Capak v. Epps et al

Filing 177

OPINION ON MOTION FOR JURY TRIAL: For the reasons set forth above, the Plaintiff's motion for a trial by jury is denied. (Signed by Magistrate Judge Katharine H. Parker on 5/16/2023) (vfr)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RICHARD J. CAPAK,

5/16/2023
18-cv-4325 (KHP)

Plaintiff,

OPINION ON MOTION FOR JURY
TRIAL

-againstTAUHEED EPPS also known as 2
CHAINZ and RORY DORALL SMITH,
Defendants.
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KATHARINE H. PARKER, United States Magistrate Judge

This action arises out of an altercation between Plaintiff Richard Capak, a celebrity
photographer and videographer, and Defendant Rory Dorall Smith, who was working as security
for Former Defendant Tauheed Epps a/k/a/ 2 Chainz. On November 29, 2017, Plaintiff
commenced a state court action against Defendant for assault, battery, and negligence, and on
May 15, 2018, Epps removed the action to federal court based on diversity jurisdiction with
Defendant’s consent. (ECF No. 3.) On January 3, 2022, Plaintiff requested a jury trial in this
case. (ECF No. 124.) That motion is now before the Court. For the reasons stated below,
Plaintiff’s demand for a jury trial is deemed untimely and waived, and Plaintiff’s motion is
DENIED.
BACKGROUND
1. Facts
Epps is a famous rapper and songwriter. Defendant served as part of Epps’ security
detail on various occasions. (Smith 56.1 ¶ 5; Capak Resp. 56.1 ¶ 5.) On October 27, 2017, Epps
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was scheduled to appear on the Tonight Show starring Jimmy Fallon, filmed at NBC’s studios at
Rockefeller Plaza. (Notice of Removal Ex. A, Dkt. 3-2 (“Compl.”) ¶ 7.) Defendant was part of
Epps’ security detail that day. As Epps approached Rockefeller Plaza, Plaintiff began filming
Epps. (Id. at ¶ 8.) While Plaintiff was filming Epps, Plaintiff was approached and struck by
Defendant. (Id. at ¶ 9.) As a result, Plaintiff alleges he sustained physical and emotional
injuries. (Id. at ¶ 13.)
2. Procedural History
On December 4, 2017, Plaintiff filed this action in the Supreme Court of the State of
New York asserting claims for assault, battery, and negligence against Epps and Defendant, as
well as a negligent hiring and retention claim against Epps. (ECF No. 3.) No jury demand was
asserted. On May 16, 2018, the case was removed to this Court based on diversity jurisdiction.
No jury demand was asserted by either side upon removal. (Id.) On January 4, 2019, the
parties filed a joint letter and proposed Case Management Plan that stated the case would not
be tried to a jury. (ECF No. 24.) The parties amended the Case Management Plans twice
thereafter, but the plan continued to state there was no jury demand and would not be tried
before a jury. (ECF Nos. 28, 31.) Fact discovery closed for the first time in December 2019.
(See ECF No. 33, 40.)
In January 2020, Epps moved for summary judgment. (ECF No. 53.) The day after,
Plaintiff sought to amend his complaint to add a defendant to the action (ECF Nos. 40, 61),
which was ultimately denied (ECF Nos. 92, 94). The parties also sought and were granted
additional time to conduct expert depositions until 30 days after a ruling on the motion to
amend. (ECF No. 40.) The deadline to complete expert depositions was set to expire on June
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19, 2020 but was later extended to October 29, 2020 due to complications associated with the
COVID-19 pandemic and delays in the ability to obtain Plaintiff’s medical records. The deadline
to issue requests to admit was also extended to August 28, 2020. (ECF No. 98)
On June 10, 2020, Epps’ motion for summary judgment was granted, leaving only
Defendant Smith in the case. (ECF No. 95.) The opinion granting summary judgment to Epps
included an order that the parties file a joint letter informing the Court on the status of the case
by June 24, 2020, including if they consented to a bench trial. On June 24, 2020, the parties
wrote to the Court with differing positions regarding consent to a bench trial. (ECF No. 99.)
Plaintiff contended in the June 2020 letter that he did not a consent to a bench trial, that a jury
trial was demanded in the original filings in state court, that there were documents filed in a
New York State action that indicate a jury demand 1, and that a jury demand cannot be waived
by a scheduling order. (Id.) Defendant consented to a bench trial and argued that the case
should not be tried to a jury because Plaintiff waived a jury trial. The Court did not resolve the
dispute at that time.
On December 23, 2020, Defendant Smith’s previous counsel moved to withdraw from
the case (ECF No. 110) due to Defendant’s inability to pay, which was granted on February 2,
2021 (ECF No. 113). On October 29, 2021, the Court held a telephone conference with the
parties and ordered the Plaintiff to file a letter by November 29, 2021 stating whether he
wished to proceed with a jury or bench trial (which was contemplated for the first half of 2022).

