Nancy Helfant v. Yale New Haven Hospital et al. (2013)

Memorandum of Decision on Motion to Strike Claim for a Jury Trial, # 176

The defendants have filed a motion to strike the plaintiff's claim for a jury trial on the ground that the jury claim is untimely in violation of General Statutes § 52–215.   For the reasons set forth herein, the motion to strike is granted and this matter is stricken from the jury docket.

FACTS AND PROCEDURAL HISTORY

This medical malpractice action arises from the death of Irwin Helfant, the husband of the plaintiff, Nancy Helfant.   The plaintiff, individually and as executrix of her late husband's estate, filed a complaint against the defendants, Middlesex Hospital, Middlesex Hospital Shoreline Medical Center, Yale New Haven Hospital, John Lynch, Jr., and Henry Cabin, on March 20, 2008, with a return date of April 1, 2008.   On November 12, 2008, the plaintiff filed a revised complaint, which alleges the following facts.   On December 5, 2005, the plaintiff's decedent was admitted for treatment by Lynch, a physician, at Middlesex Hospital Shoreline Medical Center.   Later, he was transferred to Yale New Haven Hospital, where Cabin, also a physician, rendered care.   The plaintiff's decedent died due to the negligence, carelessness, and breach of the duty of care by the defendant hospitals and physicians.   The plaintiff claims loss of companionship, support, love, and consortium, and seeks to recover monetary damages for medical expenses, funeral and burial expenses, and pain and suffering.

On November 19, 2008, Yale New Haven Hospital and Cabin filed answers to the plaintiff's complaint.   On November 26, 2008, Middlesex Hospital, Middlesex Hospital Shoreline Medical Center, and Lynch moved to dismiss the plaintiff's revised complaint.   The court granted that motion and entered judgment dismissing the case against those three defendants on April 6, 2010.   As a result, Yale New Haven Hospital and Cabin, the moving parties in the present motion, are the only remaining defendants in this case.¹  The plaintiff filed a claim for a jury trial on January 11, 2013.   On July 11, 2013, the defendants moved to strike the plaintiff's claim for a jury trial because it was untimely under § 52–215.   The motion was accompanied by a memorandum of law.   On September 6, 2013, the plaintiff filed an objection to the motion to strike, accompanied by a memorandum of law.   The matter was heard at short calendar on September 9, 2013, at which time the court granted the parties additional time to file supplemental briefing.   The defendants filed a reply on September 13, 2013.

DISCUSSION

The defendants' motion to strike challenges the timeliness of the plaintiff's claim for a jury trial.²  The defendants note that the plaintiff's claim for a jury trial was filed more than four years after the defendants filed their answer and almost three years after the court entered judgment on the plaintiff's claims against the former defendants, Middlesex Hospital, Middlesex Hospital Shoreline Medical Center, and Lynch.   The defendants argue that this delay violates § 52–215, and, thus, the plaintiff has waived her right to a jury trial pursuant to General Statutes § 51–239b.   In response, the plaintiff argues that trial courts have discretion to order that a case be entered on the jury docket despite a late filing, and that the court should exercise such discretion because (1) the defendants have not demonstrated any prejudice in having this matter claimed for a jury trial, and (2) the defendants should not be allowed to wait eight months after the jury claim was filed to complain that it was filed improperly.³

Section 51–239b provides that “[i]n civil actions a jury shall be deemed waived unless requested by either party in accordance with the provisions of section 52–215.”  Section 52–215 gives parties two opportunities to request a jury trial:  (1) “upon the written request of either party made to the clerk within thirty days after the return day,” and (2) “within ten days after [an] issue of fact is joined.” ⁴  “It has ․ been the clear law in Connecticut since 1899 that a failure to claim a civil action to the jury within thirty days of the return date or within ten days after an issue of fact has been joined amounts to a voluntary and intentional relinquishment of the right to the jury trial provided by Art. I., § 21 of the Connecticut Constitution.”  Anastasia v. Mitsock, Superior Court, judicial district of New Haven, Docket No. CV–05–4012156–S (December 1, 2006, Lager, J.) (42 Conn. L. Rptr. 453, 454).   Nonetheless, § 52–215 provides that a “case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court.”   Our Supreme Court has concluded that this provision grants trial courts the discretion to deny a motion to strike a case from the jury docket even if the jury claim was not filed within the required time period.  Falk v. Schuster, 171 Conn. 5, 7–8, 368 A.2d 40 (1976).   Superior Court judges, however, “have exercised such discretion very sparingly.”  Barcello v. WCL Management, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–06–5000632–S (February 26, 2007, Taggart, J).  “Trial courts ․ routinely grant motions to remove cases from the jury docket when [the jury] claim is tardy.   Compliance with the clear and simple rules of § 52–215 compel such a result.”  (Internal quotation marks omitted.)   Saracino v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV–05–4010041–S (April 4, 2006, Tanzer, J.) (41 Conn. L. Rptr. 152, 153);  see also Naccarelli v. Muniz, Superior Court, judicial district of Fairfield, Docket No. CV–07–5006162–S (December 17, 2007, Frankel, J.) (44 Conn. L. Rptr. 646, 647) (noting that “in most cases ․ a late filing of a jury claim has not been allowed” [internal quotation marks omitted] ).

There is no appellate or statutory authority providing guidance or setting forth standards for trial courts to utilize in deciding whether to exercise discretion under § 52–215.  Fletcher v. Mead School for Human Development, Inc., Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket, Docket No. X05–CV–96–0152138–S (January 8, 2001, Tierney, J.) (28 Conn. L. Rptr. 667, 670) (“[Section] 52–215 contains no standards for the court to apply in making the determination whether any matter should be placed on the jury docket.   There is no appellate court decision that sets forth standards.”).   Superior Court decisions addressing whether a trial court should exercise such discretion generally consider (1) the length of the time elapsed between the close of pleadings and the filing of the jury claim, (2) whether any extenuating circumstances existed justifying the delay in filing the jury claim, and (3) whether either party would be prejudiced by the exercise of discretion.   See, e.g., Saracino v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV–05–4010041–S (April 4, 2006, Tanzer, J.) (41 Conn. L. Rptr. 152, 153);  Fletcher v. Mead School for Human Development, Inc., supra, 670–71.

First, regarding the length of time elapsed between the close of pleadings and the filing of a jury claim, trial courts are generally inclined to exercise discretion and deny motions to strike a jury claim when the filing of the claim was tardy by a few days or weeks.   See, e.g., Fletcher v. Mead School for Human Development, Inc., supra, 28 Conn. L. Rptr. 667 (court exercised discretion to place case on jury docket where jury claim was filed fourteen days late);  Dietz v. Yale–New Haven Hospital, Inc., Superior Court, judicial district of New Haven, Docket No. CV94–368317–S (June 22, 1998, Silbert, J.) (22 Coun. L. Rptr. 358) (motion to strike case from jury docket denied where jury claim was filed four days late);  Bolton v. Freihoffer, Superior Court, judicial district of Waterbury, Docket No. CV–94–120992–S (February 4, 1998, Shortall, J.) (21 Conn. L. Rptr. 369, 369) (motion to strike case from jury docket denied where jury claim was filed eighteen days late because “[w]here cases are properly triable by a jury they should be so tried even though there has been a marginally untimely claim”);  but see Anastasia v. Mitsock, supra, 42 Conn. L. Rptr. 453 (motion to strike case from jury docket granted where jury claim was seven days late).   Where the jury claim was filed months or years late, however, trial courts regularly grant motions to remove the case from the jury docket.   See, e.g., Barcello v. WCL Management, LLC, supra, Superior Court, Docket No. CV–06–5000632–S (motion to strike case from jury docket granted where jury claim was filed approximately six months late);  Long v. Hartford Neighborhood Centers, Inc., Superior Court, judicial district of New London at Norwich, Complex Litigation Docket, Docket No. X04–CV–98–0122679–S (May 22, 2002, McLachlan, J.) (32 Conn. L. Rptr. 128) (motion to strike case from jury docket granted where jury claim was filed over nineteen months late);  Tonkonow v. First Union National Bank, Superior Court, judicial district of New Haven, Docket No. CV–00–0273890–S (June 27, 2001, Booth, J.) (motion to strike case from jury docket granted where jury claim was filed over three months late);  Wilton Bank v. Cappies, Inc., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–96–0149948–S (March 26, 1997, Karazin, J.) (motion to strike case from jury docket granted where jury claim was filed over eight months late).

