Place v. Baumer ( 1939 )

GIBSON, District Judge.

Counsel for the plaintiff have petitioned the court for leave to withdraw the case from the non-jury list and enter it upon the jury trial list. It is presumed that the petition contemplates leave for a jury trial, although it does not say so.

The case was removed from the Common Pleas Court of Cambria County on March 7, 1939, and the petition presented November 22, 1939. The court has been somewhat lenient with counsel in removal cases who have failed to demand jury trials, as required by the Federal Rules of Civil Procedure,. rule 38, 28 U.S.C.A. following section 723c, but the present case is not one calling for what is, in reality, a stretch of discretion. The answer of the defendant was filed March 8, 1939, nine months prior to the request for jury trial. The period of delay is too long for indulgence, particularly in respect to a case exhibiting somewhat complicated contentions and which can probably better be tried by a court rather than a jury.