Virginia Federal court allows jury in trademark case even where demand came 5 months too late

In a Lanham Act case involving pharmaceutical products, Judge Conrad of the Western District of Virginia granted plaintiff’s motion for a jury trial, even though it was made only four months before trial and outside the time prescribed by Rule 38. In Concordia Pharm. Inc. v. Method Pharm. LLC, No. 3:14-cv-16 (W.D. Va. Nov. 4, 2015), exercising discretion under Rule 39(b), the Court found that the Fourth Circuit’s four-factor test had been met: the issues were not so complex that a jury would be incapable of understanding them; granting the motion would not significantly prejudice the defendants; the timing of the motion did not warrant denial since there were still seven weeks to conduct discovery and defendants failed to show how trial preparation would be effected; and a jury trial would not burden the Court’s docket substantially more than a bench trial.

The lesson? The standard for granting a party’s untimely jury demand is relatively low in the Fourth Circuit, despite the explicit waiver language in Rule 38.