McCune v. United States Department of Justice et al
ORDER granting in part and denying in part 196 Motion for jury trial: granted as to claims against non-governmental defendants; denied without prejudice as to advisory jury for claims against governmental defendants. Signed by Honorable David C. Bramlette, III on 5/21/2013 (ECW)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI,
FRANK B. McCUNE, JR.
CIVIL ACTION NO. 3:11-cv-423(DCB)(MTP)
UNITED STATES DEPARTMENT OF JUSTICE;
OFFICE OF U.S. ATTORNEY GENERAL SOUTHERN DISTRICT OF MISSISSIPPI;
MERCHANT AND FARMERS BANK; AMERIPRISE
FINANCIAL SERVICES, INC.; and THE
MEMBERS EXCHANGE CREDIT UNION
MEMORANDUM OPINION AND ORDER
This civil case is before the Court on a “Motion for a Trial
by Jury” (docket entry 196) and memorandum filed by the plaintiff
Frank B. McCune, Jr.
Defendant Ameriprise Financial Services,
Inc., has filed a response and memorandum, which defendant The
Members Exchange Credit Union has joined.
Defendants Office of
U.S. Attorney General - Southern District of Mississippi and United
States Department of Justice (collectively “Department of Justice”)
have also filed a response. Having carefully considered the motion
and responses, the memoranda and the applicable law, and being
fully advised in the premises, the Court finds as follows:
This civil action was commenced on July 13, 2011, with the
filing of the plaintiff’s complaint.
The plaintiff seeks damages
institutions for claimed violations of the Right to Financial
Privacy Act, 12 U.S.C. §§ 3401-3422.
The plaintiff asserts that he made a timely demand for a jury
The defendants assert that the plaintiff failed to make a
timely jury demand and thereby waived his Seventh Amendment right
to a trial by jury.
The applicable Federal Rules of Civil Procedure provide as
Right to a Jury Trial; Demand
Right Preserved. The right of trial by jury as declared by
the Seventh Amendment to the constitution - or as provided by
a federal statute - is preserved to the parties inviolate.
Demand. On any issue triable of right by a jury, a party may
demand a jury trial by:
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
filing the demand in accordance with Rule 5(d).
Specifying Issues. In its demand, a party may specify the
issues that it wishes to have tried by a jury; otherwise, it
is considered to have demanded a jury trial on all the issues
so triable. If the party has demanded a jury trial on only
some issues, any other party may - within 14 days after being
served with the demand or within a shorter time ordered by the
court - serve a demand for a jury trial on any other or all
factual issues triable by jury.
Waiver; Withdrawal. 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.
Trial by Jury or by the Court
When a Demand is Made. When a jury trial has been demanded
under Rule 38, the action must be designated on the docket as
a jury action. The trial on all issues so demanded must be by
the parties or their attorneys file a stipulation to a
nonjury trial or so stipulate on the record; or
the court, on motion or on its own, finds that on some or
all of those issues there is no federal right to a jury
When No Demand Is Made. Issues on which a jury trial is not
properly demanded are to be tried by the court.
court may, on motion, order a jury trial on any issue for
which a jury might have been demanded.
Advisory Jury; Jury Trial by Consent.
In an action not
triable of right by a jury, the court, on motion or on its
may try any issue with an advisory jury; or
may, with the parties’ consent, try any issue by a jury
whose verdict has the same effect as if a jury trial
had been a matter of right, unless the action is
against the United States and a federal statute
provides for a nonjury trial.
Fed.R.Civ.P. 38 & 39.
When he filed the plaintiff’s initial complaint on July 13,
2011, plaintiff’s counsel did not include a formal jury demand. He
did, however, check the box on the civil cover sheet indicating
that a jury demand had been made.
On July 14, 2011, the clerk of
court directed counsel to file a separate request for Jury Demand.
Docket Annotation of July 14, 2011.
Plaintiff’s counsel filed a
“Motion and Demand for Jury Trial” on July 15, 2011.
titled “motion,” the document was entered as a “Demand for Trial by
Jury” by the clerk.
Inasmuch as none of the defendants had been
served, the electronic case management system forwarded notice only
to plaintiff’s counsel.
Although some cases provide an exception for pro se litigants,
in general a civil litigant cannot make his jury demand by checking
the box on the civil cover sheet.
See Hardtke v. The Hartford,
2006 WL 503952 *1 (W.D. Tex. Jan. 5, 2006)(“That plaintiff checked
a box on the civil cover sheet indicating that she had included a
jury demand in the complaint, which, in fact, she had not, is
insufficient on its own to preserve her right to a jury trial.”).
The original complaint served on the defendants did not include a
The jury demand of July 15, 2011, was not served on
Thus, the plaintiff’s initial jury demand did not
meet the requirements of Fed.R.Civ.P. 38(b).
On October 20, 2011, the plaintiff filed his first amended
complaint, and on October 27, 2011, he filed his second amended
Both complaints contained a demand for jury trial, and
both were served on the defendants.
These jury demands were
sufficient to meet the requirements of Fed.R.Civ.P. 38(b).
