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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. )

PLAINTIFF’S REPLY BRIEF IN SUPPORT OF HIS OBJECTIONS TO


DEFENDANT’S MOTION TO STAY AND HIS MOTION TO DENY SAME

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

Defendant’s Reply Brief In Support of Their Motion to Stay,

further clarifies and replies as follows:

Defendant’s respond to Plaintiff’s Objection by focusing on

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

letter attached to the Defendant’s motion from Alemond’s

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

immediately appear and therefore would suffer no prejudice.

Defendant mischaracterizes Plaintiff’s Objections as being

limited to the aforementioned. Plaintiff’s preceding Answer and

Objections address a number of defects in Defendant’s 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 Plaintiff’s Objection.

Defendant relies upon, and claims, that Defendant’s

counsel’s 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

servicemember’s commanding officer” and therefore need not be in

writing. Defendant’s Motion to Stay states by way of Paragraph 3

that Major Arthur Fager represented that the Chief of Staff was

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

says that the Chief of Saff, who is not Major Fager, is Alemond’s

commanding officer and upon whom the duty falls for communicating

by way of “letter or other communication” that the

“servicemember’s current military duty prevents appearance and

that military leave is not authorized for the servicemember at

the time of the letter.” Defendant’s Reply Brief In Support Of

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

in Defendant’s Reply Brief they rely upon the word of Major

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

Alemond’s 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 Alemond’s 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 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 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 General’s School, United States Army. The SCRA

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

servicemember’s commanding officers, but from the servicemember’s

commanding officer. (Emphasis added) It is clear by Defendant’s

Motion to Stay that Major Fager is not Alemond’s commanding

officer, but later claimed to be one of Alemond’s 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

servicemember’s 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

Alemond’s 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 Defendant’s 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 Alemond’s

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 court’s attention to the attached Exhibit B titled,

“A Judge’s Guide To The Servicemembers Civil Relief Act” which

contains relevant analysis of the SCRA, in the Plaintiff’s

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 Defendant’s 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 Defendant’s second exception to Plaintiff’s

Objections, Defendant again mischaracterizes or misunderstands

Plaintiff’s Objections. Nowhere in Plaintiff’s 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 Alemond’s 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 Plaintiff’s 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, Alemond’s 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. Defendant’s 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 one’s 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 Court’s 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 Court’s 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 Defendant’s, Aaron Nyman and The City of

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Fairview Heights. Referring again to Plaintiff’s Exhibit A, page

number 3-38, Paragraph b. 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 Defendant’s Motion to Stay Proceedings

Pursuant to the Servicemember’s 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 PLAINTIFF’S REPLY BRIEF IN
SUPPORT OF HIS OBJECTIONS TO DEFENDANT’S MOTION TO STAY AND HIS MOTION TO
DENY SAME for Case No.: 10 L 75 to the following person(s):

Joshua S. Abern
O’Halloran Kosoff Geitner & Cook, LLC
650 Dundee Road, Suite 475
Northbrook, Illinois 60062
jabern@okgc.com

and

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

and

Clerk of the Circuit Court


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

via email (courtesy notice) and 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 Fairview Heights, Illinois, on 2010.

Mark R. McCoy, Plaintiff

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