UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

LAURA MAYS,

Plaintiff,

VS.

RPC, INC.,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:05-CV-0068-G

)

)

)

MEMORANDUM OPINION AND ORDER

Before the court are: (1) the motion of defendant, RPC, Inc. (“RPC”), to

strike the demand for a jury trial by the plaintiff, Laura Mays (“Mays”), and (2) the

motion of Mays for a jury trial pursuant to Federal Rule 39(b). For the reasons

discussed below, RPC’s motion to strike is denied and Mays’ motion for a jury trial is

granted.

I. BACKGROUND

This case involves claims that RPC breached written employee and incentive

agreements it had with Mays, an ex-employee. RPC removed the case to this court

on January 10, 2005, based upon diversity of citizenship. See generally Notice of

 

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* Mays filed an amended complaint including a request for trial by jury on

May 24, 2005. See generally Plaintiff’s Amended Complaint. An amendment not

introducing a new issue will not revive a right to jury trial. Guajardo v. Estelle, 580

(continued...)

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Removal of Action Under 28 U.S.C. § 1441(b). At the time of removal, both an

original state court petition and an answer were on file; however, no request for a jury

trial was made in state court. See id. Mays filed a demand for a jury trial with this

court on February 9, 2005. See generally Demand for Jury Trial. RPC filed the instant

motion to strike on February 18, 2005. See generally Defendant RPC, Inc.’s Motion

to Strike Laura Mays’s Demand for Jury Trial. Mays filed his motion for a jury trial

on March 10, 2005. See generally Plaintiff’s Motion for a Jury Trial Pursuant to FRCP

39(b) and Brief in Support (“Mays’ Motion”).

II. ANALYSIS

A. Standard for Rule 39(b) Motions for Jury Trial

Rule 38(b) of the Federal Rules of Civil Procedure requires that a demand for

jury trial be filed within ten days of the last pleading directed to the issue of the right

to a jury trial. FED. R. CIV. P. 38(b). When an action has been removed to federal

court, and where both a complaint and answer were on file in state court before

removal, a jury demand must be made within ten days after the notice of removal was

served. FED. R. CIV. P. 81(c). The failure to file the demand for a jury in a timely

manner constitutes a waiver of the right. FED. R. CIV. P. 38(d), 81(c). On the face of

these rules, Mays’ demand for jury trial was untimely.*

 However, “notwithstanding

 

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*

(...continued)

F.2d 748, 753 (5th Cir. 1978). It is unnecessary to determine whether new issues are

raised by the amended complaint because the court grants Mays’ request for a jury.

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the failure of a party to demand a jury in an action in which such a demand might

have been made of right, the court in its discretion upon motion may order a trial by

a jury of any or all issues.” FED. R. CIV. P. 39(b).

Under Rule 39(b), the decision to grant an untimely request is discretionary

with the district court. Fredieu v. Rowan Companies, Inc., 738 F.2d 651, 653-54 (5th

Cir. 1984). Even though a motion to the court under Rule 39, rather than service of

a demand under Rule 38, is the proper method for requesting a trial by jury after the

ten-day period has passed, a district court may exercise its discretion under Rule

39(b) when considering an untimely demand. Swofford v. B & W, Inc., 336 F.2d 406,

409 (5th Cir. 1964), cert. denied, 379 U.S. 962 (1965). A district court should grant a

jury trial in the absence of strong and compelling reasons to the contrary. Id. 

The following factors guide the court in considering whether to grant or deny a

Rule 39(b) motion:

(1) whether the case involves issues which are best tried to

a jury; 

(2) whether granting the motion would result in a

disruption of the court’s schedule or that of an adverse

party; 

(3) the degree of prejudice to the adverse party; 

 

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(4) the length of the delay in having requested a jury trial;

and 

(5) the reason for the movant’s tardiness in requesting a

jury trial. 

Daniel International Corporation v. Fischbach & Moore, Inc., 916 F.2d 1061, 1064 (5th

Cir. 1990) (citing Parrott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.), cert. denied, 464

U.S. 936 (1983)).

B. Analysis of the Rule 39(b) Factors

1. First Factor- The Types of Issues

The first factor, whether the case involves issues which are best tried to a jury,

weighs in favor of granting Mays’ request for a jury trial. This case concerns a

contract dispute, which is well within the comprehension of a jury. Id. Such matters

are often tried to juries. Id.

2. Second Factor- Disruption of Schedules

The second factor, whether granting the motion would disrupt the schedule of

either the court or an adverse party, also favors Mays. The case is set for trial on this

court’s four-week docket beginning October 3, 2005. See Order Establishing Schedule

and Certain Pretrial Requirements at 2. This provides enough time for the court to

adjust to a jury trial, and RPC does not claim that its schedule would be disrupted by

allowing a jury trial. The court therefore concludes that granting Mays a jury trial

will not disrupt the schedules of either the court or RPC.

 

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3. Third Factor- Prejudice to the Non-Moving Party

The third factor, whether the adverse party would suffer prejudice if a jury trial

were granted, also favors Mays. RPC alleges no such prejudice, and this case is set for

trial on the docket beginning October 3, 2005, giving RPC ample time to prepare. 

See id. 

4. Fourth Factor- Length of Delay

The fourth factor, the length of the delay in requesting a jury, also weighs in

favor of granting Mays’ motion, as Mays requested a jury trial less than one month

after the case was removed to federal court. Requests for jury trials have been granted

in this court after significantly longer delays. See American Tourmaline Fields v.

International Paper Co., No. 3:96-CV-3363-D, 1998 WL 760277 at *3 (N.D. Tex.

Oct. 22, 1998) (Fitzwater, J.) (granting a jury trial when the motion was twenty

months late); Parakkavetty v. Indus International, Inc., No. 3:02-CV-1461-D, 2003 WL

22939104 at *2 (N.D. Tex. Dec. 2, 2003) (Fitzwater, J.) (granting a jury trial when

the motion was sixteen months late). The short delay in requesting a jury trial

supports Mays’ request.

5. Fifth Factor- The Reason for Movant’s Tardiness

The fifth factor, the reason for the movant’s tardiness in requesting a jury, is

the only factor addressed by RPC in its response to Mays’ motion for a jury trial. See

generally Defendant RPC, Inc.’s Opposition in Response to Laura Mays’s Motion for a

 

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Jury Trial and Brief in Support. It is also the only factor that weighs against Mays,

given that Mays’ only justification for not requesting a jury within the required ten

days is that it was not yet necessary to do so in state court when the case was

removed. See Mays’ Motion at 3. However, in view of the principle that a court

should grant a Rule 39(b) motion absent strong and compelling reasons to the

contrary, the fact that a party fails to offer a legitimate explanation for waiting to

demand a jury trial, standing alone, is not a “strong and compelling” reason for

denying a jury trial. Polywell International, Inc. v. Hauppauge Computer Works, Inc., No.

3:02-CV-0764-P, 2003 WL 22176616 at *2 (N.D. Tex. Sept. 22, 2003) (Kaplan,

Magistrate Judge). Therefore, even though this factor weighs against Mays, it is not

decisive when the totality of factors is considered.

III. CONCLUSION

For the reasons discussed above, RPC’s motion to strike Mays’ jury demand is

DENIED, and Mays’ motion for a jury trial is GRANTED.

SO ORDERED.

June 3, 2005.

 

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