Core Funding Group, L.P. v. McIntire et al

Filing 191

ORDER & REASONS: Before the Court are Plaintiff's Jury Trial Demand (Rec. Doc. No. 182 ) and Plaintiff's Motion for Trial by Jury (Rec. Doc. No. 181 ), both of which are opposed by Defendants (Rec. Doc. Nos. 184 , 185 ). For the following reasons, IT IS ORDERED that Plaintiff's Jury Trial Demand is untimely, and Plaintiff's Motion for Trial by Jury is DENIED. Signed by Judge Ivan L.R. Lemelle on 5/11/11. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CORE FUNDING GROUP, LP

CIVIL ACTION

VERSUS

NO: 07-4273

MICHAEL H. McINTIRE, McINTIRE
AND McINTIRE, LLC, HENRY T. DART
AND HENRY DART, ATTORNEYS AT
LAW, A PROFESSIONAL CORPORATION

SECTION: B(5)

ORDER AND REASONS
Before the Court are Plaintiff’s Jury Trial Demand (Rec. Doc.
No. 182) and Plaintiff’s Motion for Trial by Jury (Rec. Doc. No.
181), both of which are opposed by Defendants (Rec. Doc. Nos. 184,
185).

For the following reasons,
IT IS ORDERED that Plaintiff’s Jury Trial Demand is untimely,

and Plaintiff’s Motion for Trial by Jury is DENIED.
Plaintiff submits its demand for jury trial pursuant to Fed.
R. Civ. P. 38 on all issues triable by jury.
1.

Rec. Doc. No. 182, at

Pursuant to Fed. R. Civ. P. 38(b), a party may demand a jury

trial on any issue triable of right by a jury by serving the other
parties with a written demand no later than 14 days after the last
pleading directed to the issue is served.
38(d),

a

party’s

failure

to

timely

Under Fed. R. Civ. P.

request

a

trial

constitutes a waiver of that party to a trial by jury.

by

jury

Plaintiff

claims that Defendants’ amended Answers (Rec. Doc. Nos. 171, 172),
filed April 29, 2011, assert for the first time the defenses of
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“accord

and

satisfaction

and/or

payment

and/or

release”

and

“assumption of the risk,” and thus, Plaintiff’s demand for jury
trial on those issues is timely.

Rec. Doc. No. 182, at 1.

In connection with its jury demand, Plaintiff has additionally
filed a Motion for Trial by Jury in accordance with Fed. R. Civ. P.
39(b), which provides the Court discretion to order a jury trial on
all issues triable by jury, including those for which Plaintiff
previously waived its right to trial by jury by failing to timely
file a demand for a jury trial.

Rec. Doc. No. 181-1, at 1.

Plaintiff urges that since its jury demand regarding the issues
raised in Defendants’ amended Answers is timely, “[i]f there is
going to be a jury trial on some of the issues, we might as well
have jury trial on all of the issues.”

Id.

A. Plaintiff’s Jury Trial Demand
Defendants oppose Plaintiff’s Jury Trial Demand on the newly
asserted defenses raised in Defendants’ amended Answers, claiming
that the defenses do not raise new factual issues in this case, but
rather present additional legal theories, and therefore the jury
demand is untimely.

Rec. Doc. No. 184, at 2-3.

In Guajardo v.

Estelle, 580 F.2d 748, 753 (5th Cir. 1978), abrogated on other
grounds by Thornburgh v. Abbott, 490 U.S. 401, 423-24 (1989), the
United States Fifth Circuit Court of Appeals stated:
Amendments not introducing new issues will not give rise
to a demand for a jury trial. The term ‘new issues’ has
been interpreted to mean new issues of fact and not new
theories of recovery.
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(internal citations omitted).

Indeed, “an amendment which neither

changes the nature of the case nor introduces new issues does not
revive the right to demand a jury trial.”

Nicolls Pointing

Coulson, Ltd. v. Transportation Underwriters of Louisiana, 1991 WL
126368, *2, n.1 (E.D.La. 1991) (citing Guajardo, supra, 580 F.2d at
753; Swofford v. B. & W., Inc., 34 F.R.D. 15 (S.D.Tex. 1963)).