Regarding the second consideration, trial courts are more likely to exercise discretion and allow a late-filed jury claim to remain on the jury docket when compelling extenuating circumstances existed justifying the delayed filing.   For example, in Manfred v. Sheffield Laboratories, Superior Court, judicial district of New London, Docket No. 569270 (November 10, 2005, Devine, J.), the court exercised its discretion based on the unique circumstances of the case.   In that case, a self-represented plaintiff indicated her intent to proceed to a jury trial at a status conference and the court instructed her to file a claim for a jury trial.  Id. “The plaintiff ․ went to the clerk to file the jury claim on [the same day as the status conference], but did not have sufficient funds.   She was not told that [a] credit card would be accepted by the clerk.   All of the parties were aware of the plaintiff's intention to file a jury claim [on that date].”  Id. Based on these circumstances, the court denied the defendants' motion to strike the plaintiff's jury claim.   Id.

Similarly, in Skelly v. Mohawk Mountain Ski Area, Superior Court, judicial district of Fairfield, Docket No. CV–01–0380056–S (June 18, 2002, Gallagher, J.), the court decided that an unusual set of circumstances justified a late-filed claim for a jury trial.   The defendant in Skelly had previously received a certificate of closed pleadings from the plaintiff, in which it appeared that the plaintiff had already claimed the case for a jury trial.  Id. Later, however, the defendant received a second certificate of closed pleadings, in which the plaintiff claimed the case for a court trial.  Id. After receiving the second certificate of closed pleadings, the defendant filed its jury claim within a few days.  Id. The defendant's claim for a jury trial was filed after the statutory ten-day period prescribed in § 52–215.  Id. The court found that “it appears that the defendant was justified in concluding that it did not need to file a jury claim because the plaintiff had already done so” and, therefore, permitted the case to proceed to a jury trial.  Id.

In Nelligan v. Norwich Roman Catholic Diocese, Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07–CV–02–0084287–S (October 20, 2005, Sferrazza, J.) (40 Conn. L. Rptr. 294, 294–95), the plaintiff failed to recognize that the pleadings had closed due to an “unusual procedural event.”  “Typically, issues are joined by a responsive pleading.”  Id., 295.   In Nelligan, however, “the pleadings were closed instead by the court's granting of a motion to strike the defendants' special defense.”  Id. While the court noted that “the plaintiff ought to have perceived that the pleadings were closed by the court's action” and filed a jury claim within ten days of the decision on the motion to strike, the court allowed the case to proceed to a jury trial “[u]nder these unusual circumstances.”  Id.

The third and final consideration involves whether either party would be prejudiced by the court's exercise of discretion to allow a jury trial despite a late filed claim.   For example, in Fletcher v. Mead School for Human Development, Inc., supra, 28 Conn. L. Rptr. 671, the court allowed a case to remain docketed for a jury trial where the claim for a jury trial was filed fourteen days late.   In doing so, the court noted that it “cannot find that the defendant is prejudiced by the exercise of this discretion.”  Id. Similarly, in the aforementioned Nelligan v. Norwich Roman Catholic Diocese, supra, 40 Conn. L. Rptr. 295, the court found support for its decision to allow a jury trial despite a tardy filing in the fact that “the defendants [could not] point to any prejudice to them except that they would prefer the economy of a shorter trial.”   The prejudice consideration, however, is often not determinative, especially when the filing is very late.   For example, in Long v. Hartford Neighborhood Centers, Inc., supra, 32 Conn. L. Rptr. 128, the court noted that “[t]he defendants ․ [could not] articulate any particular prejudice other than the fact that they would prefer to have the case tried by the court ․” Nonetheless, the court concluded that the jury claim, which was filed over nineteen months late, was substantially tardy and granted the motion to strike the case from the jury list.  Id., 129.

In the present case, the plaintiff's claim for a jury trial was filed over four years late.  “It is well settled that a claim for a jury trial must be filed no later than ten days after the pleadings have been closed.”  Masto v. Board of Education, 200 Conn. 482, 488, 511 A.2d 344 (1986).   The last pleading between the plaintiff and the defendants was the defendants' answer to the plaintiff's complaint, filed on November 19, 2008.⁵  Thus, as against the defendants, the plaintiff could not properly claim a jury trial after November 29, 2008.   The plaintiff filed her claim on January 11, 2013.   This jury claim was filed 1,504 days late.   The plaintiff's multi-year delay clearly fails to comport with the ten-day time frame set forth in § 52–215.   The plaintiff, however, urges this court to exercise its discretion and deny the motion to strike the jury claim despite the late filing.

