M.B. et al v. Landgraf
Filing
141
MEMORANDUM OPINION AND ORDER. It is ORDERED that Plaintiffs' Motion for Extension of Time to File Jury Demand and, Alternatively, Motion for Jury Trial is GRANTED (Dkt. # 74 ). Pursuant to Federal Rule of Civil Procedure 39(b), the Court ORDERS that this case will proceed to a jury trial on the issues. Signed by District Judge Amos L. Mazzant, III on 2/5/2019. (rpc, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
M.B., I.B., and J.S.
v.
MATTHEW G. LANDGRAF
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Civil Action No. 4:14-CV-00708
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs M.B., I.B., and J.S.’s Motion for Extension of Time
to File Jury Demand and, Alternatively, Motion for Jury Trial (Dkt. #74). Having considered the
motion and the relevant pleadings, the Court finds that Plaintiffs’ motion should be granted.
BACKGROUND
Plaintiffs filed this case on November 7, 2014 (Dkt. #1). Defendant Matthew G. Landgraf
did not file a timely answer to Plaintiffs’ Complaint (See Dkt. #3). Consequently, Plaintiffs moved
for a default judgment, and the Court entered a default judgment on April 4, 2016 (Dkt. #14;
Dkt. #18). Exactly one year later, on April 4, 2017, Defendant moved to set aside the default
judgment (Dkt. #22). The Court set aside the default judgment on November 15, 2017, and
Defendant filed his Answer on November 27, 2017 (Dkt. #33).
On August 1, 2018, Plaintiffs filed their Motion for Extension of Time to File Jury Demand
and, Alternatively, Motion for Jury Trial (Dkt. #74). Plaintiffs move for an extension of time to
file a jury demand pursuant to Federal Rule of Civil Procedure 6(b) or requests the Court to order
a jury trial pursuant to Federal Rule of Civil Procedure 39(b) (Dkt. #74 ¶¶ 1, 5). Defendant filed
a response to the motion on August 15, 2018 (Dkt. #76). Plaintiffs filed a reply in support of the
motion on August 22, 2018 (Dkt. #81).
LEGAL STANDARD
“The right to jury trial preserved by the Seventh Amendment to the Constitution and
embodied in Federal Rule 38(a) is not self-enforcing.” 9 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2318 (3d ed. 2018). Accordingly, a party who seeks a jury trial
must demand one. See Bush v. Allstate Ins. Co., 425 F.2d 393, 396 (5th Cir.), cert. denied, 400
U.S. 833 (1970) (a party’s failure to make a timely jury demand constitutes a waiver of its right to
a jury trial).
The Federal Rules of Civil Procedure provide methods for demanding a jury trial. Rule 38
explains:
(b) Demand. 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).
....
(d) 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.
If a party waives its right to trial by jury, Rule 39(b) provides that “the court may, on
motion, order a jury trial on any issue for which a jury might have been demanded.” In other
words, Rule 39(b) grants the Court discretion “to relieve a party from waiver of a jury trial . . . .”
Daniel Intern. Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1064 (5th Cir. 1990) (citing
Swofford v. B & W, Inc., 336 F.2d 406, 408 (5th Cir.), cert. denied, 379 U.S. 962 (1964)). The
Court’s discretion under Rule 39(b) is not unlimited because the Court is required to “to grant a
motion for jury trial . . . ‘in the absence of strong and compelling reasons to the contrary.’”
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Pinemont Bank v. Belk, 722 F.2d 232, 236 (5th Cir. 1984) (quoting Cox v. C.H. Masland & Sons,
Inc., 607 F.2d 138, 144 (5th Cir. 1979)). This restraint on the Court’s discretion is “based on the
long-accepted observation that the right to trial by jury ‘is a basic and fundamental feature of our
system.’” Lewis v. Thigpen, 767 F.2d 252, 259 (5th Cir. 1985) (quoting Swofford, 336 F.2d at 409).
