Opinion
No. HHD-CV-02-0817767
September 4, 2008
MEMORANDUM OF DECISION DEFENDANT'S OBJECTION TO PLAINTIFF'S CLAIM FOR JURY TRIAL AND MOTION TO REMOVE CASE FROM JURY DOCKET
I STATEMENT OF CASE
On September 17, 2004, the defendant filed an objection to plaintiff's claim for a jury trial and moved to remove the case from the jury docket pursuant to Practice Book § 14-10. The defendant argues that the issues of fact were joined in September 2002, and the plaintiff's reply to defendant's special defenses does not make his jury claim timely under General Statutes §§ 51-239b and 52-215. The defendant further argues that permitting the plaintiff's claim for a jury trial would prejudice the defendant and render meaningless the applicable statutes and practice book provisions. On October 1, 2004, the plaintiff filed an opposition to defendant's motion to remove case from jury docket. The plaintiff contends that the plaintiff's jury claim was filed on the same day as the plaintiff's reply, which is within the ten (10) days allowed. The defendant responded to the plaintiff's opposition on or about October 6, 2004.
II FACTS PROCEDURAL HISTORY
The complete procedural history of this case is set forth in Curry v. Goodman, 286 Conn. 390, 397-01 (2008). The court will briefly summarize the history relevant to the jury claim issue.
On June 28, 2002, the plaintiff filed in Superior Court a six-count complaint alleging the following claims: (1) Fair Employment Practices Act — C.G.S. § 46a-60(a)(1): Disparate Treatment on Account of Physical Disability; (2) Fair Employment Practices Act — C.G.S. § 46a-60: Failure to accommodate disabilities; (3) Fair Employment Practices Act — C.G.S. Section 46a-60(a)(4): Retaliatory Discrimination for Opposition to Discriminatory Treatment; (4) Americans with Disabilities Act — 42 U.S.C. § 12111, et seq.: Disparate Treatment on Account of Physical Disability; (5) Americans with Disabilities Act — 42 U.S.C. § 12111, et seq.: Failure to accommodate disability; and (6) Americans with Disabilities Act — 42 U.S.C. § 12111, et seq.: Retaliatory Discrimination for Opposing Discriminatory Treatment.
On July 3, 2002, the defendant filed a petition for removal to the United States District Court, District of Connecticut. The notice states "that, pursuant to 28 U.S.C. § 1446(d), this court `shall proceed no further unless and until the case is remanded.'" On or about September 9, 2002, the defendant filed an answer and five special defenses in Federal Court. On June 1, 2004, the first, second and third counts of the complaint were remanded. On July 9, 2004, the defendant filed a motion for summary judgment. On July 21, 2004, the plaintiff filed a reply to special defenses, a certificate of closed pleadings and a claim for jury along with the required fee. The case was scheduled for trial in March 2005. The trial is now scheduled for February 24, 2009.
III DISCUSSION
The determinative issue in this case is whether the plaintiff satisfied the "issue of fact is joined" requirement of § 52-215 when he filed a claim for jury on July 21, 2004.
General Statutes § 52-215 sets forth the relevant procedure to request a jury trial: "When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk; and any such case may at any time be entered in the docket as a jury case by the clerk upon written consent of all parties or by order of court.' (Emphasis added.) "In civil actions a jury shall be deemed waived unless requested by either party in accordance with the provisions of section 52-215." General Statutes § 51-239b.
The time for requesting a jury trial is discussed in 2 E. Stephenson, Connecticut Civil Procedure (3d Ed. 2002) § 143. "There are two time periods within which a jury trial can be requested. Any case in which there is a right to trial by jury may be claimed to a jury `upon the written request of either party made to the clerk within thirty days after the return day.' . . . The second time period within which a jury may be claimed . . . allows a claim for a jury to be made `within ten days after' an `issue of fact' has been joined in any case triable to a jury as of right. In applying this provision, the first day of the ten days would be the day following the joining of the issue." Id.
