Pettigrew v. Cherry County School District No. 16-0006

Filing 141

MEMORANDUM AND ORDER denying the Defendant's statement of objections to (98) Order on Appeal to Magistrate Judge Order and (99) Order on Appeal to Magistrate Judge Order in case 4:11-cv-03166-RGK-CRZ and denying (39) Order on Appeal to Magistr ate Judge Order and (40) Order on Appeal to Magistrate Judge Order in case 4:12-cv-03159-RGK-CRZ. The Magistrate Judges order entered on October 15, 2012 (filing 87 ), is sustained and shall not be disturbed. Plaintiffs demands for a trial by jury in Case Nos. 4:11CV3166 and 4:12CV3159 are stricken; all claims shall be tried to the court sitting without a jury. Ordered by Senior Judge Richard G. Kopf. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

BUD PETTIGREW,
Plaintiff,
v.
CHERRY COUNTY SCHOOL
DISTRICT NO. 16-0006,
Defendant.

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4:11CV3166
4:12CV3159
MEMORANDUM
AND ORDER

In a memorandum and order entered on October 15, 2012 (filing 87),1
Magistrate Judge Cheryl R. Zwart granted Defendant’s motion to strike Plaintiff’s
demand for a jury trial in Case No. 4:12CV3159 (filing 14). Plaintiff filed a statement
of objections on October 26, 2012 (filing 98), followed by an amended statement of
objections filed the next day (filing 99).2 Judge Zwart’s order is subject to review
pursuant to 28 U.S.C. § 636(b)(1)(A), Fed. R. Civ. P. 72(a), and NECivR 72.2.
Plaintiff objects that “(1) the Magistrate Judge’s Order failed to properly apply
and/or interpret controlling Nebraska statutes and case law which guarantees
Pettigrew a right to jury trial on his claims arising under Nebraska law; (2) the
Magistrate Judge’s order misinterprets and/or fails to apply controlling authority
regarding Pettigrew’s right to a jury trial on his claims arising under the ADEA; [and]
(3) the Magistrate Judge’s Order inappropriately relied on the Nebraska Political
Subdivision Tort Claims Act in denying Pettigrew’s right to a jury trial.” (Filing 99

1

Except as otherwise indicated, all references are to filings in Case No.
4:11CV3166 (the “lead case”). See Memorandum and Order entered on October 10,
2012 (filing 78), consolidating cases and specifying filing procedure.
2

It appears that only a minor change in wording was made at the last line on
page 2 of the statement of objections, for purposes of clarification.

at 1) 3 Upon careful review, I find that Plaintiff’s objections should be denied for the
reason that Judge Zwart’s order is not clearly erroneous or contrary to law.
Even though Defendant’s motion to strike was filed in Case No. 4:12CV3159
only, Case No. 11CV3166 involves the same type of claims and the cases have been
consolidated for trial. Because Plaintiff has no Seventh Amendment right to a jury
trial on any claim alleged in either case, his demand for a jury trial in both cases will
be stricken pursuant to Federal Rule of Civil Procedure 39(a)(2) (“When a jury trial
has been demanded under Rule 38, . . . [t]he trial on all issues so demanded must be
to a jury unless . . . the court, on motion or on its own, finds that on some or all of
those issues there is no federal right to a jury trial.”).
Accordingly,
IT IS ORDERED:
1.

Defendant’s statement of objections (filings 98, 99) is denied.

3

The amended complaint filed in Case No. 4:12CV3159 contains two counts:
(1) a state-law claim brought under the Nebraska Age Discrimination in Employment
Act (erroneously identified in the amended complaint by its pre-2007 name, i.e., the
“Nebraska Unjust Discrimination in Employment Because of Age Act.”), Neb. Rev.
Stat. §§ 48-1001 to 48-1010, and (2) a federal-law claim brought under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634. The third
amended complaint filed in Case No. 4:11CV3166 also alleges state and federal
ADEA claims. Defendant is a public school district and a political subdivision of the
State of Nebraska. Under the Nebraska Political Subdivisions Tort Claims Act, Neb.
Rev. Stat. §§ 13–901 to 13–927, suits against political subdivisions “shall be
determined in the same manner as if the suits involved private individuals, except that
such suits shall be heard and determined by the appropriate court without a jury.”
Neb. Rev. Stat. § 13–907.
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2.

The Magistrate Judge’s order entered on October 15, 2012 (filing 87), is
sustained and shall not be disturbed.

3.

Plaintiff’s demands for a trial by jury in Case Nos. 4:11CV3166 and
4:12CV3159 are stricken; all claims shall be tried to the court sitting
without a jury.

January 30, 2013.

BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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the opinion of the court.

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