The opinion of the court was delivered by: SAROKIN
In its amended complaint, plaintiff has made a demand for a jury trial, pursuant to Fed.R.Civ.P. 38. Defendant, arguing that the EEOC is not entitled to a jury trial in suits filed by it under the ADEA, moves to strike that demand. Plaintiff defends its right to a trial by jury on two grounds. First, defendant's motion to strike the demand has not been timely made; and, second, the right of the EEOC to a trial by jury is guaranteed by statute.
TIMELINESS OF DEFENDANT'S MOTION
Rule 39(a) of the Federal Rules of Civil Procedure provides that
(a) When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or of its own initiative finds that a right of trial by jury of some-or all of those issues does not exist under the Constitution or statutes of the United States.
Thus, the rule specifies alternative ways by which an action may be stricken from the jury calendar and transferred to the court calendar. The request to strike the jury trial demand may be made upon motion by a party, see, e.g., Ralph Blechman, Inc. v. I.B. Kleinert Rubber Co., 98 F. Supp. 1005 (S.D.N.Y.1951); Olearchick v. American Steel Foundries, 73 F. Supp. 273 (W.D.Pa.1947), by stipulation of the parties, or upon the court's own initiative. See J. Moore & J. Lucas, 5 Moore's Federal Practice P 39.02-.04 (2d ed. 1982). No time limit is specified in Rule 39(a) as to when a party may move to strike a jury trial demand.
Whether defendant's motion is timely, however, need not be decided because Rule 39(a) allows the court on its "own initiative" to strike an action from the jury list if a jury trial is not allowed under applicable law. Therefore the court shall consider whether, under the ADEA, the EEOC is entitled to a jury trial, even absent a timely motion by defendant.
EEOC'S RIGHT TO A JURY TRIAL IS GRANTED BY STATUTE
The EEOC's statutory argument rests on two assumptions: that the ADEA expressly grants the right to a trial by jury to any party bringing an action under § 626, whether that party is an individual or the EEOC; and that because relief has been requested under 16(c) of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., ["the FLSA"], which has been construed to allow jury trials, and which has been incorporated by reference in the ADEA, plaintiff is entitled to a trial by jury.
When the ADEA was first enacted, it did not specifically state whether jury trials were available. In 1978, Congress amended the ADEA and expressly granted this right.
Section 626 now reads, in pertinent part:
(c)(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this Act.
(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of Act in any such action for recovery of amounts owing as a result of a violation of this Act, regardless of ...