Gallagher v. Erie Lackawanna Railway Co. , 58 F.R.D. 195 ( 1973 )

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

The Court in the course of its daily perusal of the papers filed with the Clerk the previous day has come upon a Praecipe for the above captioned case issued by the attorney for the third party defendant, Wheeling-Pittsburgh Steel Corporation, demanding a trial by jury consisting of twelve members, without alternates, the trial to proceed as long as there are ten members of the jury available. Rule 29% (b) of the Local Rules of Civil Procedure provides:

Trial by a jury consisting of twelve (12) members may be had if written demand therefor (with notice to all parties) is filed with the court not less than thirty (30) and not more than sixty (60) days following service of the last pleading directed to the issue triable of right by the jury.¹

The Court understands the phrase “the last pleading directed to the issue triable of right by the jury” to mean an answer or an amended answer to the complaint or third party complaint.

On June 23, 1972, the third party defendant, Wheeling-Pittsburgh Steel Corporation, moved this Court to join the Penn Central Transportation Company as a third party defendant. On June 27, 1972, the Court ordered the Penn Central Transportation Company joined as a third party defendant. The third party complaint was filed on July 21, 1972, and on the same day the third party summons issued. On August 11, 1972, the third party summons was returned by the United States Marshal stating that “On August 9, 1972, served Penn Central Transportation Company.” The answer of the Penn Central Transportation Company was filed on August 29, 1972.

The Court will have to assume that the Penn Central Transportation Company served a copy of its answer on all parties at the same time as it filed its answer with the Clerk. Therefore, any party could demand a twelve man jury if the demand was made between September 28, 1972 and October 28, 1972. The above mentioned Praecipe was filed on January 22, 1973, and therefore does not fall within the permissible time span for demanding a twelve man jury.

The Court will, therefore, upon its own initiative, strike the Praecipe.

1 . Rule 29% Number of Jurors, Civil Trials

(a) Except as provided in (b), juries in civil cases shall consist, initially, of eight (8) members. Trials in such cases shall continue so long as at least six (6) jurors remain in service. If the number of jurors falls below six (6), a mistrial shall be declared upon prompt application therefor by any party then on the record.

(b) Trial by a jury consisting of twelve (12) members may be had if written demand therefor (with notice to all parties) is filed with the court not less than thirty (30) and not more than sixty (60) days following service of the last pleading directed to the issue triable of right by the jury.

(c) This rule shall become effective on May 1, 1971. All civil jury cases pending in this court on the effective date hereof shall be tried in accordance with subdivision (a) unless demand for trial by jury consisting of twelve (12) members is made within fifteen (15) days following the effective date of this rule.