Opinion
No. 00 Civ. 4711 (AGS).
January 3, 2001.
MEMORANDUM ORDER
In this personal injury action, which was removed from New York State Supreme Court, plaintiffs Nilsa Quiros Pender and Vincent Pender move, pursuant to Fed.R.Civ.P. 39(b), for leave to file a late jury demand. Defendant Toyota Motor Credit Corporation ("TMCC") opposes the motion. Defendant Chin H. Lee does not. For the reasons set forth below, the motion is granted.
I. BACKGROUND
Plaintiffs allege that Ms. Lee, negligently operating a vehicle leased from TMCC, struck plaintiffs' vehicle on May 27, 2000. As a result, plaintiffs claim, plaintiff Nilsa Pender suffered substantial personal injuries. (Compl. ¶¶ 2-16.) Plaintiffs filed suit in New York State Supreme Court, New York County, on June 2, 2000. (Affirm. of Thomas W. Russo dated Sept. 28, 2000 ("Russo Affirm.") ¶ 7; Aff. of Matthew K. Finkelstein dated Oct. 18, 2000 ("Finkelstein Aff.") ¶ 4.) Ms. Lee filed her answer and cross-claims on June 22, 2000. (Russo Affirm. ¶ 9.) TMCC filed a notice of removal in this District on June 26, 2000. (Finkelstein Aff. ¶ 4; Russo Affirm. ¶ 11.) TMCC filed its answer on July 7, 2000. (Finkelstein Aff. ¶ 4.) What happened after that is in dispute. ( Compare Russo Affirm. ¶¶ 13-19 with Finkelstein Aff. ¶ 5.) There is no question, however, that plaintiffs wrote to this Court on August 3, 2000 requesting permission to make the instant motion. (Russo Affirm. ¶ 20; Finkelstein Aff. ¶ 5.)
II. DISCUSSION
The time for making a jury demand is generally governed by Fed.R.Civ.P. 38 and 39. In an action removed from state court, however, the time for demanding a jury is governed by Fed.R.Civ.P. 81(c). Rule 81(c) envisions three possible scenarios: where all pleadings have been filed prior to removal; where a jury demand has been made prior to removal; and where state law does not require an express demand for a jury trial. Fed.R.Civ.P. 81(c). The first scenario is inapplicable here because TMCC's answer was filed eleven days after its notice of removal. The second scenario is inapplicable here because no party requested a jury trial prior to removal. (Had anyone done so, this motion would be moot.) The third scenario is inapplicable here because the Second Circuit has ruled that New York practice "falls within a gray area not covered by Rule 81(c)." Cascone v. Ortho Pharm. Corp., 702 F.2d 389, 390 (2d Cir. 1983) (citing Higgins v. Boeing Co., 526 F.2d 1004 (2d Cir. 1975)).
In the absence of a clear guidance from the rules, the Second Circuit has described three factors for district courts to weigh in deciding whether to allow late jury demands in actions removed from New York State courts. The first factor is whether the action is of a type traditionally tried by a jury. The second factor is whether the parties have proceeded on the assumption that they would try the case to a jury. The third factor is whether the party opposing the motion would suffer prejudice as a result of the court allowing the late jury demand. Cascone, 702 F.2d at 392-93; Higgins, 526 F.2d at 1007; see also, e.g., Thompson v. Beth Israel Medical Center, No. 96 Civ. 0509 (RPP), 1998 WL 689937, at *3 (S.D.N.Y. Oct. 2, 1998); Reliance Elec. Co. v. Exxon Capital Corp., 932 F. Supp. 101, 103 (S.D.N.Y. 1996).
As noted in Thompson, it does not matter whether these factors are viewed as arising under Rule 39(b) or Rule 81(c). The analysis is the same either way. 1998 WL 689937, at *2.
