Freeman v. Woolston et al

Filing 229

ORDER Denying Jury Demand by Judge David M. Ebel on 05/21/13. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01756-DME-MJW
MARCUS LELAND FREEMAN,
Plaintiff,
v.
WOOLSTON, Vocational Instructor,
LIKENS, Educational Department,
Defendants.
ORDER DENYING JURY DEMAND
This matter comes before the Court on Plaintiff Marcus Freeman’s “Demand for
Jury Trial Pursuant to Rule 38 and 39.” (Doc. 211.) Defendants do not object to
Freeman’s demand for a jury trial. Nonetheless, the Court DENIES the jury demand as
untimely.
Rule 38(b), Fed. R. Civ. P., provides in pertinent part that, “[o]n any issue triable
of right by a jury, a party may demand a jury trial by . . . serving the other parties with a
written demand . . . no later than 14 days after the last pleading directed to the issue is
served.” “[T]he last pleading directed to the issue” includes a complaint, a third party
complaint, or an answer to a complaint, third-party complaint, counterclaim, or crossclaim. See United States v. Anderson, 584 F.2d 369, 372 & n.4 (10th Cir. 1978) (noting
that serving pleadings listed in Fed. R. Civ. P. 7(a) triggers the time to serve a jury
demand).

In this case, Defendants served their answer to Freeman’s complaint in
December 2011. Freeman did not serve and file his jury demand until April 15, 2013,
well past the fourteen days Rule 38(b) provides. Freeman has, therefore, waived his
right to a jury. See Fed. R. Civ. P. 38(d); see also Jolivet v. Deland, 966 F.2d 573, 57778 (10th Cir. 1992). This matter, therefore, must be tried to the court. See Fed. R. Civ.
P. 39(b).
The Court does have discretion, pursuant to a motion made under Rule 39(b), to
permit a jury trial even though there has not been a proper demand for one. See Dill v.
City of Edmond, 155 F.3d 1193, 1208 (10th Cir. 1998). Even if this Court construed
Freeman’s jury demand to be such a motion, however, the Court would decline to
exercise its discretion to permit a jury trial under the circumstances presented here.
Freeman is an inmate currently incarcerated in Pennsylvania and conducting this case
pro se. Freeman’s custodian, the federal Bureau of Prisons (“BOP”), has indicated, in
the final pretrial order filed in this case, that while the BOP does not object to
transporting Freeman to Colorado for trial, the BOP may not have sufficient economic
resources to do so. Under these circumstances, the Court will not exercise its
discretion to permit a jury trial after Freeman waived his right to one. This denial of a
jury trial is without prejudice to Freeman raising his request again, should an attorney
agree to try the case for Freeman.
For these reasons, then, the Court DENIES Freeman’s jury demand. (Doc. 211.)

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Dated this

21st

day of

May

, 2013.

BY THE COURT:
s/ David M. Ebel
U. S. CIRCUIT COURT JUDGE

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