36 F.R.D. 248 | S.D.N.Y. | 1964
Plaintiff moves to strike defendant’s demand for a jury trial served more than three and a half years after the case has been at issue as a non jury matter. This action, wherein plaintiff seeks to recover a balance due for legal services rendered to the defendant, was commenced in February 1961. The defendant answered on March 15, 1961.
In support of its motion the defendant submitted a memorandum which, among other matters, stated:
“ * * * No new factual matter is raised by the counterclaim; no additional facts are involved, and no new evidence is needed to enable the trier of the facts to determine whether the defendant will succeed on the counterclaim. The issue in this plaintiff’s case is how much, if anything, he should be permitted to recover. * * * [I]t is merely a matter of mathematical computation to determine whether the defendant should get back any of the moneys paid to plaintiff.”
The Court is of the view that in the circumstances of this case the order which relieved the defendant of its “inadvertence” in failing, at the time of its original answer, to serve its compulsory counterclaim and which by defendant’s own representation to the Court raises no new factual issue did not at the same time relieve it of its waiver of a jury trial. Rule 38(b) does not command a different result, nor is it to be woodenly applied upon the mere service of a belated “last pleading.” The authorities are in accord that “where the 10-day period of Rule 38(b) has run, an amendment of a pleading which does not introduce new issues will not give rise to the right to demand a jury.”
There is no reason, and defendant offers none, why its representation to the Court which resulted in leave to serve the “last pleading” with its counterclaim should not be taken at face value. Perhaps plaintiff might have been more alert and should have urged that leave to amend be conditioned upon continued waiver of trial by jury.
The motion to strike the jury demand is granted.
. It appears that despite this pending litigation the plaintiff was retained by defendant to represent it in connection with other matters, and for this reason the case did not move forward. Had a notice of readiness been filed, the matter would have been disposed of by this time.
. “Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.”
. 5 Moore, Federal Practice, ¶ 38.41, at 326 (2d ed. 1963 supp.). Accord, Ridge Theatre Corp. v. United Artists Corp., 27 F.R.D. 8 (E.D.Pa.1961); E. H. Tate Co. v. Jiffy Enterprises, Inc., 16 F.R.D. 571 (E.D.Pa.1954); Steinhardt Novelty Co. v. Arkay Infants Wear, Inc., 10 F.R.D. 321 (E.D.N.Y.1950); Reeves v. Pennsylvania R.R., 9 F.R.D. 487 (D.Del. 1949); 2B Barron & Holtzoff, Federal Practice & Procedure § 873, at 35-36 (1961 ed.). Cf. Alcoa S.S. Co. v. Ryan, 211 F.2d 576 (2d Cir. 1954); Moore v. United States, 196 F.2d 906 (5th Cir. 1952).
. See, e. g., E. H. Tate Co. v. Jiffy Enterprises, Inc., 16 F.R.D. 571 (E.D.Pa. 1954).
. See authorities at n. 3 supra.
. See Alcoa S.S. Co. v. Ryan, 211 F.2d 576 (2d Cir. 1954).
. Cf. Alcoa S.S. Co. v. Ryan, supra; Parissi v. Foley, 203 F.2d 454, 456 (2d Cir. 1953).