Lisy Corp. v. McCormick & Co.
Lisy Corp. v. McCormick & Co.
Opinion of the Court
In this case, we address whether a completed Case Information Report (“CIR”)
Rule 2-325(a) specifies the procedure for invoking a jury trial in civil cases, and explicitly states that jury demands are to be made in a “pleading” or separate “paper.” In the Circuit Court, Petitioner argued in its response to the motion to confirm a bench trial that Duckett was distinguishable. According to Petitioner, this Court held in Duckett that an unserved CIR will not satisfy the notice requirements of Rule 2-325(a). Therefore, because the opposing parties were served with a CIR containing a reference to a jury demand, Petitioner maintained, in the present case, it was entitled to a trial by jury. The Circuit Court disagreed. That court found, consistent with Duckett, that the CIR was neither a “pleading” nor a separate “paper” within the meaning of Rule 2-325, and that failure to comply with the Rule resulted in the waiver of
Petitioner appealed to the Court of Special Appeals. The intermediate appellate court affirmed the trial court’s ruling. For the reasons explained below, we hold that a CIR, whether served or unserved, does not constitute a separate “paper” within the meaning of Rule 2-325, and that ordinarily failure to comply timely with the Rule will result in a waiver of the right to a jury trial in a civil case.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner and Respondent McCormick & Co., Inc. are direct competitors in the Hispanic marketplace with each manufacturing and distributing consumer food products. Respondent Mojave Foods Corp. is a subsidiary of McCormick and also competes against Petitioner. Petitioner filed suit against its former employee Adams and Respondents alleging, among other things, that Adams violated the terms of his employment contract by working with Respondent McCormick, a direct competitor, and both misappropriated Petitioner’s confidential trade secrets and tortiously interfered with Petitioner’s contracts and business relations.
On February 28, 2011, Petitioner filed its complaint, including a request for a temporary restraining order, and a completed CIR in the Circuit Court for Howard County. Petitioner checked “yes” in the Jury Demand section of the CIR. All parties were served.
On April 11, 2012, Petitioner filed an Amended Complaint adding an additional claim. Neither the complaint nor the amended complaint asserted a jury demand. Notwithstanding the omission, on July 25, 2012, the Office of Calendar Management notified the parties that it was scheduling a trial date and ordering a jury trial.
I don’t read Duckett to infer or to stand for the proposition that if the Case Management Information sheet had been served upon the Defendant that that would constitute a proper election for a jury trial .... I find that the failure of the Plaintiff to file an election for jury trial as contemplated by the rule, not withstanding service upon [t]he Defendant of the civil Case Information Report contemporaneous with service on the Plaintiff, constitutes a waiver by the Plaintiff of a right to a jury trial.
Finding that no valid jury demand existed, the motions judge ordered that the case proceed as a bench trial. Petitioner filed a motion to postpone the trial and requested time to obtain appellate review.
We granted certiorari, Lisy Corp. v. McCormick & Co., 441 Md. 217, 107 A.3d 1141 (2015), to answer the following questions, which we have rephrased:
1. Does a completed CIR referencing a jury demand satisfy the definition of a separate “paper” within the meaning of Md. Rule 2-325?
2. By not asserting its constitutional right to a jury demand in a “pleading” or separate “paper” within the mean*221 ing of Md. Rule 2-825, did Petitioner waive its right to a jury trial in a civil case?
For the reasons stated below, we shall answer the first question in the negative and the second question in the affirmative. Accordingly, the judgment of the Court of Special Appeals is affirmed.
STANDARD OF REVIEW
This Court revisits the issue of what constitutes a separate “paper” under Rule 2-325, and whether a served CIR meets the definition. In doing so, we rely on the principles of statutory interpretation:
[T]he principles applied to statutory interpretation are also used to interpret the Maryland Rules. Like construing a statute, to ascertain the meaning of a ... rule of procedure we first look to the normal, plain meaning of the language. If that language is clear and unambiguous, we need not look beyond the provision’s terms to inform our analysis; however, the goal of our examination is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular ... part of the Rules. To that end, we must consider the context in which the ... rule appears, including related statutes or rules, and relevant legislative history. Also, where the language of the rule is ambiguous, external evidence may be referred to for discerning the purpose of the legislature, including the bill’s title or function paragraphs, relevant case law, and secondary sources.
