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Hand v. Liberty Life Assurance Co. of Boston
February 19, 2008
MICHAEL HAND, PLAINTIFF,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
After completion of the combined status and motion hearing last Friday (February 14), this Court went back to review the bidding somewhat--not only as to the Floyd Olson ("Olson")-Barbara Coffman ("Coffman") motion to strike the Michael Hand ("Hand") jury demand but also as to the same defendants' motion to strike and dismiss the portion of Hand's Answer to their claim to the interpleaded funds that Hand's counsel had labeled a "Cross-claim." At the time of that hearing this Court's chambers file had not contained Hand's Answer and the purported Cross-claim, even though they had been filed electronically on January 11, 2008.*fn1 That review of Hand's filing has triggered this memorandum order.
First as to the so-called Cross-claim, defense counsel is of course correct in characterizing that as a mistaken label. But all that need be done on that score is simply to relabel Hand's pleading as a "counterclaim" rather than a "cross-claim" (after all, Hand is the plaintiff in this action, while Olson and Coffman are defendants). And because Hand is the target of the Olson-Coffman claim, their resultant positioning on opposite sides of the "v." in this action means that Hand has interposed a counterclaim to that Olson-Coffman claim. Moreover, no modification in Hand's substantive allegations needs to be made, and a response to that now-labeled Counterclaim is ordered to be filed by Olson and Coffman on or before February 29, 2008.
As for the other motion submitted by the Olson-Coffman counsel, it correctly invokes Fed. R. Civ. P. ("Rule") 38(d)'s waiver of trial by jury where the jury demand is out of time under Rule 38(b). But as this Court remarked orally during the February 14 hearing, there is substantial caselaw that relieves parties from the waiver that can flow from a timely demand. Different Courts of Appeals have ranged all over the lot in terms of the breadth of discretion vested in trial courts in that respect. But our own Court of Appeals is among those listed in 8 Moore's Federal Practice §39.31[a](3d ed. 2007) as normally opting to override the Rule 38(d) waiver provision--as Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir. 1983) has stated the proposition succinctly:
In the absence of strong and compelling reasons to the contrary, untimely jury demands should be granted.*fn2 Accordingly the motion to strike Hand's jury demand is denied. Both Hand's denial of what has been said in the Olson-Coffman Answer and his newly-labeled Counterclaim essentially pose an issue of claimed undue influence ...
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