Cascone v. Ortho Pharmaceutical Corp.
| Citation | 702 F.2d 389 |
| Decision Date | 10 March 1983 |
| Docket Number | No. 825,D,825 |
| Parties | Lisette CASCONE, Appellee, v. ORTHO PHARMACEUTICAL CORPORATION, Appellant. ocket 82-7694. |
| Court | U.S. Court of Appeals — Second Circuit |
Karl E. Seib, Jr., James V. O'Gara, Patterson, Belknap, Webb & Tyler, New York City, John N. Beidler, Johnson & Johnson, New Brunswick, N.J., for appellant.
Lawrence Bernstein, Stier & Bernstein, New York City, for appellee.
Before OAKES, PRATT, Circuit Judges, and WEIS, Circuit Judge. *
In this removed diversity case, plaintiff did not file a demand for a jury trial within the time designated in the Federal Rules of Civil Procedure. The district judge, describing the circumstances as a "trap for the unwary," found the "mere inadvertence stricture" inapplicable and granted the plaintiff's untimely request. We affirm. 94 F.R.D. 333 (D.C.).
Plaintiff filed this personal injury suit in the New York Supreme Court. On December 9, 1980, defendant removed the case to the United States District Court for the Southern District of New York. In conformance with the stipulation of the parties, the defendant's answer was filed on January 12, 1981. An amended answer followed on March 13, 1981.
No demand for a jury trial was filed by either party prior to a pretrial conference on April 12, 1982. Seemingly unaware that the federal rules require a written request within a specified time, plaintiff's counsel was surprised when he learned from the magistrate conducting the conference that this case was to be a bench trial. On the following day, plaintiff presented a petition for leave to file a jury demand out of time. The district court granted the petition.
The district court noted that plaintiff's counsel had "inadvertently" failed to file a jury trial notice because he was under the impression that he could do so at any stage of the proceeding, as is the practice in the New York state courts. The district judge recognized that in Noonan v. Cunard Steamship Co., 375 F.2d 69 (2d Cir.1967), this court held mere inadvertence of counsel was not an adequate basis for allowing an untimely filing of a jury trial notice. However, he also observed that in Higgins v. Boeing Co., 526 F.2d 1004 (2d Cir.1975), discretionary relief had been permitted in circumstances similar to those in the case at bar. Believing that Noonan had been substantially weakened by Higgins as well as by the passage of time, and finding no prejudice to defendant, the judge permitted plaintiff to "file an untimely jury demand."
The court then granted permission to appeal pursuant to 28 U.S.C. Sec. 1292(b), certifying the following three questions:
"1. Did the District Court have power to issue the Order of June 17, 1982?
2. Did the District Court abuse its discretion in issuing the Order of June 17, 1982?
3. Where a civil action was removed by defendant from state to federal court because of diversity, prior to service of an answer to the complaint, and plaintiff thereafter twice failed (after the first, and then after amended, answer) to file a timely jury demand pursuant to Fed.R.Civ.P. 38(b) solely because of her attorney's 'inadvertence' and 'mistaken impression that a jury demand could be filed at any stage of the proceeding,' did the District Court err in permitting plaintiff, pursuant to Fed.R.Civ.P. 39(b) or Rule 81(c), to file a jury demand 15 months after the date it was due, at a time when the case was ready for trial?"
Defendant appeals, contending that Noonan set out the limited area of discretion available to the district judge and therefore the cause should proceed nonjury. Plaintiff relies on Higgins to support an enlarged scope of discretion when the case is one removed to federal court.
The Federal Rules of Civil Procedure proceed on the basic premise that a jury trial is waived unless a timely demand is filed. Rule 38, applicable generally to cases in the federal courts, requires the written demand to be served upon the adverse party no later than ten days after service of the last pleading directed to the issue. Rule 39(b) permits a district judge to exercise his discretion and grant a jury trial despite the failure of a party to comply with the time provision.
Special provisions applicable to removed cases are in Rule 81(c) 1. Three instances are specified in the rule. The first is where all necessary pleadings have been served before removal. In that situation, the demand must be served by the removal petitioner within ten days after the petition is filed. If some other party desires a jury trial, he must ask for it within ten days after service of the notice of filing the removal petition.
The second instance is where a party has, before removal, requested a jury in accordance with state law. When that has been done, no further affirmative step is required in federal court.
The third situation addressed by Rule 81(c) is that in which state law does not require the parties to expressly claim trial by jury. In effect, the state from which the case is removed acts on the presumption that the parties desire a jury unless they affirmatively indicate otherwise. When a case is removed from a jurisdiction having such a practice, no additional steps need be taken in the federal court unless the district court directs that a specific demand be made.
None of the three situations cited in Rule 81(c) are directly applicable to the case at hand. Here the answer and its amendment were not filed until after the case had been removed to the federal court. No demand had been made in the state court and New York does not automatically grant jury trials. As pointed out in Higgins v. Boeing Co., 526 F.2d at 1007, the practice in New York falls within a gray area not covered by Rule 81(c).
The New York statute requires that the request for a jury in the state courts be made by filing it with a "note of issue." No time for the notice is specified. See N.Y.C.P.L.R. Sec. 4102(a) (McKinney's 1981 & Supp.1982). As the district court observed, "In essence, the decision as to whether or not a case should be tried by a jury need not be made in New York state courts until a case is actually ready for trial...." The state courts may grant a late request unless "undue prejudice" to other parties would result, id. Sec. 4102(e)--certainly a broad grant of discretionary power.
The action of the plaintiff's lawyer here in delaying his request for a jury until the pretrial conference is not unusual in New York practice. Had the case remained in the state court, his petition to permit late filing would have been granted. The district court and the plaintiff, however, do not deny that the request made in this case was untimely under the federal rules.
The issue before us is limited to whether the court had discretion to grant the request, albeit untimely. Our review of the designated times set out in the federal rules and the New York practice is intended to serve as background against which we evaluate the limits of discretion entrusted to the district judge.
Although Fed.R.Civ.P. 39 does not articulate any restriction on the district court's discretion and commentators have argued for liberality, see 9 C. WRIGHT & A. MILLER, FEDERAL PRACTICE & PROCEDURE, Sec. 2334 at 115-16 (1971), decisional law has imposed limitations. Notwithstanding appellate reluctance to interfere with trial judge discretion, this court in Noonan noted a trend of district court decisions that had shrunk the question "to determining whether the moving party's showing beyond mere inadvertence is sufficient to justify relief." 375 F.2d at 70 (emphasis in original). Indeed, granting a motion based only on inadvertence was said to be reversible error, because "the settled course of decision had placed a gloss upon the Rule" which a district court could not disregard. Id.
Although not mentioned as a basis of the decision, the plaintiff who neglected to ask for a jury trial in Noonan had chosen to file the suit in federal court. In that setting, it would not seem too exacting to expect that, having selected the...
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