Evanston Insurance Company v. Mellors et al

Filing 108

ORDER denying 105 Motion to allow untimely jury demand. Signed by Magistrate Judge G. R. Smith on 12/30/15. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

EVANSTON INSURANCE CO.,
Plaintiff,
Case No. CV413-136

V.

WILLIAM MELLORS et al.,
Defendants.

[111 I)

"It

In this insurance coverage-based declaratory judgment action,
defendants Joey and Sharon Herren move for leave "to allow an
untimely jury demand." Doc. 105. Plaintiff Evanston Insurance Co.
opposes, arguing that (1) the Herrens waived their right to a jury trial,
and (2) nothing justifies permitting an untimely demand. Doc. 106.
I.
Evanston filed its Complaint on June 7, 2013 seeking a declaration
that it owes no defense to claims made against defendant William
Mellors in a state court action. Doc. 1. The Herrens answered on August
8 1 2013 (doc. 14), and defendant Curtis Huffman answered on August 16,

2013. Doc. 15. Neither answer, nor Evanston's Complaint, demanded a
jury trial.
The parties' March 14, 2014 status report contemplated a two-day
bench trial. Doc. 54 at 9. Six months later, the Court sua sponte raised
jurisdictional issues and required Evanston to amend its Complaint.
Doc. 66. Plaintiff complied on September 24, 2014. Doc. 67. The
Herrens again answered and again made no jury demand. Doc. 68.
Huffman (doe. 69) and Mellors (doe. 75) also answered the Amended
Complaint and likewise demanded no jury. Since then, and throughout
discovery (which concluded on July 7, 2014, doe. 55), no party has filed a
jury demand.
IL ANALYSIS
Under Fed. R. Civ. P. 38(b), "[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 -- which may be included in a pleading -- no later
than 14 days after the last pleading directed to the issue is served." "A
party waives a jury trial unless its demand is properly served and filed."
Fed. R. Civ. P. 38(d).

2

The Herrens unquestionably waived their right to a jury trial' by
never demanding one within 14 days "after the last pleading directed to
the issue [was] served." Fed. R. Civ. P. 38(b), (d). Whether that date is
measured from the last filed answer to the original Complaint or the
Amended Complaint, it passed long before the Herrens filed the present
motion.'
Nevertheless, courts can grant untimely requests for jury trials.

See Parrot v. Wilson, 707 F.2d 1262, 1267 (11th Cir. 1983). Whether to
do so requires considering:
(1) [W]hether 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.

1

Neither party contends that Evanston's coverage claim is not an issue "triable .
by a jury."
2

Evanston argues that the Amended Complaint did not extend the time to make a
jury demand because it raised no new issues. Doc. 106 at 4. Although true, see Mega
Life and Health Ins. Co. v. Pieniozek, 585 F.3d 1399, 1404 (11th Cir. 2009)
("Amendments [to pleadings] not introducing new issues do not renew a party's right
to demand a jury trial."), the Herrens came nowhere close to making a timely
demand even if it did.
3

SynovuS Trust Co., N.A. v. Honda Motor Co.,

223 F.R.D. 699, 701 (M.D.

Ga. 2004) (quoting Parrot, 707 F.2d at 1267).
A majority of factors weigh in favor of upholding the Herren's
waiver. First, Evanston seeks only equitable relief (which juries cannot
grant) and presents claims that raise only legal issues (which courts
typically decide).' See doc. 67. Hence, the first Parrot factor supports
waiver.
Second, granting the Herrens' motion would, if this case makes it
to trial, require jury selection, while a bench trial would not.

Synovus

Trust Co., 223 F.R.D. at 701 (second factor -- disruption of court or
adverse party schedules). To the extent that increases the length of trial,

"Although the normal practice . . . is to balance all of the factors enumerated above,
courts give considerable weight to the movant's excuse for failing to make a
timely jury request. . . . [M]ere inadvertence on the movant's part . . . [warrants]
refusal to grant" a motion for an untimely jury demand. Parrot, 707 F.2d at 1267.
The crux of this case involves contract construction (whether Mellors qualified as
an insured under Evanston's policy turns on interpretation of provisions in that
policy). And, "[t]he construction of a contract is a question of law for the courts
as is the existence or nonexistence of an ambiguity in a contract.' Au ion Systems, Inc.
v. Thompson, 293 Ga. App. 60, 62-63, 666 S.E.2d 464 (2008)." Kwok v. Delta Air
Lines Inc., 994 F. Supp. 2d 1290, 1293 (N.D. Ga.) affd, 578 F. Appx 898 (11th Cir.
2014). Juries, by contrast, specialize in fact finding, not deciding legal issues. See
Bonds v. Lukima, 2015 WL 3505643 at *1 (N.D. Ala. June 3, 2015) (factual
determinations "are best tried by a jury, rather than by the court").
The Herrens offer only one conclusory statement to the contrary. See doe. 105-1 at
3 ("This particular case is a case which would normally be tried before a jury.").
4

it could disrupt Evanston's schedule, though only slightly (jury selection
rarely takes all that long). Nevertheless, it would not disrupt the Court
or Evanston's schedules to a degree that strongly supports denying the
Herrens' motion.
Still, there is enough third Parrot factor prejudice to Evanston to
support ruling against the Herrens here. Synovus Trust Co., 223 F.R.D.
at 701. This case has proceeded all the way through discovery and
survived summary judgment.' Evanston's strategic approach to this
litigation that entire time assumed a bench trial. Flipping the script at
this late date would require it to try and reorient its past actions to
better fit a different fact finder (a jury). That's asking too much.
Finally, the Herrens offer no real excuse for their delay in seeking a
jury trial. Id. (fifth Parrot factor -- reason for movant's tardiness). They
claim confusion about who would try this case because of the March 2014
joint status report, but even if that's true, it does nothing to explain why
they waited until November 2015 -- after discovery concluded and the
Court ruled on summary judgment -- to ask for a jury. They also claim
6

That alone supports denying the Herrens' motion. Synovus Trust Co., 223 F.R.D.
at 701 (fourth Parrot factor -- length of delay). The last pleading in this case was
filed over a year ago and the joint status report the Herrens point to as the genesis of
their jury vs. bench trial confusion came in March 2014. See doe. 54. All that time
passed, yet the Herrens never sought leave to add a jury demand until now.
5

that "the parties have proceeded on the assumption that the case would
be tried before a jury," doe. 105-1 at 3, but Evanston certainly disagrees.
Doc. 106 ("[T]he parties proceeded on the assumption that the case
would not be tried before a jury.") (emphasis added). Absent more, the
lack of excuse alone suffices to deny the Herrens' motion.

Parrot, 707

F.2d at 1267.
The Herrens' motion for leave to file an untimely jury demand (doe.
105) therefore is DENIED.
SO ORDERED, this 30th day of December, 2015.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

on