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ONE BEACON INSURANCE CO. v. OLD WILLIAMSBURG CANDLE CORP.

United States District Court, S.D. New York


June 30, 2005.

ONE BEACON INSURANCE COMPANY, Plaintiff,
v.
OLD WILLIAMSBURG CANDLE CORPORATION, et al., Defendants.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

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 http://www.nysd.uscourts.gov/Individual_Practices/Kaplan.pdf) 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.

  SO ORDERED.

20050630

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