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Cascone v. Ortho Pharmaceutical Corp.

March 10, 1983

LISETTE CASCONE, APPELLEE,
v.
ORTHO PHARMACEUTICAL CORPORATION, APPELLANT.



Appeal pursuant to 28 U.S.C. § 1292(b) from an order of the district court granting plaintiff's petition for permission to file an untimely demand for a jury trial. Affirmed.

Author: Weis

Before:

OAKES, PRATT, Circuit Judges and Weis, Circuit Judge.*fn*

WEIS, Circuit Judge:

In this removed diversity case, plaintiff did not file a demand for a jury trial within the time designated in the Federal Rules of Civil Procedure. The district judge, describing the circumstances as a "trap for the unware," found the "mere inadvertence stricture" inapplicable and granted the plaintiff's untimely request. We affirm.

Plaintiff filed this personal injury suit in the New York Supreme Court. On December 9, 1980, defendant removed the case to the United States District Court for the Southern District of New York. In conformance with the stipulation of the parties, the defendant's answer was filed on January 12, 1981. An amended answer followed on March 13, 1981.

No demand for a jury trial was filed by either party prior to a pretrial conference on April 12, 1982. Seemingly unaware that the federal rules require a written request within a specified time, plaintiff's counsel was surprised when he learned from the magistrate conducting the conference that this case was to be a bench trial. On the following day, plaintiff presented a petition for leave to file a jury demand out of time. The district court granted the petition.

The district court noted that plaintiff's counsel had "inadvertently" failed to file a jury trial notice because he was under the impression that he could do so at any stage of the proceeding, as is the practice in the New York state courts. The district judge recognized that in Noonan v. Cunard Steamship Co., 375 F.2d 69 (2d Cir. 1967), this court held mere inadvertence of counsel was not an adequate basis for allowing an untimely filing of a jury trial notice. However, he also observed that in Higgins v. Boeing Co., 526 F.2d 1004 (2d Cir. 1975), discretionary relief had been permitted in circumstances similar to those in the case at bar. Believing that Noonan had been substantially weakened by Higgins as well as by the passage of time, and finding no prejudice to defendant, the judge permitted plaintiff to "file an untimely jury demand."

The court then granted permission to appeal pursuant to 28 U.S.C. § 1292(b), certifying the following three questions:

"1. Did the District Court have power to issue the order of June 17, 1982?

2. Did the District Court abuse its discretion in issuing the Order of June 17, 1982?

3. Where a civil action was removed by defendant from state to federal court because of diversity, prior to service of an answer to the complaint, and plaintiff thereafter twice failed (after the first, and then after amended, answer) to file a timely jury demand pursuant to Fed. R. Civ. P. 38(b) solely because of her attorney's "inadvertence" and "mistaken impression that a jury demand could be filed at any stage of the proceeding," did the District Court err in permitting plaintiff, pursuant to Fed. R. Civ. P. 39(b) or Rule 81(c), to file a jury demand 15 months after the date it was due, at a time when the case was ready for trial?"

Defendant appeals, contending that Noonan set out the limited area of discretion available to the district judge and therefore the cause should proceed nonjury. Plaintiff relies on Higgins to support an enlarged scope of discretion when the case is one removed to federal court.

The Federal Rules of Civil Procedure proceed on the basic premise that a jury trial is waived unless a timely demand is filed. Rule 38, applicable generally to cases in the federal courts, requires the written demand to be served upon the adverse party no later than ten days after service of the last pleading directed to the issue. Rule 39(b) permits a district judge to exercise his ...


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