USCA11 Case: 21-11766 Date Filed: 01/05/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11766
Non-Argument Calendar
____________________
SARA HERRERA,
Plaintiff-Appellant,
versus
7R CHARTER LIMITED,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:16-cv-24031-KMW
____________________
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2 Opinion of the Court 21-11766
Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
This Jones Act case returns to our Court after we vacated
the district court’s award of summary judgment in favor of de-
fendant 7R Charter Limited. On remand, 7R Charter moved to
strike plaintiff Sara Herrera’s demand for a jury trial, which she
added nearly two years after filing her complaint. Herrera coun-
tered that an amended answer 7R Charter filed revived her right
to demand a jury trial. The district court disagreed and granted
the motion to strike. After a bench trial, the district court found in
favor of 7R Charter. Herrera appeals the district court’s order
granting 7R Charter’s motion to strike. After careful review, we
affirm.
I.
Because we explained in detail the events that transpired
and led to this lawsuit in Herrera’s previous appeal to this Court,
see Herrera v. 7R Charter Ltd., 789 F. App’x 820 (11th Cir. 2019)
(unpublished), here we recount only the facts necessary to decide
this appeal. 7R Charter employed Herrera and her now-husband,
Bernard Calot, as staff on a luxury yacht 7R Charter owned (the
“vessel”). Calot, the vessel’s captain, owned a smaller boat, called
the Protector. Calot sometimes used the Protector in his role as
the vessel’s captain to ferry passengers on diving and fishing ex-
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21-11766 Opinion of the Court 3
cursions. 7R Charter paid Calot for time he used the Protector in
connection with his duties as captain.
Herrera was injured while aboard the Protector with Calot.
After sustaining her injuries, Herrera filed a complaint against 7R
Charter pursuant to the Jones Act,
46 U.S.C. § 30104. Herrera al-
leged that 7R Charter was liable for her injuries because Calot
was negligent and 7R Charter owed her a duty to provide her
with a reasonably safe workplace. As relevant to this appeal, para-
graph 8 of the complaint alleged that “[W]hile serving as Chief
Stewardess of the Vessel, Ms. Herrera accompanied the Captain
of the Vessel, Bernard Calot, in a sea trial of a newly repaired . . .
tender to the Vessel,” the “Protector.” Doc. 1 ¶ 8. 1 It also alleged
that she embarked on the sea trial “[d]uring the course of her
work and employment” with 7R Charter.
Id. ¶ 9. The complaint
did not include a demand for a jury trial.
7R Charter answered, also without including a jury trial
demand. In response to paragraph 8 of the complaint, 7R Charter
admitted that, “while serving as a crewmember of the Vessel,”
Herrera went aboard the Protector with Calot “for [a] sea trial.”
Doc. 8 at ¶ 8. 7R Charter denied paragraph 9 of the complaint.
Under Rule 38(b) of the Federal Rules of Civil Procedure,
Herrera had 14 days after 7R Charter served the answer to de-
mand a trial by jury. See Fed. R. Civ. P. 38(b). She did not do so.
1 “Doc.” numbers refer to district court docket entries.
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4 Opinion of the Court 21-11766
During discovery, 7R Charter moved to file an amended
answer. 7R Charter stated that it had “learned that the Protector
was not” owned by 7R Charter “but in fact owned by Captain
Bernard Calot.” Doc. 49 at 3. Further, based on medical records
from Herrera’s injury, it appeared that Herrera “was injured
‘while on her own private boat with her family.’”
Id. at 7 (quoting
Doc. 49-2 at 1). Herrera did not oppose the motion.
With the motion still pending at the close of discovery, 7R
Charter moved for summary judgment. Before ruling on the mo-
tion for summary judgment, the district court granted 7R Char-
ter’s motion to file an amended answer. The amended answer
changed 7R Charter’s response to paragraph 8 of the complaint
to: “Admitted that . . . [Herrera] accompanied Calot on his vessel,
the Protector, for a joy ride. All other allegations in paragraph 8
are denied.” Doc. 73 at ¶ 8. 7R Charter again denied paragraph 9
of the complaint. The amended answer also added several “af-
firmative defenses.”
