United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
JOSEPH C. WILKINSON, Jr., Magistrate Judge.
Plaintiff's letter to the court, Record Doc. No. 36, has been construed as a motion to amend his pleadings to assert a jury demand. Pursuant to my previous order, Record Doc. No. 37, the deadline for filing written opposition, if any, to plaintiff's motion was October 21, 2014. No memorandum in opposition to the motion has been received. Accordingly, this motion is deemed to be unopposed. Although a report and recommendation that the case be dismissed without prejudice has recently been issued, Record Doc. No. 39, I am nevertheless addressing this matter in the event the recommendation is not accepted and further proceedings are then required. It appearing to the court that the motion has merit, IT IS ORDERED that the motion is GRANTED for the following reasons.
The policy of the Federal Rules of Civil Procedure is liberal in favor of permitting amendment of pleadings, and Rule 15(a) evinces a bias in favor of granting leave to amend. Unless there is a substantial reason to deny leave to amend, the discretion of the district court is not broad enough to permit denial. Stripling v. Jordan Prod. Co. , 234 F.3d 863, 872 (5th Cir. 2000) (citing Foman v. Davis , 371 U.S. 178, 182 (1962); Leffall v. Dallas Indep. Sch. Dist. , 28 F.3d 521, 524 (5th Cir. 1994); Martin's Herend Imports, Inc. v. Diamond & Gem Trading U.S. Am. Co. , 195 F.3d 765, 770 (5th Cir. 1999); Dussouy v. Gulf Coast Inv. Corp. , 660 F.2d 594, 597-98 (5th Cir. 1981)). Thus, "[t]he court should freely give leave when justice so requires, " Fed.R.Civ.P. 15(a)(2), but such leave "is by no means automatic." Wimm v. Jack Eckerd Corp. , 3 F.3d 137, 139 (5th Cir. 1993) (quotation omitted). Relevant factors to consider include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment." Id.
However, plaintiff's motion is governed additionally by Fed.R.Civ.P. 38, which provides that a demand for jury trial must be asserted no later than 14 days after service of the last pleading directed to any issue triable by jury, and that failure to do so constitutes a waiver by the party of trial by jury. Fed.R.Civ.P. 38(b)(1), (d). However, Rule 39(b) states:
Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury trial might have been demanded.
As to the request to add a jury demand in this case, I follow the guidance provided by now Chief Judge Vance in White v. Pride Offshore, Inc., No. 98-2561, 1999 WL 58842, at *1-2 (E.D. La. Feb. 3, 1999), applying controlling Fifth Circuit precedent. In White, Judge Vance recognized "that a court should grant a jury trial in the absence of strong and compelling reasons to the contrary.'" Id. at *1 (quoting Swofford v. B & W, Inc. , 336 F.2d 406, 409 (5th Cir. 1964)) (citing Farias v. Bexar County , 925 F.2d 866, 873 (5th Cir. 1991); Daniel Int'l Corp. v. Fischbach & Moore, Inc. , 916 F.2d 1061, 1064 (5th Cir. 1990)). "A motion for trial by jury under [Rule 39(b)] should be favorably received unless there are persuasive reasons to deny it." Daniel Int'l Corp. , 916 F.2d at 1064 (quotation omitted).
This is so because the Seventh Amendment confers a fundamental civil right. Id . "[W]e must be mindful that maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.... Thus, courts should indulge every reasonable presumption against waiver." McDonald v. J. Steward , 132 F.3d 225, 229 (5th Cir. 1998) (internal quotations omitted).
In Daniel Int'l Corp., the Fifth Circuit identified five factors that district courts should consider in the exercise of discretion under Rule 39(b):
(1) whether the case involves issues which are best tried to a jury;
(2) whether granting the motion would result in a disruption of the court's schedule or that of an adverse party;
(3) the degree of prejudice to the adverse party;
(4) the length of the delay in having requested a ...