Johnson v. Deere & Company et al

Filing 14

ORDER denying as 8 Motion to Strike; granting 13 Renewed Motion for Jury Trial, Response in Opposition to Motion to Strike Jury Request and Brief. Signed by Honorable Timothy D. DeGiusti on 3/10/2015. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
EDITH DIANE JOHNSON, Widow of
ROCKY ALLEN JOHNSON and
Administrator of the Estate of
ROCKY ALLEN JOHNSON, Deceased,
Plaintiff,
v.
DEERE & COMPANY, a Delaware
Corporation, and CAROLYN MUTH
Defendants.

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Case No. CIV-14-1310-D

ORDER
Before the Court are Defendant Deere & Company’s Motion to Strike Plaintiff’s Request for
Jury Trial and Brief in Support [Doc. No. 8] and Plaintiff’s Renewed Motion for Jury Trial,
Response to Defense Motion to Strike Jury Request & Brief [Doc. No. 13]. The matter is ready for
decision.
I.

Procedural History
Plaintiff commenced this action on April 25, 2014, by filing a petition [Doc. No. 1-1] in the

District Court of Noble County, State of Oklahoma. Defendant Deere & Company (Deere) filed its
answer [Doc. No. 1-6] on November 10, 2014.
Thereafter, on November 24, 2014, Deere filed its Notice of Removal [Doc. No. 1]. Forty-six
days later, on January 9, 2015, Plaintiff filed a Demand for Jury Trial [Doc. No. 6].
II.

Discussion
Pursuant to this Court’s local rules, “[u]nless demanded in the state court, trial by jury is

waived in any case removed from a state court unless a demand for a jury trial is filed and served
. . . within 14 days after receiving service of the notice of removal.” LCvR 81.1. Additionally, Fed.

R. Civ. P. 81(c)(3)(B) provides that “[i]f all necessary pleadings have been served at the time of
removal, a party entitled to a jury trial under Rule 38 must be given one if the party serves a demand
within 14 days after . . . it is served with a notice of removal filed by another party.”
Plaintiff did not make a demand for a jury trial in state court, see Fed. R. Civ. P. 81(c)(3)(A),
and did not timely demand a jury trial within the fourteen-day period required by LCvR 81.1 and
Fed. R. Civ. P. 81(c)(3)(B).1 Plaintiff concedes the demand for a jury trial was not timely filed but
Plaintiff asks the Court to exercise its discretion and grant a jury trial. Pursuant to Fed. R. Civ. P.
39(b), the Court may exercise its discretion and grant a jury trial “on motion” and “on any issue for
which a jury might have been demanded.” In support, Plaintiff contends that Deere has not been
prejudiced by its belated demand as the case remains in its early stages and further that the demand
has been made within a reasonable time.
Absent “strong and compelling reasons,” 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); see also Green Constr. Co. v. Kansas Power & Light Co., 1 F.3d 1005, 1011 (10th Cir.
1993). Because the case is at its early stages and Deere has not identified in particular prejudice, the
Court finds Plaintiff’s renewed motion for a jury trial should be granted.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Strike Plaintiff’s Request for Jury
Trial and Brief in Support [Doc. No. 8] is DENIED as moot.

1

Rule 81(c)(3)(A) states that “[i]f the state law did not require an express demand for a jury
trial, a party need not make one after removal unless the court orders the parties to do so within a
specified time.” Id. Although Oklahoma does not require an express demand for a jury trial, see
Okla. Stat. tit. 12, § 556, the local rules of this Court require a plaintiff to file and serve a demand
for a jury trial within 14 days after the notice of removal is filed.
2

IT IS FURTHER ORDERED that Plaintiff’s Renewed Motion for Jury Trial, Response to
Defense Motion to Strike Jury Request & Brief [Doc. No. 13] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff is granted a right to a jury trial.
IT IS SO ORDERED this 10th day of March, 2015.

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