
    Myron M. SHEINFELD, Trustee in the Bankruptcy Estate of William West Toole, Jr., d/b/a West Tool Company, Plaintiff, v. ALCORN COMBUSTION COMPANY, Defendant.
    Civ. A. No. 65-H-828.
    United States District Court S. D. Texas, Houston Division.
    Feb. 8, 1967.
    Baker, Botts, Shepherd & Coates, Ray A. Gipson, Houston, Tex., for plaintiff.
    Butler, Binion, Rice, Cook & Knapp, Richard H. Caldwell, Houston, Tex., for defendant.
   INGRAHAM, District Judge.

MEMORANDUM:

This suit was filed on November 26, 1965, and answered on March 9, 1966. On January 16, 1967, plaintiff introduced a motion to place the suit on the jury calendar. The request is untimely and will be denied.

Rule 38, F.R.Civ.P., provides that demand for jury trial should be made within ten days after service of the last pleading directed to the issue on which jury trial is sought. That date in this suit was March 19, 1966. Paragraph (d) of Rule 38 states:

“Waiver. The failure of a party to serve a demand as required by this rule * * * constitutes a waiver by him of trial by jury.”

Ten months after having waived jury trial, plaintiff asks this court to exercise its discretion granted by Rule 39(b) and order a trial by jury. The court’s discretion is judicial discretion and not arbitrary discretion. No reason is given for the exercise of discretion.

If Rule 39(b) was meant to permit or encourage allowing jury trials whenever demanded and in the absence of any explanatory circumstances, there would be no Rule 38. Rule 38(d) specifically declares a waiver after ten days. To invoke the court’s discretion under Rule 39(b), some explanation must be given. Otherwise, no party need ever demand jury trial till it suits him.

This is consistent with the action taken by this court in Barker v. The Upjohn Company, 263 F.Supp. 985, wherein plaintiff’s counsel here was representing the defendant in that case, and successfully urged its motion to strike untimely jury demand.

Plaintiff says nothing more than that it now wants a jury trial. Such a bare request will not be granted. The clerk will notify counsel to draft and submit an appropriate order.  