Noonan v. Cunard Steamship Co.

• Decision Date: 14 March 1967
• Docket Number: Docket 30908.,No. 295,295
• Citation: 375 F.2d 69
• Parties: Winifred D. NOONAN, Plaintiff-Appellee, v. CUNARD STEAMSHIP CO., Ltd., Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

375 F.2d 69 (1967)

Winifred D. NOONAN, Plaintiff-Appellee, v. CUNARD STEAMSHIP CO., Ltd., Defendant-Appellant.

No. 295, Docket 30908.

United States Court of Appeals Second Circuit.

Argued February 8, 1967.

Decided March 14, 1967.

Wendell Davis, Jr., New York City (Lord, Day & Lord, New York City), for defendant-appellant.

Paul C. Matthews, New York City, for plaintiff-appellee.

Before MOORE, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge:

Miss Noonan, a citizen of New Jersey, filed a complaint against Cunard Steamship Co., a British corporation, in the District Court for the Southern District of New York in March, 1966, for damages from a fall in her stateroom on the Queen Elizabeth resulting from a roll of the ship alleged to have been caused by negligence of the crew and unseaworthiness of that great vessel. In August her attorney filed a note of issue and statement of readiness acknowledging the completion of discovery in compliance with Local Calendar Rule 5. While the note of issue recited a jury demand at the time of the filing of the complaint, none had been made then or within 10 days after service of defendant's answer as F.R.Civ.P. 38(b) required. Upon being advised by the calendar clerk of the untimeliness of the demand, this being treated as having first been made in the note of issue, the attorney made a written motion before the civil calendar judge to have the case transferred from nonjury calendar No. 3 to jury calendar No. 1. His supporting affidavit furnished no reason except his own inadvertence why this relief should be granted, although it also mentioned that the statute of limitations had "not run and, therefore, it would be possible for the plaintiff to discontinue this action and start a new action with a timely jury demand." Defendant's counsel submitted an opposing affidavit, which stated that only 230 cases were pending on non-jury calendar No. 3 as compared with 1735 on jury calendar No. 1. Although the proceedings before the calendar judge were not reported, it is agreed that he first denied plaintiff's written motion to transfer to the jury calendar but then granted what defendant characterizes as an oral motion to dismiss without prejudice.¹ Defendant appeals from the judge's allowance of dismissal on that basis. We have jurisdiction under 28 U.S.C. § 1291, see 5 Moore, Federal Practice ¶ 41.053 at 1068-69 (2d ed. 1964).

Plaintiff's initial motion was that the judge avail himself of the provision of F.R.Civ.P. 39(b) which says that "notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues." Defendant has cited eighteen reported decisions by district courts within this circuit to the effect that mere inadvertence in failing to make a timely jury demand does not warrant a favorable exercise of discretion under Rule 39 (b), and plaintiff apparently has found none to the contrary either here or elsewhere. The effect of such a continued and consistent course of decision is to narrow the allowable scope of discretion; the area open to the judge's discretion has shrunk to determining whether the moving party's showing beyond mere inadvertence is sufficient to justify relief. See 5 Moore, supra, ¶ 39.09 at 718-19. Plaintiff does not seriously dispute that if the judge had granted the motion under Rule 39(b), we would have been obliged to reverse. This would not truly have been for an "abuse" or, in Judge Duniway's phrase, a "misuse" of discretion, see Pearson v. Dennison, 353 F.2d 24, 28 n. 6 (9 Cir. 1965); it would have been because the settled course of decision had placed a gloss upon the Rule which a judge could no more disregard than if the words had appeared in the Rule itself.

The interesting question is whether the matter should stand otherwise because relief from the inadvertent failure to make a timely jury demand was here accomplished by permitting dismissal without prejudice under F.R.Civ.P. 41(a) (2), which allows a plaintiff so to dismiss only "upon order of the court and upon such terms and conditions as the court deems proper." This leaves defendant even worse off in several ways. It must file a new answer; it has no assurance that further discovery may not be sought; and trial will be delayed since a new action will have to take its place at the bottom of the jury calendar. As against this, however, plaintiff also entails the same suffering from delay, and her attorney suggests there will be little or none since more judges are assigned to the jury than the non-jury calendar.

If this were truly the type of case where an appellate court must respect the trial judge's exercise of discretion, we might indeed be troubled in saying, in Judge Magruder's oft-quoted phrase, that we had "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." In re Josephson, 218 F.2d 174, 182 (1 Cir. 1954). However, we doubt that to be the appropriate test here; the fact that dismissal under Rule 41(a) (2) usually rests on the judge's discretion does not mean that this is always so. Several of the most important reasons for deferring to the trial judge's exercise of discretion — his observation of the witnesses, his superior opportunity to get "the feel of the case," see Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 216, 67 S.Ct. 752, 91 L.Ed. 849 ...