IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 18, 2009
J. GARY KERNS, PLAINTIFF,
THE NORTHWESTERN MUTUAL LIFE, INSURANCE COMPANY, DEFENDANT.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Defendant moves to strike Plaintiff's request for a jury trial arguing it is untimely under Federal Rule of Civil Procedure 38(b) since Plaintiff filed his request more than ten days after Defendant filed its answer on September 2, 2008.*fn2 Plaintiff counter-moves for the court to exercise its discretionary authority under Rule 39(b) by ordering a jury trial. However, a district court's discretion under Rule 39(b) "is narrow . . . and does not permit a court to grant relief when the failure to make a timely demand results from an oversight or inadvertence." Pacific Fisheries Corp. v. H.I.H. Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001). Plaintiff's counsel declares he delayed in filing the request for the following reasons:
I was on an Alaskan sea cruise/and excursion from August 24, 2008 to September 6, 2008, during which time [D]efendant caused this action to be removed to federal court. I had a trial scheduled to begin on September 15, 2008 in San Joaquin County, and upon my return to my office on September 9, 2008, I focused on preparation for that trial. At some point in time, I did become aware that this case had been removed to federal court, but at that time, the need to demand a jury trial did not occur to me. I first realized the need to demand a jury trial on September 24, 2008 and filed a demand on that date. (Haydel Decl. ¶¶ 2-5.)
Since Counsel's delay in making a request for a jury trial was due to "mere [oversight and] inadvertence," his request "must be denied." Pacific Fisheries Corp., 239 F.3d at 1002. See Zivkovic v. S. Cal. Edison Co., 30 F.3d 1080, 1086-1087 (9th Cir. 2002)(holding a pro se litigant's "good faith mistake of law with respect to the deadline for demanding a jury trial" established no more than inadvertence). Therefore, Defendant's motion to strike Plaintiff's request for a jury trial is granted and Plaintiff's counter-motion is denied.