In E&I Global Ene. Srvs. v. Liberty Mut. Ins. Co., No. 23-3739 (8th Cir. Apr. 4, 2025), the Eighth Circuit declines to afford a plaintiff relief for its failure to timely demand a jury trial under Fed. R. Civ. P. 38(b)(1) under an “excusable neglect” standard, creating (without so noting) a split with other circuits.
Parties requesting a jury trial must do so “no later than 14 days after the last pleading directed to the issue is served.” Fed. R. Civ. P. 38(b)(1). “Issues on which a jury trial is not properly demanded are to be tried by the court.” Fed. R. Civ. P. 39(b). However, a district court “may, on motion, order a jury trial on any issue for which a jury might have been demanded.”
In this case, the plaintiff in this contract and tort action failed to timely demand a jury in its 2020 complaint or its amended complaint, although it made reference in a 2020 discovery report that it intended to file a jury demand and it otherwise made note of their intent to demand a jury throughout the case.
“In September 2022, the district court entered a scheduling order that set a jury trial date. In December 2022, Liberty, the defendant, filed a motion requesting that the court correct the scheduling order to reflect a bench trial because neither the original nor amended complaint included a jury trial request. Plaintiffs filed a motion in opposition arguing that the court should grant a jury trial because Liberty previously agreed not to oppose their motion for a jury trial. In their motion, Plaintiffs noted that Liberty referenced a jury trial several times throughout the litigation. They also contended that Plaintiffs’ omission should be excused because of the COVID-19 pandemic. Plaintiffs later separately filed the original proposed Rule 39(b) motion. The district court granted Liberty’s motion to correct the order to set the case for a bench trial. The court concluded that Plaintiffs failed to timely request a jury trial and did not timely file the Rule 39(b) motion. The court also noted that Plaintiffs did not justify the delay nor did they show prejudice.”
The Eighth Circuit holds that the district court did not abuse its discretion under Rule 39 in denying plaintiff relief from the jury waiver and untimely filing of a jury demand.
The panel, in so deciding, expressly rejects application of an “excusable neglect” standard to the plaintiff’s untimely jury demand. “Plaintiffs ask this court to adopt an ‘excusable neglect’ standard, but we decline to do so. Plaintiffs’ authority is not related to a request for a jury trial, and Federal Rule of Civil Procedure 39(b) does not discuss ‘excusable neglect.’”
Yet other circuits have so held, noting that the federal rule governing extensions of time, Fed. R. Civ. P. 6(b)(2), expressly so provides and stressing the constitutional dignity of the right to a jury trial under the Seventh Amendment. See Raymond v. International Business Machines Corp., 148 F.3d 63, 65-67 (2d Cir. 1998) (affirming district court’s decision to permit jury demand to be filed two years out of time); Members v. Paige, 140 F.3d 699, 703-04 (7th Cir. 1998) (suggesting, if anything, that “excusable neglect” may be too high a hurdle in a pro se case, and remanding with a direction that the district court reconsider the jury demand issue “with an open mind”).
It is, of course, entirely uncertain whether the outcome would have been different for the plaintiff here on any basis. Yet it would be a shame for this standard to become circuit law simply because of how it was argued in this case.
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