The opinion of the court was delivered by: RUBEN CASTILLO
On March 10, 1992, Noddings Investment Group, Inc. ("Noddings") filed its complaint against defendants Brian D. Kelley ("Kelley") and Kelley Capital Management, Ltd. ("KCM") alleging false advertising under Section 43(a) of the Lanham Act and for misappropriation of trade secrets under the Illinois Trade Secrets Act. Defendants filed their answer on April 30, 1993 and failed to request a jury trial.
After extensive discovery, a hearing, which lasted twelve days and generated a transcript of 2,143 pages, began on October 13, 1993. After receiving oral argument and proposed findings of fact on January 18, 1994, Magistrate Judge Guzman recommended that the district court grant plaintiff's requested preliminary injunction. After further briefing before the district court, on March 17, the 1994, Judge Kocoras issued a Memorandum Opinion granting plaintiff's Motion for a Preliminary Injunction.
Thereafter, on May 13, 1995 this case was transferred to this Court. As a result of this Court's request for a June 1, 1995 written status report three issues have been presented to the Court.
First, defendants belatedly seek a jury trial in this matter. Secondly, defendants have objected to incorporating the extensive preliminary injunction hearing transcript into the record of the trial on the merits. Lastly, defendants seek the Court's permission to file a counterclaim.
Defendants' Belated Jury Demand
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by 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.
Rule 39(b) of the Fed. R. Civ. P. further states, in pertinent part that, "the court in its discretion upon motion may order a trial by a jury of any or all issues." In this case there is no dispute about the appropriate standards this Court should consider in deciding whether to allow the defendants to belatedly assert a right to a jury trial. The parties agree that the five factors which should be considered in deciding whether the court should exercise its discretion under Rule 39(b) are:
1. Whether the case involved issues to be tried to a jury;
2. Whether granting the motion would disrupt the Court's or the adverse parties' schedule;
3. Whether the adverse party would be prejudiced;
4. The length of the delay in requesting a jury trial; and
5. The reason the party failed to timely demand a jury trial.
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