United States District Court, D. Maryland
MEMORANDUM OPINION & ORDER
Xinis United States District Judge.
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.
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.
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.
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).
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.
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).
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;
(2) filing the demand in accordance with
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 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 ...