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EARLY v. BANKERS LIFE & CAS. CO.

May 3, 1994

DONALD EARLY, Plaintiff,
v.
BANKERS LIFE and CASUALTY COMPANY and UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 1 Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the motion of plaintiff Donald Early ("Early") to amend his complaint to include a demand for a jury trial. *fn2" For the following reasons, the motion is denied.

 BACKGROUND

 On November 16, 1990, Early filed a complaint against defendant Bankers Life and Casualty Company ("Bankers") alleging that Bankers engaged in unlawful employment discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. The original complaint does not reflect Early's demand for jury trial. Furthermore, the court record indicates that Early never filed a separate jury demand with the court.

 After the original complaint was filed, Bankers filed its appearance on December 7, 1990. On December 28, 1990, Bankers filed a motion to dismiss, or in the alternative, for summary judgment in lieu of an answer. On February 28, 1991, the court entered an order granting the motion to dismiss. After the dismissal, Early filed a motion to amend his complaint; however, the court denied the motion and entered judgment in favor of Bankers.

 Subsequently, Early appealed the court's decision dismissing the complaint to the Seventh Circuit Court of Appeals. On March 25, 1992, the Seventh Circuit reversed the judgment of the court and remanded the action for further proceeding. See Early v. Bankers Life and Casualty Co., 959 F.2d 75 (7th Cir. 1992). On July 17, 1992, Early filed a motion for leave to file his first amended complaint. The court granted the motion. The first amended complaint does not show Early's demand for a jury trial. On July 24, 1992, in response to the first amended complaint, Bankers filed its answer. After the answer was filed, the parties proceeded routinely with discovery in preparation for trial on the contested issues.

 On March 11, 1994, Bankers delivered its proposed final pretrial order to Early's counsel. Early's counsel reviewed the proposed pre-trial order and discovered that Bankers expected the trial to be a bench trial. Early's counsel, as did his client, that a proper jury demand was made in this matter. In order to determine whether such belief was accurate, Early's counsel reviewed the court record with hopes of finding a jury demand, but to no avail.

 The only document which makes a reference to a jury demand is the civil cover sheet that is usually filed at the time of filing a complaint with the clerk's office. At the bottom of the civil cover sheet, there is a section which inquires about the various requests made in the complaint. One of those inquiries is whether the plaintiff requests a jury demand. There are boxes marked "yes" and "no" to be checked in order to respond to the inquiry. The civil cover sheet filed with Early's complaint shows that the "yes" box is checked. The inquiry, however, also includes the following caveat: "Check YES only if demanded in complaint." Platf.'s Mot. Exh. C 1 of 2.

 DISCUSSION

 Early has filed his action against Bankers under the ADEA. The ADEA provides that any person aggrieved by age discrimination may bring a civil action, and he or she "shall be entitled to a trial by jury of any issue of fact in any such action . . . ." 29 U.S.C. § 626(c)(2). The relevant provision, however, does not create a presumption that all actions brought under the ADEA shall be automatically tried before a jury, unless expressly waived by the aggrieved party. Therefore, a plaintiff in an ADEA case must properly make the demand for a jury trial in accordance with the Federal Rules of Civil Procedure in order to preserve that right at the trial stage.

 Rule 38 of the Federal Rules of Civil Procedure describes the mechanism to be followed to properly demand a jury trial. The relevant language of the rule states as follows:

 
Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and (2) filing the demand as ...

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