Vannoy v. Cooper

• Decision Date: 11 January 1995
• Docket Number: Civ.A. No. 3:94cv620.
• Citation: 872 F. Supp. 1485
• Parties: Susan W. VANNOY, Plaintiff, v. Jay A. COOPER and Mommy Market Productions, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

872 F. Supp. 1485

Susan W. VANNOY, Plaintiff, v. Jay A. COOPER and Mommy Market Productions, Inc., Defendants.

Civ.A. No. 3:94cv620.

United States District Court, E.D. Virginia, Richmond Division.

January 11, 1995.

Jane Chittom, Mark E. Rubin, Shuford, Rubin & Gibney, Richmond, VA, for plaintiff.

Edward E. Cooper, Barbara P. Flanagan, Wright, Robinson, McCammon, Osthimer & Wright, Richmond, VA, for defendants.

MEMORANDUM OPINION

PAYNE, District Judge.

Plaintiff, Susan W. Vannoy, has moved for entry of an order permitting a jury trial pursuant to Fed.R.Civ.P. 39(b).¹ On July 22, 1994, Vannoy instituted this action against Jay A. Cooper and Mommy Market Productions, Inc. by filing a Motion for Judgment in the Circuit Court for the City of Richmond. Vannoy seeks damages for personal injuries arising out of an automobile accident. Vannoy filed an Amended Motion for Judgment on August 3, 1994. On August 25, 1994, defendants filed a Notice of Removal to this court on diversity grounds.

Vannoy failed to make timely demand for a jury trial pursuant to Fed.R.Civ.P. 81(c), the rule governing jury trial demands in instances of removal. The issue was raised at the Initial Pretrial Conference on November 10, 1994. Vannoy filed her Rule 39(b) motion on December 15, 1994. For the reasons stated below, the plaintiff's motion is denied.

DISCUSSION

Neither party disputes that Vannoy failed to request a jury trial within the time allowed by Fed.R.Civ.P. 81(c). "The failure of a party to make demand as directed constitutes a waiver by that party of trial by jury." Fed.R.Civ.P. 81(c). However, "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues." Fed.R.Civ.P. 39(b). Resolution of a Rule 39(b) motion is "committed to the discretion of the trial court." Malbon v. Pennsylvania Millers Mut. Ins. Co., 636 F.2d 936, 940 (4th Cir. 1980).

In Malbon, the Fourth Circuit, in dicta, synthesized four factors that courts have considered when exercising the discretion conferred by Rule 39(b): (1) whether the issues are more appropriate for determination by a jury or a judge (i.e., factual versus legal, legal versus equitable, simple versus complex); (2) whether permitting a jury trial would prejudice the opposing party; (3) when the motion was made (early or late in the proceedings); and (4) whether granting a jury trial would affect adversely the court's docket and the orderly administration of justice. Id. at 940, n. 11. District courts within the circuit have considered these factors to guide the exercise of their discretion under Rule 39(b). See Whittaker Corp. v. UNR Indus., Inc., No. C-C-88-110-M, C-C-91-177-M, 1992 WL 557697, at *1 (W.D.N.C. Sept. 21, 1992); Martin v. Pepsi-Cola Bottling Co., 639 F.Supp. 931, 933 (D.Md.1986); Wallace v. Nationwide Insurance Co., 94 F.R.D. 563, 565-66 (S.D.W.Va.1982).

Several courts have considered a fifth factor: the reason for the failure to make a timely demand. For example, the United States Courts of Appeals for the Fifth, Sixth and Ninth Circuits have held that it is not an abuse of discretion to deny a Rule 39(b) motion on the ground that failure to make a timely demand was the result of inadvertence. See Farias v. Bexar County Bd. of Trustees for Mental Health Retardation Services, 925 F.2d 866, 873 (5th Cir.), cert. denied, 502 U.S. 866, 112 S.Ct. 193, 116 L.Ed.2d 153 (1991); Kitchen v. Chippewa Valley Sch., 825 F.2d 1004, 1012-13 (6th Cir. 1987). Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976).² Other decisions have specifically articulated five, rather than four, relevant factors for assessment in deciding a Rule 39(b) motion, the fifth being the reason for the failure to make a timely demand. See Parott v. Wilson, 707 F.2d 1262, 1267 (11th Cir.), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983); Daniel Int'l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1064-65 (5th Cir.1990). The Supreme Court of the United States has noted, in dicta, that a district court's discretion generally is guided by "the justifiability of the tardy litigant's delay and the absence of prejudice to his adversary." Pierce v. Underwood, 487 U.S. 552, 562, 108 S.Ct. 2541, 2548, 101 L.Ed.2d 490 (1988). These decisions teach that it is appropriate to consider the reason for the failure to make a timely demand in addition to the four factors articulated in Malbon.

