UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
December 6, 2011
MICHAEL E. BOYD,
ACCURAY, INC.; DOES 1-50, DEFENDANTS.
The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO AMEND
Now before the Court is Plaintiff Michael E. Boyd's Motion for Leave to File a First Amended Complaint. ECF No. 16 ("Mot."); ECF No. 18 ("Reply"). Defendant Accuray, Inc. has 16 filed a limited opposition to the motion. ECF No. 17. Pursuant to Civil Local Rule 7-1(b), the 17
Court finds this matter suitable for determination without oral argument. Accordingly, the hearing 18 on the motion set for December 7, 2011, is hereby VACATED. The Case Management 19
Conference remains as set on December 7, 2011. The Courtroom Deputy has already reminded the 20 parties that their Joint Case Management Statement was due on November 30, 2011. Defendant 21 filed its case management statement on December 6, 2011. ECF No. 23. Plaintiff shall file his 22 case management statement no later than 9:00 a.m. on December 7, 2011. 23
After considering the parties' submissions and the relevant case law, the Court GRANTS the motion IN PART and DENIES it IN PART. 25
Plaintiff filed his original complaint, in pro per, on April 5, 2011. ECF No. 1. The original complaint asserts that Plaintiff's employer, Accuray, Inc. unlawfully retaliated against him for 28 engaging in protected activity under the following five statutes: (1) opposing national origin employment discrimination under Title VII, 42 U.S.C. § 2000e-5; (2) exercising his rights under 2 the Fair Labor Standards Act, 29 U.S.C. § 207; (3) whistleblowing under the Sarbanes-Oxley Act, 3 18 U.S.C. § 1514A; (4) whistleblowing under the False Claims Act, 31 U.S.C. § 3730(h); and (5) 4 exercising his rights under the Occupational Safety and Health Act ("OSHA"), 29 U.S.C. § 651 et 5 seq.. Plaintiff acknowledges he did not request a jury trial in the complaint. Mot. 2. The civil 6 cover sheet has the "NO" box checked in the "jury demand" section, denoting that a jury was not 7 demanded in the complaint. See ECF No. 1-1. Plaintiff served the original complaint on April 15, 8 2011. ECF No. 5. Defendant filed and served its answer on May 6, 2011. ECF No. 4. 9
On August 2, 2011, Mr. Westreich substituted as counsel for Plaintiff. ECF No. 11.
On August 31, 2011, Defendant's counsel sent a draft joint case management statement to Plaintiff's counsel. See McMahon Decl. ¶ 7. On September 6, 2011 -- the day before the statement was due -- Plaintiff's counsel sent a redlined "proposed revision" to Defendant's draft case 13 management statement, which changed Defendant's proposed language as follows: "Defendant 14 estimates a 4 6 6-8 day jury trial, exclusive of time for jury selection and deliberation."*fn1 Suppl. 15
Westreich Decl. ¶ 6. Later that day, Plaintiff suggested two more changes: "Defendant The Parties 16 estimates a 6-8 day jury trial, exclusive of time for jury selection and deliberation." Id. ¶ 8. On 17 "parties estimate a 6-8 day jury trial, exclusive of time for jury selection and deliberation." ECF 19
On September 14, 2011, the Court held a case management conference. At the conference, Plaintiff informed the Court of his intention either to file a first amended complaint by stipulation 22 or to file a motion for leave to amend by October 7, 2011. See Transcript, ECF No. 21, at 2-3. 23
Also at the conference, Defendant asserted that "Mr. Boyd was represented by counsel during the 24 period of time where he should have demanded a jury trial. He did not. . . . Things like that I can't 25 stipulate to. . . ." Id. at 4. 26 27
September 7, 2011, the parties filed their joint case management statement, which stated that the 18 No. 12, at 7. 20 schedule set at the case management conference and noting that the "JURY TRIAL DATE is 3 August 6, 2012 . . . ." ECF No. 15. On October 28, 2011, Defendant filed an objection to the 4 reference of a "jury trial" in the Court's September 14, 2011 Case Management Order. ECF No. 5
Plaintiff filed the instant motion for leave to amend on October 7, 2011. ECF No. 16. The proposed first amended complaint contains the same five claims as the original complaint, albeit in 8 a different order. ECF No. 16-2. Plaintiff's attorney states that leave to amend is sought "solely 9 for the purpose of conforming the pleading to normal pleading practice, without adding any parties 10 or claims." Mot. 2. On October 21, 2011, Defendant filed its limited opposition, opposing only Plaintiff's demand for a jury trial. ECF No. 17. On October 27, 2011, Plaintiff filed his reply.
