Graham v. National Union Fire Insurance Co. of Pittsburgh, PA
Filing
95
MEMORANDUM OPINION AND ORDER granting Plaintiff's 92 MOTION for Jury Trial. The trial date is scheduled for 9/17/2014. This new trial date is reflected in an Amended Scheduling Order to be entered forthwith. Signed by Senior Judge David A. Faber on 7/17/2014. (cc: all counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ROBERT E. GRAHAM
Plaintiff,
v.
Civil Action No. 1:10-00453
NATIONAL UNION FIRE INSURANCE CO.
OF PITTSBURG, PA,
Defendants
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion for jury
trial (Doc. No. 92).
For the reasons that follow, the court
grants the motion.
I.
Background
The facts and procedural history of this case are detailed
in the latest opinion of the Fourth Circuit Court of Appeals in
this case.
Graham v. Nat’l Union Fire Ins. Co. of Pittsburgh,
PA, 556 F. App’x 193, 194-95 (4th Cir. 2014).
There, the Fourth
Circuit affirmed this court’s decision concerning the award of
prejudgment interest, and reversed this court’s decision
regarding plaintiff’s claim for consequential damages for
aggravation and inconvenience.
Id. at 199.
Specifically, the
court remanded the case to “afford Graham the opportunity to
develop and present his evidence of aggravation and
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inconvenience in connection with the breach already
established.”
Id.
at 198.
Upon remand, this court held a status conference on April
16, 2014 in order to address scheduling matters and assess
whether any additional discovery would be required.
Following
the status conference, a review of the record in this matter
revealed that neither party ever properly made a demand for a
jury trial.
The parties were informed of the absence of such a
demand, and on May 2, 2014, plaintiff filed the instant motion
requesting a jury trial.
Defendant opposes the request and
filed a response to that effect.
II.
Doc. No. 93.
Analysis
Under Federal Rule of Civil Procedure 38(b) and (d), a
party waives a right to a jury trial by failing to make a
written demand for one “no later than 14 days after the last
pleading directed to the issue is served.”
When a case is
removed from state court, as this case was in 2010, Rule 81
governs the applicability of the federal rules.
Specifically,
with respect to a demand for a jury trial, the Rule provides
that
A party who, before removal, expressly demanded a
jury trial in accordance with state law need not
renew the demand after removal. If the state law
did not require an express demand for a jury
trial, a party need not make one after removal
unless the court orders the parties to do so
within a specified time.
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Fed. R. Civ. P. 81(c)(3)(A).
A look at the West Virginia Rules
of Civil Procedure reveals that the state rule governing demands
for jury trials is virtually identical to the federal rule,
requiring a party to demand a jury trial or waive that right.
See W. Va. R. Civ. P. 38 (providing that failure to file a
demand within fourteen days of the most recent proceeding
directed to the issue “constitutes a waiver by the party of
trial by jury.”).
The bottom line of these provisions is that
plaintiff has waived his right to a jury trial by failing to
properly demand one.
Rule 39(b), the rule under which plaintiff moves, provides
that “[i]ssues on which a jury trial is not properly demanded
are to be tried by the court.
But, the court may, on motion,
order a jury trial on any issue for which a jury might have been
demanded.”
Fed. R. Civ. P. 39(b).
When exercising this
discretion, the court is to weigh the following factors:
“(1) whether the issues are more appropriate for
determination by a jury or a judge (i.e., factual
versus legal, legal versus equitable, simple
versus complex) . . . (2) any prejudice that
granting a jury trial would cause the opposing
party . . . (3) the timing of the motion (early
or late in the proceedings) . . . (4) any effect
a jury trial would have on the court's docket and
the orderly administration of justice . . . .”
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Wallace v. Nationwide Ins. Co., 94 F.R.D. 563, 565 (S.D.W. Va.
1982)(Haden, J.)(quoting Malbon v. Pennsylvania Millers Mut.
Ins. Co., 636 F.2d 936, 940 n. 11 (4th Cir. 1980).
A weighing of these factors in the present case supports
plaintiff’s motion for a jury trial.
favor permitting a jury trial.
Three of the four factors
First, the sole remaining issue
in this case – plaintiff’s entitlement to damages for
aggravation and inconvenience – is more appropriate for
determination by a jury.
As conceded by defendant, “annoyance
and inconvenience in a bad faith action are regularly determined
by a jury in run-of-the mill cases.”
Doc. No. 93 at 5.
Defendants’ contention that this case presents “unique
circumstances” is not availing.
The remaining issue in this
case is factual in nature – the amount of damages plaintiff is
entitled to for aggravation and inconvenience.
determination will not be particularly complex.
This
Assessing the
amount of damages is within the traditional purview of a jury,
and nothing about this case renders this function inappropriate.
Second, defendant will not be prejudiced by the granting of
a jury trial.
Defendants only argument that it will be
prejudiced is that plaintiff would likely present “extraneous
information” to a jury.
Doc. No. 93 at 7.
This is not the type
of prejudice contemplated by the second factor.
To the extent
defendant feels that certain evidence is irrelevant or otherwise
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should not be admitted, such concerns are appropriately
addressed by the rules of evidence.
September 17, 2014. 1
for a jury trial.
The trial is scheduled for
Defendant has sufficient time to prepare
Again, to the extent defendant believes this
is not sufficient time, there are other avenues to address that
concern such as a motion for a continuance.
The lack of
prejudice supports granting a jury trial.
Third, a jury trial will not negatively affect the court’s
docket and the orderly administration of justice.
Defendant
contends that a jury trial will “take at least twice as long” as
a bench trial.
Doc. No. 93 at 8.
and rejected in Wallace.
A similar argument was made
This court concurs with the statement
that “while a jury trial can require more ‘in courtroom time’
than a bench trial, the latter clearly places a greater burden
on this court’s limited time and resources than does the
former.”
Wallace, 94 F.R.D. at 566.
A jury trial will not have
a negative effect on this court’s docket.
is likely true.
In fact, the opposite
As such, this factor supports a jury trial.
The only factor which weighs against a jury trial is the
timing of the motion.
This action was filed on March 3, 2010,
and plaintiff did not seek a jury trial until May 2, 2014.
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So,
At the status conference held on April 16th, the court set the
trial for September 9th. However, for reasons appearing to the
court, the trial date has been changed to September 17, 2014.
This new trial date is reflected in an Amended Scheduling Order
to be entered forthwith.
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to be sure, plaintiff has made this request late in the
proceedings.
However, in the absence of prejudice, this factor
is less critical.
In Wallace, the court stated
Though
this
factor
weighs
heavily
against
Plaintiff who did not request a jury trial until
nearly two years after the commencement of this
action,
this
Court
cannot
conclude
that
Plaintiff's delay requires the denial of his
motion. This is especially true where, as is the
case here, Defendant has ample time to prepare
for a jury trial on the scheduled trial date.
94 F.R.D. at 566.
The late filing of this motion, while
weighing against a jury trial, does not overcome the other
factors discussed above.
III. Conclusion
For the reasons expressed above, plaintiff’s motion for
jury trial (Doc. No. 92) is GRANTED.
The Clerk is directed to
send copies of this Memorandum Opinion and Order to all counsel
of record.
IT IS SO ORDERED this 17th day of July, 2014.
Enter:
David A. Faber
Senior United States District Judge
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