Trust v. Kummerfeld

Full title: CORDIUS TRUST, Plaintiff, v. ELIZABETH KUMMERFELD, KUMMERFELD ASSOCIATES…

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

Date published: Dec 8, 2006

99 Civ. 3200 (DLC) (S.D.N.Y. Dec. 8, 2006)

Opinion

99 Civ. 3200 (DLC).

December 8, 2006

For Plaintiff/Petitioner Cordius Trust: James A. Wade, Bradford S. Babbitt, Robinson Cole LLP, Hartford, CT.

For Respondent Donald Kummerfeld: Paul M. Brown, Walter A. Saurack, Satterlee Stephens Burke Burke LLP, New York, NY.

MEMORANDUM OPINION AND ORDER

DENISE COTE, District JudgePage 2

At the Court's invitation, Donald Kummerfeld has brought a motion pursuant to Rules 6(b)(2) and 39(b), Fed.R.Civ.P., to excuse his late request for a jury to try the issues remanded for trial by the United States Court of Appeals for the Second Circuit, including whether Kummerfeld used his domination of Kummerfeld Associates, Inc. to injure the plaintiff. The motion is granted.

The unusual procedural history of this matter is described inCordius Trust v. Kummerfeld, No. 99 Civ. 3200 (DLC), 2006 WL 1876677 (S.D.N.Y. July 7, 2006), familiarity with which is presumed. Essentially, Kummerfeld did not demand a jury when he filed an affidavit in response to the plaintiff's petition in 2003. He first indicated a desire for a jury in 2004, when he objected to the recommendation of the Magistrate Judge that the petition to pierce the corporate veil be granted. As both this Court and the Court of Appeals have found in rejecting all of his procedural attacks on the petition, his affidavit functioned as an answer to the petition, id. at *3, and Kummerfeld was required timely to demand a jury in response to the petition. Under Rule 38(b), a jury demand had to be filed within ten days of service of the affidavit. Id. at *2-3.

In denying Kummerfeld's untimely demand for a jury trial, the Court invited him to bring this motion out of recognition that the unusual procedural history of this case would support such an application, which Kummerfeld had inexplicably neglected to join with his prior motion practice. As Kummerfeld points out, the plaintiff has identified no prejudice that it would suffer from granting this motion. Moreover, this is not a simple matter of inadvertence or attorney error. The convoluted procedural history of this case has been challenging for one and all to sort through. Kummerfeld has shown that it would be an appropriate use of the Court's discretion to grant his request to file a late demand for a jury. The parties agree that the plaintiff's claim entitles Kummerfeld to a jury trial. See Wm. Passalacqua Builders, Inc. v. Resnick Developers South, Inc., 933 F.2d 131, 134-37 (2d Cir. 1991).

Conclusion

Kummerfeld's motion pursuant to Rules 6(b)(2) and 39(b) for a jury trial is granted.

SO ORDERED: