ELLEN LIPTON HOLLANDER, District Judge.
John Macsherry, Jr., plaintiff, filed suit against defendants Sparrows Point, LLC ("SPLLC"); Commercial Development Company, Inc. ("CDC"); and Michael Roberts ("Roberts"), to recover a commission of $825,000 allegedly owed to him in connection with the sale of commercial property for the sum of $110,000,000. See ECF 2. In his Amended Complaint (ECF 26), plaintiff seeks relief from all defendants under the Maryland Wage Payment and Collection Law ("MWPCL"), Maryland Code (2016 Repl. Vol.), §§ 3-501 et seq. of the Labor and Employment Article ("L.E.") (Count I). As to SPLLC and CDC, he also asserts claims for breach of contract (Count II); promissory estoppel/detrimental reliance (Count III); and quantum meruit/unjust enrichment (Count IV). See ECF 26.
The parties disagree as to plaintiff's entitlement to a jury trial. Now pending is plaintiff's Motion for Jury Trial (ECF 78) with an accompanying Memorandum of Law (ECF 78-1) (collectively, the "Motion"), seeking a trial by jury for each of the four counts in the Amended Complaint (ECF 26). Macsherry argues that a jury trial is proper pursuant to Fed. R. Civ. P. 38(b) because he requested a jury trial in the four ad damnum paragraphs of the Complaint and the Amended Complaint. ECF 78-1 at 1, 2, 3-6. In the alternative, plaintiff moves for a jury trial pursuant to Fed. R. Civ. P. 39(b). Id. at 6-9. Defendants oppose the Motion (ECF 84, "Opposition"), claiming plaintiff did not properly request a jury trial. Plaintiff has replied. ECF 89 ("Reply").
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.
Plaintiff initially filed his Complaint on November 17, 2014, in the Circuit Court for Baltimore County. ECF 2 ("Complaint"). In the Case Information Report that accompanied the Complaint (ECF 2-1), plaintiff checked "No" to a question on the form asking if plaintiff was requesting a jury trial. Id. at 1. The Complaint did not include a section dedicated to a demand for a jury trial. ECF 2. But, the Complaint referred to "a jury" in each of the four ad damnum paragraphs that follow Counts I through IV, respectively. ECF 2, ¶¶ 23(d), 29(d), 36(d), 43(d). Specifically, the four ad damnum paragraphs state, id.: "WHEREFORE, Plaintiff Macsherry specifically requests that this Court grant judgment in favor of Plaintiff and jointly and severally against Defendants . . . as follows: . . . (d) Award Plaintiff Macsherry any other relief this Court or a jury deems appropriate." (Emphasis added).
Defendants timely removed the case to this Court on January 6, 2015, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. ECF 1 ("Notice of Removal"). Along with the Notice of Removal, defendants filed a Civil Cover Sheet (ECF 1-1) in which they checked a box next to "No" in regard to a request for jury trial. Id. at 1.
After the Court ruled (ECF 19) on defendants' motion to dismiss (ECF 9), Macsherry filed an Amended Complaint on July 7, 2015. ECF 26 ("Amended Complaint"). The Amended Complaint does not include a section devoted to a jury trial request. However, it refers to "a jury" in each of the four ad damnum paragraphs following Counts I through IV, respectively. ECF 26, ¶¶ 26(e), 32(d), 39(d), 46(d). In particular, the ad damnum paragraphs seek an "Award" of "any other relief this Court or a jury deems appropriate." ECF 26, ¶¶ 26(e), 32(d), 39(d), 46(d) (emphasis added).
Thereafter, CDC and SPLLC answered the Amended Complaint. ECF 28. But, Roberts again moved to dismiss. ECF 29. In a Memorandum Opinion (ECF 38) and Order (ECF 39) of October 23, 2015, I denied the motion as to Count I and granted it as to Counts II, III, and IV. Roberts then answered the Amended Complaint on November 6, 2015. ECF 42 ("Roberts Answer").
Fed. R. Civ. P. 38(a) provides, in part: "The right of trial by jury as declared by the Seventh Amendment to the Constitution . . . is preserved to the parties inviolate." Pursuant to Fed. R. Civ. P. 38(b), "a party may demand a jury trial by: (1) serving the other parties with a written demand — which may be included in a pleading — no later than 14 days after the last pleading directed to the issue is served. . . ." The right to a jury trial may be waived "unless [the] demand is properly served and filed." Fed. R. Civ. P. 38(d). See Wilhelm v. Wilhelm, 662 F.Supp.2d 424, 426 (D. Md. 2009) (citing Gen. Tire & Rubber Co. v. Watkins, 331 F.2d 192, 195 (4th Cir. 1964)); see also WRIGHT, MILLER, KANE, MARCUS, SPENCER, AND STEINMAN, FEDERAL PRACTICE AND PROCEDURE § 2318 (3d ed.) (hereinafter, "WRIGHT & MILLER") ("The right to jury trial preserved by the Seventh Amendment to the Constitution and embodied in Federal Rule 38(a) is not self-enforcing.").
