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New Generation Produce Corp. v. New York Supermarket, Inc.

United States District Court, E.D. New York

March 26, 2014

NEW GENERATION PRODUCE CORP., Plaintiffs,
v.
NEW YORK SUPERMARKET, INC., NEW YORK SUPERMARKET EAST BROADWAY, NEW YORK SUPERMARKET OF FLUSHING, INC. and DENG LONG, Defendants. NEW YORK SUPERMARKET, INC. and DENG LONG, Counter Claimants,
v.
NEW GENERATION PRODUCE CORP., Counter Defendant.

MEMORANDUM AND ORDER

VERA M. SCANLON, Magistrate Judge.

Plaintiff New Generation Produce Corp. ("New Generation" or "Plaintiff") filed this action against New York Supermarket, Inc. and Deng Long (collectively, "New York Supermarket" or "Defendants")[1] alleging violations of the Perishable Agricultural Commodities Act, 7 U.S.C. ยง 499e et seq. ("PACA"), and asserting related common law claims. Compl., ECF No. 1. Before this Court is Defendants' motion pursuant to Federal Rule of Civil Procedure ("FRCP") 39(b) for an order that this matter be tried before a jury. For the reasons stated below, Defendants' motion is denied.

I. PROCEDURAL BACKGROUND

On December 18, 2009, Plaintiff filed its Complaint in the Eastern District of New York. Compl. In their pleadings, neither Plaintiff nor Defendants requested a trial by jury. See Compl.; Answer & Counterclaim, ECF No. 14; Answer to Counterclaims, ECF No. 15. After the completion of discovery, see Order, Nov. 30, 2011, Plaintiff moved for summary judgment on Count X of its Complaint, seeking enforcement of a United States Department of Agriculture reparation order. New Generation Produce Corp. v. N.Y. Supermarket, Inc., No. 09 Civ. 5536 (ENV) (VMS), 2013 WL 2382970 (E.D.N.Y. May 30, 2013). The District Judge denied Plaintiff's motion but found that "it is established for purposes of this case that New York Supermarket owes New Generation the $37, 308.50 portion of the debt that defendant has proffered no evidence to dispute." New Generation Produce, 2013 WL 2382970, at *1.

Thereafter, Defendants changed their attorney from the Law Office of Salamon Davis to the Law Office of Thomas D. Gearon, P.C. See Not. of Consent to Change Attorney, ECF No. 38; Not. of Appearance, ECF No. 39. The Parties then participated in two settlement conferences, at which Defendants were represented by Mr. Gearon. See Minute Entry, Oct. 16, 2013; Minute Entry, Jan. 22, 2014. The Parties also participated in pre-trial conferences at which Defendants were represented by Mr. Gearon. See Minute Entry, Nov. 25, 2013; Minute Entry, Feb. 19, 2014.

In addition, the Parties submitted a joint Proposed Pretrial Order which was signed on Defendants' behalf by Mr. Gearon. Proposed Pretrial Order ("PPTO"), ECF No. 42. The Parties stated in the Proposed Pretrial Order: "Neither party has requested a jury. New Generation anticipates the trial will be completed in two (2) days." Id. at 5. Defendants concurred with this estimation of the trial's length. Id . The District Judge noticed jury selection for May 5, 2014, and noticed a jury trial for May 7, 2014. Notice of Hearing, Feb. 6, 2014.

Only at the final pretrial conference did Mr. Gearon suggest that Defendants would prefer a trial by jury. Minute Entry, Feb. 19, 2014. Counsel for the Parties agreed that a jury trial was not previously requested, and a briefing schedule was set for Defendants' motion for a jury trial. Id . Defendants filed their motion for a jury trial, see Mot. for Jury Trial ("Def. Mem."), ECF No. 46; Decl. of Thomas D. Gearon ("Gearon Decl."), ECF No. 46-1, which Plaintiff opposed, see Pl.'s Resp. in Opp. to Mot. for Jury Trial, ECF No. 47; Pl.'s Mem. in Supp. of Resp. in Opp. to Mot. for Jury Trial ("Pl. Mem."), ECF No. 48. This Court will consider Defendants' motion pursuant to Local Rule 72.2, which states that the assigned Magistrate Judge may "act with respect to all non-dispositive pretrial matters unless the assigned District Judge orders otherwise."

II. ANALYSIS

A. Legal Standard

FRCP 38 requires that a party demand a jury trial by serving and filing its demand "no later than 14 days after the last pleading directed to the issue is served." Fed.R.Civ.P. 38(b).[2] The Parties to this action agree that the requirements of FRCP 38 were not satisfied. See Minute Entry, Feb. 19, 2014. Instead, Defendants contend that the Court should exercise its discretion to order a trial by jury pursuant to FRCP 39. Def. Mem. 2. FRCP 39 states that "the court may, on motion, order a jury trial on any issue for which a jury might have been demanded." Fed.R.Civ.P. 39(b).

"In cases originally filed in federal court, the failure to timely serve a jury demand will only be excused upon a showing of exceptional circumstances." Janetos v. Home Depot U.S.A., Inc., No. 09 Civ. 1025 (AKT), 2012 WL 4364510, at *3 (E.D.N.Y. Sept. 25, 2012) (citing Noonan v. Cunard Steamship Co., 375 F.2d 69, 70-71 (2d Cir. 1997)). It is well-recognized that "the settled course of decision had placed a gloss upon [Rule 39], ' requiring a moving party to make a showing beyond mere inadvertence' in order to justify relief under Rule 39." Rupolo v. Oshkosh Truck Corp., 749 F.Supp.2d 31, 46 (E.D.N.Y. 2010) (quoting Noonan, 375 F.2d at 70).

An exception may be made in certain cases. For example, in cases that were removed from state to federal court, where "the plaintiff inadvertently failed to demand a jury trial because of plaintiff's counsel's lack of familiarity with federal practice, " courts will consider a late request for a jury trial under a less demanding standard. Id. at 46 (citing Cascone v. Ortho Pharma. Corp., 702 F.2d 389, 392 (2d Cir. 1983)). In removed cases, federal courts consider the following factors when determining a motion to have the case tried by a jury: "1) whether the case is one that is traditionally tried by a jury; 2) whether the parties assumed that the matter would not be tried by a judge; and 3) whether granting a jury trial would prejudice the rights of the adverse party." Id. at 47; see Janetos, 2012 WL 4364510, at *3 (listing these factors as relevant "[i]n assessing Rule 39(b) motions under the more permissive standard applicable in removed actions).

However, it "would be a misapplication of the law" to apply this "somewhat relaxed standard" to cases that were not removed from state court. St. Anne's Dev. Co., LLC v. Lenz, No. 08 Civ. 1730 (TCP) (AKT), 2011 WL 5401715, at *2 (E.D.N.Y. Sept. 2, 2011), report & recommendation adopted, No. 08 Civ. 1730 (TCP) (AKT), 2011 WL 5402423 (E.D.N.Y. Nov. 4, 2011) (where "inadvertence is the only apparent explanation for the untimeliness of Defendant's demand, the inquiry respectfully ends there"); see Janetos, 2012 WL 4364510, at *3 (same). Thus, the general rule remains that "inadvertence in failing to make a timely jury demand does not warrant a favorable exercise of discretion under Rule 39(b)." Westchester Day Sch., 504 F.3d at 356 (quoting Noonan, 375 F.2d at 70); see Seabrook v. City of New York, 236 F.R.D. 123, 126-27 (E.D.N.Y. 2006) (stating that "it would seem indisputable ...


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