The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge
Plaintiff Westchester Day School ("WDS") commenced this action
against defendants the Village of Mamaroneck, the Zoning Board of
Appeals of the Village of Mamaroneck (the "ZBA"), and Antonio
Vozza, James Gaita, George Mgrditchian, Barry Weprin and Clark
Neuringer, in their official capacity as members of the ZBA
(collectively, the "defendants"). Plaintiff seeks relief under
the Religious Land Use and Institutionalized Persons Act of 2000,
42 U.S.C. §§ 2000cc et seq. ("RLUIPA"), alleging, inter alia,
that defendants imposed a substantial burden on the free exercise
of religion by denying its application to construct a new school
building and to renovate and improve other existing buildings on
the WDS campus.*fn1 This matter is currently before the
Court on defendants' motion for leave to make a demand for a jury
trial pursuant to FED. R. CIV. P. 38(b) or, in the alternative,
for the Court to order a jury trial pursuant to FED.R.CIV.P.
39(b). For the reasons stated hereinafter, defendants' motion is
The facts of this case are set forth extensively in our
previous opinions, familiarity with which is presumed. See
Westchester Day Sch. v. Vill. of Mamaroneck, 236 F. Supp. 2d 349
(S.D.N.Y. 2002) (Conner, J.); see also Westchester Day Sch. v.
Vill. of Mamaroneck, 280 F.Supp. 2d 230 (S.D.N.Y. 2003) (Conner,
J.) (the "2003 Order"). The facts pertinent to the instant motion
are as follows.
On August 7, 2002, WDS filed its Complaint alleging that
defendants' decision to deny WDS's application to permit the
construction of an additional building and to renovate and
improve other existing buildings on its campus violated § 2(a)(1) of
RLUIPA, 42 U.S.C. § 2000cc(a)(1). (Pl. Mem.Opp.Mot.Jury Trial at
1.) Specifically, the Complaint alleges that by denying WDS's
request to amend its special permit, defendants violated RLUIPA
by implementing a land use regulation in a manner that imposes a
substantial burden on the religious exercise of a person or
institution, without the justification of a compelling government
interest furthered in the least restrictive manner. (Id.) On
May 29, 2003, WDS filed an Amended Complaint. (Plunkett Aff. ¶
5.) On June 23, 2003, defendants filed their Answer which
included three affirmative defenses but no jury demand.*fn2
Also on June 23, 2003, WDS filed a motion for summary judgment
which this Court granted in favor of WDS. See generally
Westchester Day Sch., 280 F. Supp. 2d 230. However, on September
27, 2004, that ruling was vacated by the Second Circuit's
decision in Westchester Day Sch. v. Vill. of Mamaroneck,
386 F.3d 183 (2d Cir. 2004) (the "Second Circuit Decision") and the
case was remanded to this Court for further proceedings. On
October 22, 2004, this Court held a status conference during
which defendants requested leave to amend the Answer to assert
additional affirmative defenses. (Plunkett Aff. ¶ 12.) At the
conference, WDS initially consented to defendants' request to
amend the Answer, but withdrew their consent after defendants
indicated that they planned to file a demand for a jury trial.
(Id.) On November 5, 2004, with the Court's permission,
defendants filed an Amended Answer with six additional
affirmative defenses. The same day, defendants also filed the
present motion for leave to file a jury demand or, in the
alternative, for this Court to order a jury trial. DISCUSSION
I. Demand for Jury Trial Rule 38(b)
According to defendants, the Second Circuit Decision raised new
issues of fact that were not entirely known to them when the
original Answer was filed. (Defs. Mem. Supp. Mot. Jury Trial at
3.) Defendants contend that the Amended Answer contains
affirmative defenses based on these allegedly new issues of fact
and that they therefore have the right to seek a jury trial
pursuant to Rule 38(b) with respect thereto. (Id. at 4.) WDS
maintains that defendants' right to a jury trial was waived and
has not been revived because they fail to raise any new issues of
fact in the Amended Answer. (Pl. Mem. Supp. Mot. Jury Trial at
Rule 38 of the FED.R.CIV.P. provides in relevant part:
(b) Demand. Any party may demand a trial by jury of
any issue triable of right by a jury by serving upon
the other parties a demand therefor in writing at any
time after the commencement of the action and not
later than 10 days after the service of the last
pleading directed to such issue. . . . (d) Waiver.
