Epstein v. Epstein et al

Filing 301

MEMORANDUM Opinion and Order: Signed by the Honorable Thomas M. Durkin on 7/26/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BARRY EPSTEIN,

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PLAINTIFF,
v.
PAULA EPSTEIN,
DEFENDANT.

No. 14 C 8431
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
Plaintiff seeks the recusal of this Court and Magistrate Judge Finnegan on
the basis of bias against him and in favor of his former spouse, the defendant in this
case. 1 He moves under two statutes: 28 U.S.C. § 144, which requires that a new
judge be assigned if a party “files a timely and sufficient affidavit that the judge . . .
has a personal bias against him or in favor of any adverse party,” and 28 U.S.C.
§ 455, which requires that judges disqualify themselves when their “impartiality
might reasonably be questioned” or when they have “a personal bias or prejudice
Courts have held that the proper procedure for removing a magistrate judge is
through a motion for recusal first presented to the challenged magistrate judge. See,
e.g., Clay v. Brown, Hopkins & Stambaugh, 892 F. Supp. 11, 13 (D.D.C. 1995) (citing
authority) (“Fundamental principles of due process require that the judge being accused
of bias be given an opportunity to respond.”). Nevertheless, district court judges have
ruled on combined motions to disqualify themselves and the magistrate judge under
circumstances similar to those confronting this Court, see, e.g., Bowers v. Gaunt, 2009
WL 1241187, at *1 (S.D. Ind. May 4, 2009); Lindell v. Casperson, 2004 WL 3053632, at
* 1 (E.D. Wisc. Dec. 27, 2004); see also Marozsan v. United States, 90 F.3d 1284, 1290
(7th Cir. 1996) (affirming the substantive correctness of a decision by the district court
judge who denied a party’s motion to recuse the magistrate judge, but noting that
parties may only seek review of a request for recusal by moving for a writ of mandamus
at the time the request is denied). In the interest of expediency, and because Judge
Finnegan’s role in this case is likely now over in any event, this decision will address
the allegations against both Judge Finnegan and this Court.
1

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concerning a party.” While a federal judge has a duty not to sit where disqualified
for bias, he has “a duty to sit where not disqualified which is equally as strong.”
Laird v. Tatum, 409 U.S. 824, 837 (1972) (emphasis in original); see also In re
United States, 572 F.3d 301, 308 (7th Cir. 2009) (“[N]eedless recusals exact a
significant toll; judges therefore should exercise care in determining whether
recusal is necessary, especially when proceedings already are underway.”). For the
reasons set forth below, the plaintiff’s recusal motion is denied.
Discussion
Recusal under section 144 is mandatory once a party submits a timely and
sufficient affidavit and his counsel presents a certificate stating that the affidavit is
made in good faith. See United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993)
(citation omitted); 28 U.S.C. § 144. To be timely, a section 144 affidavit “must be
filed as soon as the basis for disqualification is known.” Carter v. Meyers, 295 Fed.
App’x 836, 837 (7th Cir. 2008) (citing Tezak v. United States, 256 F.3d 703, 717 n. 5
(7th Cir. 2001)). Moreover, the statutory requirement that counsel certify that the
affidavit is filed in good-faith is “enforced strictly,” United States v. Betts-Gaston,
860 F.3d 525, 537 (7th Cir. 2017), such that “[f]ailure to submit counsel’s certificate
of good faith alone is grounds for denying [a recusal] motion,” United States v.
Robinson, 2002 WL 31426182, at * 3 (N.D. Ill. Oct. 28, 2002). In passing on the legal
sufficiency of the affidavit, the court must assume the truth of its factual assertions,
provided they are “sufficiently definite and particular to convince a reasonable