Plaintiff does not argue in his briefing on this motion that a jury was demanded in state court.In fact, no jury
demand is included on the state court pleading or other documents filed with this Court as part of the removal
process. Thus, the Court assumes this statement was erroneous and that there was no jury demand made in state
court, as Plaintiff appears to now concede.
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(See ECF No. 122.) Plaintiff did not file a letter by that deadline and did not otherwise contact
the Court during that time. On December 13, 2021, the Court sua sponte gave Plaintiff an
additional week to file the letter regarding his desire for a bench or jury trial. (Id.) Plaintiff also
missed that deadline. Smith then retained pro bono counsel for purposes of representing him
at trial. (ECF No. 123.)
Then, on January 3, 2022, Plaintiff wrote a letter to the Court with an update on
Plaintiff’s doctors’ availability for trial and included a request to proceed by jury. (ECF No. 124.)
On February 4, 2022, Defendant, now represented by counsel, objected to Plaintiff’s request for
a jury on the grounds that the jury demand was untimely and that Plaintiff had waived his right
to a jury. (ECF No. 128.) The Court did not resolve the jury trial dispute at that time.
Defendant’s pro bono counsel asked for discovery to be reopened for the limited purpose of
Plaintiff producing documents Defendant had requested during discovery but that Plaintiff
failed to produce. (ECF No. 141.) The parties also jointly sought to reopen discovery to
schedule depositions of two individuals, which was granted. (Id.) Those depositions were
scheduled to be completed by December 30, 2022. (ECF No. 149.) The court then set deadlines
for a summary judgment motion directed to Plaintiff’s request for punitive damages. (ECF No.
153.)
On February 6, 2023, the parties consented to the undersigned for purposes of trial
pursuant to 28 U.S.C. § 636(c). (ECF No. 160.) Insofar as the issue of jury trial waiver had not
been resolved, this Court invited additional briefing on the issue. (ECF No. 172.)

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LEGAL STANDARD
The right to a jury trial is governed by federal law. Merrill Lynch & Co. Inc. v. Allegheny
Energy, Inc., 500 F.3d 171, 188 (2d Cir. 2007). Federal Rule of Civil Procedure 38 (“Rule 38”)
requires a jury demand to be timely served and filed. It 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 that is directed to the issue of service;
and filing the demand in accordance with Rule 5(d).” Fed. R. Civ. P. 38(b). Rule 38 further
provides that “[a] party waives a jury trial unless its demand is properly served and filed.” Fed.
R. Civ. P. 38(d).
Rule 81(c) specifies when and how a jury demand should be made in cases removed
from state to federal court. Fed. R. Civ. P. 81(c). It provides that if a party has made a jury
demand prior to removal, the party need not renew the demand after removal. It further
provides that if state law does not require an express demand for a jury trial, a party will not be
required to make one after removal unless the court orders a jury demand to be filed by a
specified date. Lastly, it provides that when all necessary pleadings are filed prior to removal,
the party seeking a jury trial must file a jury demand within 14 days after the removal petition
has been served.
Notwithstanding the above rules, Federal Rule of Civil Procedure 39 (“Rule 39”) grants
the Court discretion to order a jury trial even where one was not properly demanded. Fed. R.
Civ. P. 39(b).

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Additionally, Rule 6(b)(1)(B) states that when an act may or must be done within a
specified time, the court may, for good cause extend the time on a motion made after the time
has expired if the party failed to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B).
DISCUSSION
Plaintiff concedes that he did not timely demand a jury trial in compliance with Rule 38.2
Failure to comply with Rule 38 results in a waiver. Fed. R. Civ. P. 38(d).
To avoid waiver under Rule 38, Plaintiff argues that Rule 81 applies and permits him to
demand a jury trial at this late stage of the case, after discovery has concluded, because New
York law permits a jury demand to be made at this stage. Plaintiff’s argument is not persuasive.
As noted above, Rule 81 sets forth three scenarios for when a jury demand must be made in a
removed case. None of them apply here because (1) no jury demand was made in state court;
(2) New York requires a jury demand (although it does not specify when such a demand must
be made); and (3) issue was not joined prior to removal--that is, the answer was not filed until
after the case was removed to the federal court. Fed. R. Civ. P. 81; Cascone v. Ortho Pharm.
Corp., 702 F.2d 389, 391-92 (2d Cir. 1983) (finding Rule 81 inapplicable because none of the
scenarios laid out in the rule existed).
In the alternative, Plaintiff also asks the Court to exercise its discretion under Rule 39(b)
and order a jury trial. Defendant counters that Rule 39 does not apply here. A party who
deliberately waives a jury trial cannot later demand a jury trial pursuant to 39(b). Zhao v. State