In determining whether to exercise discretion and allow this case to proceed to a jury trial or whether to grant the defendants' motion to strike the jury claim, the court utilizes the three considerations outlined above.   First, the length of time elapsed between the close of pleadings and the filing of the jury claim is more than four years, a particularly egregious delay.   The plaintiff cites no cases where a trial court permitted a jury trial when the claim was filed more than a year late, nor has this court discovered any such cases.⁶  Second, the plaintiff has not presented any extenuating circumstances that would justify the delayed filing.   The plaintiff has not argued that there is anything especially unusual about this case that could help explain her tardiness.   Third, the court considers whether either party would be prejudiced by the court's exercise of discretion.   It is acknowledged that the defendants have not demonstrated any prejudice in having a jury trial despite the tardy jury claim.   Nonetheless, because the first two considerations strongly indicate that discretion should not be exercised, the court finds that, on balance, the considerations weigh in favor of granting the motion to strike the jury claim.⁷

Despite the fact that her jury claim was filed over four years late and that she has made no attempt to explain the delay, the plaintiff argues that it is the defendants who have submitted an untimely filing.   Specifically, the plaintiff argues that the defendants should not be allowed to file their motion to strike the jury claim eight months after the jury claim was filed.   First, the court notes that the plaintiff's eight-month figure is inaccurate.   The plaintiff's jury claim was filed on January 11, 2013, and the defendants' motion to strike the jury claim was filed on July 11, 2013.   Therefore, the defendants' motion to strike the jury claim was filed six months, not eight months, after the claim was filed.   It is unclear how the plaintiff arrived at the eight-month figure.   In any event, the court is not persuaded by the plaintiff's argument.   While it would be ideal for parties to file motions in a more expeditious manner, it is the plaintiff's jury claim, not the defendants' motion to strike, that is untimely.⁸  The plaintiff waited over four years from the close of pleadings to file her jury claim.   She presents no explanation for her seriously tardy filing, and no extenuating circumstances to justify an exception to the rules unambiguously set forth in § 52–215.⁹  Therefore, the court declines to exercise the discretion afforded by the statute.

CONCLUSION

The plaintiff's jury claim is untimely under § 52–215, and, thus, the plaintiff has waived her right to a jury trial pursuant to § 51–239b.   The motion to strike the plaintiff's claim for a jury trial is granted.   The matter is stricken from the jury docket.

By the Court,

Nazzaro, J.

FOOTNOTES

FN1. Therefore, for the sake of clarity, all further references to the defendants in this memorandum of decision refer only to Yale New Haven Hospital and Cabin..  FN1. Therefore, for the sake of clarity, all further references to the defendants in this memorandum of decision refer only to Yale New Haven Hospital and Cabin.

