United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. Durkin United States District Judge
third amended complaint filed May 17, 2017, R. 178, the
plaintiff, for the first time, demanded a jury trial. The
defendant has moved to strike the demand as untimely. R. 184.
For the following reasons, the defendant's motion is
original complaint in this case was filed on October 27,
2014. R. 1. It did not contain a jury demand. Nor did the
first amended complaint, which was filed on January 12, 2015.
R. 22. A proposed second amended complaint, also without a
jury demand, was filed on April 23, 2015, R. 38, but an
appeal was taken before the Court could rule on the motion to
file it, see R. 50. Following resolution of the
appeal, the Court held a status hearing on January 6, 2017.
See R. 55. During that hearing, plaintiff's
counsel requested leave to file a second amended complaint.
R. 148 (Jan. 6, 2017 Hrg. Tr.) at 3:11-16. The Court granted
that request, see id., and brought to counsel's
attention that no jury demand had been made in the original
complaint. R. 148 at 22:1-3. In response, counsel stated,
“It's better for us, ” referring to a bench
trial, adding “I mean [it's] my decision.”
Id. at 22:6.
second amended complaint without a jury demand was filed on
January 27, 2017. R. 70. At a status hearing held on February
7, 2017, just a few days before the defendant's answer
was due, the Court inquired whether either party would be
making a jury demand. See R. 82; see also
R. 105 (Feb. 7, 2017 Hrg. Tr.) at 22-24.
counsel answered as follows:
If we haven't filed for [a jury trial], I would be
content with a bench trial because I think these are more,
you know, facts such that a judge can better decide on than
an emotional jury panel. But client did say he wanted the
jury, but, again, I believe that is my decision too. So --
R. 105 (Feb. 7, 2017 Hrg. Tr.) at 24:6-10. The defendant
filed her answer, without a jury demand or counterclaims, on
February 10, 2017. R. 88.
17, 2017, more than three months later, the plaintiff filed a
third amended complaint, this time, demanding a jury trial.
R. 178. The third amended complaint struck the
plaintiff's previously-asserted claim under the Computer
Fraud and Abuse Act, but did not add or substantively alter
any of the other six claims asserted in the second amended
complaint. See Id. The third amended complaint also
added the following relevant factual information:
• The location of the plaintiff's computer in the
marital home, id. at ¶ 10.
• The fact that the parties were not authorized to use
each other's computers, id. at ¶ 11.
• The fact that the plaintiff used his computer for both
work and personal purposes, id. at ¶ 12.
• Specific examples of allegedly intercepted emails
(which were referred to more generally in second amended
complaint), id. at ¶20A-D.
third amended complaint also contained a number of irrelevant
allegations related to dismissed-defendant Jay Frank,
id. at ¶¶ 27, 29, 34A-B, as well as minor
embellishments and stylistic and editorial changes, see ...