The defendants have eschewed any discussion of the analysis suggested in Malbon, focusing instead on the reason for the failure to make a timely demand. From the fact that the plaintiff has offered no explanation of her failure to make a timely demand, defendants contend that the reason must be inadvertence. They then contend that, where inadvertence is the cause of the failure to make a timely demand, a Rule 39(b) motion must be denied.

Two circuits have held that Rule 39(b) motions are to be denied where inadvertence is the only reason for the failure to make a timely jury demand. In Galella v. Onassis, 487 F.2d 986 (2nd Cir.1973), the Second Circuit held that untimely jury requests "must be denied unless some cause beyond mere inadvertence is shown" Id. at 996. The decision in Galella is based on the Second Circuit's previous decision in Noonan v. Cunard Steamship Co., 375 F.2d 69 (2nd Cir.1967), wherein the court previously had determined that eighteen decisions by district courts in the Second Circuit holding that mere inadvertence was an insufficient basis on which to grant relief under Rule 39(b) had served "to narrow the allowable scope of discretion." Id. at 70. The Noonan court went so far as to conclude that "the area open to the judge's discretion has shrunk to determining whether the moving party's showing beyond mere inadvertence is sufficient to justify relief." Id. (emphasis added).

The reasoning in Noonan and Galella is not persuasive for several reasons. First, the fundamental premise of Noonan and Galella is inconsistent with the plain language of Rule 39(b). The text of the rule entrusts to the full range of the district court's discretion the decision whether to relieve a party from its waiver. Nothing in the text of the rule circumscribes the exercise of discretion to preclude relief from the consequences of a waiver caused by inadvertence.³ Second, although decisions of district courts represent a significant force in defining the application of rules of procedure, those decisions, no matter how many their number, cannot per force "narrow" or "shrink" the scope of discretion vested by the plain language of the Federal Rules of Civil Procedure. Third, it seems that the discretion of any court is more fully informed and more wisely exercised upon consideration of the specific reason for failing to file a timely demand for jury trial. That is important when one considers that inadvertence can be borne of a variety of reasons including ignorance and sloth, clerical error by counsel or counsel's staff and such momentous events as death or serious illness which produces a neglect of timely adherence to rules of procedure.

The Ninth Circuit also has held that Rule 39(b) motions must be denied where the failure to make a timely demand was due only to inadvertence. In Lewis v. Time Inc., 710 F.2d 549 (9th Cir.1983), the Ninth Circuit held that the district court's discretion under Rule 39(b) "is narrow, however, and does not permit a court to grant relief when the failure to make a timely demand results from an oversight or inadvertence." Id. at 556-57. The two decisions on which the Ninth Circuit relied in Lewis do not support the result reached there. In Mardesich v. Marciel, 538 F.2d 848 (9th Cir.1976), the Ninth Circuit, in dicta, observed that the district court "had virtually no discretion to exercise," apparently because "the only reason advanced by Mardesich in support of his motion for relief was oversight or inadvertence in failing properly to demand a jury trial." Id. at 849. Although, the Ninth Circuit acknowledged the rule announced in Galella, the Ninth Circuit described it as "a rather stringent rule" and did not adopt it. Rather, the court held that: "whatever the test that should be applied, it is clear from the record here that the District Court did not abuse its discretion, such as it had, in denying Mardesich relief from its waiver." Id. (emphasis added).

The other decision cited in Lewis was Chandler Supply Co. v. GAF Corp., 650 F.2d 983 (9th Cir.1980). There, the Ninth Circuit incorrectly cited Mardesich for the proposition that "untimely requests for a jury trial must be denied unless some cause beyond mere inadvertence is shown." Chandler, 650 F.2d at 987 (citing Mardesich and Galella). As explained above, Mardesich neither adopted the decision in Galella, nor subscribed to the view that inadvertence, standing alone, precluded relief under Rule 39(b). In fact, Chandler did not rely entirely on the inadvertence of the untimely demand. In upholding the district court's decision, the Ninth Circuit noted that "the antitrust issues involved were technical and complicated." Chandler, 650 F.2d at 988.

Defendants also cite Farias v. Bexar County Bd. of Trustees, 925 F.2d 866 (5th Cir.1991) as in accord with the Second and Ninth Circuits. In so doing, they misapprehend the decision in Farias. The Fifth Circuit, in Farias, recognized the general principle that the court should grant motions for jury trial in the absence of strong and compelling reasons to the contrary. However, the court held that "it is not an abuse of discretion by a District Judge to deny a Rule 39(b) motion ... when the failure to make a timely jury demand results from mere inadvertence on the part of the moving party." Id. at 873 (citations omitted) (emphasis added). This, of course, does not mean that a district court has a narrowed range of discretion where...