Filed: Dec. 30, 2015
Latest Update: Dec. 30, 2015
Summary: ORDER G.R. SMITH , Magistrate Judge . In this insurance coverage-based declaratory judgment action, defendants Joey and Sharon Herren move for leave "to allow an untimely jury demand." Doc. 105. Plaintiff Evanston Insurance Co. opposes, arguing that (1) the Herrens waived their right to a jury trial, and (2) nothing justifies permitting an untimely demand. Doc. 106. I. BACKGROUND Evanston filed its Complaint on June 7, 2013 seeking a declaration that it owes no defense to claims made aga
Summary: ORDER G.R. SMITH , Magistrate Judge . In this insurance coverage-based declaratory judgment action, defendants Joey and Sharon Herren move for leave "to allow an untimely jury demand." Doc. 105. Plaintiff Evanston Insurance Co. opposes, arguing that (1) the Herrens waived their right to a jury trial, and (2) nothing justifies permitting an untimely demand. Doc. 106. I. BACKGROUND Evanston filed its Complaint on June 7, 2013 seeking a declaration that it owes no defense to claims made agai..
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ORDER
G.R. SMITH, Magistrate Judge.
In this insurance coverage-based declaratory judgment action, defendants Joey and Sharon Herren move for leave "to allow an untimely jury demand." Doc. 105. Plaintiff Evanston Insurance Co. opposes, arguing that (1) the Herrens waived their right to a jury trial, and (2) nothing justifies permitting an untimely demand. Doc. 106.
I. BACKGROUND
Evanston filed its Complaint on June 7, 2013 seeking a declaration that it owes no defense to claims made against defendant William Mellors in a state court action. Doc. 1. The Herrens answered on August 8, 2013 (doc. 14), and defendant Curtis Huffman answered on August 16, 2013. Doc. 15. Neither answer, nor Evanston's Complaint, demanded a jury trial.
The parties' March 14, 2014 status report contemplated a two-day bench trial. Doc. 54 at 9. Six months later, the Court sua sponte raised jurisdictional issues and required Evanston to amend its Complaint. Doc. 66. Plaintiff complied on September 24, 2014. Doc. 67. The Herrens again answered and again made no jury demand. Doc. 68. Huffman (doc. 69) and Mellors (doc. 75) also answered the Amended Complaint and likewise demanded no jury. Since then, and throughout discovery (which concluded on July 7, 2014, doc. 55), no party has filed a jury demand.
II. ANALYSIS
Under Fed. R. Civ. P. 38(b), "[o]n 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." "A party waives a jury trial unless its demand is properly served and filed." Fed. R. Civ. P. 38(d).
The Herrens unquestionably waived their right to a jury trial1 by never demanding one within 14 days "after the last pleading directed to the issue [was] served." Fed. R. Civ. P. 38(b), (d). Whether that date is measured from the last filed answer to the original Complaint or the Amended Complaint, it passed long before the Herrens filed the present motion.2
Nevertheless, courts can grant untimely requests for jury trials. See Parrot v. Wilson, 707 F.2d 1262, 1267 (11th Cir. 1983). Whether to do so requires considering:
(1) [W]hether 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 the adverse party; (3) the degree of prejudice to the adverse party; (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.
Synovus Trust Co., N.A. v. Honda Motor Co., 223 F.R.D. 699, 701 (M.D. Ga. 2004) (quoting Parrot, 707 F.2d at 1267).3
A majority of factors weigh in favor of upholding the Herren's waiver. First, Evanston seeks only equitable relief (which juries cannot grant) and presents claims that raise only legal issues (which courts typically decide).4 See doc. 67. Hence, the first Parrot factor supports waiver.5
Second, granting the Herrens' motion would, if this case makes it to trial, require jury selection, while a bench trial would not. Synovus Trust Co., 223 F.R.D. at 701 (second factor — disruption of court or adverse party schedules). To the extent that increases the length of trial, it could disrupt Evanston's schedule, though only slightly (jury selection rarely takes all that long). Nevertheless, it would not disrupt the Court or Evanston's schedules to a degree that strongly supports denying the Herrens' motion.
Still, there is enough third Parrot factor prejudice to Evanston to support ruling against the Herrens here. Synovus Trust Co., 223 F.R.D. at 701. This case has proceeded all the way through discovery and survived summary judgment.6 Evanston's strategic approach to this litigation that entire time assumed a bench trial. Flipping the script at this late date would require it to try and reorient its past actions to better fit a different fact finder (a jury). That's asking too much.
Finally, the Herrens offer no real excuse for their delay in seeking a jury trial. Id. (fifth Parrot factor — reason for movant's tardiness). They claim confusion about who would try this case because of the March 2014 joint status report, but even if that's true, it does nothing to explain why they waited until November 2015 — after discovery concluded and the Court ruled on summary judgment — to ask for a jury. They also claim that "the parties have proceeded on the assumption that the case would be tried before a jury," doc. 105-1 at 3, but Evanston certainly disagrees. Doc. 106 ("[T]he parties proceeded on the assumption that the case would not be tried before a jury.") (emphasis added). Absent more, the lack of excuse alone suffices to deny the Herrens' motion. Parrot, 707 F.2d at 1267.
The Herrens' motion for leave to file an untimely jury demand (doc. 105) therefore is DENIED.
SO ORDERED.
