United States District Court, N.D. Illinois, Eastern Division
LAWRENCE S. KIRSCH, as Shareholders' Representative of LAWRENCE S. KIRSCH, CHARLES W. KRIETE, MICHAEL J. CHASE, and GEORGE PUSZKA, Plaintiff,
BRIGHTSTAR CORPORATION, Defendant.
MEMORANDUM OPINION AND ORDER
RUBÉN CASTILLO, Chief District Judge.
Plaintiff Lawrence S. Kirsch, as Shareholders' Representative of Lawrence S. Kirsch, Charles W. Kriete, Michael J. Chase, and George Puszka (collectively "Shareholders"), brings this diversity action against Brightstar Corporation ("Brightstar") alleging common law breach of contract. (R. 1, Compl.) Presently before the Court are: Plaintiff's motion to correct the record regarding whether a proper jury demand was made in this case, (R. 92, Pl.'s Mot. Correct); Brightstar's cross-motion for a jury trial pursuant to Federal Rule of Civil Procedure 39(b), (R. 94, Def.'s Resp.); and Brightstar's motion to amend its answer and to add an affirmative defense, (R. 95, Def.'s Mot. Amend). For the reasons stated below, the Court denies Plaintiff's motion to correct the record, grants Brightstar's motion for a jury trial, and grants Brightstar's motion to amend its answer and to add an affirmative defense.
I. Plaintiff's Motion to Correct the Record and Brightstar's Rule 39(b) Motion
Plaintiff initiated this action on August 30, 2012. (R. 1, Compl.) Plaintiff's complaint does not contain a jury demand. ( Id. ) Plaintiff checked the jury demand box on the civil cover sheet, however, which he filed with the complaint. (R. 2, Civil Cover Sheet.) Additionally, when Plaintiff electronically filed the complaint, he typed the words "Jury Demand" in the electronic filing system and those words appear on the docket. ( See R.1, Compl.) On October 4, 2013, Plaintiff filed a joint status report, signed by both Plaintiff's and Defendant's counsel, stating that a "[j]ury trial has been requested." (R. 28, Joint Status Report at 4.) On May 7, 2014, the Court set the case for a jury trial beginning November 3, 2014. (R. 66, Min. Entry.) At a motion hearing on July 18, 2014, the Court reiterated that the case was set for a jury trial and set the date for the filing of a final pretrial order; the Court noted that the parties' proposed jury instructions were not due at that time. (R. 87, Jul. 18, 2014 Hr. Tr. at 09:11-13; 44:17-25.)
On August 14, 2014, almost two years after Plaintiff filed the complaint, Plaintiff moved to correct the record. (R. 92, Pl.'s Mot. Correct.) Plaintiff admits that "[t]hroughout the course of this litigation, both counsel and the Court erroneously believed a jury trial had been properly demanded, " and "[i]n recent preparation for the upcoming trial, which has been set for November 3, 2014, Plaintiff discovered the error." ( Id. at 2.) Plaintiff alleges that he did not intend to seek a jury trial and requests that the Court "correct" the record to reflect that no jury demand was made. ( Id. at 3-4.) Plaintiff further requests that the case be resolved by a bench trial. ( Id. at 4.) Brightstar responded to Plaintiff's motion on August 18, 2014, arguing that Plaintiff made a proper jury demand under Federal Rule of Civil Procedure 38. (R. 94, Def.'s Resp. at 3-5.) Alternatively, Brightstar argues that pursuant to Rule 39, the Court should permit the case to be decided by a jury to prevent undue prejudice to Brightstar. ( Id. at 5-7.)
A. Legal standards
Rule 38 requires a party to demand a jury trial by "serving the other parties with a written demand - which may be included in a pleading - no later than 14 days after the last pleading directed to the issue is served[.]" Fed.R.Civ.P. 38(b)(1). Failure to properly serve a written demand results in the waiver of a jury trial. Fed.R.Civ.P. 38(d). Nonetheless, if a jury demand is not made in compliance with Rule 38, Rule 39 provides that "the court may, on motion, order a jury trial on any issue for which a jury might have been demanded." Fed.R.Civ.P. 39(b).
