Opinion
No. CV 06 5000632 S S
February 26, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (127.00)
The defendant has moved to strike the plaintiff's claim for the jury docket in this case which alleges injury arising from unsafe premises. The complaint was returned to court on February 14, 2006. An answer with a special defense was filed on June 27, 2006 and a reply to the special defense was filed on June 29, 2006. The plaintiff filed a claim for the jury list on either January 4 or 5, 2007, and the defendant filed the instant motion to strike the case from the jury list on January 12, 2007.
General Statutes § 51-239b states that a jury in civil actions "shall be deemed waived" unless requested by either party in accordance with the provisions of General Statutes § 52-215. Section 52-215 sets forth the following: a case may be entered onto the jury docket (a) upon the written request of any party within thirty days of the return day; (b) upon request of either party within ten days after a fact issue is joined; (c) upon written request of all parties, and (d) "by order of the court." Practice Book § 14-10 directs that all jury claims shall be made in writing and filed within the time allowed by General Statutes § 52-215. In this case the claim for the jury docket was not filed within the tune limits set out in § 52-215, nor have all the parties requested a jury trial in writing.
In Falk v. Schuster, 171 Conn. 5 (1976) a jury claim was filed by the plaintiff more than two years after the pleadings were closed. The trial court denied two motions by the defendant to strike the case from the jury docket because the claim was not filed within the time parameters of § 52-215. The Supreme Court held that the trial court's denial of the defendant's motions was not an abuse of discretion and was tantamount to granting a motion to place the case on the jury docket. Based on Falk this court concludes that a trial court has discretion to deny a motion to strike a case from the jury docket even if the jury claim is not filed within the time periods set out in § 52-215, and such a denial would act to place the case properly on the jury docket "by order of the court."
Nevertheless, trial courts have exercised such discretion very sparingly. In Long v. Hartford Neighborhood Centers. Inc., Superior Court, judicial district of New London at Norwich, Complex Litigation Docket, CV 98 0122679 (May 22, 2002, McLachlan, J.) the court stated "in most cases, . . . a late filing of a jury claim has not been allowed." In Dietz v. Yale-New Haven Hospital, Inc., Superior Court Judicial district of New Haven, CV94368317, (June 22, 1998, Silbert, J.) the court said "[a] party that neglects to file its jury claim in a timely fashion does so at its peril . . . In most cases, [the ten day period to file a jury claim after issue has been joined] should be . . . and has been . . . strictly enforced." However, in Dietz the trial court found circumstances to warrant denying a motion to strike a jury claim.
The constitutionality of a statute setting time limits on the right to claim a jury trial has been upheld. McKay v. Fair Haven and Westville Railroad Co., 75 Conn. 608, 611 (holding that predecessor statute to § 52-215 "neither deprive[s] parties of their rights to a jury trial nor impose[s] any arbitrary or unreasonable requirements . . .").
In this case, the plaintiff was seriously tardy in filing her claim and in opposing the motion to strike, presents no extenuating circumstances to justify an exception to the rules. The court grants the motion to strike. See Anastasia v. Mitsock, Superior Court, judicial district of New Haven, CV 05 4012156 (December 1, 2006, Lager, J.); Kligler v. St. Luke's Foundation, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 040199333 (July 1,2005, Biller, J.).