Partee v. Buch
Decision Date | 30 June 1994 |
Docket Number | No. 92-2209,92-2209 |
Citation | 28 F.3d 636 |
Parties | 65 Fair Empl.Prac.Cas. (BNA) 590, 29 Fed.R.Serv.3d 421 Ellis O. PARTEE, Plaintiff-Appellant, v. James BUCH, Assistant Warden, Defendant-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Robert J. Palmer, Daniel Hargreaves, and Perry Flaugh, Law Students (argued), May, Oberfell & Lorber, South Bend, IN, for plaintiff-appellant.
Brian F. Barov, Office of Atty. Gen., Crim. Appeals Div., John P. Schmidt (argued), Office of Atty. Gen., Civ. Appeals Div., Chicago, IL, for defendant-appellee.
Before COFFEY and FLAUM, Circuit Judges, and MORAN, District Judge. *
Appellant, Ellis Partee, filed a civil rights action under 42 U.S.C. Sec. 1983 against the appellee, James Buch, the assistant prison warden at the Menard Correctional Center of the Illinois Department of Corrections. Partee alleges that Buch discriminated against him by removing him from his prison job assignment on the basis of race, and further, alleges that Buch conspired with other inmates to assault or murder Partee. Both the plaintiff and the defendant filed motions for summary judgment which were denied by the U.S. magistrate judge. 1 Partee also filed motions (3) for appointment of counsel which were denied by the magistrate judge.
Did the jury demand in this case comply with Rule 38(b) of the Federal Rules of Civil Procedure? Secondly, if the court erred in declining to hold a jury trial, was the error harmless?
The right to a jury trial is guaranteed in the Seventh Amendment of the U.S. Constitution, "In Suits at common law, ... the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." U.S. Const. amend. VII. Rule 38 of the Federal Rules of Civil Procedure explains how a party obtains a jury trial:
"(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
* * * * * *
(d) Waiver. The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties."
The Federal Rules of Civil Procedure permit the district courts to adopt local rules governing court procedures:
"Each district court by action of a majority of the judges thereof may from time to time, after giving appropriate public notice and an opportunity to comment, make and amend rules governing its practice not inconsistent with these rules."
Pursuant to Rule 83, the judges of the Southern District of Illinois adopted Local Rule 5(f) governing a party's demand for a jury trial. Local Rule 5(f) provides: "If a demand for jury trial under Rule 38 of the Federal Rules of Civil Procedure is indorsed upon a pleading, the title of the pleading shall include the words 'and Demand for Jury Trial.' " 4 If Local Rule 5(f) is inconsistent with Fed.R.Civ.P. 38(b), it cannot be enforced. See 28 U.S.C. Sec. 2071; Colgrove v. Battin, 413 U.S. 149, 163 and n. 22, 93 S.Ct. 2448, 2456 and n. 22, 37 L.Ed.2d 522 (1973).
The case before us is indistinguishable from Pradier; thus, we choose to adopt the reasoning in that case (1) because there was a proper jury demand under Rule 38(b) which Local Rule 5(f) could not invalidate, 5 and (2) because the right to a jury trial is "fundamental," Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 811-812, 81 L.Ed. 1177 (1937), waiver will not be lightly inferred. In this instance, the defendants requested a jury in their answer in full compliance with Rule 38(b) and the plaintiff was entitled to rely on that jury trial demand. Gargiulo v. Delsole, 769 F.2d 77 (2d Cir.1985) ( ). Thus, the magistrate erred in declining to hold a jury trial. The second question, though, is whether that error was harmless.
Having concluded that the court erred in denying the demand for a jury trial, we address the question of whether the error was harmless. See, e.g., Laskaris v. Thornburgh, 733 F.2d 260, 264 (3d Cir.) ([e]rror in striking the demand for a jury trial is harmless if a directed verdict for the defendant would have been warranted), "cert. denied, 469 U.S. 886, 105 S.Ct. 260, 83 L.Ed.2d 196 (1984). In this instance, the defendant moved for a directed verdict during the bench trial, but the magistrate judge never ruled on the motion. On appeal, both parties present arguments as to the merits of the directed verdict motion. Rather than speculating on whether the magistrate judge intended to grant the motion for a directed verdict, 6 we remand the case for him to make that determination. If the magistrate determines that the plaintiff's case survives the directed verdict motion then a jury trial must be held. If he decides to grant the defendant's directed verdict motion, then the...
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