Brenner, et al. v. LM General Insurance Company

Filing 42

Memorandum Opinion and Order: Plaintiff's jury demand (Doc. No. 41 ) is stricken from the record. Judge Sara Lioi on 2/16/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SUSAN BRENNER, et al.,
PLAINTIFFS,
vs.
LM GENERAL INSURANCE
COMPANY,
DEFENDANT.

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CASE NO. 5:16-cv-1117
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

The Court is in receipt of plaintiff’s untimely jury demand. (Doc. No. 41.) For the
reasons set forth herein, the jury demand is stricken and this case will proceed as planned with a
trial to the Court.
Plaintiffs filed this action in Stark County Court of Common Pleas on April 20, 2016. No
jury was demanded in the original complaint. (See Doc. No. 1-3 [sealed].) After removal to this
Court, a first amended complaint was filed on May 17, 2016; it also contained no jury demand.
(See Doc. No. 8.) On May 18, 2016, defendant filed its answer to the first amended complaint,
also with no jury demand. (See Doc. No. 9.)
The Court conducted the Case Management Conference on June 28, 2016, and issued the
Case Management Plan and Trial Order (CMPTO) setting a non-jury trial on a two-week standby
basis for May 1, 2017. (See Doc. No. 16.) On February 14, 2017, upon the parties’ joint motion,
the Court amended the CMPTO, continuing the non-jury trial to the two-week standby period
beginning July 31, 2017. (See Doc. No. 40.) The next day, plaintiffs filed their jury demand.
(Doc. No. 41.)

Fed. R. Civ. P. 38(b) provides, in relevant part, that “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[.]” On this record, a jury
demand would have been due 14 days after defendant’s answer was filed. No such timely
demand was filed.
Rule 38(d) provides, in relevant part, that “[a] party waives a jury trial unless its demand
is properly served and filed.” “Such a waiver is complete and binding ‘even though it was
inadvertent and unintended and regardless of the explanation or excuse.’” Root v. Consol.
Freightways Corp. of Delaware, Inc., No. 86-6149, 1987 WL 24092, at *1 (6th Cir. Dec. 1,
1987) (quoting Washington v. NYC Bd. of Estimate, 709 F.2d 792, 797-98 (2d Cir.), cert. denied,
464 U.S. 1013 (1983).)
Plaintiff’s jury demand (Doc. No. 41) is stricken from the record.

IT IS SO ORDERED.
Dated: February 16, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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