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Berkenfeld v. Lenet

United States District Court, D. Maryland

August 15, 2019

BRANDON BERKENFELD, et al., Plaintiffs,
v.
GARY R. LENET, et al., Defendants.

          MEMORANDUM OPINION & ORDER

          Paula Xinis United States District Judge.

         Plaintiffs Brandon Berkenfeld, Barbara Holland-Eytan and Sandra Ricki Diamond (“Plaintiffs”) bring this professional negligence suit against defendants Gary Lenet and Morgan Stanley & Co., LLC (“Defendants”). The case is presently set for trial, although the parties disagree as to whether Plaintiffs adequately preserved their right to a jury trial. The Court has reviewed all relevant pleadings and finds no hearing necessary. See Loc. R. 105.6. For the following reasons, the request for jury trial is GRANTED.

         On February 25, 2016, Plaintiffs initially filed suit in the Circuit Court for Baltimore City but did not pray a jury trial in its initial pleadings. ECF Nos. 2, 2-2. On April 25, 2016, Defendants noted removal. ECF No. 1. The parties thereafter litigated motions to remand and dismiss. They were also referred for settlement discussions.

         After the motions to remand and dismiss were denied, the Court issued a Scheduling Order on February 23, 2017, which required the parties to address in a written status report “whether the case is to be tried jury or non-jury and the anticipated length of trial.” ECF No. 39 at 3. Defendants did not file their Answer to the Complaint until May 16, 2017, nearly thirteen months after the case was removed. ECF No. 41.

         On June 6, 2017, both parties filed timely written status reports, per the Court's order. ECF Nos. 44, 45. Plaintiffs' status report states that “Plaintiffs, Brandon Berkenfeld, Barbara Holland-Eytan and Sandra Diamond . . . elects [sic] to have this case tried before a jury.” ECF No. 45 at 2. This status report was filed using the Court's Electronic Filing System (ECF) and thus was served properly. See Fed. R. Civ. P. 5(b)(2)(E).

         At the close of discovery, Defendants moved for summary judgment in their favor which this Court granted. The Court determined that although genuine issues of disputed fact existed as to Defendants' negligence, summary judgment was nonetheless proper because no reasonable jury could disagree that Plaintiffs were contributorily negligent. ECF Nos. 53, 54. The United States Court of Appeals for the Fourth Circuit reversed and remanded, holding that sufficient factual disputes existed to allow a finder of fact at trial to reach the question of contributory negligence. ECF No. 59. Accordingly, the case is now set for trial before this Court to begin February 24, 2020. ECF No. 67 at 2.

         “The right of trial by jury as declared by the Seventh Amendment to the Constitution . . . is preserved to the parties inviolate.” Fed.R.Civ.P. 38(a). A jury trial right, therefore, is fundamental, and the Court must engage every presumption against waiver of that right. See Burns v. Lawther, 53 F.3d 1237, 1240 (11th Cir. 1995).

         Rule 38 of the Federal Rules of Civil Procedure governs the process for either party to demand a jury trial. The rule provides that 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; and
(2) filing the demand in accordance with Rule 5(d).

Fed. R. Civ. P. 38(b).

Because Defendants removed this case, the Court must also consider Rule 81(c)(3), which provides that where no express jury trial demand was made below,
(B) . . . If all necessary pleadings[1] 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 ...

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