Bogart v. Salvation Army, Inc.

Filing 40

MEMORANDUM OPINION re: pltf's Motion to Amend and deft's Motion to Strike Pltf's Jury Demand. Signed by Magistrate Judge Theresa Carroll Buchanan on 09/29/11. (pmil)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

Nancy L. Bogart,
Plaintiff,
v.
Salvation Army, Inc.,
Defendant.

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Civ. No. 1:11cv725

MEMORANDUM OPINION
THIS MATTER came before the court on plaintiff’s Motion to
Amend (Doc. 29) and defendant’s Motion to Strike Plaintiff’s
Jury Demand (Doc. 34).

The Court has reviewed the pleadings.

The Court finds that the proposed First Amended Complaint
contains sufficient factual allegations to state a claim for
relief as required by Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) and Ashcraft v. Iqbal, 129 S. Ct. 1937 (2009).

At

this stage, the Court does not find the Complaint to be futile
and is required to give leave to amend “when justice so
requires.”

Fed. R. Civ. P. 15(a)(2).

The Court further finds that plaintiff’s Request for Jury
Trial (Doc. 32) was not timely filed and therefore should be
stricken.

Although Judge Lee dismissed plaintiff’s original

Complaint without prejudice while giving her the opportunity to
re-file, she “must remain bound to [her] waiver of a jury trial

on the basis of the original pleadings.”

See Cardio-Medical

Assocs., Ltd. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 76-77
(3d. Cir. 1983).
Therefore, plaintiff’s Motion to Amend (Doc. 29) is GRANTED
and defendant’s Motion to Strike Plaintiff’s Jury Demand (Doc.
34) is GRANTED.

An appropriate Order shall be issued.

ENTERED this 29th day of September, 2011.

/s/
THERESA CARROLL BUCHANAN
UNITED STATES MAGISTRATE JUDGE
Alexandria, Virginia