Courts attention

that a stay, if by some strained and favorable interpretation of

the SCRA, is granted, such relief would apply to Alemond only,

and not to the remaining Defendants, Aaron Nyman and The City of

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Fairview Heights. Referring again to Plaintiffs Exhibit A, page

number 3-38, Paragraphb. Codefendants, it states, In Section

525, however, the Act allows a court to proceed against other

codefendants, notwithstanding a stay as to the servicemember.

These codefendants are not among those sureties, guarantors, and

so on covered by Section 513. For Defendants Aaron Nyman and The

City of Fairview Heights to enjoy any protection afforded by a

stay to Alemond they would have to be proven to be a surety,

guarantor, endorser, accommodation, maker, comaker, or other

person who is or may be primarily or secondarily subject to the

obligation or liability the performance or enforcement of which

is stayed, postponed, or suspended. 50 U.S.C. app. 513(a)-(b).

For this reason, Plaintiff does not believe a stay would extend

protection to any of the other Defendants in this case.

WHEREFORE, Plaintiff, Mark R. McCoy, hereby prays this

Honorable Court to deny Defendants Motion to Stay Proceedings

Pursuant to the Servicemembers Civil Relief Act.

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 PLAINTIFFS REPLY BRIEF IN

SUPPORT OF HIS OBJECTIONS TO DEFENDANTS MOTION TO STAY AND HIS MOTION TO

DENY SAME for Case No.: 10 L 75 to the following person(s):

Joshua S. Abern

OHalloran Kosoff Geitner & Cook, LLC

650 Dundee Road, Suite 475

Northbrook, Illinois [email protected]

and

Dawn A. Sallerson

Hinshaw & Culbertson, LLPP.O. Box 509

521 West Main Street

Belleville, Illinois [email protected]

and

Clerk of the Circuit Court

St. Clair County Courthouse

10 Public SquareBelleville, Illinois 62220

via email (courtesy notice) and U.S. Mail by placing true and correct copies of the same in anenvelope(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 Fairview Heights, Illinois, on 2010.

Mark R. McCoy, Plaintiff

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Documents

Plaintiffs Reply Brief in Support of His Objections to Defendants Motion to Stay