The failure of a party to serve a demand as required
by . . . [subsection(b)] constitutes a waiver by him
of trial by jury.
FED.R.CIV.P. 38(b), (d).
Defendants do not dispute that they failed to serve a timely
jury demand by July 3, 2003, ten days from service of the
original Answer. Rather, defendants contend that the present jury
demand is timely because their right to a jury trial was revived
when they filed the Amended Answer on November 5, 2004. (Defs.
Mem. Supp. Mot. Jury Trial at 3-5.)
This Court recognizes that a jury demand may be made within ten
days after service of an amended pleading for new issues raised
in the amended pleading; however, it is well-established that an amendment does not revive a previously waived right to demand
a jury trial on issues already framed by the original pleadings.
State Mut. Life Assurance Co. of Am. v. Arthur Andersen & Co.,
581 F.2d 1045, 1049 (2d Cir. 1978); Lanza v. Drexel & Co.,
479 F.2d 1277, 1310 (2d Cir. 1973) (en banc); Western Geophysical
Co. of Am., Inc. v. Bolt Assocs., Inc., 440 F.2d 765, 769 (2d
Cir. 1971) (Friendly, J.); Printers II Inc. v. Prof'ls Publ'g
Inc., 596 F.Supp. 1051, 1052 (S.D.N.Y. 1984); see generally 9
C. WRIGHT, A. MILLER & F. ELLIOT, FEDERAL PRACTICE & PROCEDURE:
CIVIL § 2320, at 94-95 (1971); 5 J. MOORE, J. LUCAS & J. WICKER,
MOORE'S FEDERAL PRACTICE ¶¶ 38.39, 38.41 at 38-354 (2d ed.
Obviously, every amended pleading contains some new material.
However, it does not necessarily follow that the issues have
changed. The term "`issue' means something more than the evidence
offered and the legal theories pursued." Rosen v. Dick,
639 F.2d 82, 94 (2d Cir. 1980); see also Clorox Co. v. Stanson
Detergents, Inc., No. 84 Civ. 1236, 1985 WL 2309, at *1
(S.D.N.Y. Aug. 12, 1985) ("[N]ew issues are not created simply by
the assertion of a new legal theory. Rather, Rule 38 envisions an
amendment that raises new facts, perhaps culled during discovery,
. . . as a prerequisite to reactivation of the 10-day period
during which a party has a right to make a jury demand.")
(quoting Rosen, 639 F.2d at 94 and Anaconda-Ericsson v. Am.
Dist. Tel. Co., 101 F.R.D. 13, 15 (E.D.N.Y. 1984)). The question
is whether the amended pleading is significantly different from
the original pleading; the mere addition of extra details or new
legal arguments will not suffice. Rosen, 639 F.2d at 94-97.
The Second Circuit has stated that the word "issue" as it is
used in Rule 38 "must be read together with its other uses in the
Federal Rules of Civil Procedure." Id. at 94. For example, in
FED. R.CIV.P. 56, the standard for summary judgment "asks whether
there is any genuine issue as to any material fact." Id. "This standard clearly refers to the
disputed conclusions which can be drawn from the evidence
uncovered during discovery. It does not refer to purely legal
questions or to the evidence itself." Id. Rule 38 similarly
"suggests that the jury trial right extends only to disputed
factual conclusions." Id.
Furthermore, "[w]hen the parties are the same before and after
an amended pleading, it is difficult to show that a new issue has
been raised. Usually, the initial jury demand (or waiver) will
put the other parties on notice that a jury (or the court) will
be trying `all issues relating to [the] general area of
dispute.'" Id. at 96 (quoting Lanza, 479 F.2d at 1310).
Turning to the case at bar, careful consideration of the original
and amended pleadings leads us to conclude that the ...