Leibowitz v. Behre et al
Filing
31
MEMORANDUM OPINION AND ORDER: Plaintiff's motion for a jury trial, notwithstanding his failure to comply with Rule 81(c)(3), is GRANTED. By January 8, 2018, the parties shall submit their requests to charge and proposed voir dire questions. Th e final pretrial conference will proceed as scheduled on January 17, 2018, at 9:30 a.m. Jury selection and trial will proceed on January 22, 2018 at 9:30 a.m. The Clerk is instructed to terminate the motion. (Doc. #28), and as further set forth in this order. Motions terminated: 28 FIRST LETTER MOTION for Extension of Time to file Jury Demand addressed to Judge Vincent L. Briccetti from Stephen Cerrato dated 12/19/2017, filed by Dean Leibowitz. (Jury Selection set for 1/22/2018 at 9:30AM before Judge Vincent L. Briccetti. Jury Trial set for 1/22/2018 at 9:30 AM before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 12/28/2017) (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DEAN LEIBOWITZ,
:
Plaintiff,
:
:
v.
:
:
CHARLES BEHRE, BEHRE ENTERPRISES,
:
LLC, and HIGH NOON TRUCKING, INC.,
:
Defendants.
:
MEMORANDUM OPINION
AND ORDER
16 CV 376 (VB)
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For the reasons set forth below, plaintiff’s motion that this case be tried to a jury (Doc.
#28) is GRANTED.
This is an action to recover damages for personal injuries arising out of a motor vehicle
accident in Mt. Vernon, New York. In or about April 2015, plaintiff commenced the action in
Supreme Court, Westchester County, by filing a summons and complaint, and defendants served
an answer on October 29, 2015. On January 18, 2016, defendants timely removed the case to
this Court based on diversity of citizenship. (Doc. #1).
Neither party filed a timely demand for a jury trial, either before or after removal.
However, at the initial conference on March 14, 2016, the parties jointly submitted a proposed
civil case discovery plan and scheduling order, which the Court “so ordered,” stating, among
other things, that “[t]his case is to be tried to a jury.” (Doc. #6). And following a period of
pretrial discovery, counsel for both parties attended a case management conference on June 22,
2017, at which the case was set for trial on January 22, 2018, and a schedule for pretrial
submissions was agreed upon. Among other things, the parties agreed, and the Court “so
ordered,” that by December 22, 2017, the parties would file requests to charge and proposed voir
dire questions. (Doc. #22).
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By letter dated December 6, 2017, plaintiff’s counsel asked the Court for “clarity”
regarding whether this case would be tried to a jury or not. (Doc. #24). Defense counsel
responded by letter dated December 7, 2017, stating that since no party demanded a jury trial, the
trial should be a bench trial. (Doc. #25). The Court conducted a telephone conference on
December 14, 2017, following which plaintiff filed the instant letter-motion, which defendants
opposed.
Rule 81(c)(3) of the Federal Rules of Civil Procedure provides, in pertinent part, that if
all pleadings have been served before removal, as is the case here, a party otherwise entitled to a
jury trial must be given a jury trial if it serves a demand within 14 days after it either files a
notice of removal or is served with a notice of removal. Rule 39(b), which applies to removed
cases pursuant to Rule 81(c)(1), provides that if a jury trial is not properly demanded, the case
will be tried by the Court, except that the Court “may” order a jury trial on any issue otherwise
triable by jury.
“Rule 39(b) permits a district judge to exercise his discretion and grant a jury trial despite
the failure of a party to comply with the time provision.” Cascone v. Ortho Pharmaceutical
Corp., 702 F.2d 389, 391 (2d Cir. 1983). In Cascone, the Second Circuit made clear that, in a
case removed from a New York state court, Rule 39(b) should be more liberally construed than it
would be in a case originally commenced in federal court. Id. at 392. This is because in New
York practice – unlike in federal practice – a jury demand need not be made until the case is
actually ready for trial, and even then, under CPLR § 4102(a), (e), the court has broad discretion
to excuse an untimely request absent “undue prejudice” to other parties. Id. at 391. As the court
in Cascone put it: “Although we may not overlook lack of compliance with the federal
procedural rules in removed cases, there is nonetheless some ‘play in the joints’ for
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accommodating a removed party who may not be as at ease in the new surroundings imposed
upon him.” Id. at 392. The Cascone court thereby distinguished the more restrictive rule
announced in Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2d Cir. 1967), a case originally
commenced in federal court; namely, that mere inadvertence of counsel is insufficient to permit
the untimely filing of a jury demand. Cascone v. Ortho Pharmaceutical Corp., 702 F.2d at 392.
In exercising its discretion here, the Court has considered the following factors: First,
this is a personal injury case based on negligence, which is certainly the type of case ordinarily
tried to a jury. Second, the parties clearly operated under the assumption that the trial would not
be a bench trial – from the initial conference when the parties jointly proposed an order that
included an explicit statement that the case would be tried to a jury, to the post-discovery
conference when the parties agreed on a schedule for pretrial submissions, including the
submission of requests to charge and proposed voir dire, which would only be necessary for a
jury trial. Third, although defendants do not consent to the late filing of the jury demand, they
have suffered no prejudice whatsoever as a result of the late demand. See Higgins v. Boeing
Corp., 526 F.2d 1004, 1007 (2d Cir. 1975). And finally, “courts [should] indulge every
reasonable presumption against waiver” of the constitutional right to a jury trial. Aetna Ins. Co.
v. Kennedy, 301 U.S. 389, 393 (1937).
The Court has considered defendants’ arguments and finds them to be without merit. The
Second Circuit in Cascone plainly did not limit its liberal reading of the rule to a situation in
which the three specified instances in Rule 81(c)(3) are not present. Moreover, haling citizens
into court to decide a private dispute between private parties, as inconvenient as that may be, is
exactly what the Founders had in mind when they included the guarantee of a jury trial in the Bill
of Rights.
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CONCLUSION
Plaintiff’s motion for a jury trial, notwithstanding his failure to comply with Rule
81(c)(3), is GRANTED.
By January 8, 2018, the parties shall submit their requests to charge and proposed voir
dire questions. The final pretrial conference will proceed as scheduled on January 17, 2018, at
9:30 a.m. Jury selection and trial will proceed on January 22, 2018 at 9:30 a.m.
The Clerk is instructed to terminate the motion. (Doc. #28).
Dated: December 28, 2017
White Plains, NY
SO ORDERED:
____________________________
Vincent L. Briccetti
United States District Judge
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