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Jury Trial Request Not Too Late

In plaintiff’s suit alleging false advertising and unfair competition under the Lanham Act, the Charlottesville U.S. District Court grants plaintiff’s motion for a trial by jury.

Neither plaintiff nor any of the defendants made a jury demand within the time prescribed by Fed. R. Civ. P. 38(b). Nonetheless, the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

Having considered the pertinent factors as articulated in Malbon v. Pa. Millers Mut. Ins. Co., 636 F.2d 936 (4th Cir. 1980), the court is of the opinion that a jury trial is warranted in the instant case. First, plaintiff’s claims under the Lanham Act involve factual issues that are suitable for a jury to resolve. While the claims are based on representations regarding the regulatory status of certain pharmaceutical products, and the products’ equivalence to plaintiff’s pharmaceutical products, the court is of the opinion that the claims are not so complex that a jury would be incapable of understanding them.

Also, the court is unable to find that granting plaintiff’s motion for a jury trial would significantly prejudice defendants, or that the timing of the motion warrants denying it. At the time plaintiff filed the motion, defendants still had seven weeks to conduct discovery and more than four months to prepare for trial. Although the defendants indicate they had already deposed certain witnesses by the time plaintiff moved for a jury trial, the defendants fail to explain how these particular depositions would have been conducted differently if they had known that plaintiff’s claims would be presented to a jury for consideration.

Finally, the court is of the opinion that a jury trial would not be substantially more burdensome than a bench trial.

Motion for jury trial is granted.

Concordia Pharmaceuticals Inc. v. Method Pharmaceuticals LLC (Conrad) No. 3:14cv16, Nov. 4, 2015; USDC at Charlottesville, Va. VLW 015-3-569, 4 pp.

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