Opinion
CIVIL ACTION NO. 03-2195, SECTION "N".
December 29, 2004
ORDER AND REASONS
Before the Court is a Motion for Trial by Jury filed by plaintiffs on November 10, 2004. (Rec. Doc. No. 89). For the reasons stated herein, plaintiffs' motion is DENIED.
I. BACKGROUND
Plaintiffs in this case filed a class action lawsuit in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines, State of Louisiana, on May 21, 2003, against defendants Gulf South Pipeline Company, L.P. ("Gulf South") and El Paso Field Services Company ("El Paso"). Plaintiffs' cause of action against the defendants is ex contractu. Plaintiffs claim damages as a result of Gulf South's alleged breach of servitude and right-of-way agreements by failing to maintain pipeline canals and to restore the property that has been damaged as a result of the defendants' continuing failure to maintain the pipeline canals in their original state. In their state court petition, plaintiffs did not request a trial by jury. On August 1, 2003, the class action lawsuit was timely removed to this Court based on complete diversity and the requisite jurisdictional amount, pursuant to 28 U.S.C. § 1332. See generally Notice of Removal (Rec. Doc. No. 1). Thereafter, Gulf South and El Paso each filed an answer to the complaint; neither defendant requested a trial by jury. (Rec. Doc. Nos. 3 and 4).
El Paso has since been dismissed without prejudice from this action. (Rec. Doc. No. 66).
On September 16, 2003, plaintiffs sought to amend their original petition to join various non-diverse subcontractors allegedly hired by the original defendants and/or other third parties against whom the defendants alleged "other fault" as an affirmative defense. (Rec. Doc. No. 9). In the Amended Complaint sought to be filed, plaintiffs did not demand a jury trial. On October 16, 2003, Magistrate Judge Daniel Knowles dismissed the motion without prejudice as premature. (Rec. Doc. No. 19).
On November 21, 2003, plaintiffs filed a Motion to Remand on the grounds that complete diversity did not exist. (Rec. Doc. No. 21). For the next four months, the parties conducted jurisdictional discovery, and the matter came for hearing on March 17, 2004. On the hearing date, in open court and following oral argument, the Court denied plaintiff's Motion to Remand. (Rec. Doc. No. 53).
On June 8, 2004, the Court held a Preliminary Conference during which this case was set for bench trial on April 4, 2005. Later that day, the Court issued a Scheduling Order which clearly states that the trial was to be "before the District Judge without a jury." See Scheduling Order, p. 3 (emphasis in original) (Rec. Doc. No. 65).
On July 2, 2004, following a seven-month period of discovery relative to the non-diverse contractors, plaintiffs again sought leave to file their first amended complaint for the purposes of adding as defendants non-diverse contractors and third parties. (Rec. Doc. No. 67). The Amended Complaint for which plaintiffs sought leave to file did not include a jury demand. On July 28, 2004, Magistrate Knowles denied plaintiffs' motion for reasons orally given on that date. (Rec. Doc. No. 73).
On November 10, 2004, plaintiffs filed the instant Motion for Trial by Jury. The Court set the motion for hearing on December 8, 2004. (Rec. Doc. No. 90). Gulf South opposes plaintiffs' motion.
II. LAW AND ANALYSIS
Rule 38(b) of the Federal Rules of Civil Procedure entitles a party to a jury trial on any issue triable by a jury if a demand is served "not later than 10 days after the service of the last pleading directed to such issue. . . ." Under Rule 38(d), a party's failure to timely request a trial by jury constitutes a waiver of that party to a trial by jury. Plaintiffs do not dispute that they failed to demand a jury in this case. Plaintiffs request, however, that the Court relieve them from the waiver of a jury trial in this matter.
Federal Rule of Civil Procedure 39(b) provides that "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues." The purpose of the rule is "to allow a trial court to use its discretion to grant jury trials in unique situations which call for them where, nevertheless, the requisites of Rule 38 have not been met." Pinemont Bank v. Belk, 722 F.2d 232, 237 (5th Cir. 1984). In Swofford v. B W, Inc., 336 F.2d 405 (5th Cir. 1964), the Court held that a district court has "broad discretion" under Rule 39(b) to relieve a party from waiver of a jury trial. 336 F.2d at 408-09 (holding hat a party's untimely request for a jury could be construed as a motion for relief under Rule 39).
The Swofford court further held that a motion under Rule 39 should be granted absent "strong and compelling reasons to the contrary." 336 F.2d at 409. In Pinemont Bank, supra, the Fifth Circuit instructed district courts to "approach each application under Rule 39(b) with an open mind and an eye to the factual situation in that particular case, rather than with a fixed policy against granting the application or even a preconceived notion that applications of this kind are usually denied." 722 F.2d at 257. This is so because a party's right to a jury trial under the Seventh Amendment is implicated.
In Daniel International Corporation v. Fishbach Moore, Inc., 916 F.2d 1061 (5th Cir 1990), the Fifth Circuit identified the following factors for a district court to consider in the exercise of its discretion:
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.916 F.2d at 1064 (citations omitted).
