Opinion
No. CV 12-00491-PHX-NVW
04-16-2012
Dorothy Michols, an individual, Plaintiff, v. Regency Park Capital 2011, Inc., an Arizona corporation; Ranjit Singh, an individual, Defendants.
ORDER
Before the Court is Plaintiffs "Application for Entry of Default Judgment Against Defendants" (Doc. 11). Despite its name, this "application" is a motion for default judgment. Clerk's entry of default has already been entered. (Doc. 9.)
Plaintiff "requests that a jury determine her damages." (Doc. 11 at 2.) However, "in a default case neither the plaintiff nor the defendant has a constitutional right to a jury trial on the issue of damages." Dierschke v. O'Cheskey, 975 F.2d 181, 185 (5th Cir. 1992); see also Mwani v. Bin Ladin, 244 F.R.D. 20, 24 (D.D.C. 2007) (rejecting "Plaintiffs' claim that the Federal Rules of Civil Procedure and the Seventh Amendment trigger a right to a jury determination of damages with respect to a Rule 55(b) evidentiary motion," and citing supporting cases). Rule 55(b)(2) only requires a jury trial where a "federal statutory right to a jury trial exists." There is only one federal statute which requires a jury trial. See 10A Charles Alan Wright et al., Federal Practice & Procedure (Civil) § 2688, at 69 (3d ed. 1998) (explaining that only 28 U.S.C. § 1874, regarding certain actions on bonds, contains a statutory jury trial right). Plaintiff does not sue under that statute.
In this circumstance, the Court has discretion to resolve Plaintiff's motion through declarations and attached documents, a live hearing without a jury, or a live hearing with a jury. 10 James Wm. Moore et al., Moore's Federal Practice § 55.32[2][c]-[e] (3d ed. 2010). In this circumstance, a live hearing without a jury regarding damages would be the most effective. In addition, Plaintiff will be required to submit a trial brief regarding the legal sufficiency of certain of her claims. See id. § 55.32[1][b] (legal sufficiency of claims not established by default).
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:
• 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.
• Regarding Count 4 (Intentional Infliction of Emotional Distress), whether this count states a claim upon which relief can be granted.
• 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).
IT IS FURTHER ORDERED that Plaintiff and her counsel shall appear on May 17, 2012 at 2:30 p.m., at 401 W. Washington St., Phoenix, Arizona, Courtroom 504, for an evidentiary hearing and oral argument regarding Plaintiff's "Application for Entry of Default Judgment Against Defendants" (Doc. 11).
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Neil V. Wake
United States District Judge