Yousefzadeh v. Hill-Rom, Company Inc.

          Mahmoud Yousefzadeh, 9652 Clark Circle, Eden Prairie, MN 55347 (pro se Plaintiff);

          Brandon Haugrud and Kerry L. Middleton, Littler Mendelson, PC, 80 South Eighth Street, Suite 1300, Minneapolis, MN 55402 (for Defendant).

          ORDER

          TONY N. LEUNG, JUDGE, UNITED STATES DISTRICT COURT

         This matter is before the Court on pro se Plaintiff Mahmoud Yousefzadeh's Motion to Withdraw Jury Trial Demand and Memorandum of Law in Support (Mot. & Mem., ECF No. 61).^[1] A hearing was held on February 5, 2019. Plaintiff appeared pro se. Brandon Haugrud appeared on behalf of Defendant Hill-Rom Company, Inc.

         I. BACKGROUND

         In May 2018, the parties filed, and the Court granted, a stipulation allowing Plaintiff to file a Second Amended Complaint. (See ECF Nos. 31, 33.) In the Second Amended Complaint, Plaintiff demanded a jury trial. (See generally Second Am. Compl., ECF No. 34.) Plaintiff now moves to withdraw his jury trial demand.^[2] Defendant opposes the motion.

         II. ANALYSIS

         Rule 38 of the Federal Rules of Civil Procedure provides that “[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution-or as provided by a federal statute-is preserved to the parties inviolate.” Fed.R.Civ.P. 38(a); see U.S. Const. amend. VII (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . .”).

         In this employment dispute, Plaintiff brings claims for discrimination and retaliation/reprisal under Title VII the Civil Rights Act of 1964 and the Minnesota Human Rights Act (“MHRA”), seeking compensatory damages among other things. “The Civil Rights Act of 1991 amended Title VII, in relevant part, by creating a right to trial by jury.” Anderson v. United Parcel Serv., Inc., 248 Fed.Appx. 97, 101 (11th Cir. 2007); see 42 U.S.C. § 1981a(c) (“If a complaining party seeks compensatory or punitive damages under this section . . . any party may demand a trial by jury . . . .”); see also, e.g., Casteel v. City of Crete, No. 4:16CV3166, 2017 WL 3635184, at *3 (D. Neb. Aug. 23, 2017) (stating “§ 1981a expressly and unambiguously provides for a right to a jury trial for certain claims under the ADA and Title VII”). In 2014, the MHRA was amended to provide that “[a] person bringing a civil action seeking redress for an unfair discriminatory practice or a respondent is entitled to a jury trial.” Minn. Stat. § 363A.33, subd. 6; see 2014 Minn. Laws ch. 233, § 1; see also Pearson v. Rohn Indus., Inc., No. A15-0477, 2015 WL 9264051, at *3 n.1 (Minn.Ct.App. Dec. 21, 2015) (noting amendment). Even prior to this change, the Eighth Circuit Court of Appeals had already “held that the Seventh Amendment provides a right to a jury trial in federal court for an action brought under the MHRA in which the Plaintiff seeks compensatory damages.” Eldredge v. City of St. Paul, No. 09-cv-2018 (SRN/JSM), 2011 WL 4347940, at *2 (D. Minn. Sept. 16, 2011) (citing Kampa v. White Consolidated Indus., Inc., 115 F.3d 585, 586-87 (8th Cir. 1997)); see also Eichten v. Kmart Corp., No. 07-cv-3006 (RHK/RLE), 2007 WL 2084142, at *2 n.3 (D. Minn. July 17, 2007). Thus, Plaintiff's jury demand was proper.

         When a plaintiff is entitled to and demands a jury trial, that demand cannot be unilaterally withdrawn over the defendant's objection. See, e.g., Manrique v. Fagan, No.08-60501-CIV, 2009 WL 700999, at *8 (S.D. Fla. Mar. 16, 2009); Alexander v. Chattahoochee Valley Cmty. Coll., 303 F.Supp.2d 1289, 1291 (M.D. Ala. 2004). “A proper demand may be withdrawn only if the parties consent.” Fed.R.Civ.P. 38(d).

It would be unfair to permit unilateral withdrawal of a proper jury demand if one side did not bother to make a demand because an opposing party had already done so. Thus, a party may rely on the fact that an opposing party made a jury demand in those situations where a second demand would, in fact, be superfluous.

Westminster Sec. Corp. v. Uranium Energy Corp., 255 F.Supp.3d 490, 496 (S.D.N.Y. 2017) (quotation omitted). Plaintiff has provided no authority for his argument that Rule 38(d)'s consent requirement does not apply in this case or that any purported disagreement with his former^[3] attorney allows him to unilaterally withdraw the jury demand. Because Rule 38(d) requires the consent of the parties before a proper jury demand may be withdrawn and Defendant has not consented, Plaintiff's motion to withdraw his jury demand is denied. See Fed. R. Civ. P. 38(d).

         III. DEFENDANT'S REQUEST FOR FEES UNDER 28 U.S.C. § 1927

         Lastly, Defendant requests that it “be reimbursed for its reasonable attorneys' fees incurred in opposing Plaintiff's Motion pursuant to 28 U.S.C. § 1927.” (Def.'s Opp'n at 2, ECF No. 66.) Defendant asserts that “[t]he Motion is groundless and needlessly increased ...