The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Presently pending is the motion of defendant Rensselaer Polytechnic Institute ("RPI") pursuant to Fed. R. Civ. P. 38 and 39 directing that the trial of this case be to a jury. Docket Nos. 75, 80. Plaintiff Joseph P. McInerney ("McInerney") opposes the motion. Docket No. 76. For the reasons which follow, RPI's motion is granted in part and denied in part.
McInerney, then proceeding pro se, commenced this action on October 5, 2005 by filing a complaint asserting twenty-nine claims against RPI and five other defendants under the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794. Compl. (Docket No. 1). Essentially, McInerney alleged that defendants denied him reasonable accommodations in his graduate studies after he suffered a stroke. Id. The complaint itself contained no demand for a trial by jury. Id. However, filed with the complaint by McInerney was a "Civil Cover Sheet" required by local rules. See N.D.N.Y.L.R. 3.1. It appears that McInerney checked "yes" on the unsigned cover sheet when asked if he demanded a jury trial. Schopf Aff. (Docket No. 75-2), Ex. B (Docket No. 75-4) at 1.*fn1 The cover sheet was served on defendants along with the summons and complaint. Maniatty Aff. (Docket No. 75-18) at ¶ 2 & Ex. A (Docket No. 75-19).
Although the jury demand section in the cover sheet was unclear, McInerney clearly indicated his intention in the Civil Case Management Plan filed on November 25, 2005. Docket No. 7 ("CCMP I"). That plan was filed in accordance with a local rule requiring parties to confer and file such a plan in anticipation of the scheduling conference required by Fed. R. Civ. P. 16(b). See N.D.N.Y.L.R. 16.1(c); N.D.N.Y. Gen. Order 25. It appears that McInerney filed this plan unilaterally without consultation with defendants' counsel as it contains only McInerney's signature. CCMP I at 5. In Question 6 of the plan, McInerney marked "YES" when asked if the parties had filed a jury demand. Id. at 2.
Defendants thereafter moved to dismiss the complaint before filing an answer. Docket No. 13. That motion was granted, McInerney appealed, the order of dismissal was reversed, the case was remanded, and defendants filed their answer on November 27, 2007. Docket Nos. 27-29, 36, 37.*fn2 McInerney then retained an attorney to represent him. Docket No. 42. A third CCMP was filed on December 28, 2007. Docket No. 43 ("CCMP III"). That plan, signed by counsel for all parties, responded to Question 6 by indicating "NO" and adding in parentheses that "Plaintiff intends to file such." Id. at 2. The scheduling order which followed indicated that the trial would be non-jury. Docket No. 46 at ¶ 8(b).
On January 31, 2008, McInerney moved for leave to file an amended complaint. Docket No. 47. The proposed amended complaint appended to the motion stated that a jury trial was demanded. Proposed Am. Compl. (Docket No. 47-2) at 1. On March 18, 2008, McInerney's motion was granted in part. Docket No. 54. An amended complaint was filed on March 19, 2008 asserting a demand for a jury trial. Docket No. 55-1 at 1. RPI answered and the case proceeded with discovery. Docket No. 56. On January 13, 2009, McInerney's counsel sent an electronic message to RPI's counsel proposing that the parties stipulate to a non-jury trial. Docket No. 75-14 at 1. This appears to be the first occasion when McInerney indicated such a desire. Schopf Aff. at ¶¶ 29-32. The present motion followed.
RPI seeks an order (1) granting it a trial by jury, (2) amending the Uniform Pretrial Scheduling Order (Docket No. 46) to reflect McInerney's demands for a jury trial, and (3) awarding costs and fees incurred in making this motion. Docket No. 75-1.
The procedures regarding a demand for a jury trial are set forth in Fed. R. Civ. P. 38 and 39. Rule 38 states in pertinent part:
(a) Right Preserved. The 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.
(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:
(1) serving the other parties with a written demand--which may be included in a pleading--no later than 10 days after the last pleading ...