265 F.3d 1186 (11th Cir. 2001), 00-13546, Comer v City of Palm Bay Florida

Docket Nº:00-13546
Citation:265 F.3d 1186
Party Name:RONALD COMER, Plaintiff, KENNETH PALMER, Plaintiff-Appellant, v. CITY OF PALM BAY, FLORIDA, Defendant-Appellee.
Case Date:September 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1186

265 F.3d 1186 (11th Cir. 2001)

RONALD COMER, Plaintiff,

KENNETH PALMER, Plaintiff-Appellant,


CITY OF PALM BAY, FLORIDA, Defendant-Appellee.

No. 00-13546

United States Court of Appeals, Eleventh Circuit

September 17, 2001

Page 1187

Appeal from the United States District Court for the Middle District of Florida D. C. Docket No. 98-00868-CV-ORL-18C

Before BIRCH, CARNES and HULL, Circuit Judges.


Kenneth Palmer appeals the magistrate judge's denial of his motion to stay proceedings under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C. § 521 ("the Act") and grant of defendant City of Palm Bay, Florida's ("City") motion for summary judgment.1 We AFFIRM the district court.


In 1998, Palmer and co-plaintiff, Ronald Comer, filed an action against the City alleging that they were subjected to discrimination while they were employed by

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the City and suffered retaliation based on their complaints of discrimination. At that time, Palmer and Comer were both represented by attorneys Mark Tietig and Lisa K. Tietig. A case management and scheduling order was filed in December 1998 which set forth a discovery deadline of 22 January 2000 and a trial date of 22 May 2000, and which set forth the dates and requirements regarding motions for summary judgment.

On 11 January 1999, Tietig and Tietig moved to withdraw as counsel for Palmer.2 Following a hearing, the magistrate judge granted the motion to withdraw and ordered that Palmer "proceed pro se expeditiously, and shall be bound by the scheduling order."3 R1-16-1.

On 6 July 1999, Craig M. Rappel filed a notice of appearance as Palmer's attorney. R1-18. Mark Tietig, as counsel for co-plaintiff Comer, deposed several City employees on 8-9 July 1999, and the City deposed Palmer on 21 July 1999. Palmer, however, took no depositions.

In September 1999, Palmer, as a member of the Florida Army National Guard, was ordered to report for active duty on 8 October 1999 at Fort Gordon, Georgia. In November 1999, Palmer's attorney moved to sever his case from Comer's and to stay further proceedings for twelve months based on his active duty status. He amended the motion in December. At a motion hearing, Palmer's attorney argued that Palmer was unable to assist in discovery or attend the trial due to his training commitments until June 20, 2000.4 R8 at 3-5. The magistrate judge expressed his concerns as to whether Palmer, as a member of the National Guard, was covered by the Act . He then denied the motions to sever and to stay proceedings "without prejudice to refile if [Palmer's attorney] f[ou]nd some justification for him coming within that Soldiers and Sailors Act."5 R8 at 12.

The City moved for summary judgment on 6 March 2000. Palmer's response to

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the summary judgment motion and separate "Statement of Facts" as to any disputed facts were due on 3 April 2000. R2-65-2. On 27 March 2000, Palmer filed a second motion to stay because he had "been unable to assist his counsel in discovery or . . . able to appear at deposition of important and material witnesses . . . and [wa]s unable to attend the scheduled trial on this matter unless [he] s[ought] a request to remove himself from active military duty."6 R2-66-3. He attached documents showing that his request for leave "to attend all proceedings related to this case" was denied by the Army. Id. at Exs. A-B.

On 5 April 2000, Palmer filed a memorandum of law in opposition to the summary judgment motion. R4-75. Palmer's attorney did not file a separate statement of facts, but explained that the majority of the facts on which he was relying were taken from Palmer's deposition. He said that Palmer was unable to afford the transcription costs for the deposition,7 and had instructed his attorney "to refrain from holding depositions" until he was present. Id. at 2.

