IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

___________________________________

:

WILLIAM HOUSTON, : CIVIL ACTION

:

Plaintiff, :

:

 v. : No. 03-3494

:

EASTON AREA SCHOOL DISTRICT, :

:

Defendant. :

___________________________________:

HENRY S. PERKIN December 23, 2009

United States Magistrate Judge

MEMORANDUM

Presently before the Court is the Motion to Vacate

Waiver of Jury Trial filed by the Plaintiff, William Houston

(“Mr. Houston”), on December 11, 2009. For the following

reasons, the Motion will be granted.

I. BACKGROUND.

Mr. Houston filed his Complaint and demand for jury

trial on June 5, 2003. The case was originally assigned to the

Honorable James Knoll Gardner, and on February 17, 2004,

following the consent of the parties, Judge Gardner ordered the

referral of the case to United States Magistrate Judge Arnold C.

Rapoport for all further proceedings and entry of judgment in

accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil

Procedure 73. 

On July 24, 2008, an arbitration award was entered, and

on July 29, 2008, Mr. Houston filed a request for a trial de
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novo. The parties informally consented to a bench trial during a

telephone conference with Magistrate Judge Rapoport, and on July

31, 2008, Chief Judge Harvey J. Bartle, III, reassigned the case

to the undersigned.

A one-day bench trial was held on October 15, 2008. In

a February 24, 2009 Memorandum Opinion and Verdict, this Court

entered judgment for the Defendant, Easton Area School District

(“EASD”). On December 8, 2009, the United States Court of

Appeals for the Third Circuit, in a non-precedential opinion,

vacated the judgment in favor of EASD and remanded this case for

a new trial. The Court stated that:

[Mr.] Houston challenges the court’s

exclusion of comparator evidence from the

trial. Because we find Act 93 status should

not have been determinative as to whether the

employees were similarly situated to [Mr.]

Houston, we will vacate the judgment of the

District Court.

. . . 

We find that under the facts of this case,

Act 93 status should not have been the

dispositive factor for purposes of

determining whether [Mr.] Houston was

similarly situated to other School District

administrators. 

. . . 

The similarly situated analysis is for the

District Court to determine in the first

instance. See Mendelsohn, 128 S.Ct. at 1146

(“[Questions of relevance and prejudice are

for the District Court to determine in the

first instance.” (citing U.S. v. Abel, 469

U.S. 45, 54 (1984))). But it appears that
3

Ciccarelli and Hettel may be similarly

situated to [Mr.] Houston. . . . . Evidence

of additional similarly situated employees

outside of [Mr.] Houston’s protected class -

each of whom received or was promised 100% of

his sick pay upon retirement - likely would

have changed the entire complexion of the

trial.

Accordingly, we will vacate the judgment

in favor of the School District and remand

for a new trial. On remand, the District

Court should engage in a factual analysis of

the relevant factors to determine whether any

of the excluded comparators is similarly

situated to [Mr.] Houston.

Houston v. Easton Area Sch. Dist., slip op., pp. 2, 9, 10, 11 (3d

Cir. Dec. 8, 2009). As directed, we must first “engage in a

factual analysis of the relevant factors to determine whether any

of the excluded comparators is similarly situated to [Mr.]

Houston” and then hold a new trial. At this juncture, and as a

result of Mr. Houston’s instant Motion, we must first decide

whether to proceed with a jury trial. 

Mr. Houston filed the instant Motion to Vacate Waiver

of Jury Trial on December 11, 2009. EASD’s Answer and Brief in

Opposition to the Motion was filed on December 15, 2009, and Mr.

Houston’s Reply was filed on December 16, 2009. We held a

telephonic conference with counsel on December 16, 2009.

II. DISCUSSION.

Mr. Houston moves to vacate his waiver of jury trial

demand and have the matter listed for a jury trial “in light of

the procedural history of this matter, and consistent with the
Although EASD opposes Mr. Houston’s Motion, in response to the question 1

“[w]hether plaintiff is entitled to a jury trial where he has previously

waived his right and consented to have this matter heard at a non-jury trial?”

EASD’s counsel supplies “Yes” as the suggested answer. Br. in Oppn., p. 2. 

