Samad v. High Society Magazine
Samad v. High Society Magazine
Opinion of the Court
Federal Rule of Civil Procedure 38(b) prescribes the procedure by which a party to a civil action may demand a jury trial:
Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue ....
Fed. R. Civ. P. 38(b) (emphasis added). Failure to serve a demand within ten days of service of the last pleading constitutes waiver of the right to trial by jury. Fed. R. Civ. P. 38(d). See also, Walton v. Eaton Corp., 563 F.2d 66, 72 n.7 (3d Cir. 1977).
A party who has waived the right to trial by jury by failing to make a timely demand may move the trial court to order a jury trial notwithstanding the waiver. Fed. R. Civ. P. 39(b). Such a motion is addressed to the discretion of the trial court. See, e.g., William Goldman Theatres v. Kirkpatrick, 154 F.2d 66, 69 (3d Cir. 1946); 5 J. Moore, J. Lucan & J. Wicker, Moore’s Federal Practice ¶39.09 (2d ed. 1982).
On January 29, 1982, plaintiffs filed the complaint commencing this libel action. Defendant High Society Magazine filed its answer on May 18, 1982. Defendant Russel Smith filed his response pro se on June 17, 1982. On December 20, 1982, plaintiffs filed a document styled “Plaintiff’s Demand for Trial by Jury.” Defendant High Society Magazine filed a motion to strike this jury demand on January 17, 1983. Finally, on September 19, 1983, plaintiffs responded to this motion with a document styled “Memorandum To Opposition To Defendant’s Motion.”
The document filed by plaintiffs in December 1982 was doubtless not a valid demand for jury trial. Plaintiffs had waived the right to demand a jury trial at least six months earlier by failing to serve the demand within 10 days of service of the last pleading. Fed. R. Civ. P. 38(d). The Court will thus treat plaintiffs’ untimely demand for a jury trial, together with their response to defendants’ motion to strike the demand, as a motion under Fed. R. Civ. P. 39(b) for jury trial notwithstanding prior waiver.
Plaintiffs direct the Court’s attention to two district court decisions, scarcely of recent vintage, from which they apparently argue that “honest mistake” and “sheer inadvertence” excuse failure to comply with the requirements of Rule 38(b). We find “mistake”
After arguing that inadvertent failure to timely demand a jury trial justifies the discretionary relief from waiver authorized by Rule 39(b), plaintiffs attempt to excuse their noncompliance with Rule 38(b) as deliberate, apparently unaware of the logical inconsistency of such contentions. Thus, plaintiffs assert that their failure to make a timely jury demand “was due to the initial fear and mistrust of plaintiff of fury [sic] in a case of this nature.” Apparently in the fifteen months since plaintiffs waived their right to trial by jury their attitude toward juries has changed. Yet, Rule 38(b) requires that litigants weigh the advantages and disadvantages of a jury trial at the outset of litigation. Rule 39(b) is simply not designed to encourage belated changes of trial strategy. See, e.g., Reefer Express Lines v. Arkwright-Boston Manufacturers Insurance Co., Inc., 87 F.R.D. 133, 134 (S.D.N.Y. 1980). Indeed, it appears that judicial reluctance to grant relief from inadvertent failure timely to demand a jury trial is magnified where, as asserted here, the waiver was deliberate. See, e.g., William Goldman Theatres v. Kirkpatrick, 154 F.2d 66, 69 (3d Cir. 1946); Crawford v. Dominic, 85 F.R.D. 33, 34 (E.D. Pa. 1979).
Plaintiffs have offered no explanation of their failure to comply with the requirements of Rule 38(b) sufficient to warrant
ORDER
The premises considered and the Court being fully advised, IT IS ORDERED that the motion of defendant HIGH SOCIETY MAGAZINE to strike plaintiffs’ jury demand be, and the same is, hereby GRANTED; and
IT IS FURTHER ORDERED.that the motion of plaintiffs JABER A. SAMAD and S & H MANAGEMENT CORP. for trial by jury be, and the same is, hereby DENIED.
Reference
- Full Case Name
- JABER A. SAMAD, S & H MANAGEMENT CORP. v. HIGH SOCIETY MAGAZINE, RUSSEL SMITH
- Cited By
- 1 case
- Status
- Published