Chung v. El Paso School District #11

Filing 42

ORDER by Magistrate Judge Kristen L. Mix on 1/13/15. Motion to Grant Plaintiff's Jury Demand [#10] is GRANTED. IT IS FURTHER ORDERED that the five-day Bench Trial set for August 10-14, 2015 is VACATED. Five Day Jury Trial set for 8/10/2015 9:00 AM in Courtroom A401 before Magistrate Judge Kristen L. Mix. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01520-KLM
JULIA CHUNG,
Plaintiff,
v.
EL PASO SCHOOL DISTRICT #11,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Grant Plaintiff’s Jury
Demand [#10] (the “Motion”). Defendant filed a Response [#13], Plaintiff filed a Reply
[#14], and the Court permitted Defendant to file a short Surreply [#16-1]. See Minute Order
[#18].
Plaintiff initiated this case on May 30, 2014, with the filing of the Complaint [#1].1
The Complaint did not contain a jury demand. Along with the Complaint, however, Plaintiff
completed and submitted a Civil Cover Sheet [#1-1] on which she checked a box indicating
that she was making a jury demand. On July 31, 2014, Defendant filed an Answer [#5].

1

Plaintiff proceeds in this matter as a pro se litigant. The Court must construe the filings
of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant’s
advocate, nor should the Court “supply additional factual allegations to round out [the pro se
litigant’s] complaint or construct a legal theory on [her] behalf.” Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, all pro se litigants must
follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994).

-1-

Plaintiff did not timely file a separate document containing a jury demand.

At the

Scheduling Conference held on September 11, 2014, the parties and the Court discussed
the issue of Plaintiff’s untimely request for a jury, and the Court allowed Plaintiff to file a
Motion [#10] for a jury trial.
Federal Rule of Civil Procedure 38(b) states: “On any issue triable by a jury, a party
may demand a jury trial by: (1) serving the other parties with a written demand . . . no later
than 14 days after the last pleading directed to the issue is served; and (2) filing the
demand in accordance with Rule 5(d).” Here, the parties agree that Plaintiff did not comply
with Rule 38(b). Motion [#10] at 1; Response [#13] at 3. Under Rule 38(d), “[a] party
waives a jury trial unless its demand is properly served and filed.”
However, Rule 39(b) states: “Issues on which a jury trial is not properly demanded
are to be tried by the court. But the court may, on motion, order a jury trial on any issue
for which a jury might have been demanded.” Absent “strong and compelling reasons to
the contrary,” the Court should exercise its discretion to grant motions for jury trial under
Rule 39(b). West Ridge Grp., L.L.C. v. First Trust Co. of Onaga, No. 07-cv-01587-WYDBNB, 2008 WL 5156437, at *2 (D. Colo. Dec. 9, 2008) (citing Green Constr. Co. v. Kansas
Power & Light Co., 1 F.3d 1005, 1011 (10th Cir. 1993); Nissan Motor Corp. in USA v.
Burciaga, 982 F.2d 408, 409 (10th Cir. 1992); AMF Tuboscope, Inc. v. Cunningham, 352
F.2d 150, 155 (10th Cir. 1965)). However, a court acts within its discretion to deny a Rule
39(b) motion “when the failure to make a timely jury demand results from nothing more than
the mere inadvertence of the moving party.” Dill v. City of Edmond, 155 F.3d 1193, 1208
(10th Cir. 1998) (internal quotations and citations omitted).
Some courts use a five-factor test to determine whether an untimely jury demand
-2-

