Opinion
Case No. 2:04-CV-00403PGC.
December 6, 2004
ORDER DENYING UNICITY'S MOTION TO RECONSIDER SEPTEMBER 24, 2004 ORDER DENYING UNTIMELY JURY DEMAND
This matter is before the court on Unicity's third attempt to demand a jury trial. The court concludes once again that the demand was not made in a timely fashion.
Under Rule 38(b), a demand for a jury trial must be made "not later than 10 days after the service of the last pleading" relating to "the commencement of the action." Most important, the rules of civil procedure do not require a party to affirmatively waive the right to jury trial. Instead, "[t]he failure of a party to serve and file a demand . . . constitutes a waiver by the party of trial by jury."
In this case, Unicity did not make a timely jury demand with respect to the issues raised in the original complaint, the answers to the complaint, or the counterclaim. Unicity did, however, make a timely jury demand with respect to its amended complaint. This court previously ruled, however, that the amended complaint did not revive the right to demand a jury trial except with respect to any new issues raised by the amended complaint. The court further stated, "Having reviewed the Amended Complaint and the Answer to Amended Complaint, the court does not see any new issues." Out of an abundance of caution, however, the court invited Unicity to file a pleading "stating what new issues it believes are raised by the Amended Complaint or Answer to Amended Complaint and whether those new issues should be tried by a jury." Unicity has now filed its pleading, which consists more of a motion to reconsider than a statement of what new issues were raised by the amended complaint. Perhaps Unicity, like the persistent widow in the Parable of the Unjust Judge, hopes to weary the court into ruling in its favor. Nevertheless, the court does not believe that Unicity has identified any new issues raised by the Amended Complaint and therefore — again — DENIES its jury demand as untimely.
Order Denying Unicity's Motion To Set Aside September 7, 2004 Order Denying Untimely Jury Demand And Motion To Order A Trial By A Jury Of All Issues (Sept. 24, 2004).
Id. at 3.
Id.
The Parable of the Unjust Judge is found in Luke 18:2-5. "There was in a city a judge, which feared not God, neither regarded man. And there was a widow in that city; and she came unto him, saying, `Avenge me of mine adversary.' And he would not for a while: but afterward he said within himself, `Though I fear not God, nor regard man; Yet because this widow troubleth me, I will avenge her, lest by her continual coming she weary me.'"
The Tenth Circuit has held that "[a]mended and supplemental pleadings do not `revive a right, previously waived, to demand jury trial on the issues already framed by the original pleadings.'" In other words, as the Fifth Circuit has stated, "An amended or supplemental pleading that raises new issues enables a party to request a jury trial for those issues in the manner established by Rule 38(b)." The Seventh Circuit has held the same thing: "It is well-settled law that `under Rule 38 amendments or supplemental pleadings do not extend the time for making demand for jury trial except as to new issues raised by the new pleadings."
In re Kaiser Steel, Corp., 911 F.2d 380, 388 (10th Cir. 1990) (emphasis added) (citation omitted); see also Walton v. Eaton Corp, 563 F.2d 66, 71 (3d. Cir. 1977) ("It is well established that if the original pleadings in an action effectively waive trial by jury under Fed.R.Civ.P. 38(b) and (d), the right to trial by jury of all matters contained in those pleadings cannot be revived by amending the original pleadings.").
Fredieu v. Rowan Companies, Inc., 738 F.2d 651, 653 (5th Cir. 1984) (emphasis added).
Communications Maintenance, Inc. v. Motorola, Inc., 761 F.2d 1202, 1208 (7th Cir. 1985) (emphasis added).
Unicity contends that because the Amended Complaint added two new defendants, all of the issues are new with respect to the added parties. The court disagrees. The Tenth Circuit has held that merely adding a new party does not change the issues involved in the case. In American Fidelity Casualty Co. v. All American Bus Lines, Inc., the Tenth Circuit held that where a defendant had not made a timely jury demand, the substitution of one plaintiff for another did not renew the right to make a timely jury demand where the issues remained the same.