Duckett, 428 Md. at 476-77, 52 A.3d at 87 (citing Davis v. Slater, 383 Md. 599, 604-05, 861 A.2d 78, 81 (2004)). “Because an interpretation of the Maryland Rules is appropriately classified as a question of law, we review the issue de novo to determine if the trial court was legally correct in its rulings on these matters.” Pickett v. Sears, Roebuck & Co., 365 Md. 67, 77, 775 A.2d 1218, 1223 (2001). “This is a purely legal inquiry; therefore, we construe Rule 2-325(a) withbut giving deference to [the circuit court’s or] the intermediate appellate court’s
DISCUSSION
In Davis, we discussed the development of the common law right to a jury trial, which dates back to at least the Magna Carta, if not even further. 383 Md. at 609, 861 A.2d at 83-84. “The entitlement to a trial by jury was guaranteed in writing for the first time by the Magna Carta on June 15, 1215[,]” however, “its use was mandated by custom” long beforehand. Id. (citing Hon. Randy J. Holland, State Jury Trials and Federalism: Constitutionalizing Common Law Concepts, 38 Val. U.L.Rev. 373, 376 (2004)). This historic right to a jury trial “is enshrined in the Maryland Declaration of Rights [under Articles 5 and 23]
“Although ‘inviolably preserved,’ the right to have a civil jury trial may be regulated reasonably ....’” Duckett, 428 Md. at 478, 52 A.3d at 88 (citing Bringe v. Collins, 274 Md. 338, 345, 335 A.2d 670, 675 (1975)). “It is well settled that the right to a jury trial may be subjected to reasonable regulation;
Waiver of the Right to a Jury Trial in a Civil Case
In Duckett, this Court was confronted with the issue of whether an unserved CIR containing a reference to a jury demand constituted a separate “paper” within the meaning of Rule 2-325(a). As the word “paper” is not defined in the Maryland Rules, we interpreted Rule 2-325(a) and discussed at length its legislative history and intent. Duckett, 428 Md. at 480-82, 52 A.3d at 89-90. Furthermore, we discussed the purpose of a CIR in comparison to that of a “pleading” or separate “paper.” A CIR is an administrative tool designed “to assist the Clerk and the court in scheduling actions in the court promptly and efficiently. It is not intended to be an original vehicle, and, in fact, is separate from the methodology, for asserting the constitutional right to a jury trial.” Duckett, 428 Md. at 480, 52 A.3d at 89. In contrast, the implicit purpose behind Rule 2-325 is to provide notice principally to an opposing party, and also the court, of that party’s assertion of the right to a jury trial in a civil case. Duckett, 428 Md. at 481, 52 A.3d at 90.
Petitioner contends that the holding in Duckett is limited to an unserved CIR, and that a served CIR containing
Maryland Rule l-201(a) provides that “[t]hese rules shall be ■ construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.” Moreover, “[w]hen construing ... rules, we must bear in mind that they are ‘precise rubrics,’ established to promote the orderly and efficient administration of justice, and thus are to be strictly followed.”
428 Md. at 477, 52 A.3d at 87 (citing In re Kaela C., 394 Md. 432, 471, 906 A.2d 915, 938 (2006)).
Our articulation of the facts in Duckett, namely that the respondent waived her right to a jury trial by relying on a reference to a jury demand in an unserved CIR, rather than asserting it in a pleading or separate paper, falls within our role to decide the case before us, and not to opine on other matters. In Duckett, the issue before us was whether a properly filed CIR containing a reference to a jury demand, which was not served on the opposing party, could be a proper vehicle for demanding a jury trial under Rule 2-325(a). Accordingly, we decided the case on the facts before us. Our analysis, however, made it clear that a CIR, served or unserved, could not constitute a separate “paper.” A CIR does not fall within “the common understanding of the Maryland
In addition, even within the context of the Maryland Rules, a CIR is referred to as separate from a “paper,” and is regulated by separate rules. See Rule 2-112(a) (instructing the clerk, upon receipt of a complaint, to issue and deliver a summons “together with a copy of each paper filed and a blank copy of the information report form” to each defendant); Rule 2-lll(b) (stating the issuance of a summons is contingent upon the filing of the “complaint, a copy of each exhibit or other paper filed with the complaint, and a copy of the information report”). Furthermore, a separate “paper” and a CIR have distinctive purposes. The target audience for the information contained in each document is key: a CIR benefits the clerk’s office by facilitating case management, and a separate “paper” notifies parties of the mode of the trial, the substance of the allegations asserted and relief sought in the case. A CIR “is not intended to be an original vehicle, and, in fact, is separate from the methodology, for asserting the constitutional right to a jury trial” because the CIR is designed “to assist the Clerk and the court in scheduling actions in the court promptly and efficiently” as a case management tool. Duckett, 428 Md. at 480, 52 A.3d at 89. Conversely, the underlying purpose of Rule 2-325(a) “is to ensure that service or notice of a jury demand be made on, or given to, the opposing party or parties____” Duckett, 428 Md. at 481, 52 A.3d at 90.