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person that bias exists; simple conclusions, opinions, or rumors are insufficient.”
Sykes, 7 F.3d at 1339.
The defendant argues that the recusal motion is both untimely and
procedurally defective. R. 275 at 2. She points out that the timeline of grievances set
forth in the plaintiff’s affidavit establishes that as early as January or February of
2017, the plaintiff became concerned that Judge Finnegan and this Court may have
been biased against him and in favor of the defendant. Giving the plaintiff the
benefit of the doubt that the cumulative effect of the courts’ conduct over several
months is what gives rise to this motion, as opposed to any single incident on any
date in particular, the Court will not penalize the plaintiff for the timing of his
filing. The defendant also correctly notes that plaintiff’s counsel did not file a
certificate of good faith in connection with his affidavit. While the Court would be
justified in denying the recusal motion on that basis, see Betts-Gaston, 860 F.3d at
537, the court will assume, arguendo, that the affidavit was filed in good faith, and
will rely on the legal memorandum filed by counsel to reach the merits of the
motion. See Marino v. United States, 1999 WL 39008, at * 5-6 (N.D. Ill. Jan. 15,
1999) (assuming for purposes of analysis that the “strict procedural requirements of
§ 144” were met).
As to the merits, because the standard of “personal bias” bears the same
meaning under both sections 144 and 455, see id. at *6 (citing authority), the Court
will simultaneously analyze the purported bias under both statutes. The relevant
question for purposes of disqualification is whether “the judge’s impartiality might

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reasonably be questioned by a well-informed, thoughtful observer rather than [by] a
hypersensitive or unduly suspicious person.” O’Regan v. Arbitration Forums, Inc.,
246 F.3d 975, 988 (7th Cir. 2001) (internal quotation marks and citation omitted).
The standard is an objective one: “That an unreasonable person, focusing only on
one aspect of the story, might perceive a risk of bias is irrelevant . . . [A] reasonable
person is able to appreciate the significance of the facts in light of relevant legal
standards and judicial practice and can discern whether any appearance of
impropriety is merely an illusion.” In re Sherwin-Williams Co., 607 F.3d 474, 477-78
(7th Cir. 2010); see also Matter of Mason, 916 F.2d 384, 386 (7th Cir. 1990) (“An
objective standard is essential when the question is how things appear to the wellinformed, thoughtful observer rather than to a hypersensitive or unduly suspicious
person. Because some people see goblins behind every tree, a subjective approach
would approximate automatic disqualification”).
A.

Rulings by the Court and Judge Finnegan
The plaintiff’s affidavit, in large part, tracks the progress of the docket in this

matter, summarizing rulings made by Judge Finnegan and this Court regarding
scheduling, discovery, and the protected or privileged status of various information
relevant to the plaintiff’s claims. 2 R. 268-1 at 1-3. The plaintiff prefaces this
chronology with his conclusion that “both judges have consistently ruled against me
and blocked my progress at every turn.” Id. ¶ 2. It is well established that “rulings
The plaintiff also disputes the propriety of the Court’s review of the facts
pertaining to whether the defendant intentionally obstructed his ability to fund his
prosecution of this case. R. 268-1 ¶¶ 6, 30. The Court stands by its exhaustive review of
the records relevant to that ruling. See R. 258 (Tr. Oral Ruling July 6, 2017) at 3-9.
2

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by the judge almost never constitute a valid basis for a bias or partiality motion.”
Szach v. Village of Lindenhurst, 2015 WL 3964237, at *4 (N.D. Ill. June 25, 2015)
(internal quotation marks omitted) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). Indeed, they will only do so “if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.” Liteky, 510 U.S. at
555.
No such favoritism or antagonism can be gleaned from the rulings in this
case. Even the selected docket entries on the plaintiff’s timeline show multiple
orders favorable to the plaintiff’s litigation position. See R. 268-1 ¶¶ 2a, 2h
(referring to R. 69 and R. 154, granting the plaintiff’s motions to seal), id. ¶ 2f
(referring to R. 114, granting the plaintiff’s motion to extend fact discovery), id. ¶ 2j
(referring to R. 183 and R. 196, effectively granting all substantive aspects of the
plaintiff’s motion to compel a forensic review of the defendant’s laptop computer),
id. ¶ 2k (referring to R. 198, granting the plaintiff additional time to respond to the
defendant’s motion to strike his jury demand). A more complete review of the docket
reveals a number of additional rulings benefitting the plaintiff. See, e.g., R. 98
(extending discovery deadlines), R. 139 (continuing the trial date); R. 156 and
R. 187 (extending expert discovery deadlines).
Moreover, bias is not simply a matter of counting rulings against you and
rulings in your favor. Indeed, half of the litigants before the Court are likely
disappointed by its rulings, since, for the most part, the Court can only decide an
issue in favor one side. To the extent the plaintiff disputes the correctness of certain

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rulings, he may raise his concerns on appeal, but recusal is not an appropriate
remedy. See In re City of Milwaukee, 788 F.3d 717, 722 (7th Cir. 2015) (“Despite our
best efforts, federal judges sometime make mistakes or see factual or legal issues
differently. Such ordinary errors or disagreements provided a basis for appeal, but
not recusal.”). Still, to clarify the courts’ position, the following responses to the
plaintiff’s affidavit are warranted.
1.

