Opinion
Counterdefendant filed motion to strike as untimely jury demands made by defendants in their supplemental counterclaim for malicious prosecution. The District Court, McMillen, J., held that where defendants filed counterclaim for abuse of legal process on November 8, 1978 and counterclaim did not contain jury demand, where counterdefendant, on September 17, 1979 filed motion for summary judgment which did not address merits but attempted to invoke previous denial of defendants' motion for sanctions as law of the case, where counterdefendant never filed reply to original counterclaim, and where, on June 16, 1980, defendants filed supplemental counterclaim for malicious prosecution which demanded trial by jury, counterdefendant's summary judgment motion was not a responsive " pleading" and thus jury demand was timely.
Motion denied.
Benjamin Stapleton, Edward O. Byrne and James E. Nesland, Denver, Colo., Michael M. Conway, Chicago, Ill., for plaintiff.
Alan C. Frieberg, Denver, Colo., Lowell E. Sachnoff, Nathan H. Dardick, Anthony C. Valiulis, Chicago, Ill., for defendants.
DECISION ON JURY DEMAND OF COUNTERPLAINTIFFS
McMILLEN, District Judge.
Counterdefendant Outdoor Sports Industries, Inc. (" OSI" ) has moved to strike as untimely the jury demand made by counterplaintiffs in their Supplemental Counterclaim for malicious prosecution filed June 16, 1980. The issue depends on whether OSI's motion for summary judgment filed September 17, 1979 on the original counterclaim for abuse of legal process was a " pleading" within the meaning of F.R.C.P. 38(b). We find and conclude that it was not.
Defendants/counterplaintiffs filed their Amended Answer and Counterclaim on November 8, 1978. It did not contain a jury demand. OSI filed a motion for summary judgment but did not reply to the counterclaim. On June 16, 1980, with leave of court, counterplaintiffs filed a Supplemental Counterclaim for malicious prosecution, paragraph 11 of which demanded a trial by jury. This document in effect replaces the original counterclaim, but there is no contention that it was filed merely to accommodate a late jury demand.
Given that a reply was never filed by counterdefendant, this case falls squarely within the holding of Dasho v. Susquehanna Corp., 461 F.2d 11 (7th Cir. 1972), cert. denied 408 U.S. 925, 92 S.Ct. 2496, 33 L.Ed.2d 336 (1972). In that case, plaintiffs made a jury demand in their reply filed more than three years after the original complaint and several months after all defendants had answered. The court held plaintiffs' demand timely because the reply, however tardy, constituted the " last pleading directed to such issue" : " Up to that time there had been no final definition of the issues and no waiver of the right to a jury trial." Dasho, 461 F.2d at 22.
Counterdefendant argues that its motion for summary judgment was a responsive pleading which effectively put the counterclaim at issue. The motion for summary judgment did not address the merits but attempted to invoke this court's previous denial of counterplaintiffs' Rule 11 sanctions motion as law of the case. A motion of this kind is not a pleading. F.R.C.P. 7(a); In re Zweibon, 565 F.2d 742, 747 (D.C.Cir.1977) ; Molinaro v. Watkins-Johnson CEI Division, 359 F.Supp. 467 (D.Md.1973).
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the motion of counterdefendant OSI to strike the jury demand of counterplaintiffs is denied.