Opinion
Civil Action 20-cv-3763-RM-NRN
06-28-2021
SCOTT BOOKER, Plaintiff, v. TERVITA ENVIRONMENTAL SERVICES INCORPORATED, Defendant.
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
Plaintiff's action, between private parties, alleges violations of 42 U.S.C. §1981 and 42 U.S.C. § 2000 et seq. and seeks, among other relief, punitive damages. (See ECF No. 39.) Although Plaintiff did not allege what provision or source supports his request for punitive damages, the Court notes, for example, that punitive damages may be recoverable in certain circumstances under 42 U.S.C. § 1981a(b).
This matter is now before the Court sua sponte after reviewing Defendant's answer which raises the following as an “affirmative defense”: “Plaintiff's punitive damages request deprives Tervita of property without due process of law in violation of Tervita's rights under the United States Constitution and analogous provisions of the applicable state constitution. Further, the standard for determining whether to impose punitive damages is vague and indefinite, does not provide adequate guidance to the trier of fact, and fails to require proof by an appropriate standard.” (ECF No. 40, p. 7 at ¶ 8.) Thus, although unclear, Defendant may be challenging the constitutionality of a federal statute concerning punitive damages in this action. If so, Defendant is required to provide notice of such challenge to the court and the United States attorney general, but the Court is unable to determine that this has occurred.
Specifically, as relevant here, Fed.R.Civ.P. 5.1(a)(1) provides that a party who files a pleading drawing into question the constitutionality of a federal statute must:
(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:
(A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity…
The party must also serve the notice and paper on the appropriate persons. Fed. R. Civ. P.5.1(a)(2). Accordingly, based on the record at hand, it is
ORDERED that by Tuesday, July 6, 2021, Defendant shall file a notice either showing compliance with Fed.R.Civ.P. 5.1 or showing that compliance is not required.