Because this suggested answer is inapposite to the arguments presented in the

Brief, the Court assumes that this is a typographical error and the suggested

answer to this query should have been “No.” 

4

Due Process requirement of the Fifth Amendment.” Pl.’s Mot., p.

1. He makes this Motion because he opines that “the adverse

findings of fact already made in favor of Defendant and against

the Plaintiff by the Trial Court sitting in the non-jury trial,

fundamental fairness require[s] that the non-jury waiver be

vacated, and the matter listed for a non-jury trial.” Id. The

EASD opposes this Motion to Vacate the Waiver because it contends

that the circumstances of this case do not justify retrial by

jury, the case “can be fairly retried by a bench trial without

the expenditure of the significantly greater resources of a jury

trial,” and “[a] second trial by jury will completely change the

nature, complexion and complexity of the case far out of

proportion to the limited error ascribed by the Third Circuit.”1

Br. in Oppn., pp. 3, 4. 

Although the right to a jury trial is guaranteed by the

Seventh Amendment to the United States Constitution, like all

constitutional rights, it can be waived by the parties. United

States v. Moore, 340 U.S. 616, 621 (1951). Unlike other

constitutional rights, this right can be waived by inaction or

acquiescence. Cooper v. Loper, 923 F.2d 1045, 1049 (3d Cir.
5

1991)(holding jury trial waived by acquiescence). “Because the

‘right of jury trial is fundamental, courts indulge every

reasonable presumption against waiver.’” Tracinda Corp. v.

DaimlerChrysler AG, 502 F.3d 212, 222 (3d Cir. 2007)(quoting

Aetna Inc. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393

(1937)). Under Federal Rule of Civil Procedure 38, in order to

preserve the right to a trial by jury “as declared by the Seventh

Amendment to the Constitution - or as provided by a federal

statute . . . a party must serve a written demand - which may be

included in a pleading - no later than 10 days after the last

pleading directed to the issue is served and filing the demand in

accordance with Rule 5(e).” Fed. R. Civ. P. 38(b)(1), (2). 

In the instant case, Mr. Houston timely demanded a jury

trial. Later, however, although the parties did not execute a

stipulation waiving Mr. Houston’s right to a jury trial and the

parties’ agreement to a bench trial was not held on the record,

their participation in the bench trial without objection waived

any Seventh Amendment right to a jury trial. In re City of

Philadelphia Litigation, 158 F.3d 723, 727 (3d Cir. 1998)(citing

Cooper, 923 F.2d 1045, 1049 (3d Cir. 1991) and Wilcher v. City of

Wilmington, 139 F.3d 366, 378-79 (3d Cir. 1998)(reaffirming

adoption of Cooper rule)). Mr. Houston argues that his waiver by

participating in the bench trial “cannot be extended to a waiver

for all purposes, especially after a remand where the trial judge
6

made adverse Finding of Facts which must be decided in the second

trial.” Reply, pp. 2-3. EASD argues, in response, that Mr.

Houston is acting strategically by “participating in the bench

trial in the hopes of achieving a favorable outcome, then

asserting lack of consent to the bench trial when the result

turns out to be unfavorable to him.” Br. in Opp’n, p. 2 (citing

Solis v. County of Los Angeles, 514 F.3d 946 (9 Cir. 2008) and th

Fuller v. City of Oakland, 47 F.3d 1522, 1531 (9 Cir. 1995)). th

EASD contends that the instant case is analogous to the Solis

case because “Plaintiff now requests recision of the jury waiver

strictly as a tactical matter.” Id. Solis and its progeny are

distinguishable from this case because unlike Mr. Solis, Mr.

Houston is not asserting that he did not consent to a bench

trial. Moreover, Mr. Houston’s Motion was filed after the Third

Circuit’s remand for a new trial. As such, we see no tactical

maneuvering by Mr. Houston in asking to have his new trial before

a jury.

Federal Rule of Civil Procedure 39(b) authorizes a

court, in its discretion, to order a jury trial. Fed. R. Civ. P.