Scheduling

The plaintiff expresses frustration with the pace of discovery and the trial
date set in this case, claiming he needed more time to adequately marshal evidence
given what he perceives to be the complexity of his claims. See R. 168-1 ¶¶ 2b, 2e,
2l, 2p, 6-8. While the Court understands that the plaintiff carries the burden of
proving his claims, it is likewise true that he holds the proverbial reins in the
litigation, deciding which claims to prosecute in the first place. Moreover, where the
defendant carries the burden on her affirmative defenses, as she does here, the
discovery and trial schedules impact preparation for both sides, and so tend to be
relatively neutral in their effect. It is therefore difficult for the plaintiff to claim that
the schedule was biased against him and in favor of the defendant.
The Court notes now, as it has previously, that discovery in this case was
open for more than five months, which is typical of a case of this size and
complexity. See R. 158 (Hrg. Tr. July 6, 2017) at 4. In order to manage its docket of
more than 350 cases, this Court sets trial dates, and tries whenever possible to keep
them. Doing so allows for the orderly administration of the Court’s calendar and, at

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times, encourages settlement. The trial date in this case has been extended twice
and discovery deadlines have been extended accordingly. While it is clear the
plaintiff desires even more time, the Court is required to balance that desire with
the defendant’s equal right to have the claims against her expeditiously
adjudicated. The scheduling in this case does not reflect bias, but practicality and
consideration of interests on both sides.
2.

Scope of Discovery

The plaintiff also argues bias in the courts’ discovery rulings. See R. 268-1
¶¶ 3, 19, 20, 24. Specifically, the plaintiff seems to believe that the content of the
allegedly intercepted emails and the defendant’s motivation in intercepting them
are irrelevant, and should therefore have been held beyond the scope of discovery.
See id. ¶ 3 (characterizing the courts’ rulings as “allowing the discovery of
prejudicial, irrelevant information by the Defendant”). The plaintiff is incorrect. As
he is aware, Judge Posner indicated in his concurrence to the decision on the
plaintiff’s appeal that the content of the emails and the defendant’s motivation in
intercepting them could create a legal defense to the plaintiff’s claims. Judge Posner
wrote:
I would vote to interpret the Act as being inapplicable
to—and therefore failing to create a remedy for—wiretaps
intended, and reasonably likely, to obtain evidence of
crime, as in this case, in which the plaintiff invoked the
Act in an effort to hide evidence of his adultery from his
wife.
Epstein v. Epstein, 843 F.3d 1147, 1153 (7th Cir. 2017). Even without what the
parties have dubbed “the Posner defense,” the subject-matter of the emails would

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still be relevant to the case, and thus discoverable, in light of various allegations set
forth in the operative complaint. See, e.g., R. 178 ¶¶ 22, 28, 34, 49, 72-73 (alleging
that the plaintiff sought to use these emails as leverage in divorce proceedings); id.
¶¶ 35, 41-42, 60-62, 65-68 (alleging, as a basis for damages, that the defendant’s
allegations of infidelity were “extremely humiliating” to the plaintiff and caused
him “severe mental anguish”). Any perception of bias by the plaintiff in the
discovery process reflects an unreasonable, one-sided view of what matters in this
case. See Sherwin-Williams, 607 F.3d at 778 (“a reasonable person is able to
appreciate the significance of the facts in light of relevant legal standards”).
3.

