United States District Court, N.D. Indiana, Fort Wayne Division
DATA AND RESEARCH HANDLING, INC., doing business as Workforce Relo, Plaintiff,
PONE VONGPHACHANH, et al., Defendants.
OPINION AND ORDER
Collins United States Magistrate Judge
the Court in this more than three-year-old case are two
motions to strike (DE 103; DE 105), together with supporting
memorandums (DE 104; DE 106), filed by Defendants, seeking to
strike Plaintiff's jury demand filed on November 27, 2018
(DE 102). The motions to strike are now fully briefed (DE
107; DE 108) and ripe for ruling. For the following reasons,
Defendants' motions to strike will be GRANTED.
filed this action against Defendants in Allen Superior Court
on October 1, 2015, alleging claims of libel and slander;
tortious interference with contract and business
relationship; negligent training, supervision, and retention;
violations of the Lanham Act; and violations of the Sherman
Act and the Indiana fair trade regulations. (DE 5). Plaintiff
amended its complaint for the first time while in state
court. (DE 5). Defendants removed the action here (DE 1), and
shortly thereafter filed motions to dismiss (DE 20; DE 29; DE
34). On February 13, 2017, Plaintiff filed a motion to amend
its complaint for a second time. (DE 41).
Court held a preliminary pretrial conference on March 30,
2017, and opened discovery for the limited purpose of the
motions to dismiss. (DE 52). On September 30, 2017, the Court
granted Plaintiff's second motion to amend, rendering the
motions to dismiss moot. (DE 65).
October 30, 2017, Defendant National Association of Realtors,
Inc. (“NAR”), filed a motion to dismiss
Plaintiff's second amended complaint based on a lack of
jurisdiction. (DE 74). That same day, the remaining
Defendants filed an answer to Plaintiff's second amended
complaint. (DE 76; DE 77). On February 27, 2018, the Court
granted NAR's motion to dismiss, and NAR was dismissed
from the suit. (DE 92). On March 14, 2018, the Court held a
scheduling conference, at which a discovery deadline of March
15, 2019, was established. (DE 97). A dispositive motion
deadline was subsequently set for April 15, 2019. (DE 98).
October 18, 2018, Defendant Indiana Association of Realtors,
Inc. (“IAR”), filed a motion, seeking to amend
its answer for the purpose of adding affirmative defenses now
that NAR was no longer a party. (DE 99). Plaintiff did not
oppose the motion, and on November 2, 2018, the Court granted
IAR leave to amend its answer. (DE 100). IAR filed its
amended answer on November 2, 2018. (DE 101). Eleven days
later, on November 13, 2018, Plaintiff filed a demand for
trial by jury (DE 102), which is the subject of the instant
motions to strike.
Rule of Civil Procedure 38(b) sets time limits for serving
and filing a jury demand.” Lawyer v. 84 Lumber
Co., No. 96 C 0356, 1997 WL 24748, at *1 (N.D. Ill. Jan.
17, 1997). Rule 38(b) states that a party must demand a jury
trial no later than 14 days “after the last pleading
directed to the issue is served.” Fed.R.Civ.P. 38(b).
“A party waives a jury trial unless its demand is
properly served and filed.” Fed.R.Civ.P. 38(d).
38(d) means that the district judge may require a litigant
who asks belatedly for a jury trial to offer a reason for not
meeting the deadline in Rule 38(b).” Members v.
Paige, 140 F.3d 699, 703 (7th Cir. 1998). “Once
such a reason has been advanced, the district court ought to
approach each application under Rule 39(b) with an open mind
and an eye to the factual situation of that particular case,
rather than with a fixed policy.” Id.
(citation and internal quotation marks omitted); see
Merritt v. Faulkner, 697 F.2d 761, 766-67 (7th Cir.
1983) (“In the absence of strong and compelling reasons
to the contrary, untimely jury demands should be
granted.” (citation omitted)). Thus, “Rule 39(b)
grants wide discretion to the federal courts in considering
untimely jury demands.” Merritt, 697 F.2d at
766-67 (“A jury trial is not a minor feature of our
judicial system. The right of a litigant to have his fellow
citizens hear and weigh the evidence is a hallmark of our
jurisprudential system.” (citations omitted)).
exercise of discretion requires an analysis of the facts of
the particular case.” Id. at 767.
“Factors that have been considered in resolving late
requests for jury demands include whether there is a right to
a jury trial; whether the issues in the case are best suited
to be tried before a jury; disruption to the court's or
parties' schedules; prejudice to the adverse party;
length of the delay in requesting a jury trial; and the
reasons for failing to make a timely jury demand.”
Lawyer, 1997 WL 24748, at *1.
move to strike Plaintiff's jury demand that was filed one
year after Defendants' answers to Plaintiff's second
amended complaint, emphasizing that the jury demand is
untimely under Rule 38(b), which requires that a party file a
jury demand within 14 days after the last pleading directed
to the issue is served. In response, Plaintiff argues that it
filed its jury demand 11 days after IAR filed an amended
answer that raised “new issues, ” making the jury
demand sufficiently timely under Rule 38(b). (DE 17 ¶
9). Plaintiff further asserts that even if its jury demand is
untimely, the Court has discretion under Rule 39(b) to order
a jury trial despite the belated filing. (DE 17 ¶ 10).
jury demand is indeed untimely. As Defendants correctly
assert, “supplemental pleadings do not extend the jury
demand time, except as to any new issues which are raised for
the first time by the supplemental pleadings.” Huff
v. Dobbins, Fraker, Tennant, Joy & Perlstein, 243
F.3d 1086, 1090 (7th Cir. 2001) (citing Commc'ns
Maint., Inc. v. Motorola, Inc., 761 F.2d 1202, 1208 (7th
Cir. 1985)); see Westchester Day Sch. v. Vill. of
Mamaroneck, 363 F.Supp.2d 667, 670 (S.D.N.Y. 2005)
(“[I]t is well-established that an amendment does not
revive a previously waived right to demand a jury trial on
issues already framed by the original pleadings.”
(collecting cases)). Here, IAR's amended answer left its
prior answer intact and raised only additional affirmative
defenses now that NAR is no longer in the case. As such,
IAR's amended answer raises no new factual issues that
would revive Plaintiff's ...