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NATIONAL UNION FIRE INS. CO. v. L.E. MYERS CO. GRO

June 19, 1996

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA., Plaintiff-Counterdefendant, against THE L.E. MYERS CO. GROUP, THE L.E. MYERS CO. and LEMCO ENGINEERS, INC., Defendants-Counterplaintiffs. THE L.E. MYERS CO. GROUP, THE L.E. MYERS CO. and LEMCO ENGINEERS, INC., Third-Party Plaintiffs, -against- THE EMAR COMPANY, AMERICAN RISK MANAGEMENT, INC. and THE WALSH GROUP, Third-Party Defendants.


The opinion of the court was delivered by: KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 Defendants The L.E. Myers Group, The L.E. Myers Co. and Lemco Engineers, Inc. (collectively "Myers") move for an order striking any jury trial demand for failure to timely make such a request under Federal Rule of Civil Procedure 38(b). National Union Fire Insurance Company of Pittsburgh, PA ("National Union") cross-moves for a jury trial. For the reasons set forth below, Myers' motion is denied and National Union's cross-motion is granted.

 BACKGROUND

 National Union commenced the instant action on September 14, 1984 with the filing of its complaint in New York State Supreme Court. National Union sought a declaratory judgment that a claim against Myers for defectively designed electrical transmission towers was not within the insurance coverage provided by National Union.

 The action was removed to federal court on October 17, 1984 without a "note of issue" requesting a jury trial having been filed in state court under state law. *fn1" On October 22, 1984, Myers filed its answer as well as a counterclaim against National Union in which it sought a declaration that it was entitled to coverage, and on November 5, 1984, National Union filed its reply to Myers' counterclaim. On February 21, 1985, Myers filed a third-party complaint against its insurance brokers for damages arising out of breach of contract, breach of fiduciary duty and negligence. The brokers each answered the third-party complaint and made various cross-claims against each other and against National Union, which in turn filed counterclaims against each of the brokers. On August 29, 1985, this action was transferred to the Court's suspense docket. Until that time, no party had filed a request for a jury trial in any court.

 On February 22, 1994, the instant action was returned to the active docket, and the Court granted leave to the parties to file amended pleadings. On April 4, 1994, National Union served its First Amended Complaint, which included counts relating to coverage for the costs of defense of the underlying action, but failed to include any jury trial request. On April 19, 1994, Myers filed an answer to the Amended Complaint bearing the caption "Jury Trial Demanded."

 Myers now moves for an order to strike any jury trial demand for failure of any party to make such a demand within ten days after service of the last pleadings, pursuant to Federal Rule of Civil Procedure 38(b). National Union opposes this motion and cross-moves for a trial by jury.

 DISCUSSION

 I. Jury Trial Under Rule 38

 The Federal Rules of Civil Procedure proceed on the basic premise that a jury trial is waived unless a timely demand is filed. See Cascone v. Ortho Pharmaceutical Corp., 702 F.2d 389, 391 (2d Cir. 1983). Rule 38 requires that a written demand be served upon the adverse party no later than ten days after service of the last pleading directed to the issue. Fed. R. Civ. P. 38. The last pleading is normally an answer, or with respect to a counterclaim, a reply. Fed. R. Civ. P. 7(a), 12(a).

 Nonetheless, in the Second Circuit, amendments to pleadings revive the right to request a jury trial if the amendment involves new issues or changes the original issues. Lanza v. Drexel & Co., 479 F.2d 1277, 1310 (2d Cir. 1973) (en banc); Berisford Capital Corp. v. Syncom Corp., 650 F. Supp. 999 (S.D.N.Y. 1987). To the extent new issues are presented, the right to a jury trial extends only to new issues alleged in the amended pleadings. See Anaconda-Ericsson, Inc. v. American Dist. Tel. Co., 101 F.R.D. 13, 15 (E.D.N.Y. 1984). A new issue "means something more than the evidence offered and the legal theories pursued, although these are pertinent factors." Rosen v. Dick, 639 F.2d 82, 94 (2d Cir. 1980). The presentation of a new theory of recovery "does not constitute the presentation of a new issue on which a jury trial should be granted." Id. (quoting Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1050 (9th Cir. 1974)). Here, all answers and replies to complaints, counterclaims and cross-claims were filed no later than 1985. No party requested a jury within the ten day period after the service of the last pleading directed to any of the issues in these pleadings. Moreover, the amended pleadings filed by the parties after April 4, 1994 relate to the same underlying insurance coverage and brokers' negligence issues as the original pleadings filed in 1984 and 1985. Accordingly, the amended pleadings do not raise new areas of dispute which would entitle a party to request a jury.

 II. Jury Trial Under Rules 39(b) and 81(c)

 Despite this analysis, Rule 39(b) permits a district judge to exercise discretion and grant a jury trial despite a party's failure to timely file a ...


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