Bereslavsky v. Caffey

Majority - Frank, Circuit Judge

Yes, the ten-day period for demanding a jury trial restarts when a plaintiff amends a complaint to seek legal relief after initially seeking only equitable relief, because the right to a jury trial only arises when an issue triable of right by a jury comes into being. The judge erred in striking the jury demand because, under the original complaint, the plaintiff was not entitled to a jury, as the relief sought was exclusively 'in equity,' meaning there was no 'issue triable of right by a jury.' When the plaintiff amended the complaint, abandoning the prayer for 'equitable' relief and creating a claim for money, an issue 'triable of right by a jury' came into being for the first time. The plaintiff made the jury demand well within ten days thereafter. The court clarified that the Federal Rules of Civil Procedure did not obliterate the historic differences between 'law' and 'equity' for substantive purposes, only for procedural ones, thus preserving the right to a jury where a legal issue is presented. The court distinguished precedents like Clark v. Wooster and Rice & Adams Corporation v. Lathrop, noting that those cases involved defendants seeking to discontinue equity actions where the plaintiff had not elected a law action, allowing courts discretion to retain equity jurisdiction, which was not the situation here. The court affirmed its power to issue a writ of mandamus in aid of its appellate jurisdiction.