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George Janetos, Irene Janetos v. Home Depot U.S.A.

September 25, 2012


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:



Before the Court is Plaintiffs George Janetos and Irene Janetos' ("Plaintiffs") motion for a jury trial. DE 29. Defendant Home Depot U.S.A., Inc. ("Home Depot") opposes the motion. DE 31. After considering the parties' papers and the relevant case law, the Court GRANTS Plaintiffs' motion for a jury trial.


Plaintiffs commenced this personal injury action in the Supreme Court of the State of New York, Queens County, on October 23, 2008. Pls.' Aff. in Support of Mo. [DE 29-1] ("Pls.' Aff.") ¶ 4. The Verified Complaint filed in state court does not contain a jury demand. See id., Ex. A. After Defendant served a Verified Answer in state court on or about December 8, 2008, the parties commenced discovery and a preliminary conference was held in the state court. Id.

¶ 4. On March 12, 2009, before a note of issue and certificate of readiness were filed in state court, Defendant removed the case to federal court and the parties continued to conduct discovery. See id. ¶ 4-5. On September 20, 2010, although not required to do so, Defendant filed the Verified Answer it previously served in the state court proceeding. DE 7.

At the August 25, 2011 Pre-Trial Conference before this Court, Plaintiffs, for the first time, requested a jury trial. See DE 24. According to Defendant, the issue first arose in the context of preparing the Proposed Joint Pre-Trial Order. See DE 22 at 2. Although Defendant's position was that this case would be conducted as a bench trial, counsel stated at the Pre-Trial Conference that Defendant would consider consenting to a jury trial in order to avoid the expense of briefing the issue. DE 24. At a subsequent conference on September 20, 2011, counsel for Defendant informed the Court that it would not consent to Plaintiffs' request for a jury trial and the Court therefore set a briefing schedule for the current motion. DE 28.In accordance with the schedule, Plaintiffs submitted their motion with a memorandum of law ("Pls.' Mem.") and an attorney affirmation to which several exhibits were attached. DE 29. In opposition, Defendant submitted an attorney affirmation which contained a discussion of applicable case law, but no memorandum of law. See DE 31 ("Def's. Opp."). Plaintiff thereafter submitted a reply affirmation. DE 30 ("Reply Aff.").*fn1

After this motion was filed, Plaintiffs moved for summary judgment. See DE 33. The Court denied that motion. DE 40.


A party that fails to timely serve and file a jury demand waives its right to a jury trial. Fed. R. Civ. P. 38(d). The Court begins its analysis with Federal Rule of Civil Procedure 81(c)(3), which governs demands for jury trials in removed actions. The Rule applies to three different scenarios. The first two are set forth in Section (A) which provides:

(A) As Affected by State Law. A party who, before removal, expressly demanded a jury trial in accordance with state law need not renew the demand after removal. If the state law did not require an express demand for a jury trial, a party need not make one after removal unless the court orders the parties to do so within a specified time. The court must so order at a party's request and may so order on its own. A party who fails to make a demand when so ordered waives a jury trial.

Since Plaintiff did not demand a jury trial before removal, the first scenario is inapplicable. The second scenario is a closer call. Strictly speaking, New York law does require a jury demand. However, pursuant to N.Y. C.P.L.R. 4102(a), a jury demand may not be made until the note of issue is filed, which action does not occur until the case is trial ready. Ajnoha v. JC Penney Life Insurance Company, 480 F. Supp. 2d 663, 676 (E.D.N.Y. 2007). New York law also provides that a court may relieve a party from the effect of failing to include a jury demand in the note of issue if no undue prejudice results. Id. at 677 (citing N.Y. C.P.L.R. 4102(e)). Thus, the Second Circuit has described the applicability of the second scenario described in Section (A) to cases removed from New York state courts as a "gray area," Cascone v. Ortho Pharmaceutical Corp., 702 F.2d 389, 391 (2d Cir. 1983), and has read a "discretionary right" into Rule 81(c), Higgins v. Boeing Co., 526 F.2d 1004, 1007 (2d Cir. 1975). See Perelman v. Camp Androscoggin Jr.-Sr., Inc., No. 06-CV-13020, 2008 WL 199475, at *2 (S.D.N.Y. Jan. 22, 2008). The analysis is somewhat complicated in this case, however, by the mandatory language set forth in Section (B) of Rule 81(c)(3). Section (B) was not applicable in Higgins or Cascone because all necessary pleadings had not been served at the time of removal. Section (B) provides as follows:

(B) Under Rule 38. If all necessary pleadings have been served at the time of removal, a party entitled to a jury trial under Rule 38 must be given one if the ...

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