Ford v. Breier

12 Citing cases

  1. Hester Industries, Inc. v. Tyson Foods, Inc.

    160 F.R.D. 15 (N.D.N.Y. 1995)   Cited 14 times

    Tyson cites to two cases from other circuits in which substituted counsel untimely yet successfully sought a jury trial on the basis of their new appearance. SeeSherman College of Chiropractic v. American Chiropractic Ass'n, 1983 WL 21365 (N.D.Ga. Sept. 16, 1983); Ford v. Breier, 71 F.R.D. 195 (E.D.Wis.1976). However, both of these cases arose in circuits where the granting of an untimely trial by jury motion is generally favored.

  2. McKee v. Breier

    417 F. Supp. 189 (E.D. Wis. 1976)   Cited 1 times

    "(d) he failed to instruct the officers under his command to exercise all means to insure the safety and constitutional rights of all those arrested and incarcerated, including a policy to avoid causing damage to the person arrested or his property where the same is unnecessary." Chief Breier asserts that Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561, 44 U.S.L.W. 4095 (1976) and Ford v. Breier, No. 73-C-65, 71 F.R.D. 195 (E.D.Wis. 1976), notice of appeal filed April 26, 1976, require that this action be dismissed against him. The plaintiffs contend that Rizzo is inapplicable here and that an earlier decision in Ford v. Breier, 383 F. Supp. 505 (E.D.Wis. 1974), should be applied, instead of the later decision cited by the defendant.

  3. Merritt v. Faulkner

    697 F.2d 761 (7th Cir. 1983)   Cited 303 times
    Holding that a blind prisoner was not capable of representing himself because of his disability and the complexity of the medical issues involved in the case

    Untimely jury demands have been granted in a variety of circumstances. See Ford v. Brier, 71 F.R.D. 195 (E.D.Wis. 1976) (motion for jury trial granted where it was brought by new counsel without delay and was unopposed); United States v. Mesna, 11 F.R.D. 86 (D.Minn. 1950) (motion for jury trial granted where it was only two and one-half months late and opponent would suffer no prejudice); Arnold v. Trans-American Freight Lines, 1 F.R.D. 380 (W.D.Mich. 1940) (motion for a jury trial granted where failure to make jury demand was the result of confusion among counsel). There are no strong or compelling reasons for denying Merritt's motion for a jury trial.

  4. Lewis v. Hyland

    554 F.2d 93 (3d Cir. 1977)   Cited 36 times
    Finding proceedings equitable in nature and recognizing unclean hands as an affirmative defense

    While we recognize the general availability of damages in a § 1983 action where damages have been sought and have been in issue between the parties, we have great difficulty in countenancing the district court's decision to award damages in the manner in which it did, after the case was, for all intents and purposes, at a close. See Curtis v. Loether, 415 U.S. 189, 194-96, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Chapman v. Kleindienst, 507 F.2d 1246 (7th Cir. 1974); Ford v. Breier, 71 F.R.D. 195, 197 (E.D.Wis. 1976). First, substantiating our belief that no damages had ever been contemplated by the parties, it is significant to us that the plaintiffs themselves recognized that an amendment to their complaint would be required to crystallize the money damages issue and to support a money damages award.

  5. Wilburn v. St. Joseph Cnty. Juvenile Justice Ctr.

    353 F. Supp. 3d 736 (N.D. Ind. 2018)   Cited 1 times

    Kay Beer Distrib. , 2009 WL 1705746 at *3-4, 2009 U.S. Dist. LEXIS 49792 at *10-11. Nor is this case like Ford v. Breier , 71 F.R.D. 195, 197 (E.D. Wis. 1976), cited by Defendants, in which a jury demand was brought by new counsel unopposed and without delay. In their reply, the Wilburns appropriately note that the cases cited by Defendants contain excuses that do not apply in this case.

