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June 8, 2005.


The opinion of the court was delivered by: MARK FILIP, District Judge


In this lawsuit, Federal Insurance Company ("Federal") is seeking contribution from Helmar Lutheran Church ("Helmar") for its portion of a settlement paid by Federal in an underlying personal injury lawsuit resolved in the Illinois state courts. Helmar filed a jury demand pursuant to Federal Rule of Civil Procedure 38 ("Rule 38") concurrently with its answer to the second amended complaint on April 5, 2005. On April 29, 2005, Federal filed a motion to strike the jury demand. In response, on May 25, 2005, Helmar filed a cross-motion requesting the Court to grant a jury trial pursuant to Rule 39(b). As explained below, Federal's motion to strike the jury demand is granted, and Helmar's motion belatedly requesting a jury trial is denied.

I. Background

  This case stems from a personal injury suit filed by Jean Wissmiller in Illinois state court against Helmar and National Manufacturing Co. ("National"). (Pl. 2d Am. Compl. ¶ 27.) Federal paid a $1,450,000 settlement to Wissmiller on behalf of National. (Id. ¶ 28.) In return for the settlement payment, Wissmiller released National and Helmar from liability. (Id.) Helmar did not contribute to the settlement. (Id.) Federal filed the initial complaint seeking contribution in this Court on April 6, 2004. (D.E. 1.)

  Helmar filed an answer to the complaint on June 21, 2004 (D.E. 7), and a motion for summary judgment on July 12, 2004. (D.E. 8.) The summary judgment motion was denied on December 13, 2004. (D.E. 16.) Federal filed a first amended complaint on December 14, 2004, and a second amended complaint on January 27, 2005. (D.E. 17, D.E. 20.) Neither of the amended pleadings raised new factual issues. The first amended complaint clarified that none of Helmar's members shared a state of citizenship with Federal for purposes of diversity jurisdiction (D.E. 17 at 1) and the filing (as well as the parties' oral representations in court) clarified that Federal was the only actual party in interest, as it was not seeking to recover any deductible paid by an insured.*fn1 The second amended complaint merely corrected an erroneous averment of Federal's state of incorporation, and that correction did not undermine the propriety of diversity jurisdiction. Helmar filed an answer to the second amended complaint (D.E. 27) on April 5, 2005, along with its jury demand (D.E. 26).

  II. Waiver of right to demand jury trial

  Helmar failed to make a timely demand for a jury under applicable law and therefore waived the right to demand trial by jury. A party has the right to demand a jury trial by serving and filing such demand within ten days after service of the last pleadings directed to such issue. See Fed.R.Civ.P. 38(b). Failure to make a timely demand constitutes a waiver of the right to trial by jury. See Fed.R.Civ.P. 38(d). The "last pleadings" will typically be an answer to a complaint or a reply to a counterclaim. See, e.g., Early v. Bankers Life & Cas. Co., 853 F. Supp. 268, 270 (N.D. Ill 1994) (citing In re Kaiser Steel Corp., 911 F.2d 380, 388 (10th Cir. 1990)). Amended or supplemental pleadings do not revive the right to demand a jury trial except as to new issues of fact raised by the new pleadings. See Communication Maint., Inc. v. Motorola, Inc., 911 F.2d 1202, 1208 (7th Cir. 1985); accord Huff v. Dobbins, Fraker, Tennant, Joy & Perlstein, P.C., 243 F.3d 1086, 1090 (7th Cir. 2001).

  In this case, Helmar's jury demand was filed April 5, 2005 (D.E. 26), concurrently with the answer to the second amended complaint (D.E. 27), and much longer than ten days after Helmar's initial answer (filed June 21, 2004 (D.E. 7)). The two amendments to the initial complaint only corrected issues relating to the propriety of diversity jurisdiction, and did not alter the substantive basis of the request for relief nor the gravamen of the alleged wrongdoing. Therefore, the last pleading contesting the issues was the answer to the initial complaint. Consequently, Helmar's failure to demand a jury trial within ten days of filing the answer on June 21, 2004, constituted a waiver of the right to demand a jury. Making the jury demand only after two prior answers to substantively identical complaints was deficient under Rule 38. See Communications Maint., 761 F.2d at 1208.

  III. Discretion of the court to grant jury trial

  Notwithstanding a waiver of the right timely to demand a jury trial, the court upon motion may exercise its discretion to grant a party's belated request for jury trial. See Fed.R.Civ.P. 39(b). A party making an untimely request for a jury trial may be required to offer a reason for its untimeliness. See Members v. Paige, 140 F.3d 699, 704 (7th Cir. 1998). Once that party offers a reason, the court should exercise its discretion with an open mind in consideration of that reason and other circumstances of the case. Id. "Lack of legal assistance may supply (or be) a good reason for a favorable exercise of discretion under Rule 39(b)." Id.

  In Members, the plaintiff filed a jury demand 46 days after the answer was filed. Id., 140 F.3d at 701. Therefore, the demand was not timely under Rule 38(b). Id. However, Rule 39(b) required a thoughtful exercise of discretion by the court. Id. at 703. Once the defendant provided an explanation, the court could then exercise its discretion, after analyzing the situation with an open mind, to grant or deny the untimely request in consideration of the explanation given and other circumstances surrounding the case. Id. at 703-04.

  The reason for the movant's failure to make a timely demand is frequently the determinative factor for the court in exercising its discretion. Noddings Inv. Group, Inc. v. Kelley, 881 F. Supp. 335, 337 (N.D. Ill. 1995). Four other factors also warrant consideration: 1) whether the issues would be best tried to a jury; 2) the length of delay in making the request; 3) whether the court's or the adverse party's schedule will be disrupted; and 4) whether the adverse party will be prejudiced. See Noddings Inv. Group, Inc., 881 F. Supp. at 337; accord Early, 853 F. Supp. at 271.

  Helmar offers three reasons for its failure to make a timely request. First, Helmar says it anticipated a dispositive motion on the pleadings, and Helmar thought that its Rule 12 motion (which it never filed, incidentally) would be a winning one. Anticipating that a court will grant a motion to dismiss or a motion for judgment on the pleadings is not a sensible or acceptable reason for failing to comply with the Rule 38(b) requirements for demanding a jury. If a defendant is so confident in a Rule 12 motion that the defendant decides not to comply with other Federal Rules in developing a litigation strategy, it does so at its own risk.

  Second, Helmar says it mistakenly failed to enter a jury demand when it decided to file a motion for summary judgment instead of a motion for dismissal. However, the motion for summary judgment was filed on July 12, 2004, after the ten-day period for compliance with Rule 38(b) had already passed. This "mistake" may shed some light (perhaps) on why the jury demand actually was nine months late instead ...

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