United States District Court, D. Maryland
JOHN H. MACSHERRY, JR., Plaintiff,
SPARROWS POINT, LLC, et al. Defendants.
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE
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.
parties disagree as to plaintiffs entitlement to a jury
trial. Now pending is plaintiffs 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").
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall grant
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).
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.
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
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
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.").
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):
(A) As Affected by State Law. A party who, before
removal, expressly demanded a jury trial in accordance with
state law need not renew the demand after removal....
(B) Under Rule 38. If all necessary
pleadings have been served at the time of
removal, a party entitled to a jury trial under Rule 38 must
be given one if the party serves a demand within 14 days
(i) it files a notice of removal; or
(ii) it is served with a notice of removal filed by
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
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
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