CSX Transportation Inc v. Chicago Southshore and South Bend Railroad
Filing
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OPINION AND ORDER denying 21 Motion for Jury Trial Under Rule 39(b). Signed by Magistrate Judge Paul R Cherry on 6/19/14. (kjp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CSX TRANSPORTATION, INC.,
Plaintiff,
v.
CHICAGO SOUTH SHORE &
SOUTH BEND RAILROAD,
Defendant.
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Cause No.: 2:13-CV-285-RL-PRC
OPINION AND ORDER
This matter is before the Court on a Motion for Jury Trial Under Rule 39(b) [DE 22], filed
by Plaintiff CSX Transportation, Inc. on June 2, 2014. Defendant Chicago South Shore & South
Bend Railroad filed a response on June 4, 2014. Plaintiff did not file a reply, and the time to do so
has passed.
Plaintiff filed a Complaint on August 20, 2013, alleging that Defendant owed Plaintiff
damages due to a freight train derailment that occurred on April 8, 2012. Plaintiff’s Complaint did
not include a demand for jury trial. Federal Rule of Civil Procedure 38 provides that a party must
make its written demand for a jury trial “no later than 14 days after the last pleading directed to the
issue is served.” Fed. R. Civ. P. 38(b). Plaintiff did not make a jury demand within that time period.
Thus, Plaintiff waived a jury trial. See Fed. R. Civ. P. 38(d) (“A party waives a jury trial unless its
demand is properly served and filed. A proper demand may be withdrawn only if the parties
consent.”).
The Seventh Circuit Court of Appeals explained that Rule 38 sets out a tight deadline for
demanding a jury trial because “preparation for a trial often depends critically on whether it will be
a jury trial or a bench trial.” Olympia Express, Inc. v. Linee Aeree Italiane, SPA, 509 F.3d 347, 351
(7th Cir. 2007). Moreover, allowing parties to indefinitely postpone a request for a jury trial would
encourage strategic maneuvering. Id.
In the instant motion brought pursuant to Federal Rule of Civil Procedure 39(b), Plaintiff
asks the Court for an order permitting this case to now be tried by a jury. Rule 39(b) provides that
“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). Applying Rule 39(b) in considering an untimely request for a jury
trial by a blind, indigent, unrepresented prisoner, made just nine days after the expiration of the Rule
38(b) deadline, the Seventh Circuit Court of Appeals held that, “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).
However, the use of “strong and compelling reasons” as the standard for a request for a jury
trial under Rule 39(b) was subsequently rejected in Members v. Paige, 140 F.3d 699, 702-04 (7th
Cir. 1998), which also concerned litigation brought by an indigent, unrepresented prisoner. The
court in Members found that the premise of the holding in Merritt–that courts should excuse
mistakes by unrepresented litigants regarding procedural rules–was overruled by the Supreme
Court’s holding in McNeil v. United States that procedural rules apply equally to unrepresented
litigants. 140 F.3d at 702-03 (citing McNeil v. United States, 508 U.S. 106, 112-13 (1993)).
Thus, finding no distinction in the application of Rule 39(b) to litigation involving
unrepresented as opposed to represented litigants, the Seventh Circuit Court of Appeals held that
the Rule 39(b) inquiry requires a “thoughtful exercise of discretion.” Id. at 703.1 Once a litigant
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The version of Rule 39(b) in effect at the time provided: “Issues not demanded for trial by jury as provided
in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which
such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any
or all issues.” Fed. R. Civ. P. 39(b) (1998). The 2007 Amendment that resulted in the current version of Rule 39 was part
of the general restyling of the Civil Rules to make them more easily understood and was intended to be stylistic only.
See Fed. R. Civ. P. 39 (2007 advisory committee’s notes).
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offers a reason for the belated request for a jury trial, the “district court ‘ought to approach each
application under Rule 39(b) with an open mind and an eye to the factual situation of that particular
case, rather than with a fixed policy.’” Id. (quoting Alan Wright & Arthur R. Miller, 9 Fed. Prac.
& Proc. § 2334, 189 (1995)). For instance, the lack of legal assistance may be a good reason for
favorable discretion under Rule 39(b). Id. at 704.
