Department of Labor: 03 0888 MEMORANDUM OPINION

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Case 3:03-cv-00888 Document 147 Filed 06/07/2005 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION WILLIAM J. MURRAY, Plaintiff, v. TXU CORP., TXU ENERGY COMPANY, L.L.C., TXU PORTFOLIO MANAGEMENT COMPANY, L.P. f/k/a TXU ENERGY TRADING COMPANY, L.P., Defendants. § § § § § § § § § § § § § CIVIL ACTION NO. 3:03-CV-0888-P MEMORANDUM OPINION AND ORDER Now before the Court is Defendants TXU Corp., et al.’s (“TXU” or “Defendants”) Motion to Strike
  3:03-CV-0888-POrder GRANTING Defendants’ Motion to Strike Plaintiff’s Demand for a Jury Trial on His Sarbanes-OxleyClaimPage 1 IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF TEXASDALLAS DIVISIONWILLIAM J. MURRAY, §§Plaintiff, §§v.§CIVIL ACTION NO.§3:03-CV-0888-PTXU CORP., §TXU ENERGY COMPANY, L.L.C., §TXU PORTFOLIO MANAGEMENT §COMPANY, L.P. f/k/a TXU ENERGY §TRADING COMPANY, L.P.,§§Defendants.§ MEMORANDUM OPINION AND ORDER   Now before the Court is Defendants TXU Corp., et al.’s (“TXU” or “Defendants”)Motion to Strike Plaintiff’s Demand for a Jury Trial on His Sarbanes-Oxley Act Claim (“Motionto Strike Sarbanes”), filed April 25, 2005. Plaintiff William J. Murray (“Murray” or “Plaintiff”)filed his Response (“Response to Motion to Strike Sarbanes”) on May 2, 2005, and Defendantsfiled their Reply (“Reply to Motion to Strike Sarbanes”) on May 6, 2005. After considering the parties’ arguments and briefings, and the applicable law, the Court GRANTS Defendants’Motion to Strike Plaintiff’s Demand for a Jury Trial on His Sarbanes-Oxley Claim. I.Background “In both his Complaint and his Amended Complaint, [Plaintiff] demanded a jury trial asto . . . his Sarbanes-Oxley Act Section 806 claim [(the “Act”)].” Mot. to Strike Sarbanes at 1(citing Pl.’s Original Compl. ¶ 161; Pl.’s First Am. Compl. ¶ 166). Defendants argue that because the Act does not expressly provide for such a right and because Plaintiff seeks only Case 3:03-cv-00888 Document 147 Filed 06/07/2005 Page 1 of 10  The Court dispenses quickly with reasons number one and five. With regard to number one, although Plaintiff  1 argues Defendants’ Motion is untimely, Defendants’ action affects no deadlines or scheduling orders. Furthermore,on October 20, 2003, in the Joint Proposal for Contents of Scheduling and Discovery Order, “Defendants [denied]that Plaintiff [was] entitled to a jury trial.” With regard to number five, the fact that no court has withheld the right toa jury trial under the Act amounts to a non sequitur  . As another district court noted, the jury trial question is an issueof first impression.  Hanna v. WCI Communities, Inc. , 348 F.Supp.2d 1332, 1334 (S.D. Fla.) 3:03-CV-0888-POrder GRANTING Defendants’ Motion to Strike Plaintiff’s Demand for a Jury Trial on His Sarbanes-OxleyClaimPage 2 equitable relief under the Act, he is barred from seeking a jury trial. In response, Plaintiff argueshe is entitled to a jury trial because: (1) the Motion to Strike Sarbanes is belated; (2) the plainlanguage of the Act provides that right; (3) Plaintiff seeks special and punitive damages, andtherefore legal remedies; (4) the legislative history allows that right; and (5) no court has held tothe contrary. See Reply to Mot. to Strike Sarbanes at 1. 1 II.Plain Language Rule 38 of the Federal Rules of Civil Procedure preserves the “right of trial by jury asdeclared by the Seventh Amendment . . . or as given by a statute of the United States.” Fed. R.Civ. P. 38. “This right encompasses all actions in which legal rights are to be determined, asopposed to those in which only equitable rights and remedies are involved.”  Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 422 (5th Cir. 1998). Thus, the initial inquiry is whether theSarbanes-Oxley Act provides a right of trial by jury. It is undisputed that the Act omits the phrase “jury trial.” Nevertheless, Plaintiff asserts “Section 806 has express wording that clearlyindicates that parties are entitled to a jury trial.” Resp. to Mot. to Strike Sarbanes at 4. The Actstates:If the Secretary [of Labor] has not issued a final decision within 180 days of thefiling of the complaint and there is no showing that such delay is due to the badfaith of the claimant, bringing an action at law or equity for de novo review in theappropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy. Case 3:03-cv-00888 Document 147 Filed 06/07/2005 Page 2 of 10    See   also   Chauffeurs, Teamsters and Helpers, Local No. 391 v. Terry , 494 U.S. 558, 564 (1990) (“First, we 2 compare the statutory action to 18-century actions brought in the courts of England prior to the merger of the courtsof law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature.”)(internal citations omitted). 3:03-CV-0888-POrder GRANTING Defendants’ Motion to Strike Plaintiff’s Demand for a Jury Trial on His Sarbanes-OxleyClaimPage 3 18 U.S.C. § 1514A(b)(1)(B) (emphasis added). To wit, Plaintiff argues the phrase “at law”requires the right to a jury. Notwithstanding Plaintiff’s contention, in City of Monterey v. Del Monte Dunes at  Monterey, Ltd. , 526 U.S. 687, 707-08 (1999), the Supreme Court held that the phrase “action atlaw” did not necessarily imply a right to a jury trial.  Id. at 708 (“We decline, accordingly, tofind a statutory right under § 1983 based solely on the authorization of “an action at law.”).Rather, the Court engaged in a Seventh Amendment analysis to decide whether a particular action would resolve equitable or legal rights. Specifically, the Court examined both the natureof the issues involved and the remedy sought. 2 At this point, the option exists to use Seventh Amendment analysis to determine whether a legal cause of action exists under the Act. See    Markman v. Westview Instruments, Inc. , 517U.S. 370, 376 (1996). However, “[b]efore inquiring into the applicability of the SeventhAmendment, [a court] must ‘first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.’”  Feltner v. Columbia PicturesTelevision, Inc. , 523 U.S. 340, 345 (1998) (quoting Tull v. United States , 481 U.S. 412, 417 n.3(1987)). Indeed, Plaintiff does not engage in such an approach. Rather, he asserts that hisSarbanes-Oxley action seeks both equitable and legal relief. Case 3:03-cv-00888 Document 147 Filed 06/07/2005 Page 3 of 10    Cf.    Hanna , 348 F.Supp.2d at 1333 (“The [Act] does not specifically mention whether a plaintiff may demand 3 damages for loss of reputation under the Act.”). 3:03-CV-0888-POrder GRANTING Defendants’ Motion to Strike Plaintiff’s Demand for a Jury Trial on His Sarbanes-OxleyClaimPage 4 III.Equitable and Legal Claims Plaintiff argues further that he is entitled to a jury trial because he seeks legal claims of exemplary damages and reputational injury. Of course, this assertion assumes the Act permitssuch claims. Furthermore, the assertion assumes Plaintiff properly requested such claims. After analyzing both assumptions, the Court finds it difficult to believe either premise is viable.First, as with the phrase jury trial, the Act contains no express wording of any legal  remedies. Rather, it provides that: 3 An employee prevailing in any action under [the Act] shall be entitled to all relief necessary to make the employee whole . . . [and] Compensatory damages . . .shall include--(A) reinstatement with the same seniority status that the employeewould have had, but for the discrimination; (B) the amount of back pay, withinterest; and (C) compensation for any  special    damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonableattorney fees.18 U.S.C. § 1514A(c) (emphasis added). Plaintiff asserts that the phrase “special damages”encompasses legal claims such as reputational and exemplary damages. Again, this assertionfails for several reasons. a.Special Damages First, “[Plaintiff] did not specifically plead that he was entitled to special damages for injury to his reputation.” Reply to Mot. to Strike Sarbanes at 7 (citing Pl.’s First Am. Compl.).Federal Rule of Civil Procedure Rule 9(g) mandates that “[w]hen items of special damage areclaimed, they shall be  specifically stated. Fed. R. Civ. P. 9(g) (emphasis added). The purpose of the rule, in part, is to avoid unfair surprise on the part of defendants by informing them as to the Case 3:03-cv-00888 Document 147 Filed 06/07/2005 Page 4 of 10
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