Protection under the Servicemembers Civil Relief Act (SCRA)
50 U.S.C.A. S 3932 Stay of proceedings of proceedings when servicemember has notice
The Soldiers' and Sailors' Civil Relief Act vests discretion in trial courts to grant or deny a stay of proceedings, depending upon whether the serviceman's ability to prosecute or defend the action is “materially affected” by reason of his military service. Soldiers' and Sailors' Civil Relief Act of 1940, § 201, 50 App. U.S.C.A. § 521.
Nothing can bring a case to a halt faster than a servicemember that seeks protection under the Servicemember’s Civil Relief Act (SCRA). Section 3932 of the SCRA states that the court may on its own motion and shall, upon the application of a servicemember[1] enter a stay of proceedings for at least 90 days if the motion includes the information required by the statute for the court to determine whether a stay is needed. The stay requires 4 elements:
1. 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 …
2. And stating a date when the servicemember will be available to appear.
3. A statement from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance…
4. And stating that military leave is not authorized for the servicemember at the time of the statement.
Does the motion include the information required by the statute for the court to determine whether a stay is needed?
A. Either opposing counsel or the court should ask “What is the “military necessity” that prevents the servicemember from appearing? Was it stated clearly?
B. It is not merely enough to state in general terms that the servicemember is deployed and unable to appear. As is common in the courts, many servicemembers are available to testify from remote locations via telephone or Skype and do so on a regular basis thanks to advances in technology. Is the servicemember in a combat zone and facing hostile fire, sitting on a European Air Base far from any action, or in a base within the continental United States?
C. It should be asked if the servicemember’s presence is required? Does the servicemember need to make a personal appearance? Can it be done with videoconferencing? Telephone? Affidavits? Depositions?
If the court feels like the four elements are met then a stay of at least 90 days should be granted.
If only 90 days is granted and the servicemember is still unable to appear, the servicemember may request an additional stay again addressing all four elements. If the additional stay is denied extra protections for the servicemember are triggered and the court must appoint an attorney to appear for the servicemember.[2]
It is important to note the servicmember must be acting in good faith exercising due diligence in his or her application for a stay rather than trying to gain a tactical advantage in the litigation. Florida law recognizes the Soldiers' and Sailors' Civil Relief Act of 1940 was passed to give military servicemen a shield and not a sword, and it is intended that the servicemen applying for a stay of legal proceedings under the Act assert bona fide rights and exercise good faith. A Georgia court has determined that temporary modifications of child support, in general, do not materially affect the SM’s rights since they are interlocutory and subject to modification. Whether you are trying to assert of attack the protection provided by 50 U.S.C.A. S 3932, Stay of proceedings of proceedings when servicemember has notice, it is important to proceed with caution.
[1] Note that it does not have to be a formal request through motion practice but simply, “A letter or other communication…”
[2] Who is going to pay the attorney and how is the attorney is going to prepare with his or her client?