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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

WILLIAM DAVENPORT,

Plaintiff,

v.

HENRY RICHARDS, et al,

Defendants.

Case No. C06-5334RJB-KLS

ORDER TO SHOW CAUSE

REGARDING DEFENDANTS’

MOTION FOR STAY

This matter has been referred to Magistrate Judge Karen L. Strombom pursuant to 28 U.S.C. §

636(b)(1), Local Magistrates Rules MJR 3 and 4, and Rule 72 of the Federal Rules of Civil Procedure. 

The case is before the Court on defendants’ motion for stay pursuant to the Servicemembers Civil Relief

Act, 50 App. U.S.C.A. § 521. After reviewing defendants’ motion, plaintiff’s response to that motion,

defendants’ reply thereto, and the balance of the record, the Court finds and orders as follows.

The purpose of the Servicemembers Civil Relief Act (the “Act”) “is to suspend enforcement of civil

liabilities of persons in military service of the United States in order to enable such persons to devote their

entire energy to the defense of the Nation.” Engstrom v. First National Bank of Eagle Lake, 47 F.3d 1459,

1462 (5th Cir. 1995). The public policy behind the Act thus “is to allow military personnel to fulfill their

duties unhampered by obligations incurred prior to their call. Omega Industries, Inc. v. Raffaele, 894

F.Supp. 1425, 1434 (D.Nev. 1995). 

The provisions of the Act, furthermore, are to be “liberally construed” and applied in a “broad spirit

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of gratitude towards service personnel.” Engstrom, 47 F.3d at 1462; Omega Industries, Inc., 894 F.Supp.

at 1434 (citations omitted). Because of this, the Court “must exercise extreme caution in withholding the

protection” of the Act. Omega Industries, Inc., 894 F.Supp. at 1434. Nevertheless, the Act “is not to be

used as a sword against persons with legitimate claims,” and the Court must give “equitable consideration

of the rights of parties to the end that their respective interests may be properly conserved.” Engstrom, 47

F.3d at 1462. 

In his complaint, which originally was filed in state court but subsequently removed to this Court,

plaintiff alleges various state employees engaged in certain tortious conduct that violated both state law

and his federal civil rights. (Dkt. #4). According to counsel for those state employee defendants, they

began receiving the complaint via United States mail on or about May 18, 2006. Affidavit of Michael E.

Johnston (“Johnston Affidavit”), ¶3 (Dkt. #19). Sometime thereafter, former supervisors and coworkers of

state defendant Tony Avenson informed state defendants’ counsel that he “had left State employment,

entered active military duty, and was about to be deployed to the Middle East.” Id. 

State defendants’ counsel states in his declaration that he “undertook diligent efforts to locate and

contact” defendant Avenson “to notify him of” plaintiff’s lawsuit, and “ascertain his personal situation.” Id.

Those efforts included contacting “military authorities” and defendant Avenson’s immediate family, “all of

whom confirmed his active-duty status.” Id. On June 12, 2006, defendant Avenson telephoned state

defendants’ counsel “from his pre-deployment training station in Mississippi,” and informed him that “he

was on active duty in the United States Navy and that he would deploy on June 23, 2006 to the Middle

East for military police duties.” Id. at ¶4. Defendant Avenson further told state defendants’ counsel that

“his deployment would last 12 to 18 months and would possibly include Iraq.” Id. 

Defendant Avenson also has submitted a declaration, in which he confirmed the above information

regarding his military status, training, assignment and potential length of deployment, as set forth in the

declaration of state defendants’ counsel. See Declaration of Tony Avenson (“Avenson Declaration”), ¶2-¶5

(Dkt. #20). Defendant Avenson further states therein that during his deployment “it will be difficult to

contact” him “through conventional means such as regular mail, e-mail, or telephone,” and that while he

“may return to the United States during” his “deployment for leave purposes,” he does “not know when or

if that will occur.” Id. at ¶6-¶7. Both defendant Avenson and state defendants’ counsel state in their

declarations that defendant Avenson did not receive service of plaintiff’s complaint. Johnston Affidavit, ¶5;

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Avenson Declaration, ¶8. 

Defendant Avenson apparently eventually did receive a copy of plaintiff’s complaint from state

defendants’ counsel via e-mail. Johnston Affidavit, ¶6; Avenson Declaration, ¶10. As noted by state

defendants’ counsel, that complaint contains numerous allegations and causes of action against defendant

Avenson. Johnston Affidavit, ¶7; see also Plaintiff’s Complaint (Dkt. #4). Defendant Avenson denies “the

allegations and claims” made against him in plaintiff’s complaint. Avenson Declaration, ¶11. State

defendants’ counsel further argues defendant Avenson is a “key defendant” in this case, and thus his

“active participation is needed.” Johnston Affidavit, ¶8. In addition, state defendants’ counsel believes

defendant Avenson and the other state defendants valid defenses against those claims, such as qualified

and/or absolute immunity. Id. Defendant Avenson, however, feels he “cannot adequately present” any

such defense “while deployed to the Middle East.” Avenson Declaration, ¶11. 

