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

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

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Published by Marc MkKoy
Following Defendant's reply brief to my answers and objections, I filed my reply brief to their reply brief restating my arguments why they should not be afforded a stay pursuant to the Servicemembers Civil Relief Act.
Following Defendant's reply brief to my answers and objections, I filed my reply brief to their reply brief restating my arguments why they should not be afforded a stay pursuant to the Servicemembers Civil Relief Act.

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Published by: Marc MkKoy on Aug 05, 2010
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07/02/2013

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1
IN THE CIRCUIT COURTTWENTIETH JUDICIAL CIRCUITST. CLAIR COUNTY, ILLINOIS
Mark R. McCoy, ))Plaintiff, ))-VS- ))Case No. 10 L 75CITY OF FAIRVIEW HEIGHTS, a )municipal corporation, JOSHUA )ALEMOND, and AARON NYMAN ))Defendants. )
PLAINTIFF’S REPLY BRIEF IN SUPPORT OF HIS OBJECTIONS TODEFENDANT’S MOTION TO STAY AND HIS MOTION TO DENY SAME
NOW comes the Plaintiff, Mark R. McCoy, and in response toDefendant’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 ononly two of the reasons stated therein, viz, (1) There being noletter attached to the Defendant’s motion from Alemond’scommanding officer; and (2) Alemond is not required toimmediately appear and therefore would suffer no prejudice.Defendant mischaracterizes Plaintiff’s Objections as beinglimited to the aforementioned. Plaintiff’s preceding Answer andObjections address a number of defects in Defendant’s Motion to
Page 1 of 8
 
Stay, which need not be revisited here. Plaintiff will speak tothe two items upon which the Defendant has chosen to rest hisargument by way of attacking Plaintiff’s Objection.Defendant relies upon, and claims, that Defendant’scounsel’s private conversation with Major Arthur Fager, Assistantto the Chief of Staff, satisfies the requirement imposed by
50App. USCA §522(b)(2)
. Defendant contends that a privateconversation falls within the “other communication from theservicemember’s commanding officer” and therefore need not be inwriting. Defendant’s Motion to Stay states by way of
Paragraph 3
that Major Arthur Fager
represented that the Chief of Staff 
waswithin the chain of command of Alemond. (Emphasis added) Thissays that the Chief of Saff, who is not Major Fager, is Alemond’scommanding officer and upon whom the duty falls for communicatingby way of “letter or other communication” that the“servicemember’s current military duty prevents appearance andthat military leave is not authorized for the servicemember atthe 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 MajorFager, who previously was only
representing the Chief of Staff 
,Alemond’s commanding officer, and who now is claimed to be
“one
Page 2 of 8
 
of his commanding officers.” 
Defendant claims he has satisfiedrequirements imposed by
50 App. USCA §522(b)(2),
having spokenwith “one of Alemond’s commanding officers”, thereby constituting“other communication”. Plaintiff disagrees on the followingpoints.First, the Defendant uses a selective recitation of the Act.When read in its entirety, focusing on the relevant wording, itsays 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 preventsappearance and that military leave is not authorized for theservicemember at the time of the letter.” 
(Emphasis added)Plaintiff has provided further support for his argument by way ofhis Exhibit A titled,
“A Servicemembers Civil Relief Act Guide”, published by the Administrative & Civil Law Deartment of TheJudge Advocate General’s School, United States Army 
. The SCRAdoes not ask for a letter or other communication from
one of theservicemember’s commanding officers
, but from
the servicemember’scommanding officer 
. (Emphasis added) It is clear by Defendant’sMotion to Stay that Major Fager is not Alemond’s commandingofficer, but later claimed to be one of Alemond’s commandingofficers. Plaintiff believes the wording of the Act is clear and
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