The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
This case was referred to me by Judge Urbina for all purposes
including trial pursuant to LCvR 73.1(a). I herein resolve
Defendants' Motion in Limine and Plaintiffs'
Rule 21 Motion to Compel Defendants to Join Additional Party. For the
reasons set forth below, both motions will be denied.
DEFENDANTS' MOTION IN LIMINE
As I have stated in previous opinions, the history of this case is long
and convoluted. Sixteen years ago, defendants Francisco Rivas ("Mr. Rivas") and
Hilda Rivas ("Mrs. Rivas") took an extended vacation to Guatemala. Before
they left, the Rivases arranged for Jorge Iglesias ("Jorge"), their
17-year-old nephew, to mow their lawn while they were away. On July 29,
1987, while at the Rivas' home to do this chore, Jorge found the keys to
their Volkswagen Jetta in a jar on a window sill. Although he did not
have a driver's license, Jorge decided to go for a drive. Unfortunately,
Jorge accidentally struck and seriously injured 15-year-old Thomas
Athridge, Jr. ("Tommy"), causing permanent brain damage. The Jetta was
titled in the name of Churreria Madrid Restaurant, a partnership owned by
Mr. and Mrs. Rivas.
The accident generated four lawsuits, two of which are relevant here.
In Civ. No. 89-1222 Tommy sued Jorge, Mr. Rivas, and Churreria Madrid
Restaurant. In Civ. No. 92-1868, Tommy sued Mrs. Rivas.
By his order of November 13, 1992, Judge Thomas Penfield Jackson
consolidated all four cases. On July 19, 1995, Judge Jackson granted
summary judgment in favor of all defendants except Jorge. The remaining
claim, Tommy's negligence action against Jorge in Civ. No. 89-1222, was
then transferred to Judge Harold Greene on March 3, 1996.
Thereafter, Judge Greene conducted a trial in which the Athridges
presented their case against Jorge on the issues of driver negligence and
damages. On the first day of trial, Jorge's attorney made a motion for
bifurcation so that the defendants would not be prejudiced by trying the
issues of liability and damages together. In response, plaintiffs'
attorney proposed that the "case be tried to the Court without a jury
which would not require any ruling on whether or not the jury would be
prejudiced by damages." Memorandum of Points and Authorities in
Support of Plaintiff's Opposition to Defendants' Motion in Limine
("Mem. Pl. Opp.") at 5. Defense counsel did not oppose the request, and the case was tried without
a jury. While this case was being tried, Tommy's cases against the other
defendants were on appeal in the Circuit Court for the District of
The Pending Motion in Limine and the Parties'
Defendants have filed a Motion in Limine in which they move
the Court to designate the trial scheduled for January 20, 2004 as a
non-jury trial. Defendants' Motion in Limine ("Defs. Mot.") at
1. Defendants contend that, because plaintiffs waived their right to a
trial by jury when their case against Jorge was tried, plaintiffs should
not be allowed to reassert their demand for a jury trial now. According
to defendants, common fairness dictates that "[p]laintiffs cannot elect
[t]rial of one aspect of the case as non-jury, having expressly waived
plaintiffs' jury demand, and thereafter assert a remaining aspect of the
case to be tried before a jury." Id. at 3.
Plaintiffs, however, claim that the trial scheduled for January 20,
2004 should be a jury trial. Specifically, plaintiffs argue that their
waiver of a jury trial did not extend to their claims against
the Rivases.*fn1 Mem. Pl. Opp. at 1. Rather, the waiver extended only to
claims against Jorge. In support of this assertion, plaintiffs point to
the fact that their claims against the Rivases and their claims against
Jorge were severed when Judge Jackson entered final judgment in favor of the Rivases. In addition, when plaintiffs waived their right to
a jury trial in their case against Jorge, the case against the Rivases
was on appeal. Finally, defendants argue that even if plaintiff's claims
against the Rivases and Jorge were considered one case, they still had
the right to waive their right to a trial by jury on some issues and not
Under Federal Rule of Civil Procedure 38(c), a party may demand trial
by jury on specific issues and not on others. Fed.R.Civ.P. 38(c). In
addition, under Federal Rule of Civil Procedure 38(d), "[a] demand for
trial by jury . . . may not be withdrawn without consent of the
parties." Fed.R.Civ.P. 38(d). Both of these rules must be read in
light of the principle that, because the "right of jury trial is
fundamental, courts indulge every reasonable presumption against waiver."
Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937).
Here, it is undisputed that plaintiffs initially made a demand for a
trial by jury on all of the issues and against all of the defendants. The
issue, therefore, is whether plaintiffs waived their right to a trial by
jury against some of the defendants (i.e., the Rivases) when
they waived their right to a jury trial against another defendant
(i.e., Jorge). As defendants have conceded in their motion,
whether the remaining aspects of this case should be tried without a jury
is discretionary with the Court.
In my view, plaintiffs did not waive their right to a jury trial as to
all aspects of their cases against all defendants when their counsel
offered to try the case against Jorge without a jury. At the time
plaintiffs waived their right to a jury trial, their cases against Jorge
and the Rivases had been severed because Judge Jackson had granted
summary judgment in favor of all defendants except Jorge. In fact, the
case against the Rivases was on appeal, awaiting a decision by the D.C. Circuit. Thus, plaintiffs' waiver ...