Plaintiff objects to state defendants’ motion on several bases. First, he asserts no evidence has been

submitted to show that defendant Avenson is deployed in the military outside the United States. As state

defendants point out, however, the affidavit and declaration submitted in support of their motion do

constitute competent evidence of which the Court may take notice. In addition, plaintiff has presented no

evidence on his part that calls into question the veracity of the statements contained therein, other than to

merely suggest that defendant Avenson may not in fact be on active military duty. 

Plaintiff next argues that a stay is not necessary here, because this case “can easily proceed based

upon depositions of the other defendants,” as well as “testimony from form employees” of the Special

Commitment Center (“SCC”). Plaintiff’s Response and Objections to Defendants’ Motion to Stay

(“Plaintiff’s Response”), p. 2. However, such testimony, no matter how potentially helpful plaintiff feels

such testimony will be, hardly can be deemed an adequate substitute for a party’s own testimony and his

right to present evidence on his own behalf. Indeed, while plaintiff asserts that “others can clearly state

what he did, and what his participation was,” and that a videotape exists which would provide “proof

regarding him and his actions,” negating the necessity of his presence, nothing has been presented to the

Court to show that this in fact is so. Plaintiff’s Response, p. 3. 

Although it is true that defendant Avenson is not the only defendant in this matter, and that other

defendants have been named in the various state and federal claims plaintiff raises in his complaint, all such

claims concern and stem from the same set of material facts. Further, according to the allegations

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contained in plaintiff’s complaint, defendant Avenson’s alleged participation in the events at issue here was

key. As such, defendant Avenson’s testimony and active participation in this case would appear to be

essential for the proper and just resolution of the claims involved here. 

As an additional reason for arguing defendant Avenson’s presence and testimony are not needed,

plaintiff asserts his “character and veracity are more than a little questionable,” because he was terminated

from employment with the state due to allegations of sexual improprieties he had with another employee.

Plaintiff’s Response, p. 8. There is no evidence in the record, however, to support plaintiff’s accusations in

this regard. In any event, any issue of defendant Avenson’s character and veracity is more properly a

matter to be addressed at trial if it comes to that, rather than in a determination of whether a party should

be provided the opportunity to be present and defend himself during litigation. 

Plaintiff next challenges state defendants’ assertion that reliable contact with defendant Avenson

cannot be had, when “daily and routine” contact with “individuals in the military” via the internet or other

electronic means remains feasible. Plaintiff’s Response, p. 4. While it may be that active members of the

military may have access to others via e-mail or other similar means of communication, it hardly is clear

that such access is available on a routine or daily basis, or that even if it is, that such access would suffice

to substitute for full and fair participation in the litigation process. This is particularly true with respect to

those members of the military who are overseas in or near an active war zone. It goes without saying that

in such situations one can never tell when and for how long one will have to be called away on a mission,

where there likely will be no available communication with the outside world. 

Plaintiff further argues that state defendants cannot rely on the defenses of qualified and absolute

immunity, because they knew or should have known they were or may have been violating his statutory

and constitutional rights. That question, however, concerns the merits of plaintiff’s case, and therefore it

remains to be seen whether such defenses may be validly raised. That is, it is entirely premature to decide

at this stage of the proceedings whether plaintiff’s rights were violated, or that, even if they were, whether

state defendants nevertheless are immune from suit. Indeed, no evidence of any such violations are before

the Court at this point other than the allegations contained in plaintiff’s complaint. 

Lastly, plaintiff suggests that in requesting this stay, state defendants are “hoping memories will

fade” and other evidence of the alleged wrongdoing on their part will disappear. Plaintiff’s Response, p. 8. 

However, there is nothing in the record – again, other than plaintiff’s own unsupported allegations – that

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this is state defendants’ hope or intent. Nor is there any evidence that state defendants’ are attempting to

improperly delay these proceedings or otherwise “circumvent” the claims raised in plaintiff’s complaint.

See id. While plaintiff claims everyone “knows” what actually happened and state defendants have “no

meritorious defenses,” once more, that remains to be seen. Id. 

 Section 521 of the Act, which serves to protect members of the military against default judgments,

“applies to any civil action or proceeding in which the defendant does not make an appearance.” 50 App.