More recently, in the context of commercial litigation, the Seventh Circuit Court of Appeals
held that “Rule 39(b) allows the district court to grant an untimely demand for a jury, but only, the
courts have held, if a good reason for the belated demand is shown.” Olympia Express, 509 F.3d at
352 (citing Pacific Fisheries Corp. v. HIH Casualty & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir.
2001); SEC v. Infinity Group Co., 212 F.3d 180, 195-96 (3d Cir. 2000)); see also ADT Sec. Servs.,
Inc. v. Lisle-Woodridge Fire Production Dist., 844 F. Supp. 2d 937, 938-39 (N.D. Ill. 2012)
(applying a “good reason” standard to first determine whether the request for jury trial has merit)
(citing Commc’ns Maint., Inc. v. Motorola, Inc., 761 F.2d 1202, 1207-08 (7th Cir. 1985); Huff v.
Dobbins, Fraker, Tennant, Joy & Perlstein, 243 F.3d 1086 (7th Cir. 2001)). In applying the “good
reason” standard in Olympia Express, the court also weighed the “practical concerns of preparation
and predictability” discussed above. 509 F.3d at 352.2
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As noted by Plaintiff in its motion, some district courts within this circuit use a five-element balancing test
to determine whether to allow a jury trial under Rule 39(b). The elements are (1) whether the issues involved are best
tried before a jury; (2) whether the court’s schedule or that of the adverse party will be disrupted by granting the request;
(3) the degree of prejudice to the opposing party; (4) the length of the delay; and (5) the reason for the moving party’s
tardiness in demanding a jury trial. See Abuelyaman v. Illinois State Univ., No. 07-1151, 2010 WL 173896, at *1 (C.D.
Ill. Jan. 14, 2010) (citing Karol v. Bear Stearns & Co., Inc., 708 F. Supp. 199, 200 (N.D. Ill. 1989); AM Int’l, Inc. v.
Eastman Kodak Co., 648 F. Supp. 506, 507 (N.D. Ill. 1986); In re HA-LO Indus., 326 B.R. 116, 122 (Bankr. N.D. Ill.
2005)); see also Ward v. Delaney, No. 01 C 3074, 2003 WL 24205813, at *1 (N.D. Ill. 2003); Lappin v. Norfolk S. Ry.,
No. IP01-0150, 2001 WL 1691639, at *1 (S.D. Ind. 2001); Batteast Constr. Co. v. Henry Cnty. Bd. of Comm’r, 196
F.R.D. 543, 544 (S.D. Ind. 2000).
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This case is unlike the indigent prisoner litigation at issue in Merritt and Members in that
both parties are experienced business entities with experienced legal counsel. Nor is this a case like
Kay Beer Distributing, Inc. v. Energy Brands, Inc., which dealt with ambiguous language in Federal
Rule of Civil Procedure 81 regarding demanding a jury trial after removal from state court, No. 07C-1068, 2009 WL 1705746, at *2-3 (E.D. Wis. June 12, 2009), or like Kotsilieris v. Chalmers, 966
F.2d 1181, 1187 (7th Cir. 1992), in which the plaintiff’s new attorneys, who entered the case three
years after the filing of the initial complaint, did not realize that no jury demand had been made and
requested a jury on the eve of trial.
Rather, Plaintiff’s counsel has represented Plaintiff throughout this case and chose not to
demand a jury trial in the Complaint or within the period allowed for under Rule 38(b). In the instant
motion seeking a jury trial, Plaintiff explains that, while originally believing that very few facts were
in dispute, Plaintiff now believes that there are “more disputes with respect to facts and witness
credibility than originally anticipated.” Pl. Br. 2. In response, Defendant aptly notes that Plaintiff
provides no specific disputed facts nor names any specific witnesses with credibility issues in
support of this new position. In fact, Defendant points out that Plaintiff has not yet deposed any
witnesses. Despite this challenge to Plaintiff’s motion, Plaintiff has filed no reply brief to fill in these
blanks. Moreover, if the only change in circumstances perceived by Plaintiff is that some new
questions of fact may need to be decided, the Court is equally capable as a jury of deciding factual
issues as trial.
Having considered Plaintiff’s limited argument and assessing the factual circumstances of
the case, the Court finds, in its discretion, that Plaintiff has not shown good reason for the untimely
jury request. Accordingly, the Court hereby DENIES the Motion for Jury Trial Under Rule 39(b)
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[DE 22].
So ORDERED this 19th day of June, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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