Edwards v. Vitelco

YOUNG, District Judge MEMORANDUM OPINION AND ORDER This is a motion by Defendant, Vitelco, to strike plaintiffs’ demand for a jury trial as untimely. The complaint was served on Vitelco, May 4, 1973, and an answer was filed June 8, 1973. Co-defendant, Antonio Villanueva has not been served, and, consequently, he has not appeared in this action in any way. Plaintiffs filed their jury demand February 20, 1975. Demand for a jury trial must be timely made or it is waived. Rule 38, Fed. R. Civ. Proc.; United States v. Moore, 340 U.S. 616 (1951). The time for a demand is “not later than 10 days after the service of the pleading . . .”. Rule 38 (b). If there are multiple defendants, the time runs from the service of the last answer. 9 Wright and Miller, Federal Practice and Procedure § 2230; Spiro v. Pennsylvania Ry. Co., 3 F.R.D. 351 (D.N.Y. 1942). Plaintiffs argue that as to all issues in which both defendants are interested this demand is timely since it is prior to the answer of defendant Villanueva. As a general rule, their position is correct; however, it would be inequitable to apply that rule in the instant case where Villanueva has not been served. Only Vitelco is interested in this case as it is presently situated, and until such time as Villanueva is served and answers, the plaintiff’s jury [599] demand is untimely. The rule for which the plaintiffs argue would allow plaintiffs to retain the right to elect a jury trial at any time prior to .trial by naming multiple defendants in every suit some of whom are certain to default. If Villanueva is served and answers, the court will consider a demand for a jury trial and at that time determine which issues will be tried to the jury and which issues to the court. ORDER For the reasons stated in the foregoing Memorandum, it is hereby ORDERED that Defendant Vitelco’s motion to strike Plaintiff’s jury demand be GRANTED.