Opinion
98 Civ. 5716 (KMW) (RLE)
May 26, 2000 June 1, 2000
MEMORANDUM OPINION ORDER
This case was referred by the Honorable Kimba M. Wood for general pretrial supervision on March 16, 2000. Before the Court on May 18, 2000, for a pretrial conference, pro se plaintiff Rahela Waziullah ("Waziullah") requested that the pending trial proceed with a jury. This request was first made by Waziullah in a proposed scheduling order to Judge Wood, dated March 15, 2000, whereby Waziullah claimed entitlement to a jury trial. In this same order, defendants argued that she had waived her right to a jury trial by not demanding a trial by jury in her complaint. Waziullah's complaint does not contain a written request for a trial by jury.
The right to a jury trial is governed by Federal Rules of Civil Procedure Rule 38 and 39. Rule 38(b) of the Federal Rules of Civil Procedure provides that a party may make a request for a jury trial by serving a demand in writing anytime after the commencement of the action and not later than ten days after the service of the last pleading directed to the issue. Rule 7 (a) defines pleadings to include the complaint, the answer, and when applicable, any third-party complaints, answers, and answers to cross-claims. Here, the date of defendants' answer, which is the last filed pleading, was November 10, 1998. Waziullah's request for a jury trial in the scheduling order is dated March 15, 2000, which is well beyond the necessary filing date. Plaintiff asserts that she did not know that she had to request a jury.
Rule 38(d) of the Federal Rules provides that the "failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of a trial by jury." See Fed.R.Civ.P. 38(d); see also 9C Wright Miller, Federal Practice and Procedure § 2321, at 102 (1971) (a "[w]aiver by failure to make a timely demand is complete even though it was inadvertent and unintended and regardless of the explanation or excuse"). Notwithstanding this directive, Rule 39(b) provides that "the court in its discretion upon motion may order a trial by jury of any or all issues." Fed.R.Civ.P. 39(b).
The Second Circuit has held that the discretion afforded the courts under Rule 39(b) is considerably limited. In Noonan v. Cunard S.S. Co., 375 F.2d 69 (2d Cir. 1967), the Court held that a party's "mere inadvertence" in failing to make a jury demand at the appropriate time was not a sufficient reason for granting a request for a jury under Rule 3 9(b). More recently and on point, the Second Circuit held that the requirements of Rule 38 apply with the same force to a pro se litigant as they do to counsel, even if the unrepresented plaintiff had not received actual notice of the deadline for making a jury request. See Washington v. New York City Board of Estimate, 709 F.2d 792, 797-98 (2d Cir. 1983), cert. denied, 464 U.S. 1013 (1983).
Because Waziullah failed to submit a request for a jury trial within the time permitted by the Rules of Civil Procedure, and has made no showing to the Court, beyond mere inadvertence, her request for a jury trial is DENIED.
SO ORDERED this 26th day of May 2000 New York, New York
The Honorable Ronald L. Ellis United States Magistrate Judge