A CIR does not constitute a separate “paper” within the meaning of Rule 2-325(a). Attorneys and parties, which may include self-represented litigants, are all held to the same standard and are required to comply with the Maryland Rules. Rule 2-325(a) is explicit, unambiguous and mandatory: the proper vehicle for a jury demand is a “pleading”
If it were not clear enough in Duckett, we offer further clarity to the meaning of the word “paper” under Rule 2-325(a) based upon the common understanding of the term.
We reaffirm Duckett and hold that a CIR, served or unserved, is not a proper vehicle for the election of a jury trial because service of the CIR on the opposing party does not satisfy the requirements of Rule 2-325(a) for the reasons explained above. As such, Petitioner was not deprived unjustly of its right to a trial by jury. Rule 2-325 is a “precise rubric,” which is to be strictly followed, and Petitioner’s failure to comply, whether intentional or unintentional, resulted in a waiver of that right under Subsection (b).
Md. Rule 2-325(a) Is Not Analogous to Fed.R.Civ.P. 38(b)
In support of its argument that it made a valid jury demand, Petitioner maintains that the federal courts’ interpre
When the words of a Maryland rule and federal rule are the same or similar, often we look to interpretations of the federal rule in construing the Maryland Rule. Federal court interpretations of federal rules are considered persuasive, but are not binding on this Court in interpreting a Maryland rule.
Stoddard v. State, 389 Md. 681, 695, 887 A.2d 564, 572 (2005) (internal citations omitted). Both Rule 2-325 and Fed. R.Civ.P. 38 establish the procedural mechanisms in their respective courts to assert the constitutional right to a jury trial in a civil case. In Duckett, we recognized Rule 2-325 originated from its federal counterpart and both rules emphasize the importance that “service or notice of a jury demand be made on, or given to, the opposing party or parties----” 428 Md. at 481, 52 A.3d at 90. “Rule 2-325(a) derives from Rule 343(a) and the 1966 version of the Federal Rule of Procedure 38(b).” Id. The 1966 version of Fed.R.Civ.P. 38(b) delineated the proper procedure in federal court:
Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.
Fed.R.CivP. 38(b) (1966).
Maryland appellate courts have interpreted the Maryland Rules as precise rubrics that are mandatory. See Gen. Motors Corp. v. Seay, 388 Md. 341, 344, 879 A.2d 1049, 1051 (2005) (“As we have often said, the Maryland Rules are ‘precise rubrics’ which are to be strictly followed.”). As the rules differ in scope, the intermediate appellate court properly rejected Petitioner’s argument that the federal courts’ interpretations of Fed.R.CivP. 38(b) is persuasive. Lisy Corp., 219 Md.App. at 602, 101 A.3d at 536. In Maryland, the assertion of a jury demand must be stated in a “pleading” or separate “paper.”
Not unlike the present case, in Seay, the petitioner failed to comply with the procedural requirements of Rule 2-532, which regulates the procedure for filing motions for a judgment notwithstanding the verdict, and we were asked to reinterpret the applicable Maryland Rules based on the more flexible Fed.R.CivP. 50. 388 Md. at 350-51, 879 A.2d at 1054. There, however, we also declined the opportunity “to depart from our state court jurisprudence of strict compliance with the procedural requirements of Rules 2-519 and 2-532 ----” Seay, 388 Md. at 360, 879 A.2d at 1060.
