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. )

PLAINTIFF’S ANSWER TO DEFENDANT’S MOTION TO STAY PROCEEDINGS

PURSUANT TO THE SERVICEMEMBER’S CIVIL RELIEF ACT, OBJECTIONS
THERETO, AND MOTION TO DENY SAME

NOW comes the Plaintiff, Mark R. McCoy, and hereby submits

his Answers to Defendant’s Motion to Stay Proceedings Pursuant to

the Servicemember’s Civil Relief Act, Objections thereto, and

Motion to Deny Same, and in response thereto states as follows:

Answer to Defendant’s Motion to Stay Proceedings

1. Plaintiff is in receipt of Defendant’s Motion to Stay

Proceedings Pursuant to the Servicemember’s Civil Relief Act and

Notice of Filing for the above captioned case.

2. Per Paragraph 1 of Defendant’s Motion to Stay, Defendant,

Joshua M. Alemond, states by way of said Motion that he is a

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member of the Illinois National Guard. Plaintiff can neither

confirm nor deny Defendant’s Paragraph 1, but will stipulate to

the assertion made therein.

3. Per Paragraph 2 of Defendant’s Motion to Stay, Defendant,

Joshua M. Alemond, claims to have received orders for reporting

to active duty for a period of time not to exceed 400 days.

Plaintiff can neither confirm nor deny Defendant’s assertion in

his Paragraph 2.

4. Per Defendant’s Exhibit A of Defendant’s Motion to Stay,

which is a document appearing to be issued under the authority of

the “DEPARTMENT OF MILITARY AFFAIRS” bearing the date of “23

MARCH 2010”, which the Defendant relies upon as “Orders” issued

to the Defendant Joshua M. Alemond. Plaintiff can neither confirm

or deny the authenticity or veracity of this attachment, as it

lacks any signature, has been tampered with by way of redaction

of information, speaks only to a specific period in time under

which circumstances may not apply to the present, is of such a

nature that only someone versed in understanding or interpreting

the language and symbols used therein may be privy to the meaning

of that attachment, and does not satisfy the intent nor the

requirements set forth in the Servicemember’s Civil Relief Act.

For aforesaid reasons, Plaintiff can neither confirm or deny the

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information represented by way of Defendant’s Exhibit A, nor

agrees with that Exhibit’s applicability or relevance in seeking

a Stay of these Proceedings pursuant to the Servicemember’s Civil

Relief Act and objects to same.

5. Per Paragraph 3 of Defendant’s Motion to Stay, Defense

counsel, Joshua Abern, claims to have spoken with an individual,

Assistant to the Chief of Staff of the Illinois National Guard,

Major Arthur Fager, represented to be within the chain of command

of the Defendant, Joshua M. Alemond, and by way of a private

conversation with said individual makes the claim of possessing

detailed knowledge of Defendant Alemond’s deployment. Plaintiff

can neither confirm nor deny that a conversation took place

between Defense counsel, Joshua Abern, and said individual in

which was discussed the Defendant, Joshua Alemond, and states

further by way of objection that Defendant’s Paragraph 3 amounts

to inadmissible hearsay, is of no value in satisfying

requirements necessary to support Defendant’s Motion to Stay

Proceedings, is unsubstantiated, and likewise of no relevance to

these proceedings.

6. Per Paragraph 4 of Defendant’s Motion to Stay, Defendant

relies upon 50 App. USCA §501, et seq., Servicemember’s Civil

Relief Act for the authority in receiving a stay in these

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Proceedings, and therefore controlling in this Case. Plaintiff

agrees with Defendant’s Paragraph 4 insofar that 50 App. USCA

§501, et seq., Servicemember’s Civil Relief Act is the proper

authority for a Servicemember seeking a Stay of Proceedings, but

disagrees that Defendant, Joshua M. Alemond, has satisfied all

requirements of said Act necessary to enjoy any benefit of said

Act.

7. Per Paragraph 4 of Defendant’s Motion to Stay, Defendant,

Joshua M. Alemond, seeks relief from these proceedings by way of

the 50 App. USCA §501, et seq., Servicemember’s Civil Relief Act.

