MEMORANDUM DECISION AND ORDER ON PLAINTIFF'S OBJECTION TO SCHEDULING ORDER AND DEFENDANTS' MOTION TO STRIKE JURY DEMAND
JOHN H. RICH, III, Magistrate Judge.
Plaintiff Leyla Hashi objects to the court's scheduling order (ECF No. 6) on the basis that it fails to reflect her demand for a jury trial on all claims, see Plaintiff's Limited Objection to Scheduling Order ("Plaintiff's Objection") (ECF No. 7); defendants SEI/Aaron's, Inc., and Aaron's, Inc., in turn move to strike her jury demand because she did not timely request a trial by jury following the defendants' removal of her case from state court, see [Defendants'] Motion To Strike Jury Demand ("Defendants' Motion") (ECF No. 9). Because I conclude that, while the plaintiff's jury demand was untimely, in the circumstances her forfeiture of her right to a jury trial should be excused, I sustain the plaintiff's objection to the scheduling order and deny the defendants' motion to strike her jury demand.
I. Procedural Background
The plaintiff filed the instant employment discrimination complaint in the Maine Superior Court, Cumberland County, on March 9, 2017. See Affidavit of Katharine I. Rand (ECF No. 2) ¶ 2; Complaint (ECF No. 2-1), attached thereto. On April 20, 2017, the defendants simultaneously removed the case to this court and filed an answer to the complaint. See Notice of Removal (ECF No. 1); Defendants' Answer to Complaint (ECF No. 4). On May 8, 2017, this court issued its customary "Standard Track" scheduling order. See ECF No. 6. On May 18, 2017, in the context of objecting to the scheduling order, the plaintiff demanded a jury trial on all issues. See Plaintiff's Objection.
A. Whether Jury Demand Was Timely
Federal Rule of Civil Procedure 81 provides, in relevant part:
Fed. R. Civ. P. 81(c)(3).
Federal Rule of Civil Procedure 38 provides, in relevant part:
Fed. R. Civ. P. 38(b), (d).
The plaintiff argues that, because she was not required pursuant to Maine Rules of Civil Procedure 16B(i) and 38(b) to make a jury demand prior to the time of removal, "state law did not require an express demand for a jury trial" for purposes of Federal Rule of Civil Procedure 81(c)(3)(A). See Plaintiff's Objection to Motion To Strike Plaintiff's Jury Demand and Reply in Support of Plaintiff's Limited Objection to Scheduling Order ("Plaintiff's Response") (ECF No. 10) at 1-2. Hence, she contends, she was not required to make a jury demand unless this court ordered her to do so within a specified time. See id. at 2.
However, as the defendants note, see Defendant[s'] Reply in Support of Motion To Strike Plaintiff's Demand for a Jury Trial ("Defendants' Reply") (ECF No. 11) at 1, this court has rejected the plaintiff's reading of Rule 81(c)(3)(A), see, e.g., Pastula v. Lane Constr. Corp., No. Civ. 1:05-133-W, 2006 WL 462350, at *1 (D. Me. Feb. 23, 2006) ("The Maine Rules of Civil Procedure have long required a party to make a jury demand at some point during the pretrial period to prevent the case from defaulting to the nonjury list. The defendant's position on this issue is unassailable and has been the recognized rule in this district for many years."). As Judge Hornby has explained:
Awugah v. Key Bank Nat'l Ass'n, NO. 2:12-cv-97-DBH, 2012 U.S. Dist. LEXIS 99733, at *1-*2 (D. Me. July 18, 2012) (footnote omitted). As pertinent here, Judge Hornby noted:
Id. at *2 n.1 (citations omitted).
Therefore, pursuant to Rule 38(b), the plaintiff's written demand was due on May 4, 2017, 14 days after the defendants filed their answer on April 20, 2017. See Fed. R. Civ. P. 38(b) (written jury demand is due "no later than 14 days after the last pleading directed to the issue [triable of right by a jury] is served").
As discussed below, the plaintiff does invoke Rule 39(b), which provides that, although "[i]ssues on which a jury trial is not properly demanded are to be tried by the court[,] . . . the court may, on motion, order a jury trial on any issue for which a jury might have been demanded." Fed. R. Civ. P. 39(b).
B. Whether Court Should Exercise Discretion To Excuse Untimely Jury Demand
The plaintiff argues, in the alternative, that even if Rule 38(b) applies, she "should not be deemed to have made a permanent waiver of her constitutional right to a jury trial under the circumstances[,]" a proposition for which she cites Félix-Hernández v. American Airlines, Inc., 539 F.Supp.2d 511 (D.P.R. 2007). Plaintiff's Response at 2.
In Félix-Hernández, the court exercised discretion pursuant to Rule 39(b) to excuse a plaintiff's four-day tardiness in filing a demand for jury trial following the removal of his case from state to federal court when (i) the plaintiff was required to find new counsel upon notice of the removal, and did so promptly, (ii) his slight tardiness would not unfairly prejudice the defendant, and (iii) the preservation of his right to a jury trial was "fair and just in light of the circumstances." Félix-Hernández, 539 F. Supp.2d at 512.
A court's discretion pursuant to Rule 39(b) to excuse a party's waiver of a jury trial "is very broad[.]" T. G. Plastics Trading Co. v. Toray Plastics (Am.), Inc., 775 F.3d 31, 36 (1st Cir. 2014) (citation and internal quotation marks omitted).
Id. (citation and internal quotation marks omitted).
While the plaintiff offers no reason for her tardiness, which evidently stemmed from the confusion on the part of counsel described by Judge Hornby in Awugah, the remaining factors cut in her favor. Her case involves employment discrimination issues, which are best tried to a jury. See, e.g., Tanvir v. Laporte, 169 F.R.D. 292, 294 (S.D.N.Y. 1996) (granting Rule 39(b) motion in part on basis that "employment discrimination cases are, now, routinely tried before a jury"). Reinstating the plaintiff's right to a jury trial will not adversely impact the court's schedule or that of the defendants: the discovery deadline does not expire until September 25, 2017. There is no apparent prejudice to the defendants. And, finally, the two-week delay was relatively minimal.
In similar circumstances, this court has exercised discretion to excuse a party's waiver of the right to a jury trial. See, e.g., Huch v. Madeira, 1:15-cv-00423-GZS, 2016 U.S. Dist. LEXIS 20659, at *3-*4 (D. Me. Feb. 19, 2016) (plaintiffs identified good reason for tardy written jury demand; however, even assuming that they did not, the preservation of their right to a jury trial was warranted when all other factors militated in their favor); Lundy, 2009 WL 2767715, at *2 ("The plaintiffs' demand for a jury trial in this case was clearly untimely. That said, the demand was made only six days after the issuance of the court's scheduling order, presumably before any discovery had begun, and the defendant has made no attempt to demonstrate that it has been prejudiced by the delay, nor is it likely to have been able to make such a showing. Under these circumstances, it would be unduly harsh to hold the plaintiffs to a knowing waiver of their right to a jury trial.") (footnote and citation omitted).
The equities favor the preservation of the plaintiff's right to a jury trial in this case, as well.
For the foregoing reasons, the plaintiff's objection to the scheduling order on the basis of its failure to reflect her demand for a jury trial is