At a motions' hearing, the magistrate judge said that he would "consider small adjustments in the trial date if it were a problem with being in the military and I would consider a one month extension," but denied the request to extend discovery, reasoning that Palmer had entered the military after filing the lawsuit, and had been provided "a huge amount of time . . . to conduct discovery." 8 R9 at 11. After finding that Palmer's active duty status had not "materially" affected his ability to prosecute the case, the magistrate judge denied the motion to stay proceedings for twelve months.9 Id. at 22. The magistrate judge advised that he

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would "get an order out on [the City's motion for summary judgment] as promptly as" possible but that the parties should "not wait for the order to file [their] pretrial stipulation" and should prepare for the pretrial conference. R9 at 59.

The pretrial conference was held on 18 May 2000. The magistrate judge commended the parties "for the best set of stipulated facts" that he had ever seen and apologized that he had "not yet ruled on [the City's] motion for summary judgment." R10 at 2, 4. The magistrate judge stated that he had found that a material issue of fact existed as to Comer and had not "reached a final decision yet" as to Palmer but hoped to "have a written ruling tomorrow for everybody." Id. at 4. Palmer's attorney advised that, as a result of the court's denials of his motions to stay, Palmer had been granted leave to be off base for the trial by his commander. Id. at 19.

On 19 May, the magistrate judge granted summary judgment against Palmer and dismissed his federal claims with prejudice. R6-101. He found that Palmer had "failed to adduce any record evidence to demonstrate the existence of a genuine issue of material fact," "even drawing all inferences from the verified complaint in Palmer's favor." R6-101-8. It noted that, although Palmer had relied on disputed facts from his deposition, the deposition was not filed and he offered no other evidence. Summary judgment was thus granted "in light of Palmer's complete failure to develop any discovery record despite a discovery period of almost two years and . . . the Court's repeated invitation to propose alternatives to accommodate the demands of Palmer's military service."10 Id. at 9. Palmer appealed. His motions for leave to proceed in forma pauperis and for transcripts at government expense were granted.

On appeal, Palmer argues that the district court abused its discretion by denying his unopposed motion to stay proceedings under the Act, and erred in granting the City's motion for summary judgment based on his failure to file a statement of disputed facts.


A. Motion to Stay

Palmer maintains that the district court abused its discretion in denying his motion to stay proceedings because he submitted evidence showing that he would be materially affected because he was unable to personally attend the depositions of the law enforcement officers who he alleged had discriminated against him.11

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We review the grant or denial of a motion to stay under the Soldiers' and Sailors' Civil Relief Act for abuse of discretion. Boone v. Lightner, 319 U.S. 561, 575 , 63 S.Ct. 1223, 1231 (1943). The Soldiers' and Sailors' Civil Relief Act of 1994, 50 U.S.C. § 521 provides:

At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter . . . shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, . . . unless, in the opinion of the court, the ability of plaintiff to prosecute the action . . . . is not materially affected by reason of his military service.

Id. A district court must, therefore, determine whether the ability of the party in military service to prosecute his case is materially affected by his service and may properly deny the stay if the party will not be materially prejudiced. Boone, 319 U.S. at 565 , 63 S.Ct. at 1226. The court is to consider "all the circumstances of the case" in making this determination. Tabor v. Miller, 389 F.2d 645, 647 (3rd Cir. 1968). The court may consider evidence of whether the party seeking the stay and his counsel have acted with diligence. Boone, 319 U.S. at 575 , 63 S.Ct. at 1231. Where the record shows that the military party is "represented by competent counsel, [and] fully advised as to the facts involved in the litigation long before the date" of court proceedings, a court does not abuse its discretion in denying a motion to stay under the Act. Gross v. Williams, 149 F.2d 84, 86 (8th Cir. 1945).

Based on the record in this case, we find that the magistrate judge did not abuse his discretion by denying the motion to stay under the Act. After the case management order was entered, Palmer had thirteen months to...

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