Plaintiff agrees with Defendant’s Paragraph 4.

8. Per Paragraph 4 of Defendant’s Motion to Stay, Defendant has

included, by way of his Motion, excerpts from said Act, upon

which he is relying for support. Plaintiff agrees with

Defendant’s Paragraph 4 insofar as said Paragraph adequately

represents pertinent provisions of the Servicemember’s Civil

Relief Act upon which the Defendant may base a claim for relief

thereof.

9. Per Paragraph 5 of Defendant’s Motion to Stay, Defendant

claims that all conditions have been met. Plaintiff disagrees and

claims that the Defendant has failed to meet all the requirements

of the Servicemember’s Civil Relief Act necessary to support his

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Motion.

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 PLAINTIFF’S OBJECTIONS

1. Plaintiff objects to DEFENDANT’S MOTION TO STAY PROCEEDINGS

PURSUANT TO THE SERVICEMEMBER’S CIVIL RELIEF ACT (hereinafter

referred to as SCRA) for lack of sufficiency in meeting necessary

requirements.

2. Defendant has failed to provide, by way of his Motion,

information necessary to satisfy the requirements imposed under

50 App. USCA §501, et seq., (SCRA).

3. Defendant is entitled to a stay, upon application by the

servicemember, for a period of not less than 90 days provided

that conditions in paragraph (2) are met. 50 App. USCA §522(b)

(1).(Emphasis added) An additional stay (one which exceeds the

initial 90 days) requires an additional request, which may be

made at the time of the initial application, but which must

include information required under subsection (b)(2). 50 App.

USCA §522(d). Requirements for how such application by the

servicemember shall be made is found at 50 App. USCA §522(b)(2).

Plaintiff objects to Defendant’s Motion on the basis that the

Defendant has failed to provide, by way of his application, a

letter or other communication which sets forth the facts which

state the manner in which current military duty requirements

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materially affect the servicemember’s ability to appear.

Defendant has only alleged hearsay, by way of his Motion

(Paragraph 3), which is not a “letter or other communication” and

which sets forth no “facts which state the manner in which

current military duty requirements materially affect the

servicemember’s ability to appear”.

Defendant’s “orders” (Exhibit A) also fail to conform to the same

requirements. Any alleged “facts” are not stated clearly and

subject to interpretation as well as the absence of any

identifiable “material affect” regarding the Defendant’s ability

to appear.

Defendant has also failed to meet requirements of 50 App. USCA

§522(b)(2)(B) which require, “A letter or other communication

from the servicemember’s commanding officer stating that the

service member’s current military duty prevents appearance and

that military leave is not authorized for the servicemember at

the time of the letter.” (Emphasis added)

Both the alleged conversation between Defense Counsel and Major

Arthur Fager, as well as Exhibit A, fail to meet requirements of

SCRA. Major Arthur Fager is not the Defendant’s commanding

officer, the conversation is not a letter or other communication

(that which is in writing), and makes no mention of how the

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Defendant’s current military duty prevents appearance, nor that

military leave is not authorized. For reasons stated above

Plaintiff objects to Defendant’s Motion.

4. “Paragraph (2)(A)” states that an application for a stay

under paragraph 1 “shall include the following”: A letter or

other communication setting forth the 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. 50 App. USCA §522(b)

(2)(A) (Emphasis added)

5. Plaintiff objects to Defendant’s Motion on the basis that he

has not satisfied the requirement imposed by “Paragraph (2)(A)”

(Conditions for stay), as he has not provided “A letter or other

communication.” It is the Plaintiff’s belief that “letter or

other communication” means something reduced to writing and does

not include a reference to a private conversation, as presented

in Defendant’s Paragraph 3. Plaintiff objects further on the

basis that alleged facts in Defendant’s Paragraph 3 are

inadmissible hearsay and fail to meet any statutory or common law

exceptions to rules governing hearsay. Plaintiff has no

opportunity to cross-examine or impeach the declarant, nor

ascertain the veracity of the statement proffered. For a

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statement to considered in offering any kind of factual evidence

