Ombe v. Martinez et al
ORDER by District Judge Robert C. Brack Granting 133 Request for Jury Trial filed by Hitoshi Ombe (jjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CIV 14-0763 RB/KBM
STATE OF NEW MEXICO, NM DEPARTMENT
OF PUBLIC EDUCATION, NM DIVISION OF
VOCATIONAL REHABILITATION (NMDVR),
ORDER GRANTING REQUEST FOR JURY TRIAL
This matter is before the Court on Plaintiff’s Request of Jury Trial, filed on July 20,
2017. (Doc. 133.) Defendants have not filed a response.
Plaintiff, who is pro se, filed his initial Complaint on August 22, 2014 (Doc. 1), and an
Amended Complaint on October 31, 2014 (Doc. 8). After the Court granted in part several
motions to dismiss filed by the parties (see Docs. 28–31, 37–38, 83, 93, 94, 96), the Defendants
filed their Answer to Plaintiff’s Amended Complaint on September 4, 2015 (Doc. 97). Over the
next 18 months, Plaintiff filed a number of documents with the Court, but it does not appear that
the parties conducted discovery or made any other progress in the case. (See Docs. 98–106; 109–
12; 114; 116.)
Judge Molzen held an in-person status conference on March 3, 2017. (See Doc. 117.)
During this status conference, Plaintiff explained that the delay in the case was the result of his
disabilities and depression. (Id. at 1.) He also discussed his processing and language difficulties.
(Id.) Judge Molzen explained to the parties that they must either pursue settlement or proceed to
discovery. (Id. at 5.) Plaintiff indicated he would prefer to pursue settlement. (Id.) Ultimately,
Judge Molzen proposed that the parties engage in informal discovery with an eye toward setting
a settlement conference. (Id.)
The Court filed its Initial Scheduling Order on June 22, 2017. (Doc. 128.) The parties
filed their Joint Status Report and Provisional Discovery plan on July 20, 2017. (Doc. 135.)
Plaintiff also filed his Request of Jury Trial on July 20, 2017. (Doc. 133.) Plaintiff explains in his
Request that during a “meet and confer” meeting with opposing counsel, Plaintiff learned he
could request a jury trial. (Id. at 1.) Plaintiff explains that any failure to request a jury trial in his
Complaint “is an example that still undiagnosed DEPRESSION affected [his] cognitive
Federal Rule of Civil Procedure 38 requires that a party make a demand for a jury trial by
service “not later than 14 days after the last pleading directed to the issue is served . . . .” Fed. R.
Civ. P. 38(b)(1). A party’s failure to properly serve and file a timely jury demand waives his or
her right to trial by jury. Fed. R. Civ. P. 38(d).
Plaintiff did not include a jury demand in either his original or Amended Complaint. (See
Docs. 1; 8.) The last pleading in this matter, Defendants’ Answer to the Amended Complaint,
was served and filed on September 4, 2015. (See Doc. 97.) Plaintiff did not file his request for a
jury trial for almost two full years past the time given in Rule 38; hence, he waived his right to
trial by jury. Fed. R. Civ. P. 38(d).
Rule 39 gives the Court discretion, upon motion by a party, to grant a jury trial even
where that motion is untimely. Fed. R. Civ. P. 39(b). The Tenth Circuit “has held that, absent
strong and compelling reasons to the contrary, a district court should exercise its discretion under
Rule 39(b) and grant a jury trial.” Nissan Motor Corp. in U.S.A. v. Burciaga, 982 F.2d 408, 409
(10th Cir. 1992) (citation omitted). Mere inadvertence by a party would not constitute such a
strong and compelling reason. Id. (citations omitted).
Here, Plaintiff offers a reason beyond mere inadvertence—he asserts that he did not
submit a timely jury demand because depression negatively affected his cognitive functioning.
(Doc. 133 at 1.) Plaintiff does not cite any authority in support of his untimely request for a jury
trial. (See id.) On the other hand, Defendants offer no authority, nor can the Court find any, that
would strongly counsel against granting Plaintiff’s request under these circumstances.
