Galper v. JP Morgan Chase Bank N.A.

Filing 72

OPINION re: 62 MOTION Leave to File Jury Demand under Fed. R. Civ. P. 39(b). filed by Yelena Galper. Based on the conclusions set forth above, the motion of the Plaintiff for the grant of a jury trial is denied. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 8/30/2016) (cf)

UNITED STATES DI STR I CT COURT
SOU THERN DISTRICT OF NEW YORK

- - --------- - -- - ---------------------- -x
YELENA GALPER,
Pla i n t iff ,

13 Civ . 3449
OPINION

- against JPMORGAN CHASE BANK , N. A.,
Defendant .

--------------------- ---- -------------x
A P P E A RA N C E S :

Attorneys for Plaintiff
CREIZMAN PLLC
565 Fifth Avenue , 7th Floor
New York , NY 100 1 2
By :
Eric M. Cre i zman , Esq .
Caro l ine J . Polisi , Esq .

Attorneys for De f endant
LEVI LUBARSKY FE IGENBAUM & WEISS LLP
655 Third Avenue , 27th Floor
New York , NY 10017
By :
Andrea L . Weiss , Esq .

USDCSDNY
DOCUMENT

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ELECTRONICALLY FILED ,

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Sweet, D.J.

Plaintiff Yelena Galper ("Ga lper" or the "Plaintiff") has
moved pursuant to Rule 39(b) F. R. Civ. P. for a jury trial in
her action against JPMorgan Chase Bank, N.A.

("Chase" or the

"Defendant"). Upon the conclusions set forth below, the motion
is denied.

Prior Proceedings

Galper commenced this action in New York Supreme Court,
County of New York, on June 6 , 2013, asserting cla ims for
identity theft and aiding and abetting identit y theft, both in
violation of New York's Fair Credit Reporting Act

("FCRA"), N.Y.

Gen. Bus. L. §§ 380-1 and 380-s. Defendant JPMorgan Chase Bank,
N.A.

("Chase") removed Galper's action from New York State court

to federal court on May 22 , 2013, and then moved for dismissal
pursuant to Fed. R. Civ. P. 12 (b) (6), contending in part that
the federal FCRA preempted Galper's claims for identity theft
under the New York law. Chase's motion was granted. See Galper
v . JP Morgan Chase, N.A., No. 13 CIV. 3449 , 2014 WL 1089061
(S .D. N.Y. Mar. 17, 2014) . At no time did Galper file a jury

1

demand. Galper appealed from the district court 's dismissal of
her claims.

On September 30 , 20 1 5 , the Second Circuit reversed on the
grounds that Galper's Amended Complaint stated claims for
identity theft and aiding and abetting identity theft under New
York law based on Chase 's vicarious liability for its employees'
alleged theft of Galper 's identity, as distinct from any
erroneous or otherwise wrongful actions by Chase in furnishing
information to consumer reporting agencies. Galper v . JP Morgan
Chase Bank, N.A., 802 F.3d 437

(2d Cir . 2015) . The Second

Circuit ruled that such a claim of identity theft is not "with
respect to" the responsibilities of persons who furnish
in formation to consumer reporting agencies, and is therefore not
preempted by 15 U.S.C.

§

1681t (b) (1) (F). Id. at 446.

The mandate remanding the action was issued on November 2 ,
2015 . ECF No . 43.

On December 17, 2015 , Chase served its Answer to the
Amended Complaint . ECF No. 51. Plaintiff did not serve a jury
demand. The March 17 , 2016 Scheduling Order (the "Sche du li ng
Order ") noted that the parties disputed Plaintiff's entitlement
to a jury . ECF No. 59 .
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The instant motion was heard and marked fully submitted on
May 19, 2016.

Removal Does Not Excuse Failure to Demand a Jury

Rule 81(c) (3) of the Federal Rules of Civil Procedure
governs jury demands in cases removed to federal court, and
applies in three specific situations:

(i) where a party has

"expressly demanded" a jury trial in accordance with state law
prior to removal;

(ii) where the pertinent state law does not

require an express demand for a jury trial; and (iii) where all
necessary pleadings have been served at the time of removal. Fed
R. Civ. P. 38(c) (3); Cascone v. Ortho Pharmaceutical Corp., 702
F.2d 389, 391

(2d Cir. 1983).

This case does not fall into any of the specific categories
delineated in Rule 81(c). Although New York Civil Practice Law
and Rules

("CPLR")

require a party to affirmatively demand a

jury trial, that demand must be made in the "note of issue," or
for the receiving party, within fifteen days of service of the
note of issue. CPLR § 4102(a). Because no time is specified for
the filing of the note of issue, a party may request a jury up
until the point at which a case is actually ready for trial.
3

Turkenitz v . Metromotion, Inc., No. 97 Civ . 2513, 1997 WL 773713
at *5 , *10 (S . D.N. Y. Dec. 12, 1997).

According to the Plaintiff,
"the Second Circuit has instructed that this
discretionary standard should also apply to jury
demands in removed cases . See Higgins v. Boeing Co.,
526 F.2d 1004, 1007 (2d Cir .1 975) ; see also Reliance
Elec., 932 F. Supp. at 103; Sinnott , 1992 WL 142050 at
*2.
. Under Rule 39(b), the court may, on motion,
order a jury trial on any issue for which a jury might
have been demanded . District courts thus have enormous
discretion to order a jury trial even where a demand
may have been untimely. See, e .g., Cascone, 702 F.2d
at 392. "
Pl. Mem. in Supp. at 4.

