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Encarnacion v. Isabella Geriatric Center

United States District Court, S.D. New York

September 11, 2014



JAMES C. FRANCIS, IV, Magistrate Judge.

In this employment discrimination case, the defendants now move pursuant to Rules 38 and 39 of the Federal Rules of Civil Procedure to strike the plaintiff's untimely demand for trial by jury. For the reasons set forth below, the defendants' motion is denied and the case may be tried before a jury.


This action was commenced by the filing of a complaint in New York State Supreme Court, Bronx County on April 19, 2011. (Declaration of Jesse Young dated Aug. 21, 2014 ("Young Decl."), ¶ 3). The defendants removed the case to this Court on June 2, 2011 and submitted their answer on July 11, 2011. (Declaration of Elana Ben-Dov dated Aug. 13, 2014 ("Ben-Dov Decl."), ¶ 3). Neither the complaint nor the answer contained a jury demand.

On June 5, 2014, the Honorable Gregory H. Woods, U.S.D.J., set a trial date of October 7, 2014. (Order dated June 5, 2014). The plaintiffs filed a demand for trial by jury on June 16, 2014 (Young Decl., ¶ 3), and on August 13, 2014, the defendants moved to strike it.


Rule 81(c) of the Federal Rules of Civil Procedure governs jury demands in cases removed to federal court. The rule specifies three situations in which it controls: where a party has expressly demanded a jury trial in accordance with state law prior to removal; where the pertinent state law does not require an express demand for a jury trial; and where all necessary pleadings have been served at the time of removal. Cascone v. Ortho Pharmaceutical Corp. , 702 F.2d 389, 391 (2d Cir. 1983).

The facts of this case do not fall into any of the specific categories delineated in Rule 81(c). Neither party demanded a jury trial while the case was pending in state court. The pleadings were not all served prior to removal on June 2, 2011, as the defendants did not answer until July 11, 2011. Lastly, the New York Civil Practice Law and Rules ("CPLR") require a party to affirmatively demand a jury trial in the "note of issue." CPLR § 4102(a). Thus Rule 81(c) does not control in this case.

When, as here, a removed case does not fall under Rule 81(c), courts must look to the general rules governing jury demands in federal courts, Rules 38 and 39. Luna v. American Airlines, No. 04 Civ. 1803, 2010 WL 4159402, at *3 (S.D.N.Y. Oct. 12, 2010).

Generally, under Rule 38, a jury trial is waived unless a party makes a timely demand. Jiminez v. Sullivan, No. 03 Civ. 7293 , 2004 WL 3019490, at *1 (S.D.N.Y. Dec. 30, 2004). The rule provides in part that "[o]n any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand... no later than 14 days after the last pleading directed to the issued is served." Fed.R.Civ.P. 38(b). "A party waives a jury trial unless its demand is properly served and filed." Fed.R.Civ.P. 38(d). In the present case, there is no dispute regarding the plaintiff's failure to comply with the requirements of Rule 38(b). (Young Decl., ¶ 3). Such a failure constitutes a waiver of a jury trial under Rule 38(d), and thus the plaintiff's demand is untimely. Luna, 2010 WL 4159402, at *3.

Improper and untimely demands for a jury trial are controlled by Rule 39(b) of the Federal Rules of Civil Procedure, which specifies: "Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded." District courts thus have discretion to order a jury trial even when it was improperly demanded. See, e.g., Cascone , 702 F.2d at 392. While courts should not "overlook" noncompliance with federal procedure in cases removed from state courts, "there is nonetheless some play in the joints' for accommodating a removed party who may not be as at ease in the new surroundings imposed upon him." Id .; see also National Union Fire Insurance Co. of Pittsburgh, Pa. v. L.E. Myers Co. Group , 928 F.Supp. 394, 397 (S.D.N.Y. 1996) (observing that where removal has occurred, the case law "provides a somewhat relaxed standard" on the issue of a jury trial demand); Reliance Electric Co. v. Exxon Capital Corp. , 932 F.Supp. 101, 103 (S.D.N.Y. 1996) ("The decisional law following Cascone establishes that there is more flexibility where an action is removed."); Jiminez , 2004 WL 3019490, at *2 (finding that "all removed actions are accorded greater leniency" to account for differences in state practice and state practitioners' unfamiliarity with federal procedure).

According such latitude is particularly appropriate here in light of New York state practice. As mentioned above, New York state courts require filing of a jury demand through a note of issue. CPLR § 4102(a). However, as no time is specified for the filing of the note of issue, a party may request a jury up until the point at which a case is actually ready for trial. Turkenitz v. Metromotion, Inc., No. 97 Civ. 2513 , 1997 WL 773713 at *5 (S.D.N.Y. Dec. 12, 1997) (citing Cascone , 702 F.2d at 391); Van Zandt v. Uniroyal, Inc., Peerless Tire Division , 529 F.Supp. 482, 483-84 (W.D.N.Y. 1982). Furthermore, a state court may grant a late or improper request for a jury trial "if no undue prejudice to the rights of another party would result." CPLR § 4102(e); see Cascone , 702 F.2d at 391 (referring to § 4102(e) as "a broad grant of discretionary power"). Thus state practice in New York affords both a significantly longer period for timely jury demands and substantial leeway for the granting of untimely requests.

In Higgins v. Boeing Co. , 526 F.2d 1004, 1007 (2d Cir. 1975), the Second Circuit grappled with how to square CPLR § 4102(e)'s "discretionary right" to relief from untimely demands with Rule 81(c)'s treatment of cases removed from states where no express jury demand is required. The court held:

this discretionary right must be read into the language of Rule 81(c); it comports also with Rule 39(b). The framers of Rule 81(c)... did not expressly consider the gray situation here present where state law permits discretionary relief.... [I]n this situation ...

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