Opinion
NO. 3-02-CV-0764-BD
September 22, 2003
MEMORANDUM ORDER
Defendant Hauppauge Computer Works has filed a motion for a jury trial pursuant to Fed.R.Civ.P. 38 or, alternatively, Fed.R.Civ.P. 39. Plaintiff opposes the motion because defendant did not make a written jury demand until 17 months after this case was removed from state court and has failed to adequately explain its tardiness. The parties have briefed their respective positions in a joint status report filed on September 19, 2003, and the motion is ripe for determination.
The court notes at the outset that defendant failed to comply with the requirements of Fed.R.Civ.P. 38(b). This rule provides:
Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
FED. R. Civ. P. 38(b). In cases removed to federal court where neither party has made an express demand for a jury trial in accordance with state law, "a party entitled to a trial by jury under Rule 38 shall be accorded it, if the party's demand therefor is served within 10 days after the petition for removal is filed if the party is the petitioner . . ." FED. R. CIV. P. 81(c). Here, neither party demanded a jury trial while this case was pending in state court. When defendant removed the action to federal court on April 12, 2002, it indicated on the Civil Cover Sheet that no jury demand had been made. It was not until the parties filed their joint status report on September 19, 2003 that defendant made a written demand for a trial by jury. Assuming arguendo that the right to a jury trial may properly be invoked by a demand in a joint status report, this pleading was served on plaintiff more than "10 days after the service of the last pleading directed to [any issue triable of right by a jury]." FED. R. Civ. P. 38(b). The court therefore concludes that defendant waived its right to a jury trial.
At least one federal district court has held that a jury demand contained in a pretrial order complies with the requirements of Rule 38. See Heri v. Fritz Companies, Inc., 841 F. Supp. 1188, 1192 (N.D.Ga. 1993).
Notwithstanding this waiver, the court has discretion to order a trial by jury "of any or all issues." FED. R. Civ. P. 39(b). This discretion should be exercised in favor of granting a jury trial absent "strong and compelling reasons to the contrary." Lewis v. Thigpen, 767 F.2d 252, 257 (5th Cir. 1985). See also Bush v. Allstate Insurance Co., 425 F.2d 393, 396 (5th Cir.), cert. denied, 91 S.Ct. 64 (1970). The court must consider: (1) whether the case involves issues which are best tried to a jury; (2) whether granting the motion would disrupt the court's schedule or that of the opposing party; (3) the degree of prejudice to the adverse party; (4) the length of the delay in requesting a jury trial; and (5) the reason for the delay. See Daniel International Corporation v. Fischbach Moore, Inc., 916 F.2d 1061, 1064-65 (5th Cir. 1990).
Most of these factors weigh heavily in favor of a jury trial. A jury is better suited to resolve the disputed facts surrounding the agency issues which lie at the heart of this litigation. There is no evidence of prejudice to plaintiff and the court's schedule will not be disrupted if the case is tried to a jury. Nevertheless, plaintiff argues that the motion should be denied because defendant waited 17 months to make a jury demand and "has provided no plausible explanation for its tardiness." (Jt. Stat. Rep. at 5-6, ¶ 12). Defendant counters that it "operated under the mistaken assumption that Polywell had demanded a jury, because it is difficult to understand why Polywell did not originally demand a jury in this type of matter . . ." (Id. at 10, ¶ 26). The court agrees with plaintiff that this explanation is unconvincing. Still, the fact that defendant has failed to offer a legitimate explanation for waiting 17 months to demand a jury trial, standing alone, is not a "strong and compelling" reason for denying the instant motion.
By separate order this date, the court has set the case for trial on February 17, 2004.
The court exercises its discretion in favor of trying the fact issues in this case to a jury. Accordingly, defendant's motion for a jury trial is granted.
SO ORDERED.