Green v. Logan's Roadhouse, Inc. et al
Filing
99
Memorandum Opinion and Order re Defendant's 89 Jury Demand. The Court grants Defendant's Rule 39(b) motion for jury trial. Signed by District Judge Keith Starrett on January 21, 2015 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
PHILLIPPI GREEN
PLAINTIFF
V.
CIVIL ACTION NO. 2:13-CV-238-KS-MTP
LOGAN’S ROADHOUSE, INC.
DEFENDANT
MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants Defendant’s Rule 39(b) Motion
[89] for Jury Trial.
A.
Background
On October 25, 2013, Plaintiff filed his initial Complaint [1], and he did not
demand a jury trial. On October 28, 2013, he filed an Amended Complaint [3], and he
did not demand a jury trial. On November 18, 2013, Defendant filed its Answer [8], and
it did not demand a jury trial.
On January 17, 2014, the Magistrate Judge held a Case Management
Conference. There is no record of the conference,1 and the parties disagree as to what
was said. Regardless, after the conference the Magistrate Judge entered a Case
Management Order [12] designating the case as a jury trial.
On February 18, 2014, Plaintiff filed a Second Amended Complaint [18], and he
did not demand a jury trial. Defendant filed an Answer [24] on March 4, 2014, and it
did not demand a jury trial.
1
Of course, the parties and their counsel disagree as to what was said at the
conference. In the absence of a transcript, the Court declines to rely on any
counsel’s recollections.
The Clerk’s office designated this case as a bench trial in the Court’s electronic
filing system.
After Defendant filed its Motion in Limine [83] on December 31, 2014, Plaintiff’s
counsel contacted the Court to notify it of the parties’ apparent disagreement as to
whether the case would be tried in a jury or bench trial. The Court held a
teleconference on January 8, 2015, noted that there was no jury demand in the record,
and directed Defendant to file a Rule 39(b) motion if it desired a jury trial. Defendant
filed its motion [89], which the Court now considers.
B.
Discussion
“On any issue triable of right by a jury, a party may demand a jury trial by: (1)
serving the other parties with a written demand – which may be included in a pleading
– no later than 14 days after the last pleading directed to the issue is served; and (2)
filing the demand in accordance with Rule 5(d).” FED. R. CIV. P. 38(b). Generally, the
answer is considered to be the operative pleading under Rule 38(b). See, e.g.
McFarland v. Leyh, 52 F.3d 1330, 1339 (5th Cir. 1995); McCorstin v. U.S. Dep’t of
Labor, 630 F.2d 242, 244 (5th Cir. 1980). Defendant did not file a written demand for
a jury trial within fourteen days after filing its Answer [24].2 Therefore, Defendant
2
“[A]n amended or supplemental pleading that merely restates issues
previously raised does not revive the right to demand a jury trial when one had not
been earlier demanded.” Fredieu v. Rowan Cos., 738 F.2d 651, 653 (5th Cir. 1984).
“A complaint raises an issue only once within Rule 38(b)’s meaning – when it
introduces it for the first time. Amendments not introducing new issues will not
give rise to a demand for a jury trial.” Id. The parties did not address whether
Plaintiff’s Second Amended Complaint [18] presented new issues – presumably
because Defendant’s jury demand was untimely regardless of which answer
2
waived its right to a jury trial. FED. R. CIV. P. 38(d) (“A party waives a jury trial unless
its demand is properly served and filed.”).
However, “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). “[W]hen the discretion of the
court is invoked under Rule 39(b), the court should grant a jury trial in the absence of
strong and compelling reasons to the contrary.” Swofford v. B & W, Inc., 336 F.2d 406,
409 (5th Cir. 1964); see also Daniel Int’l Corp. v. Fischbach & Moore, Inc., 916 F.2d
1061, 1064 (5th Cir. 1990) (a Rule 39(b) request “should be favorably received unless
there are persuasive reasons to deny it”). The Court considers five factors when
addressing a Rule 39(b) motion:
(1) whether the case involves issues best tried by 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.
Ozene v. Lab. Corp. of Am., No. 1:09-CV-183-HSO-JMR, 2009 WL 2185452, *1 (S.D.
Miss. July 17, 2009) (citing Daniel Int’l Corp., 916 F.2d at 1064). Under Rule 39(b), “the
court has a broad discretion in determining whether to relieve a party from waiver of
jury trial . . . .” Swofford, 336 F.2d at 408.
