June Rathbun v. LLC (2015)

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO PLACE CASE ON JURY TRIAL LIST (# 136)

On November 19, 2014, the plaintiff moved “to place [this] case on the list of cases awaiting trial by jury.”   By an objection and brief filed November 25, 2014, the defendants opposed the motion.   The motion was on this court's December 22, 2014, short matters calendar and submitted on the papers.

FACTS

The following facts are pertinent to the analysis of, and ruling on, the present motion.

Richard W. Sutherland died on August 21, 2012.   On that day, the plaintiff, his sister,¹ contracted with the defendant ALA Westerly, LLC,'s business, through its funeral director, defendant David Poisson, to take custody of Mr. Sutherland's body and prepare it for a funeral.   The plaintiff alleges that the defendants failed to embalm or refrigerate the body before Mr. Sutherland's funeral six days later, when they brought Mr. Sutherland's remains to the funeral in such an odoriferous state that it could not be brought into the church.   On June 13, 2013, the plaintiff filed this action for negligence, infliction of emotional distress, and several other counts.

On October 13, 2013, the plaintiff filed a second amended complaint (the complaint).   After extensions of time and resolution on May 6, 2014, of a dispute over the legal sufficiency of one count of the complaint, the plaintiff's claims were set.   The plaintiff filed a motion for default for failure to plead on July 1, 2014, which was granted on July 23, 2014, as of course by the clerk, the defendants not having pleaded by then.

On August 3, 2014, plaintiff's counsel began jury selection, followed by trial until September 18, 2014, of a complex and absorbing medical malpractice case which is related to this case only insofar as that fact relates to the proper exercise of this court's discretion.

On August 6, 2014, one of the defendant's attorneys asked plaintiff's counsel to forebear from seeking judgment by default—which the plaintiff had by then done for two weeks—and plaintiff's counsel acquiesced.   However, on August 10, 2014, plaintiff's counsel made clear to that defense attorney that the plaintiff wanted a jury trial.

The defendants answered the complaint on August 12, 2014.   Since no special defense was alleged, that filing closed the pleadings.   Plaintiff's counsel did not file a claim for jury within ten days, i.e., by August 22, 2014.   On October 3, 2014, the defendants claimed this case for a court trial and the case was placed on the court trial list.   On October 7, 2014, 46 days after August 22, 2014, the plaintiff claimed this case for jury trial, but that claim was found to be insufficient to move the case from the court trial list.

DISCUSSION

All claims for trial by jury “shall be made in writing ․ and filed with the clerk within the time allowed by General Statutes § 52–215.”  Practice Book § 14–10.  General Statutes § 52–215 provides, in pertinent part, that “[w]hen ․ 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 order of court.”  General Statutes § 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.”

It being undisputed that the plaintiff failed to file a claim for jury trial by the tenth day after the issues in the complaint were joined, the present motion asks the court to exercise its discretion under § 52–215 to place the case on the jury docket.   The court does have such discretion.  Falk v. Schuster, 171 Conn. 5, 8, 368 A.2d 40 (1976) (trial court had discretion to allow jury trial despite claim for jury being filed over two years late).   Indeed, the clear intent of § 52–215 would be thwarted if the court did not have such discretion.   However, mindful of § 52–239b and Practice Book § 14–10, our courts have exercised such discretion sparingly.   Barcello v. WCL Management, LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–06–5000632–S (February 26, 2007).

Section 52–215 includes no criteria for exercise of the discretion to order trial by jury without a timely claim for jury, or stipulation of the parties.   Nor has the court found any appellate opinion other than Falk v. Schuster, supra, discussing such criteria.   Numerous Superior Court decisions, many collected in Helfant v. Yale New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV–08–5018960–S (December 30, 2013), have dealt with late claims or motions for trial by jury.   In Helfant, Judge Nazarro reduced the main factors to three:  “(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.”   This court agrees that those are the key factors pertinent to this motion and will discuss each.

