The Honorable Patrick A. Conmy, United States District Judge for the District 1

of North Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-1806

_____________

Alton W. Bruns, An Individual; *

*

Plaintiff - Appellant, *

*

Werner Enterprises, Inc., a Nebraska *

Corporation, *

* Appeal from the United States

Plaintiff, * District Court for the

* District of Nebraska.

v. *

*

Amana, an Iowa Corporation, also *

known as Speed Queen Company; *

International Paper Company, a *

New York Corporation, *

*

Defendants - Appellees. *

_____________

Submitted: November 21, 1997

Filed: December 18, 1997

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Before BOWMAN and MURPHY, Circuit Judges, and CONMY, District Judge. 1

_____________

BOWMAN, Circuit Judge.
The Honorable Richard G. Kopf, United States District Judge for the District 2

of Nebraska.

The Honorable Warren K. Urbom, United States District Judge for the District 3

of Nebraska.

International Paper now remains the only defendant. 4

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Alton Bruns appeals the order of the District Court denying his request for a jury 2

trial. Bruns also appeals the judgment of the District Court in favor of defendant

3

International Paper on his product liability claim.

Bruns originally filed tort claims against Amana and International Paper.4

Amana removed the action to federal court. Ten months after the last answer was filed

in federal court, Bruns filed a motion requesting a jury trial. The magistrate judge to

whom the case was assigned for pre-trial matters denied the motion as untimely. Bruns

appealed the ruling to the District Court pursuant to 28 U.S.C. § 636(b)(1)(A) (1994).

The court affirmed the magistrate judge's denial. The case proceeded to a bench trial,

wherein the court found in favor of the defendants on Bruns's tort claims. This appeal

followed. 

I. 

Bruns argues that the District Court erred in sustaining the magistrate's order

denying a jury trial. Bruns claims he was not required to demand a jury trial under

Federal Rule of Civil Procedure 81(c). We disagree.

Rule 81(c) provides in part that:

If state law applicable in the court from which the case is removed does

not require the parties to make express demands in order to claim trial by
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jury, they need not make demands after removal unless the court directs that they do

so within a specified time if they desire to claim trial by jury.

Fed. R. Civ. P. 81(c) (emphasis added). It is not disputed that under Nebraska law

Bruns would have been entitled to a jury trial in state court without the need to make

an express demand. See Neb. Rev. Stat. § 25-1104 (1995) ("Issues of fact . . . shall

be tried by a jury unless a jury trial is waived . . . ."). Thus, unless the court directed

that Bruns expressly demand a jury trial within a specified time, under Rule 81(c) he

is automatically entitled to a trial by jury in federal court without the need to make an

express demand. 

The District Court's Local Rule 81.2 provides that, in actions removed from state

court, a party must file a demand for a jury trial within ten days after service of notice

of removal or ten days after service of the answer, whichever is later. Under this rule,

Bruns filed his demand 299 days late. "Failure to make demand as directed herein

constitutes waiver of trial by jury." Local Rule 81.2. 

The issue in this case is whether the court "directed" Bruns to make an express

demand for a jury trial in order to invoke the right. See Fed. R. Civ. P. 81(c). We hold

that Local Rule 81.2 was a directive by the District Court, which required Bruns to file

an express demand for a jury trial. Local Rule 81.2 specifically provides that parties

must make an express demand for a trial by jury. The effect of the local rule is that the

court in each case directs parties desiring a trial by jury to make an express demand to

invoke the right when their case is removed to federal court. It is frivolous to contend

that the district court must separately direct, in every case, that the parties follow the

local rule; yet that is the result if we accept Bruns's argument. Furthermore, contrary

to Bruns's assertion, at least one other circuit has decided this issue. See O'Malley v.

United States Fidelity & Guar. Co., 776 F.2d 494, 501 (5th Cir. 1985) ("[T]he Rule

81(c) directive can be found in the [Mississippi] Local Rules [requiring a written

request for jury trial in removal cases] . . . .").
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Bruns's failure to timely demand a jury trial in accordance with the local rule

constituted a waiver of the right. The District Court was correct in affirming the

magistrate's order.

II.

Bruns next argues that the District Court's judgment in favor of International

Paper was inconsistent with its own findings and contrary to the evidence presented at

trial. After careful review of the record, we conclude that an extensive discussion is

not warranted. We are satisfied the District Court's findings that the product was not

unreasonably dangerous and that any defect in the product was not the proximate cause

of Bruns's injury are not clearly erroneous. See 8th Cir. R. 47B. 

III.

For the reasons stated, the appealed order and judgment of the District Court are

affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.