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Macsherry v. Sparrows Point, LLC

United States District Court, D. Maryland

November 17, 2017

JOHN H. MACSHERRY, JR., Plaintiff,
v.
SPARROWS POINT, LLC, et al. Defendants.

          MEMORANDUM OPINION

          ELLEN LIPTON HOLLANDER UNITED STATES 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.[1]

         The 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").

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.

         I. Procedural Background

         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").

         II. Discussion

         A.

         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):

(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[2] 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 after:
(i) it files a notice of removal; or
(ii) it is served with a notice of removal filed by another party.

         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 ...


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