Opinion
No. CIV 00-1341 BB/LFG
October 29, 2001
Counsel for Plaintiffs: Scott F. Voorhees, Santa Fe, NM.
Counsel for Defendants VanderVossen: Frank T. Herdman, RUBIN KATZ SALAZAR ALLEY ROUSE HERDMAN, Santa Fe, NM.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO STRIKE JURY
THIS MATTER is before the Court on the motion of Defendants VanderVossen, and the Court having reviewed the briefs of counsel, finds Tenth Circuit precedent requires Denial of the motion.
Discussion
Plaintiffs filed a First Amended Complaint on September 13, 2000, in state district court. The action was removed to this Court on September 25, 2000. On October 9, 2000, the City Defendants served their Answer to the First Amended Complaint. The VanderVossens served their Answer to the First Amended Complaint on October 10, 2000.
Plaintiffs jury demand was not filed until December 21, 2000. The Rule 16 conference was held on January 5, 2001. On January 23, 2001, the Court entered an order assigning the case to a standard track and setting pretrial deadlines. The case was transferred to the undersigned Judge. On February 6, 2001, this case was set for a jury trial commencing on December 3, 2001. Defendants VanderVossen correctly point out that Plaintiffs failed to file their jury demand within the ten days from the last pleading directed to the issue as required by Federal Rule of Civil Procedure 38. However, the rule following, Rule 39, provides that the court in its discretion upon motion may order a trial by a jury of any or all issues. Fed.R.Civ.P. 39(b). There is a wide divergence of opinion as to the proper guidelines for a court to exercise its discretion in considering such a motion. 9 WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2334 p. 185-6 (1995). The Tenth Circuit is among the courts holding that a jury trial should be granted in the absence of strong and compelling reasons to the contrary. Id. citing AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150, 155 (10th Cir. 1965); see also Green Const. Co. v. Kansas Power Light Co., 1 F.3d 1005 (10th Cir. 1993). These courts have reasoned that it is not in the spirit of the Rules of Civil Procedure to deny a party something as fundamental as a jury trial for failing to follow the technical time requirement of the demand procedure. Daniel Intl Corp. v. Fischbach Moore, Inc., 916 F.2d 1061, 1066 (5th Cir. 1990); Thompson v. Fritsch, 172 F. R. D. 269, 270 (E.D.Mich. 1997). Where the failure to demand was the result of excusable neglect and no prejudice to the opposing party will result, the court, in its discretion, may grant the jury trial. 33 FED. PROC. L. ED. § 77.127 p. 137 (1995); Raymond v. IBM Corp., 148 F.3d 63, 66-7 (2d Cir. 1998).
In exercising this Courts discretion, then, the Tenth Circuit presumption is in favor of jury trial and the nonmoving party must show a compelling reason why the belated motion for jury trial should not be granted. Truesdell v. State Farm Fire Cas. Co., 960 F. Supp. 1511 (N.D.Okla. 1997); Goff v. Owen Healthcare, Inc., 166 F. R. D. 492 (D.Kan. 1996). Defendants VanderVossen make no such showing nor is it likely they could. This case has been scheduled for jury trial ever since it was transferred. All discovery was conducted while the case was on the jury calendar and it would more likely cause prejudice to grant the motion at this late date. Moreover, this is a case which will turn in large measure on motive and credibility, so it is well suited for disposition by a jury. Tavoulareas v. Piro, 93 F. R. D. 11, 15 (D.D.C. 1981); Britt v. Knight Pub. Co., 42 F. R. D. 593, 595 (D.S.C. 1967).
ORDER
For the above stated reasons, the Defendants motion is Denied.