Opinion
Nos. S82-379, S83-153, S83-191 and S83-472.
January 20, 1984.
Carlos Delgado, Chicago, Ill., Joseph M. Kalady, Inmate Lay Advocate, for plaintiffs.
Linley E. Pearson, Ind. Atty. Gen., Indianapolis, Ind., for defendants.
Each of the above four cases is presently before the court on the plaintiffs' motions for jury trials. It is undisputed that all such demands are untimely.
At pretrial conferences held at the Indiana State Prison in Michigan City, Indiana, on December 28 and 29, 1983, Carlos Delgado, Esq., of the Chicago lawfirm of Adam Bourgeois, Ltd., entered his appearance on behalf of each of the above named plaintiffs in these actions and made oral requests for jury trials. This court declined to rule on the oral motions at that time, and ordered either Mr. Delgado or Joseph M. Kalady, an inmate lay advocate acting as "in house" co-counsel for the plaintiffs, to file such requests in writing with this court no later than January 9, 1984.
Because these jury requests are clearly beyond the time allotted by F.R.Civ.P. 38(b), they are addressed solely to this court's discretion. The two most recent decisions out of this Circuit addressing the question of judicial discretion in considering untimely jury demands are Merritt v. Faulkner, 697 F.2d 761 (7th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 434, 78 L.Ed.2d 366 (1983), and Ma v. Community Bank, 686 F.2d 459 (7th Cir.), appeal dismissed, ___ U.S. ___, 103 S.Ct. 287, 74 L.Ed.2d 273, reh. denied, ___ U.S. ___, 103 S.Ct. 504, 74 L.Ed.2d 642 (1982).
Notwithstanding the clear wording of F.R.Civ.P. 39(b) that untimely requests for jury trials, otherwise available of right under F.R.Civ.P. 38(b), are addressed exclusively to the discretion of the trial court judge, the above two cited cases stand for the proposition that the judge's discretion is hardly unfettered. Indeed, at page 767 of Judge Swygert's opinion in Merritt v. Faulkner, supra, appears the following: "In the absence of strong and compelling reasons to the contrary, untimely jury demands should be granted."
Although the Merritt decision involved a pro se inmate with a physical handicap, a situation which does not exist in any of the four cases presented, the underlying rationale of Merritt regarding untimely jury requests appears to be that, where the opponent would suffer no real harm by the granting of such a motion, almost any reason will suffice for the granting of such a request on behalf of a pro se inmate.
Under the facts of these four cases, where private counsel immediately made a motion for trial by jury at the time of his entry of appearance on behalf of the plaintiffs, this court concurs with the judgment of the court in Ford v. Breier, 71 F.R.D. 195 (E.D.Wis. 1976) that a motion for trial by jury brought by new counsel without delay is grounds for granting the otherwise belated motion.
Accordingly, and based on the above, it is the ORDER of this court that the belated requests for trial by jury in these four cases be, and hereby are, GRANTED. SO ORDERED.