Gold & Rosenblatt, LLC v. JPMorgan Chase Bank, N.A.

Filing 22

OPINION # 101781 re: 11 MOTION for Trial by Jury filed by Gold & Rosenblatt, LLC. Accordingly, Plaintiffs motion for a jury trial is GRANTED. (Signed by Judge Alison J. Nathan on 5/8/2012) (mro) Modified on 5/9/2012 (ft).

USDCSDNY
DOCUMENT

ELECTRONICALLY FILF;D
DOC II:
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DATE FILED: ~MAY 0 8-20'12­

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

...!..

------------------------.---------------------------------------------)(
GOLD & ROSENBLATT, LLC,
Plaintiff,
12 Civ. 00192 (AJN)
-v-

OPINION
lP MORGAN CHASE BANK, N.A.,
Defendant.

----------------------------------------------------------------------)(
ALISON 1. NATHAN, District Judge:
This matter was removed to this Court from the Supreme Court of the State of New York,
Bronx County, on January 10,2012. Plaintiff requests that the Court order a jury trial pursuant
to Federal Rule of Civil Procedure 39(b) notwithstanding Plaintiffs failure to serve a timely jury
demand. Defendant opposes this request. The Court grants Plaintiffs motion.
Federal Rule of Civil Procedure 38(b) provides that "on any issue triable of right by a
jury, a party may demand ajury trial by serving the other parties with a written demand ... no
later than 14 days after the last pleading directed to the issue is served." It is undisputed that
Plaintiff did not serve a timely jury demand, which would have been due on January 31, 2012.
(Berry Decl. at ~ 1). Federal Rule of Civil Procedure 39(b) provides that "the court may, on
motion, order a jury trial on any issue for which a jury might have been demanded."
Plaintiffs counsel concedes that he was aware of the Federal Rules of Civil Procedure
governing when a jury demand must be served, and that he has previously removed a case in
which he served a jury demand. (Berry Decl. at ~ 3.) However, he did not serve a jury demand
in this case because he believed it was subject to remand due to lack of subject matter
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jurisdiction, and did not learn that subject matter jurisdiction likely existed until February 17,
2012, after the deadline to serve a jury demand. (Berry Decl. at ~~ 4- 5.) Defendant's counsel
counters that on January 13,2012, he engaged Plaintiffs counsel in a discussion of the existence
of diversity jurisdiction in this case and explained that jurisdiction was proper, and Plaintiffs
counsel was therefore on notice of the need to file ajury demand. (Weiss Decl. at ~ 8).
The Court applies a case-by-case approach in determining whether to allow a late-filed
jury demand in removed cases. See Cascone v. Ortho Pharm. Corp., 702 F.2d 389,392-93 (2d
Cir. 1983); Luna v. Am. Airlines, No. 04 Civ. 1803,2010 U.S. Dist. LEXIS 109375, at *9-13
(S.D.N.Y. Oct. 12,2010). The factors considered include "(1) whether the rules of the state
court from which the case had been removed specify a different procedure for demanding ajury
and whether they grant the trial court discretion similar to that found under Rule 39(b), (2)
whether the plaintiffs claims were 'traditionally tried by ajury,' (3) whether the parties had been
proceeding 'for some time on the assumption that the matter would not be a bench trial,' (4)
whether the other party had 'acquiesced in the jury request' and (5) whether the opposing party
would be prejudiced by the 'untimely demand.'" Luna, No. 04 Civ. 1803,2010 U.S. Dist.
LEXIS 109375, at *9-10 (quoting Cascone, 702 F.2d at 392-93); see also Rupolo v. Oshkosh
Truck Corp., 749 F. Supp. 2d 31, 47 (E.D.N.Y. 2010). Courts have not required every factor to
point in favor of allowing the late jury demand in granting leave to serve such a demand. See
Rupolo, 749 F. Supp. 2d at 47.
Beginning with the first factor, the case was initially filed in New York state court, which
does not require ajury demand until substantially later in the case. See N.Y. C.P.L.R. § 4102(a);
Luna, No. 04 Civ. 1803,2010 U.S. Dist. LEXIS 109375, at *10-11; Rupolo, 749 F. Supp. 2d at
49. However, Plaintiff was aware of the deadline to file ajury demand in federal court and has
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previous experience filing timely jury demands in federal court. Plaintiff's counsel argues that
he was under the impression the case would be remanded to the state court for lack of
jurisdiction, and that he was therefore similarly situated to state court practitioners who are
ignorant of federal procedures.
The Court disagrees. Parties should not generally be excused from compliance with rules
of procedure which they are concededly aware on the assumption that they will be successful in
remanding a case to state court. The first factor therefore cuts against allowing leave to file a
late jury demand.
However, most of the remaining factors favor allowing ajury trial. Plaintiff argues, and
Defendant does not contest, that the claims and defenses here, which relate to bank negligence in
failing to uncover forgery, are the sort of issues that are often tried to juries. (Mot. at 2-3). The
nature of the claims and defenses in this case, therefore, favor excusing Plaintiff's late request.
The case is also in its early stages, with fact discovery having commenced recently and
not set to close until July. Defendant was aware of Plaintiff's intention to seek a jury trial within,
at most, four weeks of the missed deadline and was therefore on notice that the matter might not
proceed as a bench trial. Although Defendant has not acquiesced in the jury request, it cannot
argue that it has proceeded on the assumption that this would be a bench trial.
Moreover, Defendant has not even attempted to articulate any prejudice that would result
from granting the jury request. Several courts have noted that prejudice is often the most
important factor in considering whether to allow a late jury demand. See Rupolo, 749 F. Supp.
2d at 47 (collecting cases); see also Perelman v. Camp Androscoggin Jr.-Sr., Inc., No. 06 Civ.
13020,2008 U.S. Dist. LEXIS 4600, at *9-10 (S.D.N.Y. Jan. 22,2008) ("Where, as here, a party
fails to provide any substantiation of how it has done anything differently or how it will be