The first factor does not cut decisively in either the direction to grant or deny the plaintiff's motion.   The length of time elapsed between the deadline and the filing of this motion was 46 days, which is more than some cases which have granted a late request for a jury, but less than others.   See Helfant v. Yale New Haven Hospital, supra, Superior Court, Docket No. CV–08–5018960–S (citing cases and noting length of tardiness);  but see Apastasia v. Mitsock, Superior Court, judicial district of New Haven, Docket No. CV–05–4012156–S (December 1, 2006) (denying motion for jury trial filed 7 days late).   Trial courts have generally granted motions filed a few weeks or days late and denied motions filed a few months or years late.   See Helfant v. Yale New Haven Hospital, supra.   Except insofar as it relates to the absence of prejudice to the defendants, the degree of lateness here is of great weight on neither side of the question.

The second factor is whether the plaintiff has any compelling, extenuating circumstances why her claim for a jury trial is late.   Here, the plaintiff has two.   First, plaintiff's counsel, who is in a solo practice, was much absorbed in a complex jury trial during the time when the jury claim was due.   Second, defense counsel had knowledge that plaintiff wanted a jury trial but, by silently letting the deadline pass, did not reciprocate plaintiff's counsel's courtesy in not moving for judgment by default.   In Manfred v. Sheffield Laboratories, Superior Court, judicial district of New London, Docket No. CV–04–569270–S (November 10, 2005), the court found an extenuating circumstance where all parties were aware of the plaintiff's intention to file a jury claim before the deadline.   As to the defendants' final point—the irony that this is a funeral director's malpractice case in which the plaintiff's counsel seeks to be relieved of the consequences of malpractice—there is a vast, substantial difference between the alleged acts of malpractice and the consequences, or perceived consequences,² of the plaintiff's failure timely to claim this case for jury.

Regarding the third factor, prejudice, there is no sufficient basis for finding that the defendants would be prejudiced by the court exercising its discretion to allow a jury trial despite a late-filed claim.   Defense counsel knew before the defendants' answer was filed that the plaintiff wanted a jury trial:  the plaintiffs taking action to have one cannot have taken the defendants or their attorneys by surprise.   Moreover, it is not prejudice, as the defendants claims, to participate in jury selection and, perhaps, have a somewhat longer trial:  it is just the loss of advantage of the plaintiff's counsel's inadvertence—an inadvertence of which the defendants' counsel were, or should have been, aware.   Nor does the court have any basis for finding that a jury trial of this case will require costs so far exceeding those of a court trial as to cause prejudice to the defendants.

CONCLUSION

For the foregoing reasons, the court finds it proper to exercise its discretion to place this case on the jury trial list:  the plaintiff's motion is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The caption of the original complaint listed the plaintiff as “June Rathbun, Executor of the Estate of Richard W. Sutherland.”   The first paragraph of all counts of the original complaint allege that the plaintiff was such executor.   However, the summons did not identify the plaintiff as suing in any capacity other than as an individual.   The present, operative complaint is the second amended complaint filed October 11, 2013, which omits the designation “Executor ․” from the caption and all counts..  FN1. The caption of the original complaint listed the plaintiff as “June Rathbun, Executor of the Estate of Richard W. Sutherland.”   The first paragraph of all counts of the original complaint allege that the plaintiff was such executor.   However, the summons did not identify the plaintiff as suing in any capacity other than as an individual.   The present, operative complaint is the second amended complaint filed October 11, 2013, which omits the designation “Executor ․” from the caption and all counts.

FN2. The court does not assume that the plaintiff will receive any better result from a jury trial than from a court trial.   Indeed, the result might—the parties and the court will never know—be better with a court trial.   However, there is a strong preference against not depriving parties of jury trials without good reason.   See Leahey v. Heasley, 127 Conn. 332, 336 (1940) (“Such statutes [providing for waiver of jury trials] ․ should ․ be construed so as not to deprive a party of his full right to a trial by jury”)..  FN2. The court does not assume that the plaintiff will receive any better result from a jury trial than from a court trial.   Indeed, the result might—the parties and the court will never know—be better with a court trial.   However, there is a strong preference against not depriving parties of jury trials without good reason.   See Leahey v. Heasley, 127 Conn. 332, 336 (1940) (“Such statutes [providing for waiver of jury trials] ․ should ․ be construed so as not to deprive a party of his full right to a trial by jury”).

Cole–Chu, Leeland J., J.