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January 17, 2003


The opinion of the court was delivered by: Joan B. Gottschall, United States District Judge


On August 29, 2000, plaintiff George Heslinga ("Heslinga") filed a complaint against defendant The Paul Revere Life Insurance Company ("Paul Revere") in Illinois state court alleging Paul Revere breached several disability insurance policies. On October 3, 2000, the action was removed to the United States District Court for the Southern District of Illinois and on November 2, 2000, Paul Revere filed its answer and affirmative defenses, which did not contain a request for a jury trial. On September 25, 2001, the case was transferred to this court. After the case was referred to Magistrate Judge Nolan, Paul Revere made its first request for a jury trial on July 12, 2002, and was instructed to notice the motion for hearing before this court. On October 4, 2002, Heslinga filed a motion to strike Paul Revere's jury demand. On October 15, 2002, Paul Revere moved for leave to file a jury demand. Heslinga objects to Paul Revere's motion as untimely under Federal Rule of Civil Procedure 38. The issue before the court is whether Paul Revere should be granted a jury trial, having made this request almost two years after filing its answer to the complaint. For the following reasons, Paul Revere's motion is denied.


A jury demand must be filed within "ten (10) days after the service of the last pleading directed to such issue . . . ." Fed.R.Civ.P. 38(b). Failure to adhere to the procedure as described under Rule 38(b) typically results in a waiver by the party of trial by jury. Fed.R.Civ.P. 38(d). Nonetheless, even if a party fails to comply with Rule 38, "the court in its discretion upon motion may order a trial by a jury of any or all issues." Fed.R.Civ.P. 39(b). Both parties are in agreement that the last pleading "directed to such issue" was Paul Revere's November 2, 2000 answer. The deadline under Rule 38 for making a jury demand expired ten days after November 2, 2000 — approximately twenty months before Paul Revere made its first request for a trial by jury. Because it failed to file a timely jury demand, Paul Revere moves for leave to file its jury demand pursuant to the court's discretionary authority under Rule 39(b).

In assessing a party's untimely request for a jury trial under Rule 39(b), the court must consider five factors: (1) whether the issues involved are best tried before a jury; (2) whether the schedule of the court or opposing party will be disrupted; (3) the degree of prejudice to the opposing party; (4) the length of the delay; and (5) the reason for the movant's delay. Early v. Bankers Life and Cas. Co., 853 F. Supp. 268, 271 (N.D.Ill. 1994) (citations omitted). Among the five factors, the degree of prejudice, the length of the delay and the reason for the delay are the most significant. Id. An evaluation of the reason for the delay can be determinative. See Noddings Inv. Group, Inc. v. Kelley, 881 F. Supp. 335, 337 (N.D.Ill. 1995).

Courts in this district are split over whether the moving party has the initial burden of providing a colorable reason for the delay before the other four factors should be considered. Compare Synet, Inc. v. Microsoft Corp., No. 95 C 6195, 1998 WL 102707, at *3 (N.D.Ill. Mar. 2, 1998) (court must consider all five factors in making its determination)), with Noddings, 881 F. Supp. at 337 ("[D]elinquent party seeking discretionary relief must furnish justification for his tardiness."). Without specifically resolving this split of authority, the Seventh Circuit has held that "the district judge may require a litigant who asks belatedly for a jury trial to offer a reason for not meeting the deadline." Members v. Paige, 140 F.3d 699, 703 (7th Cir. 1998).

In an attempt to bolster its argument, Paul Revere mistakenly relies on Merritt v. Faulkner, 697 F.2d 761 (7th Cir. 1983), a case whose holding was clarified fifteen years later in Members. In Merritt, the Seventh Circuit stated that although the district court retains discretion to deny a tardy jury request, "[i]n the absence of strong and compelling reasons to the contrary, untimely jury demands should be granted." Id. at 767. In subsequent decisions, however, the Seventh Circuit has not followed that standard, explaining that the use of the "strong and compelling" language in Merritt may have been a rhetorical flourish rather than a legal standard, or perhaps it was designed to convey the idea that Rule 38 simply may not be enforced against unrepresented litigants." Members, 140 F.3d at 703. The court correctly noted that if "strong and compelling" reasons are necessary to deny such motions, district courts would be stripped of the discretion given them by Rule 39(b) because of the difficulty in meeting such a high standard. Id. Further, the waiver provision in Rule 38(d) would be effectively nullified. Id. For these reasons, the court rejected the Merritt standard (which favored the untimely movant) and instead placed the presumption in favor of waiver. Id. ("[I]f the deadline in Rule 38(b) passes without a jury demand, the presumption is against rather than in favor of a jury trial.")

It is necessary to examine the five factors with the Members standard in mind. The first factor, whether the issues involved in the case are best tried before a jury, favors neither party. There is nothing about the issues in this case that requires a jury. Paul Revere argues that this case turns on credibility of witnesses and that juries are in the best position to make credibility determinations. The same can be said about every case. The trier of fact is always required to make determinations about the credibility of witnesses and assign appropriate weight to testimony. Paul Revere has provided no argument suggesting that this case involves some issue for which a jury is specially suited. The second factor favors the movant. No trial date has been set and therefore the schedule of the court and Heslinga will not be significantly disrupted if the jury request is granted. The third factor, the degree to which the opposing party will be prejudiced, also favors Paul Revere. The only inconvenience specifically mentioned by Heslinga is that counsel would have conducted the deposition of an expert witness in a more detailed manner. Paul Revere correctly points out, however, that the deposition in question was taken almost seven weeks after Paul Revere first requested a jury trial and therefore Heslinga was on notice of the request. Vague assertions that counsel is prejudiced because they prepared for a bench trial are generally unpersuasive, particularly when no trial date has been set. See Advertising to Women, Inc. v. Gianni Versace S.p.A., No. 98 C 1553, 1999 WL 717906, at *13-14 (N.D.Ill. Aug. 9, 1998).

Because Paul Revere waited nearly two years before filing this motion, the fourth factor — the extent of delay — favors Heslinga. Courts have held that delays shorter than the delay in this case were significant. Noddings, 881 F. Supp. at 337 (thirteen months); Early, 853 F. Supp. at 272 (nineteen months). Although delays of up to two years have been excused when extenuating circumstances exist (changes in counsel, for example), Paul Revere has not provided this court with any such circumstances.

Finally, the fifth factor — the reason for the delay — also favors Heslinga. Regardless of whether this factor is a threshold inquiry or simply a factor to be considered by the court, the court views this factor as the most significant. Paul Revere provides no credible explanation justifying its untimely jury demand, stating only that "the reason for its delay is not related to oversight or inadvertence as argued by the Plaintiff but rather its desire to secure its fundamental right to a trial by jury." Paul Revere's Response at 3. This response does not explain why Paul Revere waited almost two years before it made its first jury demand. There is no indication that discovery thus far completed changed the nature of the case in such a way that although a jury trial was not necessary before, it now is. With nothing but this tenuous offering, the court finds that Paul Revere has failed to demonstrate a sufficient justification for its delay.

This court does not take lightly the denial of a jury trial. However, given the presumption against untimely jury demands along with the length of the delay and Paul Revere's failure to provide any justification, the court concludes that this case does not warrant an exercise of the court's discretion under Rule 39(b). In order for Rule 38(b) to have any value, it must be enforced in situations such as this one. Defendant's Motion For Leave To File A Jury Demand is denied. Plaintiff's Motion To Strike Defendant's Jury Demand is denied as moot.


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