Id. at 4. These included that 7R Charter was
not liable because “[Herrera] and Calot were not acting in the
course of their employment at the time of the accident,”
id. at 5;
Herrera “was not acting under the control of 7R Charter, attend-
ing to and/or furthering the business of 7R Charter” but instead
“was engaged in her own personal business at the time of the ac-
cident, and/or the personal business of Calot,”
id. at 8; 7R Charter
“did not order or otherwise send Herrera to work [a]board the
Protector” on the day of her injuries, id.; and Herrera “was pursu-
ing her own affairs” on the day of the injuries,
id.
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21-11766 Opinion of the Court 5
Fourteen days after 7R Charter’s amended answer was
docketed, but before the district court ruled on the summary
judgment motion, Herrera filed a demand for a jury trial. 7R
Charter moved to strike Herrera’s jury trial demand, arguing that
it was untimely under Rule 38 and that the amended answer did
not revive her right to demand a jury trial. Acknowledging that an
amended answer may permit a party to demand a jury trial if the
answer raises new issues of fact, 7R Charter asserted that its an-
swer “merely elaborate[d] on and further clarifie[d] its position
and defenses, and therefore raise[d] no new issues sufficient to re-
vive” Herrera’s right to demand a jury trial. Doc. 92 at 5.
The district court granted 7R Charter’s motion for sum-
mary judgment and denied as moot its motion to strike Herrera’s
jury trial demand. Herrera appealed; on appeal we vacated the
district court’s grant of summary judgment in favor of 7R Charter
and remanded for further proceedings.
On remand, 7R Charter renewed its motion to strike Her-
rera’s jury trial demand. Herrera responded that demand was
timely under Rule 38 because it was filed within 14 days of 7R
Charter’s amended answer, which raised “new issues” not includ-
ed in its original answer. Doc. 157 at 1. She argued, alternatively,
that Federal Rule of Civil Procedure 39(b) supported her request
for a jury trial, as it permits a district court to “order a jury trial on
any issue for which a jury trial might have been demanded.” Fed.
R. Civ. P. 39(b)(1).
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6 Opinion of the Court 21-11766
A magistrate judge granted 7R Charter’s motion to strike.
Herrera objected to the magistrate judge’s ruling, and the district
court, finding that the magistrate judge’s “[o]rder was neither
clearly erroneous nor contrary to law,” affirmed it. Doc. 205 at 2.
The district court held a bench trial, after which it entered a final
order finding in favor of 7R Charter.
Herrera has appealed. Her appeal is limited to the district
court’s disposition of her demand for a jury trial.
II.
We review the denial of a jury trial demand under Rule 38
de novo, recognizing that “denial of a jury trial is reviewed with
the most ‘exacting scrutiny.’” Mega Life & Health Ins. Co. v.
Pieniozek,
585 F.3d 1399, 1403 (11th Cir. 2009) (quoting City of
Morgantown v. Royal Ins. Co.,
337 U.S. 254, 258–60 (1949)). Alt-
hough the Seventh Amendment civil jury trial right can be
waived pursuant to the Federal Rules of Civil Procedure, “[t]he
right to trial by jury is fundamental, and this Court indulges every
reasonable presumption against waiver.”
Id. (alteration adopted)
(internal quotation marks omitted).
A decision by the district court to grant or deny a belated
request for a jury trial under Rule 39(b) is “reversible by this court
only for an abuse of discretion.” Parrott v. Wilson,
707 F.2d 1262,
1267 (11th Cir. 1983).
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21-11766 Opinion of the Court 7
III.
Herrera argues that the district court erred in affirming the
magistrate judge’s order striking her jury trial demand. She asserts
that 7R Charter’s amended answer contained new issues of fact,
which under Rule 38 revived her right to demand a trial by jury.
