Summary
finding that race discrimination claims filed by multiple defendants are best handled by the court
Summary of this case from Gallardo v. Gulf South Pipeline Co.Opinion
CIVIL ACTION 01-3149 SECTION `T' Mag.2
January 27, 2003
ORDER
Before the Court Plaintiffs' Motion for Jury Trial [Doc. 17], pursuant to Fed.R.Civ.P. Rule 38. After considering the memoranda of the parties, the record, the applicable law and jurisprudence, this Court is ready to rule. Bench trial set to proceed August 11, 2003.
PROCEDURAL BACKGROUND
Plaintiffs filed this action on October 18, 2001, alleging violations of Title VII of the Civil Rights Act of 1964 in connection with their employment with the Defendant. Plaintiffs did not request a trial by jury in their Complaint. Thereafter, Defendants filed an answer to the complaint and likewise did not request a trial by jury.
On April 8, 2002, the Court held a preliminary conference during which this case was set for bench trial on December 9, 2002. Later that day, the Court issued a Scheduling Order which clearly states that the trial was to be "before the District Judge without a jury." On September 13, 2002, the Court granted Plaintiffs' Unopposed Motion to Continue Trial Date. A second preliminary conference took place on October 24, 2002. A second Scheduling Order was produced and issued, on November 8, 2002, setting a bench trial to begin on August 11, 2003. Plaintiffs did not object to the setting of the trial as a bench trial in either of the Scheduling Orders. Further, Plaintiffs never requested a trial by jury in any documents prior to the demand of November 15, 2002.
On November 15, 2002, Plaintiffs filed the instant motion requesting a trial by jury for the first time, therein they cite Rule 68 of the Federal Rules of Civil Procedure, asserting that they are "entitled to a jury trial by right . . . consistent with the letter and spirit of this rule." Plaintiffs assert that it is their right to a jury trial as afforded them by the Seventh Amendment. Defendant makes various arguments and objections. Most of the Defendant's objections are incorporated below.
Plaintiffs' Motion for Trial By Jury, p. 1.
LAW AND ANALYSIS
1. Rule 38
Rule 38(b) of the Federal Rules of Civil Procedure entitles a party to a jury trial on any issue triable by a jury if a demand is served "not later than 10 days after the service of the last pleading directed to such issue." Fredieu v. Rowan Companies, Inc., 738 F.2d 651, 653 (5th Cir. 1984). The "last pleading directed to such issue" has been construed to mean an answer to the complaint or counterclaim. Matter of Texas General Petroleum Corp., 52 F.3d 1330, 1339 (5th Cir. 1995). This rule embodies the right conferred by the seventh amendment. Fed.R.Civ.P. 38(a). However, 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. Fed.R.Civ.P. 38(d). Here, there is no dispute as to whether the requirement of Rule 38(a) has been met. The Plaintiffs filed their complaint on October 18, 2001. In their complaint, the Plaintiffs did not request a trial by jury. Now, almost 12 months after the Defendants filed an answer, the Plaintiffs request a trial by jury. Defendant filed an answer on December 17, 2001; thus, the Plaintiffs' request for a jury trial is untimely.
Despite being untimely, an amendment may give rise to a jury trial if it introduces new issues, see Guajardo v. Estelle, 580 F.2d 748, 753 (5th Cir. 1978); however, the Plaintiffs do not properly seek to amend their original complaint to seek a jury trial, nor do they seek leave to amend their original complaint so that they can plead new issues. The Fifth Circuit has held that an amended or supplemental pleading that merely restates issues previously raised "does not revive the right to demand a jury trial when one had not earlier been demanded." SAS Overseas Consultants and Asia Trading Contracting, Ltd. v Offshore Consultants, USA, Ltd., 1998 WL 661475 (E.D.La. 1998) (citing Fredieu, 738 F.2d at 653). However, a party may request a jury for any new issues raised in an amended or supplemental pleading. Id. "The `new issues' must relate to new issues of fact and not to new theories of recovery." Id. Here, the Plaintiffs do not ask to amend their original complaint; therefore, they do not allege any new issues. Thus, the Plaintiffs have failed to meet the new issue exception to Rule 38.
2. Rule 39
Determining that the Plaintiffs failed to comply with the time requirements of Rule 38 does not end our inquiry. Daniel Int'l Corp. v. Fischbach Moore, Inc., 916 F.2d 1061, 1064 (5th Cir. 1990). 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). It does not indicate that a Court may sua sponte grant a motion for trial by jury if it is so inclined; a motion must be made to the court. This rule 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). This modifies the usual approach to review of abuse of discretion. "When 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." Daniel Int'l Corp., 916 F.2d at 1064 (5th Cir. 1990) (citing Swofford, 336 F.2d at 4090).
The Fifth Circuit Court of Appeals has stated: "[W]e must be mindful that maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care. . . . Thus, courts should indulge every reasonable presumption against waiver." White v. Pride Offshore, Inc., 1998 WL 849316 (E.D.La. 1998) (citing McDonald v. J. Steward, 132 F.3d 225, 229 (5th Cir. 1998)). However, the Fifth Circuit has consistently held that a district court does not abuse its discretion when it refuses to grant a plaintiffs request for jury trial where the failure to make a timely demand was the result of oversight, mistake, or inadvertence on the part of the moving party. Fredieu, 738 F.2d at 654; Bush v. Allstate Ins., Co., 425 F.2d 393, 396 (5th Cir.), cert. denied, 400 U.S. 833 (1970); see Rhodes v. Amarillo Hospital Dist., 654 F.2d 1148, 1154 (5th Cir. 1981); accord Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.), cert. denied, ___ U.S.___ (1983).