In

Gallardo v. Gulf South Pipeline Co., L.P., 2005 WL 1309156, *2
(E.D.La 2005) (Engelhardt, J.), this Court cited the following
definition of “new issues” from the United States First Court of
Appeals in In re N-500L Cases, 691 F.2d 14, 23 (1st Cir. 1982):
One issue is the same as another when it is based on the
same conduct or concerns the same general area of
dispute. If the factual allegations underlying the two
claims are the same or if the issues turn on the same
matrix of facts the issues are the same. It is both the
similarity of facts and the similarity of the matrix the legal framework in which the facts are analyzed that makes issues the same. On the other hand, slight
modifications in facts or in legal theories presented
will not usually render issues different.
(internal citations and quotations omitted).
Defendants assert that the defenses are based upon “[t]he
existence

of

a

copy

of

a

document

entitled

‘Absolute,

Unconditional, and Irrevocable Transfer Sale and Assignment’; and
[t]he document appearing to sell to Core, an interest in the
McIntire Defendants’ fee interest in a certain case in exchange for
certain funds transferred to the McIntire Defendants.”

Rec. Doc.

No. 184, at 2. Plaintiff has previously asserted in its Motion for
Summary Judgment that the document at issue was included as part of
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the loan documents on which Plaintiff’s main demand is based. Rec.
Doc. No. 160-3, at 4. Additionally, this document was discussed in
the depositions of the McIntire Defendants, the Dart Defendants,
and Plaintiff’s president.

Rec. Doc. No. 184, at 2; Rec. Doc. No.

173, at 15-17.
Accordingly, the Court finds that the defenses asserted in
Defendants’

amended

allegations

that

Defendants

instead

Answers

change
offer

the
new

do

not

raise

underlying
legal

any

nature

theories

new

factual

of

the

case.

based

on

facts

previously provided that fall within the same general area of the
dispute.
issues

As Defendants’ amended Answers do not introduce new

into

the

lawsuit

sufficient

to

merit

a

jury

trial,

Plaintiff’s jury trial demand is therefore untimely.
B. Plaintiff’s Motion for Jury Trial
Fed. Rule Civ. P. 39(b) grants the district court discretion
to relieve a party from waiver of a jury trial under Rule 38.
Daniel Int’l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1064
(5th Cir. 1990). In considering a motion for jury trial under Rule
39(b), the court should grant a jury trial in the absence of strong
and compelling reasons to the contrary.

Id.

Indeed, a motion

brought pursuant to this rule should be “favorably received unless
there are persuasive reasons to deny it.”

Id. (citing United

States v. Unum, 658 F.2d 300, 303 (5th Cir. 1981).
The Fifth Circuit has utilized the following five factors in
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considering whether to exercise its discretion under Rule 39(b):
(1) whether 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 an 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.
Daniel Int’l Corp., supra, 916 F.2d at 1064 (citing Parrott v.
Wilson, 707 F.2d 1262, 1267 (11th Cir. 1983).
While the first factor weighs in favor of a jury trial, as the
action is based on breach of contract issues which are well suited
for resolution by a jury, in considering the remaining factors, we
find that Plaintiff’s motion should be denied.
matter is set to begin in less than two weeks.

Trial in this
In light of our

finding that Plaintiff is not entitled as of right to a jury trial
on the defenses asserted in Defendants’ amended Answers, ordering
a jury trial on all issues on the eve of trial would certainly
disrupt the Court’s schedule and delay the resolution of the
matter.

This case has been pending for over three years.

The

Court has previously denied the parties’ request to continue trial
and is not inclined to delay resolution of the matter any further,
particularly on the basis of Plaintiff’s last minute request for a
jury trial.

Further, altering the nature of the trial from the
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bench trial to a jury trial on the eve of trial will result in
significant prejudice to the opposing parties in terms of trial
preparation and litigation costs.

Finally, Plaintiff explicitly

provides that the reason for the delay in requesting a jury trial
was inadvertence.
considered

weigh

Accordingly, we find that the factors to be
against

ordering

a

jury

trial;

therefore,

Plaintiff’s motion is DENIED.
New Orleans, Louisiana, this 11th day of May, 2011.

________________________________
UNITED STATES DISTRICT JUDGE

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