Kigera v. Bethesda Lutheran Communities
MEMORANDUM AND ORDER granting 27 Plaintiff's Motion for Jury Trial. Signed by Magistrate Judge Teresa J. James on 6/5/2017. (ts)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BETHESDA LUTHERAN COMMUNITIES,
) Case No.: 2:16-cv-02547-JTM-TJJ
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Jury Trial (ECF No. 27).
Plaintiff asks the Court to grant her demand for jury trial. Defendant opposes the motion. For
the reasons set forth below, the Court grants the motion.
Plaintiff filed her initial complaint, pro se, on August 4, 2016, using an Employment
Discrimination Complaint form offered by the Court Clerk for use by pro se plaintiffs.1 The
form includes the phrase “Plaintiff requests trial by jury” with instructions to check either the
“yes” or “no” box. Plaintiff checked the latter.
After Defendant filed its answer and the undersigned Magistrate Judge conducted a
Scheduling Conference with Plaintiff and Defendant’s counsel, Defendant filed a partial motion
to dismiss.2 The presiding District Judge granted Defendant’s motion, resulting in dismissal of
three of her claims.3 Within a week of the order of partial dismissal, counsel entered his
ECF No. 1.
ECF No. 13.
ECF No. 16.
appearance for Plaintiff,4 and the undersigned Magistrate Judge set a Status Conference to
discuss discovery and Scheduling Order issues in light of counsel entering the case on Plaintiff’s
During the Status Conference, Plaintiff’s counsel indicated he would seek to amend the
complaint to conform to the order of dismissal and to add a jury demand. Defendant’s counsel
replied that he would not object to an amended complaint insofar as it clarified Plaintiff’s claims,
but he would object to Plaintiff asserting additional claims and to a jury demand. Plaintiff’s
counsel subsequently filed a First Amended Complaint6 and the instant motion.
“A party waives the right to a jury trial when he fails to make a timely demand under
[Federal Rule of Civil Procedure] 38(b).”7 Under Rule 39(b), however, the court has discretion
to order a jury trial later upon motion of a party, notwithstanding the party’s failure to make a
timely demand for a jury trial.8 The discretion afforded by Rule 39(b) is very broad and in the
absence of strong and compelling reasons to the contrary, a district court should exercise its
ECF No. 17.
ECF No. 18.
ECF No. 26. The Amended Complaint does not assert new claims, but merely reasserts claims
for race/national origin discrimination under Title VII and retaliatory termination under Title
VII. Defendant responded to the Amended Complaint by filing an answer (ECF No. 29), and did
not file a new motion to dismiss within the time allotted by the Amended Scheduling Order (ECF
No. 21 at 2), 7.
Jolivet v. Deland, 966 F.2d 573, 577 (10th Cir. 1992).
Id. See Fed. R. Civ. P. 39(b) (“Issues on which a jury trial is not properly demanded are to be
tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury
might have been demanded.”).
discretion to grant a jury trial.9
Plaintiff argues that her request for jury trial should be deemed timely because she
brought it within 14 days of filing her Amended Complaint.10 Defendant disagrees, correctly
noting that in interpreting Rule 38, courts consistently hold that an amended pleading does not
revive the 14-day period unless the pleading raises new claims.11 As noted above, Plaintiff’s
Amended Complaint raises no new claims. Accordingly, the Court finds Plaintiff’s request for
jury trial is untimely.
That finding, however, does not decide the issue. Plaintiff asserts no strong and
compelling reasons exist for the Court to deny her right to jury trial and the Court should
therefore exercise its discretion under Rule 39 and grant her motion. Defendant takes issue with
the argument and asserts strong and compelling reasons do exist in that Defendant will suffer
prejudice if the motion is granted because the case has been pending for nine months and
discovery closes in approximately three months. The Court does not find Defendant’s argument
persuasive. According to the court docket sheet, Defendant has served no written discovery and
has noticed no depositions. The mere pendency of the case has no bearing on whether the trial
should be by jury or to the court, and Defendant cannot argue that it will be forced to amend or
supplement discovery if the Court grants Plaintiff’s motion.12
Nissan Motor Corp. in U.S.A. v. Burciaga, 982 F.2d 408, 409 (10th Cir. 1992).
See Fed. R. Civ. P. 38(b)(1) (demand timely if made “no later than 14 days after the last
pleading directed to the issue is served”).
Defendant’s Suggestions in Opposition to Plaintiff’s Motion for a Jury Trial (ECF No. 28) at
3-4 (citing cases).
See, e.g., Unidev, L.L.C. v. Hous. Auth. of New Orleans, 250 F.R.D. 268, 271-72 (E.D. La.
2008) (rejecting argument that jury demand made within 14 days of amended complaint was
Finally, Defendant argues that Plaintiff demonstrates nothing more than mere
inadvertence as the reason for her failure to demand trial by jury in her original complaint, and
consequently the Court would not abuse its discretion if it denied the motion. This argument not
only ignores the opponent’s burden to demonstrate strong and compelling reasons why a court
should exercise its discretion to deny a party a right to jury trial, it also ignores the fact that
Plaintiff’s original complaint was filed pro se. Courts are to liberally construe pleadings filed by
pro se parties,13 and in this instance the Court finds no compelling reason to hold Plaintiff to her
omission. The Court therefore grants Plaintiff’s motion.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion for Jury Trial (ECF No. 27)
Dated this 5th day of June, 2017, at Kansas City, Kansas.
s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge
timely but finding defendants failed to meet burden to demonstrate persuasive reasons to deny
plaintiff’s constitutional right to trial by jury).
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?