                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 11-1856
                                     ______________

                                    ERRICK PHILLIPS,

                                                                 Appellant

                                              v.

                   TONY ALSLEBEN; KEVIN KENNEDY, DEPUTY
                    ERIC KESTER; CRAIG KOPPEL; TONY SUBE;
                              CHRIS GABELLINI
                                ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civ. No. 08-cv-01388)
                     Honorable Lawrence F. Stengel, District Judge
                                   ______________

                        Submitted under Third Circuit LAR 34.1(a)
                                    October 6, 2011

  BEFORE: McKEE, Chief Judge, and FUENTES and GREENBERG, Circuit Judges

                                 (Filed: October 20, 2011)

                                     ______________

                                OPINION OF THE COURT
                                    ______________

GREENBERG, Circuit Judge.

       This matter comes on before this Court on appeal from a final judgment entered on

March 7, 2011, in the District Court following a non-jury trial in this civil rights action
under 42 U.S.C. § 1983 and Pennsylvania state law. The case arose out of the arrest on

October 23, 2006, in Allentown, Pennsylvania, of plaintiff-appellant Errick Phillips who

allegedly suffered injuries inflicted during the arrest. The defendant-appellees are

officers of the office of the county sheriff and the local Allentown police department who

arrested Phillips. We do not set forth a factual description of the circumstances of the

arrest as the description would be of limited importance on this appeal because, as we

will explain, Phillips does not challenge the result at the trial. What is significant,

however, is that when Phillips filed his complaint on May 6, 2008, he did not ask for a

jury trial as he could have done under Federal Rule of Civil Procedure 38(b), and when

the defendants filed their answers they did not do so either. On April 6, 2009, long after

the time for asking for a jury trial as a matter of right had expired, Phillips filed a motion

seeking such a trial. The District Court denied the motion on July 15, 2009, and,

accordingly, it later tried the case without a jury. At that trial the Court found in favor of

defendants and entered judgment accordingly. Phillips then appealed.

       On this appeal, Phillips contends only that the District Court abused its discretion

in denying his motion seeking a jury trial. The District Court had jurisdiction under 28

U.S.C. §§ 1331 and 1367 and we have jurisdiction under 28 U.S.C. § 1291. We review

the order of July 15, 2009, for an abuse of discretion. See United States Sec. & Exch.

Comm’n v. Infinity Group Co., 212 F.3d 180, 195 (3d Cir. 2000).

       The District Court’s explanation for denying Phillips’ motion in its entirety reads:

       The plaintiff’s request for a jury trial is denied. Federal Rule of Civil
       Procedure 38 clearly states that the demand for a jury must be made in
       writing ‘at any time after the commencement of the action and not later

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       than 10 days after the service of the last pleading directed to the issue.’
       Failure to make a timely demand constitutes a waiver by that party. Fed. R.
       Civ. Pro. 38(d). The deadline for that request passed long before the
       motion for summary judgment was filed.

App. at 3.

       Though a district court has discretion when ruling on a motion seeking a jury trial

out of time, courts are not without guideposts in ruling on such motions as we have listed

factors for them to consider when exercising that discretion. Infinity Group, 212 F.3d at

195-96. Here, the language that the District Court used in denying Phillips’ motion leads

us to believe that the Court may have regarded the requirement for a timely demand for a

jury trial to be mandatory and not subject to relaxation. We have this concern because

the Court’s only articulated reason for denying Phillips’ motion was that his request for a

jury was untimely. In this regard, the Court’s reference to the motion being made after a

motion for summary judgment had been filed mentioned a point of limited materiality on

the jury trial issue, although a party’s delay in asking for a jury trial is a factor a court

could consider in ruling on such a motion. 1

       In view of the fact that the District Court did not indicate that it was exercising its

discretion when it denied Phillips’ motion we considered vacating the March 7, 2011

judgment and remanding the matter for that Court to determine now if Phillips should

have been given a jury trial. If we did so, then the District Court, depending upon what it

determined, either would grant the jury trial or reinstate the March 7, 2011 judgment.

1
 We recognize that it is entirely possible that the District Court was well aware of the
discretionary nature of the issue before it but nevertheless regarded the motion as
unmeritorious. We, however, are constrained to adjudicate the appeal on the basis of the
record before us.
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What we would not do, however, in remanding the case is rule that the District Court

must grant Phillips a jury trial for we have no basis to conclude that if the District Court

originally had exercised its discretion on Phillips’ motion and explained the reason for its

ruling it would have granted the motion.

       However, instead of remanding the case for the District Court to consider the jury

trial issue we have reviewed the matter and have concluded that the Court properly

denied Phillips’ motion. In reaching our conclusion we point out that after the parties

filed their last pleading the Court, on July 22, 2008, entered an order requiring that

discovery be completed by September 19, 2008, and we reiterate that Phillips did not file

his motion seeking a jury trial until April 6, 2009. Consequently, he was quite dilatory in

filing his motion. Moreover, we are well aware that if the Court had granted Phillips’

motion and allowed a jury trial, defendants might have sought to reopen discovery as

parties preparing for a jury trial sometimes take steps not taken by parties preparing for

non-jury trials. In the event that the Court had allowed further discovery the proceedings

would have been delayed. Finally, we think it unlikely that if we remanded the matter for

the Court to consider whether Phillips should be granted a jury trial it would exercise its

discretion to allow such a trial. After all, it would be very unfair to defendants to require

them to go through a second trial by reason of Phillips’ failure to ask for a jury trial in a

timely manner.

       The final judgment of March 7, 2011, will be affirmed.




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