United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
Vincent L. Briccetti United States District Judge
reasons set forth below, plaintiff's motion that this
case be tried to a jury (Doc. #28) is GRANTED.
an action to recover damages for personal injuries arising
out of a motor vehicle accident in Mt. Vernon, New York. In
or about April 2015, plaintiff commenced the action in
Supreme Court, Westchester County, by filing a summons and
complaint, and defendants served an answer on October 29,
2015. On January 18, 2016, defendants timely removed the case
to this Court based on diversity of citizenship. (Doc. #1).
party filed a timely demand for a jury trial, either before
or after removal. However, at the initial conference on March
14, 2016, the parties jointly submitted a proposed civil case
discovery plan and scheduling order, which the Court
“so ordered, ” stating, among other things, that
“[t]his case is to be tried to a jury.” (Doc.
#6). And following a period of pretrial discovery, counsel
for both parties attended a case management conference on
June 22, 2017, at which the case was set for trial on January
22, 2018, and a schedule for pretrial submissions was agreed
upon. Among other things, the parties agreed, and the Court
“so ordered, ” that by December 22, 2017, the
parties would file requests to charge and proposed voir
dire questions. (Doc. #22).
letter dated December 6, 2017, plaintiff's counsel asked
the Court for “clarity” regarding whether this
case would be tried to a jury or not. (Doc. #24). Defense
counsel responded by letter dated December 7, 2017, stating
that since no party demanded a jury trial, the trial should
be a bench trial. (Doc. #25). The Court conducted a telephone
conference on December 14, 2017, following which plaintiff
filed the instant letter-motion, which defendants opposed.
81(c)(3) of the Federal Rules of Civil Procedure provides, in
pertinent part, that if all pleadings have been served before
removal, as is the case here, a party otherwise entitled to a
jury trial must be given a jury trial if it serves a demand
within 14 days after it either files a notice of removal or
is served with a notice of removal. Rule 39(b), which applies
to removed cases pursuant to Rule 81(c)(1), provides that if
a jury trial is not properly demanded, the case will be tried
by the Court, except that the Court “may” order a
jury trial on any issue otherwise triable by jury.
39(b) permits a district judge to exercise his discretion and
grant a jury trial despite the failure of a party to comply
with the time provision.” Cascone v. Ortho
Pharmaceutical Corp., 702 F.2d 389, 391 (2d Cir. 1983).
In Cascone, the Second Circuit made clear that, in a
case removed from a New York state court, Rule 39(b) should
be more liberally construed than it would be in a case
originally commenced in federal court. Id. at 392.
This is because in New York practice - unlike in federal
practice - a jury demand need not be made until the case is
actually ready for trial, and even then, under CPLR §
4102(a), (e), the court has broad discretion to excuse an
untimely request absent “undue prejudice” to
other parties. Id. at 391. As the court in
Cascone put it: “Although we may not overlook
lack of compliance with the federal procedural rules in
removed cases, 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. at 392. The Cascone court thereby
distinguished the more restrictive rule announced in
Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2d
Cir. 1967), a case originally commenced in federal court;
namely, that mere inadvertence of counsel is insufficient to
permit the untimely filing of a jury demand. Cascone v.
Ortho Pharmaceutical Corp., 702 F.2d at 392.
exercising its discretion here, the Court has considered the
following factors: First, this is a personal injury case
based on negligence, which is certainly the type of case
ordinarily tried to a jury. Second, the parties clearly
operated under the assumption that the trial would
not be a bench trial - from the initial conference
when the parties jointly proposed an order that included an
explicit statement that the case would be tried to a jury, to
the post-discovery conference when the parties agreed on a
schedule for pretrial submissions, including the submission
of requests to charge and proposed voir dire, which
would only be necessary for a jury trial. Third, although
defendants do not consent to the late filing of the jury
demand, they have suffered no prejudice whatsoever as a
result of the late demand. See Higgins v. Boeing
Corp., 526 F.2d 1004, 1007 (2d Cir. 1975). And finally,
“courts [should] indulge every reasonable presumption
against waiver” of the constitutional right to a jury
trial. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393
Court has considered defendants' arguments and finds them
to be without merit. The Second Circuit in Cascone
plainly did not limit its liberal reading of the rule to a
situation in which the three specified instances in Rule
81(c)(3) are not present. Moreover, haling citizens into
court to decide a private dispute between private parties, as
inconvenient as that may be, is exactly what the Founders had
in mind when they included the guarantee of a jury trial in
the Bill of Rights.
motion for a jury trial, notwithstanding his failure to
comply with Rule 81(c)(3), is GRANTED.
January 8, 2018, the parties shall submit their requests to
charge and proposed voir dire questions. The final
pretrial conference will proceed as scheduled on January 17,
2018, at 9:30 a.m. Jury selection and trial will proceed on
January 22, 2018 at 9:30 a.m.
Clerk is instructed to terminate ...