United States Court of Appeals, Tenth Circuit.

“ Defendants assert the Seventh Amendment provides the right to a jury because Plaintiff's complaint sought money damages.
Defendants would have been entitled to a jury at a trial on the merits of Plaintiff's legal claims. But the set-off hearing was not a trial on the merits of these claims. Instead the district court held the hearing following its entry of default for Defendants' willful discovery violations. See Fed.R.Civ.P. 37 (b) (2) . Defendants do not have a constitutional right to a jury trial following entry of default. ”

“ We found significant the district court's omission of any reference to the entry of default and concluded the district court intended "only to impose the [monetary] sanction [and] to abandon the default judgment as a sanction." Olcott II specifically ruled that the district court's judgment order dismissing all claims was a final decision. By contrast, every order the district court entered following remand expressly stated the district court's intent to enforce the entry of default. Defendants allege the district court dismissed Plaintiff's substantive claims in the February 4, 1998 order. ”

“ The court conducted a set-off hearing to establish and quantify Defendants' entitlement to credits against the default. Defendants had the burden of establishing their entitlement to credits by producing an accounting that complied with the court's prior accounting orders. The court limited its consideration of Defendants' evidence to accounting materials directly tracing Defendants' use of Plaintiff's funds. The court did not permit Plaintiff to put on evidence related to his fraud or contract claims. ”