Philogene-Bey v. New York City Police Commissioner James P. O'Neill
1:17-cv-01486
E.D.N.YAug 30, 2017Background
- Pro se plaintiff James Philogene-Bey sued NYPD officers and the City under 42 U.S.C. § 1983 alleging an unconstitutional stop, arrest, search, and use of force involving Officer Roman Rushtlion and two named sergeants.
- Defendants (City and individual municipal employees) moved to stay the entire action because Officer Rushtlion is on extended military leave and serving in the U.S. Armed Forces.
- Defendants relied on the servicemember stay statute (now codified at 50 U.S.C. § 3932) but did not submit the required commanding‑officer letter or detailed statement from the servicemember about how duty materially affects his ability to appear.
- Plaintiff moved for certificates of default after defendants missed the court deadline to answer; the City had filed the stay motion by that deadline.
- The court found the stay motion procedurally and substantively deficient, questioned whether Rushtlion was properly served, denied defaults, and ordered served defendants to answer by set dates (Sept. 22, 2017; Rushtlion, if served, by Oct. 27, 2017).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court should stay the entire action under the servicemember stay statute | Opposed the stay and argued defendants failed to justify it | Sought a stay because Officer Rushtlion is on military leave and cannot appear | Denied: defendants failed to meet § 3932(b)(2) requirements; stay not automatic and would not extend to non‑servicemember defendants |
| Whether defendants provided required proof to obtain a stay under § 3932 | N/A (argues stay is unwarranted) | Submitted NYPD letter but no military commanding‑officer letter or servicemember statement detailing inability to appear | Denied: missing commanding‑officer communication and factual showing of how military duty materially affects appearance |
| Whether the City (employer) may invoke § 3932 on behalf of the servicemember | N/A | City moved for stay on servicemember’s behalf | Denied in part: employer lacks standing to invoke protections of the statute; stay requests by non‑servicemember employer are improper |
| Whether certificates of default should issue for defendants who missed the answer deadline | Requested defaults for defendants who did not answer by court deadline | Defendants had moved for a stay by the deadline; Rushtlion’s service status unclear | Denied without prejudice: stay motion filed; court doubts proper service on Rushtlion; ordered answers by specified dates |
Key Cases Cited
- Hackman v. Postel, 675 F. Supp. 1132 (N.D. Ill. 1988) (servicemember stay not automatic)
- Boone v. Lightner, 319 U.S. 561 (U.S. 1943) (mere military service outside jurisdiction does not mandate stay)
- Keefe v. Spangenberg, 533 F. Supp. 49 (W.D. Okla. 1981) (municipal employer lacks standing to invoke servicemember protections)
- Antioch Co. v. Scrapbook Borders, Inc., 210 F.R.D. 645 (D. Minn. 2002) (denial of stay where servicemember’s ability to maintain contact is unsupported)
- Comer v. City of Palm Bay, Fla., 265 F.3d 1186 (11th Cir. 2001) (courts evaluate all circumstances in deciding stay under servicemember protections)
- Tabor v. Miller, 389 F.2d 645 (3d Cir. 1968) (stay is discretionary; consider all circumstances)