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

Filing 87

MEMORANDUM AND ORDER granting (14) defendant's motion to strike plaintiff's jury demand in case 4:12-cv-03159-RGK-CRZ. Member Cases: 4:11-cv-03166-RGK-CRZ, 4:12-cv-03159-RGK-CRZOrdered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BUD PETTIGREW,
Plaintiff,

4:11CV3166

vs.
MEMORANDUM AND ORDER
VALENTINE COMMUNITY SCHOOLS,
CHERRY COUNTY SCHOOL DISTRICT
NO. 16-0006,
Defendants.
BUD PETTIGREW,
4:12CV3159
Plaintiff,
vs.
CHERRY COUNTY SCHOOL DISTRICT
NO. 16-0006,
Defendant.

Defendant Cherry County School District moves the court for an order striking
Plaintiff’s request for a jury trial. 4:12CV3159, (Filing No. 14). Cherry County argues
that it is a public school district and a Nebraska political subdivision, and as such, the
Plaintiff is not entitled to a trial by jury under Neb. Rev. Stat. § 13-907 of the Nebraska
Political Subdivisions Tort Claims Act. The plaintiff argues Nebraska statutory law
allows suits against political subdivisions for employment discrimination, and an
employee has the right to a jury trial in such cases.
The plaintiff’s complaint seeks both injunctive and monetary remedies. Pettigrew
is not entitled to a jury trial on his claims for equitable relief, (Curtis v. Loether, 415 U.S.
189, 198 (1974)), and there is no right to a jury trial in actions filed by or against a
Nebraska political subdivision. Westcott v. City of Omaha, 1988 WL 383125, *2 (D.
Neb. 1988) (striking the City's jury demand in an action seeking damages against the City
under Nebraska tort law) (Kopf, M.J.); Buss v. Douglas, 59 F.R.D. 334 (D.Neb.1973)

(striking the jury demand of the defendant public officials in an action to recover
damages under 42 U.S.C. § 1983) (Urbom, J.).

See also Villaneuva v. City of

Scottsbluff, 2012 WL 45406, 1 (D. Neb. 2012) (striking plaintiff's jury demand in actions
damages under 42 U.S.C § 1983 and common law negligence theories) (Zwart, M.J);
Ojeda v. City of Scottsbluff, 2008 WL 5100210, 1 (D. Neb. 2008) (striking plaintiff's jury
demand in an action seeking recovery under Title VII for racial discrimination) (Piester,
M.J.); Rohren v. Centennial Public School Dist. 67-R, 2007 WL 4118943, 1 (D. Neb.
2007) (striking plaintiff's jury demand in an ADEA action against a Nebraska public
school) (Piester, M.J.); Frosh ex rel. Rohrbouck v. North Platte Public Schools, 2006 WL
3388642, *1 (D. Neb. 2006) (holding there was no right to jury trial on plaintiff’s IDEA
claim against a Nebraska school district) (Thalken, M.J.); Harders v. Grand Island Public
Schools, 2006 WL 2528524, *1 (D. Neb. 2006) (holding there was no right to jury trial
on plaintiff’s FMLA claim against a Nebraska school district) (Piester, M.J.).
As explained in the foregoing cases, the plaintiff has neither a statutory nor a
constitutional right to a jury trial on his claims against Cherry County.

When

determining the jury trial rights afforded under the Seventh Amendment, the court looks
to English common law. The common law of England did not permit jury trials against
public officials and, accordingly, the Seventh Amendment does not permit a jury trial
against a State and its subdivisions. Westcott, 1988 WL 383125, *2. Moreover, while
Nebraska waived its sovereign immunity when it adopted the Political Subdivision Tort
Claims Act, (Neb. Rev. Stat. § 13-902), it prohibits a trial by jury in such cases. Neb.
Rev. Stat. § 13-907 states:
Jurisdiction, venue, procedure, and rights of appeal in all suits brought
under the Political Subdivisions Tort Claims Act . . . 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.

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Neb. Rev. Stat. § 13-907 (emphasis added).
An employee who files suit for employment discrimination against a private sector
employer is entitled to a jury trial, (Billingsley v. BFM Liquor Management, Inc., 259
Neb. 992, 613 N.W.2d 478 (Neb. 2000)), but Pettigrew seeks recovery from Cherry
County School District, a Nebraska political subdivision. Nebraska has waived its right
to assert sovereign immunity from lawsuits against political subdivisions for employment
discrimination, (Neb. Rev. Stat. §48-1010), but §48-1010 does not address or grant the
right to a jury trial in such cases. Nebraska’s Political Subdivisions Tort Claims Act
prohibits a jury trial in actions against its political subdivisions, and the plaintiff has no
Seventh Amendment right to a jury trial.
Accordingly,
IT IS ORDERED that the defendant's motion to strike plaintiff's jury demand,
(4:12CV3159, (Filing No. 14)), is granted.
October 15, 2012.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

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