gno.law

Peterson v. Southern Pac. Co.

District Court, S.D. California · No. 34 · 1940-01-22 · Published

PETERSON v. SOUTHERN PAC. CO.

Proceeding
district
Area
civil
Panel
Neterer (author)

Analysis

A model's reading — qwen3.8-27b, prompt own-v1, 2026-10-14T01:09Z · confidence high

The plaintiff moved for a jury trial after failing to file the required demand within the time limit set by Rule 38, arguing that the failure was inadvertent and that the court should exercise its discretion under Rule 39(b). The court granted the motion, finding that the plaintiff did not intend to waive the right to a jury and that the defendant would not be prejudiced by the late demand.

What the court decidedThe model
Motion for jury trial granted
“The demand for jury trial is granted.”
agree with court
The court correctly applied Rule 39(b), which allows a court to order a jury trial in its discretion even if a party failed to make a timely demand. The court found that the failure was inadvertent (the attorney directed a clerk to file it but it was not done) and that there was no prejudice to the defendant. Given that the case involved personal injury damages, which are traditionally jury issues, and the lack of prejudice, the exercise of discretion to grant the jury trial is legally sound.

The order itself: sound — The order is sound. It correctly identifies the relevant rules (Rule 38 for the deadline and Rule 39(b) for the discretionary power to grant a late demand). The court explicitly applies the discretion standard, noting the lack of prejudice and the plaintiff's lack of intent to waive. It does not skip any necessary legal arguments for this specific procedural motion.

How this analysis was made · dispute it

Opinion — Neterer

NETERER, District Judge.

The issue is the right of the plaintiff to demand a jury trial, demand not having been made as provided in Rule 38, U.S. • Rule of Civil Procedure, 28 U.S.C.A. following section 723c.

It appears from the files that the attorney for the plaintiff within the time provided by rule did direct his law clerk to serve and file a demand for trial by jury; and that it was not ascertained by plaintiff’s attorney until the case was assigned for trial that the demand had not been made.

Rule 39(b), U.S.R. of C.P., provides: “ * * * notwithstanding the failure of a party to demand a jury in an action in which such a demand 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 plaintiff seeks to recover damages for personal injuries claimed to have been sustained by reason of the negligent operation of the defendant’s railway train upon which she was a passenger for hire. The amount of damages, if any, is the principal if not, the sole issue, and the Court in the exercise of sound discretion I think should grant this motion and submit the issue for determination to a jury. While Sec. 38(b), F.R.C.P., provides that a demand for a trial by jury must be filed not later than 10 days after the service of the last pleading. It appears from the affidavit of the plaintiff’s attorney that he did not intend to waive a jury trial; and that the defendant cannot be prejudiced in any sense by the demand at this time.

The demand for jury trial is granted.

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