102 F.R.D. 619 | N.D. Ill. | 1984
MEMORANDUM OPINION AND ORDER
John Thomson (“Thomson”) originally filed a March 1981 pro se Complaint under 42 U.S.C. § 1983 against two correctional officers at the Stateville Correctional Facility (“Stateville”), Earl Jones (“Jones”) and Marvin Baskin (“Baskin”), charging them with physical violence against Thomson. This Court appointed lawyers from the Schiff, Hardin & Waite firm to represent Thomson.
1. Thomson’s motion for bench trial against DeRobertis, who has requested a jury for the first time in his supplement to the Order;
2. Thomson’s motion to preclude Baskin, Jones and Sheldon (against all of*621 whom default judgments were entered April 25, 1984) from testifying; and
3. Thomson’s motion to reopen discovery by deposing individuals listed by DeRobertis in the Order as potential trial witnesses.
DeRobertis’ Belated Jury Demand
Thomson’s pro se Complaint included a jury demand. So did the May 1981 Answer filed by the Illinois Attorney General’s office on behalf of Baskin and Jones.
By their very nature jury demands cover issues, not cases. Fed.R.Civ.P. (“Rule”) 38(b) and (c) read (emphasis added):
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.
(c) Same: Specification of Issues. In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable. If he has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
Though issues in Thomson’s claims against Jones and Baskin (that is, whether Jones and Baskin had in fact beaten Thomson) were also involved in the later-asserted claim against DeRobertis, the gravamen of the claim against DeRobertis posed wholly new issues. Thus DeRobertis, in failing to make his own jury demand at the time he answered, could not be said to have relied on the Jones-Baskin demand to cover the principal issues affecting his liability. Rosen v. Dick, 639 F.2d 82, 91-92 (2d Cir.1980).
But Thomson’s jury demand is a different matter. It was stated in wholly general terms. Rosen, the case most heavily relied on by Thomson, itself relies on the distinction made in 5 Moore’s Federal Practice ¶ 38.40, at 38-361 (2d ed. 1982) (footnote omitted) between a general and a more specific jury demand:
If one party has made a general demand ..., then the other parties may rely upon the demand; it includes all the issues that concern the demanding party and no other demand need be made by any party as to those issues. If the demand ... specifies the issues which the demandant wishes tried to the jury, Rule 38(c) provides that “any other party ... may serve a demand for trial by jury of any other or all of the issues of fact in the action.”
And though Thomson says his decision not to renew the jury demand with the Amended Complaint was purposeful, his counsel cites no authority to support the proposition an opponent must be alert to that omission on pain of being forced to an unwanted bench trial. After all Rule 38(d) reads in part:
(d) Waiver. ... A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
Indeed many a plaintiff would doubtless be astonished at the prospect a general
Thomson cannot now be heard to say the Complaint (with its jury demand) was never served on DeRobertis as required by Rule 38. Rosen, 639 F.2d at 89 resolves that hypothetical contention as well:
But even when a jury demand has been served on less than all interested parties, a court may still inquire whether the demand, effective as to the party served, should be considered effective as to the unserved parties.
Here as in Rosen an unserved party is invoking the jury demand. Surely Thomson cannot complain of his own failure to serve DeRobertis with his outstanding jury demand. Moreover it cannot be overlooked DeRobertis is now represented by the same office that represented Jones and Baskin at the time the Complaint and jury demand were filed against them.
Our Court of Appeals has not spoken to the issue at all. Its only arguable message of relevance here is its recent statement in Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir.1983) (citation omitted):
In the absence of strong and compelling reasons to the contrary, untimely jury demands should be granted.
Both because of the philosophy expressed by Merritt and for the reasons stated in this discussion, this Court finds DeRobertis could reasonably have relied on the original Thomson jury demand—which was never withdrawn, though not specifically renewed with the Amended Complaint—and is therefore entitled to a jury trial.
Motion To Preclude Testimony
Thomson also has moved to foreclose defaulted defendants Baskin, Jones and Sheldon from testifying at trial, assertedly because they have not cooperated with discovery. DeRobertis correctly responds (Mem. 2) their noncompliance “cannot be held against him.” Though that is so, it is equally true Thomson is entitled to obtain discovery from DeRobertis’ witnesses. Accordingly the reopening of discovery announced below applies as well to further attempts to depose Baskin, Jones and Sheldon. Thomson’s motion is denied without prejudice.
Motion To Reopen Discovery
DeRobertis announced in the Order he would call five witnesses not yet deposed by Thomson. Thomson claims his failure to depose those witnesses is reasonable in light of his attorneys’ pro bono status and the large number of persons who, like the five witnesses in question, were mentioned in DeRobertis’ document production. DeRobertis does not refute that contention. Discovery is hereby reopened so Thomson can depose those five witnesses (and the defaulted defendants).
Conclusion
This order disposes of Thomson’s three pending motions:
1. Thomson’s motion for a bench trial is denied.
2. Thomson’s motion to preclude testimony is denied without prejudice.
3. Thomson’s motion to reopen discovery, solely to permit him to depose DeRobertis’ witnesses as to whom he has not completed discovery, is granted.
. No opportunity should be lost to express thanks for the high-quality services rendered by the Schiff, Hardin lawyers. At the time of their appointment in this case, this District Court did not have the benefit of the large pool of potential appointees created by the later adoption of the rules governing the trial bar. Roger Pascal, Esq. of Schiff, Hardin was one of the few lawyers on whom this Court could always count to provide regular and committed volunteer pro bono service.
. Defaults were entered against Jones and Baskin much later, after the Attorney General had withdrawn from representing them.
. It will be assumed in this opinion that counsel’s omission of a jury demand from the Amended Complaint was a deliberate (but uncommunicated) tactical decision.
. Thomson makes much of the sophistication of the Attorney General’s office, a matter commented on by this Court in a quite different context earlier in this case. See Thomson v. Jones, No. 81 C 1279, slip op. at 6 (N.D.Ill. June 27, 1983). However the Attorney General’s involvement in the case really cuts the other way from Thomson’s contention. Instead, that office’s awareness of Thomson’s original jury demand (acquired while it was representing Jones and Baskin) contributes to the reasonableness of its assuming the demand carried over to the Amended Complaint, when the office began to represent DeRobertis.
. This without-prejudice ruling is a safety valve to cover the possibility that (1) future attempts to depose the defaulted defendants will be unsuccessful and (2) those failed attempts can be laid at DeRobertis’ door to any extent.