U.S.C.A. § 521(a). Under that section, “[a] party on active duty in the armed forces is entitled to a stay of

proceedings if his service materially affects his ability to prosecute or defend the action.” Ricard v. Birch,

529 F.2d 214, 217 (4th Cir. 1975). Section 521(d) specifically mandates that:

In an action covered by this section in which the defendant is in military service, the

court shall grant a stay of proceedings for a minimum period of 90 days under this

subsection upon application of counsel, or on the court’s own motion, if the court

determines that--

(1) there may be a defense to the action and a defense cannot be presented without the

presence of the defendant; or

(2) after due diligence, counsel has been unable to contact the defendant or otherwise

determine if a meritorious defense exists.

See also 50 App. U.S.C.A. § 525(a) (court may order stay for period of military service and ninety days

thereafter or any part thereof). 

Section 521 of the Act, however, specifically serves to protect servicemembers against default

judgments. That section thus focuses on the steps a plaintiff must take and the requirements the Court

must apply “before entering [a default] judgment” for that plaintiff. 50 App. U.S.C.A. § 521(b)(1). The

stay provided for by subsection (d) discussed above, therefore, applies only in those actions – i.e. actions

for default judgments – “covered by” Section 521 of the Act. Id. Accordingly, as this is not a default

judgment instituted by plaintiff against defendant Avenson, or any of the other state defendants, the Court

finds the Section 521 stay proceedings to be inapplicable here. 

Nevertheless, a stay of proceedings likely is available to defendant Avenson under Section 522 of

the Act. That section “applies to any civil action in which the plaintiff or defendant at the time of filing an

application” for a stay under that section: “(1) is in military service or is within 90 days after termination of

or release from military service; and (2) has received notice of the action or proceeding.” 50 App.

U.S.C.A. § 522(a). Here, both of these requirements have been met. First, as discussed above, the record

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shows defendant Avenson has been in active military service since at least June 23, 2006. In addition,

while there are issues concerning service, defendant Avenson has at the very least received notice of this

matter through both his counsel and others. 

A stay under section 522 may be obtained “[a]t any stage before final judgment in a civil action or

proceeding” either “upon application of the servicemember” or by the Court “on its own motion . . . for a

period of not less than 90 days.” 50 App. U.S.C.A. § 522(b)(1). In order to obtain a stay under Section

522 of the Act, however, the application therefor must include the following:

(A) 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

and stating a date when the servicemember will be available to appear.

(B) 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.

50 App. U.S.C.A. § 525(b). 

Certainly, state defendants have met the first requirement set forth above via submission of the

affidavit of state defendants’ counsel and the declaration of defendant Avenson. That submission shows

defendant Avenson to be currently on active military duty in the Middle East, and will continue to be on

such military duty for approximately 12 to 18 months, which materially affects his ability to appear and

defend against the claims in plaintiff’s complaint. That is, he will not be available to be deposed, give

testimony or otherwise participate meaningfully in this case while on such duty. Indeed, there does not

appear to be any reliable means of communication with him at this time. 

It appears, however, that the required “letter or other communication from” defendant Avenson’s

commanding officer has not been provided. Nevertheless, in light of the foregoing discussion and current

military status of defendant Avenson, the Court finds a stay of proceedings likely to be warranted. The

granting of such a stay though is dependant upon the submission to the Court of the above required letter

or other communication, which state defendants shall have until December 9, 2006, to accomplish. State

defendants’ motion (Dkt. #18) therefore hereby is re-noted for consideration on December 15, 2006, and

all further action in this matter hereby is STAYED until then. 

In his response to state defendants’ motion, plaintiff moves for an order from this Court allowing

him to depose all available parties. Plaintiff, however, has not properly noted this as a motion, and may not

include it in a response to a motion filed by another party. See Fed. R. Civ. P. 7. In addition, in light of the

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stay granted by the Court herein, and the one likely to be granted pending state defendants response to this

order, allowing discovery to go forth in this matter while any such stay is in effect and while one of the

defendants is unavailable to make any motions or present any objections he might have with respect to the

discovery process, would be inappropriate. Accordingly, for these reasons, plaintiff’s request/motion for

depositions hereby is DENIED. 

Finally, plaintiff requests appointment of counsel in this matter due to inadequate access to legal

resources. As with his motion/request for depositions, however, he has not properly noted his request for

appointment of counsel as a motion. In any event, this is the second time plaintiff has requested that he be

appointed counsel. His first request was denied on July 17, 2006. (Dkt. #8 and #15). Even if plaintiff

properly had noted and filed for consideration this, his second, request for appointment of counsel, the

Court finds no valid reason to reverse its earlier decision on the matter. Accordingly, plaintiff’s request for

appointment of counsel again hereby is DENIED. 

The Clerk is directed to send a copy of this Order to plaintiff and counsel for defendant[s].

DATED this 9th day of November, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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