McElhiney v. Woolworth's, Inc.

1 Mass. L. Rptr. 636

• Court: Massachusetts Superior Court
• Decided: March 22, 1994
• Docket: No. 91-2372
• Status: Published

Opinion

Zobel, J.

Plaintiff commenced this action in the Superior Court. By agreement of the parties, a Justice of that Court “remanded,” i.e., transferred the action to the District Court of Cambridge where, after a full hearing, the Court found for defendant and entered judgment accordingly.

Plaintiff thereupon filed a “Notice of Appeal and Demand for Jury Trial.” The action was then re-transferred to this Court.

Because I conclude that by agreeing to the transfer, both parties waived their jury right. I analogize to the principle expressed in Third National Bank of Hampden County v. Continental Insurance Co., 388 Mass. 240, 242 (1983), that a plaintiff who commenced an action in the District Court that she could have commenced in the Superior Court waives her Superior Court jury right. Here, although plaintiff commenced the action in the Superior Court, the agreed-to transfer functionally equates to commencing the case in the District Court ab initio.

Plaintiff having consented to a juryless trial in the District Court cannot fairly complain that the Superior Court will not give her the jury trial she was content to forego.

ORDER

Accordingly, it is ORDERED, that judgment enter forthwith: Complaint Dismissed, with Prejudice.