The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge
On November 29, 2005, I held a telephone conference in this matter, during which, for the reasons stated below, I denied defendants' motion to quash the plaintiffs' jury demand. During the same conference, I also reserved decision on the defendants' motion to transfer venue. For the reasons stated below, that motion is also denied.
Plaintiffs filed this suit in Supreme Court, Bronx County, on September 10, 2004. Defendants Starr Transit Co. and Joseph Paul Campbell filed their answer on January 12, 2005. Thereafter, on January 19, 2005, the defendants removed the case to this Court. (Docket No. 1).
On July 1, 2005, the plaintiffs filed a demand for trial by jury. (Docket No. 6). On October 21, 2005, the defendants filed their motion to quash the plaintiffs' jury demand as untimely, or, in the alternative, to transfer venue. (Docket No. 14). On November 21, 2005, the plaintiffs filed their opposition papers, and on December 5, 2005, the defendants filed reply papers. (Docket Nos. 19-21).
B. Motion to Quash Jury Demand
Fed. R. Civ. P. 81(c) governs the timing of jury demands in cases removed from state court. Cascone v. Ortho Pharmaceutical Corp., 702 F.2d 389, 391 (2d Cir. 1983). When all the necessary pleadings have been served prior to removal, the non-removing party seeking a jury trial has ten days following service of the notice of removal to file a jury demand. See Fed. R. Civ. P. 81(c). The Second Circuit has looked to New York law to determine the flexibility that district courts should be afforded to grant untimely jury demands. See Higgins v. The Boeing Co., 526 F.2d 1004, 1007 (2d Cir. 1975). In Higgins, the Court read into Rule 81(c) the discretion given to New York courts by C.P.L.R. § 4102(e), which allows a trial court to "relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result." Higgins, 526 F.2d at 1007 (quoting N.Y.C.P.L.R. § 4102(e)).
Pursuant to Higgins and its progeny, a district court has considerable flexibility in ruling on an otherwise untimely demand for a jury trial. There are several factors that the Court must weigh in exercising its discretion: "(1) whether the action is typically the type of case tried to a jury; (2) whether the parties have proceeded on the assumption that the case would be tried before a jury; and (3) whether the party opposing the jury request would be unduly prejudiced if the action were tried before a jury." Reliance Electric Co. v. Exxon Capital Corp., 932 F. Supp. 101, 103 (S.D.N.Y. 1996). Furthermore, to defeat a belated jury demand, the prejudice alleged must result from the untimeliness of the jury demand itself, not from the mere possibility of a jury trial. Id.
Here, two of the three factors weigh heavily in favor of granting the plaintiffs' application, while the remaining one slightly favors the defendants. First, it is undisputed that an action for damages for personal injury is one that has traditionally been tried before a jury. This factor thus weighs heavily in plaintiffs' favor.
The second factor weighs slightly in favor of the defendants because the plaintiffs first made their jury demand on July 1, 2005. The defendants therefore arguably proceeded under the impression that the trial in this case would be a bench trial for approximately five months. On the other hand, given the nature of the action, there is no indication that the plaintiffs expected that the trial would be anything but a jury trial. Instead, their failure to act more promptly appears to have resulted from their lack of familiarity with federal practice.
The third factor is decisive because the defendants have not shown that they have been unduly prejudiced by the late jury demand. The defendants' only claim of prejudice is their argument that if plaintiffs had made their demand for a jury trial at the time the case was removed to federal court, they would have moved for the case to be transferred to the District of New Jersey to be tried by a New Jersey jury, which motion they are making at this time. This is not a sufficient showing of prejudice since, as detailed below, I am denying that motion and likely would have done so had it been made at an earlier time.
Thus, the Higgins factors support this Court's exercise of discretion in favor of plaintiffs. The defendants' motion to quash the plaintiffs' jury demand therefore is denied.
C. Motion to Transfer Venue
In the alternative, the defendants have moved to transfer this case to the District of New Jersey, Camden Division, in the interests of justice and for the ...