Privacy

The plaintiff expresses particular frustration over what he perceives as bias
in rulings regarding his “private information.” See R. 268-1 ¶ 2d (“The judges
continually allow the Defendant to publish my private information.”); id. ¶¶ 10-13
(Judge Durkin feels . . . that my personal, confidential information should be made
public.”). The Court has repeatedly reminded the plaintiff of the strong presumption
in the Seventh Circuit in favor of public access to judicial records, particularly those
upon which courts rely in reaching their rulings. See, e.g., R. 105 (Hrg. Tr. Feb. 7,
2017) at 8-9, 13-14; see also Smith v. U.S. District Court for the Southern District of
Illinois, 956 F.2d 647, 650 (7th Cir. 1992). More importantly, the Court, Judge
Finnegan and the defendant have gone to significant lengths to accommodate the
plaintiff’s privacy concerns, despite the fact that some of those concerns were
occasioned by his own inadvertence in publicly filing documents in this case

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containing the information he now so vigorously seeks to protect. See R. 268-1 ¶ 8
(admitting that “[s]ome of the documents to be sealed were e-mails which [the
plaintiff] attached to his first amended complaint”); see also R. 268-1 ¶ 30 (also
admitting that the e-mails were attached to the amended complaint and noting that
the now-dismissed co-defendant also published the e-mails in an unsealed 2015
filing, to which the plaintiff failed to object for approximately two years). The Court
granted the plaintiff’s motion for protective order immediately upon remand of the
case from the Seventh Circuit, see R. 69, and furthermore sealed a years-earlier
issued Memorandum Opinion & Order and filed a redacted version in its place, see
R. 36, 68. Moreover, despite the defendant’s disagreement with the plaintiff’s
position regarding what information is truly private, she has filed multiple exhibits
under seal on her own motion to accommodate the plaintiff’s privacy concerns; all of
those motions have been granted by Judge Finnegan and this Court. 3 See, e.g., R.
101, 168, 174, 209, 226, 252, 256, 272. Accordingly, any perception of bias as it
relates to the handling of private information in this case is unfounded.

The plaintiff has only been denied leave to seal two documents, neither of which
contain sensitive third-party information or, with respect to the parties, the type of
personal identifying information typically subject to protection. See R. 82 (denying
without prejudice the motion to seal two e-mails, one of which redacts all third-party
information but contains the plaintiff’s e-mail address, and another which was sent by
the plaintiff to the defendant and thus contains both parties’ e-mail addresses but no
other identifying or private information); see also R. 105 at 13 (explaining that the email from the plaintiff to the defendant would not be sealed because “[w]hen you’re
communicating with someone who you’re adverse with in a divorce proceeding and it’s
not through counsel, you take the risk that that communication is going to become
public, not private, not part of a settlement discussion, not covered under the rules of
evidence.).
3

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B.

Statements by the Court and Judge Finnegan
Following his docket review, the plaintiff states, “[a]dditionally, Judges

Finnegan and Durkin have made clear their personal, extrajudicial bias against me
through various personal statements and bias.” R. 268-1 ¶ 5. The plaintiff
misunderstands the term “extrajudicial.” Every statement he cites was made in
court, at the settlement conference, or in a written ruling based on case materials or
representations by the parties; in other words, the plaintiff cites only judicial
statements. “Only in the rarest circumstances will judicial statements show the
degree of favoritism or antagonism required when no extrajudicial source is
involved.” City of Milwaukee, 788 F.3d at 721 (internal punctuation omitted) (citing
Liteky, 510 U.S. at 555). To show bias warranting recusal in a judicial statement, a
party must allege more than that “a judge rejected [his] arguments or spoke harshly
to him: Expressions of impatience, dissatisfaction, annoyance, and even anger are
within the bounds of what imperfect men and women, even after having been
confirmed as federal judges, sometimes display.” Szach, 2015 WL 3964237 at * 4
(internal punctuation omitted) (quoting Liteky, 510 U.S. at 555-56).
This is not one of those “rarest of circumstances” where judicial statements
show impermissible bias. Most of the quotes the plaintiff cites have no bearing on
bias. See R. 268-1 ¶¶ 7, 10-12 (quoting the judge’s impressions of the litigation
process generally); id. ¶ 16 (quoting an entirely neutral remark about the court’s
preference for a jury trial); id. ¶¶ 23, 29 (quoting alleged misstatements in written
decisions that have no functional significance or impact on the issues decided in

