Opinion
04 Civ. 7395 (RWS).
January 25, 2007
Attorneys for Plaintiff, BECKER MEISEL LLC, Livingston, NJ.
Attorneys for Defendants, LAW OFFICES OF ALLAN H. CARLIN, New York, NY, Attorneys for Plaintiffs, By: ALLAN H. CARLIN, ESQ.
OPINION
Defendants Empire Programs, Inc. ("Empire") and Robert A. Martin ("Martin") (collectively, the "Defendants") have moved under Rule 38, Fed.R.Civ.P., to strike the jury demand of plaintiff Sea Carriers Corporation ("Sea Carriers"). For the reasons set forth below, the motion is granted.
Prior Proceedings
Sea Carriers filed its complaint on September 16, 2004, alleging six claims: (1) breach of contract with respect to an alleged oral joint venture agreement between Sea Carriers and Empire (the "Joint Venture Agreement"); (2) breach of an implied covenant of good faith and fair dealing arising from Empire's denial of the Joint Venture Agreement; (3) breach of fiduciary duty based upon Empire's denial of the Joint Venture Agreement; (4) declaratory relief entitling Sea Carriers to participate in any recoveries by Empire relating to the alleged joint venture; (5) the imposition of a constructive trust with respect to any recoveries by Empire relating to the alleged joint venture; and (6) an accounting. See Complaint, ¶¶ 30-48.
In April 2006, Sea Carriers agreed to add Martin as a defendant in this action, and by stipulation which was so or on April 14, 2006, leave was granted to the plaintiff to serve an amended complaint which was served on or about May 1, 2006.
Except for dropping the sixth cause of action for an accounting as alleged in the complaint, the claims asserted in the amended complaint with Martin as an additional defendant are virtually identical to those of the original complaint.
On May 11, 2006, the Defendants served an answer to the amended complaint by mail, denying its essential allegations. No demand for a jury trial was made by either party on any of the issues until May 22, 2006, when Sea Carriers served its jury demand.
The instant motion to strike that demand was marked fully submitted on August 30, 2006.
Discussion 1. The Right to Demand a Jury Trial Was Waived
Where, as here, an amended pleading covers the same "general area of dispute" as was covered in the original pleading, the filing of an amended complaint does not revive the right to demand a jury. Tuff-N-Rumble Mgmt., Inc. v. Sugarhill Music Publ'g, Inc., 75 F. Supp. 2d 242, 245 (S.D.N.Y. 1999); see also Swan Brewery Co. Ltd. v. U.S. Trust Co. of New York, 143 F.R.D. 40, 44 (S.D.N.Y. 1992) (citing Lanza v. Drexel Co., 479 F.2d 1277 (2d Cir. 1973); Rosen v. Dick, 639 F.2d 82, 94-96 (2d Cir. 1980); Royal Am. Mgrs., Inc. v. IRC Holding Corp., 885 F.2d 1011, 1018 (2d Cir. 1989); White v. McGinnis, 903 F.2d 699, 703 n. 8 (9th Cir.), cert. denied 498 U.S. 903 (1990)) ("An amended or supplemental complaint does not, however, revive the right to demand a jury trial either as to factual issues already fully discussed in the original pleadings, or as to new legal theories based on facts previously pleaded." (internal citations omitted)).
The claims asserted in the amended complaint are identical to those of the original complaint, except that they refer to an additional party, Martin. Therefore, the Plaintiff waived its rights to a jury trial with respect to all issues in this action by failing to demand a jury trial within ten days of service of the answer to the original complaint. See Rule 38(b), Fed.R.Civ.P. The addition of parties does not change the underlying claims or the nature of the relief desired and, therefore, does not revive plaintiff's right to a jury trial. See, e.g.,Tuff-N-Rumble Mgmt., Inc., 75 F. Supp. 2d at 246 (quotingSunenblick v. Harrell, 145 F.R.D. 314, 317 (S.D.N.Y. 1993)).
In Virgin Air, Inc. v. Virgin Atlantic Airways, Ltd., 144 F.R.D. 56 (S.D.N.Y. 1992), the court likewise rejected a jury demand that was made after an additional defendant, Virgin Enterprises, was added to the action by amendment, stating, with respect to the allegations of the amended complaint, that:
The essence, if not the exact language, of the allegations is the same. The only material difference, as discussed below, is that they are made against Virgin Enterprises in the Amended Complaint. . . .
