United States of America v. One Parcel of Property Located at 867 County Road 227, Clanton, Chilton County, Alabama, with all appurtenances and improvements thereon

Filing 66

MEMORANDUM OPINION AND ORDER granting 59 MOTION Jury Trial; Jury Trial set for 5/3/2010 in Montgomery, AL before Hon. Chief Judge Mark E. Fuller; Non-Jury Trial set for 3/8/2010 is STRICKEN; Final Pretrial Conference set for 2/12/2010 is continued to 4/9/2010, in Chambers A-300, before Hon. Chief Judge Mark E. Fuller; The deadline for the completion of discovery is hereby extended from 1/29/2010 to 4/16/2010, as further set out in order. Signed by Hon. Chief Judge Mark E. Fuller on 12/23/2009. (furn: yg, hc, kg)(PTC for 2/12/2010 continued to 4/9/2010; term: Non-Jury Trial for 3/8/2010; set Jury Trial for 5/3/2010)(wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION U N IT E D STATES OF AMERICA, ) ) P la in tif f , ) v. ) ) O N E PARCEL OF PROPERTY LOCATED) A T 867 COUNTY ROAD 227, CLANTON,) C H IL T O N COUNTY, ALABAMA, and ) A ll Appurtenances and Improvements ) T here o n , ) ) D e f e n d a n t. ) ____________________________________ U N IT E D STATES OF AMERICA, P la in tif f , v. E IG H T E E N THOUSAND FOUR H U N D R E D DOLLARS IN UNITED S T A T E S CURRENCY ($18,400), D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-694-MEF

(W O - Do Not Publish)

C A S E NO. 2:07-cv-1104-MEF

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Motion for Jury Trial (Doc. # 59) filed on D e c e m b e r 10, 2009. By this motion, Mara Lynn Williams ("Williams"), the sole remaining c la im a n t in these consolidated civil forfeiture actions, seeks to add a jury demand to this a c tio n pursuant to Federal Rule of Civil Procedure 39(b). The United States of America (" U n it e d States") opposes this motion. For the following reasons, the motion will be G RA N TED .

By these two cases, the United States seeks ownership of $18,400.00 in United States c u rre n c y and a parcel of land located in Chilton County, Alabama. The United States filed th e forfeiture action against the land in July of 2007, and it filed the forfeiture action against th e currency in December of 2007. The United States did not demand a jury. Appearing th ro u g h counsel, Williams and her now deceased husband filed claims contesting the f o rf e itu re , but they failed to include a jury demand in either claim. After his suicide during h is criminal trial, Williams' husband's claim was dismissed. After the cases were

c o n s o lid a te d , the Court set them for non-jury trial in a two-week trial term beginning on M a rc h 8, 2010. W illia m s, who has no legal training, had been growing dissatisfied with her retained c o u n s e l, when she discovered in December of 2009, that the case would not be tried to a jury. This upset Williams, who then fired her attorney and obtained new counsel. Williams' new c o u n s e l promptly filed the instant motion request a jury trial. The United States has indicated its opposition to the motion. The Federal Rules of Civil Procedure acknowledge and preserve the right of trial by ju ry as declared by the Seventh Amendment to the Constitution or as provided by federal s ta tu te . Fed. R. Civ. P. 38(a). However, "[a] party waives a jury trial unless its demand is p ro p e rly served and filed." Fed. R. Civ. P. 38(d). It is undisputed here that neither party p ro p e rly served and filed a timely written jury demand. Federal Rule of Civil Procedure 3 9 ( b ) provides that "[i]ssues on which a jury trial is not properly demanded are to be tried

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by the court. But the court may, on motion, order a jury trial on any issue for which a jury m ig h t have been demanded." Fed. R. Civ. P. 39(b). This Court has broad discretion in d e te rm in in g whether to relieve a party from waiver of jury trial pursuant to Rule 39(b). See, e .g ., Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.), cert. denied, 464 U.S. 936 (1983); S w o ffo r d v. Swofford, 336 F.2d 406, 408-09 (5th Cir. 1964).1 "In this circuit, the general rule g o v e rn in g belated jury requests under Rule 39(b) is that the trial court `should grant a jury tria l in the absence of strong and compelling reasons to the contrary.'" Parrott, 707 F.2d at 1 2 6 7 (citing Swofford, 336 F.2d at 408). In considering the merits of a Rule 39(b) motion, th e court should consider the following factors: (1 ) whether the case involves issues which are best tried to a jury; (2) whether g ra n tin g the motion would result in a disruption of the court's schedule or that o f the adverse party; (3) the degree of prejudice to the adverse party; (4) the le n g th of the delay in having requested a jury trial; and (5) the reason for the m o v a n t's tardiness in requesting a jury trial. P a rr o tt, 707 F.2d at 1267. In balancing these factors, a court should give considerable w e ig h t to the movant's excuse for failing to make a timely jury request. Id. If the failure is d u e to mere inadvertence on the movant's part, then generally a district court may deny the m o tio n without fear of reversal. Id. The Court has carefully considered the arguments of the parties and weighed the re le v a n t factors. It is beyond dispute that the case involves issues well-suited to trial by jury.
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In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (e n banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions h a n d e d down prior to the close of business on September 30, 1981. 3

