Michols v. Regency Park Capital 2011 Incorporated et al
Filing
12
ORDER: By 05/10/12, Plaintiff shall submit a trial brief of no more than fifteen pages on the following issues: (1) Regarding Count 3 (Defamation Per Se), whether this counts states a claim upon which relief can be granted in light of the failure to allege any statements or their falsity. (2) Regarding Count 4 (Intentional Infliction of Emotional Distress), whether this count states a claim upon which relief can be granted. (3) Regarding Count 5 (Arizona Employment Protection Act), whether this count states a claim upon which relief can be granted in light of A.R.S. § 23-1501(3)(b). FURTHER ORDERED that Plaintiff and her counsel shall appear on 05/17/12 at 2:30 PM, at 401 W. Washington St., Phoenix, Arizona, Courtroom 504, for an evidentiary hearing and oral argument regarding Plaintiff's 11 Application for Entry of Default Judgment Against Defendants. See order for details. Signed by Judge Neil V Wake on 4/16/12. (NKS)
1
WO
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Dorothy Michols, an individual,
Plaintiff,
10
11
ORDER
vs.
12
No. CV 12-00491-PHX-NVW
Regency Park Capital 2011, Inc., an
Arizona corporation; Ranjit Singh, an
individual,
13
14
Defendants.
15
16
Before the Court is Plaintiff’s “Application for Entry of Default Judgment Against
17
Defendants” (Doc. 11). Despite its name, this “application” is a motion for default
18
judgment. Clerk’s entry of default has already been entered. (Doc. 9.)
19
Plaintiff “requests that a jury determine her damages.” (Doc. 11 at 2.) However,
20
“in a default case neither the plaintiff nor the defendant has a constitutional right to a jury
21
trial on the issue of damages.” Dierschke v. O’Cheskey, 975 F.2d 181, 185 (5th Cir.
22
1992); see also Mwani v. Bin Ladin, 244 F.R.D. 20, 24 (D.D.C. 2007) (rejecting
23
“Plaintiffs’ claim that the Federal Rules of Civil Procedure and the Seventh Amendment
24
trigger a right to a jury determination of damages with respect to a Rule 55(b) evidentiary
25
motion,” and citing supporting cases). Rule 55(b)(2) only requires a jury trial where a
26
“federal statutory right to a jury trial exists.” There is only one federal statute which
27
requires a jury trial. See 10A Charles Alan Wright et al., Federal Practice & Procedure
28
(Civil) § 2688, at 69 (3d ed. 1998) (explaining that only 28 U.S.C. § 1874, regarding
1
certain actions on bonds, contains a statutory jury trial right). Plaintiff does not sue under
2
that statute.
3
In this circumstance, the Court has discretion to resolve Plaintiff’s motion through
4
declarations and attached documents, a live hearing without a jury, or a live hearing with
5
a jury. 10 James Wm. Moore et al., Moore’s Federal Practice § 55.32[2][c]–[e] (3d ed.
6
2010). In this circumstance, a live hearing without a jury regarding damages would be
7
the most effective. In addition, Plaintiff will be required to submit a trial brief regarding
8
the legal sufficiency of certain of her claims. See id. § 55.32[1][b] (legal sufficiency of
9
claims not established by default).
10
11
IT IS THEREFORE ORDERED that, by May 10, 2012, Plaintiff shall submit a
trial brief of no more than fifteen pages on the following issues:
12
Regarding Count 3 (Defamation Per Se), whether this counts states a claim
13
upon which relief can be granted in light of the failure to allege any
14
statements or their falsity.
15
16
Regarding Count 4 (Intentional Infliction of Emotional Distress), whether
this count states a claim upon which relief can be granted.
17
Regarding Count 5 (Arizona Employment Protection Act), whether this
18
count states a claim upon which relief can be granted in light of A.R.S.
19
§ 23-1501(3)(b).
20
IT IS FURTHER ORDERED that Plaintiff and her counsel shall appear on May
21
17, 2012 at 2:30 p.m., at 401 W. Washington St., Phoenix, Arizona, Courtroom 504, for
22
an evidentiary hearing and oral argument regarding Plaintiff’s “Application for Entry of
23
Default Judgment Against Defendants” (Doc. 11).
24
Dated this 16th day of April, 2012.
25
26
27
28
-2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?