Kingsberry v. United States of America et al

Filing 127

ORDER DENYING 121 Defendants' Motion to Strike Plaintiff's Jury Demand. Signed by Magistrate Judge Donald G. Wilkerson on 3/22/12. (alg)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTHONY KINGSBERRY,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Case No. 07-cv-00118-DGW

ORDER
Pending before the Court is Defendants’ Motion to Strike Plaintiff’s Jury Demand (Doc.
121) and Plaintiff’s Opposition (Doc. 122). For the reasons stated below, Defendants’ motion is
DENIED.
On February 12, 2007, Plaintiff, proceeding pro se, filed this action for deprivations of
his constitutional rights pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971) and the Federal Torts Claim Act (FTCA), 28 U.S.C. § 2671 et
seq. (Doc. 1). The Complaint did not contain a jury demand. Id. Shortly after the appointment
of counsel, Plaintiff filed an Amended Complaint demanding a trial by jury (Doc. 55).
Defendants filed answers to the Amended Complaint, but did not raise any objection to
Plaintiff’s jury demand (Docs. 56, 57, 58, 59, 60). Plaintiff filed a Second Amended Complaint
on November 24, 2010, which also demanded a trial by jury (Doc. 81). Again, Defendants
raised no objections to Plaintiff’s jury demand (Docs. 83, 84, 85, 86 and 87). Defendants now
request that the Court strike Plaintiff’s jury demand as untimely filed.
At the time Plaintiff’s Complaint was filed, Federal Rule of Civil Procedure 38(b)(1)
provided that any party could demand a jury trial by serving upon the other party a jury demand
at any time after the commencement of the action, but not later than ten days after service of the

last pleading directed to such issue. Fed. R. Civ. P. 38(b)(1).1 Failure to make a jury demand
within the specified time constitutes waiver of a jury trial. Fed.R.Civ.P. 38(d). However, under
Rule 39(b), “the court may, on motion, order a jury trial on any issue for which a jury might have
been demanded.” Fed. R. Civ. P. 39(b). The decision whether to permit the late request is a
discretionary one. See Members v. Paige, 140 F.3d 699, 703 (7th Cir. 1998) (calling Rule 39(b)
an “open-ended grant of discretion”). “In the absence of strong and compelling reasons to the
contrary, untimely jury demands should be granted.” Merritt v. Faulkner, 697 F.2d 761, 767 (7th
Cir.1983) (district court abused its discretion when it denied blind pro se plaintiff's untimely
motion for jury trial which was made more than one month before trial date assigned); see also
Members, 140 F.3d at 704 (“lack of legal assistance may supply (or be) a good reason for a
favorable exercise of discretion under Rule 39(b)”).
Here, Defendants had ample opportunity to raise an objection to Plaintiff’s jury demand
after the First Amended Complaint was filed July 2, 2010 and after the Second Amended
Complaint on November 9, 2010. However, they chose not to do so. Defendants have failed to
present strong and compelling reasons to deny Plaintiff’s late jury demand, and have pointed to
no cognizable prejudice they would face if this case were to proceed to a jury. Accordingly,
Defendants’ Motion to Strike Plaintiff’s Jury Demand (Doc. 121) is DENIED.
IT IS SO ORDERED.
DATED: March 22, 2012
DONALD G. WILKERSON
United States Magistrate Judge

1

As of December 1, 2009, Rule 38(b) has been revised to provide the parties fourteen days, rather than ten, to make
a demand for a jury trial.