Furthermore, the granting the motion will not result in any serious disruption of the Court's s c h e d u le . The Court is able to accommodate the request by continuing the consolidated cases to its May 2010 jury term, a continuance of less than two months to a term which has a re la tiv e ly small number of pending cases set in it. From the information provided to the C o u rt, the continuance to the May 2010 jury term would not disrupt the schedule of counsel f o r the United States. Indeed, it appears less likely to conflict with the other trial obligations o f counsel for the United States than the current March 2010 setting. Moreover, to the extent t h a t counsel expresses concerns about discovery which would have been conducted had it b e e n known that the case would be tried before a jury and not the Court, the Court is inclined to continue the discovery deadline along with the setting a new trial date. While the United S ta te s articulates an argument that it would be prejudiced by the delay predicated on some o f the media coverage of this case in September of 2009, the Court is not persuaded that the c o n tin u a n c e necessitated by the jury demand will increase prejudice associated with that m e d i a coverage. In fact, it seems more likely that the passage of more time is likely to re d u c e any attendant prejudice. Additionally, this concern is one that voir dire can easily a d d re s s . The length of delay here is significant, but it is perhaps exaggerated by factors b e yo n d Williams' control which arose out of the length of time the case was stayed pending h e r late husband's criminal trial and the Court's desire to set this case after she had some tim e to recover from the shock of her husband's suicide during his criminal trial.

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Finally, the Court turns to Williams' proffered reason for the delay in requesting a jury tria l. Williams lacks training in the law. She relied on her attorney to advise her with respect to this case, but experienced problems in getting information from him. Perhaps most salient to the issues before this Court, he never told her that her case would not be a jury trial. Based o n her very limited experience with the legal system from her husband's criminal case, W il l i a m s assumed that her claim in this case would be tried to a jury. She has presented s w o rn testimony to this Court indicating that she did not know until December of 2009 that th e case was scheduled for trial without a jury.2 W illia m s' original counsel has little experience handling cases in this Court and as far a s court records disclose he has no experience handling forfeiture cases. Indeed, he d e m o n s tra te d this inexperience by failing to properly file claims under Rule G(5) of the S u p p le m e n ta l Rules for Admiralty or Maritime and Asset Forfeiture Claims. Neither of the o rig in a l claims in this matter were signed by Williams or her husband under penalty of p e rju ry as required by law. This same counsel failed to make a jury demand during the entire tim e he represented Williams; instead the motion for a jury trial was filed on the very day that W illia m s ' new counsel filed his notice of appearance as counsel of record for Williams. Given the other problems with his representation, the Court concludes that the failure to m a k e a jury demand was more than mere inadvertence on the part of Williams' original

In response, the United States merely contends that for a variety of reasons this te s tim o n y is not credible. The Court is not persuaded by these arguments. 5

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counsel, but instead speaks to ineptitude at least in this aspect of the practice of law. Considering all of the factors together and the unique circumstances of this case, the C o u rt finds that there is an absence of strong and compelling reasons to deny the motion for ju ry trial and that the factors weigh in favor of this Court granting the request pursuant to R u le 39(b). Accordingly, it is hereby ORDERED as follows: 1 . The Motion for Jury Trial (Doc. # 59) is GRANTED. 2 . These consolidated cases will be set for trial by jury on the term of court c o m m e n c in g on May 3, 2010, in Montgomery, Alabama. 3 . Accordingly, the non-jury setting of these consolidated cases on March 8, 2010 is S T R IC K E N . 4. The February 12, 2010 pretrial conference is continued to April 9, 2010, in the C h a m b e rs of the United States District Judge Mark E. Fuller, United States Courthouse, One C h u rc h Street, A-300, Montgomery, Alabama. 5 . The deadline for the completion of all discovery is hereby extended from January 2 9 , 2010 to April 16, 2010 6 . The parties shall disclose to each other the identity of ANY person who may be u s e d at trial to present evidence under Rules 701, 702, 703, or 705 of the Federal Rules of E v id e n c e , and provide the reports of retained experts or witnesses whose duties as an e m p lo ye e of the party regularly involved giving expert testimony, required by Rule 26(a)(2) o f the Federal Rules of Civil Procedure, as follows:

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From the plaintiff - January 25, 2010. F ro m the claimant - February 25, 2010. T h e parties shall comply fully with all requirements of Rule 26(a)(2) in regard to d is c lo s u re of expert testimony. 7 . The deadlines set in Section 10, 11, and 12 of the June 12, 2009 Uniform S c h e d u lin g Order are extended from January 27, 2010 to March 24, 2010. 8 . Unless specifically modified above, all other portions of the June 12, 2009 Uniform S c h e d u lin g Order remain unchanged. D O N E this the 23rd day of December, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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