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those opinions or on the case more broadly); id. ¶ 27 (quoting the Court’s objective,
legal view of what material is privileged or protected by the Fifth Amendment right
against self-incrimination, and what material may be private, but nevertheless
subject to disclosure in civil litigation). The Court briefly responds to three
averments, which, taken out of context as they were in the plaintiff’s affidavit,
warrant explanation.
First, the plaintiff states that at the settlement conference held on February
2, 2017, Judge Finnegan expressed impermissible bias when she remarked that
“[the defendant] is the nicest woman I have ever met,” and that, in her view, the
plaintiff’s demeanor would not be well-received by a jury. R. 268-1 ¶ 17. While the
plaintiff may have been disappointed by Judge Finnegan’s assessment, it is not a
basis for recusal. The plaintiff, a career expert-witness, has expressed his belief to
the defendant that he is likely to prevail in this case because juries find him
compelling. See R. 76-7 at 3 (“Recall, too, that I will be testifying, and I’ve never
ever lost a jury trial (albeit before always as an expert, not as a litigant).”) In
attempting to move the case toward settlement, Judge Finnegan may have
considered it useful to challenge the plaintiff’s opinion of himself. After all, it is the
nature of a settlement conference that in attempting to facilitate a resolution of the
case, the judge informs both parties of her assessment of the strengths and
weaknesses of their respective positions. “A judge’s frank assessments in
conferences are not guaranteed to be infallible, but they can be helpful in coping
with attorneys’ sometimes unrealistic devotion, on all sides, to their clients’ causes.”

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In re Milwaukee, 788 F.3d at 722. Without expressing any opinion on the
correctness of Judge Finnegan’s assessment of the parties’ respective jury-appeal
(because the Court has not met either of the parties), the Court believes that Judge
Finnegan intended to be helpful in sharing her view. Moreover, the plaintiff has no
idea what Judge Finnegan said to the defendant, and the Court has every reason to
believe she was equally frank in her assessment of the obstacles the defendant may
face at trial. Recusal is unwarranted.
Second, the plaintiff argues that this Court has formed an antagonistic view
of him based on a comment made to counsel from the bench at a motion hearing on
February 7, 2017. The comment followed a lengthy statement by plaintiff’s counsel
impugning the motivation and tactics of opposing counsel in attaching to a response
brief a non-privileged e-mail from the plaintiff to the defendant. Specifically,
plaintiff’s counsel accused opposing counsel of attaching the e-mail as a means of
“extortion.” The Court responded with the following assessment of the e-mail: “[It]
[s]ounds like he,” referring to the plaintiff, “[i]s the one doing the extorting. He’s
telling his wife, or ex-wife, ‘If you don’t settle with me, I’m going to go to the FBI
and get you criminally prosecuted.’” See R. 105 at 9-14. The e-mail reads as follows:
You will face likely criminal investigation and defense costs, and may
well be found liable for money penalties and even jail time . . . Before
any of this goes forward, I am holding out a possibility of making all of
this come to an end – the legal fees, the uncertainty of an award to be
paid by you in the federal civil trial, the risk of criminal prosecution
and incarceration . . . But the time for this is very short, as the federal
appellate court mandate should be coming in a few weeks, after which
I definitely won’t be willing to withdraw the suit or the criminal
complaint against you.

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R. 76-7. Having now reread the e-mail, the Court’s statement on February 7
continues to reflect its view of the e-mail’s content. Contrary to the plaintiff’s
assertions, however, that view does not make it impossible for the Court to be fair
in this case. See United States v. Diekemper, 604 F.3d 345, 352 (7th Cir. 2010)
(holding

that

the

sentencing

judge’s

comment

that

the

defendant

was

“manipulative, narcissistic, and twisted” was not a basis for recusal where it was
merely “a reflection of the facts before the district court”). As noted earlier, the
Court has never met the plaintiff, and the Court’s view of one e-mail he sent does
not mean that the Court feels deeply, or even slightly, antagonistic toward him. The
Court can hold the stated view regarding the e-mail and continue to evaluate the
case fairly.
Finally, the plaintiff contends that certain statements made by Judge
Finnegan and this Court reflect bias against his counsel, manifesting “unwarranted
skepticism,” admonishment, and diminution of counsel’s capabilities and conduct in
this case. See R. 268-1 ¶¶ 9, 25-28. The Court disputes this characterization of the
comments at issue. Even if the characterization were accurate, however, recusal
would not be required for two reasons. First, the comments were made in the
context of judicial efforts to keep this case on course. “[A] judge’s ordinary efforts at
courtroom administration remain immune from charges of partiality, even if the
judge exhibits impatience, dissatisfaction, annoyance, and even anger.” In re
Milwaukee, 788 F.3d at 723 (internal punctuation and citation omitted). Second, to
support recusal, the bias alleged must be against the party and not simply his

