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Williams v. OSG Ship Management, Inc.

United States District Court, E.D. Louisiana

December 14, 2018

DEISRAEL WILLIAMS
v.
OSG SHIP MANAGEMENT, INC.

         SECTION M (3)

          ORDER & REASONS

          BARRYW. ASHE UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for jury trial filed by plaintiff Delsrael Williams, [1] which is opposed by defendant OSG Ship Management, Inc. ("OSG").[2] Having considered the parties' memoranda and the applicable law, the Court issues this Order & Reasons.

         I. BACKGROUND

         This Jones Act case was filed on February 5, 2018, as a non-jury case.[3] OSG answered on February 18, 2018, without a jury demand.[4] Nor did Williams make a jury demand ten days after OSG filed its answer. A scheduling conference was held on March 8, 2018, during which Williams confirmed that no jury demand had been made, and a scheduling order issued establishing pretrial deadlines, including a discovery deadline of July 16, 2018, and setting a bench trial for October 1, 2018.[5] The Court conducted status conferences on April 18, 2018, and July 30, 2018, during which Williams' counsel maintained his intentional choice to proceed without a jury.[6] The parties filed a pretrial order on August 27, 2018, which recited that "THIS IS A NON-JURY CASE."[7] On August 30, 2018, the parties discussed the case at a final pretrial conference, during which Williams' counsel again never mentioned requesting a jury trial.[8] Due to a conflict with the scheduled trial date, the Court continued the trial to be rescheduled at a later date.[9]

         On September 11, 2018, this case was transferred from Section I to Section M of this Court.[10] The next day, September 12, 2018, Williams filed the subject motion for jury trial. On October 11, 2018, a scheduling order was issued setting a new trial date of May 6, 2019.[11]

         II. PENDING MOTION

         Invoking Federal Rule of Civil Procedure 39(b), Williams asks this Court to convert the case to a jury trial.[12] Williams points to the five-factor test set out in Daniel International Corp. v. Fischbach& Moore, Inc., 916 F.2d 1061, 1064 (5th Cir. 1990), arguing that each of the factors supports allowing a jury trial in this case.[13] Nowhere in his supporting memorandum does Williams explain why he failed to demand a jury originally or why he has done so now. In opposition, under the same test used by Williams, OSG argues that the five factors weigh against permitting the tardy request for a jury.[14]

         III. LAW & ANALYSIS

         A. The Standard for Considering a Late Jury Demand

         Rule 38 of the Federal Rules of Civil Procedure provides in pertinent part:

(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand - which may be included in a pleading - no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d).
(d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed ....

         In the absence of a proper, timely jury demand under Rule 38, a district court has discretion to order a jury trial under Rule 39(b) if the issues are triable to a jury. Rule 39(b) provides:

(b) When No. Demand is Made. 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 might have been demanded.

         The purpose of the rule is "to allow a trial court to use its discretion to grant jury trials in unique situations which call for them where, nevertheless, the requisites of Rule 38 have not been met." Pinemont Bank v. Belk, 722 F.2d 232, 237 (5th Cir. 1984).

         A court should exercise its discretion in favor of a jury trial unless there are "strong and compelling reasons to the contrary." Daniel, 916 F.2d at 1064. The Fifth Circuit has delineated a five-factor test for when a district court should consider exercising its discretion under ...


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