CONCLUSION
Accordingly, we affirm the judgment of the Court of Special Appeals. Petitioner’s jury demand was procedurally defective, because a CIR is not a separate “paper” within the meaning of Rule 2-325(a). Therefore, failure to comply with the Rule resulted in a waiver of the right to a jury trial.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY THE COSTS.
. The pertinent part of the CIR served in the instant case appears as follows:
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A CIR is a standard court-produced administrative form used by the clerk’s office for case management purposes. It is a three-page document composed of multiple sections pertaining to the mode of the trial. In its directions, the CIR refers parties to Maryland Rules 2-111(a) and 2-323(h), which inform plaintiffs and defendants respectively of the filing requirements of the CIR. Rule 2-111(a) also references Rule 16-202(b), which states ”[t]he information contained in the information report shall not be used for any purpose other than case management.” Md. Rule 16—202(b)(3). Pursuant to the Maryland Rules, parties are required to complete the CIR and provide basic information about the case by placing a checkmark in the appropriate boxes. These sections ask the party filling out the CIR to identify, among other things, whether a jury trial has been demanded, the nature of the action, and the damages and relief sought. In essence, by checking the appropriate boxes, parties are required to convey minimal information about the case in order to assist the clerk’s office with scheduling matters.
. Adams was not a party to the proceedings in either the intermediate appellate court or this Court.
. On June 18, 2012, the parties moved to schedule a trial date. On July 25, 2012, the Office of Calendar Management issued a notice informing the parties that it was scheduling the matter for a jury trial. In
. Days earlier, the motions judge had instructed a clerk to inform the parties via telephone of the court's ruling on the motion. Then on the scheduled first day of trial, the court announced its ruling on the record.
. The court also entered judgment in favor of Petitioner and against Adams in the amount of $41,841.00 plus costs. No issue is taken with regard to this aspect of the judgment.
. Petitioner presented the following questions:
1. Did this Court's decision in Duckett v. Riley, 428 Md. 471, 52 A.3d 84 (2012), deprive Lisy of its previously-valid jury demand even though the Duckett ruling was expressly limited to a case involving a Civil Non-Domestic Case Information Report ("CIR”) that had never been served on the opposing party and this Court expressly left open the question of whether the outcome would be different if the plaintiff had served the CIR, precisely as Lisy had done here?
2. Did Lisy properly demand its constitutional right to a jury trial when the law at the time of the filing of its complaint in February 2011 recognized the validity of Lisy having demanded a jury by checking the appropriate box in the CIR?
3. Did Lisy ever voluntarily and intentionally relinquish its known constitutional right to a jury trial?
. In pertinent part, Md. Decl. of Rts. art. 5 states “[tjhat the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury ....” Md. Decl. of Rts. art. 23 elaborates on this right by further stating "[t]he right of trial by Jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of $15,000, shall be inviolably preserved.”
. "The right of trial by jury as guaranteed by the Maryland Constitution and the Maryland Declaration of Rights or as provided by law shall be preserved to the parties inviolate.” Md. Rule 2-511(a).
. "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.” Md. Rule 2-325(a).
. The term "pleading” is defined in Md. Rule l-202(u). A pleading is a “complaint, a counterclaim, a cross-claim, a third-party complaint, an
. The broad definition of the word “paper” is "[a]ny written or printed document or instrument.” Black’s Law Dictionary 1285 (Bryan A. Garner ed., 10th ed. 2014). We find a narrower definition of the word "paper” in the context of legal matters. That definition seems to relate more to the function of the document: "a piece of paper containing a written or printed statement (as of identity, authority, or ownership) ____” Webster’s Third New International Dictionary, Unabridged 1633 (2002). That definition is further narrowed based on our discussion in Duckett. There, we pointed out the function of the CIR as distinct from the function of a separate "paper.” As a case management tool, the CIR is designed "to assist the Clerk and the court in scheduling actions in the court promptly and efficiently.” Duckett, 428 Md. at 480, 52 A.3d at 89.
. We disagree with the views of the dissenting opinion, which would in effect overrule Duckett, sub silentio. The alleged validity of a jury
. The current version of Fed.R.Civ.P. 38, in pertinent part, states:
(b) Demand. On any issue triable of right by a jury, 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).
*229 (d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.
Dissenting Opinion
dissenting.
