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24. Is the court likely to grant the doctor's motion for a jury trial?
A patient sued a doctor, each a private party, in an action properly brought in the federal district court of State A. Neither the patient nor the doctor filed a jury demand. Neither the patient nor the doctor served the opposing party with a jury demand within 14 days after the last pleading was served. One month after the pleadings were served, the doctor's attorney became ill and the doctor retained new counsel. The doctor's new attorney believed that the doctor would be a sympathetic figure in the eyes of a jury and filed a motion with the court requesting a jury trial. The patient opposed this motion.
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Federal Rule of Civil Procedure (FRCP) 38(a) provides that the right of a trial by jury as declared in the Seventh Amendment is preserved for the parties. FRCP 38(b) allows a party to demand a jury trial «[o]n any issue triable of right by a jury» by serving the opposing parties with a proper written demand. The party who wishes for a jury trial on a particular issue must file a demand within 14 days after the service of the last pleading directed to that issue.
Under FRCP 39(b), if no jury demand is made, «[i]ssues 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 court has broad discretion when considering a Rule 39(b) motion. Courts focus on a number of factors when making that decision, including the prejudice to the parties who have prepared their cases for trial by the court and now must prepare for a jury trial.
A is correct. The issue here is whether the court may grant the request for a jury trial is a matter addressed to the discretion of the court. There is no absolute right to a jury trial in these circumstances, but at the same time, there is no absolute prohibition to the court allowing such a trial. See FRCP 38(a).
B is incorrect. FRCP 39 preserves the right to a jury trial, but it does place limits on when the court is required to grant a request for one. The court has the discretion to deny a request.
C is incorrect. The time limits for requesting a jury trial in Rule 39 do not deny the court the discretion to order a jury trial after an untimely request.
D is incorrect. While the court may consider a party's opposition to an untimely request for a jury, the lack of unanimous consent is not the sole factor for the court's consideration.