Fed. R. Civ. P. 81(c)(3) is relevant to a jury trial demand when a case has been removed to federal court. Fed. R. Civ. P. 81(c)(3)(A) and (B)(i) and (B)(ii) provide, in part, id. (bold and italics in original):
Pursuant to Fed. R. Civ. P. 81(c)(3)(A), a party who has expressly demanded a jury trial in accordance with state law need not renew that demand after removal to federal court. If, however, state law did not require an express jury trial demand, "a party need not make one after removal unless the court orders the parties to do so within a specified time." Id.
Maryland Rule 2-325(a) states: "Any party may elect a trial by jury of any issue triable of right by a jury by filing a demand therefor in writing either as a separate paper or separately titled at the conclusion of a pleading and immediately preceding any required certificate of service." (Emphasis added). Rule 2-325(b) states: "The failure of a party to file the demand within 15 days after service of the last pleading filed, by any party directed to the issue constitutes a waiver of trial by jury."
Here, the Complaint (ECF 2) did not include a demand in the form of a "separate paper" or a "separately titled" section at its "conclusion[.]" Therefore, ECF 2 did not satisfy Maryland Rule 2-325(a). In turn, the Complaint did not fall within the ambit of Fed. R. Civ. P. 81(c)(3)(A), because a jury trial had not been requested "in accordance with state law. . . ." Moreover, defendants did not answer the Complaint before they removed the case. ECF 1 at 2, ¶ 3. Therefore, Fed. R. Civ. P. 81(c)(3)(B) is not implicated here.
Rather, the provisions of Fed. R. Civ. P. 38(b) apply. The Ninth Circuit explained in Lutz v. Glendale Union High School, 403 F.3d 1061, 1063 (9th Cir. 2005) (Kozinski, J.), that because the defendant "had not filed its answer before it removed the case, [the plaintiff] was entitled to demand a jury trial" under Fed. R. Civ. P. 38(b). See Vasquez v. Allied Waste, Inc., 4:13-CV-05608, 2014 WL 1247417, at *1 (N.D. Cal. Mar. 24, 2014) ("Rule 81(c) only applies where all `necessary pleadings' have been served prior to removal. If no responsive pleading has been filed prior to removal, Rule 38 applies.") (citing Mondor v. United States Dist. Court, 910 F.2d 585, 586 (9th Cir. 1990)). See generally WRIGHT & MILLER § 2319 (stating that Fed. R. Civ. P. 81(c) "applies only if all the necessary pleadings have been served in the state court proceeding prior to removal. If they have not, the usual provisions of the Federal Rules, particularly Rule 38(b) . . . govern. . . .").
The Roberts Answer, filed on November 6, 2015 (ECF 42), was the last pleading directed to the Amended Complaint. Therefore, if the Amended Complaint did not contain a prayer for a jury trial, then the deadline under Fed. R. Civ. P. 38(b)(1) to demand a jury trial was November 20, 2015.
Rule 39 is also noteworthy. It provides, in part: "[T]he Court may, on motion, order a jury trial on any issue for which a jury might have been demanded." Notably, "the decision to grant a jury trial pursuant to Rule 39(b) is committed to the discretion of the trial court." Malbon v. Pennsylvania Millers Mut. Ins. Co., 636 F.2d 936, 940 (4th Cir. 1980); see also Wilhelm, 662 F.Supp.2d at 426.
Macsherry argues, inter alia, that he complied with Fed. R. Civ. P. 38(b) by "request[ing] a jury trial in each of the four wherefore clauses in his Amended Complaint" (ECF 78-1 at 1), and also in his initial Complaint. Id. at 2. As noted, Macsherry requested "judgment in favor of Plaintiff" and "any other relief this Court or a jury deems appropriate." See, e.g., ECF 26, ¶ 46(d) (emphasis added). Defendants argue that Macsherry has not made a "Rule 38-compliant jury demand." ECF 84 at 1 (internal quotation marks omitted). Moreover, defendants assert that the "only fair reading of this language is that Plaintiff was not demanding a jury, but reserving the right to seek other (unspecified) relief, no matter the makeup of the tribunal." Id.
