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holding that the concept of a "new issue" "encompasses an inquiry as to whether the amendment changes 'the character of the suit,' or the ultimate issue for decision."
Summary of this case from Lopez v. MNAF Pizzeria, Inc.Opinion
No. 03 Civ. 8756 (RJH) (RLE).
March 7, 2005
OPINION
I. INTRODUCTION
Before the Court is pro se plaintiffs' motion to request a jury trial, pursuant to Rule 38(b), Federal Rules of Civil Procedure. Pro se defendant Weil, Gotshal Manges LLP ("Weil") opposes plaintiffs' motion on the grounds that plaintiffs waived their right to a jury trial because their demand is untimely. See Defendant's Memorandum of Law in Opposition to Plaintiffs' Motion for Jury Trial Demand ("Def. Mem.") at 1; FED.R.CIV.P. 38(d). For the following reasons, plaintiffs' motion is DENIED.
II. BACKGROUND
Plaintiff George E. Lastra ("G. Lastra"), by his attorney, Sanford A. Kutner ("Kutner"), initiated this action on November 5, 2003. On January 21, 2004, G. Lastra served Weil with a summons and complaint alleging discrimination against G. Lastra in violation of Title VII of the Civil Rights Act of 1964. Affidavit of Adam K. Grant in Support of Defendant's Opposition to Plaintiffs' Motion of Jury Trial Demand ("Grant Aff.") at ¶ 2. No demand for a jury trial was made. Id. On February 18, 2004, an amended complaint, adding Christopher Lastra ("C. Lastra") as a plaintiff, and also alleging retaliation under Title VII of the Civil Rights Act of 1964, was served on Weil. Grant Aff. at ¶ 3, Exh. A. As in the initial complaint, no demand for jury trial was made. Id. Neither the amended complaint nor proof of service was filed with the Clerk of the Court. Weil served a copy of its answer upon plaintiffs on March 5, 2004, and filed the answer with the Court on March 8, 2004, respectively. Grant Aff. at ¶ 4, Exh. B.On March 15, 2004, the parties, through their counsel, signed a joint pretrial report pursuant to Federal Rules of Civil Procedure 26(f), which was so-ordered by Judge Howell on March 18, 2004. The report expressly states "Jury Trial not Requested." Grant Aff. at ¶ 5, Exh. C. at ¶ 2(g)(i). By letter dated August 5, 2004, plaintiffs informed the Court that Kutner would no longer be representing them in this action, and requested a jury trial in this action. Plaintiffs' Reply Memorandum of Law to Defendant's Memorandum of Law in Opposition to Plaintiffs' Notice of Motion for Jury Trial Demand ("Pl. Reply Mem."), Exh. A. On August 24, 2004, Kutner moved to be relieved as counsel of record, and on September 24, 2004, plaintiffs filed a notice that they would be appearing pro se. The Court granted Kutner's motion on September 27, 2004, and ordered plaintiffs to file their amended complaint, which had not previously been filed, within ten days of the order. On October 6, 2004, plaintiffs filed and served an amended complaint, which was substantially identical to the one previously served on defendant on February 18, 2004. Defendant re-served and re-filed its answer on October 20, 2004.
Plaintiffs filed a notice of motion for jury trial demand on December 3, 2004, and on December 20, 2004, G. Lastra filed an affirmation in support of plaintiffs' motion for jury trial.
