Opinion
IP 01-0150-C B/S
July 27, 2001
ENTRY DENYING DEFENDANT'S MOTION TO VACATE JURY TRIAL
This is a negligence case involving personal injury arising under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51-60 . The plaintiff, Matthew Lappin alleges that he was injured while working as a conductor on defendant's railroad when an emergency brake engaged causing him to fall from the ladder on which he was riding.
The case is before the court on defendant's Verified Motion to Vacate Assignment for Trial By Jury. The railroad alleges — and it is undisputed by Mr. Lappin — that Mr. Lappin failed to include a jury demand in his pleadings or within ten days thereafter as required by Fed.R.Civ.P. 38(b). Instead, while his complaint was filed on February 5, 2001, Mr. Lappin, by counsel, did not ask for a jury trial until June 15, eleven days after defendant moved to vacate the jury trial.
Fed.R.Civ.P. 38(b) provides: "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, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party."
The reason for this failure, plaintiff's counsel readily acknowledges, was "inadvertence." In other words, counsel spaced the jury demand. This leaves us with the question of whether we should forgive counsel's error for reasons derived from the case law, or hold plaintiff to the technical requirements of Rule 38(b).
Unfortunately, there are two lines of cases, one following Rule 38's waiver provision, the other following Rule 39's saving provision. Needless to say, defendant cites the waiver line, while plaintiff cites the saving line. Fortunately, the Rule and the case law provide for the court's exercise of sound discretion in determining whether to grant a belated request for a jury trial.
Rule 38(d) provides: "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."
Rule 39(b) provides: "[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."
Here, the factors in favor of permitting plaintiff's belated request outweigh defendant's arguments to the contrary. The Seventh Circuit has held that, "[i]n the absence of strong and compelling reasons to the contrary, untimely jury demands should be granted," and that mere tardiness "is neither a strong nor a compelling reason to deny the fundamental right to a jury trial." Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir.), cert. denied, 464 U.S. 986 (1983). The court counseled district courts to "approach each application under Rule 39(b) with an open mind and an eye to the factual situation in that particular case." Id. citing 9 C. Wright A. Miller, Federal Practice Procedure § 2334, at 116 (1971). See Members v. Paige, 140 F.3d 699, 703-704 (7th Cir. 1998).
In proceeding with an open mind and an eye on the factual situation, we apply the criteria we outlined in Batteast Const. Co. Inc. v. Henry County Bd. of Com'rs, 196 F.R.D. 543, 544-545 (S.D.Ind. 2000): "(1) whether the issues involved are best tried before a jury; (2) whether the court's schedule or that of the adverse party will be disrupted; (3) the degree of prejudice to the opposing party; (4) the length of the delay; and (5) the reason for the moving party's tardiness in demanding a jury trial." The outcome under each of these criteria — save one: counsel's inadvertent failure to file a jury demand — favors a jury trial.
As plaintiff has pointed out, significant case law favors a jury trial in a FELA case. Blair v. Baltimore Ohio R.R. Co., 323 U.S. 600, 610 (1945). Factors 2, 3, and 4 tend to favor plaintiff's position for the same reason: it is still early in these proceedings. With trial set for May 2002, the court's docket is unaffected and defendant has presented no reason for believing that its schedule will be adversely affected by granting plaintiff's jury request. And defendant's argument that it will be prejudiced because a jury trial will cost it more than a bench trial has nothing to do with the timing of the jury demand. Had plaintiff filed its demand timely, defendant would be in the same situation. Also see Lewis v. Thigpen, 767 F.2d 252, 259 (5th Cir. 1985). Accordingly, we DENY defendant's motion to vacate the trial setting and GRANT plaintiff's jury demand.
But we balance our holding with our order pursuant to 28 U.S.C. § 1927 that plaintiff's counsel — but not plaintiff personally — must pay defendant's reasonable attorney fees and costs associated with defendant's perfectly proper motion to vacate the jury setting. But for counsel's inadvertent failure to file a timely jury demand, thus multiplying the proceedings unnecessarily, defendant would not have been put to the cost of moving to vacate the trial setting. Accordingly, we order defendant to file and serve within thirty days after the date of this Order a bill of particulars itemizing the costs and fees associated with its motion to vacate, and further Order plaintiff's counsel to pay the itemized bill within fifteen days after receiving it, or, within the same fifteen days, to show cause why all or some portion of the bill is improper or unreasonable.
The statute provides: "Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct."
It is so ORDERED this day of January 2002.