United States District Court, D. New Mexico
ORDER GRANTING REQUEST FOR JURY TRIAL
C. BRACK UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff's Request of Jury
Trial, filed on July 20, 2017. (Doc. 133.) Defendants have
not filed a response.
who is pro se, filed his initial Complaint on August 22, 2014
(Doc. 1), and an Amended Complaint on October 31, 2014 (Doc.
8). After the Court granted in part several motions to
dismiss filed by the parties (see Docs. 28-31,
37-38, 83, 93, 94, 96), the Defendants filed their Answer to
Plaintiff's Amended Complaint on September 4, 2015 (Doc.
97). Over the next 18 months, Plaintiff filed a number of
documents with the Court, but it does not appear that the
parties conducted discovery or made any other progress in the
case. (See Docs. 98-106; 109- 12; 114; 116.)
Molzen held an in-person status conference on March 3, 2017.
(See Doc. 117.) During this status conference,
Plaintiff explained that the delay in the case was the result
of his disabilities and depression. (Id. at 1.) He
also discussed his processing and language difficulties.
(Id.) Judge Molzen explained to the parties that
they must either pursue settlement or proceed to discovery.
(Id. at 5.) Plaintiff indicated he would prefer to
pursue settlement. (Id.) Ultimately, Judge Molzen
proposed that the parties engage in informal discovery with
an eye toward setting a settlement conference. (Id.)
Court filed its Initial Scheduling Order on June 22, 2017.
(Doc. 128.) The parties filed their Joint Status Report and
Provisional Discovery plan on July 20, 2017. (Doc. 135.)
Plaintiff also filed his Request of Jury Trial on July 20,
2017. (Doc. 133.) Plaintiff explains in his Request that
during a “meet and confer” meeting with opposing
counsel, Plaintiff learned he could request a jury trial.
(Id. at 1.) Plaintiff explains that any failure to
request a jury trial in his Complaint “is an example
that still undiagnosed DEPRESSION affected [his] cognitive
Rule of Civil Procedure 38 requires that a party make a
demand for a jury trial by service “not later than 14
days after the last pleading directed to the issue is served
. . . .” Fed.R.Civ.P. 38(b)(1). A party's failure
to properly serve and file a timely jury demand waives his or
her right to trial by jury. Fed.R.Civ.P. 38(d).
did not include a jury demand in either his original or
Amended Complaint. (See Docs. 1; 8.) The last
pleading in this matter, Defendants' Answer to the
Amended Complaint, was served and filed on September 4, 2015.
(See Doc. 97.) Plaintiff did not file his request
for a jury trial for almost two full years past the time
given in Rule 38; hence, he waived his right to trial by
jury. Fed.R.Civ.P. 38(d).
gives the Court discretion, upon motion by a party, to grant
a jury trial even where that motion is untimely. Fed.R.Civ.P.
39(b). The Tenth Circuit “has held that, absent strong
and compelling reasons to the contrary, a district court
should exercise its discretion under Rule 39(b) and grant a
jury trial.” Nissan Motor Corp. in U.S.A. v.
Burciaga, 982 F.2d 408, 409 (10th Cir. 1992) (citation
omitted). Mere inadvertence by a party would not constitute
such a strong and compelling reason. Id. (citations
Plaintiff offers a reason beyond mere inadvertence-he asserts
that he did not submit a timely jury demand because
depression negatively affected his cognitive functioning.
(Doc. 133 at 1.) Plaintiff does not cite any authority in
support of his untimely request for a jury trial. (See
id.) On the other hand, Defendants offer no authority,
nor can the Court find any, that would strongly counsel
against granting Plaintiff's request under these
cases where courts have denied a plaintiff's untimely
request for a jury trial, other factors have weighed into the
courts' decisions. See, e.g.,
Cordero v. Froats, No. 13-031 JCH/GBW, 2016 WL
7437133, at *1-2 (D.N.M. Oct. 19, 2016) (denying untimely
request where plaintiff marked “yes” on the Jury
Demand section on the Civil Cover Sheet, but later filed a
Joint Status Report and a First Amended Joint Status Report
describing the case as a “non-jury case, ” and an
amended complaint that did not include a jury demand, and
plaintiff did not dispute defendant's characterization of
the case as one for bench trial at a settlement conference,
instead only raising it to the court in the pretrial order
with the “trial date looming”); Henry v.
Albuquerque Job Corps Ctr., No. 11CV322 WJ/LAM, 2014 WL
12631440, at *1-2 (D.N.M. June 3, 2014) (denying untimely
request where plaintiff “chose not to demand a jury
trial . . . due to the fact that some of her claims were
required to go to a bench trial and she felt it would be
‘awkward' to have some claims tried before a jury
and some tried before a judge[, ]” and where discovery
terminated shortly after plaintiff filed her untimely request
and defendants argued they would have approached discovery
and settlement differently if they had known it was a jury
case); Mathis v. Huff & Puff Trucking, Inc., No.
12-CV-29-F, 2012 WL 12914685, at *2 (D. Wyo. Dec. 27, 2012)
(denying untimely request where, during initial pretrial
conference, defense counsel mentioned that plaintiff had not
filed a jury demand and court scheduled bench trial; several
months thereafter, plaintiff filed a jury trial request).
there is no evidence that Plaintiff completed a Civil Cover
sheet with a “jury demand” option. (See
Docs. 1; 8.) Additionally, the Court has examined the
District's Pro Se Litigant Guide and can find no mention
of the need to request a jury trial. (See
There has been little or no discovery conducted, and
discovery does not terminate until April 26, 2018. (Doc.
139.) The Court has not set pretrial conference or trial
dates. Defendants have not contested Plaintiff's motion,
and in fact, defense counsel allegedly informed Plaintiff at
the parties' meet and confer meeting that he was able to
request a jury trial. (See Doc. 133 at 1.)
the Court finds Plaintiff's request is untimely, the
Court finds no reason so strong or compelling to deny it.
See, e.g., See, e.g.,
Kigera v. Bethesda Lutheran Cmtys., No.
2:16-cv-02547-JTM-TJJ, 2017 WL 2418013, at *1-2 (D. Kan. June
5, 2017) (granting untimely request for jury trial, despite
the fact that on “an Employment Discrimination
Complaint form offered by the Court Clerk for use by pro se
plaintiffs, ” the pro se plaintiff checked
“no” on the box next to “Plaintiff requests
trial by jury”); Gilkey v. ADT Sec., Inc., No.
11-1369-JAR, 2012 WL 1901287, at *1-2 (D. Kan. May 25, 2012)
(finding “no strong and compelling reason to
deny” untimely request where “discovery was still
ongoing[, ]”the request came before the pretrial
conference, and defendant did not allege prejudice); Goff
v. Owen Healthcare, Inc., 166 F.R.D. 492, 494-95 (D.
Kan. 1996) (granting untimely request and noting that the
plaintiff's request was late due to “personal
illness and loss of a parent[, ]” and defendant would
not suffer prejudice because the first discovery ...