Turner v. Computer Sciences Corporation

Filing 27

ORDER entered: No later than November 15, 2013, the plaintiff must file a motion under Rule 39(b) and explain why the court should grant a jury trial despite the untimeliness of his demand. The defendant may file a response no later than November 25, 2013. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ADAM TURNER,
Plaintiff,
VS.
COMPUTER SCIENCES CORP.,
Defendant.

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CIVIL ACTION NO. H-13-0888

ORDER
This employment discrimination case was filed in January 2013 and timely removed from
state court on the basis of diversity jurisdiction. When the plaintiff filed suit, he did not demand a
jury. Nor did he demand a jury within the 14 days after the defendant filed an answer. Instead, the
plaintiff filed a jury demand in July 2013, when he amended his complaint. That was over six
months after he filed suit and over two months after the deadline expired. The amended complaint
added a new theory of recovery, based like the prior claims on allegations that he was fired based
on racial discrimination and retaliation. The amended complaint did not plead additional facts or
explain why a jury demand had not been sought earlier.
The defendant has moved to strike the plaintiff’s jury demand. (Docket Entry No. 26). The
plaintiff has filed no response.
Rules 38 and 39 of the Federal Rules of Civil Procedure provide:
Rule 38. Right to a Jury Trial; Demand
(a) 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.

(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 demandwhich 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).
(c) 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.
(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.
...
Rule 39. Trial by Jury or by the Court
(a) 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 jury
unless:
(1) the parties or their attorneys file a stipulation to a
nonjury trial or so stipulate on the record; or
(2) 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 trial.
(b) When No Demand Is Made. Issues on which a jury trial is not
properly demanded are to be tried by the court. But the court may,
on motion, order a jury trial on any issue for which a jury might have
been demanded.
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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 that contests the issue triable by a jury, such as an answer to a complaint or a reply to
a counterclaim. In Cambridge Integrated Services Group, Inc. v. Concentra Integrated Services,
Inc., No. 2:08-0316 (CMH), 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. The
court also noted that “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 third-party answer,
or (7) a court ordered reply to an answer.” Id. at *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.” Id. (citing In re Tex. Gen. Petroleum Corp., 52 F.3d
1330, 1339 (5th Cir. 1995) (additional citations omitted)).
Although the plaintiff did not timely file his jury demand, that does not end the inquiry
because Rule 39(b) gives the court discretion to grant an untimely demand. Turner has not
responded to the motion to strike or moved under Rule 39(b). “[I]f a jury trial has been waived, a
motion is necessary to invoke the court’s discretion since the court may not employ Rule 39(b) on
its own initiative. Swofford v. B&W, Inc., 336 F.2d 406, 409 (5th Cir. 1964). The Fifth Circuit,
however, “think[s] that when a demand has been made, though untimely, it is not reversible error
for the district court to exercise its discretion under Rule 39(b) even though [the Fifth Circuit] has
advised previously that a motion to the court under Rule 39 rater than service of a demand under

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Rule 38 is the proper course.” Id. (quotation omitted); see also Oramulu v. Washington Mut. Bank,
No. 4:08-cv-0277 (KPE), 2008 WL 8479349, at *1 n.2 (S.D. Tex. Apr. 17, 2008). “[W]hen the
discretion of the court is invoked under Rule 39(b), the court should grant a jury trial in the absence
of a strong and compelling reason to the contrary.” Daniel Int’l Corp. v. Fischbach & Moore, Inc.,
916 F.2d 1061, 1064 (5th Cir. ) (quotation omitted).
No later than November 15, 2013, the plaintiff must file a motion under Rule 39(b) and
explain why the court should grant a jury trial despite the untimeliness of his demand. The
defendant may file a response no later than November 25, 2013.

SIGNED on October 23, 2013, at Houston, Texas.
______________________________________
Lee H. Rosenthal
United States District Judge

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