The jury trial demand made by Macsherry in his Amended Complaint must be reviewed under Fed. R. Civ. P. 38. As noted, it states, in relevant part (italics added):
Although Fed. R. Civ. P. 38(b)(1) allows a party to demand a jury trial as part of a pleading, such as an amended complaint, the rule's text offers little guidance as to the acceptable form that such a demand may take. See Lutz, 403 F.3d at 1063 ("We probe the mysteries of demanding a jury trial under Fed. R. Civ. P. 38(b)."). That issue is central here.
Plaintiff argues that his reference to "a jury" in each of four ad damnum paragraphs contained in his Amended Complaint (ECF 26) constitutes a valid demand for a jury trial as to each count. ECF 78-1 at 2. The Fourth Circuit has said that "technical perfection of jury demands is not necessarily required." Hohman v. Dunning, 991 F.2d 789 (Table), 1993 WL 127955 at *2 (4th Cir. 1993) (per curiam) (citing Gargiulo v. Delsole, 769 F.2d 77, 78-79 (2d Cir. 1985)). But, it does not appear to have addressed the specific issue presented in this case.
Judge Kozinski's opinion for the Ninth Circuit in Lutz v. Glendale Union High School, 403 F.3d 1061, is instructive. In Lutz, the court considered whether "references to a jury" in a complaint that was removed from state court and later amended were "sufficient to invoke the right to a jury trial in federal court." Id. at 1064. The court said, id. (emphasis in Lutz):
The Lutz Court aptly noted that the phraseology was "hardly the ideal way to request a jury trial. . . ." Id. But, it noted that a court must "`indulge every reasonable presumption against waiver' of the jury trial right." Id. (quoting Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393 (1937)). Accordingly, even "jury demands that fall far short of the ideal" are nonetheless valid. Id. at 1064 (citing Gargiulo, 769 F.2d at 78-79).
Put another way, the test is whether the jury demand is "sufficiently clear to alert a careful reader that a jury trial is requested on an issue." Lutz, 403 F.3d at 1064. Of importance here, plaintiff need not score an A on the test; even a grade of D is sufficient.
The Lutz approach recognizes that the purpose of Fed. R. Civ. P. 38 is to "`inform the Court and counsel well in advance of trial as to the trial method desired.'" Id. at 1064-65 (quoting Gallagher v. Del. & H.R. Corp., 15 F.R.D. 1, 3 (M.D. Pa. 1953)). Although the jury trial request in Lutz "certainly could have been clearer," the court was satisfied that it was sufficient because plaintiff's desire for a jury trial was made known to the court and to opposing counsel. Id. at 1065. Similarly, in Gargiulo, 769 F.2d at 78-79, the Second Circuit said: "While defendants' demand, made on the last page of their answer, was not in the preferred style, and its obscure placement perhaps caused the clerk of the court to overlook it, we nonetheless conclude that it complied with Rule 38(b)." See also Hohman, 991 F.2d 789 (Table), at *2.
As indicated, Macsherry referred to "a jury" in each of the four ad damnum paragraphs following Counts I through IV of his Amended Complaint. ECF 26, ¶¶ 26(e), 32(d), 39(d), 46(d). Specifically, he asked the Court to grant judgment in favor of plaintiff and to "[a]ward Plaintiff Macsherry any other relief this Court or a jury deems appropriate." See, e.g., ECF 26 at 11 (emphasis added). Macsherry's inartful request was "sufficiently clear to alert a careful reader that a jury trial is requested on an issue." Lutz, 403 F.3d at 1064.
The fact that the Case Information Report accompanying Macsherry's initial Complaint in State court (ECF 2-1) and the Civil Cover Sheet in this Court (ECF 1-1) did not reflect a jury trial is not dispositive. See Tech. & Supply Mgmt., LLC v. Johnson Controls Bldg. Automation Sys., LLC, 1:16-cv-303, 2016 WL 9412456, *2 (E.D. Va. Dec. 1, 2016) (concluding that a notation on a civil cover sheet does not satisfy the requirements of Fed. R. Civ. P. 38(b)); DeWitt v. Hutchins, 309 F.Supp.2d 743, 754 (M.D.N.C. 2004) (concluding that the "notation on a civil cover sheet . . . is not a substitute for the service of written notice of demand for a jury trial. . . ."). The Civil Cover Sheet and the Case Information Report are not determinative as to whether plaintiff requested a jury trial.