In Duckett v. Riley, 428 Md. 471, 52 A.3d 84 (2012), this Court held that a party in a civil case did not make a proper jury demand under Maryland Rule 2-325 simply by checking off a box for a jury trial on a case information report that was never served on the opposing party. But the Court was clear on what it was not deciding in that case:
It is, of course, an open question, and one we need not answer, whether, if the civil non-domestic case information sheet had been served successfully and timely on the petitioner, the outcome in this case would have been different.
428 Md. at 482 n. 7, 52 A.3d 84 (emphasis added). We granted a writ of certiorari in this case to answer the unanswered question in Duckett.
The Majority opinion makes the best argument that can be mustered for answering “no.” But, in my view, that argument is not persuasive. The language, history, and purposes of Rule 2-325—and, indeed, some of the Majority opinion’s reasoning—all support the opposite conclusion.
As the Majority opinion accurately recounts, in early 2011, Lisy Corp. (“Lisy”) filed a civil action against McCormick & Co., Inc. (“McCormick”).
McCormick does not claim lack of notice of Lisy’s jury demand. Indeed, McCormick’s counsel has conceded that it had timely notice of the jury demand and suffered no prejudice. McCormick only quibbles with the format—an objection that it raised belatedly after giving every indication it was prepared for a jury trial.
Constitutional Right to a Jury Trial and its Regulation
Under the Maryland Constitution, a party in a civil case in a Maryland state court has a right to a jury trial when the amount in controversy exceeds $15,000. Maryland Declaration of Rights, Articles 5, 23; see also Maryland Rule 2-511(a). There is a similar right under the federal constitution for litigants in civil cases in federal court. United States Constitution, Amendment YII. In both federal and Maryland trial
The Language and History of Rule 2-325
Court rules govern how and when a party is to assert the constitutional right to a jury trial. For the federal system, the United States Supreme Court adopted Federal Rule of Civil Procedure 38. That rule provides, in pertinent part, that a party may demand a jury trial in a civil case by “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 ____” Federal Rule of Civil Procedure 38(b). If a party fails to file and serve a timely jury demand, the party is deemed to have waived its right to a jury trial. Federal Rule of Civil Procedure 38(d).
For Maryland courts, this Court has adopted a similar rule explicitly based on Federal Rule 38(b).
The Purposes of the Rule
The requirement of a jury demand is not intended simply to burden the exercise of the jury trial right or to create hurdles to its invocation. These rules have a specific purpose, as any regulation should. Consider the common elements of the federal and Maryland rules:
1— documentation—The jury demand must be made in writing. An oral demand or a statement to the court or to an opposing party does not suffice. The jury demand must be documented in writing so that all parties will know how the case is to be tried.
2— timing of notice—The jury demand must be made early in the action—within about two weeks after the last pleading concerning the issue on which a jury trial is sought. The rules are thus designed to ensure that the trial court, and all parties, are aware early in the litigation, that a party has invoked its constitutional right and that the matter will be tried before a jury. The manner in which parties pursue discovery and other pre-trial matters may be shaped by whether the matter will be tried as a bench or a jury trial.
3 —flexible format—Neither rule dictates a precise format for a written jury demand—consistent with the policy of not burdening the constitutional right. Both rules allow for a jury demand to be included in a pleading, but neither requires it. The federal rule uses the all-encompassing term “written demand” (which may be a pleading); the Maryland rule states that a written demand not contained in a pleading may be filed “as a separate paper”—i.e., a paper separate from a pleading itself. There is no indication in the language or history of the Maryland rule that it was meant to be more restrictive than the federal rule; indeed, the source note for the rule suggests just the opposite.
Case Information Forms
Rules governing trial courts in most jurisdictions require that a plaintiff file a case information form together with a complaint to provide key information about the new civil action. In federal court, this is known as a civil cover sheet.
The question before us—as articulated in Duckett—is whether a completed CIR that demands a jury trial and that is timely served on the opposing party is a separate “paper” that satisfactorily preserves the party’s jury trial right under Maryland Rule 2-325.
What is a “Separate Paper ”?
There is, of course, no definition of “paper” in the Maryland Rules.
Apart from the prescriptions concerning size, format, and signature, the only essential requirements for a “paper” making a jury demand are that the filing convey the party’s intent and that it be served on the other parties. There is no dispute that a one-page document entitled “Jury Demand” that bears a single sentence—“The Plaintiff demands a jury trial”—and that is served on the other parties would suffice for purposes of Rule 2-325. McCormick conceded at oral argument that such a document would suffice. Undoubtedly, this form of jury demand is used frequently in Maryland courts.
