28 F.3d 636 (7th Cir. 1994), 92-2209, Partee v. Buch

Docket Nº:92-2209.
Citation:28 F.3d 636
Party Name:Fed.R.Serv.3d 421 Ellis O. PARTEE, Plaintiff-Appellant, v. James BUCH, Assistant Warden, Defendant-Appellee.
Case Date:June 30, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 636

28 F.3d 636 (7th Cir. 1994)

Fed.R.Serv.3d 421

Ellis O. PARTEE, Plaintiff-Appellant,


James BUCH, Assistant Warden, Defendant-Appellee.

No. 92-2209.

United States Court of Appeals, Seventh Circuit

June 30, 1994

        Argued Feb. 15, 1994.

        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. [*]

        COFFEY, Circuit 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.

        In the defendant's answer to the plaintiff's complaint, the defendant requested a jury trial but failed to set forth the request in the caption of his answer as required by Southern District of Illinois Local Rule 5(f) (since amended). Having knowledge that the defendant had filed a jury demand in his pleading, 2 the plaintiff, Partee, was entitled to rely on the defendant's jury demand and was not required to file a separate jury demand on his own. Fed.R.Civ.P. 38(d) ("[a] demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties"); Gargiulo v. Delsole, 769 F.2d 77, 79 (2d Cir.1985) ("[p]laintiffs were, of course, entitled to rely on defendant's jury demand

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to preserve their own right to a jury trial"). Despite the defendant's jury demand in his answer, the case was set to be heard without a jury (before the magistrate). Thus, on February 5, 1992, Partee filed a motion to place the action on the court's docket as a jury trial. The magistrate denied this motion on February 6, 1992 ruling that Partee's jury demand was untimely and that Buch's jury demand was improper because he failed to include the jury demand in the caption of his answer. Thereafter, the magistrate held a two-day bench trial. During the trial the defendant moved for a directed verdict but the court never ruled on the motion. At the conclusion of the trial, the magistrate issued his written findings of fact and conclusions of law on March 24, 1992. The magistrate's decision found in favor of Buch on all counts. Partee filed a timely notice of appeal and the case was assigned to the Rule 34(f) docket. 3 Following the Rule 34 conference this court issued an order setting the case for oral argument. We directed the parties to file supplemental briefs addressing the question of whether Southern District of Illinois Local Rule 5(f) was in conflict with Federal Rule of Civil Procedure 38, and, if Rule 5(f) was valid, whether forfeiture of a jury trial for non-compliance with 5(f) has the appropriate sanction.


        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?


  1. Jury Demand

            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.

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