Free Order on Motion to Strike - District Court of Connecticut - Connecticut

E Case 3:03-cv-01016-WWE Document 81 Filed O4/13/2004 Page1 of 4 ——
i ““%%ES“TR%“i-i“§’F D§O%“§§C%E駒TURT F s L E D
Q z .. ZUUL1 APR I3 A 8= 53
( - JULIE DILLON RIPLEY MILLER, :
I C‘ C . I
l Pl¤¢¤¤iff» g U‘*»1;E}eii¤Ré€E.°¤°w?RT ,
K V. ‘ 2 CASE NO. 3:03CVOlOl6(RNC) I
{ Q MERRILL LYNCH CREDIT CORP., ; /
{ Defendant. ; I
} - RULING AND ORDER r
l U Plaintiff filed this acticn in Superior Court asserting [
! i numerous claims under Connecticut law, including conversion,
f i fraudulent misrepresentation, recklessness, negligence, and
l i violations of the Connecticut Unfair Trade Practices Act, Conn.
S L Gen. Stat. § 42—110a, et seg. Defendant removed the action based
I on diversity of citizenship. Plaintiff, having failed to make a
timely jury demand, attempted to correct that oversight by
L L including a jury demand in a second amended complaint. Defendant
Z has moved to strike the jury demand as untimely. Plaintiff has I
i asked for an extension of time to file the jury demand, which, if
Z granted, would moot the motion to strike. For the reasons that
i follow, the motion for an extension of time is granted and the
Z motion to strike is denied. `
i I. Eaggg
Â¥ Defendant removed this action in June of last year. /
ii I Plaintiff filed an amended complaint in July. In October, the X
i parties stipulated that plaintiff would file a second amended - I
complaint dropping two emotional distress claims and defendant, F
l
l
l
l
it ...__ f`I“"l"`_ ` W" _- O `
’_Drrrrrfrrrr—r—-ee— · I
—-+—e—e—e—e.d-..a.—i..;;?i‘i.,i.- ..._ "I""""I " wl "

I .
I Case 3:03-cv-01016-WWE Document 81 Fnled 04/13/2004 Page 2 of 4
I
I in turn, would not pursue discovery requests relevant only to
I -
I I4 those claims. In November, plaintiff filed the second amended
I I complaint, which included the first jury demand made in this I
I I action. .
I I II. Discussion
I .
I I In federal court, if a party wants a jury to decide an
I K
I I issue, it must demand a jury trial "not later than 10 days after
{ I
I I the service of the last pleading directed to such issue." Fed.
I `
I I R. Civ. Pro. 38(b).l The second amended complaint adds no new
I .
I I issues, so it cannot serve as the basis for the filing of a
I
I timely jury demand. Lanza v. Drexel & Co., 479 F.2d 1277, 1310
I
I · . . .
I (2d Cir. 1973). Since the last pleading directed to the previous
I complaint was filed in July, the November jury demand is
I ·
I untimely.
I
I
I A court's discretion to permit a late jury demand is
-
I somewhat broader in removed cases than original actions. See
I
Cascone v. Ortho Pharmaceutical Cor ., 702 F.2d 389, 392-93 (2d
I ..n._..,..r..i.._.._.._.._.._.._._J1.
I
I Cir. 1983).2 The pertinent factors in any case are: (1) whether
I
I the action is traditionally tried by a jury, (2) whether the
I I parties have proceeded on the assumption that there would be a
l
I 1 Other rules govern the timeliness of jury demands in some
I removed cases. Fed. R. Civ. Pro. 81(c). Those rules do not
I apply to this action because at the time of the removal all
I necessary pleadings had not been served, plaintiff had not at
I that time made a jury demand, and applicable state law requires
I express jury demands. Id.; Conn. Gen. Stat. § 52-215; Nysgwsgi
| v. Sitmar Cruises, 127 F.R.D. 446, 447-48 (D. Conn. 1989).
I 2 In original actions, the moving party must show cause
I "beyond mere inadvertance." Id; at 392—93.
I
I 2 I
I
I
I
I I
I
__ I _....

I Case 3:03-cv-01016-WWE Document 81 Filed 04/13/2004 Page 3 of 4
I
l i
i i jury trial, and (3) whether granting the late demand would cause
i l . undue prejudice to the defendant. gee Higgins v. Boeing Co., 526
I E U F.2d 1004, 1007 (2d cir. 1975).
j E The first factor weighs in favor of the plaintiff. She i
{ E complains about allegedly tortious conduct and seeks an award of
i N money damages. The second factor does not tip either way.
% 1 Defendant's counsel claim to have proceeded on the assumption
i i that the action would be tried without a jury, while plaintiff's
{ counsel claim to have proceeded on the opposite assumption.
E Crediting both representations, this factor is neutral. The
{ third factor tips in favor of the defendant but only slightly.
\ Defendant claims that had it known the case would be tried by a
i jury, it would have videotaped two depositions. According to
X plaintiff's counsel, however, one of the depositions was not
i V started until after defendant was aware of plaintiff's late jury
! demand, and the other remains to be completed. Weighing the
! first and third factors, I find that the balance tips in favor of
i plaintiff. l
Q Also to be considered is whether plaintiff has acted in good
l faith. -Defendant asserts that plaintiff acted in bad faith by
x filing her jury demand along with the second amended complaint
5 without giving prior notice to opposing counsel. Plaintiff's
\ counsel claim that they did not discover their need to make a
! jury demand until just before the second amended complaint was
Q filed. On this record, I cannot conclude that the demand was
X ` made in bad faith, though it clearly would have been better if
I A .
{ 3
l
\ i
I 5
Q K
¤ a

. ‘;*“‘—“‘——“·—"—"“‘—‘“—·I
I
I I Case 3:03.-cv-01016-WWE Document 81 Filed O4/13/2004 Page40f4
I I I
I I _ counsel had moved for leave to file a late jury demand, rather I
I than filing the jury demand along with the second amended
I complaint as if it were timely.
I III. Conclusion
I I Accordingly, plaintiff's motion for an extension of time
I
I I [Doc. # 44] is hereby granted, and defendant's motion to strike
I [Doc. # 35] is hereby denied as moot.
I So ordered.
I Dated at Hartford, Connecticut this 12th day of April 2004.
I 7
I
I a
I A C
I F. Robert N. Chatigiyj
I I United States District Judge I
I
I
I .

I 4
I