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Gonzalez v. Target Corp.

United States District Court, E.D. California

June 5, 2014

ROBERT M. GONZALEZ, , Plaintiffs,


KIMBERLY J. MUELLER, District Judge.

Target Corporation ("defendant") moves to strike plaintiffs' jury demand. Def.'s Mot. Strike Pls.' Jury Demand ("Mot.") at 1, ECF No. 18-1. The court heard argument on April 25, 2014, with Ilija Cvetich appearing for plaintiffs and Anthony J. Musante appearing for defendant. For the reasons below, the court construes the motion to strike under Federal Rule of Civil Procedure 12(f) as a motion to strike under Rule 39(a)(2) and GRANTS the motion.


Plaintiffs, former employees of defendant, allege various employment claims. Compl. ¶¶ 32-77, ECF No. 2-1. They filed suit in California Superior Court, Yolo County on June 21, 2013, id. at 13, and defendant answered on August 2, 2013, Notice of Removal, Ex. B, ECF No. 2-2. On the basis of diversity jurisdiction, defendant properly removed on August 5, 2013. Order Denying Pls.' Mot. Remand at 1-2, ECF No. 11.

In anticipation of the January 9, 2014 scheduling conference, the parties filed a joint status report on December 6, 2013. Joint Status Report at 6, ECF No. 13. At the conference, the court directed the parties to brief whether plaintiffs had waived the right to a jury trial and to calendar the matter for hearing no later than March 28, 2014. Status (Pretrial Scheduling) Order at 4, ECF No. 15. Defendant filed the instant motion on March 17, 2014, Mot. at 7, plaintiffs opposed on April 10, 2014, Pls.' Opp'n to Mot. ("Opp'n") at 5, ECF No. 19, and defendant replied on April 18, 2014, Def.'s Reply to Opp'n ("Reply") at 6, ECF No. 20.


Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." However, "Rule 12(f) does not authorize district courts to strike claims... precluded as a matter of law" because such claims do not fall within one "of the five categories cover[ed]" by Rule 12(f). Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 974-75 (9th Cir. 2010). To "read Rule 12(f) in a manner that allow[s] litigants to use it as a means to dismiss some or all of a pleading... would... creat[e] redundancies within the Federal Rules of Civil Procedure[] because a Rule 12(b)(6) motion... already serves such a purpose." Id. at 974. Further, to do so would result in "[a]pplying different standards of review[] when the... underlying action is the same" because Rule 12(f) motions are reviewed for abuse of discretion, while Rule 12(b)(6) motions are reviewed de novo. Id.

"Where a motion is in substance a Rule 12(b)(6) motion, but is incorrectly denominated as a Rule 12(f) motion, a court may convert the improperly designated Rule 12(f) motion into a Rule 12(b)(6) motion.'" Kelley v. Corr. Corp. of Am., 750 F.Supp.2d 1132, 1146 (E.D. Cal. 2010) (quoting Consumer Solutions R.E.O., LLC v. Hillery, 658 F.Supp.2d 1002, 1021 (N.D. Cal. 2009)). This allows the court to avoid different standards of review but remains consistent with "[t]he function of a 12(f) motion... to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.'" Consumer Solutions, 658 F.Supp.2d at 1020 (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)).

"[M]otions challenging the legitimacy of a jury demand are frequently identified as motions to strike.' Such motions, however, have only rarely been associated with Rule 12(f).... It is arguable that a motion to strike a jury demand is more appropriately made under Rule 39(a)(2)...." Brown v. Aetna Life Ins. Co., No. EP-13-CV-131-KC, 2013 WL 3442042, at *5 (W.D. Tex. July 8, 2013) (citations omitted). Under Rule 39(a)(2), "[w]hen a jury trial has been [properly] demanded..., the action must be designated on the docket as a jury action, " "unless... the court... finds... there is no federal right to a jury trial."


Defendant argues plaintiffs failed to timely demand a jury trial. Mot. at 1. It asserts that plaintiffs did not make a demand sufficient to meet the requirements under either state or federal law, if ever, until filing of the joint status report. Id. However, the report was not filed until the period authorized by Rule 38 had elapsed. Id. Thus, defendant concludes, plaintiffs have waived their right to a jury trial. Id.

Plaintiffs concede they did not "demand[] a jury trial... [until] the parties submitted their [joint status report]" and the original complaint, still operative, "does not explicitly demand a jury trial." Opp'n at 3. Nonetheless, they insist defendant was aware of plaintiffs' intention to try the case to a jury before the Rule 38 deadline passed, as evidenced by defendant's "acknowledge[ment] that this case would proceed by jury trial and presumabl[e] anticipat[ion of] Plaintiffs' jury demand." Id. (citing Notice of Removal ¶ 15). Because the demand requirement serves to provide notice, plaintiffs argue the court "has the discretion to grant Plaintiffs' jury demand and... should use its discretion... here." Id.

As a prefatory matter, because defendant asserts that the jury demand is untimely and thus precluded as a matter of law, the demand is not properly the subject of a motion to strike under Rule 12(f). See Whittlestone, Inc., 618 F.3d at 974-75. Additionally, although the court may construe a motion to strike as a motion to dismiss where the challenged claim is allegedly precluded as a matter of law, Kelley, 750 F.Supp.2d at 1146, a jury demand is not a claim or part thereof and, therefore, not properly the subject of a motion to dismiss under Rule 12(b)(6), see FED. R. CIV. P. 12(b).[1] Instead, a motion to strike a demand for jury trial is properly brought under Rule 39(a)(2), see Brown, 2013 WL 344042, at *5, and the court construes defendant's motion as such, cf. FED. R. CIV. P. 8(e) ("Pleadings must be construed so as to do justice.").

"[T]he purpose of a jury demand is to inform the court and opposing counsel that certain issues will be tried to a jury." Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1065 (9th Cir. 2005). At a minimum, courts "insist... that the jury demand be sufficiently clear to alert a careful reader that a jury trial is requested...." Id. at 1064. "A party waives a jury trial unless its demand is properly served and filed." FED. R. CIV. P. 38(d). However, the court "indulge[s] every reasonable presumption against ...

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