United States District Court, S.D. New York
KYLE GRANT, individually and on behalf of other persons similarly situated who were employed by WARNER MUSIC GROUP CORP. and ATLANTIC RECORDING CORPORATION, Plaintiffs,
WARNER MUSIC GROUP CORP., and ATLANTIC RECORDING CORPORATION, Defendants.
PAUL G. GARDEPHE, District Judge.
In this putative collective action, Plaintiff Kyle Grant claims that Defendants Warner Music Group Corp. and Atlantic Recording Corporation have violated the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. §§ 207 and 216(b), by misclassifying current and former interns as exempt from minimum wage and overtime requirements. (Cmplt. (Dkt. No. 1) ¶¶ 11, 32-33). Pending before the Court is Plaintiffs motion for leave to file a late jury demand. (Dkt. No. 52) For the reasons set forth below, Plaintiffs motion will be denied.
The Complaint in this action was filed on June 27, 2013; it contained no jury demand. (Cmplt. (Dkt. No. 1))
On July 19, 2013, September 19, 2013, and November 1, 2013, the parties entered into stipulations extending Defendants' time to answer. (Dkt. Nos. 9, 13 16) During that time, the parties pursued mediation. (See Dkt. Nos. 13, 16; Pltf. Br. (Dkt. No. 53) at 1) On November 26, 2013 - after it became clear that the mediation would not be successful - Plaintiffs counsel sent defense counsel a draft proposed Civil Case Management Plan and Scheduling Order. (Declaration of Defense Counsel Lyle S. Zuckerman ("Zuckerman Deel.") (Dkt. No. 55) ¶ 2) The draft CMP prepared by Plaintiffs counsel stated: "This case is not to be tried to a jury." ( Id., Ex. A (Dkt. No. 55-1) ¶ 2)
On December 2, 2013, Plaintiffs counsel submitted the parties' proposed CMP to the Court. (Dec. 2, 2013 Joint Ltr. (Dkt. No. 20) & Proposed CMP (Dkt. No. 20-1)) The joint proposed CMP likewise states that "[t]his case is not to be tried to a jury." (Proposed CMP (Dkt. No. 20-1) ¶ 2) The Court held an initial pre-trial conference on December 5, 2013. Although the conference was not transcribed, defense counsel acknowledges that Plaintiffs counsel stated at the conference "that the jury trial waiver set forth in the CMP had been inadvertent." (Def. Br. (Dkt. No. 54) at 3) At counsels' request, and to provide the parties with additional time to pursue settlement, the Court did not enter a CMP at that time.
On December 23, 2013, Defendants filed their Answer. (Dkt. No. 22) As discussed below, under Fed R. Civ. P. 38(b), a written jury demand must be made "no later than 14 days after the last pleading directed to the issue is served." Fed.R.Civ.P. 38(b). Accordingly, the deadline for Plaintiff to submit a jury demand was January 6, 2014. It is undisputed that Plaintiff did not submit a jury demand on or before January 6, 2014. (Pltf. Br. (Dkt. No. 53) at 2)
On January 28, 2014, Plaintiff filed a letter requesting leave to file a motion to amend the proposed CMP - which had not yet been entered by the Court - to include a jury demand. (Dkt. No. 24) The Court granted Plaintiff leave to file the motion (Dkt. No. 45), which is now fully briefed. (Dkt. Nos. 52-57)
I. LATE JURY DEMANDS UNDER FED. R. CIV. P. 39(b)
Fed. R. Civ. P. 38 provides 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 - which may be included in a pleading - a no later than 14 days after the last pleading directed to the issue is served;...
Fed. R. Civ. P. 38(b). Fed.R.Civ.P. 39(b) states that "[i]ssues 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." Fed.R.Civ.P. 39(b). While Rule 39(b) is silent as to the scope of the district court's discretion to grant late jury demands, the Second Circuit has stated that - where, as here, an action is originally filed in federal court - "the area open to the judge's discretion has shrunk to determining whether the moving party's showing beyond mere inadvertence is sufficient to justify relief." Noonan v. Cunard S.S. Co., 375 F.2d 69, 70 (2d Cir. 1967) (Friendly, C.J.); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 356-57 (2d Cir. 2007) ("[D]espite the discretionary language of Rule 39(b) some cause beyond mere inadvertence must be shown to permit granting an untimely demand.'" (quoting Higgins v. Boeing Co., 526 F.2d 1004, 1006 n.2 (2d Cir. 1975) (per curiam))); see also New Generation Produce Com. v. New York Supermarket, Inc., 2014 WL 1271156, at *3 (E.D.N.Y. March 26, 2014) ("the Noonan standard applies [to cases]... originating in federal court" (internal citation omitted)). The logic of Noonan and its progeny is that where a plaintiff files suit in federal court, "it would not seem too exacting to expect that, having selected the forum, the plaintiff should be familiar with and abide by the procedures followed there." Cascone v. Ortho Pharm. Co., 702 F.2d 389, 392 (2d Cir. 1983).
Given that Plaintiff filed this action in federal court, the Noonan standard applies. New Generation Produce, 2014 WL 1271156, at *3. Plaintiff must therefore make a "showing beyond mere inadvertence" ...