190 F.2d 234 (10th Cir. 1951).
American was the defendant in the action from its beginning. The issue of bad faith on its part in rejecting the offer of settlement of the action pending in the state court was squarely joined on the face of the original complaint and the original answer. No demand was made for a jury trial of that issue within ten days after the filing of the answer, and it was fully tried to the court without a jury. The substitution of Security as the party plaintiff did not change in any matter that issue. Neither did it change in any substantial respect any other issue of fact in the case. American had effectively waived its right to a jury trial. And the substitution of Security as the party plaintiff, without injecting into the case any new or different issues of fact, did not create in American a new right to demand a jury trial. Neither did it revive such a right.
Id. at 237.
When new parties are added by an amended complaint, courts focus on the real issues at stake, not who is technically named as a party. As the Tenth Circuit has stated, "Rule 38 applies to `issues' not cases." Several decisions have held that when an amended complaint merely adds new defendants without substantially changing the issues, the plaintiff's right to demand a jury trial is not revived. In Jones v. Boyd, the District Court for the Eastern District of Virginia held that the addition of two defendants in an amended complaint did not revive the plaintiff's right to demand a jury trial, even with respect to the two newly added defendants. "An amendment which merely adds defendants or changes defendants does not introduce new issues to a case, and therefore does not revive a plaintiff's opportunity to request a jury trial." The Fifth Circuit held the same in Daniel Int'l Corp. v. Fischbach Moore, Inc. The Circuit explained that merely adding an additional party from whom to recover did not revive the right to demand a jury trial. "[T]he only pleading on which a demand was endorsed merely added a party to its counterclaim. At most, this added only an additional right to recover against FIC, Daniel's surety. It did not plead any new issues of fact or raise a new issue of law. An amendment not introducing a new issue will not give rise to a right to demand for a jury trial." In Sunenblick v. Harrell, the District Court for the Southern District of New York ruled that a plaintiff's addition of two new corporate defendants in an amended complaint did not revive its waived right to a jury trial, even where the plaintiff had been unaware of the new defendants' roles in the case until after discovery. "[T]he addition of the new defendants does not revive plaintiff's right to demand a jury trial. The parties plaintiff seeks to add are all related to the parties already named in this action. . . . This mere 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."
Oklahoma Natural Gas Co v. Larue, 1998 WL 568321 at *6 (10th Cir. 1998).
161 F.R.D. 48 (E.D.Va. 1995); see also Gamboa v. Medical College of Hampton Roads, 160 F.R.D. 540 (E.D.Va. 1995) (holding that addition of a new defendant did not revive right to jury trial); Virgin Air, Inc. v. Virgin Atlantic Airways, Ltd., 144 F.R.D. 56 (S.D.N.Y. 1992) (same).
916 F.2d 1061 (5th Cir. 1990).
Id. at 1063-64.
145 F.R.D. 314 (S.D.N.Y. 1993).
Id. at 317.
In reviewing the Amended Complaint filed in this case, it is clear that while two additional defendants are named, no new issues are raised. The Amended Complaint lists identical causes of action and an identical request for relief. Moreover, the additional defendants are closely related to the parties named in the original complaint. It is clear that Unicity's purpose in amending its complaint was merely to add additional parties from whom to recover. The court therefore holds again that Unicity's demand for a jury trial was untimely.
Finally, inasmuch as Unicity again requests that this court exercise its discretion under Rule 39(b) to allow a belated jury demand, the court denies that request again. As noted before, a district court is well within its discretion in denying a motion for a jury trial under Rule 39(b) when "the failure to make a timely jury demand results from nothing more than the mere inadvertence of the moving party." That is all the court has here. Unicity stated in its previous motion on this issue that it "believed that it had timely filed a jury demand. . . ." Because no good reason for granting the jury demand has been shown, the matter will proceed by way of bench trial.
Nissan Motor Corp. v. Burciaga, 982 F.2d 408, 409 (10th Cir. 1992).
Memorandum In Support of Unicity's Motion To Set Aside September 7, 2004 Order Denying Untimely Jury Demand And Motion To Order A Trial By A Jury Of All Issues (Sept. 9, 2004).
CONCLUSION
Unicity's Motion to Reconsider is hereby DENIED (#65-1). Unicity's jury demand was untimely as to all issues and all defendants.