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January 26, 1982


The opinion of the court was delivered by: Moran, District Judge.


Plaintiff Adam Rodriguez brings this action under 42 U.S.C. § 1983 against Chicago police officers David Schweiger and Roger Terry, alleging that after he had been arrested and while he was subdued and offering no resistance, defendants shot and wounded him, in violation of his Fifth and Fourteenth Amendment rights. Before the court are defendants' motions for summary judgment and for a jury trial pursuant to Rule 39(b) of the Federal Rules of Civil Procedure. For the reasons explained below, the motion for summary judgment is denied and the motion for a jury trial is granted.


In support of its motion for summary judgment, defendants have the burden of showing that the material facts, and all inferences which can be drawn from them, are beyond dispute. ITT Diversified Credit Corp. v. Kimmel, 508 F. Supp. 140 (N.D.Ill. 1981). While the parties here agree on the legal standard to be applied in determining the amount of force a peace officer can use (Ill.Rev.Stat., ch. 38 § 7-5), they strongly dispute the circumstances surrounding the shooting and the reasonableness of the officers' belief that deadly force was necessary.*fn1 Disagreements over these material factual issues render summary judgment inappropriate.


Defendants did not demand a jury trial within ten days from the filing of their answer on October 22, 1980, as required by Rule 38(b) of the Federal Rules of Civil Procedure.*fn2 While failure to make a timely demand constitutes a waiver of a trial by jury, Fed.R.Civ.P. 38(d), the court, in its discretion, may grant relief from this waiver by ordering a jury trial pursuant to Rule 39(b).*fn3

Urging application of Rule 39(b)'s relief provisions, defendants argue that the fundamental right to trial by jury should be preserved absent overriding considerations to the contrary, and that, here, no such considerations exist. Moreover, defendants maintain that the nine-month delay in making a request was not due to oversight, or inadvertence, but rather was because of the "special circumstances" of this case:

  The present suit was originally filed pro se. Two
  years later, the court appointed attorneys to aid
  the plaintiff. As a courtesy to plaintiff's
  counsel, the court granted the plaintiff extensions
  of time to amend his complaint, and in addition,
  the plaintiff was allowed until March 9, 1981 to
  answer or respond to the defendants' July 13, 1979
  motion for summary judgment. It is in anticipation
  of a final ruling upon the defendants' summary
  judgment motion that the defendants were delayed in
  requesting a jury trial. Thus the delay was not due
  to oversight or inadvertence.

There appears to be considerable conflict among the circuits as to the standard by which a district court should exercise its discretion under Rule 39(b). Pawlak v. Metropolitan Life Insurance Co., 87 F.R.D. 717 (D.Mass. 1980). The Fifth, Eighth and Ninth Circuits, to varying degrees, seem to concur with the Second Circuit's rigorous standard set forth in Noonan v. Cunard S.S. Co., 375 F.2d 69 (2d Cir. 1967):

  The effect of [the] continued and consistent
  courses of decisions [in the district courts
  within this Circuit] is to narrow the allowable
  scope of discretion. The area open to a judge's
  discretion has shrunk to determining whether the
  moving party's showing beyond mere inadvertence is
  sufficient to justify relief. Id. at 70 (emphasis

See e.g., Rhodes v. Amarillo Hospital Dist., 654 F.2d 1148, 1154 (5th Cir. 1981) (while courts should grant a jury trial in the absence of strong and compelling reasons to the contrary, it is not an abuse of discretion to deny a Rule 39(b) motion when the failure to make a timely demand results from mere inadvertence); Aetna Casualty & Surety Co. v. Jeppesen & Co., 642 F.2d 339, 341 (9th Cir. 1981) (it is not an abuse of discretion to refuse relief under 39(b) where mere inadvertence is the excuse offered by tardy counsel); Littlefield v. Fort Dodge Messenger, 614 F.2d 581, 585 (8th Cir.) cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980) (while jury trials ought to be liberally granted when no prejudice results, the moving party here offers no justification for the failure to make an appropriate demand other than inexperience, and points to no prejudice resulting from the denial). Accord, Chandler Supply Co. v. GAF Corp., 650 F.2d 983, 987 (9th Cir. 1980). But see Davis-Watkins Co. v. Service Merchandise Co., 500 F. Supp. 1244, 1252 (M.D.Tenn. 1980) (a discretionary request for a jury trial should not be denied unless compelling reasons support the denial).

Other courts, emphasizing the importance of a jury trial in the constitutional scheme, grant untimely jury trial requests even though the delay was due to inexperience, inadvertence or mistake. See U.S. v. Krietemeyer, 506 F. Supp. 289 (S.D.Ill. 1980) (request for jury trial under 39(b) should be granted even though counsel inadvertently forgot to demand a jury trial due to unfamiliarity with the federal rules, particularly when the request came only three weeks after filing the answer). These judges, rather than focusing on the reasons for delay, emphasize and balance other factors, including (1) whether the issues are particularly appropriate for determination by a jury, (2) any prejudice that granting a jury trial would cause the opposing party, (3) timing of the motion, (4) any effect a jury trial would have on the court's docket and the orderly administration of justice. See In re N-500L Cases, 517 F. Supp. 821, 824 (D.P.R. 1981); Malbon v. Pennsylvania Millers Mutual Insurance Co., 636 F.2d 936, 940 n. 11 (4th Cir. 1980).

The Seventh Circuit has yet to determine the appropriate standard for deciding Rule 39(b) motions. In the absence of specific guidance from the Court of Appeals, this court finds Judge Keeton's reasoning in Pawlak v. Metropolitan Life Insurance Co., supra, persuasive.

  The factual premise for application of the
  Noonan rule is absent here. No "continued and
  consistent course of decision" such as forced the
  basis for the rigorous standard of Noonan has been
  alleged to exist in this circuit; nor is this court
  aware that such a course of decision has developed.
  In these circumstances the trial judge is not
  required to deny late jury requests merely because
  the movant's explanation for late file is
  inadvertence. Rather, it is appropriate to
  consider, in making a discretionary decision, not
  only the reasons advanced for failure to make a
  timely jury request but also factors more broadly
  concerned with the administration of justice. Thus,
  a court may take into account the nature of the
  issues in the particular case: Does the case turn
  primarily on fact questions that can readily be
  understood by a jury? To what extent will special
  instructions on the law be required in order for ...

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