Beron v. Alvarez

Filing 64

ORDER denying 61 Plaintiff's Motion for Bench Trial. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 11/2/2011. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NESTOR BERON,
Plaintiff,
vs.

Case No. 8:10-cv-1014-T-33TBM

MIGUEL J. ALVAREZ,
Defendant.
_______________________________/
ORDER
This cause comes before the Court pursuant to Plaintiff’s
Motion for Bench Trial (Doc. # 61), which was filed on October
27, 2011, in this Fair Labor Standards Act case.

For the

reasons that follow, the Court denies the Motion.
I.

Background
Plaintiff

initiated

this

FLSA

action,

on

behalf

of

himself and those similarly situated, on April 28, 2010. (Doc.
# 1).

Plaintiff seeks overtime compensation and minimum wage

payments. Id.

Plaintiff’s complaint includes a jury demand.

Id. at ¶ 32.

Defendant filed his answer and affirmative

defenses on May 28, 2010. (Doc. # 6).

The parties filed a

Case Management Report on September 2, 2010, indicating that
the case should be set for a jury trial. (Doc. # 16).

On

October 4, 2010, this Court entered its Case Management and
Scheduling Order setting this case for a jury trial during the
August 2011, trial term. (Doc. # 17).

The Court entered an

Amended Case Management and Scheduling Order on July 8, 2011,
upon Defendant’s unopposed motion for a continuance, setting
the case for a jury trial during the Court’s November 2011,
trial term. (Doc. # 51).

The parties filed a Joint Pretrial

Statement on October 12, 2011, affirming that this case is set
for a jury trial, and

estimating that the case will take two

days to try. (Doc. # 57 at 5).
This Court held the pretrial conference on October 13,
2011. (Doc. # 62).

The Court’s pretrial order remarks that

the case is set for a November 2011, jury trial and further
states, “[t]he

parties’ Pretrial Statement (Doc. # 57) will

control the course of the trial and may not be amended without
approval from the Court.” (Doc. # 63 at ¶ 2).

On October 27,

2011, Plaintiff filed a Motion for a Bench Trial. (Doc. # 61).
In the Motion, Plaintiff indicates that Defendant opposes the
Motion.
II.

Discussion
The Seventh Amendment right to a jury trial is deeply

ensconced in American jurisprudence and is an “essential
component to our federal judicial system.” FGDI, Inc. v.
Bombadier Capital Rail, Inc., 383 F. Supp. 2d 1350, 1352 (M.D.
Fla. 2005). “The Seventh Amendment preserves the right to
trial by jury in suits in which legal rights are to be

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determined in contrast to those in which equitable rights and
remedies are involved.” Phillips v. Kaplus, 764 F.2d 807, 81112 (11th Cir. 1985)(citing Parsons v. Bedford, 28 U.S. 433,
466 (1830)).

Rule 38(a) of the Federal Rules of Civil

Procedure underscores, “[t]he right of trial by jury . . . is
preserved

to

the

parties

inviolate.”

Rule

38

further

explains, “[o]n any issue triable of right by a jury, a party
may demand a jury trial” and “[a] proper demand may be
withdrawn only if the parties consent.” Rule 38(a), (d),
Fed.R.Civ.P. (emphasis added).
“When a jury trial has been demanded under Rule 38, the
action must be designated on the docket as a jury action. The
trial on all issues so demanded must be by jury unless” the
parties so stipulate or the Court finds that there is no
federal right to a jury trial. Rule 39(a), Fed.R.Civ.P.
FLSA cases brought by individual plaintiffs seeking
damages, such as the present case, are triable as of right by
a jury. EEOC v. Chrysler Corp., 759 F.2d 1523, 1525 (11th Cir.
1985); Marshall v. Hanioti Hotel Corp., 490 F. Supp. 1020,
1023 (N.D. Ga. 1980).

Plaintiff made a demand for a jury

trial in the complaint, and such demand has not been withdrawn
pursuant to Rules 38(d) or 39(a)(1) of the Federal Rules of
Civil Procedure.

Nor could such demand be withdrawn at this

3

juncture because Defendant does not consent to a bench trial.
When a proper jury demand has been made, such demand applies
to all parties for the duration of the case. See, e.g.,
Manrique v. Fagan, Case No. 08-60501, 2009 U.S. Dist LEXIS
61794, at *25 (S.D. Fla. March 16, 2009)(“proper [jury] demand
may be withdrawn only if the parties consent.

This is

necessary to protect the reliance that other parties may be
placing

on

the

demand.

And

Plaintiff

has

clearly

not

consented to Defendant’s withdrawal of his jury demand.
Therefore, Defendant may not do so unilaterally.”); Partee v.
Buch, 28 F.3d 636, 636 (7th Cir. 1994)(“plaintiff . . . was
entitled to rely on the defendant’s jury demand and was not
required to file a separate jury demand on his own.”);
Gargiulo

v.

Delsole,

1985)(“plaintiffs

were,

769
of

F.2d

course,

77,

79

entitled

(2d
to

Cir.

rely

on

defendant’s jury demand to preserve their own right to a jury
trial.”)
Without Defendant’s consent, Plaintiff may not withdraw
his proper jury demand.

Furthermore, the Court determines

that granting Plaintiff’s unilateral request to convert this
matter to a bench trial would unreasonably and unfairly thwart
Defendant’s reasonable expectation that this legal action will
be tried by jury.

Accordingly, the Court denies the Motion.

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The parties are on notice that this case may be called for a
jury trial at any time henceforth.
Accordingly, it is now
ORDERED, ADJUDGED and DECREED:
Plaintiff’s Motion for Bench Trial (Doc. # 61) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 2nd
day of November, 2011.

Copies:
All Counsel and Parties of Record

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