Rockwood v . SKF USA Inc. CV-08-168-PB 12/3/09

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Rockwood and Roxana Marchosky

v. Case N o . 08-cv-168-PB Opinion N o .

SKF USA, Inc.

O R D E R

Defendant SKF USA, Inc. has moved to strike a jury demand

filed by plaintiffs Robert Rockwood and Roxana Marchosky.

SKF argues that Rockwood and Marchosky have no right to a

jury trial because their claims arise from an option agreement in

which they waived their right to a jury trial. Plaintiffs agree

that the waiver is valid and covers the claims presented in their

complaint. (See Pls.’ Mem. of Law in Supp. of Objection to

Def.’s Mot. to Strike, Doc. N o . 54-2, at 10.) Nevertheless, they

argue that they are entitled to a jury trial because SKF made its

own jury demand which it cannot now withdraw without plaintiffs’

consent.

Rockwood and Marchosky base their argument on Federal Rule

of Civil Procedure 38(d), which provides in pertinent part that

“[a] proper demand [for a jury trial] may be withdrawn only if

the parties consent.” Fed. R. Civ. P. 38(d). However, Rule 38 - as its caption suggests1 - applies only when a party has a right

to a jury trial. Kramer v . Banc of Am. Sec.,

6 1 , 968

(7th Cir. 2004). In this case, the parties do not have a right

to a jury trial because they waived that right in the option

agreement. See Mowbray v . Zumot,

1 7 , 621-22

(D. Md. 2008) (no federal right to a jury trial when the right is

contractually waived); Bear Sterns Funding, Inc. v . Interface

Group-Nevada, Inc., N o . 03 Civ. 8259(CSH),

, at *2

(S.D.N.Y. Nov. 7 , 2007) (same); Great Earth Int’l Franchising

Corp. v . Milks Dev.,

(S.D.N.Y. 2004)

(same). Thus, Rule 38(d) does not apply. Instead, Federal Rule

of Civil Procedure 39(a)(2) provides the rule of decision, and it

permits a court to strike a demand for a jury trial where “there

is no federal right to a jury trial.” Fed. R. Civ. P. 39(a)(2).

Federal Rule of Civil Procedure 39(c) permits parties to

consent to a jury trial of non-jury issues, and Rockwood and

Marchosky might have argued that SKF’s alleged demand for a jury

trial was an expression of its consent to a jury trial.2 See

1 Rule 38 is captioned “Right to a Jury Trial; Demand.” 2 SKF challenges plaintiffs’ contention that it made its own demand for a jury trial. Because I determine that Rule 38 is inapplicable, and SKF permissibly withdrew any consent to a jury trial it might have given under Rule 3 9 , I need not resolve this particular dispute to decide the motion to strike.

-2- Fed. R. Civ. P. 39(c). Any such argument would have been

unavailing, however, because SKF withdrew its consent when it

filed its motion to strike. Unlike Rule 3 8 , which bars a party

from unilaterally withdrawing a jury demand where there is a

right to a jury trial, Rule 39 does not preclude a party from

withdrawing its consent to a jury trial of non-jury issues.

Kramer, 355 F.3d at 968. Thus, any attempt to oppose the motion

to strike based on Rule 39 would have been futile.

Although I need go no further to justify my ruling, I note

that I am unpersuaded by plaintiffs’ claim of prejudice.

Plaintiffs’ contention that they were forced to retain experts in

anticipation of a jury trial that they may not need to present at

a bench trial rings hollow and, in any event, plaintiffs knew of

SKF’s intention to seek a bench trial before they were required

to disclose their expert’s reports.

SKF’s Motion to Strike Plaintiffs’ Jury Demand (Doc. N o . 52)

is granted.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 3 , 2009

cc: James W . Donchess, Esq. Roxana Marchosky, Esq.

-3- Deborah Ann Notinger, Esq. Steven M . Notinger, Esq. David Richman, Esq. Gregory A . Moffett, Esq. Matthew R. Williams, Esq. Peter G. Callaghan, Esq. Alexander J. Walker, Esq.

-4-