Carrollton Hospitality, LLC et al v. Insight Kentucky Partners II, L.P.

Filing 28

MEMORANDUM OPINION & ORDER: that Plaintiffs' Motion for a Jury Trial 20 is GRANTED. Signed by Judge Gregory F. Van Tatenhove on 11/19/2013.(AKR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT

CARROLLTON HOSPITALITY,
LLC, et. al.

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Plaintiffs,
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V.
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INSIGHT KENTUCKY PARTNERS II, L.P., )
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Defendant.
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Civil No.: 13-21-GFVT

MEMORANDUM OPINION
&
ORDER

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This matter is before the Court on Plaintiffs’ Motion for a Jury Trial. [R. 20.]
Plaintiffs Carrollton Hospitality, LLC (Hospitality), Carrollton Host Enterprises, LLC (Host),
Holiday Host, LLC (Holiday), and Lloyd Abdoo move for a trial by jury, pursuant to Fed. R.
Civ. P. 39(b) on all issues so triable.
I
Plaintiffs are limited liability companies, and the managing member of these
companies, who own and operate hotels in Carrollton, Kentucky. Plaintiffs receive cable
television services from Insight. Hospitality filed a complaint in Carroll County Circuit Court
on October 12, 2012 requesting injunctive relief and damages for breach of contract. [R. 1-1.]
Insight Kentucky was served on October 15. [R. 1-1.] On March 14, 2013, Hospitality filed
an amended complaint in Carroll County Circuit Court which added Host, Holiday and Lloyd
D. Abdoo as Plaintiffs in this action. [R. 1-2.] The amended complaint also added claims for
fraud and punitive damages. Insight’s notice of removal was filed on April 18, 2013. [R. 1.]

Insight served answers and amended answers to the Plaintiff’s first amended complaint on
May 4 and May 7. [R. 4, 5.] These answers included counterclaims against Hospitality, Host
and Holiday [Id.] which were, in turn, answered on May 31. [R. 7, 8, 9.] On July 31 the
Plaintiffs filed their Motion to Remand [R. 22.] which was denied by this Court on October
31. [R. 26.]
Up until July 9, 2013, the Plaintiffs had neglected to demand a jury trial. The present
motion is before the Court due to this oversight by Plaintiffs’ Counsel who represents that he
mistakenly believed a jury trial had been demanded. [R. 20-1 at 1.]
Insight opposes Plaintiffs’ motion for a jury trial on three grounds. [R. 21.] Insight
asks the Court to deny Plaintiffs’ request because it is tardy, many of the issues in this case
are more conducive to a bench trial and, finally, because the case involves both equitable and
legal issues, Insight argues it would be burdensome to parse out which issues are appropriate
for a jury. [Id. at 4-5.]
II
A
Federal Rule of Civil Procedure 38(b) states that a party may demand a jury trial by
“serving the other parties with a written demand—which may be included in a pleading—no
later than 14 days after the last pleading directed to the issue is served.” Fed.R.Civ.P. 38(b).
If not properly served or filed then the jury trial is waived. Fed.R.Civ.P. 38(d). Rule 39(b)
provides 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). The Sixth Circuit has recognized that “[a] district
court has broad discretion in deciding whether to grant a Rule 39(b) motion.” Andrews v.
Columbia Gas Transmission Corp., 544 F.3d 618, 632 (6th Cir. 2008); Moody v. Pepsi–Cola

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Metro. Bottling Co., Inc., 915 F.2d 201, 207 (6th Cir. 1990); Misco, Inc. v. U.S. Steel Corp.,
784 F.2d 198, 205 (6th Cir. 1986). “The court's discretion should be exercised in favor of
granting a jury trial ‘in the absence of strong and compelling reasons to the contrary.’ ” Ruth
Kitchen v. Chippewa Valley Schools, 825 F.2d 1004, 1013 (6th Cir. 1987); Local 783 v.
General Elec. Co., 471 F.2d 751, 755 (6th Cir. 1973) (quoting Swofford v. B & W, Inc., 336
F.2d 406, 409 (5th Cir. 1964), cert. denied, 379 U.S. 962 (1965)), cert. denied, 414 U.S. 822
(1973); see also Moody, 915 F.2d at 207. “Generally, a district court does not abuse its
discretion by denying a 39(b) motion if the only justification for delay is ‘mere inadvertence.’
” Chippewa Valley Schools, 825 F.2d at 1013 (citing Misco, Inc., 784 F.2d at 205); see also
Andrews, 544 F.3d at 632. However, “different policy considerations may be applicable if the
party who failed to file a timely jury demand has been hailed into federal court against his
will.” Misco, Inc., 784 F.2d at FN8 (citing Cascone v. Ortho Pharmaceutical Corp., 702 F.2d
389 (2d Cir. 1983)).
B
Both parties acknowledge that broad discretion is granted to the Court in determining
whether to grant a late request for a jury trial. While the Court acknowledges that it has the
power to deny this request, the Court finds it unfair and unnecessary to punish the Plaintiff for
an oversight of Counsel. According to Mr. Holland, he had been asked earlier by Mr. Abdoo
about whether a jury trial had been demanded and Mr. Holland mistakenly advised him that it
had. [R. 20-1.]
In Chippewa Valley Schools, the Sixth Circuit considered whether the late grant of a
jury trial was error. 825 F.2d at 1013. In that case, the appellants objected to the District
Court’s late invitation, and subsequent granting, of a motion for a jury trial. Appellants

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argued they were prejudiced on the grounds that they had prepared a select claim for a bench
trial and “would have prepared it differently…had they known that the claim would be
presented to the jury.” Id. The Sixth Circuit expressed reluctance in reversing the district
court, “given the lack of precedent for reversing the grant of a jury trial, and the Seventh
Amendment right to a jury trial.” Id. The Court expressed skepticism about whether the
appellants were actually prejudiced by the jury trial and denied the request to reverse the
district court. Id. In the case at hand, Insight offers no compelling reason why granting a jury
trial would prejudice them. Since the Court has not yet entered a scheduling order in this
case, no trial date has been set. The Plaintiffs have sought to remedy the error early enough in
the proceedings where Insight will not be prejudiced by this decision.
The Court finds Insight’s argument that the issues are overly complex for a jury
unpersuasive. Similarly, Insights’ concern about the mix of legal and equitable claims is
unpersuasive. The Court can determine which issues are appropriate for the jury when the
time comes.
III
Accordingly, and the Court being otherwise sufficiently advised, it is hereby
ORDERED that Plaintiffs’ Motion for a Jury Trial [R. 20] is GRANTED.

This the 19th day of November, 2013.

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