Weaver v. Potter et al
Filing
41
ORDER denying Plaintiff's request for a Jury Trial. Signed by Judge J. Randal Hall on 02/17/2012. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
STANFORD L. WEAVER,
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Plaintiff,
V.
JOHN E. POTTER, Postmaster
General,
Defendant.
CV 110-005
0 RD E R
Presently before the Court is Plaintiff's Request for a Jury
Trial. (Doc. no. 38.) For the reasons set forth below,
Plaintiff's motion is DENIED.
I. BACKGROUND
Plaintiff, proceeding pro se and in forma pauperis, filed the
present lawsuit on January 13, 2010. (Doc. no. 1.) The United
States Magistrate Judge reviewed Plaintiff's Complaint pursuant to
the IFP statute and determined it failed to meet the requirements
of the Federal Rules of Civil Procedure 8 and could not be screened
at that time. Plaintiff was directed to file an amended complaint.
(Doc. no. 5.)
On February 17, 2010, Plaintiff filed his Amended Complaint,
asserting claims
including hostile work environment
and
discrimination under the Civil Rights Act of 1964, 42 U.S.C. §
2000, et seq. (Doc. no. 6.) The Magistrate Judge issued a Report
and Recommendation stating that Plaintiff's claims for hostile work
environment and all claims arising from Plaintiff's reassignment to
a part-time position should be dismissed. (Doc. no. 8.) The
Magistrate Judge, however, found that Plaintiff had arguably stated
claims for race and gender discrimination based on disparate
discipline and disparate treatment in the denial of overtime
opportunities.
(Doc. no. 7.)
Plaintiff did not object to the
Report and Recommendation, and it was adopted by this Court on June
17, 2010.
(Doc. no. 19.)
On June 24, 2010, Defendant filed a motion to dismiss. (Doc.
no. 20.) The Court granted the motion with regard to Plaintiff's
disparate discipline claim, but denied it as to Plaintiff's
overtime claim. Thereafter, on February 14, 2011, Defendant filed
a motion for summary judgment seeking dismissal of Plaintiff's only
remaining claim.
In his motion, Defendant only
(Doc. no. 30.)
provided reasons why Plaintiff was sent home and not allowed to
work overtime on one occasion. Because he failed to articulate
legitimate, nondiscriminatory reasons for denying Plaintiff
overtime on a consistent basis over the course of a calendar
quarter, the Court denied Defendant's summary judgment motion.
(Doc. no. 37.)
On September 9, 2011, Plaintiff filed his "Pre-trial Motions."
(Doc. no. 38.)
In its October 7, 2011 Order, the Court rejected
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Plaintiff's requests that the Court (1) appoint him counsel; (2)
clarify its July 20, 2011 Order; and (3) hold a special hearing to
discuss the case. (Doc. no. 40.) The Court, however, did not
address Plaintiff's request for "a trial by jury if the case is to
proceed to trial."
(See Id.) Accordingly, the Court now denies
Plaintiff's request for a jury trial based on his untimely demand.
111. DISCUSSION
The Seventh Amendment right to a civil jury is not absolute
and may be waived if the request for a jury is not timely. Burns
v. Lawther, 53 F.3d 1237, 1240 (11th Cir. 1995) . Nevertheless,
because the right to a jury trial is fundamental, courts must
indulge every reasonable presumption against waiver.
Id. (citing
Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937)).
The procedure for determining the timeliness of a party's jury
demand is contained in Federal Rule of Civil Procedure 38, which
states that "[a] party waives a jury trial unless its demand is
properly served and filed." Fed. R. Civ. P. 38(d). A party makes
a timely demand for jury trial by: (1) serving the other parties
with a written demand - which may be included in a pleading - 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).
Fed. R. Civ. P. 38(b) (emphasis added) . The meaning of pleading is
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governed by the text of Federal Rule of Civil Procedure 7.' Burns,
53 F.3d at 1241.
In this case, Defendant filed his Amended Answer on January 5,
2011 (doc. no. 27), and Plaintiff did not file his demand for a
jury trial until September 9, 2011 (doc. no. 38) . Therefore,
Plaintiff filed his jury demand over nine (9) months after the last
pleading was served. Accordingly, Plaintiff waived his right to a
jury trial by failing to demand a jury trial within the time limits
set forth in Rule 38(b) (1).
To the extent that Plaintiff's motion requesting a jury trial
is considered a motion under Federal Rule of Civil Procedure 39(b),
the Court declines to order a jury trial. The Eleventh Circuit has
instructed that the general rule governing belated jury requests
under Rule 39(b) is that the trial court "should grant a jury trial
in the absence of strong and compelling reasons to the contrary."
Swofford v. B & W, Inc., 336 F.2d 406, 408 (5th Cir. 1964)
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District courts have broad discretion when considering Rule 39(b)
motions and often freely grant such motions after considering (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
'Federal Rule of Civil Procedure 7 provides that pleadings are: (1) a
complaint; (2) an answer to a complaint; (3) an answer to a counterclaim
designated as a counterclaim; (4) an answer to a crossclaim; (5) a thirdparty complaint; (6) an answer to a third-party complaint; and (7) if the
court orders one, a reply to an answer.
See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir.
1981) (holding Fifth Circuit decisions made on or before September 30, 1981,
are binding precedent in Eleventh Circuit).
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court's schedule or that of the adverse party; (4) the length of
delay in having requested a jury trial; and (5) the reason for the
movant's tardiness in requesting a jury trial. Parrott v. Wilson,
707 F.2d 1262, 1267 (11th Cir. 1983) . When reviewing a district
court's denial of a belated jury request, the Eleventh Circuit
gives considerable weight to the movant's excuse for failing to
make a timely jury request. Id.
Analyzing Plaintiff's motion for a jury trial in terms of
these factors, the Court declines to grant the motion. Neither
Plaintiff nor Defendant has put forth any arguments as to whether
the Court should grant Plaintiff's motion.
In fact, Plaintiff's
motion is mainly a recitation of his settlement discussions with
the Assistant United States Attorney in this case. Moreover,
Defendant fails to respond to or recognize Plaintiff's request for
a jury trial.
The Court can find no evidence suggesting whether (1) a judge
or jury would be the more competent fact-finder in this case, (2) a
jury trial would disrupt the Court's schedule or the parties'
schedules, (3) presenting the case to a judge or jury would unduly
prejudice the Defendant, or (4) a jury trial would cause an
unreasonable delay. The Court simply cannot ignore the complete
lack of explanation as to why Plaintiff failed to timely request a
jury trial. There is no indication that Plaintiff's pro se status
prevented him from learning of the requirement to request a jury
trial.
Because the movant's reason for delay should be given
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considerable weight, this Court will not grant Plaintiff's motion
because the Court has no evidence regarding the reason for
Plaintiff's delay.
111. CONCLUSION
Upon the foregoing, Plaintiff's Request for a Jury Trial (doc.
no. 38) is hereby
DENIED.
ORDER ENTERED
This case will proceed to a bench trial.
at Augusta, Georgia, this
February, 2012.
HONOE J. RANDL HALL
UNITE STATES DISTRICT JUDGE
seT11ER.N DISTRICT OF GEORGIA
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