should be permitted under Rule 39(b): “(1) whether the case involves issues which are best
tried to a jury; (2) whether granting the motion would result in a disruption of the court's
schedule or that of the adverse party; (3) the degree of prejudice to the adverse party; (4)
the length of the delay in having requested a jury trial; and (5) the reason for the movant's
tardiness in requesting a jury trial.” West Ridge Grp., L.L.C., 2008 WL 5156437, at *4
(citing Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir. 1983); see Daniel Int'l Corp. v.
Fischbach & Moore, Inc., 916 F.2d 1061, 1064 (5th Cir. 1990)).
With respect to the first factor, whether the case involves issues which are best tried
to a jury, Plaintiff’s employment discrimination claims under Title VII are claims that are
often tried to a jury. See, e.g., Rodriguez v. Wet Ink, LLC, No. 08-cv-00857-MSK-CBS,
2014 WL 287339, at *1 (D. Colo. Jan. 27, 2014). Moreover, in light of the shifting burden
of proof in employment discrimination cases and the well-recognized principle of American
jurisprudence that it is the “jury’s exclusive province to assess the credibility of the
witnesses and determine the weight to be given their testimony,” trial to a jury may be best
here. See, e.g., Zisumbo v. McCleodUSA Telecomms. Servs., Inc., 154 F. App’x 715, 723
(10th Cir. 2005). This factor weighs in favor of allowing the late jury demand.
With respect to the second factor, whether granting the motion would result in a
disruption of the court's schedule or that of the adverse party, Defendant has identified no
disruption to its schedule, and there is no disruption in the Court’s schedule as the Court
can simply convert the August bench trial setting to a jury trial setting. This factor weighs
in favor of allowing the late jury demand.
With respect to the third factor, the degree of prejudice to the adverse party,
Defendant has identified none other than the normal requirements of any jury trial. See
-3-

Response [#13] at 7. The Court also notes that Plaintiff completed and submitted a Civil
Cover Sheet [#1-1] on which she checked a box indicating that she was making a jury
demand. This document has been on the electronic docket since the inception of the case.
Thus, although Plaintiff did not follow the correct procedure for requesting a jury trial,
Defendant should have been aware since entering an appearance in this matter that
Plaintiff wanted a jury trial. This factor weighs in favor of allowing the late jury demand.
With respect to the fourth factor, the length of the delay in having requested a jury
trial, Plaintiff filed the Motion immediately after the Scheduling Conference, as directed by
the undersigned at that hearing. Courtroom Minutes [#8]. The Scheduling Conference was
held approximately one month after Plaintiff’s deadline to serve a jury demand under the
Federal Rules of Civil Procedure. Thus, the delay in the request was minor. This factor
weighs in favor of allowing the late jury demand.
With respect to the fifth factor, the reason for the movant's tardiness in requesting
a jury trial, Plaintiff acknowledges that her tardiness is based on a simple oversight. Motion
[#10] at 1; Response [#13] at 7. At least when parties are represented by counsel, mere
inadvertence is not a sufficient reason for failing to timely request a jury trial. Dill, 155 F.3d
at 1208. However, the Tenth Circuit has repeatedly afforded leniency to pro se litigants
who inadvertently violate procedural or substantive norms. See, e.g., Cohen v. Longshore,
621 F.3d 1311, 1314 (10th Cir. 2010) (holding pro se litigant’s inadvertent failure to attach
exhibits to complaint insufficient to warrant denial of motion to amend and dismissal of
complaint); Johnson v. Johnson, 466 F.3d 1213, 1216 (10th Cir. 2006) (allowing pro se
plaintiff who had raised constitutional claim but inadvertently sued wrong parties leave to
amend complaint to name appropriate parties). This factor, therefore, does not weigh
-4-

either in favor of or against allowing the late jury demand.
Weighing the relevant factors in conjunction with Tenth Circuit guidance regarding
the Court’s discretion on this issue, the Court finds that Plaintiff’s untimely request for a jury
trial should be permitted. Accordingly,
IT IS HEREBY ORDERED that the Motion [#10] is GRANTED.
IT IS FURTHER ORDERED that the five-day Bench Trial set for August 10-14, 2015
is VACATED.
IT IS FURTHER ORDERED that a five-day Jury Trial is SET for August 10-14, 2015
at 9:00 a.m.

Dated: January 13, 2015

-5-