Opinion
Action by Foch Estates, Incorporated, against Stewart McDonald, as Federal Housing Administrator. The action was commenced in the state court and removed to the Federal District Court. On defendant's motion for an order directing the removal of the action from the jury calendar to the nonjury calendar.
Motion granted.
Robinson, Hennessy & Weitzer, of New York City (Joseph S. Robinson, of New York City, of counsel), for plaintiff.
Harold M. Kennedy, U.S. Atty., of Brooklyn, N.Y. (Albert V. De Meo, Asst. U.S. Atty., of Brooklyn, N.Y., of counsel), for defendant.
MOSCOWITZ, District Judge.
This is a motion for an order directing the removal of this action from the jury calendar to the non-jury calendar.
This action was commenced in the State Court and removed to this Court. Thereafter an answer was interposed on June 3, 1940, and is the last pleading served in this action.
On October 3, 1940, plaintiff's attorneys served upon defendant's attorney a demand for a jury trial. Subdivision (b) of Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that a demand for a trial by jury must be served not later than ten (10) days after the service of the last pleading directed to such issue. Subdivision (d) of Rule 38 provides that the failure to serve such a demand constitutes a waiver of trial by jury.
Rule 39, subdivision (b), of the Federal Rules of Civil Procedure provides that the Court in its discretion upon motion may order a trial by jury of any or all issues. No reason has been indicated why such discretion should be exercised.
Motion granted.