Opinion
Civil Action No: SA-04-CA-0557-XR.
November 15, 2005
ORDER
On this date the Court considered Plaintiff's Motion for Jury Trial (docket no. 29) and Defendant's Motion to Strike (docket no. 34).
I. Factual and Procedural Background
According to Plaintiff's Original Petition filed in state court, Plaintiff began working for Defendant in 1985. Plaintiff is diabetic and as a result suffers from vision problems. Plaintiff was terminated on June 22, 2003, with a stated reason of poor performance. Plaintiff claims that this was a pretext to the decision to terminate him because of his disability.
Plaintiff filed suit against Defendant in County Court at Law No. 10 for Bexar County, Texas on May 17, 2004. There is no indication that Plaintiff made a demand for jury trial in the state court. The case was timely removed to this Court by Defendant on June 28, 2004.
On October 20, 2005, Plaintiff filed his motion for jury trial. Plaintiff's counsel states that he did not earlier request a jury because he was attempting to keep expenses to a minimum, Defendant's counsel gave him the impression that this case would settle, and no prejudice would occur to Defendant.
Defendant argues that on numerous occasions Plaintiff, and his counsel, should have been aware that this case was set as a bench trial. The initial and amended scheduling orders reflected that trial was before the Court.
II. Analysis
Fed.R.Civ.P. 38 provides, in part, as follows:
(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, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
(c) Same: Specification of Issues. In the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
(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.
It is uncontested that Plaintiff failed to comply with the time requirements of Rule 38, however, Rule 39(b) states: "Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, 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." Fed.R.Civ.P. 39(b).
Rule 39(b) grants the district court discretion to relieve a party from waiver of a jury trial under Rule 38. Swofford v. B W, Inc., 336 F.2d 406, 408 (5th Cir.), cert. denied, 379 U.S. 962 (1964).
"[W]hen the discretion of the court is invoked under Rule 39(b), the court should grant a jury trial in the absence of strong and compelling reasons to the contrary." Id. at 409. A motion for trial by jury under this rule "should be favorably received unless there are persuasive reasons to deny it." United States v. Unum, 658 F.2d 300, 303 (5th Cir. 1981).
The Fifth Circuit has adopted five factors that district courts should consider in the exercise of discretion under Rule 39(b): (1) whether the case involves issues which are best tried to a jury; (2) whether granting the motion would result in a disruption of the court's schedule or that of an adverse party; (3) the degree of prejudice to the adverse party; (4) the length of the delay in having requested a jury trial; and (5) the reason for the movant's tardiness in requesting a jury trial. Daniel Intern. Corp. v. Fischbach Moore, Inc., 916 F.2d 1061, 1064 (5th Cir. 1990).
Application of these factors to the instant case weighs in favor of granting Plaintiff's Rule 39(b) motion.
First, Plaintiff's causes of action, i.e. discrimination claims are clearly within the province of a jury. These fact-intensive inquiries are usually tried to a jury, and clearly support Plaintiff's Rule 39(b) motion.
Second, this matter is not set for trial until April 17, 2006. Setting this matter for a jury trial at this time would pose no disruption to the Court. Defendant's response fails to establish how its schedule will be disrupted by trying this case to a jury instead of the bench. Granting the Rule 39(b) motion will not result in any disruption of the Court's or Defendant's schedule.
Third, Defendant has not directed this Court to any prejudice it would suffer if this case was tried to a jury. Importantly, the discovery deadline is January 20, 2006 and the trial date is six months away. Plaintiff has not waited until the eve of trial or after the discovery deadline expired to request a jury trial. This case is distinguishable from Equal Employment Opportunity Commission v. El Paso Natural Gas Co., No. EP-83-CA-108, 1985 WL 152, at *1 (W.D. Tex. Jan. 3, 1985). In El Paso Natural Gas, the court denied plaintiff's Rule 39(b) motion because the defendant had filed affidavits demonstrating that it had conducted discovery and prepared its case on the assumption that it would be tried to the bench. Id. Defendant has not presented any such evidence.
Fourth, Plaintiff's seventeen-month delay in requesting a jury trial, while lengthy and not condoned, has not affected the parties preparation of this case. Indeed, although some discovery has been completed, much appears remaining to be completed. Plaintiff's Rule 39(b) motion is "clearly not a delaying tactic brought on the eve of trial." Daniel Int'l Corp., 916 F.2d at 1065.
Finally, as to the reason for the movant's tardiness in requesting a jury trial, that can be only attributable to inadvertence.
Although the length of the delay and the party's rationale for its delay weighs heavily in the analysis, the court must evaluate all the factors relevant to the Rule 39(b) determination. See Daniel Int'l Corp., 916 F.2d at 1066. Importantly, Plaintiff's conduct has caused no harm or prejudice to Defendant. Nothing in the Defendant's pleadings demonstrates how a jury trial in April, 2006 would affect, disrupt, or prejudice its case. This fact weighs heavily in the Court's decision to grant Plaintiff's Rule 39(b) motion.
III. Conclusion
Plaintiff has filed a Rule 39(b) motion requesting a trial by jury. The cumulative balancing of the Daniel International factors favors granting the Rule 39(b) motion. The issues present in this case are best tried to a jury, there is no prejudice to Defendant, discovery is ongoing, and Plaintiff's delay in requesting a jury trial has not affected the parties' preparation for the April 17, 2006 trial. Accordingly, the Court GRANTS Plaintiff's Rule 39(b) Motion for Trial by Jury (docket no. 29) and DENIES Defendant's Motion to Strike (docket no. 34).