In the alternative, I shall consider Macsherry's motion for jury trial pursuant to Fed. R. Civ. P. 39(b). See ECF 78-1 at 6. Defendants maintain that Macsherry has failed to satisfy the requirements of the rule. See ECF 84 at 13-14.
In relevant part, Rule 39(b) states: "
The Fourth Circuit has established a four-factor balancing test to assess whether, in the trial court's discretion, it is proper to grant a motion pursuant to Fed. R. Civ. P. 39(b). See Malbon, 636 F.2d at 940 n.11.
Additionally, some courts in the Fourth Circuit have applied a fifth factor: "the reason for the failure to make a timely demand." Sky Angel U.S., LLC v. Discovery Communications, LLC, 28 F.Supp.3d 465, 474 (D. Md. 2014) (applying the Malbon factors and the fifth factor) (citing, inter alia, A Helping Hand, LLC v. Baltimore County, Md., 295 F.Supp.2d 585, 589 (D. Md. 2003)). Compare A Helping Hand, LLC, 295 F. Supp. 2d at 589 (applying the Malbon factors and the fifth factor) (citing Wright Mfg., Inc. v. Great Dane Power Equip., Inc., DKC-97-2128, 1998 WL 105470, at *1 (D. Md. Jan 8, 1988)), and Lawrence v. Con-Way Freight, Inc., 2:12-cv-2392, 2012 WL 5330984, *2 (S.D.W. Va. Oct. 29, 2012) (applying the Malbon factors and the fifth factor), with Yongxin Lu v. Johnson, CBD-06-1105, 2010 WL 672935, at *3 (D. Md. Feb. 19, 2010) (applying only the four Malbon factors), and Mosbriantanha v. Patchlink Corp., DKC-2007-0211, 2007 WL 4557851, at *2 (D. Md. Dec. 21, 2007) (applying only the four Malbon factors).
I shall review Macsherry's Motion under each of the five factors.
The first Malbon factor asks "whether the issues are more appropriate for determination by a jury or a judge." Malbon, 636 F.2d at 940 n.11. Macsherry argues, inter alia, that this case has many significant factual disputes which are best decided by a jury. ECF 78-1 at 7-8. This is especially true, Macsherry argues, because the credibility of witnesses will be at issue in this case. Id. at 8. Defendants argue that the contract-related issues in this case are "legal" in nature and therefore are not suited for a jury's consideration. ECF 84 at 15.
I agree with Macsherry that this case presents many significant issues of fact that are properly tried before a jury. See ECF 73. Moreover, a jury is capable of considering and weighing evidence pertaining to the contract issues, such as, inter alia, whether the parties agreed upon a commission payable to plaintiff as part of a compensation package. Accordingly, the first Malbon factor weighs in favor of granting Macsherry's Fed. R. Civ. P. 39(b) motion.
The second Malbon factor inquires as to "any prejudice that granting a jury trial would cause the opposing party." Malbon, 636 F.2d at 940 n.11. Macsherry contends that because the credibility of witnesses will be paramount in the determination of this case, and because a jury is best suited for the task of determining witness credibility, defendants will not be prejudiced by a jury trial. ECF 78-1 at 8. Defendants counter that, since November of 2014, they "have prepared, planned, and budgeted for this case to proceed as a bench trial." ECF 84 at 18. Additionally, defendants argue that a jury trial will likely "require more resources" (id. at 16), and that they have been prejudiced by the mere fact of having to respond to Macsherry's Motion. Id. at 17.
I cannot discern any prejudice to defendants. In the first instance, a careful reading of the Complaint filed in State court alerted the defense to the potential for a jury trial. And, as early as January 2016, in a joint status report (ECF 43), the parties notified the Court of their disagreement as to whether plaintiff had properly requested a jury trial, and added: "Motions practice may be required to resolve the dispute." Id. at 43, ¶ 3. This means that, even before the submission of the status report, defendants were on notice of the potential issue for purposes of budgeting and trial strategy.
Moreover, in ECF 47, filed March 4, 2016, plaintiff sought to amend the complaint again, seeking, inter alia, to clarify the demand for jury trial. See ECF 47; 47-3 at 1-2. By Memorandum Opinion and Order of October 28, 2016 (ECF 55; ECF 56), I addressed several issues as to plaintiff's motion to amend. See ECF 47. I specifically declined to address the jury trial issue in the context of the motion to amend. ECF 55 at 21-22. Again, defendants were aware of the unresolved issue.
