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Doctors Medical Center of Modesto, Inc v. Principal Life Insurance Company

April 26, 2011

DOCTORS MEDICAL CENTER OF MODESTO, INC.,
PLAINTIFF,
v.
PRINCIPAL LIFE INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. ObertoUNITED States Magistrate Judge

ORDER GRANTING DEFENDANT'S MOTION TO STRIKE

(Docket No. 57)

I. INTRODUCTION

This case was removed to this Court from Stanislaus County Superior Court on March 12, 2010. On April 21, 2011, Defendant Principal Life Insurance Company ("Principal") filed a motion to strike the reference to a jury trial contained in the Court's June 21, 2010, Scheduling Order. Principal maintains that no jury demand has ever been made by Plaintiff Doctors Medical Center of Modesto, Inc. ("DMC"), and thus any right to a jury trial has been waived. Although the Court ordered DMC to file an expedited response to Principal's motion to strike, no response was filed.

II. DISCUSSION

A. Legal Standard -- Demand For A Jury Trial

Generally, the time limit for a jury demand by either party is no later than 14 days after service of the last pleading directed to a jury-triable issue. Fed. R. Civ. P. 38(b); see also Beckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 905 (9th Cir. 1982). Under the Federal Rules of Civil Procedure, only a complaint, an answer, an answer to a counterclaim, an answer to a cross claim, a third-party complaint, a third-party answer, and a reply to an answer -- if ordered by the court -- qualify as pleadings. See Fed. R. Civ. P. 7(a). A jury demand must be made in writing and must be filed with the clerk of the court. See Fed. R. Civ. P. 38(b)(2). Once a timely demand has been made by any party, the demand may be relied upon by the other parties in the action. See Calnetics Corp. v. Volkswagen of Am., Inc., 532 F.2d 674, 690 (9th Cir. 1976) (holding defendants not required to make independent jury demand in relation to issues for which plaintiff demanded a jury).

In cases that are removed to federal court, Federal Rule of Civil Procedure 81(c)(3) also provides the following:

(A) As Affected by State Law. A party who, before removal, expressly demanded a jury trial in accordance with state law need not renew the demand after removal. If the state law did not require an express demand for a jury trial, a party need not make one after removal unless the court orders the parties to do so within a specified time. The court must so order at a party's request and may so order on its own. A party who fails to make a demand when so ordered waives a jury trial.

(B) Under Rule 38. If all necessary pleadings have been served at the time of removal, a party entitled to a jury trial under Rule 38 must be given one if the party serves a demand within 14 days after:

(i) it files a notice of removal; or

(ii) it is served with a notice of removal filed by another party. Fed. R. Civ. P. 81(c)(3)(A)-(B).

Procedural errors in docketing a jury case as a non-jury case or docketing a non-jury case as a jury case do not control the right to a jury trial. See O'Malley v. U.S. Fid. & Guar. Co., 776 F.2d 494, 502 (5th Cir. 1985) (magistrate judge's incorrect designation of jury case on the docket based on party's ...


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