Lawrence v. Con-way Freight, Inc.

Filing 22

MEMORANDUM OPINION AND ORDER granting Plaintiff's 11 MOTION for Leave to Amend his Amended Complaint; further directing that the putative 8 Amended Complaint, filed 8/24/2012, is construed as having been filed in response to this Order. Signed by Judge John T. Copenhaver, Jr. on 10/29/2012. (cc: attys) (mkw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
FRANKLIN LAWRENCE,
Plaintiff,
v.

Civil Action No. 2:12-cv-2392

CON-WAY FREIGHT, INC.,
a Michigan Corporation,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending is plaintiff Franklin Lawrence‟s motion for
leave to amend his complaint, filed September 14, 2012.

Prior to

the filing of this motion seeking leave, Lawrence filed a putative
amended complaint on August 24, 2012, which the court for purposes
of this motion construes as lodged.

Lacking the ability to amend

as of right, and at the behest of defendant Con-way Freight, Inc.
(“Con-way”), Lawrence then filed this motion for leave to amend.
Insomuch as the amendment pertains exclusively to the
addition of a request for a jury trial, the court considers
Lawrence‟s motion under the standards of both Rule 15 and Rule 39
of the Federal Rules of Civil Procedure.

For reasons explained

herein, the court finds cause to exercise its discretion to allow
Lawrence‟s amendment and belated jury demand.

I. Background
Lawrence instituted this age discrimination and hostile
work environment action in the Circuit Court of Kanawha County,
West Virginia on March 19, 2012.

He “inadvertently did not

request a jury trial at the end of the Complaint.”
Amend 1.

Pl.‟s Mot.

Lawrence did, however, select “Yes” for question “III.

Jury Demand” on the Civil Case Information Statement, a form that
must accompany complaints under West Virginia procedural rules.
Not. Remov. Ex. A, at 5; see also W. Va. R. Civ. P. 3(b).

Con-way

removed the case on June 28, 2012, pursuant to this court‟s
diversity jurisdiction under 28 U.S.C. § 1332(a)(1).
The parties discussed the jury request issue at the Rule
26(f) planning meeting held August 17, 2012.
Mot. Amend 1.

Def‟s Opp‟n to Pl.‟s

At that time, Con-way took the position that

Lawrence had waived his right to a jury trial, and Lawrence
“reserved the right to file an appropriate motion.”
Planning Rep. 3.

R. 26(f)

Rather than filing a separate motion, Lawrence

made his jury demand in the August 24, 2012 putative amended
complaint, which is the subject of his motion for leave to amend
his complaint.

Lawrence filed the present motion in response to
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Con-way‟s insistence that Lawrence withdraw the amended complaint
and first move for leave of the court.

Def‟s Opp‟n to Pl.‟s Mot.

Amend 2.
The court entered the scheduling order on September 4,
2012, and Lawrence represents that the parties had conducted no
discovery as of the September 14, 2012 date he moved to amend his
complaint.

Pl.‟s Mot. to Amend 1.

II. The Governing Standard
Federal Rule of Civil Procedure 15(a)(2) provides that a
party who can no longer amend a pleading as of right can still
amend by obtaining “the opposing party‟s written consent or the
court's leave.”

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

“The court should

freely give leave when justice so requires.”

Id.

Rules 38 and 39 set forth the requirements for a jury
demand in federal court.

Rule 38(b) states that a party wishing

to demand a jury trial must serve a written demand “no later than
14 days after the last pleading directed to the issue is served.”
Fed. R. Civ. P. 38(b)(1).
28, 2012.

The defendant‟s answer was served June

“A party waives a jury trial unless its demand is

properly served and filed.”

Fed. R. Civ. P. 38(d).

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A party who has so waived a jury trial may turn to Rule
39(b) for relief.

Under Rule 39(b), “the court may, on motion,

order a jury trial on any issue for which a jury might have been
demanded.”

Fed. R. Civ. P. 39(b).

The resolution of a Rule 39(b)

motion is “committed to the discretion of the trial court,” as
guided by the following four factors:
(1) whether the issues are more appropriate for
determination by a jury or a judge (i.e., factual
versus legal, legal versus equitable, simple versus
complex); (2) any prejudice that granting a jury trial
would cause the opposing party; (3) the timing of the
motion (early or late in the proceedings); and (4) any
effect a jury trial would have on the court's docket
and the orderly administration of justice.
Malbon v. Pennsylvania Millers Mut. Ins. Co., 636 F.2d 936, 940 &
n.11 (4th Cir. 1980) (citations omitted).

