
    Ruth Rapaport, and another vs. Elizabeth Power
    Southern District
    November 6, 1996.
    Present: Aguiar, P.J., Welsh & Crimmins, JJ.
    Patrick J. Carver for the plaintiffs on appeal.
    Christopher G. Timson for the defendant.
    
      
       Meir Rapaport.
    
   Aguiar, J.

This appeal raises the issue of whether there was an abuse of discretion by the Court’s denial of a motion to allow leave to assert a jury claim late when the attorney for the plaintiffs failed to claim a jury trial in a timely manner. We find there was no error.

This case involves a personal injury action in which the plaintiff, Ruth Rapaport, claims to have suffered a lower back and neck injury.

The case was tried before a judge in the District Court Department. The Court round for the plaintiff, Ruth Rapaport, in the amount of $5000.00 and for the plaintiff, Meir Rapaport, in the amount of $1000.00 for loss of consortium.

After trial, plaintiffs filed a Motion to Allow Leave to Assert a Jury Claim Late, in order to have the case transferred to Superior Court and to be heard before a jury. Their motion was denied.

With respect to asserting a jury claim, the plaintiff should ordinarily file a jury claim within thirty days of the commencement of the action, or service of a responsive pleading, or within such further time as the court may allow. Mass. Gen. Laws Ch. 231, section 103.

In the case at bar, plaintiffs’ prior counsel failed to assert a jury claim.

Plaintiffs now contend that it would be unjust to penalize the plaintiffs with prior counsel’s error.

Plaintiffs argue that the right to a jury trial is a fundamental constitutional right and the Court should have considered excusable neglect in determining whether to allow the late jury claim. Mass. Rules of Civil Procedure, Rule 39(b).

Defendant argues that the plaintiffs are precluded from removing this action to Superior Court. “The plaintiffs never requested a trial by jury prior to a final judgment entering in this case in the District Court. Further, the plaintiffs waived their claim for trial by jury by filing this action in the Quincy District Court with a Statement of Damages totaling $25,000.” Mass. Gen. Laws Ch. 291, section 102(c).

At all times, the plaintiffs were represented by counsel. Judgment was in favor of the plaintiffs. The Court heard the arguments of both parties and in its discretion chose to deny the plaintiffs’ motion. There was ample reason for the Court’s decision. We find there was no abuse of discretion.

The judgment is affirmed and the appeal is dismissed.  