  6. Ruiz v. Rodriguez

    206 F.R.D. 501 (E.D. Cal. 2002)   Cited 6 times

    iscretion to grant a Rule 39(b) motion), cert. denied, 377 U.S. 952, 84 S.Ct. 1629, 12 L.Ed.2d 498 (1964); Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, 1013 (6th Cir.1987) (finding under broad discretion granted district courts by Rule 39(b), untimely request for jury trial should not be denied absent strong and compelling reasons); AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150, 155 (10th Cir.1965) (holding that absent strong and compelling reasons to the contrary, a district court should exercise its discretion under Rule 39(b) and grant a jury trial); Swofford v. B & W, Inc., 336 F.2d 406, 409 (5th Cir.1964) (finding Rule 39(b) motion should be granted " in the absence of strong and compelling reasons to the contrary" ), cert. denied 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1965); EEOC v. Britrail Travel Int'l Corp., 129 F.R.D. 116, 117 (D.N.J.1989) (untimely jury demand resulting from inadvertence should be granted if no prejudice or severe docket disruption would result); Ford v. Breier, 71 F.R.D. 195, 197 (E.D.Wis.1976) (stating court should grant relief from apparent waiver absent overriding circumstances to the contrary).           The Ninth Circuit has held that the discretion given to a judge under Rule 39(b) is " ‘ narrow’ and ‘ does not permit a court to grant relief when the failure to make a timely demand results from an oversight or inadvertence.’ "

  7. AM International, Inc. v. Eastman Kodak Co.

    648 F. Supp. 506 (N.D. Ill. 1986)   Cited 10 times
    Recognizing jury's ability as fact finder in a patent case

    There are cases which have found that a motion by new counsel for a jury demand without delay is grounds for granting the motion. E.g., Williamson v. State of Indiana Dept. of Correction, 577 F. Supp. 983, 984 (N.D.Ind. 1984); Ford v. Breier, 71 F.R.D. 195, 197 (E.D.Wis. 1976). We note that Williamson involved prisoner litigation with no showing of prejudice to defendant and that the motion in Ford was unopposed.

  8. Williamson v. State of Ind., Dept. of Correction, (N.D.Ind. 1984)

    577 F. Supp. 983 (N.D. Ind. 1984)   Cited 2 times

    Although the Merritt decision involved a pro se inmate with a physical handicap, a situation which does not exist in any of the four cases presented, the underlying rationale of Merritt regarding untimely jury requests appears to be that, where the opponent would suffer no real harm by the granting of such a motion, almost any reason will suffice for the granting of such a request on behalf of a pro se inmate. Under the facts of these four cases, where private counsel immediately made a motion for trial by jury at the time of his entry of appearance on behalf of the plaintiffs, this court concurs with the judgment of the court in Ford v. Breier, 71 F.R.D. 195 (E.D.Wis. 1976) that a motion for trial by jury brought by new counsel without delay is grounds for granting the otherwise belated motion. Accordingly, and based on the above, it is the ORDER of this court that the belated requests for trial by jury in these four cases be, and hereby are, GRANTED.

  9. Cascone v. Ortho Pharmaceutical Corp.

    94 F.R.D. 333 (S.D.N.Y. 1982)   Cited 10 times
    Discussing split in authority

    Swofford appears to be the majority rule and has been followed by the Sixth, Eighth, and Tenth Circuits as well as the District of Massachusetts and the Eastern District of Wisconsin. Local 783 v. General Electric Co., 471 F.2d 751, 755 (6th Cir. 1973), cert. denied, 414 U.S. 822, 94 S.Ct. 120, 38 L.Ed.2d 55 (1973); First Wisconsin Nat'l Bank of Rice Lake v. Klapmeier, 526 F.2d 77, 80 (8th Cir. 1975); AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150, 155 (10th Cir. 1965); Pawlak v. Metropolitan Life Ins. Co., 87 F.R.D. 717, 718 (D.Mass.1980); Ford v. Breier, 71 F.R.D. 195, 197 (E.D.Wisc.1976). Noonan, to the extent it survives Higgins may be said to represent a minority view.

  10. Smith v. Hill

    510 F. Supp. 767 (D. Utah 1981)   Cited 10 times

    Mere knowledge of or acquiescence in the activities of subordinates was insufficient to create liability under section 1983 in two recent cases. Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570, 580 (6th Cir. 1979); Ford v. Breier, 71 F.R.D. 195, 198 (E.D.Wis. 1976). Constructive knowledge of the illegal activities of subordinates may be imputed to a supervisor where it is shown that policies existed within his department or governmental entity the implementation of which resulted in a constitutional deprivation.