Winnett v. Saline County Jail et al

Filing 134

ORDER granting 127 128 Motions to Dismiss Waiver of their jury trial. Signed by Magistrate Judge Henry L. Jones, Jr on 5/29/09. (bkp)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION DONALD FELIX WINNETT, ADC #139544 v. SALINE COUNTY JAIL, et al. ORDER This matter is before the Court on plaintiff's motions to dismiss defendants' waiver of their jury trial demand (DE ##127, 128). Defendants have filed a response to plaintiff's motion. On January 25, 2008, defendants filed an answer to plaintiff's complaint which included a jury trial demand (DE #12). On April 14, 2009, defendants then filed a waiver of their jury trial demand (DE #125). Plaintiff, however, filed the motions to dismiss the waiver, stating he objects to the waiver and wants a jury trial. In their response to the motion, defendants state they have no objection to a jury trial, but are willing to try the case before the Court. Fed.R.Civ.P. 38(d) provides that a proper jury demand "may be withdrawn only if the parties consent." In addition, Rule 39(a)(1) provides that when a demand has been made, the trial must be by jury unless "the parties or their attorneys file a stipulation to a nonjury trial...." The Court construes these provisions as requiring consent of all the parties to such a waiver. In this case, since the plaintiff objects, the Court finds that the motions to dismiss the waiver should be granted. Accordingly, IT IS, THEREFORE, ORDERED that plaintiff's motions to dismiss the defendants' waiver of their jury trial demand (DE ##127, 128) are hereby GRANTED. 4:07CV01227HLJ DEFENDANTS PLAINTIFF 1 IT IS SO ORDERED this 29th day of May, 2009. __________________________________ United States Magistrate Judge 2

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