The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE JURY TRIAL (Document 20)
On June 11, 2010, Defendant, CertainTeed Corporation ("Defendant") filed a motion to strike Plaintiff's jury trial. (Docs. 20-23). On July 1, 2010, Plaintiff, Eddie Holtzclaw ("Plaintiff"), filed an opposition to the motion. (Doc. 29). Defendant filed a Reply on July 8, 2010. (Doc. 31). Based on a review of the pleadings, the Court determined that the matter was suitable for decision without oral argument pursuant to Local Rule 230(g). The hearing set for July 16, 2010 at 9:30 am was vacated. Upon consideration of the pleadings, Defendant's Motion to Strike Plaintiff's Jury Trial is GRANTED.
On July 10, 2009, Plaintiff filed a complaint in the Madera County Superior Court against his former employer CertainTeed Corporation, alleging various violations of the California Fair Employment and housing Act ("FEHA"), Cal. Gov. Code § 12940 et seq, including age discrimination, disability discrimination, failure to accommodate disability, and failure to engage in good faith interactive process. (Doc. 1, pgs. 8-28). Plaintiff also alleged causes of action for wrongful termination in violation of public policy and retaliation. Id. Plaintiff's complaint did not include a demand for jury trial. Id. On September 9, 2009, Defendant answered the complaint and filed and served its Notice of Removal based on diversity jurisdiction. (Doc. 1, pgs 29-34, and Doc. 2).
On November 12, 2009, the parties submitted their Joint Scheduling Report. (Doc. 9). In this report, Plaintiff indicated that he had "filed a timely request for a jury trial." Defendant indicated that it "[was] not requesting a jury trial." (Doc. 9 at pg. 10). Based on Plaintiff's representation, on December 17, 2009, the Court issued a scheduling order and set the case for a jury trial. (Doc. 15 at pgs. 1 and 10). No party moved to correct the scheduling order.
On June 11, 2010, Defendant filed the instant motion to strike Plaintiff's jury trial on the basis that Plaintiff failed to timely request a jury trial pursuant to the Federal Rules of Civil Procedure Rules 38 and 81. In opposition, Plaintiff argues that Defendant was aware that Plaintiff intended to have a jury trial as evidenced by the filing and signing of the Joint Scheduling Report. Plaintiff also argues that under California law, he was only required to request a jury trial at the trial setting or the case management conference. Therefore, under Fed. R. Civ. Procedure 81(c)(3)(A), he was not required to request a jury trial within 10 days. Alternatively, Plaintiff argues that the Court should exercise its discretion under Fed. R. Civ. P. 39(b) and permit Plaintiff to have a jury trial.
A. Defendant's Motion to Strike Plaintiff's Jury Trial
1. Time to File Jury Demand
At the time Plaintiff filed the complaint, Federal Rule of Civil Procedure 38(b) stated:
Demand. On any issue triable of right by a jury, a party may demand a jury trial by:
1) serving the other parties with a written demand - which may be included in a pleading - no later than 10 days after the last pleading ...