Courts analyze five factors when considering whether to order a jury trial 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, 916 F.2d at 1064 (citing Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.), cert. denied,
464 U.S. 936 (1983)). Courts do not “simply tally the [Daniel] factors when deciding a Rule 39(b)
motion and see whether more factors favor granting or denying the motion.” Bell v. Gen. Am. Life
Ins. Co., 3:13-CV-1846-D, 2014 WL 815382, at *2 (N.D. Tex. Mar. 3, 2014). Instead, courts
consider “all the factors holistically, keeping firmly in mind the Seventh Amendment fundamental
right of trial by jury.” Id.
Additionally, the Court may extend filing periods under Federal Rule of Civil Procedure
6(b) for good cause. If the motion for extension of time is made after the expiration of a deadline,
the party must show that it failed to act because of excusable neglect. FED. R. CIV. P. 6(b)(1)(B).
“Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually
constitute ‘excusable’ neglect, it is clear that ‘excusable neglect’ under Rule 6(b) is a somewhat
‘elastic concept’ and is not limited strictly to omissions caused by circumstances beyond the
control of the movant.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
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392 (1993) (footnotes omitted). “Relevant factors to the excusable neglect inquiry include: the
danger of prejudice to the [non-movant], the length of the delay and its potential impact on the
judicial proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith.” Adams v. Travelers Indem.
Co. of Conn., 465 F.3d 156, 161 n.8 (5th Cir. 2006) (alteration in original) (internal quotation
marks and citations omitted). “Even if good cause and excusable neglect are shown, it nonetheless
remains a question of the court’s discretion whether to grant any motion to extend time under Rule
6(b).” McCarty v. Thaler, 376 F. App’x. 442, 444 (5th Cir. 2010) (citing Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 894–98 (1990)).
ANALYSIS
Plaintiffs move the Court to extend the deadline to file a jury demand under Rule 6(b) or
order a jury trial pursuant to Rule 39(b). As cited above, the factors considered under either a
Rule 6(b) or 39(b) analysis are essentially the same. See Adams, 465 F.3d at 161 n.8; Daniel, 916
F.2d at 1064 (citing Parrott, 707 F.2d at 1267).
After consideration of the Rule 6(b) and
Rule 39(b) factors, the Court orders a jury trial pursuant to Rule 39(b).
I.
Issues Best Tried to a Jury
The first factor is whether the issues are best tried to a jury. Plaintiffs allege that when
they were minors Defendant surreptitiously recorded them engaging in sexually explicit conduct
and while nude in the bathroom (Dkt. #1 ¶ 8). Plaintiffs assert claims under 18 U.S.C. § 2255 and
for invasion of privacy under Texas law (Dkt. #1 ¶¶ 10–13). A review of Plaintiffs’ claims, the
pending motions, and pleadings, demonstrates to the Court that this case is particularly factintensive. Accordingly, this case is best tried to a jury, and the first factor weighs in favor of
granting Plaintiffs’ motion.
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II.
Schedule
The second factor is whether granting the motion would result in a disruption of the Court’s
schedule or that of an adverse party. The date for trial in this case will be set at the Final Pretrial
Conference. In setting a trial date, the Court will consider the parties’ schedules. Whether the
case is tried to a jury or the bench will not affect the scheduling of the trial. Further, granting
Plaintiffs’ motion will not require any amendments to the Scheduling Order. Therefore, the second
factor weighs in favor of granting Plaintiffs’ motion.
III.
Prejudice to Defendant
The third factor is the degree of prejudice to the adverse party. Defendant argues this factor
“strongly weighs against the Court granting the extension of time” because “[t]he defendant has
made a number of trial preparation decisions in reliance upon this case being a bench trial and not
a jury trial.” (Dkt. #76 ¶ 5). These decisions include “determinations about seeking psychological
records of the Plaintiffs and a decision to forgo employing several experts . . . .” (Dkt. #76 ¶ 5).
Defendant does not demonstrate sufficient prejudice to prevent the granting of Plaintiffs’
motion. The burden of proof does not change depending on whether the factfinder is a jury or the
Court.
