# Sewell v. Jefferson County Fiscal Court > Court of Appeals for the Sixth Circuit · December 19, 1988 · 863 F.2d 461 URL: https://www.frixlaw.com/law-library/cases/8966125 ## Case - **Full name:** Linda SEWELL v. JEFFERSON COUNTY FISCAL COURT Mitchell McConnell Carl Brown Jim Malone Sylvia Watson Jefferson County Corrections Department Richard Frey Jeannette Priebe - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** December 19, 1988 - **Citations:** 863 F.2d 461; 1988 WL 134320 - **Precedential status:** Published - **Opinion:** Concurring in part by Kennedy - **Judges:** Engel, Kennedy, Krupansky - **Cited by:** 38 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8966125 ## How later opinions describe it (automated extraction) - stating in dicta that precedents on both sides—those that apply Parratt only to a plaintiff who brought a § 1983 procedural due process suit, random, unauthorized deprivations of property and those that not based upon a random, unauthorized deprivation of apply Parratt more br… - stating in dicta that a plaintiff who brought a § 1983 procedural due process suit, not based upon a random, unauthorized deprivation of property, was barred from recovering under § 1983 pursuant to Parratt and Vicory because she failed to demonstrate that her state-court reme… - noting that courts .have interpreted Rule 39(a) broadly and holding that plaintiff waived right to a jury trial by failing to object to court order setting case for bench trial - noting that courts have interpreted Rule 39(a) broadly and holding that plaintiff waived right to a jury trial by failing to object to court order setting case for bench trial ## Opinion text KENNEDY, Circuit Judge, concurring in part and dissenting in part. I disagree with the majority’s holding that Sewell waived her right to a jury trial. In all other respects, I concur in the court’s opinion. Plaintiff, who had made a jury demand, was entitled to a jury trial on her section 1981 and 1983 claims. Amburgey v. Cassady, 507 F.2d 728, 730 (6th Cir.1974). Since these are actions for constitutional torts, and thus “suits at common law,” the Seventh Amendment guarantee of trial by jury applies. Id.; see Curtis v. Loether, 415 U.S. 189 , 94 S.Ct. 1005 , 39 L.Ed.2d 260 (1974); Pernell v. Southall Realty, 416 U.S. 363, 370 , 94 S.Ct. 1723, 1727 , 40 L.Ed.2d 198 (1974). (“This Court has long assumed that actions ... for damages to a person or property, are actions to a jury.”) The waiver of this right must be clear and unmistakeable. The failure of plaintiff’s counsel to notice that the pretrial order stated that the case would be tried before the court does not, in my opinion, constitute the waiver of a constitutional right. This is not a case in which plaintiff orally agreed to a jury waiver which was then memorialized in the court order as happened in Fields Engineering & Equipment, Inc. v. Cargill, Inc., 651 F.2d 589 (8th Cir.1981). The colloquy at the beginning of the afternoon session of January 22 indicates that the designation of the trial as one before the court was inadvertent: THE COURT: The pretrial trial says, Mr. — final pretrial on September 15, 1986, says that this case is continued to January 22, 1987 for a trial before the Court. MR. CURTIS [plaintiff’s attorney]: But, Judge, I’ve asked for a jury trial in my complaint. THE COURT: I know you did; but somehow, at the pretrial-it came out as a non-jury trial; and your duty, when you got that pretrial order, if it was wrong was to object at that time. The District Court found a waiver in counsel’s failure to note this provision in the pretrial order and object to it before trial. *469 Amburgey provides an apt comparison. There, counsel, in response to the judge’s suggestion that a jury trial would result in delay, admitted he had only requested a jury trial to “protect myself,” that he was “not jumping up and down to try it before a jury” and “I would like to get my case tried and I know it’s a lot quicker to try before the court.” A panel of this Court held that these statements, “coupled with counsel’s commencement of the trial without objection before the court, constituted a waiver of the earlier demand for a trial by jury,” 507 F.2d at 730 . Nor is this a case in which plaintiff acquiesced after learning that the case was to be tried without a jury as did the plaintiff in Fiedler v. Marumsco Christian School, 631 F.2d 1144, 1149 (4th Cir.1980); and Southland Reship, Inc. v. Flegel, 534 F.2d 639, 644 (5th Cir.1976), or raised the issue for the first time on appeal as did the plaintiff in Lovelace v. Dall, 820 F.2d 223 (7th Cir.1987). In the remaining case relied on by the majority, Harden v. Adams, 760 F.2d 1158 (11th Cir.), cert. denied sub nom. Grimmer v. Harden, 474 U.S. 1007 , 106 S.Ct. 530 , 88 L.Ed.2d 462 (1985) there was, as the majority notes, a waiver in the amended complaint. In K.M.C. Co. v. Irving Trust Co., 757 F.2d 752 (6th Cir.1985), we applied a knowing and voluntary standard to contractual waivers of jury trial. The Court in Fuentes v. Shevin, 407 U.S. 67 , 92 S.Ct. 1983 , 32 L.Ed.2d 556 (1972), also a contractual waiver of jury trial case, stated “... a waiver of constitutional rights in any context must, at the very least, be clear.” That there was a waiver here is anything but clear. It certainly was not knowing and voluntary. I would REMAND the action for a jury trial on the sections 1981 and 1983 claims. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8966125. Public record. Not legal advice.