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counsel,

“because

antipathy

to

an

attorney

is

insufficient

grounds

for

disqualification” unless the facts suggest that the “bias against [the] attorney can
reasonably be imputed to [her client].” Sykes, 7 F.3d at 1339 (citation omitted). The
plaintiff attempts to show that this Court imputed bias toward counsel to him,
citing the following excerpt from the January 6, 2017 hearing transcript:
If I form an unfavorable opinion about one of you, either side, because
of … your lack of professionalism, as a matter of human nature . . . I’ll
do my best to make sure it doesn’t rub off and hurt your client.
R. 268-1 ¶ 9. Of course this statement says nothing about the Court actually holding
an unfavorable opinion of counsel for either side or imputing that opinion to either
party. In fact, it promises that the Court will make every effort not to do any such
thing. Moreover, the purpose of the comment was to dissuade counsel from engaging
in inappropriate, unprofessional conduct. It was made following a representation by
plaintiff’s counsel that “right now the attorneys are hating each other” and
“emotional[ly] attacking . . . each other.” R. 148 (Hrg. Tr. Jan. 6, 2017) at 26. Placed
in context, the Court’s response was as follows:
Well, we don’t need to go there. I don’t see hate being exhibited. . .
[L]ower the temperature between the two of you. I'm not casting stones
on either side. And just act professionally because if you don’t, it will
inure to the detriment of your clients. If I receive a -- if I form an
unfavorable opinion about one of you, either side, because of the -- your
lack of professionalism, as a matter of human nature, it -- it – I’ll do
my best to make sure it doesn't rub off and hurt your client. But you
don’t want to even put that risk to your client . . . So do your best to act
professionally. I'm sure you both will.
Id. at 26-27. From counsel’s response—“Understood”—the Court is satisfied
that the purpose of the warning was clear, see id. at 27. Far from

14

demonstrating bias, this warning, applicable to both sides, was intended to
set a tone of civility in a case where it appears personal animus between the
parties runs high.
Conclusion
The Court previously found that the plaintiff inexcusably waived his jury
demand in this matter and that permitting him to withdraw that waiver would
unduly prejudice the defendant. The Court stands firmly behind that analysis.
However, the allegations of bias set forth in the recusal motion put a wrinkle in the
Court’s earlier assessment of relative prejudice. “It is a fundamental principle of
justice that it is important that a litigant not only actually receive justice, but that
he believe he has received justice.” United States v. Pfizer, Inc., 569 F.2d 319, 323
(8th Cir. 1977) (internal quotation marks and citation omitted). To that end, even
when there is no actual bias, but merely a perception of bias by one party such that
an unfavorable verdict would lead him to feel he had been treated unfairly, courts
must consider whether to apply their discretion to order a jury trial. Id. (holding
that where trial judge expressed strong opinions on the legal and factual issues of a
case during settlement negotiations, it was an abuse of discretion to order a bench
trial); see also Chanofsky v. Chase Manhattan Corp., 530 F.2d 470, 473 (2d Cir.
1976) (“Inasmuch as Judge Duffy has already indicated his views on the factual
questions to be tried [by way of a summary judgment ruling], we think that
withdrawal of plaintiff’s [jury] waiver should be permitted regardless of the
technical merits of his Rule 39 argument.”).

15

Rule 39(b) of the Federal Rules of Civil Procedure grants courts broad
discretion in determining whether to relieve a party from waiver. It requires that if
a jury trial has been waived, as it has been here, a motion is necessary to invoke the
court’s discretion. See Swofford v. B&W, Inc., 336 F2d 406, 409 (5th Cir. 1964). The
Court will construe the recusal motion as motion pursuant to Rule 39(b), or
alternatively reconsiders on its own motion its previous order striking the plaintiff’s
jury demand. See Horowitz v. Alloy Automotive Co., 677 F. Supp. 564, 567 (N.D. Ill.
1988) (construing a belated jury demand as a Rule 39(b) motion). To avoid any
perception of injustice at trial and in the rendering of a verdict, the Court orders
this case to be tried to a jury.

ENTERED:

Honorable Thomas M. Durkin
United States District Judge
Dated: July 26, 2017

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