Alternatively, she argues that the district court should have grant-
ed her a jury trial pursuant to Rule 39(b). We conclude that the
district court 2 did not err, and we take Herrera’s arguments in
turn.
First, the district court correctly concluded that 7R Char-
ter’s amended answer did not revive Herrera’s right to demand a
jury trial under Rule 38. Under that rule, a party may demand a
jury trial on “any issue triable of right by a jury . . . no later than
14 days after the last pleading directed to the issue is served.” Fed.
R. Civ. P. 38(b)(1). “A party may, however, waive this right by
failing to make a timely demand upon the courts.” LaMarca v.
Turner,
995 F.2d 1526, 1545 (11th Cir. 1993). “Such waivers apply
only to the issues raised by the pleadings; subsequent amend-
ments to the pleadings can raise ‘new issues’ for which the right
to a jury remains.”
Id. Even so, “[a]mendments to pleadings . . .
may contain new facts which do not create new issues triable by a
jury.”
Id.
2We use “district court” here for convenience, recognizing that the district
court summarily affirmed the reasoned order of the magistrate judge.
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8 Opinion of the Court 21-11766
Herrera argues that the amended answer “added new is-
sues of fact.” Appellant Br. at 11. She asserts that 7R Charter’s ini-
tial answer “admitted” that the injury occurred while Herrera was
acting “within the course and scope” of her employment. Id. at
13. Then, she says, 7R Charter’s amended answer raised a new
fact issue—the question of whether she was acting in the scope of
her employment—by alleging that Calot owned the Protector and
that, when her injuries occurred, she and Calot were on a joy ride
outside the scope of employment rather than a sea trial. Herrera
adds that 7R Charter’s new affirmative defenses show that “the
course and scope issue” was newly raised by the amended an-
swer. Id. at 24.
We disagree that the amended answer raised a new issue of
fact. The Jones Act provides that “[a] seaman injured in the course
of employment” may “bring a civil action at law . . . against the
employer.”
46 U.S.C. § 30104. Thus, an essential element of a
Jones Act claim is that the plaintiff was acting within the course of
her employment when she was injured. In her complaint, Herrera
alleged that, “while working as Chief Stewardess of the Vessel,
[she] accompanied” Calot “in a sea trial of . . . [the] Protector.”
Doc. 1 ¶ 8. She further alleged that, “[d]uring the course of her
work and employment, [she] left aboard the [Protector] . . . to
perform a sea trial offshore,”
id. ¶ 9, when she ultimately was in-
jured. True, in its initial answer, 7R Charter admitted the relevant
portions of paragraph 8. But it denied paragraph 9. In other
words, 7R Charter denied that Herrera could make the showing
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21-11766 Opinion of the Court 9
that she was injured “[d]uring the course of her work and em-
ployment.”
Id.
In its amended answer, 7R Charter alleged some new facts,
including that Calot owned the Protector and that the trip was a
joy ride rather than a sea trial. The company denied the rest of the
allegations in paragraph 8 and again denied the allegations in par-
agraph 9 of the complaint. These “[n]ew facts . . . merely
clarif[ied] the same general issues raised in the original” answer;
they “d[id] not create new issues of fact upon which to assert a
jury demand.” LaMarca,
995 F.2d at 1545 (internal quotation
marks omitted). Herrera was required to demonstrate that she
was acting in the course of her employment with 7R Charter
when she was injured. In its original answer, 7R Charter denied
that she could make that showing, thereby making that essential
element an issue in the case. 7R Charter’s amended answer clari-
fied why it averred that Herrera was not acting as a 7R Charter
employee when she sustained her injuries, but it did not for the
first time raise the issue.
The additional affirmative defenses in 7R Charter’s amend-
ed answer do not alter our analysis. There too, 7R Charter merely
clarified its assertion that Herrera could not satisfy an essential el-
ement of her Jones Act claim. The additional affirmative defenses
did not raise, or evidence the raising of, a new issue of fact.
