The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Esther and Ruben Stoutmire ("Stoutmires") seek damages and
injunctive relief under 42 U.S.C. § 1982 ("Section 1982") and the
fair housing provisions of the Civil Rights Act of 1968 (the
"Act"), 42 U.S.C. § 3601-3631.*fn1 Defendant Quasem Barakat
("Barakat")*fn2 has renewed his motion under Fed.R.Civ.P.
("Rule") 39 for a trial by jury of all issues in the case. For
the reasons stated in this memorandum opinion and order,
Barakat's motion is denied (at least on the present showing or
lack of one).
On September 30, 1983 Stoutmires filed their original
complaint, alleging defendants had, because Stoutmires were
black, refused to sell or negotiate the sale to Stoutmires of a
house owned by Barakat. On November 29 Barakat answered the
complaint, but he did not file a timely demand under Rule 38:
Any party may demand a trial by jury of any issue
triable of right by a jury by serving upon the other
parties a demand therefor in writing at any time
after the commencement of the action and not later
than 10 days after the service of the last pleading
directed to such issue. Such demand may be indorsed
upon a pleading of the party.
On December 28 Stoutmires filed an Amended Complaint (the
"Complaint"), adding allegations that defendants were receptive
to a white tester expressing an interest in Barakat's house while
effectively turning away two black testers. Once again Barakat
filed a timely answer, but not a jury demand under Rule 38.
On April 19, 1984 Barakat filed a Crossclaim against the
Century 21-NBC Defendants, asking indemnification for any
judgment entered against him on the basis of the Complaint. On
August 20 the Century 21-NBC Defendants answered the Crossclaim.
In the meantime, however, Barakat sought leave to file a jury
demand on all issues in the case, invoking Rule 39:
Issues not demanded for trial by jury as provided in
Rule 38 shall be tried by the court; but,
notwithstanding the failure of a party to demand a
jury in an action in which such a demand might have
been made of right, the court in its discretion upon
motion may order a trial by a jury of any or all
As to issues raised in the Crossclaim, of course, Barakat was
not obligated to seek leave. Rule 38 permitted him to do so as of
right until ten days after the other defendants had answered his
Crossclaim, so his jury demand on that score was made in time.
But because Barakat's jury demand as to issues encompassed by the
Complaint was untimely, Rule 39 reposed discretion in this Court
whether or not to honor the demand. During an August 13 status
call this Court ordered that the issues raised by the Crossclaim
be tried by jury, but denied without prejudice Barakat's motion
as to issues raised in the Complaint. Now Barakat has submitted a
memorandum to buttress his request.
Rule 39(b) confers authority to grant a motion for jury trial
"in an action in which such a demand might have been made of
right" under Rule 38. That poses the threshold inquiry whether
and to what extent the claims asserted against Barakat in the
Complaint are triable of right by a jury.
Under prevailing Seventh Amendment doctrine, issues legal in
nature are triable by jury of right, while those equitable in
nature are not. Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct.
733, 735, 24 L.Ed.2d 729 (1970). To the extent Stoutmires seek
permanent injunctive relief under Act § 3612 and Section 1982,
those equitable-relief issues are not jury-triable. On the other
hand, it has been settled law for a decade that Stoutmires'
action for damages under Act § 3612 does constitute "an action to
enforce `legal rights' within the meaning of [the Supreme
Court's] Seventh Amendment decisions." Curtis v. Loether,
415 U.S. 189, 195, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974) (a
unanimous opinion). In other words, Stoutmires have asserted both
legal and equitable claims, the determination of which turns upon
substantially the same factual issues (or at least overlaps
In such mixed cases, the Supreme Court has made clear a court
must take special care to safeguard a litigant's constitutional
right to a jury trial of legal issues (Diary Queen, Inc. v.
Wood, 369 U.S. 469, 472-73, 82 S.Ct. 894, 897, 8 L.Ed.2d 44
(1962), quoting Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 510-11, 79 S.Ct. 948, 957, 3 L.Ed.2d 988 (1958)):
[W]here both legal and equitable issues are presented
in a single case, "only under the most imperative
circumstances, circumstances which in view of the
flexible procedures of the Federal Rules we cannot
now anticipate, can the right to a jury trial of