MEMORANDUM
This is an action to recover damages and to obtain equitable relief for alleged violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., which was initially filed on March 11, 1981 in the Philadelphia Court of Common Pleas and was removed to this court on April 11, 1981. Plaintiff has filed two motions: (1) seeking leave to amend his complaint pursuant to Fed.R.Civ.P. 15(a); and (2) petitioning for relief from waiver of a jury trial pursuant to Fed.R.Civ.P. 39(b).
I
The amended complaint proposed by plaintiff would, if leave were granted, partially transform this lawsuit into a “representative action” brought, pursuant to 29 U.S.C. § 216(b), by plaintiff Richard Plummer on behalf of eight persons who claim that the defendant has discriminated against them on the basis of age in ways similar to those alleged by plaintiff. At the outset, it should be noted that seven of these eight individuals have already brought an action (Civil Action No. 81-4818; filed November 23, 1981) against the same defendant which has been assigned to my docket since it is a related case under the local rules of this district. In response
Section 216(b) of Title 29 provides in part that
an action to recover the liability prescribed in [this title] may be maintained against any employer ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to bеcome such a party and such consent is filed in the court in which such action is brought.
The eight individuals whom plaintiff Plummer seeks to represent in this action have all filed written stipulаtions indicating that they have consented to become party plaintiffs and to have Plummer represent them.
The nine individuals named as plaintiffs in Plummer’s proposed amеnded complaint appear to me to fall into two distinct categories. The first group — which includes Plummer, Anthony Anastasio, Allen Gliniewicz, Rodney Horton, and Richard Todd — aрpear to be “similarly situated” within the meaning of Section 216(b) since they all (a) during the relevant time period worked in or applied to General Electric’s Military Programs Dеpartment, Space Systems Division, at Valley Forge, Pennsylvania, (b) advance similar claims of age-based discrimination relating to salary determinations, job assignment and promotion policy; and (c) seek substantially the same form of relief under the ADEA. See Burgett v. Cudahy Co.,
However, the allegations of the second group — which includes Lou Davis, Herman Jankowski, Francis Sullivan, and Donald Wood — suggеst that these individuals do not share with the other plaintiffs an employment situation that is sufficiently similar to justify including them in a representative action under section 216(b). The record indiсates that they are employed in various Departments and Divisions of General Electric other than the Military Programs Department, see Affidavit of Douglas G. Curley, and therefore it is difficult to see how Plummer can be relied upon to represent them adequately. Moreover, the defenses raised by General Electric will turn to a significant degree on the particular individual’s employment situation and the decisions of particular managers about these employees. Thus, to the extent that the claims of thesе four individuals present questions concerning management policies and decisions made in employment situations significantly distinct from that of the other group of five plаintiffs, the propriety and usefulness of the section 216(b) procedure is diminished. In this case, the first group comprises a more homogeneous unit than a grouping of all nine plаintiffs would present.
Therefore, the maintenance by plaintiff of a limited representative action, embracing the group of five individuals delineated in this memorandum, appears to be appropriate. This determination, however, does not dispose of plaintiff’s motion entirely since it is also necessary to decide whether leave should be granted to amend the complaint at this point in the litigation. In determining whether leave to amend should be granted under Fed.R.Civ.P. 15(a), courts
II
I turn now to plaintiff’s motion for relief from waiver of his right to demand a trial by jury. In the initial complaint and pleadings, plaintiff Plummer failed to demand a jury trial, and under Fed.R.Civ.P. 38(d) this generally constitutes an automatic waiver of his right to a jury trial. Siders v. Ohio River Co.,
Technical insistence upon imposing a penalty for default by denying a jury trial is not in the spirit of the rules. The rules do not limit the court’s discretion in ordering a jury in cases in which there would have been a right to jury trial. The court ought to approach each application under Rule 39(b) with аn open mind and an eye to the factual situation in that particular case, rather than with a fixed policy against granting the application. . .
9 Wright & Miller, Federal Practice and Procedure: Civil § 2334 at 115-16 (citations omittеd) (1971). It is undisputed that had plaintiff initially demanded a jury trial, he would have been entitled to one. The factual issues presented by Plummer’s claim are, in my judgment, properly susceptiblе to determination by a jury. Moreover, contrary to defendant’s contentions, plaintiff’s motion is not untimely since the discovery deadline for this case has been extendеd and no trial date has been set as yet; therefore, the orderly administration of the trial calendar will not be disturbed by granting plaintiff relief from waiver. Further, defendant has made no persuasive showing that any prejudice would result from trying this case before a jury. See Cox v. C. H. Masland & Sons,
For the foregoing reasons, I will, in an appropriate order accompanying this memo
Notes
. Such a distinction does not appear to prejudice the second group since they presumably are able to assert their claims in separate actions.