Capak v. Epps

Background

Richard J. Capak sued Tauheed Epps, also known as 2 Chainz, and Rory Dorall Smith after Smith allegedly struck Capak while Capak was filming Epps near Rockefeller Plaza on October 27, 2017. The complaint asserted assault, battery, and negligence claims against Epps and Smith, plus a negligent hiring and retention claim against Epps. The case was filed in New York state court and later removed to the Southern District of New York based on diversity jurisdiction.

No jury demand appeared in the state-court complaint or in the materials filed with the federal court during removal. Neither side made a jury demand after removal. In January 2019, the parties filed a joint case-management plan stating that the case would not be tried to a jury. Two later amended plans kept that statement, and the court adopted the plans and issued amended orders extending discovery.

Epps moved for summary judgment in January 2020. The court granted that motion on June 10, 2020, leaving Smith as the remaining defendant. After that ruling, the parties disagreed about whether the case should be tried to a jury or by the judge. In October 2021, the court ordered Capak to state whether he wanted a jury or bench trial by November 29, 2021. Capak did not meet that deadline. The court later gave him an additional week, but he missed that deadline as well. On January 3, 2022, Capak sent a letter requesting a jury trial.

Rules the Court Applied

Federal Rule of Civil Procedure 38 generally requires a party to serve and file a jury demand within the specified deadline, and provides that failing to do so waives the right to a jury trial. Rule 81 explains when a jury demand must be made in a case removed from state court. Rule 39 allows a court to order a jury trial even when a proper demand was not made. Rule 6 allows an extension after a missed deadline only when the party shows good cause and excusable neglect.

Court’s Analysis

Capak conceded that he had not made a timely jury demand under Rule 38. He argued that Rule 81 allowed a late demand because New York law permits jury demands later in a case. Judge Parker rejected that argument, concluding that none of Rule 81’s three relevant situations applied: no demand had been made in state court; New York requires an express jury demand; and the pleadings had not been completed before removal.

Capak alternatively asked the court to use its discretion under Rule 39 to allow a jury trial. Judge Parker explained that a deliberate, knowing, and intentional waiver cannot later be undone through Rule 39(b). She found that Capak had waived the jury right by failing to make a timely demand and by participating in three stipulated case-management plans stating that the case would not be tried to a jury. The court also considered Capak’s failure to meet the deadlines it set in late 2021. Although Capak had stated in a June 2020 letter that he did not consent to a bench trial, the court found that his later conduct and missed deadlines supported waiver.

The court separately considered whether to allow the late demand despite the waiver. It found that some factors favored Capak: New York state courts have broad discretion over late jury demands, and the type of action is traditionally tried to juries. But other factors favored Smith. The parties had conducted discovery while expressly proceeding on the understanding that the case would be tried by the judge. Smith obtained pro bono counsel for what was expected to be a bench trial, and the court found that changing to a jury trial at that stage could prejudice Smith because discovery had not been conducted with a jury trial in mind.

Capak said he had delayed because he was waiting to learn whether his doctors were available for trial. Judge Parker found that explanation insufficient because Capak could have made the jury demand while asking for more time to provide the doctors’ availability. The court also noted that Capak gave no explanation for the delay when he actually submitted his late demand. It concluded that he had not shown good cause or excusable neglect under Rule 6(b)(1)(B).

Disposition

The court denied Capak’s motion for a trial by jury. It held that the demand was untimely and waived, and declined to permit the late demand under Rules 39(b) or 6(b)(1)(B).