The Court of Appeals has strongly indicated that the addition of a new party does not revive a jury trial demand.
We have held that even an amendment to the complaint revives the right to demand a jury "only if the amendment changes the issue," and we are doubtful that the mere addition of codefendants one year after expiration of [the party's] time to demand a jury trial revived its previously waived jury trial rights.
State Mutual Life Assurance Company of America v. Arthur Andersen Co., 581 F.2d 1045, 49 (2d Cir. 1978) (citation omitted). In a more recent decision the Court of Appeals for the Fifth Circuit held that the addition of a party to a counterclaim did not create new issues of fact. Daniel International Corporation v. Fischbach Moore, Inc., 916 F.2d 1061, 63-64 (5th Cir. 1990). In light of these decisions, Virgin Air's contention that it is entitled to a jury trial of the fraud claim because of the addition of a new party is rejected.Virgin Air, Inc., 144 F.R.D. at 59; accord Gamboa v. Med. Coll. of Hampton Roads, 160 F.R.D. 540, 543 (E.D. Va. 1995) (citingSunenblick, 145 F.R.D. 314); Friere v. Koehring Co., 87 Civ. 0221(CSH), 1994 WL 256743, at *3 (S.D.N.Y. June 3, 1994). 2. The Rule 39(b) Application is Denied
In its opposition to the Defendants' motion, Sea Carriers has sought to rely on Rule 39(b), Fed.R.Civ.P., to grant a jury trial. Sea Carriers has cited the Fifth Circuit's rulings inSwofford v. B W, Inc., 336 F.2d 406, 409 (5th Cir. 1964) andUnited States v. Unum, 658 F.2d 300, 303 (5th Cir. 1981) in support.
As noted by this Court in Evvtex Co., Inc. v. Hartley Cooper Assocs. Ltd., 92 Civ. 9417, 1995 WL 322156(RWS) (S.D.N.Y. May 26, 1995), however, the Second Circuit applies the strict, rigorous test of Noonan v. Cunard Steamship Co., 375 F.2d 69 (2d Cir. 1967), with respect to Rule 39(b):
The liberality with which 39(b) discretion is to be exercised has varied from circuit to circuit. This Circuit has set forth a restrictive view. See Printers II, Inc. v. Professionals Publishing, Inc., 596 F. Supp. 1051, 1052 (1984). In Noonan v. Cunard, 375 F.2d 69 (2d Cir. 1967), the court held that precedent interpreting judicial discretion in exercising 39(b) authority limited a judge's authority `to determining whether the moving party's showing beyond mere inadvertence is sufficient to justify relief . . .' Id. at 70. . . .
* * *
District courts . . . have continued to apply the strict holding of Noonan to cases that originated in federal court, as this one did. See Sait Electronics, S.A. v. Schiebel, 846 F. Supp. 17, 18 (S.D.N.Y. 1994) (denying motion to grant untimely demand for jury trial when movant failed to make a showing beyond mere inadvertence); Alvarado v. Santana-Lopez, 101 F.R.D. 367, 368 (S.D.N.Y. 1984) (A[T]he rigid rule discussed in Noonan remains the rule in this circuit for non-removed cases . . . A); Printers II, Inc. v. Professionals Publishing, Inc., 596 F. Supp. 1051, 1052 (1984) (declining to exercise discretion and permit untimely jury demand in a case originating in federal court, thus not falling within the Higgins' exception).Evvtex Co., Inc., 1995 WL 322156, at *1-2.
The analysis in Evvtex applies here, where there is little question of Sea Carriers= inadvertence in failing to file a demand for a jury trial with regard to the issues covered in Sea Carriers' original complaint. Accordingly, Sea Carriers' reliance on Federal Rule of Civil Procedure 39(b) is unavailing.
Conclusion
As in Noonan, "[t]here is, of course, not the slightest reason to doubt that a judge is quite as able as a jury to make a fair determination" of the issues in this case. 375 F.2d at 72. Accordingly, for the reasons set forth above, the Court declines to exercise its discretion to permit the untimely jury demand pursuant to Federal Rule of Civil Procedure 39(b) and Defendants' motion to strike the jury demand as untimely pursuant to Federal Rule of Civil Procedure 38 is granted.
It is so ordered.