FN2. The current edition of the Practice Book does not set forth a specific procedural vehicle to challenge a claim for a jury trial.  “Prior to October 1, 1996 [former Practice Book § 282] authorized the use of a motion to strike to remove a case from the jury list ․ This section was repealed and no rule was substituted in its place.  Practice Book § 14–10 remains the only section addressing claims for jury trials.   That section does not provide a procedural mechanism for challenging a jury claim or placing a case in the inventory of jury cases ready for trial.”   Fletcher v. Mead School for Human Development, Inc., Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket, Docket No. X05–CV–96–0152138–S (January 8, 2001, Tierney, J.) (28 Conn. L. Rptr. 667, 668).   Some Superior Court decisions have concluded that, since the repeal of Practice Book § 282, the proper procedure to challenge a jury claim is now an objection to the claim.   See, e.g., McNeil v. Silverman, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–00–0178460–S (November 16, 2000, Hickey, J.) (29 Conn. L. Rptr. 91, 92);  Wallingford v. Reliance Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV99–0420955–S (January 13, 2000, Silbert, J.) [26 Conn. L. Rptr. 270] (“[t]he appropriate method for a challenge to a claim for jury trial is by an objection”).  “This opinion is also shared by the authors of the annotated Practice Book rules, who state that ‘[s]ince the 1996 repeal of [Practice Book § ] ․ 282 ․ an objection to the claim filed under [Practice Book § 14–10] may suffice.’   W. Horton & K. Knox 1 Connecticut Practice Series:  Connecticut Superior Court Civil Rules (2011) § 14–10, p. 740.”   Kaye v. T.D. Banknorth, N.A., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–08–5007268–S (March 1, 2011, Tobin, J.) (51 Conn. L. Rptr. 509, 511).   Nonetheless, a majority of Superior Court cases addressing this issue since the repeal of Practice Book § 282 have done so in the context of a motion to strike.   See, e.g., Barcello v. WCL Management, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–06–5000632–S (February 26, 2007, Taggart, J.);   Saracino v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV–05–4010041–S (April 4, 2006, Tanzer, J.) (41 Conn. L. Rptr. 152);  Tonkonow v. First Union National Bank, Superior Court, judicial district of New Haven, Docket No. CV–00–0273890–S (June 27, 2001, Booth, J.);   Naccarelli v. Muniz, Superior Court, judicial district of Fairfield, Docket No. CV–07–5006162–S (December 17, 2007, Frankel, J.) (44 Conn. L. Rptr. 646).   In any event, “since ․ the repeal of Practice Book § 282 was not intended to disenable parties aggrieved by improper jury claims from challenging those claims by some procedure, and no mandatory procedure exists [under our statutes, court rules, or controlling case law] for making such a challenge, the plaintiff's choice of title for its present challenge matters not at all.”   Fleet National Bank v. Fiore Neylan Travel, Inc., Superior Court, judicial district of Hartford, Docket No. CV–03–0828385–S (August 5, 2004, Sheldon, J.).   This court clearly has the authority to consider the timeliness of a jury claim and the defendants' motion to strike is an appropriate vehicle to address the issue..  FN2. The current edition of the Practice Book does not set forth a specific procedural vehicle to challenge a claim for a jury trial.  “Prior to October 1, 1996 [former Practice Book § 282] authorized the use of a motion to strike to remove a case from the jury list ․ This section was repealed and no rule was substituted in its place.  Practice Book § 14–10 remains the only section addressing claims for jury trials.   That section does not provide a procedural mechanism for challenging a jury claim or placing a case in the inventory of jury cases ready for trial.”   Fletcher v. Mead School for Human Development, Inc., Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket, Docket No. X05–CV–96–0152138–S (January 8, 2001, Tierney, J.) (28 Conn. L. Rptr. 667, 668).   Some Superior Court decisions have concluded that, since the repeal of Practice Book § 282, the proper procedure to challenge a jury claim is now an objection to the claim.   See, e.g., McNeil v. Silverman, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–00–0178460–S (November 16, 2000, Hickey, J.) (29 Conn. L. Rptr. 91, 92);  Wallingford v. Reliance Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV99–0420955–S (January 13, 2000, Silbert, J.) [26 Conn. L. Rptr. 270] (“[t]he appropriate method for a challenge to a claim for jury trial is by an objection”).  “This opinion is also shared by the authors of the annotated Practice Book rules, who state that ‘[s]ince the 1996 repeal of [Practice Book § ] ․ 282 ․ an objection to the claim filed under [Practice Book § 14–10] may suffice.’   W. Horton & K. Knox 1 Connecticut Practice Series:  Connecticut Superior Court Civil Rules (2011) § 14–10, p. 740.”   Kaye v. T.D. Banknorth, N.A., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–08–5007268–S (March 1, 2011, Tobin, J.) (51 Conn. L. Rptr. 509, 511).   Nonetheless, a majority of Superior Court cases addressing this issue since the repeal of Practice Book § 282 have done so in the context of a motion to strike.   See, e.g., Barcello v. WCL Management, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–06–5000632–S (February 26, 2007, Taggart, J.);   Saracino v. Hartford Financial Services Group, Inc., Superior Court, judicial district of Hartford, Docket No. CV–05–4010041–S (April 4, 2006, Tanzer, J.) (41 Conn. L. Rptr. 152);  Tonkonow v. First Union National Bank, Superior Court, judicial district of New Haven, Docket No. CV–00–0273890–S (June 27, 2001, Booth, J.);   Naccarelli v. Muniz, Superior Court, judicial district of Fairfield, Docket No. CV–07–5006162–S (December 17, 2007, Frankel, J.) (44 Conn. L. Rptr. 646).   In any event, “since ․ the repeal of Practice Book § 282 was not intended to disenable parties aggrieved by improper jury claims from challenging those claims by some procedure, and no mandatory procedure exists [under our statutes, court rules, or controlling case law] for making such a challenge, the plaintiff's choice of title for its present challenge matters not at all.”   Fleet National Bank v. Fiore Neylan Travel, Inc., Superior Court, judicial district of Hartford, Docket No. CV–03–0828385–S (August 5, 2004, Sheldon, J.).   This court clearly has the authority to consider the timeliness of a jury claim and the defendants' motion to strike is an appropriate vehicle to address the issue.

