Bates v. Wilcox

8 F.R.D. 369, 1948 U.S. Dist. LEXIS 3304

• Court: District Court, W.D. Missouri
• Decided: June 23, 1948
• Docket: No. 4913
• Status: Published

Opinion

DUNCAN, District Judge.

Plaintiff instituted this suit in the Circuit Court of Jackson County within and 'for the State of Missouri in which he sought damages against the defendants for breach of contract of employment and sought damages in the amount of a fixed sum and in the alternative for an accounting against one of the defendants. Upon the petition of the defendant Wilcox Electric Company the cause was removed to this court. Thereafter, the plaintiff filed a motion for a jury trial under the provisions of Rule 39(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. This motion was filed on April 30, 1948, and to this motion the defendants filed objections alleging that the action was an equitable one, for accounting, and that the plaintiff was not entitled to trial by jury. Subsequent thereto on May 10, 1948, the plaintiff filed his amended complaint in which he prays “for judgment against said defendants in the sum of One Hundred Sixteen Thousand, Five Hundred and Forty-nine Dollars and Sixty Eight Cents ($116,549.68), together with interest thereon.” In this amended complaint plaintiff complied with Rule 9 of the Rules of Practice of the District Court of the United States for the Western District of Missouri. Whether the action under the original complaint was one in equity or one in law is not now of importance. The amended complaint clearly makes the action one at law and entitles the plaintiff to a trial by jury, and the plaintiff has made timely request after the case was removed into this court for such a jury trial under said Rule 9. Plaintiff’s request should, therefore, be granted.

It is so ordered.

Order

Plaintiff’s motion for trial by jury coming on for consideration and the Court having examined the pleadings and the suggestions in support of and in opposition to said motion doth now here sustain said motion on the ground that the original complaint was filed in the Circuit Court, of Jackson'County, Missouri, and removed to this Court upon the petition of the defendant Wilcox Electric Company and that prior to the removal of said cause it was not necessary or required of the plaintiff that he request a trial by jury, and that upon the filing of an amended complaint after the case was removed into this court the plaintiff at the first opportunity requested a trial by jury.