The opinion of the court was delivered by: RICHEY
CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE
Defendant Conrad Cafritz has withdrawn his demand for a jury trial on Counts III and V of the Complaint,
and joins with Defendant Weil, Gotshal & Manges in expressing a desire for a bench trial on these counts. The FDIC opposes this withdrawal pursuant to Fed. R. Civ. P. 38, and requests that the Court exercise its discretion under Fed. R. Civ. P. 39 in order to reinstate a jury trial on the these counts. Upon consideration of the FDIC's Motion, the Defendants' opposition thereto, the applicable law and the record herein, the Court finds that, given the intertwined factual and legal issues in this case, the interests of justice demand that Counts III and V be tried before a jury.
Although the FDIC makes various arguments in support of its claim for a jury trial,
the Court believes that, pursuant to Fed. R. Civ. P. 39(b),
the interests of justice and efficient judicial administration amply justify ordering a jury trial on Counts III and V. According to the FDIC, a jury trial is the most efficient manner of prosecuting the instant action in light of the fact that a jury will consider Counts I, II and IV.
The FDIC believes that the fraudulent conveyance claims are intertwined and that a bifurcated trial would needlessly confuse the jury. Objection of FDIC to Withdrawal, supra, at 3-5.
First and foremost, the FDIC's intentional waiver of a jury demand does not forever bar relief from the waiver. Parties may knowingly and intentionally waive the right to trial by jury, and then, in light of changed circumstances, ask the Court to reinstate a jury trial. This is the purpose of Rule 39,
which is often employed in cases in which there are multiple parties with conflicting jury demands. See, e.g., State Mut. Life Assurance Co. of America, 581 F.2d 1045 (2d Cir. 1978). See generally 5 J. Moore, Moore's Federal Practice, para. 39.09, at 39-30 (1991) ("Moore's Federal Practice") (especially note 8 and cases cited therein).
As the case of Tavoulareas v. Piro, supra, makes clear, this Circuit has not adopted an overly-strict approach to Rule 39(b). Rather than penalizing a party for failure to make a proper jury demand, the Court should consider "all of the factors." Id. at 15. Thus, the Court should consider: whether the issues to be tried are jury issues; the effects on scheduling and trial preparedness; whether any party will be prejudiced by granting the FDIC relief from its waiver; and the reasons why the FDIC did not make a proper demand for jury trial. See generally 5 Moore's Federal Practice, supra, P 39.09, at 39-31.
Upon carefully evaluating these factors, the Court has determined that the interests of justice would best be served by having a jury trial on all counts. Although the FDIC's explanation for changing its position does not evoke sympathy,
the FDIC's assumption that the Defendants would agree whether the case, in toto, would be heard by the Court or the jury is an adequate explanation for the reversal of position on the jury trial issue. Moreover, the remaining factors in the Rule 39 equation tip the balance in favor of having the jury decide all issues.
Specifically, a jury trial is appropriate in this case in light of the FDIC's position that the fraudulent conveyance issues are factually and legally intertwined. Objection of FDIC to Withdrawal, supra, at 3. By having a jury hear evidence on all counts, the Court avoids any possible confusion between the spousal fraudulent conveyance claims and those pertaining to the Weil, Gotshal retainer fee, while at the same time allowing the jury to determine the interrelationship, if any, among the various transactions. See State Mut. Life Assurance Co. of America, supra; Banks v. Hanover S.S. Co., 43 F.R.D. 374 (D.Md. 1967).
Finally, the use of a jury vel non on Counts III and V does not have significant implications for the Court's docket or for the scheduling of this case. Presenting the evidence to the jury is not likely to take more time than presenting it to the Court. Moreover, the trial is a few months away, and all parties will have sufficient time within which to prepare.
Accordingly, it is, by this Court, this 15th day of August, 1991,
ORDERED that, pursuant to Fed. R. Civ. P. 39(b), the FDIC's request for a jury trial as to Counts III and V shall ...