59 F.R.D. 334 (D.Neb. 1973), CV72-L-315, Buss v. Douglas

Docket Nº:CV72-L-315.
Citation:59 F.R.D. 334
Opinion Judge:URBOM, Chief Judge.
Party Name:Rober Allen BUSS, Plaintiff, v. Paul L. DOUGLAS et al., Defendants.
Attorney:Kirk E. Naylor, Jr., Lincoln, Neb., for plaintiff. J. Arthur Curtiss, Lincoln, Neb., for defendants.
Case Date:March 27, 1973
Court:United States District Courts, 8th Circuit, District of Nebraska
 
FREE EXCERPT

Page 334

59 F.R.D. 334 (D.Neb. 1973)

Rober Allen BUSS, Plaintiff,

v.

Paul L. DOUGLAS et al., Defendants.

No. CV72-L-315.

United States District Court, D. Nebraska.

March 27, 1973

Civil rights action to recover exemplary damages and return of sum allegedly taken from plaintiff by defendant public officials without due process of law. On defendants' demand for jury trial, the District Court, Urbom, Chief Judge, held that defendants were not entitled to jury trial.

Demand denied.

Kirk E. Naylor, Jr., Lincoln, Neb., for plaintiff.

J. Arthur Curtiss, Lincoln, Neb., for defendants.

MEMORANDUM AND ORDER ON DEMAND FOR JURY TRIAL

URBOM, Chief Judge.

This matter is before the court of the defendants' timely demand for a jury trial, filing No. 21, made pursuant to Rule 38 of the Federal Rules of Civil Procedure.

The plaintiff has brought a civil rights action asserting jurisdiction under the provisions of 28 U.S.C. § 1343, and seeking under authority of 42 U.S.C. § 1983 exemplary damages in the amount of $1,000.00 and the return of $509.00 allegedly taken from the plaintiff by the defendants without due process of law.

Nothing is stated in 42 U.S.C. § 1983 about whether lawsuits should be tried to a court or to a jury. The defendants assert that if an action is brought pursuant to statutory authority and the ‘ statute is analogous to a suit at common law, then a jury trial is also guaranteed under this statute.’ As one commentator noted:

‘ Where the legislature says nothing about how a new remedy is to be tried, the courts fit it into the nearest historical analogy to determine whether there is a right to a jury trial.’

James, Civil Procedure, 1965, at § 8.1

See, Wright, The Law of Federal Courts, 2d ed., at 404-405; and 5 Moore's Federal Practice, ¶ 38.11[7]. Under the historical analogy analysis, if a claim presents what would have been at common law an ‘ equitable’ claim, there is no right to a jury trial, and, if the claim would have been ‘ legal’ in nature at

Page 335

common law, it may be triable to a jury today. See, Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 7 L.Ed. 732 (1830); Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Dasho v. Susquehanna Corporation, 461 F.2d 11 (C.A.7th Cir. 1971); Heyman v. Kline, 456 F.2d 123 (C.A. 2d Cir. 1972).1

Such historical analysis is necessary in view of the Seventh Amendment of the Constitution of the United States which guarantees that:

...

To continue reading

FREE SIGN UP