The third Malbon factor looks to "the timing of the motion" and considers whether that motion was made "early or late" in the proceedings. Malbon, 636 F.2d at 940 n.11. Defendants argue that because Macsherry did not file the Motion until some three years after he filed the suit in State court, the Motion is untimely. ECF 84 at 19-20. Of course, defendants' argument proceeds on the assumption that Macsherry's Complaint (ECF 2) and Amended Complaint (ECF 26) did not contain valid requests for trial by jury at the outset. Because Macsherry believed he had adequately prayed a jury trial (ECF 78-1 at 2), he had no reason to file a Rule 39(b) Motion. And, by the time the Joint Status Report was filed on January 29, 2016 (ECF 43), defendants agreed that "[m]otions practice may be required to resolve the dispute." ECF 43, ¶ d.
By Memorandum Opinion of October 28, 2016 (ECF 55 at 21-22), I concluded that the question of whether plaintiff timely demanded a jury trial was not properly resolved in the context of a motion to amend the Amended Complaint. Id. at 22. During the Court's status conference with counsel on August 16, 2017, the issue was discussed. At that time, in order to frame the dispute, the Court directed plaintiff to file a motion for jury trial by September 11, 2017. ECF 74. Plaintiff complied. ECF 78. Given the circumstances of this case, the third factor does not weigh in defendants' favor.
The fourth Malbon factor pertains to "any effect a jury trial would have on the court's docket and the orderly administration of justice." Malbon, 636 F.2d at 940 n.11. Macsherry correctly points out that this case is already scheduled as a jury trial. ECF 76 at 1; ECF 78-1 at 8. Defendants argue that a jury trial will take more of the Court's time and use more of the Court's resources by requiring, for example, the marshaling of a jury pool. ECF 84 at 20-21.
Although it is true that a jury trial may consume more time than a bench trial, a jury trial will not improperly disrupt the Court's docket. For these reasons, the fourth Malbon factor weighs in favor of granting Macsherry's Motion.
The fifth factor that is sometimes applied by district courts in the Fourth Circuit concerns "the reason for the failure to make a timely demand." See, e.g., Sky Angel U.S., LLC, 28 F.Supp. 3 at 474. Indeed, the considerations required of this factor overlap somewhat with those of Malbon's third factor, which questions the timing of a Fed. R. Civ. P. 39(b) motion. Malbon, 636 F.2d at 940 n.11. Defendants urge denial of Macsherry's Motion because of his delay in filing it. ECF 84 at 21-22. And, defendants argue that inadvertence is not a proper reason for delay. Id. But, Macsherry maintains that he "has always considered his demand for a jury trial to have been timely made in his Amended Complaint (ECF 26)." ECF 78-1 at 8. If so, a motion was unnecessary. In any event, he argues that any imperfection in his jury trial request is not a proper ground to deny the Motion as to Fed. R. Civ. P. 39(b). Id. at 8-9.
As noted, Macsherry's demand for "a jury" in the ad damnum paragraphs of his Complaint and Amended Complaint are by no means exemplary. As inartful as his requests may have been, they do not amount to his failure to request a jury trial. And, for the reasons set forth earlier, he was not dilatory in raising the issue. Accordingly, I find that the fifth factor weighs in Macsherry's favor.
Macsherry's request for a jury trial was hardly exemplary. But, for the foregoing reasons, I conclude that Macsherry adequately requested a trial by jury, pursuant to Fed. R. Civ. P. 38(b). And, even assuming that Macsherry failed to request a trial by jury, I am satisfied that he is entitled to a trial by jury under Fed. R. Civ. P. 39(b) as to all claims triable by a jury. Accordingly, I shall grant plaintiff's Motion.
An Order follows, consistent with this Memorandum Opinion.
However, Malbon, supra, 636 F.2d 936, post-dates General Tire & Rubber Co. by 16 years. It makes no mention of "exceptional circumstances" as a required factor pursuant to a Rule 39(b) motion, and specifically cites General Tire & Rubber Co. for the limited proposition that some "issues are more appropriate for determination by a jury [rather than] a judge. . . ." Id. at 940 n.11. See also Mosbriantanha v. Patchlink Corp., DKC-2007-0211, 2007 WL 4557851, at *2 (D. Md. Dec. 21, 2007) (Chasanow, J.) (finding that the defendant "misconstrue[d] General Tire" by arguing it requires a party moving under Fed. R. Civ. P. 39(b) to show "exceptional circumstances" in favor of that motion). Moreover, Smith and Corinthian Mortg. Corp. both utilize the balancing test factors articulated in Malbon. See Smith, 2009 WL 366586, at *1; Corinthian Mortg. Corp., 2008 WL 2149383, at *2. Accordingly, Macsherry need not show exceptional circumstances.
