MOTION FOR LEAVE TO FILE A JURY DEMAND COMES NOW ____ by and through their attorneys of record, Albuquerque

Business Law, and provides this Motion for Leave to file a Jury Demand pursuant to Rule 1-039 NMRA. In support of the foregoing, Plaintiffs provide the following memorandum of law in support of the Motion for Leave to File a Jury Demand. BACKGROUND ARGUMENT A jury trial is of fundamental importance. See Juneau v. Intel Corp., 2006 NMSC-2, 37, 139 N.M. 12, 127 P.3d 548. A court, in its discretion, may allow a party to file a jury demand even though it is untimely. See Rule 1-039(a) NMRA; see also In re Ferrill, 97 N.M. 383, 390, 640 P.2d 489, 496 (Ct. App. 1981) (Rule 39(a) gives the court the discretion to allow a jury trial when the right to one exists, and the demand was not timely.). A court should consider a variety of factors including the reason for the delay and whether the other party will suffer prejudice if the jury demand is filed. See Juneau, 2006-NMSC-2, 21. A primary consideration in granting leave to file a jury demand is to determine if the other party will suffer prejudice. See e.g. id. at 21; Duran v. Carisbrook, Inc., No. 30,067, 2011 N.M. App. Unpub. LEXIS 279, at * 8 (Ct. App. July 20, 2011) (there would have been no prejudice). A party will not suffer prejudice if the party still has time to prepare for a jury trial or if the party had been proceeding as if a jury demand was filed. See Juneau, 2006-NMSC-2, 29, 32; Duran, 2011 N.M. App. Unpub. LEXIS 279, at *8. While a court should consider the reason for the delay, the demand should not be denied if the delay is due to inadvertence on the part of counsel. See Bates v. New Mexico Corrections Dept., No.

Civ 08-1013 JB/RLP, 2009 U.S. Dist. LEXIS 114180, at *8 (D.N.M. Nov. 30, 2009).1 In Bates, the court found that the other party would not suffer any prejudice because it still had time to prepare for trial. See id. Furthermore, the court found that the proceedings would not be disrupted or delayed by granting the jury trial. See id. The court noted that it should grant a jury trial absent strong and compelling reasons to the contrary[,] and therefore, allowed the Plaintiff to file an untimely jury demand even though the only reason for the delay was counsels inadvertence. See id. As noted by Wright and Miller, Technical insistence upon imposing a penalty for default by denying a jury trial is not in the spirit of the rules. The rules do not limit the courts discretion in ordering a jury in cases in which there would have been a right to jury trial. The court ought to approach each application under Rule 39(b) with an open mind and an eye to the factual situation in that particular case, rather than with a fixed policy against granting the application or even a preconceived notion that applications of this kind are usually to be denied. 9 C. Wright & A. Miller, Federal Practice and Procedure, 2334 at 115-16 (1971) (footnotes omitted) (quoted in Bates v. Bd of Regents of Northern New Mexico Community College, 122 F.R.D. 586, 589 (D.N.M. 1987).

New Mexico cases have recognized that Rule 1-039 NMRA is similar to Federal Rule of Civil Procedure Rule 39 and have relied on federal case law construing FRCP 39 in interpreting Rule 1-039 NMRA. See Alford v. Drun, 60 N.M. 398, 303, 361 P.2d 451, 454 (1961) (We note that Rule 39(a) is identical with Rule 39(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and the Federal Courts in construing the rule hold that the granting of a trial by jury, where the jury has been thus waived, was a matter within the discretion of the court.); In re Ferrill, 97 N.M. 383, 390, 640 P.2d 489, 496 (Ct. App. 1981) (citing Wright & Miller discussing FRCP).