Milbauer v. TRW, Inc.

128 F.R.D. 179, 1989 U.S. Dist. LEXIS 16209, 1989 WL 135172

Opinion

DECISION AND ORDER

DAVID F. JORDAN, United States Magistrate.

Oral motion by plaintiff, made at a conference held November 2, 1989, for modification of the pretrial scheduling order so as to provide that this trial is to be held before a jury. Plaintiff contends that a timely demand was served but that, through error, the six pretrial scheduling orders incorrectly state that this case is to be tried without a jury.

The motion is denied on both procedural and substantive grounds. The plaintiff never sought review of any of the scheduling orders. 28 U.S.C. § 636(b)(1)(A). They are now the law of this case. Further, when an action is removed from state court to federal court a demand for jury must be served not later than ten days after being notified of the filing of the petition for removal. Rule 81(c), Fed.R.Civ.P. Review of the papers filed in this court disclose that the action was removed to this court April 21, 1988, and that the plaintiff was given notice thereof by mail not later than April 27, 1988. The plaintiff’s demand for trial by jury is dated September 1, 1988, and filed September 6, 1988. The demand is not timely.

Plaintiff claims that inasmuch as this case was removed from the New York State Courts, the New York State procedure is similarly applicable here. That procedure provides for the filing of a jury demand upon completion of pretrial procedures and the filing of a Note of Issue and Statement of Readiness. N.Y.C.P.L.R. 4102. Rule 81(c) does not so provide. On the contrary, it states that in those states where an express demand for trial by jury is not required no such demand need be made in an action which is removed to federal court unless the federal court orders to the contrary. An express demand for trial by jury is required by New York law. N.Y.C.P.L.R. Sect. 410, 4102.

This case will be tried without a jury.

SO ORDERED.