Before the Court are two motions:

(1) Motion for Jury Trial Despite Waiver (Rec. Doc. 10) filed by defendants Jefferson Partners, LTD., Clarendon National Insurance Company, and Tracy D. Williams;

(2) Motion for Jury Trial Pursuant to FRCP 39(b) (Rec. Doc. 13) filed by defendant Greyhound Lines, Inc.

The motions, set for hearing on August 30, 2000, are before the Court on briefs without oral argument. Plaintiffs oppose both motions. For the following reasons, Defendants' motions are granted.

BACKGROUND

The original suit in this matter was filed in state court on February 17, 2000, seeking damages for injuries arising out of a bus accident. Defendant Greyhound Lines, Inc. ("Greyhound") removed the suit to this Court on April 19, 2000. Defendants answered the complaint but no defendant requested a trial by jury. However, at the July 20, 2000 preliminary conference, counsel for defendants Jefferson Partners, LTD., Clarendon National Insurance Company, and Tracy D. Williams (the "Jefferson defendants") notified the Court and other counsel of record of his intent to file a motion for jury trial despite waiver because previous counsel had inadvertently failed to request a jury trial. On July 25, 2000, and August 2, 2000, respectively, the Jefferson defendants and Greyhound filed the instant motions seeking to have this case tried to a jury. On August 17, 2000, this suit was consolidated with Civil Action No. 00-2170,Oliver v. Williams, because both suits arise out of the same bus accident.

DISCUSSION

Under Federal Rule of Civil Procedure 38(b)-(d), a party's failure to timely request a trial by jury constitutes a waiver by that party of his right to a trial by jury. Nevertheless, Federal Rule of Civil Procedure 39(b), gives the district court discretion to relieve a party from waiver of a jury trial.Swofford v. B W, Inc., 336 F.2d 406, 409 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 653, 13 L.Ed.2d 557 (1964). Further, "[t]he right to a jury in a federal court as declared by the Seventh Amendment is a basic and fundamental feature in our system"; thus, there is a policy in favor of allowing a jury trial and "the court should grant a jury trial in the absence of strong and compelling reasons to the contrary." Swofford, 336 F.2d at 409 (citing Albert v. R. P. Farnsworth Co., 176 F.2d 198, 203 (5th Cir. 1949). A motion for trial by jury under FRCP 39(b) "should be favorably received unless there are persuasive reasons to deny it." United States v. Unum, 658 F.2d 300, 303 (5th Cir. 1981).

In Daniel International Corp. v. Fischbach Moore. Inc., 916 F.2d 1061, 1064 (5th Cir. 1990), the Fifth Circuit set forth five factors that district courts should consider in the exercise of discretion under FRCP 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.

Applying the Daniel factors to the present case, there are strong and compelling reasons to grant Defendants' motions for a jury trial. First, an action for personal injuries presents straightforward factual and legal issues for a jury to decide. On this point, Plaintiffs argue that the sole issue is the amount of damages, and that, due to the consolidation of this case withOliver v. Williams, the jury could be confused by the presentation of medical testimony by two different plaintiffs or may not award full damages to a plaintiff in an effort to make the awards proportionate. Nevertheless, the factual and legal issues presented are routinely and easily tried by a jury and juries frequently hear evidence on multiple parties.

Second, granting the motion would not result in a disruption to the Court's schedule or Plaintiffs' schedule because the motion for a jury trial despite waiver was early. The Court and opposing parties were notified of the Jefferson defendants' intent to file the motion at the preliminary conference; further, trial in this matter is not set to begin until July 16, 2001.

Third, there would be little to no prejudice to Plaintiffs. Defendants' request is not on the eve of trial and Plaintiffs surely have not prepared their case for trial at this juncture.See Carr v. Wal-Mart Stores, Inc., 138 F.R.D. 80, 82 (M.D. La. 1991).

Fourth, the two month delay is not so lengthy as to counsel against the grant of the request for a jury trial despite waiver. For example, in Carr, the court found that in the absence of prejudice or any other strong and compelling reason against the grant of the request, a four month delay, standing alone, was insufficient reason to deny the Rule 39(b) request. 138 F.R.D. at 82 (citing Daniel, 916 F.2d at 1064-65 (four month delay did not counsel against granting an untimely jury trial request);Swofford, 336 F.2d at 409 (district court did not abuse its discretion in granting an untimely jury trial request despite a nine month delay in requesting a jury trial)).

Finally, Defendants maintain that the reason for the tardy request is the presumable inadvertence of previous counsel. While mere inadvertence will not relieve a party of a waiver of its right to a jury trial, the Jefferson defendants' new counsel of record promptly notified the Court and Plaintiffs of his intent to request a jury trial. Thus, although Defendants' attorney conceded that previous counsel inadvertently failed to timely request a jury trial, numerous reasons favor granting the request, including the fundamental right to a jury trial under the Seventh Amendment. See Carr, 138 F.R.D. at 81; FRCP 38(a).

Plaintiffs suggest that because Defendants refer to the presumable inadvertence of prior counsel as the reason for the tardiness of the request for a jury trial, the Court need not consider the five factors set out by the Fifth Circuit in Daniel. This argument is without merit because the fifth factor requires the Court to take into consideration the reason for the tardiness in the movant's request. Thus, the five factors should be considered even when the reason given for the failure to timely request the jury trial is inadvertence. See Carr, 138 F.R.D. at 82 (considering the five factors despite the attorney's concession of inadvertence on his part)

Plaintiffs also cite Gelardi v. TransAmerica Occidental Life Insurance Co., 163 F.R.D. 495 (E.D. Va. 1995), for the proposition that the Court should only grant the Rule 39(b) request when the movant presents exceptional circumstances, beyond mere inadvertence, to justify waiver. This is not the law in this jurisdiction. In fact, the Fifth Circuit's position is quite the opposite: A Rule 39(b) request should be granted in the absence of strong and compelling reasons to the contrary. See Swofford, 336 F.2d at 409 (citing Albert v. R. P. Farnsworth Co., 176 F.2d 198, 203 (5th Cir. 1949)); see also 9 C. Wright A. Miller, Federal Practice and Procedure § 2334, at 115-16 (1995 Supp. 2000).

Thus, in light of the strong and compelling reasons to grant the Rule 39(b) request, including the fundamental right to a jury trial under the Seventh Amendment, the Court finds that Defendants' motions for jury trial despite waiver should be granted. Accordingly,

IT IS ORDERED that the Motion for Jury Trial Despite Waiver filed by defendants Jefferson Partners, LTD., Clarendon National Insurance Co., and Tracy D. Williams should be and is hereby GRANTED; IT IS FURTHER ORDERED that the Motion for Jury Trial Pursuant to FRCP 39(b) filed by defendant Greyhound Lines, Inc. should be and is hereby GRANTED.

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