Opinion
No. 98 Civ. 9152 (HBP).
February 7, 2001.
Carl M. Grant, Esq., Michael H. Schwartz Associates, P.C. White Plains, New York.
Lisa R. Zornberg, Esq. Assistant United States Attorney, United States Attorney's Office New York, New York.
Alan Sirota, Esq., Law Offices of Michael J. Ross and Robert J. Sambrato New York, New York.
MEMORANDUM OPINION AND ORDER
Plaintiffs seek an extension of time within which to file a demand for a jury. For the reasons stated below, the motion is denied. This case will be tried to the Court.
This is a negligence action arising out of an automobile accident among plaintiffs' vehicle, a vehicle operated by the United States Postal Service and a third vehicle owned by Trocom Construction Corp. and allegedly operated by Lee Lasala. There is no dispute that the claims against the United States are subject to the Federal Tort Claims Act, 28 U.S.C. § 2401 et seq.
Plaintiffs commenced this action in December 1998. In August 1999, the United States impleaded Trocom and Lasala, and in October 1999, plaintiffs amended their complaint to assert claims directly against Trocom and Lasala. Plaintiffs never requested a jury until they submitted their Pretrial Order in October, 2000.
In Raymond v. IBM Corp., 148 F.3d 63 (2d Cir. 1998), the Court of Appeals for the Second Circuit explained that the District Court's discretion under Fed.R.Civ.P. 6(b)(2) to extend time limits even after they have expired applies with equal force to a demand for a jury that is not made in accordance with Fed.R.Civ.P. 38(b). After noting that the Supreme Court has held that "'"excusable neglect" under Rule 6(b) is a somewhat "elastic concept" and is not limited strictly to omissions caused by circumstances beyond the control of the movant'", 148 F.3d at 66, quoting Pioneer Investment Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 391-92, the Second Circuit stated, "mere inadvertence, without more, can in some circumstances be enough to constitute 'excusable neglect' justifying relief under Rule 6(b)(2)." 148 F.3d at 66. The Court went on to explain that the factors to be considered in addressing an untimely request for a jury trial include prejudice to the parties opposing the request, the reason for the delay, its duration and whether the movant acted in bad faith. 148 F.3d at 66.
Although there is no evidence in this case that would support a finding of prejudice or bad faith, both the lengthy delay since Trocom and Lasala were brought into the case in conjunction with the absence of any reason for plaintiffs' failure to demand a jury in a timely manner weigh against granting plaintiffs' application. Approximately a full year elapsed between the time plaintiffs asserted claims against Trocom and Lasala and plaintiffs' demand for a jury. In addition, the letter of plaintiffs' counsel in support of their application offers no reason whatsoever for plaintiffs' failure to demand a jury in a timely manner (see letter of Michael Schwartz, Esq., dated November 17, 2000). Although Raymond liberalized the standards under which untimely demands for juries could be entertained, permitting the demand here would be tantamount to ignoring the time limits set forth in Rule 38(b) in their entirety.
In addition, there are practical considerations that weigh against granting plaintiffs' request. There is no dispute that even if plaintiffs' request were granted, plaintiffs' claims against the United States would still have to be tried to the Court. The prospect of having two fact finders simultaneously evaluating the evidence raises a host of potential problems concerning inconsistent verdicts. Among other things, the jury and the Court may disagree as to the value of plaintiffs' total damages, if any, and the respective shares of responsibility to be borne by the Trocom vehicle and the Government vehicle. It is difficult to see how such inconsistencies could be resolved without offending either the Seventh Amendment or the Government's right to have tort claims against it tried by the Court.
Accordingly, for all of the foregoing reasons, plaintiffs' application to serve a jury demand out of time is denied in all respects.
SO ORDERED