Plaintiff’s affirmative election not to demand a jury trial at the outset of this action (or within fourteen days of Defendants’ filing of the Answer) cannot be attributed to anything other than a reasoned tactical decision on the part of Plaintiff’s counsel. In light of Plaintiff’s counsel’s prior affirmative acts, it is difficult to read the current motion as anything other than a change in litigation strategy, which does not entitle Plaintiff to relief from that strategic election under either Rule 39(b) or Rule 6(b). Certainly, Plaintiff has offered nothing to satisfy the requirement that his failure to timely demand a jury trial was due to something more than mere inadvertence.

7 Case 1:13-cv-04449-PGG Document 53 Filed 05/16/14 Page 12 of 18 See Board of Education v Aetna Casualty & Surety Co., 48 F.R.D. 402 (S.D.N.Y. 1969) (it is proper to grant jury trial under Rule 39(b) in absence of showing of prejudice to opposing party). B. FRCP 6(b) Should this Court choose to impose the strict Noonan test under Rule 39(b), an alternative basis for permitting Plaintiffs’ request is present under FRCP 6(b), even if the failure to file a jury demand was due only to mere inadvertence. Rule 6(b)(2) governs the failure to conform to time limits contained in the Federal Rules of Civil Procedure, and provides in pertinent part: When by these rules . . . an act is required to be done at or within a specified time, the court for good cause shown may at any time in its discretion . . . upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect . . . . FRCP 6(b). See also Shambreskis v. Bridgeport & Port Jefferson Steamboat Co., 2007 U.S. Dist. LEXIS 35851, 16 (E.D.N.Y. May 16, 2007). Rule 6(b) is applicable to the time constraint imposed by FRCP 38(b) regarding jury demands.

The court explained that the “excusable neglect” standard is “‘at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission,’ including prejudice to the other party, the reason for the delay, its duration, and whether the movant acted in good faith.” Raymond, 148 F.3d at 66 (quoting Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993) (internal quotation marks omitted)). In light of these factors, an “inadvertent delay” that might not satisfy the Rule 39(b) standard may nonetheless be sufficient under Rule 6(b)(1)(B). Id. For the reasons already provided, at a minimum, this case warrants relief under Rule 6(b)(1)(B). Once again, BoNY will suffer no prejudice from the jury trial that the parties and this Court have long contemplated.

Given Amazon’s own actions, it should be outright estopped from seeking the relief it requests now. The facts are also such that this Court should exercise its discretion under Rule 39(b) to order trial by jury. Based upon the foregoing, the Beautyko Entities respectfully request that this Court enter an order that the parties’ respective claims and defenses be adjudicated by jury.

d at 409. There are five factors courts in the 5th Circuit consider when exercising discretion under Rule 39: 1. whether the case involves issues which are best tried to a jury; 2. whether granting the motion would result in a disruption of the court’s schedule or that of an adverse party; 3. the degree of prejudice to the adverse party; 4. the length of the delay in having requested a jury trial; and 5. the reason for the movant’s tardiness in requesting a jury trial. Daniel Int’l Corp. at 1064 (citations omitted).

Otherwise, the Court would be usurping the jury’s providence to decide contested issues of fact. See Am. River Transp. Co. v Paragon Marine Servs., 213 F. Supp. 2d 1035 (E.D. Mo. 2002), aff’d, 329 F.3d 946, 947 (8th Cir. 2003) (holding although judge appointed advisory jury under Fed. R. Civ. P. 39, judge had to prepare findings of fact and conclusions of law and had discretion to accept or reject, in whole or in part, jury’s verdict and findings). As a result, this Court would have to find that there are no disputed issues of fact in order to render as a matter of law a determination on the questions presented.

Indeed, Rule 39 does not give the Court discretion to try an issue to a jury if it is not triable of right, absent the parties’ consent. See Fed. R. Civ. P. 39(c) (“In an action not triable of right by a jury, the court, on motion or on its own: (1) may try any issue with an advisory jury; or (2) may, with the parties’ consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right…”). As Huawei has explained in its motion, if the Court grants this motion, Huawei is willing to withdraw its jury demand (and any request for legal relief) for its breach of contract claim against Samsung, and the Court would hear the parties’ competing breach of contract claims under whatever procedure the Court directs.

of Educ., 468 F. App’x 532, 537–38 (6th Cir. 2012); see Francis v. Dietrick, 682 F.2d 485, 486–87 (4th Cir. 1982) (affirming denial of request for a jury trial after plaintiff amended his complaint to withdraw a request for legal damages).6 Federal Rule of Civil Procedure 39 makes clear that if before trial the Court “finds that on some or all of those issues [to be tried] there is no federal right to a jury trial,” then the issues are to be “tried by the court.” Fed. R. Civ. P. 39(a)–(b). Accordingly, “[i]t is well settled that when a party withdraws its damages claims and pursues only equitable relief, a jury trial is no longer available and issues must be tried by the court.”

Federal Rule of Civil Procedure 39(a)(2) provides that issues are to be tried by a jury when so demanded unless ”there is no federal right to a jury trial.” Fed. R. Civ. P. 39(a)(2). Where a jury right does not exist, courts in this Circuit consistently have taken the view that a motion to strike the jury demand must be granted.

28 U.S.C. § 2680(a). In addition, the FAC’s request for a jury trial should be stricken pursuant to Fed. R. Civ. P. 39(a)(2) as Plaintiff has no right to a jury trial under the FTCA. 28 U.S.C. § 2402.