The opinion of the court was delivered by: Gerard E. Lynch, District Judge
In this action for damages arising out of an alleged breach of contract, defendant Tyco International (US), Inc. ("Tyco") moves pursuant to Fed. R. Civ. P. 39(b) for an order that the case is to be tried by jury, notwithstanding its prior waiver of a jury trial. The motion will be denied.
Plaintiff Richard D. Power brought this action on August 14, 2002, claiming defendant breached an agreement relating to Power's bonus compensation and severance package. On September 5, 2002, Tyco apparently served and attempted to file a demand for a jury trial. (Johnson Decl. Ex. D.) The demand, however, was never entered on the Court's docket.*fn1 On October 8, 2002, following a conference with counsel, the Court entered a case management plan ("CMP") specifying, among other things, that the case was to be tried by jury. Shortly thereafter, Tyco replaced its counsel and retained its present lawyers.
In December 2002, however, proceedings in this case were stayed on motion of the District Attorney of New York County, pending the resolution of criminal proceedings against L. Dennis Kozlowski and Mark Swartz, respectively Tyco's former CEO and CFO. The case remained dormant until June 2005, following the convictions of Kozlowski and Swartz.
On August 8, 2005, following the lifting of the stay, the Court entered a revised CMP, as jointly proposed by the parties. This CMP, however, specified that the case was not to be tried by jury.
Tyco asserts, without contradiction, that the proposed CMP was initially drafted by plaintiff's counsel. However, the proposal was not slipped past unsuspecting attorneys for Tyco. Plaintiff's attorney specifically asked Tyco's counsel whether Tyco had demanded a jury trial. Upon reviewing the docket and finding that it reflected no jury demand, Tyco's attorneys concluded that prior counsel had failed to demand a jury, and thereby had waived its right to a jury trial. Evidently, counsel either did not notice or did not consider the effect of the October 2002 CMP, and its provision for a jury trial, which was specifically noted on the docket. Nor did Tyco move at that time pursuant to Rule 39(b) for relief from what it believed to have been a waiver. Instead, Tyco simply agreed to submit to the Court a proposed order, which the Court adopted, calling for a bench trial.
Some six months later, Tyco's attorneys discovered the undocketed jury trial demand. Tyco indicated to plaintiff its belief that this newly uncovered demand required that the case be tried by jury; plaintiff disagreed. The parties then submitted to the Court by letter a dispute about the proper interpretation of these events.
On March 22, 2006, this Court entered an order ruling that the August 2005 CMP "controls this litigation" and that by agreeing to the CMP, which states that this case is not to be tried by a jury, Tyco waived its right to a jury trial. The Court reasoned that:
The issue here . . . is not whether the September 5, 2002, jury demand was effective when it was initially filed, but rather whether Tyco's subsequent stipulation in the CMP that this case is not to be tried by a jury properly withdrew that demand. Fed. R. Civ. P. 39(a) states that if a party demands a jury trial, the trial "shall be by jury, unless . . . the parties or their attorneys of record, by written stipulation filed with the court . . . , consent to trial by the court sitting without a jury." Tyco claims that it "has never expressly withdrawn its demand for a jury trial, nor stipulated to a waiver," because until recently Tyco was not aware that it had previously filed a jury demand. Tyco admits that it consented to the CMP, which states that this case will be tried by the Court. However, Tyco claims that its consent was not "knowing or voluntar[y]" because it was "based on its counsel's mistaken belief -- based on both parties' review of the docket -- that Tyco's previous counsel had not filed a jury demand." Tyco asserts that if the docket had reflected the prior jury demand, it would not have consented to the CMP. . . . Tyco consented to the CMP, including the provision that the case is not to be tried by a jury, and that consent is not defective simply because Tyco mistakenly believed that no prior jury demand had been filed. If Tyco did not want to consent to a bench trial in the CMP, it could have moved for a jury trial pursuant to Fed. R. Civ. P. 39(b), which gives the Court discretion to order a trial by jury even when a proper demand has not been filed. Alternatively, Tyco could have attempted to hold plaintiff to the terms of the initial CMP, dated October 8, 2002, which was properly docketed and stated that the case was to be tried by a jury. However, Tyco did neither of these things. Instead, Tyco consented to trial by the Court sitting without a jury, and under Fed. R. Civ. P. 39(a), that consent, together with plaintiff's consent, trumps any prior jury demand. (Order of Mar. 22, 2006, at 1-2.)
However, the Court expressly noted that the question then before it simply concerned "the current operative order with respect to a jury trial in this matter," and therefore declined to address what showing would be necessary for defendant to withdraw its jury trial waiver embodied in the August 2005 CMP, or whether defendant had made such a showing. Tyco, interpreting the Court's reticence as "a recommendation to file a motion to alter the provision in the [CMP] relating to whether this case is to be tried by a jury" (Def. Mem. 3), now moves pursuant to Fed. R. Civ. P. 39(b) for a determination that this case is to be tried by jury.
Rule 39(b) grants discretion to district courts to order a jury trial, even where a party failed to demand one,*fn2 but the rule itself provides no guidance concerning how to exercise that discretion. The majority rule is one of deference to the judgment of the district courts, with the First Circuit stating that "the case would be very rare indeed where a district court abused its discretion in denying or granting a Rule 39(b) motion." Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 200 (1st Cir. 1987). Other courts of appeals have hinted at the factors to be weighed by a district court deciding a motion under Rule 39(b). As Justice Scalia has explained, "Over the years, appellate courts have consistently upheld the trial judges in allowing or refusing late demanded jury trials, but in doing so have laid down two guidelines for exercise of the discretionary power. The products of cumulative experience, these guidelines relate to the justifiability of the tardy litigant's delay and the absence of prejudice to his adversary." Pierce v. Underwood, 487 U.S. 552, 562 (1988), quoting Maurice Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L. Rev. 635, 662-63 (1971).
Despite this prevailing liberality, our Court of Appeals has held that "mere inadvertence of counsel [is] not an adequate basis for allowing an untimely filing of a jury trial notice," Cascone v. Ortho Pharm Corp., 702 F.2d 389, 390 (2d Cir. 1983), and has therefore "shrunk" trial courts' discretion to grant a jury trial where a proper demand has not been made to "determining whether the moving party's showing beyond mere inadvertence is sufficient to justify relief," Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2d Cir. 1967). Thus, in this Circuit, "what appears to be a broad grant of discretion in the rule . . . has been narrowed . . . to the point where a ...