United States District Court, N.D. Illinois, Eastern Division
June 8, 2005.
FEDERAL INSURANCE COMPANY, A/S/O NATIONAL MANUFACTURING COMPANY, Plaintiff,
HELMAR LUTHERAN CHURCH, Defendant.
The opinion of the court was delivered by: MARK FILIP, District Judge
MEMORANDUM OPINION AND ORDER
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.
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
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
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 of eleven days late, but the mistake
does not reasonably explain why the jury demand was not made on
In addition, irrespective of whether Helmar intended to file a
motion under Rule 12 or Rule 56, Helmar still had to comply with
Rule 38 once the answer was filed. Helmar's statements that it
originally intended to file a Rule 12 motion, but instead filed a
Rule 56 motion, are not reasons for its failure to comply with
Rule 38. Helmar's (misplaced) hope or expectation of getting a
winning ruling on a dispositive pretrial motion might explain why
Helmar thought compliance with Rule 38 would be a moot point.
However, if Helmar was wrong in anticipating that this case would
not go to trial, it did so at its own risk.
Third, Helmar vaguely intimates that there was "add[ed] . . .
confusion" (D.E. 34 at 4) because "although the Plaintiff filed
the case a new case [sic] in Federal District Court, the case is
exactly the same case as the case dismissed from state court."
Id. Helmar adds that "[s]uch a case proceeds very much like a
case that had been removed to Federal District Court, a situation in which the state court jury
demand transfers with the case to federal court." Id. However,
this argument is not compelling, as it is divorced from the
reality of the situation. Neither of the parties nor the court
has ever treated this suit as a case removed from state court.
Helmar has not been confused about the nature of this case for
any other part of the proceedings, and Helmar never even comes
forward in its response brief and asserts that it actually was
"confused" about whether the instant case was removed from state
court or not. The idea that this federal case is, in some
respects at least, similar to one that could have arrived in
federal court via a removal (that never actually happened) is
hardly a compelling reason for failure to abide by facially
applicable procedural rules; Helmar has been represented
throughout these proceedings by counsel, and no reasonable
argument can be made that any attorney would reasonably be
confused about the genesis or procedural posture of this case.
The Seventh Circuit's teaching in Members directs that the
Court should consider any reasons proffered by the movant (as
done above) as well as all of the other circumstances and facts
in the case when the Court exercises its discretion concerning a
belated request for a jury trial. See id., 140 F.3d at 703-04.
Members also instructed that "[i]f there is to be any
presumption, it is the one stated in Rule 38(d)." Id.,
140 F.3d at 704. (Fed.R.Civ.P. 38(d) states that "[t]he failure of a
party to serve and file a [timely] demand as required by this
rule constitutes a waiver by the party of trial by jury.")
Members also instructed that "[l]ack of legal assistance may
supply (or be) a good reason for a favorable exercise of
discretion under Rule 39(b)." Id., 140 F.3d at 704.
In assessing the circumstances, facts, and equities in this
case, the Court initially notes that Defendant has been
represented by counsel throughout these proceedings. Thus, there is no factor, as sometimes has been the situation in
the precedent, of a pro se litigant belatedly seeking a jury
trial. See Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir.
1983) (reversing district court denial of nine-day-late jury
request from blind pro se prisoner, who from the beginning
asserted that he was not capable of representing himself, and who
claimed in the suit that defendant prison officials' deliberate
indifference was the cause of his blindness). The Court also
notes that while the Defendant in this case is Helmar, in
substantial part this is a contribution case between two large
insurance companies, Plaintiff and Helmar's insurer. There is no
"David versus Goliath" dynamic at issue here; indeed, one might
readily imagine that Plaintiff and Defendant's insurer will
reverse roles in a subsequent case involving a different personal
injury scenario. None of these factors makes Defendant's belated
jury request a particularly sympathetic one.
The four additional factors in precedent identified above also
on balance do not weigh in favor of granting Helmar's belated
request for a jury trial. First, the Court is equally capable as
a jury of deciding the factual issues to be presented at trial.
While contributory negligence is something a jury would be well
suited to resolve, the Court cannot fairly conclude that such an
issue is beyond the ken of a federal district court.
Second, Helmar's request is nine months late. Whether the case
in state court would have been tried to a jury is irrelevant to
the length of delay in requesting a jury in this federal case.
Although the Court does not consider the delay factor to be of
substantial weight, it certainly is hard to say that Defendant
has moved with much, if any, diligence on this issue. Third, granting a jury trial at this point will not have much
impact on scheduling one way or the other. No trial has been
scheduled. In this regard, it likely bears mention that fewer
judicial resources likely would be consumed if this case were
resolved via a jury trial than a bench trial. The jury
instructions in this comparative negligence case likely will not
produce substantial disputes, and the judicial time needed to
select a jury and await the jury's verdict likely is less, in the
aggregate, than would be needed to complete findings of fact and
conclusions of law. Nonetheless, the Court cannot shirk its
responsibility of resolving the case via a bench trial, if that
outcome is otherwise appropriate, simply because it would be less
onerous to have the case presented to a jury.
Fourth, there is a possibility of prejudice to the Plaintiff,
the adverse party. Although the Court cannot have complete
insight into the parties' respective strategy assessments, it is
clear that Defendant prefers a jury trial and Plaintiff prefers a
bench trial. The Court does not believe this fourth factor is
entitled to much weight in the analysis, because there is nothing
"unfair" about requiring Plaintiff to present its case to a jury,
but the Court notes that Plaintiff (which is without blame on the
jury trial issue) opposes Helmar's belated jury trial request and
believes it would be harmed on balance if Helmar's belated
request were granted.
In sum, the four factors identified in precedent such as
Noddings Investment Group, 881 F. Supp. at 337, do not cut
strongly either in favor of or against Defendant's belated jury
trial request. On balance the factors are largely a wash.
In its Members decision, the Seventh Circuit made clear that
while there was language in at least one prior Seventh Circuit
case suggesting that the party opposing an untimely jury demand
should provide compelling reasons not to allow the request, in
fact there is no such requirement for the non-movant in a Rule 39
scenario. See Members, 140 F.3d at 703. In Members, the
Seventh Circuit held that the presumption, if any, was against
rather than in favor of granting a jury trial following a belated
request for one. 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.") (citing Merritt v. Faulkner,
697 F.2d 761, 767 (7th Cir. 1983)); see also id. at 704 ("If there be
any presumption, it is the one stated in Rule 38(d); but
applications under Rule 39(b) should be entertained with an open
mind. . . .").
After considering Defendant's proffered reasons for its belated
demand (none of which is even mildly compelling), and after
considering the fact that the four factors identified in
precedent do not meaningfully cut in favor of granting
Defendant's belated request, the Court finds it appropriate to
enforce the timeframe suggested in Rule 38 and therefore denies
Defendant's motion. Defendant has been represented by counsel
throughout these proceedings, and there is no meaningful
disparity in sophistication between the parties. Under the
circumstances, there is no unfairness, and substantial fairness,
in holding the parties to the timeframe suggested in Rule 38.
In summary, Helmar waived its right to demand a jury by failing
to file a demand in a timely manner as prescribed by Rule 38.
Because Helmar failed to offer any adequate or even minimally
compelling explanation for that failure, and because of all the
other circumstances in the case (including, in particular, the
fact that Helmar has been represented by counsel throughout these
proceedings), the court declines to exercise its discretion under
Rule 39 to grant Helmar's untimely request for a jury trial.
Federal's motion to strike the Defendant's jury demand is granted. Helmar's
cross-motion requesting the Court to allow an untimely request
for a jury trial is denied.