FN3. Additionally, the plaintiff's memorandum of law in support of her objection to the motion to strike contains twenty pages of argument that is completely unrelated to the issues in the present motion.  (9/6/13 Pl.'s Mem. Supp. of Objection to Mot. to Strike, pp. 6–26.)   Specifically, this portion of the plaintiff's memorandum discusses at length whether a medical opinion letter complies with General Statutes § 52–190a, and whether the insufficiency of such a letter can be attacked by a motion to dismiss.   Presumably, this section of the plaintiff's memorandum was written for an earlier motion in this case.   In any event, its inclusion in the plaintiff's memorandum is clearly an error as it is wholly irrelevant to the motion currently before the court..  FN3. Additionally, the plaintiff's memorandum of law in support of her objection to the motion to strike contains twenty pages of argument that is completely unrelated to the issues in the present motion.  (9/6/13 Pl.'s Mem. Supp. of Objection to Mot. to Strike, pp. 6–26.)   Specifically, this portion of the plaintiff's memorandum discusses at length whether a medical opinion letter complies with General Statutes § 52–190a, and whether the insufficiency of such a letter can be attacked by a motion to dismiss.   Presumably, this section of the plaintiff's memorandum was written for an earlier motion in this case.   In any event, its inclusion in the plaintiff's memorandum is clearly an error as it is wholly irrelevant to the motion currently before the court.

FN4. General Statutes § 52–215 provides:  “In the Superior Court a docket shall be kept of all cases.   In such docket immediately following the names of the parties and their attorneys in all jury cases shall be entered the word ‘jury.’   The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day:  Appeals from probate involving the validity of a will or paper purporting to be such, appeals from the actions of commissioners on insolvent estates, and, except as hereinafter provided, civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity, except that there shall be no right to trial by jury in civil actions in which the amount, legal interest or property in demand does not exceed two hundred fifty dollars or in a summary process case.   When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk;  and any such case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court.   All issues of fact in any such case shall be tried by the jury, provided the issues agreed by the parties to be tried by the court may be so tried.   All cases not entered in the docket as jury cases under the foregoing provisions, including actions in which an account is demanded and judgment rendered that the defendant shall account, writs of habeas corpus and ne exeat, complaints for dissolution of marriage and all other special statutory proceedings which, prior to January 1, 1880, were not triable by jury, shall be entered on the docket as court cases, and shall, with all issues of law and issues of fact, other than those hereinbefore specified, which may be joined in actions entered on the docket as jury cases, be disposed of as court cases.”  Practice Book § 14–10 further requires that all jury claims be made in writing and filed within the time allowed by § 52–215..  FN4. General Statutes § 52–215 provides:  “In the Superior Court a docket shall be kept of all cases.   In such docket immediately following the names of the parties and their attorneys in all jury cases shall be entered the word ‘jury.’   The following-named classes of cases shall be entered in the docket as jury cases upon the written request of either party made to the clerk within thirty days after the return day:  Appeals from probate involving the validity of a will or paper purporting to be such, appeals from the actions of commissioners on insolvent estates, and, except as hereinafter provided, civil actions involving such an issue of fact as, prior to January 1, 1880, would not present a question properly cognizable in equity, except that there shall be no right to trial by jury in civil actions in which the amount, legal interest or property in demand does not exceed two hundred fifty dollars or in a summary process case.   When, in any of the above-named cases an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk;  and any such case may at any time be entered in the docket as a jury case by the clerk, upon written consent of all parties or by order of court.   All issues of fact in any such case shall be tried by the jury, provided the issues agreed by the parties to be tried by the court may be so tried.   All cases not entered in the docket as jury cases under the foregoing provisions, including actions in which an account is demanded and judgment rendered that the defendant shall account, writs of habeas corpus and ne exeat, complaints for dissolution of marriage and all other special statutory proceedings which, prior to January 1, 1880, were not triable by jury, shall be entered on the docket as court cases, and shall, with all issues of law and issues of fact, other than those hereinbefore specified, which may be joined in actions entered on the docket as jury cases, be disposed of as court cases.”  Practice Book § 14–10 further requires that all jury claims be made in writing and filed within the time allowed by § 52–215.