II. DISCUSSION
A. Federal Rules of Civil Procedure 38(b) and 39(b)Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, parties to an action must demand a jury trial within ten (10) days of service of "the last pleading directed to such issue." FED.R.CIV.P. 38(b). The Rule "embodies the equitable principles of reasonable reliance . . . and adequate notice . . .," Rosen v. Dick, 639 F.2d 82, 94 (2d Cir. 1980), and thereby ensures that the parties and the court know early on in the litigation who the factfinder will be. See Beresford Capital Corp. v. Syncom Corp., 650 F. Supp. 999, 1001(S.D.N.Y. 1987). A party who fails to serve and make such demand within the designated time period waives his right to a jury trial as to all issues in the general area of dispute. FED.R.CIV.P. 38(d); Cascone v. Ortho Pharmaceutical Corp., 702 F.2d 389, 391 (2d Cir. 1983); Lanza v. Drexel Co., 479 F. 2d 1277, 1310 (2d Cir. 1973) ( en banc ). "A [w]aiver by failure to make a timely demand is complete even though it was inadvertent and unintended and regardless of the explanation or excuse." Washington v. New York City Bd. of Estimate, 709 F.2d 792, 798 (2d Cir. 1983) (citation omitted). However, the right to demand a jury trial is revived where the original complaint is subsequently amended, but only where new issues are presented. Lanza, 479 F. 2d at 1310. The Second Circuit has interpreted the concept of new issues to mean "something more than the evidence offered and the legal theories pursued, although these are the pertinent factors." Rosen, 639 F.2d at 94. The concept encompasses an inquiry as to whether the amendment changes "the character of the suit," or the ultimate issue for decision. Id. at 96; see also Virgin Air, Inc. v. Virgin Atlantic Airways, 144 F.R.D. 56, 58 (S.D.N.Y. 1993) (a "new issue" requires a factual determination to be made by the jury that falls outside the matrix of fact already covered in the pleadings," and "addition of a new party does not revive a jury trial demand."); Printers II, Inc. v. Professionals Publishing, Inc., 596 F.Supp. 1051, 1052 (S.D.N.Y. 1984) (service of an amended answer that does not introduce new issues does not extend the time for serving a jury demand, and failure to make such demand by the prescribed deadline constitutes a waiver). There is no dispute that a jury trial demand was not filed in this action as required by Rule 38.
When a party fails to demand a jury trial pursuant to Rule 38, the court nonetheless has discretion to order a jury trial. FED.R.CIV.P. 39(b) Exercise of this discretion, however, is strictly limited to where there has been a "showing beyond mere inadvertence." Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2d Cir. 1967) (holding that mere inadvertence in failing to make a timely jury demand is not sufficient for the court to exercise its discretion under Rule 39(b)). This limitation applies even to pro se plaintiffs. Washington, 709 F.2d at 798 ("unintentional or unknowing failure of all litigants to comply with Rule 38 are dealt with equally."); Jones v. Hirschfeld, 2003 WL 21415323, at *6 n. 21 (S.D.N.Y. June 19, 2003) (noting that defendant in the action was not pro se at the time he waived his jury trial right and even if he were, the liberal standard afforded pro se litigants does not extend to requests for jury trial, although notification of waiver is necessary to them).
In the instant case, plaintiffs have not shown that the failure to demand a timely jury trial was the result of more than mere inadvertence. On the contrary, the joint pretrial report, signed by the parties and so-ordered by the Court, reflects an intentional decision by the parties not to make such demand, despite plaintiffs' claims that their attorney signed the report and waived their right to jury trial without their consent. Moreover, plaintiffs' amended complaint filed on October 6, 2004, is substantially identical to the amended complaint served upon defendant on February 18, 2004. Thus, plaintiffs did not revive their right to a jury trial, which was waived in March 2004.
B. Federal Rule of Civil Procedure 6(b)(2)
Under Rule 6(b)(2), a Court has discretion to enlarge the time in which a party is required to act, upon a showing of excusable neglect. FED.R.CIV.P. 6(b)(2). The Second Circuit has found that excusable neglect within the meaning of Rule 6(b)(2) may apply in the context of a plaintiff's failure to timely demand a jury trial. Raymond v. IBM Corp., 148 F.3d 63 (2d Cir. 1998). In Raymond, the Court held that "mere inadvertence, without more, can in some circumstances, be enough to constitute 'excusable neglect' justifying relief under Rule 6(b)(2)," and affirmed the district court's decision to grant plaintiff's late jury demand where untimeliness was the result of mere inadvertence and submissions for summary judgment by both parties, as well as the court's summary judgment opinion, suggested the parties' assumption that a jury would ultimately hear the case. Id. at 66-67 (emphasis in original). The requirement that any neglect be excusable serves as a necessary limitation to deter parties from freely ignoring deadlines with the expectation of receiving relief under this rule. Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993); see also Landau v. Nat'l R.R. Passenger Corp., 97 F.R.D. 723, 725 (S.D.N.Y. 1983) ("There is much to be said in favor of rigid adherence to deadlines. If such rules are too lightly set aside, they fail to serve their intended purposes. A line down the middle of a highway must be clearly and certainly identifiable."). [T]he inquiry is . . . 'at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission,' including prejudice to the other party, the reason for the delay, its duration, and whether the movant acted in good faith." Raymond, 148 F.3d at 66 ( quoting Pioneer, 507 U.S. at 395 (1993)).
