IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

EASTERN DIVISION 

ARTHUR JAMES TIGNER, ) 

 )

 Plaintiff, ) 

 )

v. ) Civil Action No. 3:06-cv-00713-MHT-SRW 

 )

OFFICER SELLER, et al., ) 

 )

 Defendants. ) 

DEFENDANTS’ OBJECTION TO THE PLAINTIFF’S

DEMAND FOR JURY TRIAL

COME NOW Jay Jones, Sheriff of Lee County, Alabama, Sergeant Timothy Jones, 

Corrections Officer David Sellers, and Corrections Officer Danny Tucker, Defendants in the 

above-styled cause, and submit their objection to the Plaintiff’s Motion for a trial by jury. As

grounds for their Objection, the Defendants state as follows: 

1. The Plaintiff filed his Complaint on August 10, 2006. The Defendants filed their 

Special Report and Answer on November 6, 2006. Over four months after the filing of the

Complaint and over a month after the filing of the Answer in this matter, on December 28, 2006, the

Plaintiff filed a motion to add a jury demand. 

2. Rule 38(b) of the Federal Rules of Civil Procedure provides: 

Any party may demand a trial by jury of any issue triable of right by a jury by (1) 

serving upon the other parties a demand therefor in writing at any time after the

commencement of the action and not later than 10 days after the service of the last

pleading directed to such issue, and (2) filing the demand as required by Rule 

5(d). 

Rule 38(d) of the Federal Rules of Civil Procedure provides: “The failure of a party to serve and

file a demand as required by this rule constitutes a waiver by the party of trial by jury.” The 

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Plaintiff’s motion does not change the original Complaint by adding any new issues and, in fact,

does not make any change except the addition of the jury demand. Therefore, this motion cannot

“give rise to a demand for a jury trial.” Guajardo v. Estelle, 580 F.2d 748, 753 (5th Cir. 1978)1

(“Amendments not introducing new issues will not give rise to a demand for a jury trial.”). 

3. Because the Plaintiff waived his right to trial by jury and his jury demand is 

untimely, the Plaintiff’s Motion to Add a Jury Demand is due to be denied. See, e.g., Lloyd v.

McKendree, 749 F.2d 705, 706 (11th Cir. 1985) (“The court did not abuse its discretion in denying

petitioner’s untimely request for a jury trial.”); U.S. v. 110 Bars of Silver, 3 Crucibles of Silver, 11 

Bags of Silver Coins, 508 F.2d 799, 801 (5th Cir. 1975)2 (affirming the district court’s denial of 

request for jury trial where “the last pleading was on November 2, and the jury trial was not 

requested till December 13” because “the right to a jury trial was waived”). 

4. Finally, the Plaintiff in the instant case has given this Court “no reason for the delay”

in requesting a jury. See id.; see also Jackson v. Airways Parking Co., 297 F. Supp. 1366, 1384 

(N.D. Ga. 1969) (“‘Counsel desirous of obtaining relief from waiver should be careful to spell out 

the basis or bases of his motion for relief, since it is settled today that the mere statement of 

‘oversight’ or ‘inadvertence’ does not suffice to invoke the discretion of the court.’”). Accordingly, 

the Plaintiff’s untimely request for a jury after his right to trial by jury had been waived is due to be 

denied. 

WHEREFORE, PREMISES CONSIDERED, the Defendants request that this Court deny

the Plaintiff’s Motion to add a Jury Demand. 

 

1 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (decisions of the Fifth Circuit

handed down before close of business on September 30, 1981 are binding precedent on the Eleventh Circuit). 2 See Bonner, 661 F.2d at 1207 (decisions of the Fifth Circuit handed down before close of business on September 

30, 1981 are binding precedent on the Eleventh Circuit). 

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Respectfully submitted this 6th day of August, 2007. 

s/Ashley Hawkins Freeman 

ASHLEY HAWKINS FREEMAN Bar No. FRE044 

Attorney for Defendants 

WEBB & ELEY, P.C. 

7475 Halcyon Pointe Drive 

Post Office Box 240909 

Montgomery, Alabama 36124 

Telephone: (334) 262-1850 

Fax: (334) 262-1889 

E-mail: afreeman@webbeley.com 

CERTIFICATE OF SERVICE

 I hereby certify that on this the 6th day of August, 2007, I have electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system, and that I have mailed a true 

and correct copy of the foregoing by United States Mail, postage prepaid, to the following nonCM/ECF participant: 

Arthur James Tigner 

AIS 152184 

Childersburg Work Release 

PO Box 368 

Childersburg, AL 35044 

 s/Ashley Hawkins Freeman 

 OF COUNSEL 

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