FN5. At short calendar on September 9, 2013, the plaintiff suggested that the issue was not joined by the filing of the last responsive pleading between the plaintiff and the defendants on November 19, 2008.   Rather, the plaintiff argued that the issue was joined on April 6, 2010, when the court granted the former defendants' (Middlesex Hospital, Middlesex Hospital Shoreline Medical Center, and Lynch) motion to dismiss and entered judgment dismissing the case against those parties.   The plaintiff cites no authority to support this argument.   Even assuming arguendo that the plaintiff's argument has merit, the last day for filing a jury claim would have been April 16, 2010, and, thus, the plaintiff's claim for a jury trial, which was filed on January 11, 2013, would still be almost three years, and over 1,000 days, late..  FN5. At short calendar on September 9, 2013, the plaintiff suggested that the issue was not joined by the filing of the last responsive pleading between the plaintiff and the defendants on November 19, 2008.   Rather, the plaintiff argued that the issue was joined on April 6, 2010, when the court granted the former defendants' (Middlesex Hospital, Middlesex Hospital Shoreline Medical Center, and Lynch) motion to dismiss and entered judgment dismissing the case against those parties.   The plaintiff cites no authority to support this argument.   Even assuming arguendo that the plaintiff's argument has merit, the last day for filing a jury claim would have been April 16, 2010, and, thus, the plaintiff's claim for a jury trial, which was filed on January 11, 2013, would still be almost three years, and over 1,000 days, late.

FN6. The plaintiff cites several Superior Court cases in her objection to the motion to strike.   In these cases, the court denied motions to strike jury claims even though the claims were filed late.   All of these cases, however, are distinguishable from the present case in that the jury claims were late by only a few days or weeks;  Bolton v. Freihoffer, Superior Court, judicial district of Waterbury, Docket No. CV–94–120992–S (February 4, 1998, Shortall, J.) (21 Conn. L. Rptr. 369) (jury claim filed eighteen days late);  Godin v. Hartford Casualty Ins. Co., Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV–94–0535069–S (August 19, 1994, Wagner, J.) [12 Conn. L. Rptr. 358] (jury claim filed eleven days late);  Barcello v. O'Connell, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–85–0079667–S (July 1, 1986, Cioffi, J.) (1 C.S.C.R. 469) (jury claim filed twelve days late);  or there were extenuating circumstances justifying the delay;  Scandura v. Friendly Ice Cream Corp., Superior Court, judicial district of Hartford, Docket No. 529109 (July 31, 1995, Blue, J.) (14 Conn. L. Rptr. 548, 548) (plaintiff experienced “certain mishaps” and “[t]he defendant did not dispute the existence of extenuating circumstances”).   By contrast, the jury claim in the present case was filed over four years late and the plaintiff has offered no explanation for this dramatic delay..  FN6. The plaintiff cites several Superior Court cases in her objection to the motion to strike.   In these cases, the court denied motions to strike jury claims even though the claims were filed late.   All of these cases, however, are distinguishable from the present case in that the jury claims were late by only a few days or weeks;  Bolton v. Freihoffer, Superior Court, judicial district of Waterbury, Docket No. CV–94–120992–S (February 4, 1998, Shortall, J.) (21 Conn. L. Rptr. 369) (jury claim filed eighteen days late);  Godin v. Hartford Casualty Ins. Co., Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV–94–0535069–S (August 19, 1994, Wagner, J.) [12 Conn. L. Rptr. 358] (jury claim filed eleven days late);  Barcello v. O'Connell, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–85–0079667–S (July 1, 1986, Cioffi, J.) (1 C.S.C.R. 469) (jury claim filed twelve days late);  or there were extenuating circumstances justifying the delay;  Scandura v. Friendly Ice Cream Corp., Superior Court, judicial district of Hartford, Docket No. 529109 (July 31, 1995, Blue, J.) (14 Conn. L. Rptr. 548, 548) (plaintiff experienced “certain mishaps” and “[t]he defendant did not dispute the existence of extenuating circumstances”).   By contrast, the jury claim in the present case was filed over four years late and the plaintiff has offered no explanation for this dramatic delay.

