Bueche v. Noel, November 25, 2008 (Diaz)(unpublished)

A default judgment against an individual is not permitted without the Court first determining whether the defendant is in active military service.  The Servicemembers Civil Relief Act, 50 U.S.C. app. §501-596 requires a party seeking a default to "file with the court an affidavit . . . (A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service." 50 U.SC. app. §521(b)(1).

The Court denied without prejudice the motion for entry of default against a defendant because of the lack of such an affidavit.

Full Opinion

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