Plaintiff Elizabeth Ortega brought this action against defendants Home Depot U.S.A., Inc. ("Home Depot") and Fady Jabeila, arising from defendants' allegedly discriminatory employment practices. Presently before the court is Home Depot's motion to strike plaintiff's untimely demand for jury trial.
I. Factual and Procedural Background On April 13, 2011, plaintiff brought this action alleging sexual discrimination, breach of contract, and unlawful termination in state court. (Choi Decl. Ex. A (Docket No. 2).) The Complaint does not demand a jury trial. (Id.) Home Depot answered the Complaint on June 16, 2011. (Id. Ex. F.) Plaintiff dismissed defendant Jabeila on July 15, 2011. (Id. Ex. I.)
On July 22, 2011, Home Depot removed this action to federal court based on diversity jurisdiction. (Docket No. 3.)
On October 31, 2011, the parties submitted a Joint Rule 26(f) Status Report. (Docket No. 6.) Plaintiff did not request a jury trial in the Joint Status Report. On November 3, 2011, the court issued a Status Order setting a bench trial for May 21, 2013. (Status Order at 4:15-17 (Docket No. 7).)
On November 8, 2011, plaintiff filed her demand for a jury trial pursuant to Federal Rule of Civil Procedure 81(c)(3)(A). (Docket No. 8.) Home Depot now requests that the court strike plaintiff's jury demand on the ground that it is untimely. (Mot. to Strike (Docket No. 9).)
A. Plaintiff's Jury Demand is Untimely Pursuant to Federal Rule of Civil Procedure 38(b), a party may demand a jury trial on any issue triable by a jury by serving the other parties with a written demand "no later than fourteen days after the last pleading directed to the issue is served." Fed. R. Civ. P. 38(b).*fn1 A party waives the right to a jury trial under Rule 38 unless the demand is properly served and filed. See id.; Solis v. Cnty. of Los Angeles, 514 F.3d 946, 953-54 (9th Cir. 2008).
When a case is removed from state court, Rule 81 states that "[a] party who, before removal, expressly demanded a jury trial in accordance with state law need not renew the demand after removal." Fed. R. Civ. P. 81(c)(3)(A). Rule 81 also provides that, if the initial pleadings served and filed at the time of removal do not include a jury demand, a party desiring a jury trial must file a demand within fourteen days after being served with the notice of removal. Fed. R. Civ. P. 81(c)(3)(B)(ii).
Plaintiff did not demand a jury trial in the Complaint that she filed in state court, nor did she file a demand within fourteen days after being served with notice of removal. Instead, plaintiff waited more than three months before filing her untimely demand for a jury trial.
Plaintiff argues that her demand for jury trial was timely under Rule 81(c), which states that "[i]f 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." Fed. R. Civ. P. 81(c)(3)(A). Plaintiff claims that demand for a jury trial was not required until the district court issued its status order because California does not require an express demand for a jury trial and there was no state law demand requirement prior to removal of plaintiff's suit.
Plaintiff cites Cascone v. Ortho Pharmaceutical Corp., 702 F.2d 389 (2d Cir. 1983), for the proposition that "where state law does not require the parties to expressly claim trial by jury, the state from which the case is removed acts on presumption that the parties desire a jury unless they affirmatively indicate otherwise." (Resp. to Def.'s Mot. to Strike at 2:19-21.) While the court does not disagree with this characterization of the holding in Cascone, plaintiff fails to offer any authority to support her argument that California state civil procedure does not require an express demand to preserve the right to a jury trial. The Ninth Circuit, however, has held that California is an express demand state. Lewis v. Time Inc., 710 F.2d 549, 556 (9th Cir. 1983) ("Under California law, a litigant waives trial by jury by, inter alia, failing to 'announce that one is required' when the trial is set. We understand that to mean an 'express demand' is required." (quoting Cal. Civ. Proc. Code § 631)) overruled on other grounds by Unelko Corp. v. Rooney, 912 F.2d 1049, 1052-53 (9th Cir. 1990).*fn2 Thus, in California, jury demand is required under Rule 81 within fourteen days of removal. As plaintiff failed to demand a jury trial within fourteen days of removal, her jury demand is untimely.
Plaintiff also argues that her jury demand was timely because, prior to her case being removed, plaintiff was not required to request a jury trial. (Resp. to Def.'s Mot. to Strike at 2:24-28.) Under California Code of Civil Procedure section 631, a party's jury demand is not required until the case is set for trial. Cal. Code Civ. Proc. § 631(d)(4). Prior to removal, the present case had not been set for trial. (Resp. to Def.'s Mot. to Strike at 2:24-28.) Plaintiff therefore argues that she was not obligated to affirmatively demand a jury trial under Rule 81(c).
"Rule 81(c) precludes the requirement of a jury demand in federal court 'only where the case automatically would have been set for jury trial in the court from which it is removed, without the necessity for any action on the part of the party desiring jury trial.'" Wave House Belmont Park, 244 F.R.D. at 612 (quoting Bonney v. Canadian Nat'l Ry. Co., 100 F.R.D. 388, 392 (D. Me. 1966)). "That description does not fit California's statute, where a party must affirmatively demand a jury trial when the matter is set for trial or else waive the right to a jury trial." Id. In light of the affirmative action required to obtain a jury trial under California law, the court in Wave House Belmont Park rejected plaintiff's argument that it did not need to demand a jury trial under Rule 81(c) because it had not yet waived its right to a jury trial in state court. Id. This finding is consistent with Ninth Circuit precedent that ...