Opinion
Case No: 3:03cv837 (PCD).
September 1, 2005
RULING ON MOTION FOR JURY TRIAL
Pursuant to Fed.R.Civ.P. 39(b), Plaintiff moves for the grant of a Demand for Jury Trial. Defendant American Red Cross moves to strike that demand. For the reasons stated below, Defendant's Motion [Doc. No. 63] is granted.
I. BACKGROUND:
On February 8, 2002, Plaintiff was involved in an automobile accident involving Defendant Dana G. Mills. Plaintiff filed suit in state court with a return date of November 19, 2002. A motion to cite in Defendant Red Cross was granted on February 26, 2003. At the request of Defendant Red Cross, the case was removed to this Court on May 7, 2003. Current counsel for Plaintiff filed an appearance on November 13, 2003. The case was consolidated withHowland, et al. v. Mills, et al. on April 16, 2004 after that case had been claimed for a jury on November 13, 2003. On October 21, 2004, more than one year after removal, Plaintiff made a demand for a jury. Since this request the Howland action has settled and been dismissed.
II. STANDARD OF REVIEW:
The Federal Rules of Civil Procedure contemplate that a jury trial is waived unless a written demand is made not later than ten days after the service of the last pleading directed to the issue. Fed.R.Civ.P. 38. Rule 81(c) governs procedure after removal and provides three circumstances under which an untimely filed jury demand may be granted, to be discussed in detail below. See Fed.R.Civ.P. 81(c). However, Rule 39(b) also permits a district judge discretion to grant a jury trial to a party who has failed to comply with the timing requirements of Rule 38. See Fed.R.Civ.P. 39(b) ("notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues").
The application of Rules 81(c) and 39(b) therefore entails a two-step process looking first to the standard under 81(c). Where the demand fails under 81(c), the court looks to Rule 39(b) and whether the party's reason for its failure to file a timely jury demand goes beyond mere inadvertence and is sufficient to justify the relief sought. Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2d Cir. 1967).
III. DISCUSSION:
A. Federal Rule of Civil Procedure 81(c) :
Rule 81(c) provides for three circumstances under which a trial by jury may be ordered in a removed action. First, "[i]f at the time of removal all necessary pleadings have been served, a party entitled to trial by jury under Rule 38 shall be accorded it, if the party's demand therefor is served within 10 days after the petition for removal is filed if the party is the petitioner, or if not the petitioner within 10 days after service on the party of the notice of filing the petition." Fed.R.Civ.P. 81(c). Second, a "party who, prior to removal, has made an express demand for trial by jury in accordance with state law, need not make a demand after removal." Id. Third, "[i]f state law applicable in the court from which the case is removed does not require the parties to make express demands in order to claim trial by jury, they need not make demands after removal unless the court directs that they do so within a specified time if they desire to claim trial by jury." Id.
Plaintiff fails to analyze the issue under Rule 39(b), instead proceeding directly to the discretionary language of 39(b). As stated, when a case is removed to federal court, the question of a jury demand is governed first by Rule 81(c) but the discretionary language in Rule 39(b) should be read into that analysis. Higgins v. Boeing Co., 526 F.2d 1004, 1006-07 (2d Cir. 1975). Looking first to the application of the facts under 81(c), Plaintiff did not demand a jury trial until more than eleven months after removal, well outside the 10 day window contemplated by the Rule. Second, there is no record that Plaintiff made a demand for trial by jury in accordance with Connecticut law. Finally, Connecticut law mandates that a failure to request a jury shall be deemed a waiver, Conn. Gen. Stat. § 52-239b, thus rendering the last exception under Rule 81(c) inapplicable. Plaintiff's request fails under Rule 81(c).
B. Application of Rule 39(b) in the Second Circuit:
When an untimely demand does not fit squarely within the confines of Rule 81(c), Rule 39(b) grants the district court discretion to allow a trial by jury on any or all issues. Fed.R.Civ.P. 39(b). There is some variation within the Second Circuit as to how courts have applied Rule 39(b) discretion. In determining whether a late demand for a jury trial should be granted, the Second Circuit has considered whether the case is one that is traditionally tried by a jury, whether the parties have proceeded on the assumption that the matter would not be a bench trial, and whether permitting a jury trial would prejudice the rights of the adverse party. Cascone v. Ortho Pharmaceutical Corp.. 702 F2d. 389, 392 (2d Cir. 1982). This three factor test was first set forth in Higgins, 526 F.2d at 1007, and has been applied by the Second Circuit in circumstances factually distinct from the present case.
