Opinion
Case No. 01 C 3074.
June 12, 2003.
ORDER
On April 6, 2001, Dominic Ward filed his pro se complaint alleging employment discrimination against Acting Secretary Lawrence J. Delaney and the Department of the Air Force. In paragraph 15 of his complaint, Ward affirmatively stated, "The plaintiff does not demand the case to be tried by a jury." Along with his initial complaint, Ward also filed a motion for appointment of counsel. The court appointed counsel for Ward on October 25, 2001. On December 13, 2001, Ward, now represented by court-appointed counsel, filed his first amended complaint along with a jury demand. On January 18, 2002, Ward filed a second amended complaint repeating the jury demand. In their November 11, 2002 answer to the second amended complaint, defendants alleged for the first time that Ward had waived his right to a jury trial by not demanding it in his initial pro se complaint. Ward thereafter filed the instant motion for leave to request a jury trial in which he asks the Court to exercise its discretion under Federal Rule of Civil Procedure 39(b). For the reasons explained below, plaintiff's motion is granted.
Analysis
Federal Rule of Civil Procedure 38 requires that a party must "demand a trial by jury of any issue triable of right by a jury . . . 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[.]" Fed.R.Civ.P. 38(b). "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." Id. at 38(d). Even after such a waiver, however, "the court in its discretion upon motion may order a trial by jury of any or all issues." Id. at 39(b).
Although passage of the deadline in Rule 38(b) necessitates a "presumption [that] is against rather than in favor of a jury trial," the court may thereafter "require a litigant who asks belatedly for a jury trial to offer a reason for not meeting the deadline[.]" Members v. Paige, 140 F.3d 699, 703 (7th Cir. 1998). If a reason has been provided, district courts should "approach each application under Rule 39(b) with an open mind and an eye to the factual situation of that particular case, rather than with a fixed policy." Id. In reaching its decision, the court must consider and balance five factors: (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. Advertising to Women, Inc. v. Gianni Versace S.p.A., No. 98 C 1553, 1999 WL 717906, at *3 (N.D. Ill. Aug. 9, 1999) (citations omitted).
The court concludes that the balance of factors favors granting plaintiff's motion. The issues presented in this case are such that a jury trial would be better suited than a bench trial to determine issues of fact and liability. Cf. Wilkinson v. Dixonweb Printing Co., No. 00 C 50405, 2002 WL 1160941, *1 (N.D. Ill. May 30, 2002) (complaint alleging employment discrimination is more appropriate for a jury trial than bench trial). In addition, granting a jury trial at this stage of litigation will not unduly disrupt the court's schedule or prejudice defendants. The parties are still engaged in discovery and the court has yet to set a trial date. Defendants proffer no explanation as to how they will suffer prejudice if a belated jury demand is granted.
Although plaintiff's formal motion under Rule 39(b) was filed almost nineteen months after the initial complaint, plaintiff first made a demand for a jury when he filed his first amended complaint, less than eight months after Rule 38(b) deadline passed. The delay is not unreasonable when considering that the initial demand was made less than two months after counsel was appointed. Plaintiff filed his Rule 39(b) motion as soon as defendants objected to his jury demand. Ward explains that his failure to request a jury trial within the appropriate time period was due to his unfamiliarity with the legal system when he filed his initial pro se complaint. Indeed, the court found it appropriate to grant Ward's request for appointed counsel in this matter precisely for this reason. Therefore, in addition to the other factors, Ward's lack of legal assistance at the time he failed to properly demand a jury trial under Rule 38(b) convinces this court to exercise its discretion under Rule 39(b).
Therefore, for all the reasons stated above, plaintiff's motion is granted.