The opinion of the court was delivered by: Oliver W. Wanger, United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR JURY TRIAL (Docs. 28 & 130)
On June 25, 2007, Plaintiff filed a motion for jury trial in this action (Doc. 28). The motion, which was opposed by Defendant UBS AG Bank, Inc., was heard by Magistrate Judge Goldner on July 24, 2007. The parties were ordered to file supplemental briefs. Plaintiff's supplemental brief was filed on July 31, 2007 (Doc. 44); Defendant's supplemental brief was filed on August 10, 2007 (Doc. 47). Magistrate Judge Goldner heard further argument on the motion on August 23, 2007. By Minute Order filed on August 23, 2007, Plaintiff's motion was denied with Magistrate Judge Goldner to issue a written order (Doc. 48). However, by Minute Order filed on August 27, 2007, Magistrate Judge Goldner vacated her oral order denying Plaintiff's motion because of a pending Ninth Circuit appeal and stated that "[n]o further action will be taken thereon pending the appeal or a further court order." (Doc. 50). By Order filed on October 25, 6 2007, Magistrate Judge Goldner disqualified herself from further proceedings in this action and transferred the action to Magistrate Judge Austin. (Doc. 65). On July 21, 2008, Plaintiff filed a motion for a ruling on his motion for a jury trial (Doc. 130).
Plaintiff's motion for jury trial is DENIED.
Plaintiff's Amended Complaint filed in the Kern County Superior Court on January 11, 2007, contains the caption "Trial by Judge." The action was removed to this Court by Notice of Removal filed on March 6, 2007. Defendants filed an Answer to the Amended Complaint on March 13, 2007. Plaintiff's motion for jury trial was not filed until June 25, 2007.
At the July 24, 2007 hearing, Magistrate Goldner ordered the parties to file supplemental briefs addressing what California law requires to preserve the right to jury trial and how Rule 81(c), Federal Rules of Civil Procedure, applies to this action.
California Code of Civil Procedure § 631(d) provides in pertinent part:
A party waives trial by jury in any of the following ways:
(2) By written consent filed with the clerk or the judge. ...
(4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation. .... Plaintiff's supplemental brief relies on Section 631(d)(4) and argues that he did not waive his right to jury trial because the action was never set for trial upon the trial calendar before the Kern County Superior Court.
Plaintiff's position is without merit. Plaintiff's Amended Complaint filed with the Kern County Superior Court expressly stated "Trial by Judge." Section 631(d)(2) provides that a right to jury trial is waived "[b]y written consent filed with the clerk or the judge." As Defendants argue, the statement on the caption of the Amended Complaint filed with the Clerk of the Kern County Superior Court, "Trial by Judge," cannot be read as other than Plaintiff's consent that the case be tried by a judge rather than a jury Even if the explicit statement on the face of the Amended Complaint does not constitute a waiver of the right to a jury trial under Section 631(d)(2), Plaintiff's reliance on Section 631(d)(4) in contending that he "can still demand trial by jury under FRCP, Rule 81(c), since California law does not require the parties to make express demands in order to claim trial by jury until the case is first set upon trial calendar," is foreclosed Lewis v. Time, Inc., 710 F.2d 549, 556 (9th Cir.1983). In Lewis, the Ninth Circuit ruled: Under F.R.Civ.P. 81(c), the federal 'rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal.' The rule further states in relevant part: A party who, prior to removal, has made an express demand for trial by jury in accordance with state law, need not make a demand after removal. If state law applicable in the court from which the case is removed does not require the parties to make express demands in order to claim trial by jury, they need not make demands after removal unless the court directs that they do so ....
Lewis did not request a jury trial before his case was removed from California state court.
Under California law, a litigant waives trial by jury by, inter alia, failing to 'announce that one is ...