UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
July 2, 2008
ANIBAL MESALA SILVA, APPELLANT,
JOSEPH GAETA, APPELLEE.
The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO STAY WITHOUT PREJUDICE
Appellant, a non-prisoner proceeding pro se, moves to stay this bankruptcy appeal pursuant to the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. App. § 522. (Doc. no. 6.) He seeks an initial 90-day stay of proceedings followed by an additional 30-day stay. Section 522 applies to any civil action or proceeding in which, at the time a party files an application under the section, that party is in military service and has received notice of the action or proceeding. 50 U.S.C. App. § 522(a). Upon the servicemember's application, the court must stay the action for at least 90 days if the servicemember submits the following two documents:
(A) a letter or other communication setting forth facts stating the manner in which current military 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 U.S.C. App. § 522(b)(2). In this case, Appellant's motion satisfies § 522(b)(2)(A) by explaining that Appellant would begin military training on June 12, 2008, and would be unable to file papers or appear in court until the conclusion of his training on approximately September 21, 2008. Nevertheless, the court cannot grant the requested stay because Appellant has not submitted a letter or communication from his commanding officer in compliance with § 522(b)(2)(B).
The court therefore DENIES the motion without prejudice to the filing of a motion complying with both requirements of § 522(b)(2).
IT IS SO ORDERED.
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