Therefore, the need for expert testimony and evidence of Plaintiffs’ psychological
condition does not change depending on whether the case is tried to a jury or the Court.1 Defendant
does not indicate any other prejudice that might result from granting Plaintiffs’ motion.
Consequently, this factor weighs in favor of granting Plaintiffs’ motion.
IV.
Degree of Delay
The next factor to consider is the length of delay in demanding a jury trial. As mentioned
previously, Plaintiffs filed this case on November 7, 2014 (Dkt. #1). Plaintiffs did not demand a
1. It appears Defendant is now seeking Plaintiffs’ psychological records (See Dkt. #95).
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jury in the Complaint (Dkt. #1). After the entry of the default judgment against Defendant on
April 4, 2016, nothing occurred in the case until Defendant moved to set aside the default judgment
on April 4, 2017 (Dkt. #18; Dkt. #22). Plaintiffs did not file their jury demand until August 1,
2018 (Dkt. #74).
Plaintiffs’ delay is substantial, but it is not unique in this case. Ironically, Defendant argues
Plaintiffs’ “233-day” delay is unjustified (Dkt. #76 ¶¶ 8–9, 11). Defendant does not mention that
he waited until the last moment to move to set aside the default judgment entered against him—a
365-day delay (See Dkt. #33 at p. 6). Even so, Plaintiffs’ delay weighs in favor of denying
Plaintiffs’ motion.
V.
Reason for Tardiness
The final factor is the reason for tardiness in requesting a jury trial. The Court must also
consider whether the reason for delay was within the reasonable control of Plaintiffs and whether
Plaintiffs acted in good faith. Plaintiffs’ Counsel explains why Plaintiffs failed to make a timely
jury demand:
Plaintiffs did not . . . demand a jury in accordance with Fed. R. Civ.
P. 38(b) because Plaintiffs’ counsel has no federal jury trial
experience and was not aware the deadline to demand a jury was
tied to the filing of Defendant’s Answer and was not consistent with
state law, which requires the jury demand be made at least thirty
(30) days before the case is set for trial.
(Dkt. #74 ¶ 4, b) (citing TEX. R. CIV. P. 216). Defendant argues Plaintiffs’ Counsel’s mistake is
not excusable (Dkt. #76).
Under the Rule 6(b) standard, “inadvertence, ignorance of the rules, or mistakes construing
the rules do not usually constitute ‘excusable’ neglect, [however] it is clear that ‘excusable neglect’
under Rule 6(b) is a somewhat ‘elastic concept’ and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.” Pioneer Inv. Servs. Co., 507 U.S. at 392. Under
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the Rule 39(b) analysis, the Court does not “simply tally the [Daniel] factors when deciding a Rule
39(b) motion and see whether more factors favor granting or denying the motion.” Bell, 2014 WL
815382, at *2. Instead, courts consider “all the factors holistically, keeping firmly in mind the
Seventh Amendment fundamental right of trial by jury.” Id. Further, the Court is required “to
grant a motion for jury trial . . . ‘in the absence of strong and compelling reasons to the contrary.’”
Pinemont, 722 F.2d at 236 (quoting Cox, 607 F.2d at 144).
The Court finds Plaintiffs’ Counsel’s mistake is not a result of bad faith, although the
mistake was within Plaintiffs’ Counsel’s control. However, the Court also finds no compelling
reasons to preclude Plaintiffs from exercising their rights to a jury trial besides Plaintiffs’
Counsel’s mistake and delay. As the mistake and delay do not cause prejudice to Defendant, affect
the Court’s schedule, and because the issues are best tried to a jury, the Court finds Plaintiffs’
motion should be granted.
CONCLUSION
It is therefore ORDERED that Plaintiffs’ Motion for Extension of Time to File Jury
.
Demand and, Alternatively, Motion for Jury Trial is GRANTED (Dkt. #74). Pursuant to Federal
Rule of Civil Procedure 39(b), the Court ORDERS that this case will proceed to a jury trial on the
issues.
IT IS SO ORDERED.
SIGNED this 5th day of February, 2019.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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