Summary
considering the five-factor test set out in Daniel Int'l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1064 (5th Cir. 1990), and a granting pro se plaintiff's tardy jury motion because her reasons for the late demand did "not result from mere 'inadvertence,' but rather [were] more akin to 'ignorance' or 'incompetence'"
Summary of this case from Beall v. A2Z Limousine Trans & Jimmy ChardyOpinion
Civil Action No. 3:02-CV-2204-D
May 27, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Luz M. Velasquez ("Velasquez") moves pursuant to Fed.R.Civ.P. 39(b) for a jury trial. For the reasons that follow, the court grants the motion.
I
On October 10, 2002 Velasquez, a deaf litigant acting pro se, sued defendant Bank of America, N.A. ("Bank of America") asserting claims under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and Texas Labor Code Ann. § 21.001, et seq. (Vernon 1996). The magistrate judge screened the complaint under 28 U.S.C. § 1915 and granted Velasquez leave to proceed in forma pauperis. The magistrate judge denied two motions that Velasquez filed for appointed counsel. Bank of America filed an answer on January 8, 2003. Velasquez — now represented by counsel — seeks a jury trial, four months later. Bank of America opposes the motion.
By failing to meet the ten-day requirement of Rule 38(b), Velasquez effectively waived her right to trial by jury.
II A
The decision to grant an untimely request for a jury trial is discretionary with the district court. Fredieu v. Rowan Cos., 738 F.2d 651, 653-54 (5th Cir. 1984). A district court generally should grant a Rule 39(b) motion to permit a jury trial "in the absence of strong and compelling reasons to the contrary." Lewis v. Thigpen, 767 F.2d 252, 257 (5th Cir. 1985). It should be noted, "[i]t is not an abuse of discretion by a [trial court] to deny a Rule 39(b) motion . . . when the failure to make a timely demand for a jury trial results from the mere inadvertence on the part of the moving party." Id. (citing Bush v. Allstate Ins. Co., 425 F.2d 393, 396 (5th Cir. 1970)). "[I]gnorance" and "incompetence," however, are distinguishable from "inadvertence." Id. at 258.
The following factors guide the court in considering whether to grant or deny the motion: (1) whether the case involves issues which are best tried to a jury; (2) whether granting the motion would disrupt the court's schedule or that of the adverse party; (3) the degree of prejudice to the adverse party; (4) the length of delay in having requested a jury trial; and (5) the reason for the movant's tardiness. Daniel Int'l Corp. v. Fischbach Moore, Inc., 916 F.2d 1061, 1064 (5th Cir. 1990). The court will assess the factors in turn.
B
First, this case concerns a discrimination dispute under the ADA, Title VII, and the Texas Labor Code. The issues regarding discrimination in the workplace are within the comprehension of a jury and are of the sort usually tried to a jury.
Second, a trial date has not been set in this case so granting plaintiff's request will not disrupt the schedule of the court or of Bank of America.
Third, Bank of America has not alleged any prejudice that may occur as a result of granting Velasquez's request.
Fourth, Velasquez was a pro se litigant until April 24, 2003, when she retained counsel. Although she moved for a jury trial four months after Bank of America filed its answer, the Rule 39(b) motion was filed promptly after she retained counsel.
Fifth, although Velasquez's failure to comply with Rule 38(b) in a timely manner mitigates against granting her request, as a deaf pro se litigant whose primary language is American Sign Language, her motions for appointed counsel demonstrate that she did not feel competent to represent herself. See Lewis, 767 F.2d at 259 (stating that blind pro se litigant's failure to make timely demand for jury trial was not mere inadvertence given that litigant had made repeated requests for counsel).
Accordingly, the court holds that Velasquez's reasons for her tardy jury motion do not result from mere "inadvertence," but rather are more akin to "ignorance" or "incompetence."
* * *
Considering the Rule 39(b) factors, the court holds that there are no "strong and compelling" reasons to deny Velasquez's request for a jury trial. Her April 28, 2003 motion for trial by jury is therefore granted.