Peoplessouth Bank v. Farmer & Malone, P.A.

Filing 101

OPINION AND ORDER that plaintiff PeoplesSouth Bank's 95 MOTION to Strike is granted as to PeoplesSouth Bank v. Farmer & Malone, civil action no. 1:11cv36-MHT, and this case will proceed nonjury. PeoplesSouth Bank v. North, civil action no. 1:11cv176-MHT, will still proceed with a jury. Signed by Honorable Judge Myron H. Thompson on 6/6/2012. (cc, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

PEOPLESSOUTH BANK, a
Georgia Banking
Corporation,
Plaintiff,
v.
FARMER & MALONE, P.A.,
an Alabama Legal
Professional Association,
Defendant.

PEOPLESSOUTH BANK, a Bank
Chartered in Georgia,
Plaintiff,
v.
CHARLES NORTH, an
Individual,
Defendant.

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CIVIL ACTION NO.
1:11cv36-MHT
(WO)

CIVIL ACTION NO.
1:11cv176-MHT

OPINION AND ORDER
In PeoplesSouth Bank v. Farmer & Malone, civil action
no. 1:11cv36-MHT (“Farmer & Malone case”), plaintiff

PeoplesSouth Bank (“PSB”) is pursuing a claim against
defendant

Farmer

&

Malone

under

the

Alabama

Legal

Services Liability Act, 1975 Ala. Code §§ 6–5–570 to
The Farmer & Malone case has been consolidated

–581.
with

PeoplesSouth

Bank

v.

North,

civil

action

no.

1:11cv176-MHT (“North case”), a related action brought by
PSB against defendant Charles North. Now before the court
is PSB’s motion to strike any jury request as to the
Farmer & Malone case.

That motion will be granted.

The parties agree that Farmer & Malone failed to make
a

timely

jury

demand

under

Federal

Rule

of

Civil

Procedure 38(b) and therefore waived its right to a jury
trial.

Fed. R. Civ. P. 38(d); see also Am. Econ. Ins.

Co. v. Rutledge, 2006 WL 3924786, at *1 (M.D. Ala. Dec.
20, 2006) (Thompson, J.) (finding waiver of jury trial
when party failed to comply with Rule 38).

The only

available avenue for trial by jury is therefore Federal
Rule of Civil Procedure 39(b), which states that, “the
court may, on motion, order a jury trial on any issue for

2

which

a

added.)

jury

might

have

been

demanded.”

(Emphasis

While the court’s docket sheet shows that both

the Farmer & Malone and North cases are subject to jury
trial and while Farmer & Malone opposes PSB’s motion to
strike, no motion or request for jury trial has been
docketed in the Farmer & Malone case, and Farmer & Malone
has twice expressly denied making such a request, once in
its reply to PSB’s motion to strike and again during an
on-the-record telephone conference held on June 5, 2012.
Without such a motion or request, the plain language of
the federal rule precludes this court from forcing a jury
trial on the parties in the Farmer & Malone case.
The North case will still be tried to a jury based on
the timely demand made in North’s original pleadings.

***

For

the

foregoing

reasons,

it

is

ORDERED

that

plaintiff PeoplesSouth Bank’s motion to strike (doc. no.

3

95) is granted as to PeoplesSouth Bank v. Farmer &
Malone, civil action no. 1:11cv36-MHT, and this case will
proceed

nonjury.

PeoplesSouth

Bank

v.

North,

civil

action no. 1:11cv176-MHT, will still proceed with a jury.
DONE, this the 6th day of June, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE