Kelly v. Armbrust, Civ. No. 4790.
Decision Date | 19 December 1972 |
Docket Number | Civ. No. 4790. |
Citation | 351 F. Supp. 869 |
Parties | Lawrence KELLY and Wilma T. Kelly, Plaintiffs, v. Marcus ARMBRUST a/k/a Mark Armbrust and Mary Ann Armbrust, Defendants. |
Court | U.S. District Court — District of South Dakota |
Robert A. Feder, Fargo, N. D., for plaintiffs.
Gilbert R. Neset, Fargo, N. D., for defendants.
This is an action for damages pursuant to 42 U.S.C. § 3604(a), a provision under Title VIII of the 1968 Civil Rights Act, alleging racial discrimination on an allegation that the defendants refused to rent to plaintiffs a dwelling, after making a bona fide offer to rent. The defendants made a timely demand for a jury trial, and moved the Court for dismissal of the action on the grounds of lack of jurisdiction, failure to state a claim upon which relief can be granted, and failure to seek and exhaust administrative remedies. Plaintiffs' counsel has resisted the motion to dismiss. He has also filed a motion in the form of a request that the demand for jury trial be denied.
The defendants' motion for dismissal is denied. The question of a right to a jury trial in this case merits further discussion.
In support of its position, the plaintiffs cite two recent district court cases which held that a jury should not be called to determine damages pursuant to Title VIII, § 3604(a). Rogers v. Loether, 312 F.Supp. 1008 (E.D.Wis.1970), Cauley v. Smith, 347 F.Supp. 114 (E.D.Vir.1972). Rogers held that an action under Title VIII is not an action at common law to which the constitutional right of jury trial attaches. The Cauley court concluded at 115.
42 U.S.C. § 3612(c) defines the relief available to a complainant under Title VIII:
"(c) the court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual damages and more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff: Provided, that the said plaintiff in the opinion of the court is not financially able to assume said attorney's fees."
The Seventh Amendment states: "In suits at common law . . . the right of trial by jury shall be preserved . . ." This Amendment is preservative in nature and does not alter the right of jury trial as it was known to the English common law at the time of the Amendment's adoption. This principle is concerned with matters of substance and not of form, and does not preclude the application of the Amendment to newly created rights of a legal nature, which would under common law principles be enforced in a suit in a common law action. Likewise, where new causes of action are created, such as under Title VIII, these new causes are not per se free from the constitutional privilege of a jury trial. 5 Moore's Federal Practice (2nd Ed.) ¶ 38.116.
The test as to whether the right to jury attaches to a new cause is whether the relief provided is equitable or legal in nature. Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946). This Court agrees with Kastner v. Brackett, 326 F.Supp. 1151 (D.Nev.1971) in so far as that court found that the relief provided in Title VIII actions, where punitive and actual damages are requested, is a legal remedy, and that, therefore, the right to jury attaches. The following language from Kastner is enlightening:
at 1152.
It is difficult to reconcile the holdings of the Rogers and Cauley decisions with the expansion of the right to jury trial as found in a progeny of Supreme Court cases in the early sixties. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691 (1963); Meeker v. Ambassador Oil Corp., 375 U.S. 160, 84 S. Ct. 273, 11 L.Ed.2d 261 (1963). See generally 5 Moore's Federal Practice (2nd Ed.) ¶ 38.11, 38.12. The Supreme Court's position was illustrated by Mr. Justice Black in Dairy Queen, Inc., as follows:
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Chilton v. National Cash Register Company, Civ. No. 4363.
...were fundamentally equitable. Accord, Cauley v. Smith, 347 F.Supp. 114 (E.D.Va.1972). But see Rogers v. Loether, supra; Kelly v. Armbrust, 351 F.Supp. 869 (D.N.D. 1972); Kastner v. Brackett, 326 F.Supp. 1151 (D.Nev.1971). Damages in housing discrimination cases were, under the pertinent sta......
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Curtis v. Loether 8212 1035 8212 1973
...held that jury trial was not required in an action under § 812. Kastner v. Brackett, 326 F.Supp. 1151 (Nev.1971), and Kelly v. Armbrust, 351 F.Supp. 869 (N.D.1972), held that jury trial was required. 3 Petitioner married while the case was pending before the Court, and her motion to change ......
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United States v. Pelzer Realty Company, Inc.
...(D.C.Va.1972), 347 F.Supp. 114. However, where damages are sought, there is a right to a jury trial as to that issue, Kelly v. Armbrust (D.C.N.D.1972), 351 F.Supp. 869; Rogers v. Loether (7 Cir. 1972), 467 F. 2d 1110; Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260. Ordinaril......
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Dobervich v. Central Cass Public School Dist. No. 17
...Grain Co. v. Richman, 232 N.W.2d 61, 66 (N.D.1975); C. I. T. Corporation v. Hetland, 143 N.W.2d 94, 101 (N.D.1966); and Kelly v. Armbrust, 351 F.Supp. 869 (D.N.D.1972). Even though one form of action has been substituted for actions at law and in equity, a distinction persists as far as the......