The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Paul Shambreskis ("Plaintiff" or "Shambreskis") filed the present suit on May 3, 2002, alleging that Defendant Bridgeport and Port Jefferson Steamboat Company ("Defendant") failed to exercise proper care to prevent injuries that Plaintiff suffered while aboard Defendant's vessel on July 25, 1999. Presently before the Court is Defendant's motion to strike the jury demand made by Plaintiff on February 5, 2007 and Plaintiff's "motion for jury demand." For the reasons set forth below, Defendant's motion is granted and Plaintiff's motion is denied.
This action was commenced on May 2, 2002 by the filing of the summons and complaint. At the time the action was commenced, plaintiff was represented by counsel. Neither the summons or complaint contained a jury demand. However, the civil cover sheet filled out and signed by Plaintiff's then counsel indicated that a jury was demanded.*fn1
The summons and complaint were thereafter served on Defendant pursuant to Rule 4(c)(2)(c)(ii) of the Federal Rules of Civil Procedure. Significantly, the civil cover sheet was not served with the summons and complaint. Defendant served its answer on July 11, 2002. Like the summons and complaint, the answer did not contain a jury demand.
In February 2005, discovery was completed in this action. Shortly before then, Plaintiff's then counsel moved to be relieved as counsel. That motion was granted by Order dated March 7, 2005 and the action was stayed until April 25, 2005 to allow plaintiff to retain new counsel. He did not and the case continued with Plaintiff appearing pro se.
Defendant thereafter moved for summary judgment, which motion was denied by this Court in a Memorandum and Order dated October 30, 2006. That Memorandum and Order also referred this matter to Magistrate Judge Michael Orenstein for purposes of, inter alia, overseeing the preparation of a final pre-trial order so that a trial of this action could be had.. It was during the preparation of the pre-trial order that the current "dispute" arose. On January 4, 2007, Defendant served the now pro se Plaintiff with its input to the pre-trial order and in section V thereof indicated that "Defendant has not demanded a jury, nor has plaintiff. Hence, this is a non-jury case." Under cover of letter dated February 2, 2007 Plaintiff served his input to the pretrial order demanding a jury trial. By letter to the Court dated February 5, 2007, Plaintiff reiterated that demand. The instant motion followed.
I. No Timely Jury Demand Was Served
Rule 38 of the Federal Rules of Civil Procedure sets forth the procedure for demanding a jury trial. Rule 38 provides in pertinent part:
Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed at such issue, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party.
(d) Waiver. The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the ...