United States District Court, E.D. Wisconsin
DECISION AND ORDER
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE
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
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).
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.” (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
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.
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
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.
the question is whether the court should grant Wal-Mart's
untimely motion to have this matter decided by a jury.
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.”
“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.
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).
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).
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. ...