Two Farms Inc. v. Greenwich Insurance Company
Filing
63
MEMORANDUM OPINION AND ORDER re: 55 MOTION to Strike Document No. 51 Jury Demand filed by Two Farms Inc. The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the remaining arguments are either moot or without merit. For the foregoing reasons, the plaintiffs motion to strike the jury demand is denied. The Clerk is directed to close Docket No. 55. (Signed by Judge John G. Koeltl on 5/1/2013) (cd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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TWO FARMS, INC.,
Plaintiff,
12 Civ. 0050 (JGK)
- against -
MEMORANDUM OPINION
AND ORDER
GREENWICH INSURANCE COMPANY,
Defendant.
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JOHN G. KOELTL, District Judge:
This case arises out of an alleged breach of an insurance
contract between the plaintiff, Two Farms, Inc. (“Two Farms”),
and the defendant, Greenwich Insurance Company (“Greenwich”).
The present motion is the plaintiff’s motion to strike the
defendant’s jury demand.
I.
In this case, the defendant included a jury demand in the
first answer that it filed--namely, the defendant’s answer to
the Second Amended Complaint.
The plaintiff now moves to strike
that jury demand, arguing that the defendant’s time to file a
jury demand had expired.
The plaintiff claims that the
defendant should have made a jury demand within fourteen days
after the First Amended Complaint was filed.
The plaintiff
argues that because the defendant’s jury demand was not made
within this time period, the jury demand should be stricken.
However, the defendant’s jury demand was in fact timely.
Federal Rule of Civil Procedure 38(b) requires that a party
serve a jury demand “no later than 14 days after the last
pleading directed to the issue is served.”
38(b).
Fed. R. Civ. P.
The Second Circuit Court of Appeals has explained that
“‘the last pleading directed to’ an issue is not the pleading
that raises the issue, it is the pleading that contests the
issue.
Normally, that pleading is an answer, or, with respect
to a counterclaim, a reply.”
McCarthy v. Bronson, 906 F.2d 835,
840 (2d Cir. 1990) (citations omitted).
Here, the “last
pleading directed to the issue” was the defendant’s answer to
the Second Amended Complaint.
The defendant made its jury
demand in its answer to the Second Amended Complaint, which was
timely.
The plaintiff argues that the jury demand was untimely
because the defendant did not file a timely answer to the First
Amended Complaint.
Rather than filing an answer or a motion
under Rule 12 of the Federal Rules of Civil Procedure, the
defendant filed a motion for summary judgment, which did not
toll the time for the defendant to file its answer.
However,
the defendant did make its jury demand in the first answer it
filed, and the plaintiff never claimed that the defendant was in
default for failing to file its answer at an earlier time.
Therefore, the plaintiff’s argument has no merit.
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II.
Moreover, this is a case in which the Court would permit
the defendant to file a late jury demand.
Notwithstanding the
failure of a party to make a timely jury demand, a court may, in
its discretion, grant a demand for a jury trial.
Fed. R. Civ.
P. 39(b); see also Cascone v. Ortho Pharm. Corp., 702 F.2d 389,
391 (2d Cir. 1983).
“In exercising this discretionary power, a court must weigh
several factors: (1) whether the action is typically the type of
case tried to a jury; (2) whether the parties have proceeded on
the assumption that the case would be tried before a jury; and
(3) whether the party opposing the jury request would be unduly
prejudiced if the action were tried before a jury.”
Reliance
Elec. Co. v. Exxon Capital Corp., 932 F. Supp. 101, 103
(S.D.N.Y. 1996) (citing Cascone, 702 F.2d at 392).
“Any
prejudice alleged must arise from the untimeliness of the jury
demand and not simply from the possibility of a jury trial.”
Id. (citation omitted).
The factors in this case weigh in favor of granting the
defendant’s jury demand.
First, cases involving an alleged
breach of an insurance contract are routinely tried before a
jury.
The plaintiff asserts that the defendant is not entitled
to a jury because contract interpretation is solely a matter of
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law for the court.
However, there are circumstances where the
interpretation of insurance contracts raises issues of fact for
a jury.
See, e.g., Novel Commodities S.A. v. QBE Ins. Corp.,
No. 11 Civ. 6339, 2013 WL 1294618, at *6-7 (S.D.N.Y. Mar. 30,
2013); SCW West LLC v. Westport Ins. Corp., 856 F. Supp. 2d 514,
531 (E.D.N.Y. 2012).
Second, the defendant made its jury demand in the first
answer that it filed.
Although the plaintiff may have
previously assumed that there would be no jury, the parties have
thus far proceeded in a way that allows for the possibility for
a jury trial.
The Court already denied a motion for summary
judgment at the outset of the case, but the Court also permitted
motions for summary judgment to be made at the conclusion of all
discovery.
If a motion for summary judgment is made at the
conclusion of all discovery and the Court does not grant it,
then there would plainly be issues of fact to be decided by a
jury.
Third, the plaintiff has made no showing that it would be
unduly prejudiced if the case were tried before a jury, nor that
it would be prejudiced in any way by the timing of the
defendant’s jury demand.
Therefore, the plaintiff’s motion to
strike the defendant’s jury demand is denied.
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CONCLUSION
The Court has considered all of the arguments of the
parties.
To the extent not specifically addressed above, the
remaining arguments are either moot or without merit.
For the
foregoing reasons, the plaintiff’s motion to strike the jury
demand is denied.
The Clerk is directed to close Docket No. 55.
SO ORDERED.
Dated:
New York, New York
May 1, 2013
__/s/_______________________
John G. Koeltl
United States District Judge
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