The Majority opinion struggles to devise a definition of ' “paper” that would exclude a served CIR, but those definitions actually would encompass a served CIR and, ironically, some of those definitions would exclude the standard jury demand:
• The Majority opinion quotes a definition of “paper” found in a prominent legal dictionary. Majority op. at 226 n. 11, 126 A.3d at 63 n. 11 (quoting the definition of “paper” in Black’s Law Dictionary (10th ed. 2014)). That definition— “[a]ny written or printed document or instrument”—would encompass a served CIR as well as the standard jury demand. But the Majority rejects that definition as inappropriate for the purpose of “legal matters.” It then resorts to one of 13 definitions of that noun offered by a general dictionary, but finds that definition to be too broad as well, perhaps because a completed CIR would also fit within that definition. Id. (quoting a definition of “paper” from Webster’s Third International Dictionary, Unabridged (2002)).
*236 • The Majority opinion describes a “paper” as a document that “notifies parties of the mode of the trial and the substance of the allegations asserted and relief sought in the case.” Majority op. at 225, 126 A.3d at 62. A completed CIR is the quintessential document that provides information as to the mode of trial—there is a checkoff box for a jury trial—as well as the allegations and relief sought—there are other check-off boxes for indicating the nature of the action, the damages or other relief sought, and the likely length of trial. By contrast, few other “papers” filed in an action cover all those bases. Of those that do, few are as comprehensive as a CIR. The standard jury demand says nothing about specific allegations, or the relief sought.
• The Majority opinion characterizes a “paper” as “a document, printed or written, that is filed in conjunction with court pleadings.” Majority op. at 226, 126 A.3d at 63. A served CIR is certainly a “printed or written document” and there are few documents that are filed more “in conjunction with” a pleading than a CIR, as the CIR must be physically attached to the complaint.
• The Majority opinion states that “the purpose of a paper is to convey supporting documentation to the court ... which may include information and/or evidence in support of a party’s position.” Majority op. at 226, 126 A.3d at 63. A completed CIR does indicate the nature of a case and relief sought, although it does not include “evidence” on the merits. The standard jury demand does not fit this description of “paper” in any respect.
• The Majority opinion contrasts a “paper” as something that “originates with a litigant or interested party” with a CIR, which it characterizes as “a court-produced document.” Majority op. at 226, 126 A.3d at 63. It is true that, like other court forms, a blank CIR is a “court-produced document.” But, as with most other court forms, a completed form originates with a litigant. A visit to the mdcourts.gov website discloses a lengthy list of court forms which are to be completed by a litigant or the litigant’s attorney for filing as papers in litigation. See Maryland Court Forms <http://mdcourts.gov/courtforms/*237 index.html>. The fact that a blank version of the form was created by the courts does not by itself disqualify a completed form from being a “paper.”
Instead of inventing a definition of “paper” to reach a particular end result in this case, we should look to the purposes of the requirement of a jury demand and assess whether a served CIR fulfills those purposes. As outlined above, the purposes that animate Maryland Rule 2-325 and its ancestor, Federal Rule 38, are to document the request for a jury trial and to provide prompt notice to the court and parties that a party is exercising that constitutional right. A completed CIR that is served on other parties at the outset of a ease serves those purposes.
Perhaps the strongest argument that a served CIR should not serve as a jury demand—and one relied upon by the Court of Special Appeals in this case
The Duckett Case
Apart from attempting to define “paper” in a way that excludes a served CIR, the Majority opinion repeatedly states that Rule 2-325 is “unambiguous”
In Duckett, this Court considered whether a completed CIR, which indicated that the plaintiff wished to have a jury trial but which had not been served on the defendant, sufficed as a timely jury demand for purposes of Rule 2-325. This Court discussed at some length the term “paper” in the rule, noting that the inclusion of that term in the rule meant that a jury demand need not be made in a pleading. At the end of the discussion, the Court concluded that “the term ‘paper’ ordinarily does not encompass a case information report” and identified the plaintiffs “misstep” as her failure to serve the completed CIR on the defendant. 428 Md. at 482, 52 A.3d 84 (emphasis added). As noted at the outset of this opinion, the Court explicitly did not decide whether a completed CIR that had been timely served on the defendant would have satisfied the rule. Id. at 482 n. 7, 52 A.3d 84.
