Kirby v. Roth et al

Filing 61

ORDER denying 42 Motion for Jury Trial. Signed by Honorable James R. Marschewski on December 21, 2009. (lw)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION

DERROL DEE KIRBY, III v. Civil No. 06-2168

PLAINTIFF

JOHN ROTH, Ex-Chief of Police, Barling, Arkansas Police Department; LARRY MERCHANT, next in charge under Police Chief, Barling Police Department; CITY OF BARLING; KEVIN DOUGAN, Barling Police Department Patrolman; JOHN BARBOR, Barling Police Department Patrolman ORDER

DEFENDANTS

Now before the Court is the Motion for a Jury Trial (Doc. 42) filed by Plaintiff on October 20, 2009. Plaintiff's case was transferred to this District on September 21, 2006. (Doc. 5). Defendants answered the complaint on October 18, 2007. (Doc. 14). Federal Rule of Civil Procedure 38(b) states that: [A]ny party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue ...

Plaintiff's demand for a Jury Trial is clearly untimely under the Federal Rules of Civil Procedure, as such "the failure of a party to serve and file a demand" as required by the rule "constitutes a waiver by the party of a trial by jury." Fed. R. Civ. Proc. 38 (d). Accordingly, Plaintiff's Motion for a Jury Trial (Doc. 42) is DENIED as untimely. IT IS SO ORDERED this 21st day of December 2009.

/s / J. Marschewski
HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE

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