The Plaintiff has noted that Chase has not set forth any
prejudice arising from the requested grant of a jury trial.
Chase has pointed out that the Plaintiff has not set forth any
basis for the grant beyond "mere inadvertence," noting that
counsel for the Plaintiff is an experienced federal court
practitioner . The issue thus boils down to whether or not in a
removed personal injury case to obtain grant of a jury trial
something more than "mere inadvertence" must be shown.

Jury demands in federal court are governed by Rule 38 ,
which requires that a party serve the other parties with a
written jury demand no later than 14 days after the last

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p l eading directed to the issue is served . Fed . R. Civ. P .
38 (b) ( 1) . "The last pleading is .

. generally an answer to a

complaint or a reply to a counterclaim . " Mt . Hawley Ins. Co . v .
Van Cortlandt Vill. LLC , No . 08 CV 104 1 4 , 2010 WL 22908 1 3 , at *2
(S . D. N. Y. June 1 , 2010)

(internal quotation marks and citation

omitted) . Failure to time l y serve the demand const i tutes a
waiver of the right to a jury . Fed . R. Civ . P . 38(d) . While a
district co u rt has some discre t ion pursuant to Rule 39(b) , to
grant a motion for a jury tria l where a t imely demand was not
made , a party seeking such re l ief must , at a minimum , make a
"showing beyond mere inadvertence " in order to j ustify relief.
Noonan v . Cunard S . S . Co ., 375 F . 2d 69 , 70

(2d Cir. 1 967)

(emphasis in original) ; see also Gale l la v . Onassis , 487 F . 2d
986 , 996 - 97

(2d Cir. 1973)

(affirming denial of jury trial in

removed case where counsel inadvertently failed to make a timely
demand , stating "any other dec i sion would have been reversible
error ." ) .

Rule 81 (c) (3) excuses a Ru l e 38 (b) ( 1 ) jury demand in three
circumstances wh i ch except i ons are inapplicable because:

(i)

Plaintiff did not make a jury demand before the case was
removed ;

(ii) the answer , a necessary pleading , had not been

served at the time of removal ; and (ii i ) New York does in fact
require that a jury demand be served , albeit later in the
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proceedings, when the "note of issue is filed." N.Y. C.P.L.R.
§

4102(a). Accordingly, Rule 38(b) (1) applies here.

Relying principally on Higgins v. Boeing Co., 526 F.2d 1004
(2d Cir . 1975), Plaintiff contends that because this case was
removed, the Court ought to effectively apply New York
procedural law to her motion, and rule in her fa vor as long as
there is no prejudice to Chase . Pltf. Mem. at 3-4.

In the later case of Cascone v. Ortho Pharmaceutical Corp.,
however, the Second Circuit stated that the reason it allowed
"some 'play in the joints'" for a late jury demand in a removed
case is to "accommodat[e] a removed party who may not be as at
ease in the new surroundings imposed upon him." 702 F.2d 389 ,
392

(2d Cir . 1983). The Cascone court affirmed the district

court's exercise of discretion to permit a late jury demand
where the court had found that "plaintiff's counse l is
essentially a state court practitioner having greater
familiarity with New York practice and was admitted to practice
in the federal courts" on ly a year before the case was filed.
Id. at 393 . It was the fact of counsel's lack of federal court
experience, the Court held, that justified a finding "that there
was more than inadvertence here." Id. The Court further
explicitly stated that Noonan was not overruled and that "[i]ts
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holding shall continue to govern cases where it is applicable."
Id.

Plaintiff has set forth no basis for relief from her waiver
other than the fact that this case was removed, which, she
argues, is grounds for the court to exercise a more forgiving
(indeed an "enormous[ly]" forgiving)

approach to Rules 38 and

39. Pl. Mem . at 2-5 . This Court rejected that precise argument
in Torchia v . Proctor & Gamble Productions , 89 Civ . 2589, 1989
WL 126065, at *1 - 2 (S.D . N.Y . Oct. 13 , 1989). In Torchia, the
defendant removed a personal injury action and filed its answer
in federal court on the same day. Plaintiff did not serve a jury
demand within the time required (then 10 days) . Plaintiff later
moved f or a jury trial, arguing that her motion fell " ' within
the Higgins exception ' which supports a more flexible exercise
of 39(b) discretion in favor of a party seeking a jury trial
simply because it ' was a removal from State Court. ' " Id . at *l.
This Court held that "Higgins .

. required more than merely

showing that a case was removed in order for the court to grant
a jury trial ," and that , as such , her failure to timely serve a
jury demand constituted a waiver.

Id . Torchia was a personal

injury case of the type typically tried to a jury. See id. The
Plaintiff has failed to persuade the Court that Torchia was
incorrectly decided .
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Conclusi on

Based on the conclusions set forth above , the motion of the
Plaintiff for the grant of a jury trial is denied .

It is so ordered .

New York, NY

~rh

' 2016

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