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KAHN v. GMC

October 23, 1994

LEONARD R. KAHN, Plaintiff,
v.
GENERAL MOTORS CORPORATION, Defendant.



The opinion of the court was delivered by: HAROLD BAER, JR.

 HAROLD BAER, JR., District Judge,

 This 1988 complex patent infringement and tortious interference action involving AM radio technology has been transferred to me for trial. On the eve of trial, three issues remained for decision: plaintiff's alleged waiver of his jury demand, defendant's request for a separate hearing on the issue of patent ownership, and plaintiff's motion for permission to supplement his complaint. I will address each motion in turn.

 I. JURY WAIVER

 A. Factual Background

 Defendant General Motors Corporation ("GM") contends that plaintiff Leonard R. Kahn ("Kahn") waived his right to a jury trial. Mr. Kahn denies that his waiver was effective, and even if the waiver was effective it was made subject to the condition that Judge Pierre N. Leval, to whom the case was assigned at the time, personally conduct the bench trial. In its six-year history this case has been assigned to six different judges. Kahn proposed a bench trial in a December 6, 1991 letter to Judge Leval. That letter stated:

 
the only condition the plaintiff requests is that Judge Leval personally conduct the bench trial. The plaintiff, however, assumes that by waiving his right to a jury trial (and any bias in his favor that might ensue) he will not be penalized in terms of further delay. *fn1"

 GM argues that there can be no conditional waiver. Further, GM urges that in any event Kahn's March 17, 1992 letter to Judge Leval disposes of the matter since that communication fails to mention any condition. There Kahn wrote:

 
The plaintiff originally requested a jury trial, but . . . the case has grown in size and complexity exponentially to the point that the plaintiff now believes a bench trial is preferable. *fn2"
 
. . . the plaintiff with full recognition of the advantages of "Little Guy vs. Big Guy" jury trials, respectfully request this specific court to expeditiously conduct a bench trial. *fn3"

 Kahn reaffirmed during his deposition on May 24, 1993, for the third time in three successive years, that this case was to be a bench trial.

 Mr. Kahn: . . . . As you know, I haven't asked for a jury.

 Mr. Krupka: (GM's counsel) I understand that.

 Mr. Kahn: You haven't responded to that, but I assume you want a bench trial. It would be kind of amusing that General Motors would want a ...


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