Foster Fuller v. Charlie Graas , 2 F. App'x 644 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-4252
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Foster D. Fuller, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Western
Charlie Graas; Dillon Corp.; Keith * District of Missouri.
Beck, Employee, Gerbes West; Keith *
Arnel, Employee, Gerbes West; Kim * [UNPUBLISHED]
Brinkmann, Employee, Gerbes West; *
Terry Beck, Store Manager, Gerbes *
West; Samantha Hagar, Employee, *
Gerbes West *
*
Appellees. *
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Submitted: February 7, 2001
Filed: February 16, 2001
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Following entry of final judgment upon the district court’s1 findings at the
conclusion of a bench trial, Foster Fuller appeals from the court’s earlier orders denying
him a jury trial, granting summary judgment to certain defendants, and denying him
leave to amend in this civil rights action. Upon careful review of the record and the
parties’ submissions, we conclude that Dr. Fuller waived his right to a jury trial by
failing to make a timely request for one, that the district court did not “amend” his
complaint by liberally interpreting it for purposes of reviving his right to request a jury
trial, and that the court did not abuse its discretion by declining to order a jury trial on
Dr. Fuller’s subsequent motion. See Fed. R. Civ. P. 38(b), 39(b). We also reject
Dr. Fuller’s contention that the district court abused its discretion in denying him leave
to amend, and we find that the partial grant of summary judgment was proper. See
Dirden v. Dep’t of Hous. & Urban Dev., 86 F.3d 112, 114 (8th Cir. 1996) (per curiam)
(§ 1981 plaintiff must prove discriminatory intent); Fitzgerald v. Mountain States Tel.
& Tel. Co., 68 F.3d 1257, 1262-63 (10th Cir. 1995) (applying doctrine of respondeat
superior to § 1981 action; employer is responsible only for intentional wrongs of
employees committed in furtherance of employment).
Accordingly, we affirm. See 8th Cir. R. 47B.
1
The Honorable D. Brook Bartlett, late a United States District Judge for the
Western District of Missouri.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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