ECF No. 18. 13
14 to the extent that it is unopposed. The Court considers Plaintiff's request for a jury trial below. 15 Federal Rule of Civil Procedure 38 states that a party may demand a jury trial on "any issue 17 triable of right" by serving the other parties with a written demand "no later than 14 days after the 18 last pleading directed to the issue is served." Fed. R. Civ. P. 38(b). A party waives a jury trial, 19 however, "unless its demand is properly served and filed." Fed. R. Civ. P. 38(d); see also, Solis v. 20 Cir. 1981). 22
23 jury trial on any issue for which a jury might have been demanded. Fed. R. Civ. P. 39(b). The 24 Ninth Circuit has held that a district court's discretion under Rule 39(b) is narrow and "does not 25 permit a court to grant relief when the failure to make a timely demand results from an oversight or 26 inadvertence." Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1086-87 (9th Cir. 2002). "An 27 untimely request for a jury trial must be denied unless some cause beyond mere inadvertence is 28 shown." Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001)
On September 14, 2011, the Court issued a case management order memorializing the case
On November 4, 2011, Plaintiff filed a response to Defendant's objections. ECF No. 20. 6
Accordingly, the Court GRANTS Plaintiff' motion for leave to file an amended complaint
Los Angeles, 514 F.3d 946, 953-54 (9th Cir. 2008); Pradier v. Elespuru, 641 F.2d 808, 810 (9th 21 If no demand for a jury trial is made, a court may, pursuant to a Rule 39(b) motion, order a (good faith mistake in law insufficient for relief under Rule 39). See also Chandler Supply Co. v. 2 GAF Corp., 650 F.2d 983, 987-88 (9th Cir. 1980). 3 5 his right to a trial by jury. Plaintiff argues that Defendant stipulated to a jury trial by failing to 6 object to the mention of a jury trial in the joint case management statement, and that Plaintiff is 7 therefore entitled to include a jury demand in the FAC. 8
Defendant argues that Plaintiff did not timely request a jury trial, and has therefore waived Federal Rule of Civil Procedure 38(b) states that a jury demand must be made "no later than 14 days after the last pleading directed to the issue is served." In this case, the last pleading 10 directed to the issues was served on May 6, 2011. Thus, under Federal Rule of Civil Procedure 11 2011. Thus, Plaintiff has waived his right to a trial by jury. Fed. R. Civ. P. 38(d). The fact that 14 "same matrix of facts" does not "revive his right to request a jury trial." Lutz v. Glendale High 16 School, 403 F.3d 1061, 1066-67 (9th Cir. 2005); see also Trixler Brokerage Co. v. Ralston Purina 17 Co., 505 F.2d 1045, 1050 (9th Cir. 1974). As Plaintiff acknowledges, the motion for leave to 18 amend "only seeks to modify the pleading from the original pro se complaint to one more in accord 19 with standard pleading, without adding any parties or claims." Mot. 1. 20 21 the civil cover sheet could be sufficient for a pro se plaintiff to comply with Federal Rule of Civil 22 Procedure 38. Reply 4. First, the Court disagrees with Plaintiff's assertion that the "jury demand 23 box" was checked on the civil cover sheet. Reply 4. Indeed, the "No" box is clearly marked with 24 an "X." Second, even if the "jury demand box" had been checked, as a general matter, checking 25 the "jury demand box is insufficient to meet the requirements of rule 38(b)." Wall v. Nat'l R.R. 26
