Opinion
Civ. NO. 99-1526 SECTION "K" (3)
April 7, 2000
Before the Court is the defendants' Motion to Stirke Request for Jury Trial. This motion is based on the Magistrate's prior order of February 17, 2000, granting plaintiffs leave to file an amended complaint, which contained a jury demand. Federal Rule of Civil Procedure 39(b). After reviewing the memoranda in support of the motion and in opposition, the court finds that the Motion to Strike Request for Jury Trial should be denied.
This action arises out of alleged constitutional civil rights violations by defendants. The plaintiffs filed the action in state court on May 7, 1999, and it was subsequently removed to federal court based on this court's federal question jurisdiction under 28 U.S.C. § 1331. Plaintiffs filed their first amended complaint on May 5, 1999, but made no request for a jury trial at that time. Defendants filed their answer on June 7, 1999. Finally, in January, 2000, plaintiff Victoria Francis ("Francis") moved for leave to file an amended complaint requesting trial by jury. Plaintiff Wendel Irvin ("Irvin") was granted leave to file his amended complaint in February, and it, too, contained a jury demand.
Defendants contend that the request is untimely, as the amended complaints do not raise any new issues, which would give rise to the right to trial by jury. Rather the amended complaints simply name a new defendant and add a claim for interference with Francis' protected right of familial association. Plaintiffs, on the other hand, argue that civil rights litigation is the sacred province of the jury and that no prejudice or delay would result from the untimely request for a jury.
Federal Rule of Civil Procedure 38 reads, in pertinent part:
(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by (1) 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,
(d) Waiver. 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. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
The right to a jury is a constitutional right. Nonetheless, the right may be waived by failing to timely demand it. Cox v. C.H. Masland Sons, Inc., 607 F.2d 138, 143 (5th Cir. 1979). Thus, the plaintiffs have no constitutional right to a jury trial in this matter, having waived that right by failure to demand a jury within ten days of receiving notice of the filing of the removal petition. The only way the plaintiffs may now try their case before a jury is if the court, within its discretion, grants a jury trial.
Federal Rule of Civil Procedure 39(b) allows the court, upon motion, to order a trial by jury on any and all issues triable by jury at its discretion. There is ample precedent in the Fifth Circuit to govern the application of Rule 39(b). In this Circuit, "the general rule governing belated jury requests . . . is that the trial court should grant a jury trial in the absence of strong and compelling reasons to the contrary.'" O'Malley v. United States Fidelity and Guar. Co., 776 F.2d 494, 502 (5th Cir. 1985), ( quoting Swoffard v. B W. Inc., 336 F.2d 406,) 409 (5th Cir. 1964), cert. denied, 379 U.S. 962 (1965)).
Accordingly, the discretion afforded a trial judge under Rule 39(b) is not boundless. Unless prejudice, delay, or inconvenience will occur if the court grants leave to demand a jury, a party should be permitted to an untimely demand. Cox, 607 F.2d at 144. None of these factors are present in the instant case. The defendants do not claim they will suffer prejudice if the court grants leave to demand, and it is extremely unlikely that they will be prejudiced. First, trial is not set to commence until January 29, 2001. This should provide ample opportunity to adjust trial strategy to accommodate a jury. Second, the case at bar is not so complex as to the defendants any difficulty in presenting a defense to a jury. Moreover, the grant of a delayed request for a jury after the deadline has past does not defeat the intent of the Federal Rules. The deadlines provided in the Federal Rules to demand a jury trial are not intended to be rigidly enforced. See Salley v. Trans World Airlines, Inc., 1989 WL 117789 (E.D.La.). As one commentator has stated,
[t]echnical insistence upon imposing a penalty for default by denying a jury trial is not in the spirit of the rules. The rules do not limit the court's discretion in ordering a jury in cases in which there would have been a right to jury trial. The court ought to approach each application under Rule 39(b) with an open mind and an eye to the factual situation in that particular case, rather than with a fixed policy against granting the application or even a preconceived notion that applications of this kind are usually to be denied.
Wright Miller, Federal Practice and Procedure, § 2334 115-16 (1971).
Therefore, although there may be instances when a belated jury demand should be denied, this is not such a case. Accordingly,
IT IS ORDERED that the defendants' Motion to Strike Request for Jury Trial is DENIED.