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WESTCHESTER DAY SCHOOL v. VILLAGE OF MAMARONECK

April 1, 2005.

WESTCHESTER DAY SCHOOL, Plaintiff,
v.
VILLAGE OF MAMARONECK, THE BOARD OF APPEALS OF THE VILLAGE OF MAMARONECK, MAURO GABRIELE, GEORGE MGRDITCHIAN, PETER JACKSON, BARRY WEPRIN and CLARK NEURINGER in their official capacity as members of THE BOARD OF APPEALS OF THE VILLAGE OF MAMARONECK, and ANTONIO VOZZA in his official capacity as a former member of THE BOARD OF APPEALS OF THE VILLAGE OF MAMARONECK, Defendants.



The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge

OPINION AND ORDER

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 denied.

  BACKGROUND

  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 (Id.)

  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 3-5.)

  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[2], 38.41 at 38-354 (2d ed. 1985).

  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 ...


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