FN7. While the third consideration regarding the issue of prejudice is relevant to the analysis, it is of lesser significance where, as here, a party's claim was filed extraordinarily late and the party has not explained the delay.   See, e.g., Long v. Hartford Neighborhood Centers, Inc., Superior Court, judicial district of New London at Norwich, Complex Litigation Docket, Docket No. X04–CV–98–0122679–S (May 22, 2002, McLachlan, J.) (32 Conn. L. Rptr. 128, 128–29) (granting motion to strike jury claim where jury claim was filed over nineteen months late, even though the court noted that “[t]he defendants ․ [could not] articulate any particular prejudice other than the fact that they would prefer to have the case tried by the court”)..  FN7. While the third consideration regarding the issue of prejudice is relevant to the analysis, it is of lesser significance where, as here, a party's claim was filed extraordinarily late and the party has not explained the delay.   See, e.g., Long v. Hartford Neighborhood Centers, Inc., Superior Court, judicial district of New London at Norwich, Complex Litigation Docket, Docket No. X04–CV–98–0122679–S (May 22, 2002, McLachlan, J.) (32 Conn. L. Rptr. 128, 128–29) (granting motion to strike jury claim where jury claim was filed over nineteen months late, even though the court noted that “[t]he defendants ․ [could not] articulate any particular prejudice other than the fact that they would prefer to have the case tried by the court”).

FN8. The plaintiff also argues that the motion to strike the jury claim should not be granted because “the jury trial date was selected within the past sixty days when the [p]laintiff's jury claim had been file[d] and pending with full knowledge of the [d]efendant.”  (9/6/13 Pl.'s Mem. Supp. of Objection to Mot. to Strike, p. 5).   This argument is unavailing.   The trial date in this case was assigned by the clerk's office on August 2, 2013, after the defendants' motion to strike the jury claim was filed.   Therefore, the clerk's assignment of a trial date can hardly constitute acquiescence or waiver by the defendants, who had already moved to strike the jury claim..  FN8. The plaintiff also argues that the motion to strike the jury claim should not be granted because “the jury trial date was selected within the past sixty days when the [p]laintiff's jury claim had been file[d] and pending with full knowledge of the [d]efendant.”  (9/6/13 Pl.'s Mem. Supp. of Objection to Mot. to Strike, p. 5).   This argument is unavailing.   The trial date in this case was assigned by the clerk's office on August 2, 2013, after the defendants' motion to strike the jury claim was filed.   Therefore, the clerk's assignment of a trial date can hardly constitute acquiescence or waiver by the defendants, who had already moved to strike the jury claim.

FN9. The court notes that “the statutory language [of § 52–215] is singularly clear and certain ․ Words could scarcely be chosen which would express with greater precision the requirements to be observed by a litigant to claim his place as a matter of right upon the jury docket.”   (Internal quotation marks omitted.)  Anastasia v. Mitsock, Superior Court, judicial district of New Haven, Docket No. CV–05–4012156–S (December 1, 2006, Lager, J.) (42 Conn. L. Rptr. 453, 454)..  FN9. The court notes that “the statutory language [of § 52–215] is singularly clear and certain ․ Words could scarcely be chosen which would express with greater precision the requirements to be observed by a litigant to claim his place as a matter of right upon the jury docket.”   (Internal quotation marks omitted.)  Anastasia v. Mitsock, Superior Court, judicial district of New Haven, Docket No. CV–05–4012156–S (December 1, 2006, Lager, J.) (42 Conn. L. Rptr. 453, 454).

Nazzaro, John J., J.