In cases where courts have denied a plaintiff’s untimely request for a jury trial, other
factors have weighed into the courts’ decisions. See, e.g., Cordero v. Froats, No. 13-031
JCH/GBW, 2016 WL 7437133, at *1–2 (D.N.M. Oct. 19, 2016) (denying untimely request
where plaintiff marked “yes” on the Jury Demand section on the Civil Cover Sheet, but later
filed a Joint Status Report and a First Amended Joint Status Report describing the case as a
“non-jury case,” and an amended complaint that did not include a jury demand, and plaintiff did
not dispute defendant’s characterization of the case as one for bench trial at a settlement
conference, instead only raising it to the court in the pretrial order with the “trial date looming”);
Henry v. Albuquerque Job Corps Ctr., No. 11CV322 WJ/LAM, 2014 WL 12631440, at *1–2
(D.N.M. June 3, 2014) (denying untimely request where plaintiff “chose not to demand a jury
trial . . . due to the fact that some of her claims were required to go to a bench trial and she felt it
would be ‘awkward’ to have some claims tried before a jury and some tried before a judge[,]”
and where discovery terminated shortly after plaintiff filed her untimely request and defendants
argued they would have approached discovery and settlement differently if they had known it
was a jury case); Mathis v. Huff & Puff Trucking, Inc., No. 12-CV-29-F, 2012 WL 12914685, at
*2 (D. Wyo. Dec. 27, 2012) (denying untimely request where, during initial pretrial conference,
defense counsel mentioned that plaintiff had not filed a jury demand and court scheduled bench
trial; several months thereafter, plaintiff filed a jury trial request).
Here, there is no evidence that Plaintiff completed a Civil Cover sheet with a “jury
demand” option. (See Docs. 1; 8.) Additionally, the Court has examined the District’s Pro Se
Litigant Guide and can find no mention of the need to request a jury trial. (See
http://www.nmd.uscourts.gov/sites/nmd/files/ProSePackage.pdf.) There has been little or no
discovery conducted, and discovery does not terminate until April 26, 2018. (Doc. 139.) The
Court has not set pretrial conference or trial dates. Defendants have not contested Plaintiff’s
motion, and in fact, defense counsel allegedly informed Plaintiff at the parties’ meet and confer
meeting that he was able to request a jury trial. (See Doc. 133 at 1.)
While the Court finds Plaintiff’s request is untimely, the Court finds no reason so strong
or compelling to deny it. See, e.g., See, e.g., Kigera v. Bethesda Lutheran Cmtys., No. 2:16-cv02547-JTM-TJJ, 2017 WL 2418013, at *1–2 (D. Kan. June 5, 2017) (granting untimely request
for jury trial, despite the fact that on “an Employment Discrimination Complaint form offered by
the Court Clerk for use by pro se plaintiffs,” the pro se plaintiff checked “no” on the box next to
“Plaintiff requests trial by jury”); Gilkey v. ADT Sec., Inc., No. 11-1369-JAR, 2012 WL
1901287, at *1–2 (D. Kan. May 25, 2012) (finding “no strong and compelling reason to deny”
untimely request where “discovery was still ongoing[,]”the request came before the pretrial
conference, and defendant did not allege prejudice); Goff v. Owen Healthcare, Inc., 166 F.R.D.
492, 494–95 (D. Kan. 1996) (granting untimely request and noting that the plaintiff’s request
was late due to “personal illness and loss of a parent[,]” and defendant would not suffer prejudice
because the first discovery requests were served more than a month after plaintiff’s request);
Brown v. Wal-Mart Stores, Inc., No. CIV 05-1332 RB/KBM, Mem. Op. & Order, at *3 (D.N.M.
Aug. 9, 2006) (granting untimely request because discovery had only recently started and trial
was not scheduled for another year).
IT IS ORDERED that Plaintiff’s Request of Jury Trial (Doc. 133) is GRANTED.
ROBERT C. BRACK
UNITED STATES DISTRICT JUDGE
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