Opinion
Civ. No. 04-1354 JP/LAM.
August 5, 2005
ORDER
Plaintiff Delores Baca is suing the Dora Consolidated School District and Jim Reed. On May 16, 2005, Plaintiff filed Plaintiff's Motion and Memorandum in Support Requesting Jury Trial Pursuant to Fed.R.Civ.P. 39 (Doc. 32). Defendants oppose this motion.
Plaintiff filed suit in November 2004 in state court and did not make a jury demand. Defendant timely removed. Plaintiff again did not make a jury demand as outlined in Fed.R.Civ.P. 81(c). Plaintiff did not file the pending motion requesting a jury until May 16, 2005 and concedes that the jury demand is not timely under Fed.R.Civ.P. 38. Defendant argues that because Plaintiff missed the deadlines specified in Fed.R.Civ.P. 38, that the "failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury." Fed.R.Civ.P. 38(d).
However, I conclude that the equities are with Plaintiff in this particular matter, and will grant Plaintiff's motion based on the language in Fed.R.Civ.P. 39(b): "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues."
IT IS ORDERED THAT Plaintiff's Motion Requesting a Jury Trial Pursuant to Fed.R.Civ.P. 39 (Doc. 32) is GRANTED.