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Lowe v. Wal-Mart Stores, Inc.

United States District Court, E.D. Wisconsin

June 13, 2018

LEISA LOWE, Plaintiff,
v.
WAL-MART STORES, INC., Defendant.

          DECISION AND ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         At a scheduling conference on April 26, 2018, counsel for defendant Wal-Mart Stores, Inc. acknowledged that no one had requested a jury trial but inquired if doing so would be “a difficult proposition at this stage.” The court responded that, from its perspective, there were no logistical reasons why the matter could not be tried to a jury, provided the defendant submitted a jury demand. Defense counsel stated he would follow-up with his client and let the court know.

         The order that followed this conference referred to the scheduled trial as a jury trial. (ECF No. 21.) On May 7, 2018, plaintiff Leisa Lowe moved to amend the scheduling order to reflect that the matter would be tried without a jury. (ECF No. 22.) On May 11, 2018, Wal-Mart moved pursuant to Fed.R.Civ.P. 39(b) to have this matter tried by a jury. (ECF No. 24.) It submitted a single, combined brief in support of its motion and in response to Lowe's motion. (ECF No. 25.) Later that same day Lowe responded to Wal-Mart's motion. (ECF No. 26.) Lowe did not otherwise reply in support of her motion. Wal-Mart was not entitled to reply in support of its motion because it filed its motion as an expedited motion under Civil Local Rule 7(h).

         Wal-Mart's contends that, when it removed this case to this court from state court, it requested a jury trial by checking on the civil cover sheet the “Yes” box next to “JURY DEMAND.”[1] (ECF No. 1-4.) It states, “Going forward, there was no mention or reference in any document or at any hearing before the Court as to whether the case would be tried to a jury or to the Court. Defendant presumed the issue was moot as a jury had already been demanded via the Civil cover sheet.” (ECF No. 25 at 2.) This assertion, however, is inconsistent with the clear language on the civil cover sheet.

         The civil cover sheet explicitly states: “The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law ….” The jury demand question is found in section VII of the civil cover sheet, titled “Requested in Complaint.” It explicitly states, “CHECK YES only if demanded in complaint.” (ECF No. 1-4 (emphasis added).) Lowe did not request a jury trial in the complaint.

         Moreover, at the recent scheduling conference Wal-Mart's counsel acknowledged that neither party had requested a jury trial. That concession is inconsistent with the present assertion that Wal-Mart always understood this would be resolved by a jury trial.

         The court attaches no weight to the fact that Wal-Mart indicated on the cover sheet that a jury trial had been demanded in the complaint. Not only is it factually incorrect, but to the extent it could be regarded as reflecting the defendant's demand, “[i]t is axiomatic that a civil cover sheet notation reflecting a jury demand does not comply with the demand procedures specified under Fed.R.Civ.P. 38(b).” Fidlar Techs. v. LPS Real Estate Data Sols., Inc., No. 4:13-cv-04021-SLD-JEH, 2014 U.S. Dist. LEXIS 199330, at *3 (C.D. Ill. Sep. 29, 2014) (quoting Early v. Bankers Life & Cas. Co., 853 F.Supp. 268, 271 n. 4 (N.D. Ill. 1994)). If the situation were reversed and Lowe was now insisting on a jury trial that she never demanded, the court would not hold Wal-Mart to the consequences of an inattentively checked box on the civil cover sheet. The pleadings would control there; the pleadings control here.

         Thus, the question is whether the court should grant Wal-Mart's untimely motion to have this matter decided by a jury.

         “On any issue triable of right by a jury, a party may demand a jury trial by … serving the other parties with a written demand-which may be included in a pleading-no later than 14 days after the last pleading directed to the issue is served; and … filing the demand in accordance with Rule 5(d).” 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). “Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.” Fed.R.Civ.P. 39(b).

         Thus, “Rule 39(b) allows the district court to grant an untimely demand for a jury, but only, the courts have held, if a good reason for the belated demand is shown.” Olympia Express, Inc. v. Linee Aeree Italiane, S.P.A., 509 F.3d 347, 352 (7th Cir. 2007) (citing Pacific Fisheries Corp. v. HIH Casualty & General Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001); SEC v. Infinity Group Co., 212 F.3d 180, 195-96 (3d Cir. 2000)).