Plaintiff alleges he “served its demand for a jury trial by ECF #124.” (ECF No. 131.) That letter was addressed to
Judge Abrams and filed on January 3, 2022, and Plaintiff stated, “we wish to proceed with a jury trial in this
matter.” (ECF No. 124.) Plaintiff does not argue this request was timely but rather claims that Rule 81 applies or
that the Court is permitted to grant the jury demand under Rule 39. (ECF No. 131; Pl’s Supp. Br. 3.)
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Univ. of New York, 2008 WL 2949384, at *3 (E.D.N.Y. July 15, 2008) (citing Figueroa v. Pratt
Hotel Corp., 158 F.R.D. 306, 308 (S.D.N.Y. Nov. 28, 1994). A deliberate waiver must be knowing
and intentional. Texas v. Penguin Grp. (USA) Inc., 2013 WL 1759567, at *7 (S.D.N.Y. Apr. 24,
2013) (emphasis added). Oral and written consent to a non-jury trial may constitute a waiver of
a jury trial when the plaintiff “clearly sought to waive his jury demand.” Kahn v. Gen. Motors
Corp., 865 F. Supp. 210, 213 (S.D.N.Y. 1994); see also Cheng v. Via Quadronno LLC, 2022 WL
17069800, at *8 (S.D.N.Y. Nov. 17, 2022) (finding jury waiver because parties filed letter with
the court advising it that the case was not to be tried to a jury and no jury demand was included
in the parties’ pleadings).
Plaintiff argues that stipulated case management plans and scheduling orders submitted
by the parties in which he agreed that this case was not to be tried before a jury do not
constitute a waiver of his jury right because they are not binding documents and subject to
modification. In support of this argument he relies on Town & Country Linen Corp. v. Ingenious
Designs LLC, a case that characterizes case management plans as “provisional” and insufficient
to waive a right to jury. See Town & Country Linen Corp. v. Ingenious Designs LLC, 2022 WL
1515120, at *4 (S.D.N.Y. May 13, 2022). However, Town & Country Linen Corp. is
distinguishable. In that case, the parties had entered into a contract that contained a waiver of
a jury trial for disputes arising out of the contract. The plaintiff argued that the defendants
waived the contractual jury trial waiver by submitting a case management plan indicating the
case would be tried by a jury and only seeking to enforce the contractual waiver at a late stage
in the case. The court found that the jury demand did not constitute a waiver of the underlying
contractual waiver. Among other reasons, the parties to the contract were not signatories to
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the case management plan. Id. The court’s use of the word “provisional” to describe the plan
was to emphasize that because it could be amended for good cause, it could not be the basis of
a waiver of a pre-existing contractual agreement waiving a jury trial that contained specific
methods for amendment. Plaintiff also relies on Huang v. Shanghai City Corp. where a case
management plan was deemed insufficient to waive the right to a jury trial where it stated the
case would not be tried to a jury. 2022 WL 2306870, at *5 (S.D.N.Y. June 27, 2022). That case
too is distinguishable. There, another defendant subsequently appeared in the case (that is,
after the submission of the case management plan by the other parties) and demanded a jury
trial in its answer within the Rule 38 deadline. Thus, the case management plan submitted by
the other parties did not act as a waiver of the new party’s right to demand a jury trial.
In this case, the parties entered into the stipulated case management plan and
scheduling order stating that the case would not be tried before a jury. They then amended the
plan without changing their position that the case would not be tried before a jury. The Court
adopted the plan originally and issued amended orders based on the amended plans that
extended discovery. (ECF Nos. 25, 28.) In this situation, courts have found that a statement in
the joint pretrial order that the case was not to be tried before a jury constituted a waiver.
Figueroa, 158 F.R.D. at 308 (S.D.N.Y. Nov. 28, 1994) (in personal injury case removed from New
York state court, pretrial order stating the case would not be tried to a jury was an effective
waiver). In addition to failing to timely request a jury trial pursuant to Rule 38 and stating in the
joint case management plan that the case would not be tried before a jury, the parties largely
completed discovery pursuant to that plan. When the parties expressed conflicting views about
whether there had been a waiver of a jury trial, the Court set a deadline for Plaintiff to demand
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a jury trial, but Plaintiff failed to submit a jury demand within the deadline set by the Court.
While it is true that Plaintiff stated that he wished to have a jury trial in a June 2020 letter to
the Court, he thereafter return to his earlier position in the case management plan that the
case was not to be tried to a jury when he failed to meet the Court’s deadlines at the end of
2021 to demand a jury trial. Thus, Plaintiff’s conduct in late 2021 coupled with his failure to
timely demand a jury trial in compliance with Rule 38 and written submissions to the Court in
three stipulated case management plans and scheduling orders constituted a waiver of a jury
