Commercial Division Blog

Posted: October 22, 2019 / Categories Commercial, Juries

Plaintiff Waives Jury Trial Against all Defendants by Seeking Non-Incidental Equitable Claim Against one Defendant

On October 8, 2019, the First Department issued a decision in Errant Gene Therapeutics, LLC v. Sloan-Kettering Institute for Cancer Research, 2019 NY Slip Op. 07226, holding that a plaintiff irrevocably waives its right to a jury trial against all defendants on all of its claims arising out of the same alleged wrong by asserting a non-incidental equitable claim for a permanent injunction against one defendant. The First Department explained:

When, as here, the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, there is a waiver of a plaintiff's right to a jury trial. Plaintiff's sixth cause of action for a permanent injunction sounds in equity, is not incidental to the remaining claims and as a result of its inclusion, it can no longer be said that money damages would afford a complete remedy.

(internal citations omitted).

The First Department further reaffirmed the longstanding rule that a party cannot revive its right to a jury trial by subsequently dismissing its equitable claims, explaining:

[O]nce the right to a jury trial has been intentionally lost by joining legal and equitable claims, any subsequent dismissal, settlement or withdrawal of the equitable claim(s) will not revive the right to trial by jury.

NOTE: Schlam Stone & Dolan LLP represented Defendant-Appellant Bluebird Bio Inc. on the appeal.

As this decision shows, the decision of what claims to bring at the outset of an action will have an irrevocable impact on whether there is a right to a jury trial. Asserting even a single equitable claim against one defendant may irrevocably waive a plaintiff’s right to a jury trial on all of its claims against all defendants. Contact Schlam Stone & Dolan lawyer Seth Allen at if you or a client is considering whether to bring equitable and legal claims in a single action or if you are defending claims where legal and equitable claims have been asserted in a single complaint.