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 ...