United States District Court, W.D. Virginia, Charlottesville Division
K. Moon, United States District Judge
judgment was entered against the remaining Defendant BSI
Financial Services, Inc. (“Defendant”) in this
Fair Credit Reporting Act (“FCRA”) case. (Dkt.
38). After a briefing order, the Court must decide whether
damages in this case should be determined by the Court or by
a jury. (Dkt. 53). The parties were unable to reach an
agreement on the issue; Plaintiff desires a jury trial, while
Defendant believes one is not available. (Dkts. 57, 58).
Federal Rule of Civil Procedure 38(a), the “right to a
jury trial as declared by the Seventh Amendment to the
Constitution-or as provided by a federal statute-is preserved
to the parties inviolate.” On the other hand, Rule
55(b)(2)(B) states that, in finalizing a default judgment,
“the court may conduct hearings or make
referrals-preserving any federal statutory right to a jury
trial-when, to enter or effectuate judgment, it needs to . .
. determine the amount of damages.”
argues that Rule 55(b)(2) must be read not in isolation, but
in conjunction with Rule 38's declaration that the right
to a jury trial is “inviolate” and withdrawn only
on the parties' consent. He contends that “it is
the better practice, if not actually compelled, that the
issue as to damages be submitted to the jury” after a
default. Barber v. Turberville, 218 F.2d 34, 37
& n.1 (D.C. Cir. 1954). Plaintiff also relies on a
handful of district court cases. See Mitchell v. Bd. of
Cty. Comm'rs of Cty. of Santa Fe, No. CIV 05-1155
JBALM, 2007 WL 2219420, at *13 (D.N.M. May 9, 2007) (holding
that Rule 38(d) prevented plaintiff from unilaterally
“withdrawing” jury demand after obtaining default
against non-appearing defendant); Abernathy v. Church of
God, No. 4:11-CV-2761-VEH, 2013 WL 2248286, at *1 (N.D.
Ala. May 22, 2013) (“better practice” to empanel
jury in light of Rule 38(d)); Zero Down Supply Chain
Sols., Inc. v. Glob. Transp. Sols., Inc., 282 F.R.D.
604, 606 (D. Utah 2012); Ault v. Baker, No.
4:12-CV-00228-KGB, 2013 WL 1247647, at *10-11 (E.D. Ark. Mar.
alternative argument, Plaintiff submits that the Court may
permit a jury even if one is not allowed as of right.
See Wright & Miller, 10A Fed. Prac. &
Proc. Civ. § 2688 (4th ed.) (Westlaw); Gill v.
Stolow, 18 F.R.D. 508, 510 (S.D.N.Y. 1955) (stating it
is “no doubt within [court's] discretion to order a
jury trial” after default), rev'd on other
grounds, 240 F.2d 669 (2d Cir. 1957). He argues that
valuing emotional harm damages like those he intends to prove
is especially proper for a jury determination. (Dkt. 57 at
Plaintiff argues that punitive damages must go to the jury.
Punitive damages under the FCRA are permitted in an amount
“as the court may allow.” 15 U.S.C. §
1681n(a)(2). Plaintiff cites cases holding that this language
is merely a codification of the Court's duty to review
excessive verdicts, not a congressional command for a bench
trial in lieu of a jury. See, e.g.,
Saunders v. Branch Banking And Trust Co. of Va., 526
F.3d 142, 145 (4th Cir. 2008); Northrop v. Hoffman of
Simsbury, Inc., 12 F. App'x 44, 50 (2d Cir. 2001);
Collins v. Retail Credit Co., 410 F.Supp. 924, 933
(E.D. Mich. 1976).
asserts that any Seventh Amendment right to a jury trial does
not survive an entry of default. See Graham v. Malone
Freight Lines, Inc., 314 F.3d 7, 16 (1st Cir. 1999)
(holding that plaintiff was not entitled to jury trial on
damages after obtaining default against two defendants);
Frankart Distributors, Inc. v. Levitz, 796 F.Supp.
75, 76 (E.D.N.Y. 1992) (compiling cases).
