Archie Comic Publications, Inc. v. DeCarlo

Full title: ARCHIE COMIC PUBLICATIONS, INC., Plaintiff, v. DANIEL S. DeCARLO, Defendant

Court: United States District Court, S.D. New York

Date published: Jan 11, 2002

00 Civ. 5686 (LAK) (S.D.N.Y. Jan. 11, 2002)

Opinion

00 Civ. 5686 (LAK).

January 11, 2002

ORDER

LEWIS A. KAPLAN, U.S. District Judge.

Plaintiff moves for leave to amend the second supplemental complaint to withdraw the sixth cause of action and to strike defendant's jury demand. Only the latter branch of the motion is resisted by defendant.

The essence of this dispute is whether this declaratory judgment complaint, after the withdrawal of the sixth cause of action, states a claim that is legal or equitable in nature.

Both sides agree that a claim for a declaratory judgment is not inherently legal or equitable and that the determination rests on the nature of the underlying dispute. But it is here that the litigants part company. Defendant maintains that the action in substance is one for copyright infringement, albeit inverted by means of the declaratory judgment mechanism, and therefore legal and triable as of right to a jury.¹ Plaintiff, for its part, disputes this and analogizes its claim to an equitable action to clear title to real property.

1 Plaintiff does not agree that a suit for a declaration of non-infringement would be triable as of right to a jury absent a counterclaim for monetary damages. Pl. Mem. 4 n. 1.

There is no reason to decide this issue now. The Court will empanel a jury in this case and submit to it any factual issues as to which defendant even arguably has a right to a jury trial. If the Court and the jury are in accord, the issue will be moot. Only if the Court and the jury disagree will there be any need to determine whether the defendant is entitled to have the jury find the facts. Should the Court then decide that it is the proper trier of any disputed facts, it will treat the jury's verdict as that of an advisory jury.

Accordingly, plaintiff's motion for leave to amend the second supplemental complaint to withdraw the sixth cause of action and to strike defendant's jury demand is:

(a) granted to the extent that the sixth cause of action is dismissed without prejudice to a subsequent action by plaintiff for breach of contract with respect to post-April 3, 2000 challenges to its ownership of the properties at issue, and otherwise

(b) denied without prejudice to plaintiff's right to move to strike the jury demand and for related relief in the event the trial results in a disagreement between the Court and the jury as to any factual issues submitted to the latter.

SO ORDERED.