The opinion of the court was delivered by: Amy Reynolds Hay United States Magistrate Judge
Presently before the Court is Plaintiff's Motion to Strike Jury Demand. For the reasons that follow the motion will be granted.
On March 9, 2001, Blue Mountain Environmental Management Corporation ("Blue Mountain") filed the above-captioned civil action against Chico Enterprises, Inc. and August Environmental, Inc. (collectively, the "Defendants").*fn1 Blue Mountain alleged that the Defendants requested the services of Blue Mountain to provide environmental testing and remediation at the site of a gasoline spill at a service station owned and operated by the Defendants. Blue Mountain asserted that in accordance with the parties' agreement on this matter, Blue Mountain provided the requested services and billed Defendants for same. Blue Mountain claimed that Defendants failed and refused to pay the outstanding and past-due invoices totaling $209,982.29. The Complaint set forth three separate causes of action: (1) breach of contract, (2) account stated and (3) unjust enrichment. Blue Mountain did not demand a trial by jury.
The Defendants filed their Answer on April 16, 2001. At that time, they did not indorse upon their Answer or otherwise make a demand for a jury trial. As well, Defendants did not demand a jury trial within ten days of service of their Answer.
Fourteen months later, on June 27, 2002, Defendants filed a Motion to Substitute Counsel, upon which they attempted to indorse a demand for trial by jury. The Motion to Substitute Counsel was granted and a few weeks later Defendants moved for leave to file an Amended Answer that would "clarify" the issues and more specifically detail their position and "address the allegations" of the Complaint. See Doc. 85, Ex. B, ¶ 5. The Court granted leave and on December 30, 2002, Defendants filed their Amended Answer. No demand for trial by jury was indorsed upon the Amended Answer and none was filed within ten days of service of the Amended Answer.
At the very recent Pretrial Conference, held on September 5, 2006, the Court indicated that by its review of the pleadings no demand for trial by jury had been made by either party. Plaintiff was in agreement, however, Defendants advanced the position that they had preserved their right to a jury trial as evidenced by the Motion to Substitute Counsel.
Blue Mountain has now moved to strike any purported jury trial demand, arguing that Defendants waived their right to make the demand and have not asserted new issues which would generate the right to request the demand. Blue Mountain points to Fed.R.Civ.P. 38, which provides in pertinent part as follows:
Any party may demand a trial by jury of any issue triable of right by a jury by (1) serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue, and (2) filing the demand as required by Rule 5(d). Such demand may be indorsed upon a pleading of the party. * * *
The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.
Fed.R.Civ.P. 38(b),(d)(emphasis added). The term "last pleading" means the last pleading filed that contests the issue, typically an answer to a complaint or a reply to a counterclaim. McCarthy v. Bronson, 906 F.2d 835, 840 (2d Cir. 1990), aff'd, 500 U.S. 136 (1991). As Blue Mountain correctly notes, Defendants filed their Answer to the Complaint on April 16, 2001 and, as such, the Answer constituted the "last pleading" for purposes of Rule 38(b). The Defendants did not request a trial by jury at that time nor within ten days after service of their Answer. Blue Mountain asserts that Defendants failure in this regard constituted a waiver of their right to a jury trial. The Court agrees.
Rule 38(d) clearly provides that a failure to timely serve a demand for trial by jury constitutes a waiver of that right. Fed.R.Civ.P. 38(d); Fort Washington Resources, Inc. v. Tannen, 852 F.Supp. 341, 342 (E.D.Pa. 1994). "It is well settled that, if the original pleadings in an action effectively waive trial by jury under rules 38(b) and (d), the right to trial by jury of all matters contained in those pleadings cannot be revived by subsequent amendment of the original pleadings. See, e.g., Walton v. Eaton Corp., 563 F.2d 66, 71 (3d Cir. 1977) (en banc); Crawford v. Dominic, 85 F.R.D. 33 (E.D.Pa.1979); 5 J. Moore, Moore's Federal Practice P 38.39(2), at 38-353 (1982). The only exception to this general rule that amendment of a pleading does not revive a previously waived right to demand a jury trial is in a case in which the amended pleading raises new issues not raised by the original pleading." Cardio-Medical Associates, Ltd. v. Crozer-Chester Medical Center, 95 F.R.D. 194, 196 (E.D.Pa. 1982), aff'd, 721 F.2d 68 (1983); Lanza v. Drexel & Co., 479 F.2d 1277, 1310 (2d Cir. 1973)(en banc).
The term "issue" in this context "means something more than the evidence offered and the legal theories pursued." Rosen v. Dick, 639 F.2d 82, 94 (2d Cir. 1980). New legal theories or "artful rephrasings" in the amended pleading will not constitute new issues. Berisford Capital Corp. v. Syncom Corp., 650 F.Supp. 999, 1001-02 (S.D.N.Y. 1987)(quoting Rosen, 639 F.2d at 94, 96). "Rule 38 envisions an amendment that raises new facts ... as a prerequisite to reactivation of the 10-day period during which a party has a right to make a jury demand." Westchester Day School v. Village of Mamaroneck, 363 F. Supp.2d 667, 670 (S.D.N.Y. 2005). The Court must "look to the underlying essence" of the Answer and the Amended Answer here to determine whether the ...