39(b). However, “[t]he exercise of such discretion . . . ‘must

be firmly based upon circumstances warranting its exercise of

discretion lest discretion become a mere arbitrary act of the

court.’” Gonzalez v. Old Kent Mortgage Co., No. Civ.A. 99-5959,

2000 WL 1230460, at *2 (E.D. Pa. Aug. 16, 2000)(quoting Carey v.
Mr. Houston’s Motion was made within ten days following the remand by 2

the Third Circuit. Federal Rule of Civil Procedure 38(b) provides:

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

the 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). Under Rule 39(d), a failure to timely serve the demand

constitutes a waiver of the right to a trial by jury. Parties may be released

from this waiver under Rule 39(b) by the discretion of the court.

7

Foster Wheeler Corp., No. 89-325, 1990 WL 86089, at *2 (D.N.J.

June 20, 1990)(quoting The Personal Touch, Inc. v. Lenox, Inc.,

122 F.R.D. 470, 471 (E.D. Pa. 1988) and Kalmanovitz v. G. Heilman

Brewing Co., Inc., 610 F. Supp. 1319, 1328 (D. Del. 1985))). 

The Third Circuit directs a lower court considering

whether to use discretion to grant an untimely motion for a jury

trial under Rule 39(b) to weigh the following factors: 1) 2

whether the issues are suitable for a jury; 2) whether granting

the motion would disrupt the schedule of the court or the adverse

party; 3) whether any prejudice would result to the adverse

party; 4) how long the party delayed in bringing the motion; and

5) the reasons for the failure to file a timely demand. 

Securities & Exchange Comm’n v. Infinity Group Co., 212 F.3d 180,

195-96 (3d Cir. 2000), cert. denied sub nom., Springer v. SEC,

532 U.S. 905 (2001). These are factors for balancing, and no one

factor is dispositive.

The first factor for this Court to weigh in considering

whether to use discretion to grant a jury trial is whether the
8

issues are suitable for a jury. This case involves employment

discrimination and can be equally tried by a court or a jury. 

Secondly, granting the Motion would not disrupt the schedule of

the court or the adverse party, because the new trial will be

scheduled within a relatively short period of time following the

Circuit Court’s remand. Moreover, during the December 16, 2009

telephone conference between the Court and counsel, counsel

agreed that either a jury trial or a bench trial would likely

take no longer than one week. Counsel did not indicate any

resulting disruption to their schedules. 

This Court must next address whether any prejudice

would result to EASD as the adverse party. Mr. Houston initially

sought a jury trial, and the parties completed discovery in

anticipation of a jury trial. Only after dispositive and

pretrial motions were decided did the parties informally consent

to a bench trial. Thus, there is no prejudice to EASD that it

was limited in the manner in which its discovery was completed.

Similarly, EASD does not show sufficient prejudice in it’s

argument that “this case can be fairly retried by a bench trial

without the expenditure of the significantly greater resources of

a jury trial.” Br. in Oppn., p. 3. In many cases, jury trials

may require “significantly greater resources,” but that fact

alone should not deprive Mr. Houston of a jury trial. Further,

we fail to see how this case will be “too complex” as argued by
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EASD, to now submit to a jury. The Court of Appeals has directed

me to consider certain factors which it opined were not properly

considered prior to the first trial. See supra, pp. 2-3. Under

these circumstances, “the nature, complexion and complexity of

the case” may, in fact, be different, but still not so complex

for a jury as to prejudice the EASD. 

The fourth factor, how long the party delayed in

bringing the Motion, is not applicable in this case, as noted in

footnote 2, supra. Plaintiff filed the instant Motion within ten

days of the Third Circuit’s remand decision. Similarly, the

fifth factor, the reasons for the failure to file a timely

demand, are not applicable in this case because Mr. Houston made

a timely demand for a jury trial when this case was initially

filed. 

Weighing the five factors which this Court must

consider in determining whether to grant a jury trial, this Court

is convinced that Mr. Houston’s Motion should be granted. 

III. CONCLUSION.

Given Mr. Houston’s Seventh Amendment constitutional

right to a jury trial and the nature of the remand by the United

States Court of Appeals for the Third Circuit, it is appropriate

that Mr. Houston be granted a new trial by jury.

An appropriate Order follows.