Opinion
Case No. CV 01-92-E-BLW
September 23, 2002
ORDER
The Court has before it Defendants' Jury Demand (Docket No. 72) and Plaintiff's Motion to Strike Defendants' Demand for Jury Trial (Docket No. 73). Under Federal Rule of Civil Procedure 38(b), a party may demand a trial by jury "by 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." Failure of a party "to serve and file a demand as required by [Rule 38] constitutes a waiver by the party of trial by jury." Fed. It Civ. P. 38(d).
Defendants do not deny that their request for jury trial is untimely, but request that the Court allow them trial by jury because they were not previously represented by counsel. The Court notes, however, that Defendants have been represented since at least April 2002, when their counsel filed an answer in this action on Defendant's behalf. The Court finds the demand for jury trial, filed almost five months after Defendant's answer, to be untimely. The Court will therefore strike the Jury Demand.
NOW THEREFORE IT IS HEREBY ORDERED that Plaintiff's Motion to Strike Defendants' Demand for Jury Trial (Docket No 73) is GRANTED. Defendant's Jury Demand (Docket No. 72) shall be stricken.
IT IS FURTHER ORDERED that the Court's Scheduling Order dated August 23, 2002, and entered on August 26, 2002, is AMENDED to reflect that trial will be a Court Trial rater than a Jury Trial. All other portions of the Scheduling Order remain in full force and effect.