Because 7R Charter’s amended answer did not raise a new
issue of fact, it did not trigger a new deadline for Herrera to file a
demand for a jury trial under Rule 38(b). And because her jury
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10 Opinion of the Court 21-11766
trial demand was filed years after 7R Charter’s original answer, it
was untimely under Rule 38, resulting in a waiver of her rights
under that rule.
Second, given that her demand for a jury trial was untimely
under Rule 38, the district court rightly analyzed Herrera’s belat-
ed demand under Rule 39(b). In so doing, the district court did
not abuse its discretion. “The general rule governing belated jury
requests under Rule 39(b) is that the trial court should grant a jury
trial in the absence of strong and compelling reasons to the con-
trary.” Parrott,
707 F.2d at 1267 (internal quotation marks omit-
ted). A district court has “broad discretion when considering Rule
39(b) motions” and should consider:
(1) whether the case involves issues which are best
tried to a jury; (2) whether granting the motion
would result in a disruption of the court’s schedule
or that of the adverse party; (3) the degree of preju-
dice to the adverse party; (4) the length of the delay
in having requested a jury trial; and (5) the reason
for the movant’s tardiness in requesting a jury trial.
Id. “Although the normal practice in the district court is to bal-
ance all of the factors enumerated above, when reviewing a lower
court’s denial of a belated jury request our cases require that ap-
pellate courts give considerable weight to the movant’s excuse for
failing to make a timely jury request.”
Id. “If that failure is due to
mere inadvertence on the movant’s part, we generally will not
reverse the trial court’s refusal grant a 39(b) motion.”
Id.
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21-11766 Opinion of the Court 11
The district court concluded that all five factors weighed
against granting the motion. First, the issues posed were not nec-
essarily best tried before a jury. Second, given delays in jury trials
resulting from the COVID-19 pandemic and the fact that 7R
Charter would need additional time to prepare to try the case be-
fore a jury rather than a judge, granting the motion would delay
the case. Third, 7R Charter would be prejudiced because it would
need more time and, possibly, more discovery. Fourth, the jury
demand was filed over 500 days beyond the deadline (which was
14 days after the original answer was filed). And fifth, Herrera had
provided no reason why she waited so long to demand a jury tri-
al.
Herrera challenges the district court’s determinations as to
the second, third, and fourth factors.3 As regards the second fac-
tor, she argues that 7R Charter failed to point to any “specific dis-
ruption” in its schedule “resulting from the timing of Herrera’s
jury trial demand.” Appellant Br. at 30. But that is not the ques-
tion in factor two. It is whether granting the motion, not the tim-
ing of the motion, will cause a disruption. Here, the district court
was within its discretion to consider the impact of COVID-19 on
jury trial scheduling. As to the third factor, Herrera takes issue
3 She argues that 7R Charter “concedes that only three of the five factors pos-
sibly weigh in its favor,” Appellant Br. at 27, but that is plainly incorrect. The
district court found that all five factors favored 7R Charter, and 7R Charter’s
choice to expressly defend four (not three) of those factors in its brief as ap-
pellee is no concession that the district court erred as to the other factor.
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12 Opinion of the Court 21-11766
with 7R Charter’s assertion that it would suffer prejudice because
trial preparation “is different for a jury trial,” noting that some
steps had been taken in the district court to prepare for such a tri-
al. Id. at 28. Even given some jury trial preparation, however, the
district court was within its discretion to weigh against Herrera
any additional prejudice, however small, to 7R Charter. Herrera
argues that the fourth factor, delay in making the demand, weighs
in her favor, but in so doing she calculates the delay from the date
of 7R Charter’s amended answer, and as we have explained that is
not the pleading that triggered her deadline to file a jury trial de-
mand. In sum, we can discern no abuse of discretion in the court’s
weighing of the factors, particularly given the lack of explanation
from Herrera regarding the delay in demanding a jury trial. Thus,
we will not disturb the denial of her belated request for a jury trial
under Rule 39(b).
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED.
