Davis v. Bath
Opinion
USCA1 Opinion
June 19, 1992 [NOT FOR PUBLICATION]
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No. 92-1023
LOREN A. DAVIS,
Plaintiff, Appellant,
v.
BATH IRON WORKS, CORPORATION, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Cutis Weber, John W. Conway and Linnell, Choate & Webber, on
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brief for appellant.
Constance P. O'Neil, Arlyn H. Weeks, Conley, Haley, O'Neil &
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Kaplan, on brief for appellee Bath Iron Works Corporation.
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Jeffrey Neil Young, McTeague, Higbee, Libner, MacAdam, Case
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& Watson, on brief for appellee Union.
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Per Curiam. Appellant, plaintiff below, raises only
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oneissue on this appeal from a final judgment in favor of the
defendants. He argues that the district court abused its
discretion under Fed. R. Civ. P. 39(b), when it denied his
belated demand for a jury trial.
This case grows out of the termination of plaintiff's
employment as a boiler room operator with defendant Bath Iron
Works Corp. ("BIW"). Plaintiff's union pursued plaintiff's
grievance through two steps in the grievance procedure but
then declined to take the case to arbitration.
Plaintiff began this action in the Androscoggin County
Superior Court against BIW, his union and its local, alleging
breach of contract and breach of the duty of fair
representation under 301(a) of the Labor-Management
Relations Act of 1947, 29 U.S.C. 185(a). The case was
removed to the District Court for the District of Maine
pursuant to two separate notices of removal joined in by all
three defendants. The last necessary responsive pleading was
filed with the district court on November 21, 1990.
Plaintiff's first demand for a jury trial was made on
December 20, 1990 in a letter responding to the magistrate's
Scheduling Order. On March 21, 1991, after the cases were
consolidated, and at the court clerk's suggestion, plaintiff
filed a formal "Objection to Proposed Scheduling Order,"
again requesting a jury trial. Neither plaintiff's first
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demand nor his formal objection contained any explanation for
his failure to comply with the time limit for jury demands
contained in Fed. R. Civ. P. 38(b). After the court
overruled plaintiff's objection to the scheduling order,
plaintiff then filed a "Motion for Jury Trial" under Fed. R.
Civ. P. 39(b), along with an affidavit explaining that
plaintiff's counsel was not familiar with federal practice.1
Fed. R. Civ. P. 81(c) establishes that actions removed
from state courts are to be governed after removal by the
Federal Rules of Civil Procedure.2 Plaintiff's demand for a
jury trial was thus subject to the time limit in Fed. R. Civ.
P. 38(b), which provides that a demand for a jury on any
issue triable of right by a jury is to be served "not later
than ten days after the service of the last pleading...".
Under Fed. R. Civ. P. 39(b) "notwithstanding the failure
of a party to demand a jury in an action in which such demand
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1. Defendants debated plaintiff's assertion, noting that
plaintiff's counsel had been admitted to practice before the
United States Supreme Court in 1968 and was listed as counsel
of record in three reported cases before this Court and seven
cases before the Federal District Court for the District of
Maine.
2. The remaining portions of Fed. R. Civ. P. 81(c) relating
to jury demands are not relevant because the discrete
circumstances addressed in the balance of that rule were not
present in this case: there were still pleadings required to
be filed in this case at the time of removal; the party
seeking the jury trial here had not previously made a demand
for one in accordance with state law; and this was not a case
where a jury trial would have been automatically granted in
state court without an express demand.
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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."
The district court exercised the discretion granted to
it in Rule 39(b) to deny plaintiff's motion. We see no
reason to disturb that ruling here. The lower court had
before it the parties' arguments on all the relevant issues,
including plaintiff's counsel's alleged unfamiliarity with
federal practice, the likelihood of prejudice to defendants,
the nature of the issues to be tried and the extent to which
any issues might be particularly appropriate to a jury trial.
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