Appeal from a judgment of the United States District Court for the District of Connecticut, Thomas F. Murphy, Judge, dismissing claim under 42 U.S.C. § 1983 after a bench trial.
Kearse and Cardamone, Circuit Judges, and Wyatt, District Judge.*fn*
Plaintiffs Susan Gargiulo and Carmel Eamiello appeal from a final judgment entered in the United States District Court for the District of Connecticut following a bench trial before Thomas F. Murphy, Judge, dismissing their action brought under 42 U.S.C. § 1983 (1982). Plaintiffs contend that the court erred in not allowing the case to be tried to a jury. We agree and remand for a jury trial.
In response to the complaint filed by the plaintiffs, defendants answered and pleaded several affirmative defenses. On the last page of their answer, just above the date and the signature, defendants demanded a jury trial in the following form:
The defendants hereby demand trial by jury of all issues in the above case.
No indication was made on the court clerk's docket sheet, however, that a jury trial had been demanded.
Prior to trial, both parties were notified of the trial date in a notice headed "COURT TRIAL CALENDAR . . . November 5, 1984." We were advised at oral argument that in local practice this heading is understood to refer to a calendar of nonjury trials. Neither party undertook to call to the court clerk's attention prior to November 5 that a jury trial had been demanded.
On the call of the court's November 5 calendar, defendants' attorney pointed out to the court that defendants had demanded a jury trial in their answer. Plaintiffs' counsel joined in the request that the case be tried to a jury. The court denied the parties' requests and proceeded to try the case without a jury, finding for the defendants.
In a later written Memorandum dated February 28, 1985 ("Memorandum"), the court denied plaintiffs' motion for a new trial before a jury, citing two grounds. First, the court ruled that defendants' demand for a jury trial did not meet the requirements of Fed. R. Civ. P. 38(b), which permits such a demand to be "indorsed" on a party's pleading. The court ruled that "indorsed" means "on the back," whereas defendants' demand was on the front of the last page of the pleading. (Memorandum at 2.) Second, although the court noted that "defendants' attorney protested vigorously that he had demanded a jury trial and wanted one," id., and that "plaintiffs' counsel advised that she joined in the motion for a jury trial and took timely exception that it was to be only a non jury trial," id., the court found that the parties had waived their right to a jury:
both counsel could have refused to go to trial without a jury and walked out of the Court without let orhindrance with their witnesses, but they did not. Nor did either complain of ...