The opinion of the court was delivered by: Leon Jordan United States District Judge
When this civil action was reassigned to this court, the existing scheduling order [doc. 27] reflected that this case would be tried to a jury. Because this fact conflicted with the record, the court required the parties to state their positions concerning whether or not this is a jury or non-jury case [doc. 97]. The parties have timely responded to the court's directive [docs. 98, 99, 100].
Defendants point out that they have not requested a jury nor has plaintiff made a jury demand in any of his submissions to the court. They conclude that under Federal Rule of Civil Procedure 38(d) plaintiff has waived a trial by jury. Plaintiff contends that he relied on the scheduling order that indicates the case is set for a jury trial, and, therefore, he did not make a jury demand in his amended complaint.
Fed. R. Civ. P. 38(d) provides that "[t]he 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." Fed. R. Civ. P. 38(d). "Such a waiver is complete and binding even though it may have been inadvertent and unintended." Cook v. Cleveland State Univ., 13 F.App'x 320, 322 (6th Cir. 2001) (citations omitted). Although plaintiff has waived his right to a jury trial, Rule 39(b) affords relief from that waiver. Fed. R. Civ. P. 39(b); Misco, Inc. v. United States Steel Corp., 784 F.2d 198, 205 (6th Cir. 1986). Fed. R. Civ. 39(b) states in pertinent part: 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.
"'A district court has broad discretion in ruling on a Rule 39(b) motion.' Moreover, the court's discretion should be exercised in favor of granting a jury trial where there are no compelling reasons to the contrary." Moody v. Pepsi-Cola Metro. Bottling Co., Inc., 915 F.2d 201, 207 (6th Cir. 1990) (quoting Kitchen v. Chippewa Valley Sch., 825 F.2d 1004, 1013 (6th Cir. 1987)). "I]n order to invoke the court's discretion under the rule, a party who has waived a jury trial by failing to make a timely demand must file a motion, or some similar manifestation of that party's desire to have a jury trial." 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2334 (2d ed. 1995).
In his response to the court's order, plaintiff states:
Plaintiff could have moved to include the request for a jury trial in an amended Complaint prior to October 20, 2006 or take[n] other necessary action, but did not believe such amended Complaint or action was necessary, due to the Order's clear direction -- Plaintiff would now make such a motion or take other necessary action if the new Scheduling Order denied a jury trial.
Doc. 100 (emphasis added). The court will consider this expression by plaintiff as a motion made pursuant to Rule 39(b). After considering the circumstances in this case, the court finds no strong or compelling reason to deny plaintiff a trial by jury. This case has been reset for trial on January 14, 2008. Because the parties will have ample time to prepare this case for a jury trial, there is no prejudice to the defendants on that basis. Therefore, the court will grant plaintiff's motion and allow him to have a trial by jury.
Accordingly, it is ORDERED that "Plaintiff's Report That This Should be a Jury Case" [doc.100] is considered as a motion brought pursuant to Fed. R. Civ. P. 39(b). That motion is GRANTED. This case will be set for a JURY TRIAL.
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