1. Whether a proper jury demand was made pursuant to Rule 38
Here, Plaintiff did not serve Brightstar with a written demand for a jury. Plaintiff instead checked the jury demand box on the civil cover sheet and typed in "Jury Demand" in the electronic filing system. Courts have held that checking the jury demand box on the civil cover sheet does not constitute a proper demand in compliance with Rule 38 because the civil cover sheet is generally not served on the opposing party. See Williams v. Reilly, No. 94 C 4120, 1995 WL 625207, at *2 (N.D. Ill. Oct. 23, 1995) ("Defendant's erroneous checking of the jury demand box is not sufficient to comply with [Rule 38], and as such does not constitute a sufficient jury demand."); see also Gonzalez v. Target Corp., No. 2:13-CV-01615-KJM-AC, 2014 WL 2548726, at *4 n.2 (E.D. Cal. Jun. 5, 2014) (quoting Wall v. Nat'l R.R. Passenger Corp., 718 F.2d 906, 909 (9th Cir. 1983) ("The civil docket sheet is an administrative document... and is not served on the opposing party.")); McCune v. U.S. Dep't of Justice, No. 3:11-cv-423(DCB)(MTP), 2013 WL 2244341, at *2 (S.D.Miss. May 21, 2013). Brighstar argues that the checked box on the cover sheet along with the words "Jury Demand" on the docket should be sufficient for a proper jury demand, "regardless of whether the docket entry is formally served' with the complaint, " because "in the age of electronic filing, " the docket "is routinely reviewed by the parties' attorneys." (R. 94, Def.'s Resp. at 4-5.) Rule 38 requires proper service of the jury demand, and while the Court recognizes that Brightstar reviewed and relied on the docket entry, it cannot find that Brightstar's review of the docket constitutes proper service. See Fed.R.Civ.P. 5(b). Accordingly, the Court finds that Plaintiff did not make a sufficient jury demand pursuant to Rule 38.
2. Whether the Court should order a jury trial pursuant to Rule 39(b)
Notwithstanding Plaintiff's failure to make a sufficient jury demand, the Court has discretion to grant Brightstar's untimely request for a jury trial pursuant to Rule 39(b). Fed.R.Civ.P. 39(b). Rule 39(b) allows courts "to grant an untimely demand for a jury, but only... if a good reason for the belated demand is shown." Olympia Express, Inc. v. Linee Aeree Italiana. S.P.A., 509 F.3d 347, 352 (7th Cir. 2007); see also Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir. 1983) ("In the absence of strong and compelling reasons to the contrary, untimely jury demands should be granted."). The Seventh Circuit has directed district courts to "approach each application under Rule 39(b) with an open mind and an eye to the factual situation of that particular case, rather than with a fixed policy." Members v. Paige, 140 F.3d 699, 703-04 (7th Cir. 1998). In assessing a Rule 39(b) motion, the court must consider and balance the following five factors: "(1) whether the issues involved are best tried before a jury; (2) whether the court's schedule or that of the adverse 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 tardiness in demanding a jury trial." Synet, Inc. v. Microsoft Corp., No. 95 C 6195, 1998 WL 102707, at *2 (N.D. Ill. Mar. 2, 1998); see also Fed. Ins. Co. v. Church, No. 04-C-2478, 2005 WL 1500958, at *2 (N.D. Ill. Jun. 8, 2005). "Among the five factors, the more significant factors are (3), (4), and (5)." Early v. Bankers Life & Cas. Co., 853 F.Supp. 268, 271 (N.D. Ill. 1994). In short, "Rule 39(b) relief should be granted only if the totality of the circumstances surrounding the untimely jury demand indicates that there is some colorable justification for the tardy jury demand and that noncompliance has no substantive effect on the other party." Synet, 1998 WL 102707, at *2.
Brightstar contends that it is now making an untimely jury demand because like the Court and opposing counsel, it was under the assumption that Plaintiff had demanded a jury trial. (R. 94, Def.'s Resp. at 5.) Plaintiff checked the jury demand box on the civil cover sheet, typed the words "Jury Demand" in the electronic filing system, represented to the Court in the joint status report that it was requesting a jury trial, and stood by without objection as the Court set the jury trial date and entered orders pertaining to the trial. Plaintiff had ample opportunity throughout the course of this litigation to notify the Court of this error, but instead waited until three months before the original trial date to bring this issue up. Brightstar argues that it was justified in relying on Plaintiff's actions to assume the case was to be tried in front of a jury, (R. 94, Def.'s Resp. at 5-6), and the Court agrees. See Partee v. Buch, 28 F.3d 636, 636 (7th Cir. 1994) (finding that plaintiff was entitled to rely on defendant's jury demand and was not required to file a separate jury demand). Thus, the Court finds that Brightstar has shown a good reason for its belated demand. See Olympia, 509 F.3d at 352.
Additionally, Brightstar argues that converting this case to a bench trial would cause unfair prejudice. (R. 94, Def.'s Resp. at 1-2.) Brightstar contends that the prejudice "in all aspects of this case, from approach to the settlement conference to discovery, depositions, choice of expert witness, and everything else, would be substantial and unfair should Plaintiffs be permitted to make such a fundamental change to this case at this late hour." ( Id. at 2.) The Seventh Circuit has recognized that "preparation for a trial often depends critically on whether it will be a jury trial or a bench trial." Olympia, 509 F.3d at 351. Additionally, "[k]nowing which kind of trial it will be may also facilitate settlement by dispelling a material uncertainty, since some claims are known to be more appealing to juries than to judges, and vice versa." Id. From the inception of this lawsuit, Brightstar designed its litigation tactics and discovery strategies with a jury trial in mind. Thus, the Court finds that it would be unduly prejudicial to Brightstar to convert the case to a bench trial at this late stage. Additionally, Plaintiff has not explained to the Court how he will be ...