The Majority opinion ignores the Duckett Court’s use of the term “ordinarily” in its holding and downplays its explicit statement that it is an “open question” whether a served CIR would satisfy Rule 2-325. It is true, as the Majority opinion states, that the Duckett opinion raises questions about the status of a CIR as a “paper,” but the Duckett Court did not conclusively resolve that issue. Its decision turned on the fact that the CIR in that case had not been served on the opposing party—a factor that undermined the essential purpose of giving notice—and left open whether satisfaction of that purpose, by serving the CIR, would lead to a different result.
We cannot simply say that Duckett already resolved this question. At most, one could say the Duckett opinion gave mixed signals on how it should be resolved. The Court of Special Appeals dealt with those mixed signals as best it could. But we are in a position to provide greater clarity.
Like this Court in Duckett, federal courts have held that checking off the “jury” box on an unserved civil case information sheet does not satisfy the requirements for jury demand under Federal Rule 38. However, the Second Circuit has
Conclusion
In my view, we should answer the “open question” in Duckett in the affirmative—i.e., a completed CIR that invokes a party’s constitutional right to a jury trial and that is timely served on other parties is a “paper” that makes a proper jury demand, as it is a written document satisfies the purposes of the rule: documentation and timely notice.
The result reached by the Majority opinion creates a trap that does not serve the purposes of the rule. As the Court of Special Appeals noted in its opinion in this case, nothing in the CIR form itself—which is completed by pro se parties as well as attorneys—warns a litigant that checking “yes” on the box for “JURY DEMAND” would be ineffective to assert the constitutional right to a jury trial.
McDONALD, J., dissents.
. Lisy also brought suit against an individual co-defendant who is not a party to this appeal.
. The Majority opinion’s description of the procedural background of this case somewhat obscures the actual sequence of events. See Majority op. at 218-19, 126 A.3d at 58-59. After Lisy filed and served the complaint and CIR indicating that it wished to exercise its right to a jury trial in early 2011, the court docketed the case as a jury trial and the parties also acted as though the case would be tried to a jury. Indeed, as late as September 4, 2012, McCormick filed its proposed voir dire questions, jury instructions, and verdict form. It was only on September 6, 2012—a week after the Duckett decision was issued—that McCormick sought to have a bench trial instead of a jury trial.
. The Maryland rule was derived from the 1966 version of the Federal Rule 38(b), which read as follows:
(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after commencement of the action and not later than 10 days after service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.
(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without consent of the parties.
Federal Rule of Civil Procedure 38(b), (d) (1966). The language of the federal rule has changed slightly since 1966. But, apart from extending the period for making a jury demand from 10 to 14 days, the changes are stylistic and the rule remains substantively the same, according to the advisory committee notes that accompanied the amendments to the rule.
. Form JS 44 (Rev. 12/12); see <http://www.uscourts.gov/forms/civilforms/civil-cover-sheet-cmecf-version-511 -and-later >.
. There are two versions of the form, depending on the type of civil case: one is entitled the "Civil-Non-Domestic Case Information Report”; the other is entitled the "Civil-Domestic Case Information Report.”
. The term "paper” may well be on its way to obsolescence. I note that the rules governing electronic filing employ a different term—"submission”—to refer to filings. See, e.g., Maryland Rule 20-106.
. This is essentially the form for demanding a jury trial recommended by a prominent treatise on the Maryland Rules. See Paul V. Niemeyer, et al., Maryland Rules Commentary (3d ed. 2003 & 2013 Supp.) at 225 ("The form of demand is simple and need only express the pleader’s intent ... ”).
. 219 Md.App. 592, 601, 101 A.3d 530 (2014).
. See Majority op. at 225-26, 226-27, 229-30, 126 A.3d at 63, 63-64, 65.
. 219 Md.App. at 604 n. 9, 101 A.3d 530.
. Majority op. at 224, 227-28, 229, 126 A.3d at 62, 64, 65.
Reference
- Full Case Name
- LISY CORP. v. McCORMICK & CO., INC., Et Al.
- Cited By
- 16 cases
- Status
- Published