Opinion
Two of the defendants, who had waived jury trial by failing to make timely demand for jury trial, made motions to be relieved from waiver and for jury trial. The District Court, Clayton, J., granted the motion, where there would be no difficulty in having a jury available because one was required for the other defendants who had asked for jury trial.
Motions sustained.
Alvin J. Bronstein and Donald A. Jelinek, Jackson, Miss., for plaintiffs.
Hugh N. Clayton, New Albany, Miss., John B. Farese, Ashland, Miss., for defendants.
MEMORANDUM OPINION AND ORDER
CLAYTON, District Judge.
Petitioner, William Hurst and Virgil Lindsey, Deputy Sheriffs of Marshall County, Mississippi, who each failed to make a timely demand for a trial by jury pursuant to Rule 38(b), Federal Rules of Civil Procedure, and are deemed to have waived their right to the same, Rule 38(d), Federal Rules of Civil Procedure, have each filed a motion in this court for a jury trial under Rule 39(b), Federal Rules of Civil Procedure. Plaintiffs resist these motions, although other defendants have asked for and will have a jury.
The Seventh Amendment right to a jury trial in a federal court is basic and fundamental, but once this right has been waived, the court has, under Rule 39(b), broad discretion in relieving a party, or parties, from such a waiver. Swofford v. B. & W. Incorporated, 336 F.2d 406 (5th Cir. 1964); 2B Barron & Holtzoff, Federal Practice and Procedure (Wright Ed. 1961) § 892.
It is not in the spirit of the rules, particularly the rules as amended and adopted subsequent to the filing of this motion, to base the right to a jury trial on technical adherence to the time requirement for demanding the same, 2B Barron & Holtzoff, Federal Practice and Procedure (Wright Ed. 1961) § 892, p. 69. Here there will be no difficulty in having a jury available since one is required for the other defendants. Therefore, it is
Ordered:
That the motions of the defendants, Virgin Lindsey and William Hurst, for a jury trial shall be, and hereby are, sustained.