the party making such assertions must be subject to cross-

examination unless such assertions fall within an allowable

exception. People v. Armstead, 322 Ill App 3d, 748 NE2d 691

(2001). Defendant’s counsel claims to have had a conversation

with “Assistant to the Chief of Staff of the Illinois National

Guard, Major Arthur Fager”, who, by Defendant’s own admission in

Paragraph 3, is not the Defendant’s commanding officer (which

lays the foundation for objections to follow), but who

“represented” (Emphasis added) that “the Chief of Staff (a person

unnamed) was within the chain of command of Alemond”. Plaintiff

makes the objection that the alleged statement of Major Arthur

Fager constitutes hearsay within hearsay. Even if the initial

statement is within an exception to the hearsay rule, the

statement itself contains impermissible hearsay. Neither of the

parties upon whom the Defendant relies in supporting his

assertions in Paragraph 3 can be considered unavailable for

purposes of hearsay exceptions as there was apparently a

conversation as recent as July 6, 2010 between Defense counsel

and Major Arthur Fager. Nevertheless, upon the Plaintiff’s

objection to Defendant’s Paragraph 3 for containing inadmissible

hearsay and hearsay within hearsay, it is the Defendant’s burden

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to establish the applicability of any exception in overcoming

Plaintiff’s objection. People v. Smith, 152 Ill 2d 229, 604 NE2d

858 (1992); People v. Fomond, 273 Ill App 3d 1053, 652 NE2d 1322

(1995).

6. Plaintiff objects to Defendant’s Motion on the basis that he

has not satisfied the requirement imposed by “Paragraph (2)(A)”

(Conditions for stay), as he has not provided “A letter or other

communication.” It is the Plaintiff’s belief that “letter or

other communication” means something reduced to writing and does

not include a copy of the alleged orders issued to Defendant,

Joshua M. Alemond, as presented by way of Defendant’s Paragraph 2

and Exhibit A. Defendant’s Exhibit A should be considered a

private document for internal use specific to the functions of

the Department of Military Affairs. Defendant’s Exhibit A are

“orders” allegedly issued to Defendant, Joshua M. Alemond, and

not a letter or other communication addressed to the Court for

the purposes of seeking relief under the SCRA. Defendant’s

Exhibit A displays redactions and superfluous information which

is cryptic and indiscernible in supporting a request for stay

pursuant to the SCRA. Plaintiff objects further on the basis that

Defendant’s Exhibit A is inadmissible hearsay, as there is no

authentication or other proof of genuineness and no witness upon

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whom a basis for authentication may be relied. Exhibit A is

inadmissible because it does not satisfy the best evidence rule.

Plaintiff will stipulate that it may be unreasonable to demand

the production of the original orders alleged to have been issued

to the Defendant, but will defer to the Secondary Evidence

Exception for the purposes of this objection. Defendant’s Exhibit

A lacks necessary foundation for introduction as evidence as it

has not been marked for identification. Also lacking is any

evidence which establishes the existence of the original

document, attests to the accuracy of the duplication, describes

the time and place the copy was made, or explains why the

original is unavailable. If Defendant’s Exhibit A is in-fact a

representation of actual orders then the Exhibit cannot be relied

upon it has been altered or modified from its original condition

by way of redaction of information, and therefore not a true or

accurate representation of the alleged orders issued to the

Defendant. Defendant fails to explain the necessity for any

alterations, as well as omitting the process by which the copy

came to be and the person by whom it was created.

7. Plaintiff objects to Defendant’s Motion on the basis that he

has not satisfied the requirement imposed by “Paragraph (2)(A)”