"The right to a jury trial arises pursuant to General Statutes § 52-215, which provides that in civil actions presenting issues of fact other than those properly cognizable in equity, when the amount in controversy exceeds $250, a request for a jury trial may be made by any party within ten days after an issue of fact is joined." Roe v. Klein, 87 Conn.App. 337, 345-46 (2005)." `Where responsive pleading is required . . . the issue is joined when the responsive pleading is filed.' 2 Stephenson, Conn. Civ. Proc. (2d Ed. 1971) 173.' Home Oil Co. v. Todd, 195 Conn. 333, 343 (1985). A reply to the special defenses would be a joining of an issue of fact. Fletcher v. Mead Sch. For Human Dev., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-96-0152138 (January 8, 2001, Tierney, J.) [28 Conn. L. Rptr. 667]. In American States Insurance Corporation v. Peci et al., Superior Court, Docket No. 319343 (March 26, 1997, Moraghan, J.), the trial court found that the pleadings were closed when the plaintiff responded to the defendant Lefebvre's answer, special defenses and counterclaim. "The plaintiff had ten days from that point to claim the case to the jury docket." Id. The court in Krupinski v. Connolly, Superior Court, judicial district of New London at Norwich, Docket No. 0112916 (February 2, 1999, Solomon, J.) [23 Conn. L. Rptr. 685], found that "[i]n this case, the Defendant's filing of special defenses called for the filing of a responsive pleading (Plaintiff's reply), and that responsive pleading was filed no later than July 21, 1998. The jury trial claim should have been made within ten days following that date."
In Roe, the defendant Klein requested a jury trial on December 6, 1999. Roe v. Klein, supra, 87 Conn.App. 346. The final pleading in that case was the plaintiff's reply to the defendants' special defense, filed June 23, 1999. Id. The defendants' request for a jury trial was made nearly six months after the last issue of fact in the action was joined, and well beyond the ten-day statutory limit. Id. In addition, no new issue of fact was joined. Id. The Appellate Court found that the trial court did not improperly deny the defendant Klein a jury trial. Id.
This case did not proceed any further in State Court until the case was remanded. Under 28 U.S.C. § 1446(d), the effect of removal is clear. "Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d). The state claims were not remanded until June 1, 2004.
In the present matter, the last responsive pleading was the plaintiff's reply to special defenses filed on July 21, 2004. Upon the filing of the reply, the last issue of fact in the action was thereby joined. On the same day, the plaintiff filed a claim for jury along with the required fee. Unlike the defendant in Roe, the plaintiff requested a jury trial within the ten (10) day statutory limit. The defendant's September 9, 2002 answer with special defenses was not the last pleading. Practice Book § 10-6 provides that "[t]he order of pleading shall be as follows: (1) The plaintiff's complaint . . . (5) The defendant's answer (including any special defenses) to the complaint . . . (8) The plaintiff's reply to any special defenses." A responsive pleading was not required to be filed in State Court until the case was remanded; no persuasive authority has been cited to the contrary.
"The fundamental constitutional right to a jury trial should be liberally construed in a manner that would afford such a right for issues of fact in a legal action . . . Our Supreme Court has ruled that this court has discretion to order a case be placed on the jury list after the time for claiming to the jury has elapsed." (Citations omitted.). Godin v. Hartford Casualty Insurance Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-94-0535069 (August 19, 1994, Wagner, J.) [12 Conn. L. Rptr. 358]. "This court has the discretionary power pursuant to General Statutes § 52-215 to order that the case be entered on the jury docket." Fletcher v. Mead Sch. For Human Dev., supra.
The court finds that the plaintiff has complied with the requirements of § 52-215. The jury claim was made within ten (10) days after the last issue of fact had been joined.
The court is also justified in exercising its discretion to order that the case remain on the jury docket. The defendant's September 9, 2002 answer with special defenses was not the last responsive pleading. The case was not remanded until June 1, 2004. The reply and jury claim were filed on July 21, 2004. This case was originally scheduled for trial in March 2005, and is now scheduled for February 2009. A scheduling order with discovery deadlines was entered on July 8, 2008. The possibility of prejudice clearly favors the plaintiff.
IV CONCLUSION AND ORDER
For the above-stated reasons, the court enters the following orders. The court overrules the defendant's objection to plaintiff's claim for jury trial and denies the motion to remove case from jury docket.