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ESPINOSA v. VAN DORN PLASTIC MACH. CO.

February 17, 1993

Zanaida Espinosa and Alfredo Espinosa, Plaintiffs,
v.
Van Dorn Plastic Machinery Company, Division of Van Dorn Company, Defendants; Van Dorn Company, Third Party Plaintiff, v. Albest Metal Stamping Company, Third Party Defendant



The opinion of the court was delivered by: LORETTA A. PRESKA

ORDER

 LORETTA A. PRESKA, U.S.D.J.

 Defendant/Third Party plaintiff, Van Dorn Company ("Van Dorn") has moved, by letter brief, to have the third party action tried by a jury on the basis that the jury demand in the main action controls trial by jury on the third party complaint.

 Facts

 Plaintiffs, Zanaida and Alfredo Espinosa commenced a products liability action against Van Dorn in New York State Court. Pursuant to 28 U.S.C. § 1332, Van Dorn removed this case to federal court. Following removal, plaintiff filed a jury demand. Van Dorn then answered the complaint and subsequently filed a third-party action against Albest Metal Stamping Company ("Albest") for indemnification and contribution. Van Dorn failed to file a jury demand with the third-party complaint.

 The Federal Rules of Civil Procedure "proceed on the basis that a jury trial is waived unless a timely demand is filed." Cascone v. Ortho Pharmaceutical Corp., 702 F.2d 389, 391 (2d Cir. 1983). Rule 30 requires that a written demand be served on an adverse party no later then ten days after service of the last pleading directed to the issue. Fed. R. Civ. P. 38(b). A district judge is permitted to exercise his or her discretion and grant a jury trial despite the failure of a party to comply with Rule 38. Fed. R. Civ. P. 39(b).

 It is Van Dorn's contention that the jury demand made by Espinosa encompasses Van Dorn's third-party complaint against Albest.

 
Once a proper jury demand is made, all other parties to the action affected by the demand may rely on it with respect to the issues that it embraces. But, "reliance is limited to all other parties in the action who are affected by the demand and the demand itself is effective only as to all the issues that concern the demanding party."

 Davidson Pipe Company, Inc. v. Laventhol & Horwath, 125 F.R.D. 363 (S.D.N.Y. 1989), quoting, Rosen v. Dick, 639 F.2d 82, 91 (2d Cir. 1980). Whether reliance on another party's jury demand is effective depends on whether the third-party complaint raises additional issues. See id. at 367. When making such a determination the Second Circuit has relied upon an illustration provided by Professor Moore:

 
If the demand does not pertain to certain issues then one of the parties concerned with those issues should make a demand therefor. Thus assume that A sues X; X answers and also files a third-party complaint against Y. If A makes a timely general demand the demand embraces all the issues between A and X, and X may rely thereon and need not make a demand for those issues. It is rather strained, however, to say that A's general demand embraces the third-party issues between X and Y, with which A is not concerned. And it would seem that either x or Y should make a timely demand as to the third-party issues if a jury trial is desired as to those issues.

 Rosen v. Dick, 639 F.2d at 92, quoting, 5 Moore's Federal practice P 38.45. A jury demand by plaintiff, in an underlying action, may encompass issues of tort liability of codefendants without embracing the issues of contribution between joint tortfeasors. In re N-500L Cases, 691 F.2d 15, 21 (1st Cir. 1982). Indeed, it has been held in this district that:

 
The fact that the issues share some factual components is not sufficient for them to be deemed the 'same issue' for purposes of a jury demand. A single set of facts often gives rise to related claims of liability and contribution, yet these claims encompass different constellations of issues.

 Davidson Pipe Company, Inc. v. Laventhol & Horwath, 125 F.R.D. at 367.

 Van Dorn's reliance on Espinosa's jury demand was misplaced. Espinosa's jury demand covers all issues relating to Van Dorn's potential liability for the manufacture and sale of the allegedly defective machine. Any issues of indemnification and contribution that exist ...


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