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Sheikh v. Starr Transit Co.


January 30, 2006


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.

A. Procedural History

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 convenience of the parties and witnesses.

Under 28 U.S.C. § 1404, courts have considerable discretion in deciding such motions. The factors to be considered are: "(1) the convenience of witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded to plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based upon the totality of the circumstances." Posven, C.A. v. Liberty Mut. Ins. Co., 303 F. Supp. 2d 391, 404 (S.D.N.Y. 2004).

The party moving for a Section 1404 transfer bears the heavy burden of showing that the plaintiff's choice of forum should be disturbed. Friedland v. Holiday Inns, Inc., No. 88 Civ. 7857 (PKL), 1989 WL 101942, at *1 (S.D.N.Y. Aug. 30, 1989). The plaintiff's choice of forum is not to be disturbed unless the defendant has made a clear and convincing showing that the balance of convenience weighs heavily in favor of defendant. Linzer v. EMI Blackwood Music, 904 F. Supp. 207, 216 (S.D.N.Y. 1995). Furthermore, in most cases, the most significant factor to be considered by the Court is the convenience of party and non-party witnesses. Id.

Here, defendants argue that transferring this case to New Jersey would be in the interests of justice and most convenient to the parties and witnesses because defendant Starr Transit is located in Trenton, defendant Campbell is a resident of Pennsylvania, and the investigating officer is employed by the Atlantic City Police Department. These facts are not sufficient to justify a transfer of venue. While it is undisputed that the locus of operative facts here is New Jersey, the other factors do not favor defendants. For example, the defendants have made no showing that any evidentiary documents are located in New Jersey and, in any case, any such documents should already have been obtained through discovery.

Given the fact that plaintiffs are residents of New York, considerable weight is to be given to their choice of forum (New York City) which has already been disturbed once by removal of this case. Furthermore, the plaintiffs as well as their treating physicians are located in New York. Thus, the defendants have merely shown that a transfer of venue in this case would shift the inconvenience from one party to another, a showing which is not sufficient to support the transfer. See, e.g., Friedland, 1989 WL 101942, at *2. Finally, given that this case has been on this Court's docket for more than one year, fact discovery has already been completed, and expert discovery is soon to be completed, transfer of the case at this late stage would not be in the interests of judicial efficiency.

In their reply papers, the defendants advance arguments which appear to be jurisdictional. In sum, the defendants contend that, although Starr Transit's registration with the New York Department of State as a foreign corporation lists a Bronx address for the service of process, Starr Transit has never maintained an office there. (Defs.' Reply at 4). It is true that "because the jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction, any defect in jurisdiction or process present in the state suit may be asserted in the district court." PT United Can Co., Ltd. v. Crown Cork & Seal Co., Inc., 138 F.3d 65, 73 (2d Cir. 1998) (internal quotation marks and citations omitted). This potential concern is not relevant here, however, because any claim of lack of personal jurisdiction on the basis of insufficient contacts with New York was waived by the defendants' failure to assert that defense in their answer. See Hatch v. Tran, 567 N.Y.S.2d 72 (2d Dep't. 1991) ("An objection to personal jurisdiction is waived unless it is raised in the answer or in a preanswer motion to dismiss . . . . Since a challenge to the basis of the court's jurisdiction is distinct from a claim of defective service of process, the [defendants] were required to plead this defense with particularity."). Here, as in Hatch, the only affirmative defense asserted in the answer related to personal jurisdiction merely set forth a claim of improper service of process. (See Docket No. 1 (Notice of Removal), Ex. B (Verified Answer)). This was not adequate to preserve the defendants' apparent present claim that they lack sufficient contacts with New York. In any event, the mere fact that they lack an office in New York, even if established, would not mean that their contacts with this State are insufficient to obtain jurisdiction over them.

For these reasons, the motion to transfer venue is denied.


FRANK MAAS United States Magistrate Judge


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