The Court may excuse a party's untimeliness and order a trial by jury if the balance of the following factors weigh in favor of granting such relief: “(1) whether the issues involved are best tried before a jury; (2) whether the court's schedule or that of the adverse party will be disrupted; (3) the degree of prejudice to the opposing party; (4) the length of delay; and (5) the reason for the movant's tardiness in demanding a jury trial.”

E. Div. Electro-Brand, Inc. v. MEM-CE, L.L.C., No. 17 C 3554, 2018 U.S. Dist. LEXIS 37417, at *8 (N.D. Ill. Mar. 7, 2018) (quoting Lee v. Love's Travel Stops &, Country Stores, Inc., No. 1:15-cv-07774, 2016 U.S. Dist. LEXIS 41945, at *2 (N.D. Ill. Mar. 29, 2016); citing Kirsch v. Brightstar Corp., No. 12 C 6966, 2014 U.S. Dist. LEXIS 146641, at *6 (N.D. Ill. Oct. 10, 2014)). “The Court may exercise its discretion to grant a motion for a jury trial where the ‘totality of the circumstances surrounding the untimely jury demand indicates that there is some colorable justification for [it] and that noncompliance has no substantive effect on the other party.'” E. Div. Electro-Brand, 2018 U.S. Dist. LEXIS 37417, at *8 (quoting Kirsch, 2014 U.S. Dist. LEXIS 146641, at *6).

         In support of its motion Wal-Mart states, “At most, the lack of an earlier formal demand for a jury trial in this case was the result of inadvertence due to misplaced reliance on the civil cover sheet, and inadvertence is not a bar to the Court's grant of a motion for jury trial.” (ECF No. 25 at 3 (citing Fidlar Techs. v. LPS Real Estate Data Sols., Inc., No. 4:13-cv-04021-SLD-JEH, 2014 U.S. Dist. LEXIS 199330, at *3 (C.D. Ill. Sep. 29, 2014).) Whether an attorney's mistake-inadvertently failing to request a jury trial-is a reason to excuse an untimely demand is a question subject to some confusion within the Seventh Circuit. In 1982, the Court of Appeals explicitly held that inadvertence does not excuse waiver: “A s a general rule, mere inadvertence will not justify relief from a waiver of the right to trial by jury; some other reason for relief must be shown.” Ma v. Cmty. Bank, 686 F.2d 459, 470 (7th Cir. 1982) (citing 5 Moore's Federal Practice P39.09, at 39-19 (2d ed. 1981)). But the following year the Court said, “In the absence of strong and compelling reasons to the contrary, untimely jury demands should be granted. … The mere fact … that plaintiff's motion for a jury trial was ‘too late' is neither a strong nor a compelling reason to deny the fundamental right to a jury trial.” Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir. 1983).

         Several district courts read Merritt as announcing a new rule that superseded the principle announced in Ma that inadvertence was never sufficient. See, e.g., Fidlar Techs., 2014 U.S. Dist. LEXIS 199330, at *5 (C.D. Ill. Sep. 29, 2014); Laurence v. Minn. Mut. Life Ins. Co., No. 88 C 10027, 1990 U.S. Dist. LEXIS 14150, at *5 (N.D. Ill. Oct. 19, 1990) (holding that in light of Merritt “attorney inadvertence is a sufficient reason for granting an untimely jury demand.” (emphasis in original)); Karol v. Bear Stearns & Co., 708 F.Supp. 199, 201 (N.D. Ill. 1989) (“[I]nadvertence such as that set forth by the Karols may, in the absence of strong and compelling reasons to the contrary, provide a basis for relief under Rule 39(b).”); Optigraphics Corp. v. Gunthorp-Warren Printing Co., No. 87 C 9597, 1988 U.S. Dist. LEXIS 4116, at *2 n.1 (N.D. ...


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