Ross v. Bernhard

7 Citing cases

  1. Ross v. Bernhard

    396 U.S. 531 (1970)   Cited 1,014 times   2 Legal Analyses
    Holding that the derivative nature of the plaintiffs' shareholder suit was not relevant to the question of whether a jury trial attached to their cause of action under the Seventh Amendment and observing that the same is true of a party's status as an intervenor

    The right to trial by jury preserved by the Seventh Amendment extends to a stockholder's derivative suit with respect to those issues as to which the corporation, had it been suing in its own right, would have been entitled to a jury trial. 403 F.2d 909, reversed. William E. Haudek argued the cause for petitioners.

  2. Dasho v. Susquehanna Corporation

    461 F.2d 11 (7th Cir. 1972)   Cited 59 times
    In Dasho v. Susquehanna Corp., 461 F.2d 11, 21 (7th Cir.), cert. denied, 408 U.S. 925, 92 S.Ct. 2496, 33 L.Ed.2d 336 (1972) we held that a jury demand made by plaintiffs in their responsive pleading filed twenty-nine days late was timely.

    It merely resolved a conflict in the circuits consistently with the Court's interpretation of prior law. Ross v. Bernhard, 403 F.2d 900 (2nd Cir. 1968), but see Smith, C.J., dissenting at p. 915. DePinto v. Provident Security Life Ins. Co., 323 F.2d 826, cert. denied 376 U.S. 950, 84 S.Ct. 969, 11 L.Ed.2d 970.

  3. In re Friedberg

    119 B.R. 433 (S.D.N.Y. 1990)   Cited 10 times

    The Second Circuit has held that review of interlocutory orders striking a jury demand is appropriate in that it serves to avoid an unnecessary trial. See Ruggiero v. Compania Peruana de Vapores, 639 F.2d 872, 873 (2d Cir. 1981) (§ 1292(b)); Rosen v. Dick, 639 F.2d 82, 86 (2d Cir. 1980) (same); Ross v. Bernhard, 403 F.2d 909, 910 (2d Cir. 1968) (same), rev'd on other grounds, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); cf. Shore v. Parklane Hosiery Co., 565 F.2d 815, 818 (2d Cir. 1977), aff'd, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). But see Howard v. Parisian, Inc., 807 F.2d 1560, 1566 (11th Cir. 1987).

  4. Zenith Radio Corp. v. Matsushita Elec. Indus. Co.

    478 F. Supp. 889 (E.D. Pa. 1979)   Cited 31 times

    The district court found that the issues in the case were not too complicated for a jury, while the court of appeals expressed its doubts that juries were competent to try derivative suits "because of the exceedingly complex nature of many of these actions," but considered it irrelevant because "the Seventh Amendment does not ask that we assess the suitability of a given type of litigation for jury trial." See Ross v. Bernhard, 275 F. Supp. 569, 570 (S.D.N.Y. 1967), rev'd on other grounds, 403 F.2d 909, 915 (2d Cir. 1968), rev'd on other grounds, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). Opposing the petition for certiorari, the respondents contended that the case was unsuitable for a jury because "a precise and obviously difficult measurement of claimed disadvantage" to the corporation would be required for "each of many thousands of transactions."

  5. Marr v. Rife

    363 F. Supp. 1362 (S.D. Ohio 1973)   Cited 2 times

    In determining whether a right to a jury trial exists in any given action, the basic inquiry to be made is whether such action, or more accurately, the particular claim in question, is historically one that could be brought at law. See, e. g., Ross v. Bernhard, 403 F.2d 909 (2d Cir. 1968), rev'd on other grounds, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Wirtz v. District Council No. 21, BPDP, 211 F. Supp. 253 (D.C.Pa. 1962); Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Such inquiry requires in turn a determination first that the claim in question is "legal" rather than "equitable;" second, that such claim is triable to juries given their "practical abilities and limitations;" and third, that the parties would have been entitled to a jury trial upon such issue at the time of State ratification of the Seventh Amendment in 1791.

  6. Sobel v. Hertz, Warner Co.

    338 F. Supp. 287 (S.D.N.Y. 1971)   Cited 2 times

    Moreover, as the respondent indicates, the Court's ruling possibly may have widespread ramifications for the conduct of arbitration generally, and hence it may be in the interest of justice to present the Court of Appeals with an opportunity to consider and answer the questions raised at the moment in the litigation when they may be most clearly framed. The Court of Appeals has indicated that the unsettled nature of the law dealt with in an interlocutory decision may be a factor in its decision to accept an interlocutory appeal, Goldlawr, Inc. v. Heiman, 273 F.2d 729, 731 (2d Cir. 1959), certification accepted and appeal determined, 288 F.2d 579 (2d Cir. 1961), rev'd on other grounds, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); Ross v. Bernhard, 403 F.2d 909, 910 (2d Cir. 1970), rev'd on other grounds, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) (certification granted on issue of right to jury trial in stockholders' derivative action because "there is a difference of views in the district court on this question.") Accordingly, the Court has determined to certify that its opinion of November 17 involves a controlling question of law as to which there is substantial ground for difference of opinion, namely whether an arbitration award in a case involving federal securities law standards which fails to provide some indication of the basis of the arbitration panel's decision may be set aside and resubmitted to the arbitration panel pursuant to 9 U.S.C. § 10(d) and (e), and that an immediate appeal from the decision may materially advance the ultimate termination of this litigation.

  7. Dixon v. Northwestern National Bank of Minneapolis

    297 F. Supp. 485 (D. Minn. 1969)   Cited 24 times
    In Dixon v. Northwestern Nat'l Bank of Minneapolis, 297 F.Supp. 485 (D.Minn. 1969), and more authoritatively in Jefferson, 700 F.2d at 1149, the courts invoked the exception derived from section 198 of the Restatement (Second) of Trusts which provides that where "a trustee is removed and a new trustee is appointed, the new trustee can maintain an action at law against him to recover the amount misappropriated, since he is under a duty to pay the money immediately and unconditionally to the new trustee."

    Despite the merger of law and equity accomplished by the Federal Rules, the right to a jury trial still applies only to actions which historically could have been brought at law. See Ross v. Bernhard, 403 F.2d 909 (2nd Cir. 1968); Ettelson v. Metropolitan Life Ins. Co., 137 F.2d 62 (2nd Cir. 1943), cert. denied, 320 U.S. 777, 64 S.Ct. 92, 88 L.Ed. 467 (1943); and 5 Moore, Federal Practice ¶ 38.08 [5] at 70 et seq. In addition, the issue of the right to a jury trial in federal diversity actions is to be determined as a matter of federal law.