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prejudiced, a court may properly grant leave to make an untimely demand." (quotation marks
omitted)). If the Defendant had made a convincing claim of prejudice, the Court might have been
persuaded to reject Plaintiffs request. See, e.g., Elgarhi v. Dreis & Krump Mfg. Co., 131 F.R.D.
429,430-31 (S.D.N.Y. 1990) (defendants made a convincing showing of prejudice, explaining
that they had abbreviated depositions, prepared certain video materials less extensively, refrained
from conducting certain depositions, and made decisions on expenditures based on the prospect
of a bench trial). In the absence of such a showing, however, and given the Court's assessment
of other factors discussed above, the Court agrees that a jury trial should be allowed
notwithstanding the untimeliness of Plaintiffs request.
Defendant suggests that the Court should apply the standard articulated in Noonan v.

Cunard s.s. Co., 375 F.2d 69 (2d Cir. 1967), rather than the multi-factor inquiry discussed
above, and that under this standard the Court should require Plaintiff to make a showing "beyond
mere inadvertence" to justify relief under Rule 39. See Rupolo, 749 F. Supp. 2d at 46
(discussing Noonan). The more stringent Noonan standard is typically not applied in cases
where a state action was removed to federal court. See Cascone, 702 F.2d at 392-93; Rupolo,
749 F. Supp. 2d at 46.
Defendant argues that Noonan should nevertheless apply in this case because Plaintiffs
knowledge of the relevant federal procedures eliminates the basis for any leeway that is typically
granted to parties in removed cases that may be unfamiliar with federal procedure. However,
courts considering the expertise or lack of expertise of the party seeking leave to file the jury
demand have done so through the lens of the case-by-case approach described in Cascone. See

Rupolo, 749 F. Supp. 2d at 46 (noting that "inadvertence alone is not a sufficient reason for
permitting a late jury demand in all removed cases" and citing the open-ended Cascone test); see
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also Cascone, 702 F.2d at 392-93 (considering the level of familiarity Plaintiffs counsel had
with federal procedures as part of the multi-factor inquiry); S. African Airways v. Tawil, 658 F.
Supp. 889, 891 (S.D.N.Y. 1987) (applying the multi-factor approach but noting that "the fact that
this is a 'removed case' which ordinarily warrants 'play in the joints' for accommodating a
removed party 'who may not be as at ease in the new surroundings imposed upon him,' is of no
significance here" given the facts of the case (quoting Cascone, 702 F.2d 389, at 392)). But see
Davidson Pipe Co., Inc. v. Laventhol & Horwath, 125 F.R.D. 363, 370-72 (S.D.N. Y. 1989)
(applying the Noonan test to a removed action because the party seeking to serve a late jury
demand was the one that removed the case, but still allowing the late demand because the parties
demonstrated "excusable erroneous reliance" rather than mere inadvertence); Corinthian Media

v. Putnam, 845 F. Supp. 143, 145-46 (S.D.N.Y. 1994) (noting that the Noonan standard is
occasionally applied to removed actions). The Court has considered Plaintiffs expertise in
federal court and knowledge of the proper procedures under the more flexible standard discussed
in Cascone.
Finally, even if the Court were to impose the strict Noonan test under Rule 39(b), an
alternative basis for allowing the late jury demand is present under Rule 6(b), even if the failure
to file ajury demand was due only to mere inadvertence. See Raymondv. IBM, 148 F.3d 63,65­
67 (2d CiT. 1998). Under Rule 6(b), the Court applies equitable criteria, "including prejudice to
the other party, the reason for the delay, its duration, and whether the movant acted in good
faith" to assess whether there is excusable neglect justifying retroactive extension of the deadline
to serve ajury demand. See id. For the same reasons discussed above, these equitable
considerations suggest Plaintiff should be allowed to serve a jury demand. There has been little

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delay, there is no suggestion of prejudice to the other party, no suggestion of bad faith, and
Plaintiff has proffered a reason for his failure to meet the Rule 38 deadline.
Accordingly, Plaintiffs motion for a jury trial is GRANTED.
SO ORDERED:
Dated: May ~, 2012
New York, New York

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