United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM ORDER (DENYING DEFENDANT'S MOTION FOR
E. Hudson Senior United States District Judge.
MATTER is before the Court on Defendant's Motion for Jury
Trial (the "Motion"), filed on September 6, 2019
(ECF No. 31). This Motion contains Defendant's first jury
demand on any issues in this case. For the reasons set forth
below, the Court finds Defendant has waived its right to a
jury trial. Upon due consideration, and exercising its
discretion under Federal Rule of Civil Procedure 39(b), the
Court will deny Defendant's Motion.
right to a jury trial is not automatic. See General Tire
& Rubber Co. v. Watkins, 331 F.2d 192, 195 (4th Cir.
1964). A party may request a jury trial by serving a demand
in writing any time after the commencement of the action but
not later than fourteen days after service of the last
pleading directed to that issue. See Fed. R. Civ. P.
38(b); Tech. and Supply Mgmt., LLC v. Johnson Controls
Bldg. Automation Sys., LLC, No. 1:16-cv-303, 2016 WL
9412456, at *1 (E.D. Va. Dec. 1, 2016). Failing to do so as
required constitutes waiver by that party of a jury trial.
See Fed. R. Civ. P. 38(d); McCray v.
Burrell, 516 F.2d 357, 371 (4th Cir. 1975). In its
discretion, however, the court may, upon motion, order a jury
trial on any or all issues. See Fed. R. Civ. P.
39(b); see also Keatley v. Food Lion, Inc., 715
F.Supp. 1335, 1338 (E.D. Va. 1989) ("FRCP 39(b) empowers
the Court, in its discretion, to order a trial by jury
notwithstanding the failure of a party to properly demand a
deciding whether to a grant a party's request for a jury
trial, the court is guided by four factors: (1) whether the
issues are more appropriate for a determination by a jury or
a judge; (2) whether granting a jury trial would prejudice
the opposing party(s); (3) the timing of the motion; and (4)
any effect a jury trial would have on the court's docket
and orderly administration of justice. Malbon v. Pa.
Millers Mut. Ins., 636 F.2d 936, 940 n.11 (4th Cir.
1980). In addition to the four factors of Malbon,
courts in this Circuit have also found the justifiability of
the delay to be an important consideration. See, e.g.,
Vannoy v. Cooper, 872 F.Supp. 1485, 1489 (E.D. Va.
a decision committed to the discretion of the trial court.
Malbon, 636 F.2d at 940. "[Courts] grant such
motions infrequently, and ordinarily only when the moving
party presents some exceptional circumstance, beyond mere
inadvertence, to justify the original waiver."
Gelardi v. Transamerica Occidental Life Ins., 163
F.R.D. 495, 496 (E.D. Va. 1995) (citing Keatley, 715
F.Supp. at 1338); see also McCray, 516 F.2d at 371.
the parties dispute the filing date of the last pleading on
the issue. Plaintiff contends that Defendant's Answer was
filed on April 1, 2019, when Defendant filed its Motion to
Set Aside Default (to which Defendant attached its Answer)
(ECF No. 14). Defendant asserts, however, that its Answer was
not deemed filed until default was set aside on August 20,
2019 (ECF No. 25). Yet, Defendant did not make a jury demand
until September 6, 2019-a date beyond the fourteen-day
deadline for a timely jury demand of either filing date.
Thus, there is no dispute that Defendant failed to make a
timely demand for a jury trial and, as a result, waived its
right to a jury trial.
the decision to hold a jury trial is within this Court's
discretion. Applying the four factors provided by the Fourth
Circuit, this Court exercises its discretion under Federal
Rule of Civil Procedure 39(b) to deny Defendant's Motion.
Court finds the first, second, and third Malbon
factors determinative. The first factor focuses on the
appropriateness of the issues for trial by a jury. The crux
of the issues in this case surround the work and fees
required for litigation. Presentation of such issues will
require costly expert witnesses to familiarize the jury with
these complex concepts, whereas the Court is already
well-versed in this area. See Malbon, 636 F.2d at
940 n. 11 (defining the first factor as "factual versus
legal, legal versus equitable, simple versus complex").
Therefore, this factor counsels against holding a jury trial.
consideration of the second and third Malbon
factors, the potential prejudice to the opposing party and
the timing of the motion, is instructive. Although Defendant
asserts that Plaintiff will not be prejudiced because there
is still time for preparation before the trial date, this
Court disagrees. Defendant has been dilatory in its actions
throughout this suit, and the tardiness of Defendant's
jury demand is not a singular instance of Defendant's
delinquency. First, Defendant's initial delay caused it
to be entered into default on March 21, 2019. In addition,
Defendant later appeared for a settlement conference in
August 2019-which required the parties to travel from Roanoke
to Richmond-without meaningful intentions of settling.
Defendant's repeated insincerity has been at Plaintiffs
expense. Thus, Plaintiff has already been prejudiced by
Defendant's delay. That this Motion was filed with time
remaining for more preparation does not justify yet another
delay by Defendant.
Vannoy's fifth factor, which courts in this
Circuit have considered in conjunction with the
Malbon factors, disposes of the issue. Conspicuously
absent from Defendant's Motion is any justification for
its delay in making the jury demand. Such a failure has
repeatedly been found undeserving of relief. See
Malbon, 636 F.2d at 936 (affirming district court's
denial of untimely jury demand); Vannoy, 872 F.Supp.
at 1489 (noting that courts have evidenced an
"unwillingness to exercise discretion absent a
compelling reason to do so"); Keatley, 715
F.Supp. at 1338 ("Unless some cause beyond mere
inadvertence is shown, untimely requests for jury trials
should be denied.").
for the reasons stated, Defendant's Motion is DENIED.
Clerk is directed to send a copy of this Order to ...