Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Military Personnel in Litigation

The Servicemembers Civil Relief Act (formerly known as “The Soldiers and Sailors Civil Relief Act of 1940”) provides that service members involved in civil litigation can request a delay in proceedings if they can show their military responsibilities preclude their proper representation in court.  When requested, courts will generally grant a temporary delay (a stay) in civil actions where a member’s military service has “materially affected” the member’s ability to appear and “defend” or “prosecute” an action.

However, a request for a stay may in some circumstance constitute an “appearance,” giving the court in personam jurisdiction and resulting in loss of default judgment protection.

When analyzing whether to request a stay, first determine if state law will consider a request to be an appearance.  Examine the consequences if the member takes no action and a default judgment is entered.  If a written request is appropriate, it should provide details understandable by a civilian explaining why the service member’s ability to appear and defend in the action is materially affected by his or her military service e.g., no leave available, overseas duty, etc.).  The duration of the requested stay should be reasonable.

A letter signed by someone in the chain of command, and not a judge advocate (JAG) or the service member’s civilian attorney, provides the greatest protection against a claim of
appearance through counsel.  If opposing counsel is known, forward a copy of the requested stay to him or her.

Stephen J. Berg
Col, USA (retired)

John T. Peterson
Lt. Col., USMCR

Johnson, Larson, Peterson & Halvorson, PA

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