trial.
Even if there were no waiver, Plaintiff’s request for an untimely jury demand would not
be proper under Rule 39(b). Courts in this district provide some leniency in cases removed
from New York state court where counsel “inadvertently” fails to file a jury demand because
counsel believed a jury demand could be filed at any stage of the proceeding, as is the practice
in New York state courts. Cascone, 702 F.2d at 390. However, mere inadvertence alone is an
inadequate basis for allowing an untimely filing of a jury demand. Id. Instead, the moving party
must provide a reason “beyond mere inadvertence” to justify relief under Rule 39(b). Noonan
v. Cunard S. S. Co., 375 F.2d 69, 70 (2d Cir. 1967). When evaluating whether to order a jury trial
under Rule 39(b) where one was not properly demanded, courts in the Second Circuit consider
four factors including whether (1) the state court has broad discretion to grant jury demands,
(2) the action is traditionally tried by juries, (3) the parties proceeded assuming there would be
a jury trial, and (4) granting the demand would unfairly prejudice the non-moving party. Zhao
v. State Univ. of New York, 2008 WL 2949384, at *2 (E.D.N.Y. July 15, 2008) (citing Higgins v.
Boeing Co., 526 F.2d 1004, 1007 (2d. Cir. 1975)).
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Under the factors considered in Higgins, the first two factors weigh in favor of Plaintiff
because the state court has broad discretion to grant jury demands and the action is
traditionally tried by juries. However, the third factor weighs in favor of Defendant. The parties
proceeded through discovery with the express understanding, as set forth in filings with the
court, that there would a bench trial. It was only after Plaintiff was denied permission to add a
defendant and his claim against Epps was dismissed on summary judgment that Plaintiff first
expressed his desire for a jury trial – and then only because the Court solicited the parties’
position on the issue. Defendant, however, expressed his position that Plaintiff had waived his
right to a jury trial. Later, when the Court began planning for trial, it gave Plaintiff a new
deadline to request a jury trial. Plaintiff missed that deadline. The Court sua sponte extended
Plaintiff’s deadline to demand a jury trial and Plaintiff also missed that deadline. Then, only
after Defendant obtained pro bono counsel for what it believed would be a bench trial (given
the missed deadlines for demanding a jury trial), did Plaintiff belatedly request a jury trial.
Defendant also argues persuasively that he would be prejudiced by Plaintiff’s change in trial
strategy because discovery was not conducted with an end view that this case would be tried
by a jury and his pro bono counsel when requesting reopening of discovery for limited purposes
did so under the assumption that there would be a bench trial. See Berman v. Parco, 986 F.
Supp. 195, 217 (S.D.N.Y. 1997) (“Prejudice may be found, for example, when the amendment is
sought after discovery has been closed”) (internal citation and quotation omitted); see also
Cheng, 2022 WL 17069800, at *9 (finding reversing a jury waiver without justification would
prejudice defendants who were entitled to assume the case would be a bench trial where there
was not a timely request for jury trial).
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Plaintiff argues he has demonstrated good cause for failing to meet the Court’s
deadlines for demanding a jury trial – that he was waiting to hear about his doctors’ availability
for trial, which was ordered to be included in the same letter as the jury trial demand. This
excuse is unavailing. Plaintiff could have written the Court to demand a jury trial and requested
an extension of time to advise on the doctors’ availability but did not do so. And, even when
Plaintiff submitted his letter setting forth his doctors’ availability together with the belated
request for a jury trial, he provided no reason for the delay. It is only now, when pressed by the
Court for a reason for the delay that Plaintiff has stated he was waiting to hear from the
doctors. In short, Plaintiff has not demonstrated any good reason for failing to timely request a
jury trial and comply with the Court’s deadlines or seek an extension of them. See Chen v.
Hunan Manor Enter., 340 F.R.D. 85, 91 (S.D.N.Y. Jan. 27, 2022) (declining to exercise discretion
under Rule 39(b) to grant late request for a jury where moving party did not demonstrate
anything beyond mere inadvertence to excuse delay). Thus, relief from Plaintiff’s waiver of a
jury trial under Rule 39(b) is not appropriate.
Further, granting Plaintiff leave to file a late jury demand under Rule 6(b)(1)(B) is not
proper because Plaintiff similarly did not demonstrate good cause or show that his delay was a
result of excusable neglect as required under Rule 6.

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CONCLUSION
For the reasons set forth above, the Plaintiff’s motion for a trial by jury is denied.
DATED:

May 16, 2023
New York, New York
______________________________
KATHARINE H. PARKER
United States Magistrate Judge

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