835 F.Supp. 1026 (E.D.Mich. 1993), 90-70987, Transmatic, Inc. v. Gulton Industries, Inc.

Docket Nº:90-70987.
Citation:835 F.Supp. 1026
Party Name:29 U.S.P.Q.2d 1541 TRANSMATIC, INC., Plaintiff, v. GULTON INDUSTRIES, INC., Defendant.
Case Date:November 08, 1993
Court:United States District Courts, 6th Circuit, Eastern District of Michigan

Page 1026

835 F.Supp. 1026 (E.D.Mich. 1993)

29 U.S.P.Q.2d 1541

TRANSMATIC, INC., Plaintiff,

v.

GULTON INDUSTRIES, INC., Defendant.

No. 90-70987.

United States District Court, E.D. Michigan, Southern Division.

Nov. 8, 1993

Owen E. Perry, Troy, MI, for plaintiff.

William F. Dudine, Jr., New York City, for defendant.

MEMORANDUM OPINION REGARDING USE OF ADVISORY JURY

ROSEN, District Judge.

I. INTRODUCTION

This case is an action for infringement of a patent covering a lighting fixture for buses. Plaintiff, Transmatic Inc., filed its original complaint on April 10, 1990 requesting injunctive relief and damages; Plaintiff also made a demand for a jury trial.

After a lengthy and laborious period of discovery and pre-trial motions, this Court on March 31, 1993, granted partial summary judgment to Plaintiff on the issue of the patent's validity over prior art, holding that the patent-in-suit was not obvious from prior art. However, the Court granted partial summary judgment to Defendant, Gulton Industries, Inc., on the issue of literal infringement, holding that its device did not literally infringe Plaintiff's patent. Transmatic, Inc. v. Gulton Industries, Inc., 818 F.Supp. 1052 (1993).

This left for resolution by trial the issues of: Plaintiff's claim of infringement under the doctrine of equivalents; Defendant's defense of inequitable conduct; whether Defendant's

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conduct in allegedly infringing the patent was willful; and any damages which might flow from a finding of infringement and willfulness.

On August 31, 1993, Defendant filed a motion to bifurcate trial and to try the issues of infringement by the equivalents and inequitable conduct before the Court. Plaintiff opposed this motion in a brief filed on September 17 and Defendant replied on September 22. At the final pretrial conference on this case held on September 23, 1993, the Court informed the parties that it would use an advisory jury on all matters in dispute. The Court issued an Order to this effect on October 4, 1993. That Order specifically provided: "The Court will impanel an advisory jury on the issues of liability and damages.... [O]nce the jury has given its verdict on liability and damages, the Court will treat this verdict as an advisory opinion."

Trial began in this case on October 25. On Monday, November 1, 1993, after more than a week of trial and after the close of its proofs, Plaintiff argued that the issue of willfulness was for the jury and not the court and that the jury's verdict on willfulness should be binding on the Court. Defendant objected, claiming it would be prejudiced because in preparing and presenting its case it relied upon the Court's October 4, 1993 Order directing that all issues were to be tried to the Court with an advisory jury.

Because of the uncertainty generated by this question, and the unsettled nature of the law in the division of responsibility between court and jury in these patent areas, the Court determined that it was in the interest of a clear record to issue this Memorandum Opinion and fully set forth the bases of the Court's rulings.

II. DISCUSSION

1. Plaintiff Has Waived Its Right To A Jury Trial By Not Objecting To The Court's Order Establishing An Advisory Jury Before Trial.

As an initial matter, the Court notes that although Plaintiff asserted that it had a right to a jury trial in its brief in opposition to bifurcation of the trial on the grounds that there were legal claims in issue, Plaintiff did not object to, or seek to clarify, any portion of the Court's October 4, 1993 Order denying Defendant's motion for bifurcation and calling for an advisory jury on all liability and damages issues. It was only after more than a week of trial, after Plaintiff had closed its proofs, that Plaintiff objected to the advisory jury, and even then its objection was solely on the grounds that the issue of willfulness should be for the jury. 1

The Sixth Circuit has held on at least two occasions that failure to object to a court order establishing a bench trial is waiver of the right to trial by jury. In Sewell v. Jefferson County Fiscal Court, 863 F.2d 461 (6th Cir.1988), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989), the court analyzed Fed.R.Civ.P. 39(a), which states:

The trial of all issues so demanded shall be by jury, unless ... the parties or their attorneys of record, by written stipulation made in open court and entered on the record, consent to trial by the court sitting without a jury.

The Sewell court continued with the following analysis:

The requirements of Rule 39(a) have "been interpreted broadly so as to encompass orders entered by the court and not objected to." ... In the instant case, the counsel for the plaintiff made an oral motion for a continuance of the trial date during the final pretrial conference on September 15, 1986. The court granted the motion orally, and then entered a written order on September 17, 1986 which stated that the case was continued until January 22, 1987 " for a trial before the court. " The court's order of September 17, 1986 was binding on all parties ... and constituted a "sufficient entry in the record to satisfy the requirements of Fed.R.Civ.P. 39(a)." ...

863 F.2d at 466 (emphasis in original).

The Sixth Circuit recently reaffirmed this approach in Mensah v. Shepard, 1991 WL 193751 (6th Cir.1991):

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Although Mensah's amended complaint contained a timely request for a jury trial, Mensah waived his right to a jury trial by failing to object to the district court's pretrial order scheduling a bench trial. A litigant waives his or her right to a jury trial, even after making a timely demand for a jury trial, by failing to object to a district court's written pretrial order providing for a bench trial.

1991 WL 193751, *1 (emphasis added). These cases clearly indicate that a failure to timely object to a court order establishing a bench trial is a waiver of trial by jury.

Plaintiff had notice that this Court was going to use an advisory jury as early as the September 23, 1993 final pretrial conference. An Order was entered to that effect on October 4. Yet Plaintiff waited until more than a week into trial, more than a month after the September 23 conference, and almost a month after the October 4 Order, to claim that it believed the issue of willfulness would and should be for the jury.

Given the fact that this case has been on the court's docket for more than three years now and virtually every discovery and pretrial ruling has been vigorously contested by both parties, including through motions for reconsideration, this Court believes that Plaintiff has waived the issue of whether the jury should be advisory on all matters in this case by not objecting to, or seeking to clarify, the Court's Order within 10 days, as required by the Local Rule, or at least prior to trial.

2. Plaintiff Does Not Have A Right To A Jury Trial On Any Matter Left In This Case.

Even assuming, arguendo, that Plaintiff did timely object to an advisory jury on the issue of willfulness or any other issue, the Court nevertheless believes that, given the issues left for trial, Plaintiff still does not have a right to a jury trial on this or any other issue remaining in the case. The Court will observe, however, that the road to this conclusion is not a...

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