(Conditions for stay), as he has not “set forth the facts stating

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the manner in which current military duty requirements materially

affect the servicemember’s ability to appear”. The facts and

supporting statements/Exhibits relied upon by the Defendant

merely allude to, but do not prove, an obligation to report for

active duty and how that duty materially affects the Defendant’s

ability to appear. Active duty military service is, in itself, a

mere contention of unavailability want of affirmative

representations which do not warrant relief under SCRA. The Judge

Advocate General’s Legal Center & School, U.S. Army, JA 260,

Servicemembers Civil Relief Act, 59 (2006); Hibbard v. Hibbard,

431 N.W.2d 637, 639-40 (Neb. 1988). See also Hackman v. Postel,

675 Supp. 1132, 1134 (E.D. Ill. 1988. Taking into consideration

the status of these proceedings which the Defendant seeks relief

by way of SCRA, it is questionable whether an immediate or

foreseeable appearance by the Defendant is at issue, thereby

warranting a stay at this time. Both the Plaintiff and Defendant

are involved in the discovery phase of this case. Plaintiff has

not requested any discovery, such as depositions, which would

demand the Defendant’s physical presence. If discovery demands

evolve to include interaction with the Defendant while on active

duty, there are alternatives available with the aid of technology

which may permit such discovery while Defendant is deployed. A

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stay, as it may relate to discovery, is not appropriate.

Plaintiff does not disagree that the direction of these

proceedings may, at some time, place a demand for the Defendant

to physically appear, and is willing to entertain a subsequent

Motion to Stay Proceedings pursuant to SCRA at that time, but it

is the Plaintiff’s belief that the SCRA affords, insofar as the

present demands placed upon all parties exist, relief from

personally appearing for legal proceedings. The Judge Advocate

General’s Legal Center & School, U.S. Army, JA 260,

Servicemembers Civil Relief Act, 65 (2006); Keefe v. Spangenberg,

533 F. Supp. 49 (W.D. Okla. 1981) (court denied stay request to

delay deposition, and suggested that service member agree to

videotape deposition in accordance with Federal Rules of Civil

Procedure Rule 30(b)(4)); see also In re Diaz, 82 B.R. 162, 165

(Bankr. D. Ga. 1988) (service members in Germany may make video

depositions for use in trials in the United States, so Section

201 stay is not appropriate to delay discovery).

The Defendant has not only failed to provide facts which speak to

materiality, but he has also failed to identify the current

military requirements of the Defendant, and whether there exists

a demand on the Defendant to appear for discovery which would

necessitate application to this Court for relief pursuant to

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SCRA. Defendant has failed to meet the requirement of setting

forth facts which state the manner in which the current military

requirements materially affect the Defendant’s ability to appear,

or more appropriately, whether an appearance is even required at

the time of application for relief under SCRA.

8. Plaintiff objects to Defendant’s Motion on the basis that he

has not satisfied the requirement imposed by “Paragraph (2)(A)”

(Conditions for stay), as he has not stated a date when the

servicemember will be available to appear. Defendant has only

alluded to a future period in time, and not a date, as required

by 50 App. USCA §522(b)(2)(A). Defendant states by way of

Paragraph 3 of his Motion, “until May or June 2011”, which is not

a date.

Motion to Deny Defendant’s Motion for Stay of Proceedings

Plaintiff moves this Honorable Court to deny Defendant’s

Motion to Stay Proceedings Pursuant to the Servicemember’s Civil

Relief Act based upon the forgoing Answers and Objections herein

stated.

WHEREFORE, Plaintiff, Mark R. McCoy, hereby submits his

Answers and Objections to Defendant’s Motion to Stay Proceedings

Pursuant to the Servicemember’s Civil Relief Act, upon which

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relies his Motion to Deny Defendant’s application for relief

thereto, and thereby, prays this Honorable Court to deny

Defendant’s Motion.

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 Plaintiff’s Answers to
Defendant’s First Request to Produce for Case No.: 10 L 75 to the following person(s):

Julie A. Bruch
Joshua S. Abern
O’Halloran Kosoff Geitner & Cook, LLC
650 Dundee Road, Suite 475
Northbrook, Illinois 60062

and

Dawn A. Sallerson
Hinshaw & Culbertson, LLP
P.O. Box 509
521 West Main Street
Belleville, Illinois 62222

and

Clerk of the Circuit Court

St. Clair County Courthouse
10 Public Square
Belleville, Illinois 62220

via U.S. Mail by placing true and correct copies of the same in an envelope(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 Collinsville, Illinois, 62234 on July 15, 2010.

Mark R. McCoy, Plaintiff

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