IN THE UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF NEW MEXICO
ARTHUR R. MORALES,
Plaintiff,
-vs- No. CIV 97-0350 LH/DJS
LOCKHEED MARTIN
CORPORATION,
SANDIA CORPORATION, SANDIA NATIONAL
LABORATORIES, BOBBIE
V. WILLIAMS,
ANTHONY L. THORNTON, CHARLES E.
EMERY, C. PAUL ROBINSON,
and EDWARD D.
GRAHAM,
Defendants.
THIS MATTER comes before the Court on Plaintiff's Motion to
Void Judgment for Lack of Jurisdiction (Docket No. 163), filed June 6, 2007.
The Court, having reviewed the Motion, the record, and the applicable law, and
otherwise being fally advised, fmds that Plaintiffs Motion is not well taken
and will be denied.
Plaintiff pro se moves for relief from the Final Judgment
in favor of Defendant Sandia Corporation (Docket No. 158), entered December 29,
1999, He contends that under the Seventh
Amendment to the United States
Constitution" and Federal Rule of Civil Procedure 38,2 the Court lacked
jurisdiction to deny his demand for a jury trial, making the Final Judgment
void and entitling him to relief pursuant to Federal Rule of Civil Procedure
60(b)(4).3 Pro se pleadings must be liberally interpreted, Homes v. Kerner, 404
U.S. 519, 520 (1972), but the Court should not "assume the role of advocate,"
Northington v. Jackson, 973 F.2d 1518, 5121 (10th Cir. 1992) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
Plaintiffs argument is utterly without merit. In the first
place, the Court made no error, constitutional or otherwise, in denying
Plaintiff a jury trial. See, e.g., Nissan Motor Corp. in U.S.A. v. Burciaga,
982 F.2d 408, 409 (10th Cir. 1992)(per curium)(district court does not abuse
its
1 "In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be preserved . .
. ." U.S. Const. amend. VII.
2 Rule 38, Jury Trial of Right, provides
in relevant part:
(a) Right Preserved. The right of trial by jury as
declared by the Seventh Amendment to the Constitution or as given by a statute
of the United States shall be preserved to the parties inviolate.
(b)
Demand. Any party may demand a trial by jury of any issue triable of right by a
jury by (1) 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, and (2) filing the demand
as required by Rule 5(d). Such demand may be indorsed upon a pleading of the
party.
...
(d) Waiver. The failure of a party to serve and file a
demand as required by this rule constitutes a v'aiver by the party of trial by
jury....
FED. R. Civ. P. 38 (emphasis added).
3 Rule 60, Relief
From Judgment or Order, provides in pertinent part:
(b) Mistakes;
Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On
motion and upon such terms as are just, the court may relieve a party or a
party's legal representative from a fmal judgment, order, or proceeding for the
following reasons: ... (4) the judgment is void .... The motion shall be made
within a reasonable time .... A motion under this subdivision (b) does not
affect the finality of a judgment or suspend its operation.
FED. R. Civ. P. 60(b).
discretion by
denying Rule 39(b)4 motion when "failure to make a timely jury demand results
from nothing more than the mere inadvertence of the moving party"); Dill v.
City ofEdmond, 155 F.3d 1193, 1208 (10th Cir. 1983). Indeed, this very issue
has been considered and this Court's ruling | affirmed by the Tenth Circuit
Court of Appeals. See Morales v. Lockheed Martin Corp., No. 00- 2029, Order and
Judgment at 2 (Nov. 13,2000)( "[T]he district court acted well within its
discretion j l: in denying Mr. Morales' untimely request for a jury trial."). |
Thus, the Court's early ruling was not in error and the Court's Final
Judgment was not and f is not void.5 Furthermore, the Court is precluded from
reconsideration of this issue pursuant to the mandate rule.6
WHEREFORE,
IT IS HEREBY ORDERED that Plaintiffs Motion to Void Judgment for Lack
of Jurisdiction (Docket No. 163), filed June 6, 2007, is DENIED.
SENIOR
UNITED STATES DISTRICT JUDGE
4 Rule 39, Trial by Jury or by the Court,
provides in pertinent part that "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 issues. Fed. R. Civ. P. 39(b)(emphasis added).
5 A judgment
is void under Rule 60(b) "only ifthe court which rendered it lacked
jurisdiction ofthe subject matter, or ofthe parties, or acted in a manner
inconsistent with due process of law." United States v. Buck, 281 F.3d 1336,
1344 (10th Cir. 2002)(quoting In re Four Seasons Sec. Laws Litig., 502 F.2d
834, 842 (10th Cir. 1974)).
6 See, e.g., Georgacarakos v. United
States,211 Fed. App'x 730,732 (10th Cir. 2007)(" Because our opinion and
mandate covered the arguments the appellant made in his Rule 60(b) motion, the
district court was bound by the mandate rule and had no authority to re-examine
its final decision. See Procter & Gamble [v. Haugen}, 317 F.3d [1121,] 1126
[10th Cir. '1003}; Huffman [v. Saul Holdings Ltd. P'ship},
262 F.3d [1211,] 1132-33 [10th Cir. 2001]."). |