Passenger Corp., 718 F.2d 906, 909 (9th Cir. 1983); see also Civ. L.R. 3-6(b) (marking civil cover 27 sheet insufficient to demand jury). Third, the Court notes that even though Plaintiff was 28 unrepresented when he filed his original complaint, he appears to have had counsel on May 16, 38(b), Plaintiff's jury demand was due no later than May, 20, 2011. At the earliest, Plaintiff did not make his demand for a jury trial until the joint case management statement on September 7, 13 Plaintiff seeks to file an amended complaint that raises the same legal claims arising under the 15 The Court is not persuaded by Plaintiff's argument that checking the "jury demand" box on 2011, four days before his jury demand was due under Federal Rule of Civil Procedure 38(b). 2
Debski Decl ¶ 2l; Westreich Decl. ¶ 2. Even if Plaintiff was unrepresented at the time his demand 3 was due, however, the Court would nevertheless have found Plaintiff to have waived his right to a 4 jury trial. See Zivcovic, 302 F.3d at 1087 (pro se Plaintiff's unawareness of Rule 38's requirements 5 insufficient to warrant relief under Rule 39); see also Kulas v. Flores, 255 F.3d 780 (9th Cir. 2001) Rule of Civil Procedure 38. 8 (same). Thus, the Court finds that Plaintiff has waived his right to a jury trial pursuant to Federal 7
The Court finds no reason to grant relief from this waiver and order a jury trial pursuant to Federal Rule of Civil Procedure 39(b). As an initial matter, the Court notes that Plaintiff is 10 explicitly not relying on Federal Rule of Civil Procedure 39. Mot. 4; Reply 3. Even if the Court 11 were to construe Plaintiff's motion as a motion for a jury trial pursuant to Rule 39, the Court is bound by the Ninth Circuit's precedent constraining its discretion to "grant relief when the failure 13 to make a timely demand results from an oversight or inadvertence." Zivkovic v. S. California 14
Court finds none besides inadvertance, for his failure to comply with Federal Rule of Civil 16
The case Plaintiff cites in his motion, Mathison v. Hillhaven Corp., 895 F.2d 1417, 1990 WL 11865, at *2 (9th Cir. 1990), is unpublished and inapposite. In Mathison, defendant originally 19 demanded a jury trial but the parties later stipulated to a non-jury trial. Id. at *2. Two days after 20 the trial commenced, the district court ordered a mistrial and transferred the case to another judge. 21
Civil Procedure 39(b). Id. Defendant appealed the trial court's decision to grant Plaintiff a jury 23 trial, and the Ninth Circuit held that the district court did not abuse its discretion in releasing Plaintiff from the stipulation because enforcing the stipulation "might have resulted in 'manifest 25 injustice,'" id. at *6, and Defendant was not prejudiced given that Defendant had originally 26 demanded the jury trial. Id. at *7. The Court finds that here, by contrast, Defendant did not 27 stipulate to a jury trial "either orally or in writing," cf. Solis, 514 F.3d at 955, merely by failing to 28 object to Plaintiff's last minute inclusion of two references to a jury trial in the September 7, 2011 Edison Co., 302 F.3d 1080, 1086-87 (9th Cir. 2002). Plaintiff has not cited any reasons, and the 15 Procedure 38. Accordingly, the Court must deny the request for a jury a trial. 17 Id. On retrial, the district court granted Plaintiff's motion for a jury trial under Federal Rule of 22 joint case management conference statement. See Suppl. Westreich Decl. ¶¶ 6, 8. Thus, even if 2 Mathison were binding, it would not apply here. 3
The Court cannot order a jury trial pursuant to Federal Rule of Civil Procedure 39(b).
Accordingly, Plaintiff's motion is GRANTED to the extent it is unopposed. Plaintiff's 6 request for a jury trial is DENIED. Plaintiff shall file his amended complaint within 21 days of this 7 Order, omitting any reference to a jury demand. The Court will strike the reference to a "Jury 8 Trial" in its September 14, 2011 case management order. 9 10
IT IS SO ORDERED.