The first factor – whether the case involves issues best tried by a jury – weighs
heavily in favor of a jury trial. This is a premises liability case arising from a thirdparty assault. The “operative issues [are] well within the comprehension of a jury.”
provides the point of reference for Rule 38.
3
Daniel Int’l Corp., 916 F.2d at 1064. Plaintiff’s claims sound in negligence, the sort
“typically within the province of a jury . . . .” Ozene, 2009 WL 2185452 at *2. Indeed,
this case is a quintessential jury case, involving several genuine disputes of relevant
and material fact.
Plaintiff argues that the case is not the sort which should be tried before a jury
because it involves the use of inflammatory racial epithets, which Plaintiff contends
may inflame and mislead the jury. However, juries routinely hear cases involving
racially charged subject matter. For example, employment discrimination claims are
a staple of federal trial courts. The Court’s instructions are sufficient to avert any
potential prejudice.3
As for the second factor, granting Defendant’s motion would not disrupt the
Court’s schedule, as the Court assumed that this was a jury trial until Plaintiff’s
counsel raised the issue after the first of the year. Plaintiff represents that he had
planned to provide video of deposition testimony, but that he would have to call live
witnesses if the case were tried before a jury. He does not know whether his witnesses
will be available, but they reside here in Hattiesburg, Mississippi, rather than out of
state. Although the Court set a default civil trial term in the scheduling order [12], its
customary practice is to set a firm trial date at the pretrial conference with the input
of counsel. Therefore, Plaintiff’s scheduling concerns can be adequately addressed, and
3
Plaintiff’s argument regarding inflammatory racial epithets rings somewhat
hollow as Plaintiff’s own witnesses will likely provide the potentially inflammatory
testimony. See Green v. Logan’s Roadhouse, Inc., No. 2:13-CV-238-KS-MTP, 2014
U.S. Dist. LEXIS 173431, at *5-*10 (S.D. Miss. Dec. 16, 2014).
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this factor weighs in favor of granting Defendant’s motion.
The Court will assume that the third factor – the degree of prejudice to the
adverse party – weighs in favor of denying Defendant’s motion.
The fourth factor – the length of delay in having requested a jury trial – weighs
in favor of denying Defendant’s motion. Defendant’s jury demand should have been
filed by March 18, 2014, at the latest. FED. R. CIV. P. 38(b). Instead, Defendant filed
a Rule 39(b) motion on January 9, 2015 – over nine months after a jury demand should
have been filed.
The final factor – Defendant’s reason for waiting so long to demand a jury trial
– weighs heavily in favor of granting the motion. On January 17, 2014, the Court
entered a Case Management Order [12] providing that this case would be tried by a
jury. Defendant argues that it relied upon the Court’s Order [12] and assumed that the
case would be tried by a jury. Although Defendant should have paid closer attention
to the pleadings, it can not be faulted for relying on the Case Management Order [12].
Indeed, until receiving notice of the parties’ disagreement on this issue, the
undersigned judge assumed that the case would be tried by a jury. The Court’s actions
led Defendant to believe that there had already been a jury demand. That is a
sufficient reason for Defendant’s delay in filing a jury demand.4
4
Cf. Pinemont Bank v. Belk, 722 F.2d 232, 236-37 (5th Cir. 1984) (counsel
inadvertently marked jury box on cover sheet and clerk’s office flagged case as jury
trial on docket; district court believed the case would be tried to a jury; no strong
and compelling reason to deny Rule 39(b) motion); Prudhomme v. Tenneco Oil Co.,
955 F.2d 390, 394 (5th Cir. 1992) (where an “action of the district court misled [a] . .
. party or lulled it into inaction to its prejudice,” the district court abused its
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C.
Conclusion
Three of the five factors weigh in favor of granting Defendant’s Rule 39(b)
motion, and Plaintiff has not offered any “strong and compelling reasons” to deny the
motion. Swofford,336 F.2d at 409. Furthermore, the record suggests that Defendant
sat on its right to demand a jury in reliance on the Court’s Case Management Order
[12]. Therefore, the Court grants Defendant’s Rule 39(b) Motion [89] for Jury Trial.
SO ORDERED AND ADJUDGED this 21st day of January, 2015.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
discretion by going to trial on previously undisclosed legal theory).
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