Under Rule 38(b), a party must make a written demand for
a jury trial, and the written jury demand must be served
on the other party between the filing of the Complaint
and fourteen days after the service of the last pleading
directed to the issue triable by a jury. The term “last
pleading” refers to a pleading which contests the issue
triable by a jury, such as an answer to a Complaint or a
reply to a counterclaim.
2012)(citing Donovan v. Travelers Trash Co., 599 F.Supp. 43, 44
(E.D. N.C. 1984)).
In Cambridge Integrated Services Group, Inc. v. Concentra
Integrated Services, Inc., 2010 WL 4736171 (W.D. La. Nov. 16,
2010), the district court noted that the Fifth Circuit has not
defined the meaning of the term “pleading” as used in Rule 38.
However, “other courts have held that the meaning of the term is
governed by Rule 7(a), which clearly states that a pleading is (1)
a complaint, (2) an answer, (3) an answer to a counterclaim, (4) an
answer to a cross-claim, (5) a third-party complaint, (6) a thirdparty answer, or (7) a court ordered reply to an answer.”
*1 (citing Burns v. Lawther, 53 F.3d 1237, 1241 (11th Cir. 1995)).
“The Fifth Circuit has said that the ‘last pleading’ requirement in
Rule 38 usually means an answer or a reply to a counterclaim.”
(citing Matter of Texas General Petroleum Corp., 52 F.3d 1330, 1339
(5th Cir. 1995)(additional citations omitted)).
In this case, the “last pleading” was The Members Exchange
Credit Union’s Answer, which was filed August 7, 2012.
and Farmers Bank’s Answer was filed August 3, 2012, and Ameriprise
Financial Services’ Answer was filed January 10, 2012.
plaintiff’s jury demands of October 20 and 27, 2011, were timely
and fulfilled the other requirements of Fed.R.Civ.P. 38(b).
The defendants further argue that the plaintiff waived his
jury demand “by litigating the case for approximately nine months
with notice that the case was proceeding towards a bench trial.”
Ameriprise’s Memorandum, p. 4.
This argument is based on the Case
Management Order of July 31, 2012, which contains a notation that
“this action is set for non-jury trial.”
Case Management Order, ¶
Two subsequent docket entries resetting the trial also
referred to the case as a “bench trial.” Docket entry 120 (January
25, 2013); Docket entry 123 (February 7, 2013).
Rule 38(d) provides that “[a] proper demand may be withdrawn
only if the parties consent.”
provides that “[when a jury trial has been demanded under Rule 38,
the action must be designated on the docket as a jury action.
trial on all issues so demanded must be by jury unless ... the
parties or their attorneys file a stipulation to a nonjury trial or
so stipulate on the record ....” Fed.R.Civ.P. 39(a). Furthermore,
the Fifth Circuit has stated that “[t]he right to a jury trial is
a fundamental right, and courts should ‘indulge every reasonable
presumption against waiver.’”
McAfee v. Martin, 63 F.3d 436, 437
(5th Cir. 1995)(quoting Bowles v. Bennet, 629 F.2d 1092, 1095 (5th
Cir. 1980)(quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393
The notation that this case would proceed as a non-jury trial
was apparently a court-generated error and was contrary to a valid
It should be noted, however, that the plaintiff is
not entitled to a jury as to claims against the Department of
Justice defendants, and that perhaps was a source of confusion.
The Court can identify no documentation in the record indicating
that the plaintiff withdrew his jury demand, that the parties
stipulated to a bench trial, or that the plaintiff otherwise waived
his fundamental right to a jury trial.
The plaintiff’s motion for
trial by jury shall therefore be granted as to all non-governmental
The plaintiff also moves for utilization of the jury in an
advisory capacity, as provided in Rule 39(c)(1), as to claims
against the Department of Justice defendants.
The Department of
Justice replies that use of an advisory jury should be denied
because “(1) it is a waste of judicial resources; (2) requires
additional and unnecessary expense by USDOJ; and (3) the case is
complex and better suited for a bench trial.”
Justice’s Response, p. 1. It is premature for the Court to declare
that the jury will be used in an advisory capacity as to claims
against the government. Discovery in this case is ongoing, and the
parties have yet to file any summary judgment motions.
simply too early in the proceedings for the Court to determine what
issues, if any, will remain for trial, and whether an advisory jury
would be helpful.
The plaintiff’s motion for utilization of an
advisory jury as to claims against the Department of Justice
defendants shall therefore be denied without prejudice.
IT IS HEREBY ORDERED that the “Motion for a Trial by Jury”
(docket entry 196) filed by the plaintiff Frank B. McCune, Jr. is
GRANTED IN PART AND DENIED IN PART AS FOLLOWS:
The plaintiff’s motion for trial by jury as to all claims
against non-governmental defendants is GRANTED;
The plaintiff’s motion for utilization of the jury in an
advisory capacity as to claims against the Department of Justice
defendants is DENIED WITHOUT PREJUDICE.
SO ORDERED, this the 21st day of May, 2013.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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