Villanueva v. City of Scottsbluff et al

Filing 18

ORDER granting in part and denying in part 11 defendants' Motion to Strike. Ordered by Magistrate Judge Cheryl R. Zwart. (BHC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TAMARA VILLANEUVA,

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Plaintiff,
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v.
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CITY OF SCOTTSBLUFF, and ALEX
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MORENO, Individually and in his official )
capacity as Chief of Police,
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Defendants.
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4:11CV3185

MEMORANDUM AND ORDER

The plaintiff’s complaint seeks both injunctive relief and damages. Her first claim
requests recovery under 42 U.S.C. § 1983; the second asserts a Nebraska common law claim for
negligent infliction of emotional distress. The plaintiff has demanded a jury trial.

Pending before me is the defendants’ motion to strike the plaintiff’s jury demand. Filing
No. 11. The defendants argue the plaintiff is not entitled to a trial by jury under Neb. Rev. Stat.
§ 13-907 of the Nebraska Political Subdivisions Tort Claims Act. For the reasons discussed
hereafter, the defendants’ motion will be granted as to plaintiff’s claims for injunctive relief as
to all defendants, and as to her claim for damages against the City of Scottsbluff and defendant
Moreno, in his official capacity. The plaintiff is entitled to a jury trial on her claim for damages
against defendant Moreno in his individual capacity.

ANALYSIS

1.

Claims for Equitable Relief.

“There is no right to a jury trial on plaintiff’s claims for equitable relief. . . . Therefore,
to the extent the plaintiff's complaint demands a jury determination on her equity claims against
any of the defendants, her jury demand must be stricken.” Rohren v. Centennial Public School
Dist. 67-R, 2007 WL 4118943, 1 (D. Neb. 2007)(Piester, M.J., presiding)(citing Curtis v.

Loether, 415 U.S. 189, 198 (1974); Buss v. Douglas, 59 F.R.D. 334, 334-35 (D. Neb.
1973)(Urbom, J., presiding)).

2.

Claims for Legal Relief.

The plaintiff seeks an award of compensatory and punitive damages. The defendants
claim the plaintiff is not entitled to a jury trial on her damage claims against the City of
Scottsbluff or Moreno in his official capacity.

“A suit against a government official in his or her official capacity is ‘another way of
pleading an action against an entity of which an officer is an agent.’” Baker v. Chisom, 501 F.3d
920, 925 (8th Cir. 2007) (quoting Monell v. Dep't of Social Services, 436 U .S. 658, 690 n. 55
(1978)). Therefore, the claims against defendant Alex Moreno in his official capacity is a claim
against the City of Scottsbluff itself.

The plaintiff has no right to a jury trial on her claims against the City and its officers
acting in their official capacities “because at common law no action for damages ... lay against
public officials acting in their official capacities as agents of the sovereign.” Buss, 59 F.R.D. at
336. “[S]ince there was no common law right to sue the political subdivisions of the State of
Nebraska, there was no Seventh Amendment right to a jury trial.” Gragg v. City of Omaha, 812
F.Supp. 991, 992-93 (D.Neb.1993)(Kopf, J., presiding)(citing Galloway v. United States, 319
U.S. 372, 388-89 (1943)).

“Although Nebraska has, by statute, waived its sovereign immunity with respect to suits
against its political subdivisions, (see Nebraska Political Subdivision Tort Claims Act, Neb. Rev.
Stat. § 13-901 to 13-926), this waiver is limited and does not permit such actions to be tried
before a jury.” Rohren, 2007 WL 4118943, at *1. Pursuant to the explicit language of Neb. Rev.
Stat. § 13-907, claims filed against political subdivisions must be “heard and determined by the
appropriate court without a jury.” Neb. Rev. Stat. § 13-907 (emphasis added). Rohren, 2007

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WL 4118943, at *1 (citing Frosh ex rel. Rohrbouck v. North Platte Public Schools, 2006 WL
3388642, *1 (D. Neb. 2006) (no right to jury trial on plaintiff's IDEA claim against a Nebraska
school district)(Thalken, M.J., presiding); Harders v. Grand Island Public Schools, 2006 WL
2528524, *1 (D. Neb. 2006) (no right to jury trial on plaintiff's FMLA claim against a Nebraska
school district)(Piester, M.J., presiding)).

Accordingly,

IT IS ORDERED that the defendant’s motion to strike the plaintiff’s jury demand, (filing
no. 11), is granted in part and denied in part as follows:
1)

The plaintiff’s jury demand is stricken as to her claims for injunctive relief;

2)

The plaintiff’s jury demand is stricken as to her claims for damages against the
defendant City of Scottsbluff and defendant Moreno in his official capacity; and

3)

The defendant’s motion to strike the plaintiff’s jury demand is denied as to
plaintiff’s claim for damages against defendant Moreno in his individual capacity

DATED this 9th day of January, 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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