To every Rule, however, there must be a purpose, and the purpose behind Rule 39(b) appears to have been to allow a trial court to use its discretion to grant jury trials in unique situations which call for them where, nevertheless, the requisites of Rule 39 have not been met. One option is to adhere to Wright and Miller's evaluation of decisions which have denied Rule 39(b) motions solely because parties have failed to comply with Rule 38:
These decisions seem to place the emphasis in the wrong place. Technical insistence upon imposing a penalty for default by denying a jury trial is not in the spirit of the rules. The rules do not limit the court's discretion in ordering a jury in cases in which there would have been a right to jury trial. The court ought to approach each application under Rule 39(b) with an open mind and an eye to the factual situation in that particular case, rather than with a fixed policy against granting the application or even a preconceived notion that applications of this kind are usually to be denied.
9 C. Wright and A. Miller, Federal Practice and Procedure § 2334 at 115-16 (1971) (footnotes omitted). "This analysis should not be construed as departing from our rule that the movant's `mere inadvertence' in not making a timely demand under Rule 38 provides no justification for invoking Rule 39(b)." Daniel, 916 F.2d at 1066.
In Daniel, the Fifth Circuit adopted the test originally crafted by the Eleventh Circuit establishing the following 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 Int'l Corp., 916 F.2d at 1064 (citing Parrott v Wilson, 707 F.2d 1262, 1267 (11th Cir.), cert. denied, 464 U.S. 936, (1983).
3. Conclusion
As this is the case, this Court is left with a bit of a balancing test in order to determine whether or not to allow Plaintiffs to seek a jury trial at this stage of the proceedings. It is no question here that the Plaintiffs initially waived their right to a jury trial by allowing the Rule 38 peremptive period to expire. Under any interpretation of the rules that this Court examines, the demand for a jury trial is tardy. Furthermore, this Court is perplexed by the form of the pleadings offered by the Plaintiffs. The Plaintiffs do not ask for leave to file an amended complaint; Plaintiffs do not seek to bring any new claims as has been done in previous jurisprudence; Plaintiffs do not ask for consideration under Rule 38 [the pleadings ask for right to jury trial under Rule 68, and the Court can only assume that the Plaintiffs meant Rule 38]; and furthermore, in two supplemental pleadings, filed after the Defendant's opposition to the original demand for jury trial, the Plaintiffs do not even mention Rule 38 or Rule 39. The only argument that the Plaintiffs make is that: 1) the right to a jury trial is a fundamental right and should be jealously guarded, and 2) the Plaintiff's motion conforms to the prerequisites of the federal rule. See Plaintiff's Supplemental Memorandum in Support of the Plaintiff's Motion for Trial by Jury, Doc. 18. In addition, they purport to cite several Louisiana state court cases which have no weight or authority in this Court. Nevertheless, this Court feels that it is required upon us to conduct a further inquiry and use the test that prevails in this Circuit.
Applying the five factors, as articulated in Daniel Int'l Corp., 916 F.2d at 1064, to the instant case compels the conclusion that the Plaintiffs' late jury demand should not be permitted. The Plaintiffs make their request for a jury trial approximately one year after the filing of the answer, and additionally, the race discrimination claims that are made here are best handled by the Court in this situation of multiple Plaintiffs. While the Defendants have not produced overwhelming evidence to establish that granting a jury trial at this stage will affect the Court's schedule, the Court feels that the Defendant would be adversely affected had it not been for the September 12, 2002, request by the Plaintiffs to continue the non-jury trial set, as of then, for December 9, 2002. Notwithstanding this fact, the Defendants have participated in a full fifteen months trial preparation and litigation strategy that would necessarily be affected as a result of the Court granting the Plaintiffs' request. While it is true that the rules exist to protect the interests of the parties, the rules provide a framework for litigation that protect ALL parties. These same rules allow for certain time delays that are followed in litigation every day without incident. This Court, while not conforming to the rigid belief of "the rules are the rules, are the rules, " believes that in this matter, the rules provided the Plaintiffs with ample opportunity to demand a jury trial. The Court has taken the extra step of going through a Rule 39 analysis. Moreover, the Plaintiffs do not assert any transgressions by Counsel that might excuse the want of demand for a jury trial at any now completed stage of the proceedings. After reading the pleadings, the Plaintiffs point to nothing that would excuse their tardy demand of a trial by jury, and the Court can find nothing except 'mere inadvertence' or a change of heart of the Plaintiffs as a reason for the late request. Unlike the facts in other jurisprudence, the Court never befell any error in which a court officer might have listed the trial as a jury trial by mistake, thereby giving parties involved the impression that the matter was set to proceed before a jury. In the Court's documents, the trial has always been a non-jury trial. In the Defendant's minds, the trial has always been a non-jury trial, and in the Plaintiffs' minds, up until a month ago, the trial has always been a non-jury trial. Thus, the Court finds, within its allowable discretion, that it would not be proper to grant the Plaintiffs a jury trial. Plaintiffs' Motion for Jury Trial is DENIED.
See Pinemont Bank v. Belk, 722 F.2d 232 (5th Cir. 1984).
Accordingly,
IT IS ORDERED that the Plaintiffs' Motion for Trial by Jury [Doc. 17] is DENIED.