recognizing general principle that a court should grant a jury trial in the absence of strong and compelling reasons to the contrary but reiterating the long line of precedent finding no abuse of discretion when the failure to make a timely jury demand results from mere inadvertence
How later courts described this case
- recognizing general principle that a court should grant a jury trial in the absence of strong and compelling reasons to the contrary but reiterating the long line of precedent finding no abuse of discretion when the failure to make a timely jury demand results from mere inadvertence
- holding that the plaintiff, who continued working after the expiration of his employment contract as an at-will employee, did not have a property interest in the implied renewal of his contract
- holding that the district court was “correct in deeming the nonremoving defendants nominal parties and allowing the case to proceed without their joinder in the removal petition”
- holding that because an employee could be discharged at will, he had no protectible property interest and no right to a due process hearing
Written by the judges who cited it.
The opinion
CLARK, Chief Judge,
dissenting:
Federal Rules of Civil Procedure 38 and 39 preserve and embody the right to a trial by jury as guaranteed by the Seventh Amendment. See Fed.R.Civ.P. 38(a). Rule 39(b) provides: “[Notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.” Fed.R.Civ.P. 39(b). In discussing a district court’s discretion under Rule 39(b), this court has recently stated that “ ‘[technical insistence upon imposing a penalty for default [under Rule 38] by denying a jury trial is not in the spirit of the rules.’ ” Daniel Int’l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1066 (5th Cir.1990) (quoting 9 C. Wright & A. Miller, Federal Practice and Procedure § 2334 at 115-16 (1971)). The majority affirms the district court’s denial of Farias’ motion for a jury trial on the basis of this circuit’s rule that a district court’s denial of a Rule 39(b) motion is not an abuse of discretion when the failure to make a timely jury demand is the result of “mere inadvertence.”
On November 9, 1988, Farias filed a motion styled “Demand For Jury Trial Or, In The Alternative, Motion For Jury Trial.” In that motion, Farias not only attempted to invoke the right to demand a jury trial under Rule 81(c), but also expressly invoked the district court’s discretion to grant a jury trial under Rule 39(b). Farias filed this motion within ten days after the district court denied his motion to remand the case. It was filed more than eight months before the case was scheduled for trial. Defendants did not respond to Fari-as’ motion until more than six months after it was filed. The district court did not strike Farias’ jury demand/motion until approximately three weeks before trial. The district court’s order granting defendants’ motion to strike Farias’ jury demand/motion states only: “[T]he Court finding said Motion to be meritorious, hereby ORDERS that Plaintiff’s demand for a jury be struck, and that this cause be heard without a jury on its scheduled date. Fed.R. Civ.P. 81.” (Emphasis supplied.)
Notwithstanding our “mere inadvertence” rule, this circuit’s cases construing Rule 39(b) demonstrate that a district court must at least consider more than the mov-ant’s inadvertent untimeliness under Rules 38(b) and 81(c). See, e.g., Daniel, 916 F.2d at 1066 ; Pinemont Bank v. Belk, 722 F.2d 232, 238 (5th Cir.1984); Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138, 143-44 (5th Cir.1979). This court cannot review a *881 district court’s denial of a Rule 39(b) motion without some explanation of the district court’s reasons for refusing to exercise its discretion to grant a jury trial. The district court’s order gives none.
In today’s case, the district court’s order is simply too opaque for us to review. Moreover, the district court’s bare citation to Rule 81, which applies to jury demands under Rule 38 rather than to motions under Rule 39(b), suggests that the district court did not exercise its discretion under Rule 39(b). Farias filed his Rule 39(b) motion well in advance of trial. Defendants make no effort to show prejudice resulted from Farias’ untimely jury demand or from his motion filed more than eight months before the case was tried. For all that we can tell on this record, the delay in ruling on Fari-as’ motion was more due to defendants’ late response to Farias’ motion than to its timing. Because the district court’s order fails to explain adequately why the court denied Farias’ motion and because the record shows that the district court failed to exercise its discretion under Rule 39(b), I cannot affirm the result of the bench trial. Therefore, I respectfully dissent.