Long Beach Road Holdings, LLC v. Foremost Insurance Company et al

Filing 79

MEMORANDUM OF DECISION & ORDER: On March 20, 2014, the Plaintiff filed an action alleging, inter alia, breach of contract against the Defendant, a Write-Your-Own ("WYO") Program carrier participating in the U.S. Government's National F lood Insurance Program ("NFIP") pursuant to the National Flood Insurance Act of 1968, as amended ("NFIA"). In the Complaint, the Plaintiff demanded a jury trial. Presently before the Court is a motion by the Defendant to quash the Plaintiffs jury demand, pursuant to Federal Rule of Civil Procedure (Rule) 39(a)(2). For the following reasons, the Court denies the Defendant's 74 motion in its entirety. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 4/4/2019. (Coleman, Laurie)

FILED 
CLERK 

10:24 am, Apr 04, 2019

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
LONG BEACH ROAD HOLDINGS, LLC,

MEMORANDUM OF
DECISION & ORDER
2:14-cv-01801 (ADS)(AYS)

Plaintiff,
-againstFOREMOST INSURANCE COMPANY,
Defendant.
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APPEARANCES:
Michael J. Khader P.C.
Co-Counsel for the Plaintiff
733 Yonkers Ave, Suite 200
Yonkers, NY 10704
By: Michael John Khader

The Law Offices of Michael J. Mauro, Esq., P.C.
Co-Counsel for the Plaintiff
c/o WSA, 1 Raddison Plaza, 8th Floor
New Rochelle, NY 10801
By:
Michael James Mauro, Esq., Of Counsel.
Maroney O Connor LLP
Attorneys for the Defendant
11 Broadway Suite 831
New York, NY 10004
By:
Michael Raymond Frittola, Esq.,
Ross T. Herman, Esq.,
Yifei He, Esq., Of Counsel.
SPATT, District Judge:
On March 20, 2014, the Plaintiff filed an action alleging, inter alia, breach of contract
against the Defendant, a Write-Your-Own ("WYO") Program carrier participating in the U.S.
Government's National Flood Insurance Program (“NFIP”) pursuant to the National Flood
Insurance Act of 1968, as amended (“NFIA”). In the Complaint, the Plaintiff demanded a jury
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trial. Presently before the Court is a motion by the Defendant to quash the Plaintiff’s jury demand,
pursuant to Federal Rule of Civil Procedure (“Rule”) 39(a)(2). For the following reasons, the Court
denies the Defendant’s motion.
Rules 38 and 39 do not squarely address when parties must file motions to strike a jury
demand. However, sister courts in this Circuit have recognized that “‘[p]arties have a great deal of
latitude on the timing of motions to strike a jury demand,’” such that “‘a court has the discretion
to permit a motion to strike a jury demand at any time, even on the eve of trial.’” Bear, Stearns
Funding, Inc. v. Interface Grp.-Nevada, Inc., No. 03-cv-8259, 2007 WL 3286645, at *3 (S.D.N.Y.
Nov. 7, 2007) (quoting 8 James Wm. Moore et al., Moore's Federal Practice § 39.13[2][c] (3d
ed.2007)). Accordingly, courts will entertain late-filed motions to strike a jury demand unless the
party opposing the motion shows (1) an inexcusable delay by the movant and (2) prejudice as a
result of the delay. Id.; Majer v. Metro. Transp. Auth., No. 90-cv-4608, 1992 WL 110995, at *3
(S.D.N.Y. May 7, 1992).
Here, the Court exercises its discretion to find the Defendant’s motion to quash untimely
due to the potential prejudice to the plaintiff and the lack of a valid excuse for delay. The Plaintiff
filed the Complaint (and accompanying jury demand) over four years before the Defendant filed
its motion, and the Defendant explicitly agreed to a jury trial in the proposed pre-trial order several
months before filing its motion. ECF 70 ¶ e. In addition, the Defendant provides no explanation
for its about-face or for waiting so long to move to strike the jury. From its review of the
Defendant’s papers, the Court surmises that the Defendant decided to object to a jury trial because
Judge Shields denied the Defendant leave to file an untimely motion for summary judgment.
Accordingly, the Court sees no reason why it should pull the rug out from under the Plaintiff, who
proceeded through all of discovery and a significant portion of trial preparation under the
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assumption that its claims would be tried before a jury, because the Defendant had a change of
heart. See Gulf Bay Capital, Inc. v. Textron Fin. Corp., No. 14-cv-209, 2016 WL 4009942, at *2
(M.D. Fla. July 27, 2016) (“The question . . . is whether the jury designation in the joint Case
Management Report is sufficient to establish Textron’s subsequent consent to a jury trial. The
Court finds that it is.”); Police & Fire Ret. Sys. of City of Detroit v. Watkins, No. 08-cv-12582,
2013 WL 817929, at *2 (E.D. Mich. Mar. 5, 2013) (“Given their delay and contradictory actions,
the Court finds that Plaintiffs waived their right to enforce the jury waiver provision; their motion
to strike Defendants' jury demand is untimely.”); Burton v. Gen. Motors Corp., 95-cv-1054, 2008
WL 3853329 at *7 (S.D. Ind. Aug.15, 2008) (“Parties have a great deal of latitude on the timing
of motions to strike a jury demand, but the court has discretion to decide whether a motion to strike
a jury demand is timely or too late.”).
Therefore, the Court denies the Defendant’s motion in its entirety.

It is SO ORDERED:
Dated: Central Islip, New York
April 4, 2019.
___/s/ Arthur D. Spatt_______
ARTHUR D. SPATT
United States District Judge

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