The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Defendants James and Sandra Molen ("defendants") are proceeding without counsel in this action.*fn1 Defendants have filed two motions: a "Notice of Motion and Motion And Demand For Jury Trial" (Dkt. No. 81), and a "Notice of Motion And Motion For Jury Trial And Demand For Jury Trial" (Dkt. No. 85).*fn2 Both motions seek relief from defendants' admittedly untimely jury demand, and both motions request a trial by jury. Plaintiff, the United States of America ("plaintiff"), filed an opposition to the motions, as well as its own "Counter-Motion To Strike Jury Trial Demand." (Oppo., Dkt. No. 89.)
Because oral argument would not materially aid the resolution of the pending motions, on August 22, 2011, these matters were previously submitted on the briefs and record without a hearing. (Dkt. No. 95 at 2) (citing Fed. R. Civ. P. 78(b); E.D. Local Rule 230(g) (". . . the motion may be submitted upon the record and briefs on file . . . if the Court so orders, subject to the power of the Court to reopen the matter for further briefs or oral arguments or both.").) For the reasons described below, the undersigned denies defendants' motions.
Plaintiff has not demanded a jury trial in this case. On November 15, 2010, defendants filed an answer to the complaint and did not demand a jury trial at that time. (Answer, Dkt. No. 4.) However, in a Joint Scheduling Report filed on May 26, 2011, in anticipation of a scheduling conference, defendants stated an intention to file a "Motion for a Jury Trial." (Dkt. No. 68 at 4.) In response, the undersigned expressly directed defendants to Federal Rule of Civil Procedure 38(b)-(d) and 39(b). (Dkt. No. 76 at 7-8.) The undersigned also informed defendants that, 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); Beckham v. Safeco Ins. Co. of Am., 691 F.2d 898, 905 (9th Cir. 1982). Typically, jury demands made outside this 14-day period are deemed to be waived. Fed. R. Civ. P. 38(d). 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. Fed. R. Civ. P. 7(a). A jury demand must be made in writing and must be filed with the clerk of the court. Fed. R. Civ. P. 38(b) (2). Further, relief from an untimely jury demand must be sought by motion pursuant to Federal Rule of Civil Procedure 39(b). A court's discretion under Rule 39(a)(2) "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." Lewis v. Time Inc., 710 F.2d 549, 556 (9th Cir. 1983) abrogated on other grounds as recognized in Unelko Corp. v. Rooney, 912 F.2d 1049, 1052-53 (9th Cir. 1990); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1086-1087 (9th Cir. 2002). (Dkt. No. 76 at 7-8.) The undersigned also expressly informed defendants that their passing reference to an "intention" to file a motion requesting a jury trial was not itself a sufficient motion, and that "[b]efore filing any such motion, defendants should review these relevant authorities and make a good faith determination as to whether they permit defendant's intended motion." (Id.)
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, 691 F.2d at 905. 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. Fed. R. Civ. P. 7(a). A jury demand must be made in writing and must be filed with the clerk of the court. Fed. R. Civ. P. 38(b)(2).
Federal Rules of Civil Procedure 38 ("Rule 38") and 39 ("Rule 39") govern demands for jury trials and requests for relief for failing to timely make such demands. Rule 38 provides, in its entirety, (a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution - or as provided by a federal statute - is preserved to the parties inviolate.
(b) 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 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d).
(c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may - within 14 days after being served with the demand or within a shorter time ordered by the court - serve a demand for a jury trial on any other or all factual issues triable by jury.
(d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.
(e) Admiralty and Maritime Claims. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).
Fed. R. Civ. P. 38 (emphasis added). In other words, Rule 38 provides that a party may demand a jury trial on "any issue triable of right" by serving the other parties with a written demand "no later than 14 days after the last pleading directed to the issue is served." Fed. R. Civ. P. 38(b). A party waives a jury trial, however, "unless its demand is properly served and filed." Fed. R. Civ. P. 38(d); see also Solis v. Los Angeles, 514 F.3d 946, 953--54 (9th Cir. 2008). Rule 39 provides, in its entirety,
(a) When a Demand Is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all ...