Having applied the five factors as articulated in Daniel to the present case, the Court concludes that strong and compelling reasons exist to deny plaintiffs' Motion for Trial by Jury. First, the Court is not convinced that this action, filed in state court as a class action seeking an award for damages to multiple tracts of marsh and wetlands property, presents straightforward factual and legal issues best tried to a jury. See, e.g., Route v. Oschner Clinic Foundation, 2003 WL 203086 (E.D.La. Jan. 28, 2003) (Porteous, J.) (finding that race discrimination claims filed by multiple defendants are best handled by the court). Cf., Sartin v. Cliff's Drilling Co., 2004 WL 551209, at *1 (E.D.La. March 18, 2004) (Vance, J.) (finding, in maritime action seeking damages for personal injuries, that a jury is well-suited for resolving that type of fact-intensive dispute based on well-settled legal principles); Istre v. Williams, 2000 WL 1473595, at *2 (E.D.La. Sept. 29, 2000) (Barbier, J.) (finding that an action seeking damages for personal injuries arising out of a bus accident presented straightforward factual and legal issues which are routinely and easily tried by a jury). Rather, the Court finds that this one factor neither militates in favor of or against a trial by jury.
In arguing that the need in this matter for the trial testimony of many experts weighs in favor of trial by jury, plaintiffs have misinterpreted Rule 702 of the Federal Rules of Evidence. Plaintiffs state that "the whole purpose of expert testimony is to assist the jury and to aide the jury's understanding of the issues." Pls.' Supplemental Mem., p. 6 (emphasis in original). However, Rule 702 does not limit the use of expert testimony to only jury trials. Rather, Rule 702 allows an expert to testify in the form of an opinion if his "scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. . . ." F.R.E. 702 (emphasis added). Indeed, experts are routinely used in bench trials where a judge is the "trier of fact."
Second, granting the motion would likely result in a disruption to the Court's schedule and to defendant's schedule. As defendant points out, at the preliminary conference held on June 8, 2004, all counsel certified that the trial would be " without a jury" and would last an "estimated . . . 5 day(s)." See Scheduling Order, p. 3. If the Court were to convert this trial to one by a jury, it is likely that trial would last at least two more days beyond counsels' earlier estimation, thereby continuing through the earlier part of the week of April 11, 2005. At the present time, the Court has three civil matters scheduled for jury trial on Monday, April 11, 2005. If the Court granted plaintiffs' motion, a disruption to the Court's schedule is almost certain because the instant action or any of three matters set for jury trial the week of April 11, 2005 would likely be continued to a later date.
Third, the Court finds that defendant Gulf South will be prejudiced by re-designating this case as a jury trial now less than four months before the scheduled start of trial. While the motion before the Court does not appear to be a tactical delay on the eve of trial and defendant does not dispute that discovery conducted on the issues of liability and damages has been minimal to date, the Court finds that a re-designation at this time would result in an increase in the cost of defending this matter — an increase not previously anticipated. Moreover, a re-designation now would cause additional disruption to a case where much work remains to be done before trial. The slow pace of discovery in this case is of great concern to the Court, and the undersigned hesitates to alter trial preparation techniques at this time. A review of the record reveals that all depositions for use at trial shall be taken and all discovery shall be completed by February 15, 2005. See Scheduling Order, p. 2. The Court finds that having to manage the demanding discovery schedule in the next seven weeks plus changing trial strategy to suddenly prepare for a jury trial is too burdensome on the defendant.
The Court notes that, on October 8, 2003, this Court issued an Order granting plaintiffs' motion to extend the time period for plaintiffs to file their motion for class certification until June 29, 2004. (Rec. Doc. No. 18). Plaintiffs, however, did not meet that deadline and have yet to file such a motion for class certification.
Fourth, plaintiffs' delay in moving for a jury trial is substantial. Plaintiffs have had ample opportunity to demand a jury trial. Plaintiffs first filed suit in state court nearly twenty months ago and could have sought a jury trial at that time. However, plaintiffs did not do so. Plaintiffs again could have requested a jury trial at the time of removal or when plaintiff filed any of its three motions for leave to file amended complaint. Plaintiffs did not do so. Counsel for plaintiffs participated in a Preliminary Conference on June 8, 2004, and soon thereafter received an Order from the Court expressly designating this trial as a bench trial. Plaintiffs could have moved for relief under Rule 39(b) at that time; however, plaintiffs did not do so. Ultimately, plaintiffs waited until November 10, 2004 — fifteen months following removal, five months after the Preliminary Conference and issuance of the Scheduling Order, and less than five months prior to trial — to request a trial by jury. In their supplemental memorandum, plaintiffs contend that this delay is excusable as plaintiffs were focused on other matters, specifically the Motion to Remand denied on March 17, 2004, and the plaintiffs' two motions seeking leave to file amended complaints adding Louisiana defendants, which were ultimately denied on July 28, 2004. Plaintiffs argue that, until that time, they were unsure whether the matter would remain in this Court. For this argument, plaintiffs cite Judge Sarah Vance's decision granting an untimely request for a jury trial in Dowlearn v. Baker Oil Tools, Inc., 1997 WL 795702 (E.D.La. Dec. 29, 1997). That case, however, is factually dissimilar to the instant matter as the plaintiffs' motion there was filed (i) prior to the Court's decision denying the motion to remand, (ii) within two months of the date of removal, and (iii) eight months prior to trial.
The fifth factor requires the Court to take into consideration the reason for the tardiness in the movant's request — in the instant matter, inadvertence and mistake. Plaintiffs are correct that inadvertence alone should not justify denial. However, plaintiffs' inadvertence, when combined with the likely disruption of this Court's schedule, the prejudice to defendant and the fifteen-month delay in having made the request, compels a conclusion that plaintiffs have failed to satisfy the requirements of Rule 39(b). Thus, the Court finds, within its allowable discretion, that plaintiffs herein are not entitled to a jury trial.