As applied to this action, the balance of these factors favors allowing the late jury demand. The first factor clearly favors granting the motion. This is an action for personal injuries. Personal injury cases are traditionally tried by a jury. Higgins, 526 F.2d at 1007; Priestley v. American Airlines, Inc., No. 89 Civ. 8265 (JMC), 1991 WL 19811, at *2 (S.D.N.Y. Feb. 1, 1991). The second factor also favors granting the motion. TMCC states that it "never `assumed' that this case would be tried by a jury, and . . . never acquiesced' to Plaintiffs' request for a jury trial." (Mem. of Law in Opp. to Pls.' Mot. for Leave to File a Late Jury Demand ("Def.'s Mem.") at 6.) TMCC's counsel represents that he never indicated that TMCC would consent to the late jury demand, or even that TMCC would likely consent. (Finkelstein Aff. ¶ 7) He states that he had to wait for his client to decide the issue. (Id.) While this does not show that TMCC assumed that the case would be tried by a jury, it does not show that TMCC assumed the opposite either. Rather, it appears that TMCC's position was "noncommittal." This is a sufficient basis for concluding that the second factor favors allowing the late jury demand. See Cascone, 702 F.2d at 393; Priestley, 1991 WL 19811, at *2 (citing Cascone); see also Turkenitz v. Metromotion, Inc., No. 97 Civ. 2513 (JGK)(AJP), 1997 WL 773713, at *7 (S.D.N.Y. Dec. 12, 1997) (second factor favored granting motion where opposing party was aware throughout discovery that case might be tried by a jury and "had to take that possibility into account in conducting discovery"). Moreover, even if TMCC has assumed that there would be a bench trial in this action, that would not overcome the third factor.
The third factor, the possibility of prejudice, is the most important. See Jean v. 536 Really Assoc., No. 97 CV 5075(EN), 2000 WL 264346, at *3 (E.D.N.Y. Jan. 6, 2000) (quoting Turkenitz, 1997 WL 773713 at *7). TMCC argues that it would be prejudiced by the granting of this motion because the nature of Ms. Pender's alleged injuries would leave a jury unable to render an impartial verdict. (Def.'s Mem. at 5.) This argument is not on point. "Any prejudice alleged must arise from the untimeliness of the jury demand and not simply from the possibility of a jury trial." Reliance Elec. Co., 932 F. Supp. at 103; Priestley, 1991 WL 19811, at *2 ("Defendant's prejudice must arise from the untimeliness of the jury demand not the fact that jury trial itself will take place."). TMCC argues that Figueroa v. Pratt Hotel Corp., 158 F.R.D. 306 (S.D.N.Y. 1994) stands for the proposition that there is prejudice within the meaning of the third Higgins factor when the jury would have trouble being impartial. (Def.'s Mem. at 8.) That is not what Figueroa held. In that case, Judge Kaplan noted, in dicta, that prejudice might potentially arise where a late jury demand would delay the trial or involve asking the jury to consider "an exceptionally complex or technical matter." 158 F.R.D. at 308. Judge Kaplan specifically noted, however, that the change of factfinder, by itself, is insufficient to create prejudice. Id. On the facts of Figueroa, a personal injury action, he held that:
defendants would suffer no cognizable prejudice were plaintiff's application granted. of course, defendants would be prejudiced in the sense that they would be subject to a trial in which the trier of fact would be a jury rather than the Court as they evidently prefer. But I do not regard that as prejudice in the sense relevant here."Id. (emphasis added). The denial of the late jury demand in Figueroa was based not on the Higgins factors, but on Figueroa's voluntary signing of a stipulated pretrial order calling for a bench trial. Id. Accordingly, TMCC must show that the timing of plaintiffs' jury demand would prejudice TMCC's ability to prepare and present its case. TMCC, however, makes no such argument. It nowhere claims that, in reliance on the prospect of a bench trial, it has conducted discovery differently than it would have if plaintiffs had made a timely jury demand. Absent a showing of specific prejudice resulting from the timing of plaintiffs' request for trial by jury, this factor favors granting plaintiffs' leave to file a late jury demand. See, e.g., Turkenitz, 1997 WL 773713, at *7 Accordingly, the balance of the Higgins factors favors granting the instant motion and allowing plaintiffs to file their jury demand.
To the extent that TMCC is worried that a jury will be swayed by the nature of Ms. Pender's alleged injuries, it should be noted that TMCC will have the opportunity to make motions designed to minimize any such prejudice ( e.g. motions in limine to exclude evidence under Fed.R.Evid. 403). The Court expresses no view as to the merits of any such motion; it simply notes that the making of such motions is a routine part of trial practice, especially during jury trials.
III. CONCLUSION
For the reasons set forth above, plaintiffs' motion for leave to file a jury demand is granted.
SO ORDERED.