# William WASHINGTON, Plaintiff-Appellant, v. NEW YORK CITY BOARD OF ESTIMATE, Defendant-Appellee

> Court of Appeals for the Second Circuit · June 3, 1983 · 709 F.2d 792

URL: https://www.frixlaw.com/law-library/cases/9470742

## Case

- **Full name:** 32 Fair empl.prac.cas. 45, 32 Empl. Prac. Dec. P 33,654 William Washington v. New York City Board of Estimate
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** June 3, 1983
- **Citations:** 709 F.2d 792; 32 Fair Empl. Prac. Cas. (BNA) 45; 36 Fed. R. Serv. 2d 996; 32 Empl. Prac. Dec. (CCH) 33,654; 1983 U.S. App. LEXIS 27065
- **Precedential status:** Published
- **Opinion:** Dissent by Oakes
- **Judges:** Oakes, Kearse, Slovi-Ter
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470742

## How later opinions describe it (automated extraction)

- reversing district court's denial of plaintiff's motion to amend to add defendants; "Since the [defendant had] not answer[ed] the complaint ..., Washington was entitled ... to amend his complaint as a matter of right, and his request at that time should have been granted.”
- holding that the plaintiff’s motion to amend should have been granted because he could have amended his complaint to add defendants as a matter of right
- noting that “the operation of the Rule imposes no greater burden on pro se litigants than on represented litigants, as the unintentional or unknowing failures of all litigants to comply with Rule 38 are dealt with equally”
- finding that district court abused its discretion by refusing to allow plaintiff to add two individuals as defendants under Rule 15(a)(1)
- finding that employee’s request for a jury trial on his age discrimination claim was waived as untimely under Rule 38(d).

## Opinion text

OAKES, Circuit Judge (dissenting):
I concur in the remand on the Section 1983 claim, but respectfully dissent as to the age discrimination claim on the jury trial point.
In respect to the age discrimination claim, I believe that Washington, as a pro se claimant, was entitled to a jury trial. A pro se claimant should not be deemed to waive a demand for jury trial absent a procedure by which he is made aware of his constitutional right to trial by jury. There is no showing in this case that Washington was informed of his right to a jury trial and of the necessity of making a written demand under Fed.R.Civ.P. 38.
The majority cites Cascone v. Ortho Pharmaceutical Corp., 702 F.2d 389 (2d Cir.1983), which held, following Higgins v. Boeing Co., 526 F.2d 1004 (2d Cir.1975) (per curiam), in a removed case, that the district court has discretion to permit the untimely filing of a jury demand. See also Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138, 144 (5th Cir.1979). It is true that the Second Circuit as in Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2d Cir.1967), has taken a view that the district court’s discretion is exercisable only where there are special circumstances. excusing the untimely demand. This is as opposed to the broader view held by some other courts that the court should grant a jury trial in the absence of strong and compelling reasons to the contrary, see 9 C. Wright and A. Miller, Federal Practice and Procedure § 2334, at 113 (1971). Nevertheless even under a narrow view it seems to me that the paradigm case for permitting untimely filing is that of a pro se plaintiff, at least one who is not himself a lawyer or should not otherwise be presumed to have familiarity with the Federal Rules of Civil Procedure. This is within the spirit not only of Haines v. Kerner, 404 U.S. 519 , 92 S.Ct. 594 , 30 L.Ed.2d 652 (1972), but of Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). It also adheres more closely to our own Cascone v. Ortho Pharmaceutical Corp., supra, and it is a very simple matter as pointed out in the majority opinion, footnote 5, for the pro se claimant to be provided with the information necessary to claim or waive jury trial.
So far as I know this is the first case in this circuit passing upon waiver of a jury trial on the part of a pro se plaintiff. The Rules, I recollect, are to be construed “to secure the just, speedy, and inexpensive determination of every action.” Fed.R.Civ.P. 1. In this day of six person juries, less-than-unanimous verdicts and facile waiver, I fear that I am one of those old-fashioned few who still believes that the emphasis of Rule 38(a) should be maintained on its last five words: “The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470742. Public record. Not legal advice.