Opinion
CIVIL ACTION NO: 03-2156 SECTION: "J" (4)
March 19, 2004
MINUTE ENTRY
On February 12, 2004, the plaintiff filed Plaintiff's Motion for Leave to Object/Oppose Defendant's Motion to Dismiss or Alternatively for Summary Judgement for Race and Gender Claims (doc. #14) requesting leave of the Court to file a response to the defendant's Motion to Dismiss. However, on January 20, 2004, the plaintiff filed Plaintiff's Motion to Request Trial by Jury, Plaintiff's Statement of Facts, and Motion of Plaintiff's Submission of: Above named Agency EEOC Counseling Report Submission and Omission of Plaintiffs of Initial Statement of Claim in Reference to the Above Civil Action (doc. #10).
The Court construes the document filed on January 20, 2004 (doc. # 10) as a Response to the defendant's Motion to Dismiss or Alternatively for Summary Judgment. On January 30, 2004, the defendant filed Defendant's Reply Brief, and Tropez filed her Response to Jo Ann Vincent's Reply Brief (Vincent's) Declaration Statement on February 23, 2004. Thereafter, Tropez was allowed to supplement her position papers on March 1, 2004. Therefore, the Court is of the opinion that Tropez has been afforded ample opportunity to present her position to this Court.
Rec. Doc. No. 5.
Rec. Doc. No. 12.
Rec. Doc. No. 16.
Rec. Doc. No. 18, Plaintiff's Motion to Supplement Motion for Leave to Object/Oppose Defendant's Motion to Dismiss or Alternatively for Summary Judgment for Race and Gender Claims (Doc. 14).
Document Number 10 also contained a Request for Jury Trial, which will now be addressed by the Court. The Federal Rules of Civil Procedure provides that a party "may demand a trial by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action . . . not later than 10 days after the service of the last pleading directed to such issue . . ." Fed.R.Civ.P. 38(b)(1). The phrase "last pleading directed to such issue" generally means an answer or reply to a counterclaim. See Matter of Texas General Petroleum Corp., 52 F.3d 1330, 1339 (5th Cir. 1995).
Tropez filed her Complaint in this Court on July 30, 2003. However, she did not request a trial by a jury until January 20, 2004, nearly six months later. The defendant did not file an answer, but rather a Motion to Dismiss contending the Court lacks jurisdiction to entertain certain claims, and alternatively Tropez' fails to state a claim as a matter of law.
Rec. Doc. No. 1.
Therefore, the last pleading directed to any issues that may be triable by a jury was Tropez' Complaint. In light of the fact that Tropez has not amended her Complaint to raise any further issues, she waived her right to a trial by a jury by failing to demand such within 10 after filing her Complaint. See Fed.R.Civ.P. 38(d); see also Mesa Petroleum Co. v. Coniglio, 629 F.2d 1022 (5th Cir. 1980).
Accordingly,
IT IS ORDERED that Plaintiff's Motion for Leave to Object/Oppose Defendant's Motion to Dismiss or Alternatively for Summary Judgement for Race and Gender Claims (doc. #14) is DENIED IT IS FURTHER ORDERED that no further supplemental pleadings directed to the Motion to Dismiss will be allowed in this matter.
IT IS FURTHER ORDERED that Plaintiff's Motion to Request Trial by Jury, Plaintiff's Statement of Facts, and Motion of Plaintiff s Submission of: Above named Agency EEOC Counseling Report Submission and Omission of Plaintiffs of Initial Statement of Claim in Reference to the Above Civil Action (doc. #10) is DENIED to the extent the plaintiff requests a trial by a jury.