Free Order on Motion for Leave to File - District Court of Connecticut - Connecticut

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ase 3:03-cv-00372-AVC Document 15 Filed 10/21/2003 Page 1 of 1
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UNITED STATES DISTRICT COURTF- - -— 4 ,·
DISTRICT OF CONNECTICUT - ‘J:·' L y. W
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3:03CV00372(AVC). October 10, 2003. This is an action for damages E
brought pursuant to 42 U.S.C. § 1983, article first, section 7 of the
Connecticut constitution, and common law tenets concerning (
negligence, invasion of privacy, intentional infliction of emotional 1
distress and negligent infliction of emotional distress. On February l
14, 2003 the plaintiff filed the complaint in the superior court of |
Connecticut. On March 3, 2003 the matter was removed to federal
court. On May 29, 2003 the defendants filed their answer. The i
plaintiff has filed the within motion for permission to file a jury l
demand (document no. 10). For the reasons hereinafter set forth, the i
motion is GRANTED.
It is undisputed that the plaintiff failed to timely file a jury
demand. Nevertheless, the court has discretion to grant a motion to
file an untimely jury demand. gg; Cascone v. Ortho Pharmaceutical E
Corp., 702 F.2d 389, 392—93 (2d Cir. 1983): éss also Fed. R. Civ. P. I
39(b). The trial court’s discretion is particularly broad in those
cases that have been removed to federal court by the defendant as
compared to those cases originally filed in federal court. gg;
Cascone v. Ortho Pharmaceutical Corp., 702 F.2d 389, 392-93 (2d Cir. ,
1983) (although trial court “may not overlook lack of compliance with (
. . . federal procedure . . . in removed cases, there is nonetheless
some ‘play in the joints’ for accommodating a removed party who may
not be at ease in the new surroundings imposed on him"). In
exercising its discretion to determine if a jury request should be
{ granted in an action that has been removed, the court is guided by
the three part test of Higgins v. Boeing Co., 526 F.2d 1004, 1006-7
(2d Cir. 1975). Those factors include: (l) whether the state statute ,
grants judicial discretion that comports with Rule 39(b); (2) whether {
the case is one traditionally tried by juries; and (3) whether the ‘
defendant would be prejudiced by the court's action in granting the {
jury request. §gg Higgins v. Boeing Co., 526 F.2d 1004, 1006-7.
Applying these factors, the court concludes that the plaintiff’s 5
motion should be granted. First, the applicable state statute does E
grant judicial discretion similar to that of Rule 39(b). ggg Conn. ,
Genggstd;. § 52-215 (“any such case may at any time be entered in the (
dochgt a§ha jury case . . . by order of the court"). Additionally,
g gthe comggafht alleges causes of action that are traditionally tried ‘
y gbriegbgg Further, the defendant has articulated no prejudice it .
&&JEould suffer if the motion is granted. Indeed, the court notes that (
_m%he gwditrgpti$§Gand therefore any prejudice in the preparation of the i
Qhpefehdanisftcase would be minimal. gf; Wysowski_yg_§i;mgr_Qrgi§eg,
127 §§J .QsM446, 449 (D. Conn. 1989). The motion is therefore
GRANTED. T?-* 1
SO ORDERED.
Alfred V. Covello, U.S.D.J. i
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