Edwards v. Vitelco

Virgin Islands

Edwards v. Vitelco

11 V.I. 597, 1975 U.S. Dist. LEXIS 12987

CourtDistrict Court, Virgin Islands

DecidedApril 7, 1975

DocketCivil No. 284-1973

StatusPublished

This text of 11 V.I. 597 (Edwards v. Vitelco) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Edwards v. Vitelco, 11 V.I. 597, 1975 U.S. Dist. LEXIS 12987 (vid 1975).

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Opinion

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]*599demand 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.

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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]*599demand 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.

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Bluebook (online)

11 V.I. 597, 1975 U.S. Dist. LEXIS 12987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-vitelco-vid-1975.

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