United States District Court, S.D. New York
June 30, 2005.
ONE BEACON INSURANCE COMPANY, Plaintiff,
OLD WILLIAMSBURG CANDLE CORPORATION, et al., Defendants.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
No jury demand was filed in this case, which resulted in waiver
of any right to trial by jury. Fed.R.Civ.P. 38(d). The joint
pretrial order, dated November 29, 2004, nevertheless recites
that defendant believes that there are issues as to damages that
should be tried to a jury.
Defendant, having had its waiver called to its attention during
the preparation of the pretrial order process, could have moved
for a jury trial pursuant to Rule 39(b) or for an extension of
time, pursuant to Rule 6(b)(2), within which to demand a jury.
See, e.g., Raymond v. International Business Machines Corp.,
148 F.3d 63, 65-66 (2d Cir. 1998). It failed to do either.
Indeed, it never has explained why no jury demand was made. The
failure may have been deliberate, in which case relief would be
inappropriate under either rule. It may have been merely
inadvertent, in which case relief under Rule 39(b) would have
been foreclosed. Id. at 66 (citing Noonan v. Cunard S.S. Co.,
375 F.2d 69 (2d Cir. 1967)). And while a merely inadvertent
failure to demand a jury effectively might have been excused
under Rule 6(b)(2), see Raymond, 148 F.3d at 66-67, it is
difficult to see how the failure to seek relief since November
2004, the point beyond which defendant indisputably knew of the
lack of a jury demand, could be described as inadvertent. In the
circumstances, the case will be tried non-jury.
The Court invites the attention of counsel to its individual
practices (available at
and particularly to the portions relating to the preparation of
witness statements and exhibits.
Plaintiff's witness statements and exhibits shall be served and
submitted to chambers on or before July 11, 2005. On or before
July 18, 2005, defendant shall (a) notify plaintiff and the Court
which of plaintiff's witnesses it wishes to cross examine and (b)
serve and submit to chambers its witness statements and exhibits.
On or before July 21, 2005, plaintiff shall (a) notify defendant
and the Court which of defendant's witnesses it wishes to cross
examine and whether it wishes to present rebuttal evidence, and
(b) serve and submit to chambers witness statements for its
rebuttal witnesses. Following receipt of these materials, the
Court will set a time, if needed, to hear any oral testimony.
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