Defendant argues that the statutory right to a jury trial
survives default only if the statute expressly preserves it
in that situation, and the sole statute to do so is not
applicable here. See Shepherd v. Am. Broad. Companies,
Inc., 862 F.Supp. 486, 492 (D.D.C.) (observing paucity
of such statutes), vacated on other grounds, 62 F.3d
1469 (D.C. Cir. 1995). Defendant cites several district court
cases which have thus determined FCRA damages after entry of
default. (See dkt. 58 at 6). Defendant also contends
that Rule 38(d), which prohibits a unilateral withdraw of a
jury demand, does not apply in this situation because there
is no withdraw of the demand at all; instead, a jury trial is
simply not available by law. (Id. at 7-8). Finally,
Defendant urges the Court not to refer damages to a jury.
parties have not identified a Fourth Circuit case addressing
whether a default extinguishes the constitutional
right to a jury trial. Nevertheless, the overwhelming weight
of authority instructs that the Seventh Amendment does not
guarantee a jury trial after default. See Graham,
314 F.3d at 9, 12, 16 (holding plaintiff had not right to
jury trial after defendant's default); Goldman,
Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit
Int'l, Inc., 982 F.2d 686, 692 n.15 (1st Cir. 1993)
(citing Adriana Int'l Corp. v. Thoeren, 913 F.2d
1406, 1414 (9th Cir. 1990)); Matter of Dierschke,
975 F.2d 181, 185 (5th Cir. 1992) (“[I]n a default case
neither the plaintiff nor the defendant has a constitutional
right to a jury trial on the issue of damages”);
Henry v. Sneiders, 490 F.2d 315, 318 (9th Cir.
1974); Olcott v. Del. Flood Co., 327 F.3d 1115, 1124
(10th Cir. 2003); Mwani v. Bin Ladin, 244 F.R.D. 20,
23-24 (D.D.C. 2007) (denying plaintiff's motion for jury
trial after default); Benz v. Skiba, Skiba &
Glomski, 164 F.R.D. 115, 116 (D. Me. 1995) (rejecting
plaintiff's request for jury trial because
“[c]aselaw dating back to the eighteenth century . . .
makes clear that the constitutional right to jury trial does
not survive the entry of default”); CountrymAn
Nevada, LLC. v. Suarez, No. 6:15-CV-0436-SI, 2016 WL
5329597, at *4-5 (D. Or. Sept. 22, 2016) (overruling
plaintiff's request for jury trial after default);
Sonoco Prod. Co. v. Guven, No. 4:12-CV-00790-BHH,
2015 WL 127990, at *7 n.5 (D.S.C. Jan. 8, 2015) (holding that
“parties do not have the right to a jury trial as to
the amount of recovery” after default judgment is
entered); Estate of Faull v. McAfee, No.
613CV1746ORL31KRS, 2015 WL 6125309, at *4 (M.D. Fla. Oct. 16,
2015) (ruling plaintiff was not entitled to jury trial after
defendant's default). Wright and Miller also agree that,
after default, “neither side has a right to a jury
trial on damages.” 10A Fed. Prac. & Proc.
Civ. § 2688 (4th ed.).
any statutory right that Rule 38(a) might protect, Plaintiff
has identified neither a provision of the FCRA that
guarantees a jury trial nor a case so holding. True, he
points to several cases in which a jury ultimately decided
FRCA claims. (Dkt. 57 at 4 n.3, 10 n.4). But those cases
involved a full trial on the merits (not default), and thus
were premised on a Seventh Amendment (not statutory) right,
which as discussed is no longer guaranteed.
even if the FCRA generally granted the right to a jury trial,
that would not guarantee a jury after default. “Despite
the reference to a ‘federal statutory right to a jury
trial, ' courts have interpreted the language of Rule 55
as preserving a right to a jury trial only in the atypical
situation where a statute specifically preserves the jury
trial right even after a default.” Manno v.
Tennessee Prod. Ctr., Inc., 657 F.Supp.2d 425, 429-30
(S.D.N.Y. 2009). That is, the statute must protect the right
in the specific context of default; the only statute to do
so-28 U.S.C. § 1874-is not implicated here. See
Sells v. Berry, 24 F. App'x 568, 572 (7th Cir.
2001); Meyers v. Lakeland Supply, Inc., 133
F.Supp.2d 1118, 1119 (E.D. Wis. 2001) (holding that, even
where statute provided general jury trial right, it failed to
provide one in case of default); Benz, 164 F.R.D. at
115-16 (protection in Rule 55(b)(2) only “applies to
statutes requiring jury trials specifically after default has
occurred”); Shepherd, 862 F.Supp. at 492 n.4;
Offei v. Omar, No. 11 CIV. 4283 ...