Nightingale Nursing Services Inc. v. Carolina Pines at Asheville LLC

Filing 31

ORDER granting 26 Motion to Strike and Plaintiff's 24 Request for jury trial is DEEMED INEFFECTIVE. 25 Pretrial Order and Case Management Plain is AMENDED to indicate that this matter will proceed by way of a bench trial. All other provisions of the Pretrial Order and Case Management Plan remain in effect. Signed by US Magistrate Judge W. Carleton Metcalf on 9/24/2024. (hms)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:24-cv-00048-MR-WCM
NIGHTINGALE NURSING SERVICES,
INC.,
Plaintiff,
v.
CAROLINA PINES AT ASHEVILLE, LLC,
Defendant.
_______________________________

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ORDER

This matter is before the Court on Defendant’s “Opposition to Jury Trial
and Motion to Strike Demand for Jury Trial as Untimely” (the “Motion to
Strike,” Doc. 26).
I.

Relevant Background

On January 10, 2024, Plaintiff Nightingale Nursing Services, Inc.
(“Plaintiff”) filed its Complaint against Carolina Pines at Asheville LLC
(“Defendant”) in state court for breach of contract and unjust enrichment.
Plaintiff’s Complaint did not include a jury demand. Doc. 1-1.
Defendant removed the matter on February 12, 2024. Doc. 1.
On February 20, 2024, Defendant filed an Answer to the Complaint, as
well as a Partial Motion to Dismiss. Docs. 7, 8, 9. Defendant did not include a
jury demand in its Answer.

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On July 1, 2024, the Partial Motion to Dismiss was denied, and
thereafter the parties were instructed to conduct an initial attorneys’
conference. See Doc. 18. The deadline for that conference was subsequently
extended, at the parties’ joint request, to allow them an opportunity to conduct
early settlement discussions in this matter as well as in two other cases.
An early mediation did not result in a settlement and, therefore, on July
25, 2024, the parties filed their report of initial attorneys’ conference (the
“Report,” Doc. 20). That Report did not reference a jury demand by either party.
On August 9, 2024, the undersigned conducted an initial pretrial
conference with counsel for the parties. The question of whether this matter
would be tried through a bench trial or a jury trial was not discussed.
On August 12, 2024, and in order to finalize a Pretrial Order and Case
Management Plan, the undersigned by text order directed the parties to file
statements advising whether a jury trial was requested.
Plaintiff filed a notice of jury trial request on August 16, 2024 (the
“Notice,” Doc. 24). A Pretrial Order, which indicated this matter would proceed
by way of a jury trial, was entered shortly thereafter. Doc. 25. Subsequently,
Defendant filed the Motion to Strike. Doc. 26.
Plaintiff has responded, and Defendant has replied. Docs. 28, 30.

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II.

Discussion

Rule 38 of the Federal Rules of Civil Procedure provides in part that “[o]n
any issue triable of right by a jury, a party may demand a jury trial by (1)
serving the other parties with a written demand – which may be included in a
pleading – no later than 14 days after the last pleading directed to the issue is
served....” Fed. R. Civ. P. 38(b). The Rule further states that a “party waives a
jury trial unless its demand is properly served and filed.” Fed. R. Civ. P. 38(d).
Here, Plaintiff did not make a demand for a jury trial when it originally
filed this case in state court, or request a jury trial anytime thereafter, until
filing the Notice. In that regard, Plaintiff states that, after reviewing the
August 12 text order, it “decided, based on information it obtained over the
course of this litigation only long after Defendant filed their answer, that it
would like the case to be heard before a jury.” Doc. 28 at 2. Additionally,
Plaintiff argues that by entering the Pretrial Order, the Court treated
Plaintiff’s Notice “as a request for a jury trial notwithstanding a waiver, and,
in its discretion, granted the request in the scheduling order.” Id. at 4-5.
Respectfully, this argument overreads the August 12, 2024 text order
and the subsequent Pretrial Order. The text order was intended to clarify the
status of any jury demand so the Pretrial Order could be finalized; the Court
did not state that it was acting sua sponte to extend Plaintiff’s deadline to
make such a demand under Rule 38, nor did it intend to do so.
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Accordingly, and having reviewed the Motion to Strike, the related
briefing, and applicable authorities, the undersigned concludes that Plaintiff
has waived its right to a jury trial and that the Motion should be allowed.1
IT IS THEREFORE ORDERED THAT:
1. The Motion to Strike (Doc. 26) is GRANTED, and Plaintiff’s request for
jury trial (Doc. 24) is DEEMED INEFFECTIVE.
2. The Pretrial Order and Case Management Plain (Doc. 25) is AMENDED
to indicate that this matter will proceed by way of a bench trial. All other
provisions of the Pretrial Order and Case Management Plan remain in
effect.
Signed: September 24, 2024

Pursuant to Rule 39(b), a court “may, on motion, order a jury trial on any issue for
which a jury might have been demanded.” Fed. R. Civ. P. 39. While Plaintiff’s
opposition to the Motion to Strike, as well as Defendant’s reply, reference this
provision, the Local Rules prohibit motions from being included in responsive briefs
and Plaintiff has not otherwise made a motion that seeks relief under Rule 39.
L.Cv.R. 7.1(c)(2). Consequently, the undersigned has not addressed the question of
whether a jury trial should be ordered, notwithstanding Plaintiff’s waiver.
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