In this action, plaintiffs ask the Court to find excusable neglect because their former attorney failed to follow their orders to make a demand for jury trial. Affirmation in Support of Notice of Motion for Jury Trial Demand ("Pl. Aff.") at 1-3. They claim that Kutner waived plaintiffs' right to a jury trial without their consent, and therefore, they should not be prejudiced for these "unforseen, uncontrollable circumstances beyond [their] knowledge, consent and/or control." Pl. Reply Mem. at 4 (emphasis in original). The Court finds, however, that plaintiffs have not demonstrated excusable neglect to support their motion to file an untimely demand for jury trial.
Plaintiffs insist they told Kutner on "numerous" occasions, from the initiation of this action through the date they dismissed him as their attorney, that they wanted a jury trial, and that Kutner assured them a demand for jury trial had been made. Affirmation in Support of Plaintiffs' Reply Memorandum of Law to Defendant's Memorandum of Law in Opposition to Notice of Motion for Jury Trial Demand ("Pl. Reply Aff.") at ¶¶ 2, 4; Pl. Reply Mem. at 2. In addition, plaintiffs claim defendant and Kutner colluded in waiving their jury trial right because defendant drafted the joint pretrial report, which expressly states that the parties do not request a jury trial. Pl. Reply Aff. at ¶ 4. Finally, plaintiffs allege that the Court advised them in September and November 2004 that their right to jury trial had not been waived. None of plaintiffs' contentions support a finding of excusable neglect for purposes of Rule 6(b)(2).
First, as evidence of their "numerous" communications to Kutner of their "urgency and concern" about a jury trial, plaintiffs' submit merely two (2) e-mails they sent to him in July 2004, five months after the deadline for to demand a jury trial had passed. Affirmation in Support of Notice of Motion for Jury Trial Demand ("Pl. Aff."), Exh. A. Moreover, plaintiffs' contention that they repeatedly communicated to Kutner their desire to have a jury trial suggests that plaintiffs did not believe that a jury trial had ever been requested.
Second, plaintiffs' allegation that Kutner colluded with defendant to waive plaintiffs' jury trial right because defendant drafted the joint pretrial report does not constitute fraud or violation of some fiduciary duty by an attorney to his client. It is not uncommon for one party to draft a document such as pretrial order for both parties' signature.
Finally, the Court did not advise plaintiffs that their right to a jury trial had not been waived.
Plaintiffs' contentions and evidence neither demonstrate extraordinary circumstances that would excuse them from their attorney's actions, nor do they constitute excusable neglect for purposes of Rule 6(b)(2). Although, as plaintiffs point out, defendant has made no particular showing that plaintiffs acted in bad faith in making the late jury demand, nor has it argued that it will be prejudiced by the delay, see Pl. Aff. at 4, these factors do not excuse plaintiffs' failure to demonstrate excusable neglect. In this action, plaintiffs were represented by counsel when a jury trial should have been demanded pursuant to Rule 38, and their counsel signed a joint pretrial order specifically rejecting a jury trial. Cf. Ptsazek v. YMCA Retirement Fund, 2004 WL 1900332, at *2-3 (S.D.N.Y. Aug. 24, 2004) (finding excusable neglect where plaintiff, appearing pro se at the time she initiated her action, inadvertently failed to demand a jury trial). Thus, even plaintiffs' request for a jury trial by letter to the Court on August 5, 2004, was untimely and unexcused for late filing. A party voluntarily chooses its attorney, and therefore, may not avoid that consequences of that freely selected agent's acts or omissions. Carter v. United States, 717 F. Supp. 188, 190 n. 2 (S.D.N.Y. 1989). Absent extraordinary circumstances, a client assumes the risk of his attorney's actions and is bound even by the consequences of his attorney's negligence. Chira v. Lockheed Aircraft, Corp., 634 F.2d 664, 666-67 (2d Cir. 1980); Gadsden v. Jones Lang Lasalle Americas, Inc., 210 F. Supp. 2d 430, 436-37 (S.D.N.Y. 2002). Claims by a litigant that he should be excused from his attorney's actions because of alleged fraudulent conduct and disobeyance of the litigant's orders may give rise to a claim for malpractice, but does not constitute an extraordinary circumstance or excusable neglect.
III. CONCLUSION
Upon consideration of the entirety of the circumstances and the equities in this matter. plaintiffs' motion is DENIED.