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GONZALEZ v. RAKKAS

March 22, 1994

DELCY GONZALEZ, Plaintiff,
v.
ELEFTHERIA THERESA RAKKAS and KONSTANTINOS RAKKAS, Defendants.



The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, D.J.:

 The instant motion comes before the Court from a federal civil-rights action brought by plaintiff Delcy Gonzalez under the Civil Rights Act of 1866, and the Fair Housing Act of 1968. The plaintiff alleges that the defendants violated her federal statutory rights by refusing to rent her an apartment on account of her race and national origin. A default judgment was entered against the defendants on the issue of liability upon their continued failure to appear in this action. Subsequently, the case was reassigned, on the plaintiff's consent, for a jury trial on the issue of damages before the Honorable Steven M. Gold, United States Magistrate Judge for the Eastern District of New York.

 By Order dated February 18, 1994, Magistrate Judge Gold ruled that, in view of the defendants' default, the trial on damages would be tried before the Court, and not to a jury. In light of this determination, plaintiff now moves, pursuant to 28 U.S.C. § 636 (c)(6) and Rule 73(b) of the Federal Rules of Civil Procedure, to vacate her consent to try the issue of damages before the magistrate judge. For the reasons discussed herein, plaintiff's motion is granted.

 BACKGROUND

 The circumstances attending this motion are as follows. Plaintiff Delcy Gonzalez alleges in her complaint that the defendants intentionally discriminated against her on the basis of her race and national origin through their refusal to rent her an apartment located at 172-15 39th Avenue, in Flushing, New York. Plaintiff further alleges that the defendants' intent to discriminate was manifested through certain statements that they made to her, and to other persons who tested the availability of the subject premises for rent. She asserts violations of the Civil Rights Act of 1866, 42 U.S.C.A. §§ 1981-1982 (1981 & West Supp. 1993), and of the Fair Housing Act of 1968, 42 U.S.C.A. §§ 3601-3631 (1977 & West Supp. 1993).

 In her request for relief, plaintiff seeks an injunction enjoining the defendants from continuing their discriminatory practices. Plaintiff also seeks $ 100,000 in compensatory damages, $ 100,000 in punitive damages, and the payment of her attorney's fees and costs.

 In light of the defendants' continued failure to appear in this action, the Honorable Reena Raggi, United States District Judge for the Eastern District of New York, by Order dated January 7, 1994, granted the plaintiff's motion for a default judgment on the question of liability. This Order also reassigned this case to Magistrate Judge Gold for a trial on the question of damages.

 On or about February 3, 1994, plaintiff's counsel executed a consent order, on behalf of his client, for the reassignment of the instant action to Magistrate Judge Gold. The consent order was approved by Magistrate Judge Gold, and signed by Judge Raggi. The defendants' failure to appear in this action was noted on this document. The consent order provides, in pertinent part:

 
I hereby consent to have the above action reassigned to U.S. Magistrate Judge Gold to conduct a jury trial on the question of damages and report upon and recommend the entry of judgment in accordance with the jury's verdict.
 
I consent that an appeal, if taken will be to U.S. District Court.
 
This consent is given voluntarily.

 Gonzalez v. Rakkas, 93-CV-3229 (RR) (E.D.N.Y. Feb. 3, 1994) (consent order) (emphasis added). *fn1"

 By Order dated February 18, 1994 [hereinafter "Magistrate Judge Gold's Order"], Magistrate Judge Gold ruled that the issue of damages would be tried before the Court, and not to a jury. In reaching this determination, the magistrate judge first noted that "Rule 55(b)(2) [of the Federal Rules of Civil Procedure] provides for a post-default jury trial on damages only 'when and as required by any statute of the United States.'" Magistrate Judge Gold's Order, at 1 (quoting Fed. R. Civ. P. 55(b)(2)). Finding that the Fair Housing Act of 1968 does not provide for a jury trial, see id. (citing Curtis v. Loether, 415 U.S. 189, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974)), the magistrate judge concluded that the entry of default judgment extinguished the plaintiff's right to a jury trial on damages. See id. at 1-2 (quoting 5 James W. Moore et al., Moore's Federal Practice P 38, at 19[3] (2d ed. 1993) (default judgment extinguishes constitutional right to a jury trial on the issue of damages); Frankart Distributors, Inc. v. Levitz, 796 F. Supp. 75, 76 (E.D.N.Y. 1992) ("Rule 55 ...


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