The Second Circuit has also considered whether failure to make a timely demand was the result of something beyond mere inadvertence on the part of counsel. Noonan, 375 F.2d at 70. Noting a trend among district court decisions narrowing the allowable scope of judicial discretion with respect to untimely jury demands, the court in Noonan confined the inquiry to "whether the moving party's showing beyond mere inadvertence is sufficient to justify relief." Id. (Emphasis in original). Whether the Higgins or Noonan standard governs is dependent on the application of Rule 81(c).
Plaintiff analogizes this case to Baker v. Amtrak Corporation, 163 F.R.D. 219 (S.D.N.Y. 1995) (citing Cascone, 702 F.2d at 389 and responds to the Higgins factors). Plaintiff first asserts that personal injury cases are typically tried by a jury. Plaintiff further maintains that consolidation with Howland after that case was claimed for jury creates the presumption that Defendants were moving forward with the expectation of a jury trial. Finally, Plaintiff argues that it is difficult to discern any specific prejudice to Defendants should a jury trial be granted. Pl. Mem. Opp. Mot. to Strike at 3.
Alternatively, Plaintiff asks this Court to use its 39(b) discretion "in order to achieve substantial justice." Pl. Mem. Opp. Mot. to Strike at 2. Plaintiff grounds this theory in Wright and Miller, Federal Practice and Procedure: Civil 2d, § 2234 at 183 (1994) (citing Richardson v. Henry, 902 F.2d 414 (5th Cir. 1990); FDIC v. Cafritz, 770 F. Supp. 28 (D.D.C. 1991);Waldermyer v. ITT Consumer Financial Corp., 767 F. Supp. 989 (D. Mo. 1991); and Jones-Hailey v. Corp. of Tennessee Valley Authority, 660 F. Supp. 551 (D. Tenn. 1987). This theory lacks support in the Second Circuit and is unpersuasive.
Although the Howland case has settled, Plaintiff's argument that the parties were proceeding under the belief that this case would be tried before a jury is effectively negated by Defendant's Motion to Strike the belated jury demand. Plaintiff's reliance on Baker, which in turn relies on Cascone, is misplaced. Both cases originated in New York state court which requires only that counsel file a "note of issue" requesting a jury trial with no specific timing requirement for filing the request included. Cascone, 702 F.2d at 391. Accordingly, the court found that because the New York filing statute precluded a strict application of Rule 81(c), there was some "play in the joints" for accommodating a removed party and applied the Higgins standard. Id. at 392-93. Similarly, Baker noted that the case originated in New York and applied, without discussion, the Higgins standard. 163 F.R.D. at 220-21.
Connecticut law is clear that a request for a jury trial must be made no later than ten days after the pleadings have been closed. Conn. Gen. Stat. § 52-215. Given the lack of any ambiguity regarding the proper time for filing a jury trial request either at the state court level or federal, the appropriate standard for exercising the Court's discretion is whether Plaintiff can show anything beyond mere inadvertence.Noonan, 375 F.2d at 70. Plaintiff has offered no explanation at all for waiting over a year to file her request and is not therefore entitled to the relief requested.
It is worth noting that even if the Court were to consider her argument that personal injury cases usually go to trial and that there has been no prejudice to Defendant, the Court would not grant her request absent a showing beyond inadvertence. Such a gloss on Rule 39(b) would effectively negate Connecticut's requirement that a claim for jury trial be filed within ten days of the close of pleadings and counsel could simply wait as long as he or she desired before filing a request, without consequence, so long as there was no obvious prejudice to a defendant and the type of case usually is tried before a jury. This is not an acceptable outcome.
IV. CONCLUSION:
For the reasons stated herein, Defendant's Motion to Strike Plaintiff's Demand for a Jury Trial [Doc. No. 63] is granted.
SO ORDERED.