Ferdinand v. County of Nassau

Full title: RONALD FERDINAND, Plaintiff(s), v. COUNTY OF NASSAU, Defendant

Court: United States District Court, E.D. New York

Date published: Jun 16, 2004

No. CV 02-4204 (WDW) (E.D.N.Y. Jun. 16, 2004)

Opinion

No. CV 02-4204 (WDW).

June 16, 2004

ORDER

WILLIAM D. WALL, Magistrate Judge

Before the court is a motion by the plaintiff to amend the complaint to designate this action as a maritime action, an amendment that would effectively withdraw the plaintiff's jury demand. The defendant opposes the motion and wishes to proceed with a jury. For the reasons set forth herein, the motion is denied.

This is a personal injury action. The plaintiff, a former Nassau County police officer, was allegedly injured in an accident on October 22, 1999 while serving as a crew member of a police boat. He commenced this action under the Jones Act, 46 U.S.C. § 688, and asserted maritime jurisdiction under 28 U.S.C. § 1333. No diversity jurisdiction was, or could be, claimed. Under the Jones Act, the plaintiff, but not the defendant, had a right to demand a jury trial, and he did so. See Rachal v. Ingram Corp., 795 F.2d 1210, 1213 (5^th Cir. 1986) ("In a nondiversity action under the Jones Act, 46 U.S.C. § 688, the seaman, on proper request, is entitled to a jury trial only by virtue of the Jones Act statutory grant.") Now, the plaintiff wants to amend the complaint "to proceed as an admiralty claim within the meaning of Admiralty Rule 9(h) solely to the extent of withdrawing his demand for a jury trial." Shisha Letter 5/20/04 at 1-2.

Federal Rule of Civil Procedure 9(h) provides that the "amendment of a pleading to add or withdraw" a statement identifying a claim as one in maritime or admiralty "is governed by the principles of Rule 15." Thus, the plaintiff argues that the amendment should be allowed pursuant to Rule 15's liberal standards.

The defendant opposes the motion, arguing that the application, which was made on May 20, 2004, more than a year after the May 8, 2003 deadline in the scheduling order for motions to amend the pleadings, should be considered pursuant to Rule 16(b), which requires a showing of good cause for modifications to the schedule. Under the standards of Rule 16(b), the defendant argues, the plaintiff's delay in making the request mandates its denial.

The court agrees that the fact that Ferdinand has made this motion to amend a year after the deadline in the scheduling order changes the standard by which the motion must be decided. Federal Rule 15(a) provides that leave to amend shall be freely given when justice so requires, but when a scheduling order has been entered, "the lenient standard under Rule 15(a), which provides leave to amend `shall be freely given,' must be balanced against the requirement under Rule 16(b) that the Court's scheduling order `shall not be modified except upon a showing of good cause.'" Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (quoting Fed.R.Civ.P. 15(a) 16(b)); see also Parker v. Columbia Pictures Indus., 204 F.3d 326, 339-40 (2d Cir. 2000). And, "[a] finding of good cause depends on the diligence of the moving party." Id. at 340; Grochowski, 318 F.3d at 86.

Here, the late request for the amendment appears to rest entirely on the existence of a surveillance tape of the plaintiff, which the plaintiff suggests would be prejudicial to him in a jury trial. As a threshold issue, the court notes that the plaintiff makes no effort to explain when he became aware of the tape and how that timing relates to his diligence in making the motion. In any event, even if the plaintiff did not receive the tape until recently, it does not provide a basis for granting the motion. The plaintiff states that the tape depicts the "lavish lifestyle plaintiff is living in Florida after his retirement from the police force." Shisha Letter 6/9/04. The jurors, the plaintiff states, might "feel as though they have already compensated plaintiff by paying his high salary and generous pensions through payment of high property taxes that have almost bankrupted Nassau County." Id. Such an issue, the plaintiff argues, would not be present in a bench trial.

The court is not convinced that this constitutes good cause for the late filing of the request to amend. The plaintiff was certainly aware of his prior salary, his current pension, and his lifestyle in Florida before the deadline, and should have known that those facts might come into evidence. Moreover, there is absolutely no basis on which the court can conclude that jurors would be prejudiced by the lifestyle depicted in the video. In short, the plaintiff has not met the good cause standard of Rule 16(b) and the motion is denied.

SO ORDERED.