Miss Noonan, a citizen of New Jersey, filed a complaint against Cunard Steamship Co., a British corporation, in the District Court for the Southern District *70 of New York in March, 1966, for damages from a fall in her stateroom on the Queen Elizabeth resulting from a roll of the ship alleged to have been caused by negligence of the crew and unseaworthiness of that great vessel. In August her attorney filed a note of issue and statement of readiness acknowledging the completion of discovery in compliance with Local Calendar Rule 5. While the note of issue recited a jury demand at the time of the filing of the complaint, none had been made then or within 10 days after service of defendant’s answer as F.R.Civ.P. 38(b) required. Upon being advised by the calendar clerk of the untimeliness of the demand, this being treated as having first been made in the note of issue, the attorney made a written motion before the civil calendar judge to have the case transferred from non-jury calendar No. 3 to jury calendar No. 1. His supporting affidavit furnished no reason except his own inadvertence why this relief should be granted, although it also mentioned that the statute of limitations had “not run and, therefore, it would be possible for the plaintiff to discontinue this action and start a new action with a timely jury demand.” Defendant’s counsel submitted an opposing affidavit, which stated that only 230 cases were pending on non-jury calendar No. 3 as compared with 1735 on jury calendar No. 1. Although the proceedings beforе the calendar judge were not reported, it is agreed that he first denied plaintiff’s written motion to transfer to the jury calendar but then granted what defendant charаcterizes as an oral motion to dismiss without prejudice. 1 Defendant appeals from the judge’s allowance of dismissal on that basis. We have jurisdiction under 28 U.S.C. § 1291, seе 5 Moore, Federal Practice H 41.05 [3] at 1068-69 (2d ed. 1964).
Plaintiff’s initial motion was that the judge avail himself of the provision of F.R.Civ.P. 39(b) which says that “notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.” Defendant has cited eighteen reported decisions by district courts within this circuit to the effect that mere inadvertence in failing to make a timely jury demand does not warrant a favorable exercise of discretion under Rule 39 (b), and plaintiff apparently has found none to the contrary either here or elsewhere. The effect of such a continued and consistent course of decision is to narrow the allowable scope of discretion; the area open to the judge’s discretiоn has shrunk to determining whether the moving party’s showing
beyond
mere inadvertence is sufficient to justify relief. See 5 Moore, supra, ¶ 39.09 at 718-19. Plaintiff does not seriously dispute that if the judge had granted the motion under Rule 39(b), we would have been obliged to reverse. This would not truly have been for an “abuse” or, in Judge Duniway’s phrase, a “misuse” of discretion, see Pearson v. Dennison,
The interesting question is whether the matter should stand otherwise because relief from the inadvertent failure to make а timely jury demand was here accomplished by permitting dismissal with *71 out prejudice under F.R.Civ.P. 41(a) (2), which allows a plaintiff so to dismiss only “upon order of the court and upon such tеrms and conditions as the court deems proper.” This leaves defendant even worse off in several ways. It must file a new answer; it has no assurance that further discоvery may not be sought; and trial will be delayed since a new action will have to take its place at the bottom of the jury calendar. As against this, however, plаintiff also entails the same suffering from delay, and her attorney suggests there will be little or none since more judges are assigned to the jury than the non-jury calendar.
If this werе truly the type of case where an appellate court must respect the trial judge’s exercise of discretion, we might indeed be troubled in saying, in Judge Magruder’s оft-quoted phrase, that we had “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upоn a weighing of the relevant factors.” In re Josephson,
Sinсe we thus consider ourselves bound to choose one way or the other, we think the decisions denying leave to discontinue without prejudice for the sole purpose of overcoming inadvertent failure to make a timely jury demand accord better than an opposite view with the policies of Rule 38(a) insisting on promptness and of Rule 41(a) (2) limiting the former freedom of dismissal of plaintiffs in actions of law. Moreover, to allow leave to discontinue without prejudice *72 solеly for this purpose would work a discrimination, for which we see no sufficient justification, in favor of plaintiffs whose attorneys , had been guilty of inadvertent neglect in demаnding a jury trial as against defendants similarly situated. There is, of course, not the slightest reason to doubt that a judge is quite as able as a jury to make a fair determination whеther a roll of the Queen Elizabeth was due to negligence by her crew or unseaworthiness of the vessel — questions of the sort admiralty judges have been deciding for сenturies.
The order permitting dismissal without prejudice is vacated and the cause remanded for further proceedings consistent with this opinion.
Notes
. Except for plaintiff’s intimation with respect to dismissal in the written motion, defendant might well have had a valid procedural objection to the motion under Rule 41(a) (2) since it is doubtful that an aрplication in a calendar part of which no stenographic record was taken comes within the exception to the requirement of F.R.Civ.P. 7(h) (1) for written motiоns relating to motions “made during a hearing or trial.” See Hammond-Knowlton v. Hartford-Connecticut Trust Co.,
. Compare Cardozo’s oft-quoted statement, “It will not do to decide the same question one way between one set of litigants and the opposite way between another.” The Nature of the Judicial Process 33 (1921). See also H. L. A. Hart, The Concept of Law 155-62 (1961).