Some courts also

consider the movant‟s reason for failing to make a timely jury
demand.

See e.g., Farias v. Bexar Cnty. Bd. of Trs. for Mental

Health Retardation Servs, 925 F.2d 866, 873 (5th Cir. 1991);
Kitchen v. Chippewa Valley Sch., 825 F.2d 1004, 1012–13 (6th Cir.
1987).

III. Discussion
The permissive standards of Rule 15(a)(2) provide no bar
to Lawrence‟s amendment, especially given that the litigation is
in its early stages.

The jury demand provisions of Rule 38 and

Rule 39 call for somewhat greater scrutiny.
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Lawrence did not

properly serve and file his demand as required by Rule 38, so he
has waived his right to a jury trial.

Unable to demand a jury

trial as of right, Lawrence must turn to Rule 39(b) for relief.
The court finds that the Rule 39(b) factors weigh in
favor of allowing Lawrence to amend his complaint to include a
jury demand.

First, the issues to be tried in this case - age

discrimination and hostile work environment claims - are
appropriate for determination by a jury.

Such issues likely hinge

on fact-intensive determinations and should not be overly complex
for jurors.

See Wallace v. Nationwide Ins. Co., 94 F.R.D. 563,

565 (S.D. W. Va. 1982).

Second, the addition of a jury demand

does not prejudice Con-way.

Con-way has had notice of Lawrence‟s

jury demand via Lawrence‟s selection on the Civil Case Information
Statement and the parties‟ ongoing discussions regarding the
issue.

Moreover, only a month has passed since the court entered

the scheduling order, and the trial is over nine months away.
id.

See

Con-way thus has ample time to prepare for a jury trial.
Third, and for similar reasons, the timing of the motion

relative to the case‟s proceedings counsels for leniency.

The

trial is not impending, and Lawrence has represented, without any
disagreement by Con-way, that the parties had not begun discovery
at the time of the motion.

Fourth, the court finds that limiting

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Lawrence to a bench trial provides no clear benefit in judicial
economy.

See id. at 566 (“[I]t is this Court‟s experience that

while a jury trial can require more „in courtroom time‟ than a
bench trial, the latter clearly places a greater burden on this
Court‟s limited time and resources than does the former.”).

The

four factors squarely favor exercising this court‟s discretion to
grant Lawrence‟s jury demand.
The court‟s conclusion is not disturbed by also taking
into account Lawrence‟s reasons for failing to make a timely jury
demand.

Con-way asserts that more than “mere inadvertence” is

“generally required to justify” the court to allow a jury claim
despite non-compliance with Rule 38.
Amend 2.

Def‟s Opp‟n to Pl.‟s Mot.

Con-way overstates the holdings of the cases it cites.

For example, the relevant passage in McCray does not require
“exceptional circumstances,” for a court to allow an untimely jury
demand under Rule 39(b), as Con-way seems to suggest.

The Fourth

Circuit in McCray simply observed that exceptional circumstances
would have been necessary to overturn the trial court‟s Rule 39(b)
denial as an abuse of discretion.

McCray v. Burrell, 516 F.2d

357, 371 (1975) (“Of course the district court had discretion to
grant the request, in whole or in part, notwithstanding, but we
cannot say that there were such exceptional circumstances that the
failure to grant the oral motion was an abuse of discretion.”
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(emphasis added) (citation omitted)).

While some combination of

inadvertence and confusion seems to have accompanied Lawrence‟s
failure to comply with the strictures of Rule 38, he has since
acted at an early stage of the case to remedy the lack of a formal
jury demand.

The interests of justice are better served here by

affording the parties a jury trial inasmuch as Lawrence has at all
times expressly represented his wish to exercise that right and
the defendant would not be prejudiced.
It is, accordingly, ORDERED that Lawrence‟s motion to
amend his complaint be, and it hereby is, granted.

The court

further ORDERS that the putative Amended Complaint, filed August
24, 2012, be, and it hereby is, construed as having been filed in
response to this order.
The Clerk is requested to forward copies of this order
to all counsel of record.
ENTER: October 29, 2012
John T. Copenhaver, Jr.
United States District Judge

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