United States District Court, E.D. California
MAURICE J. CURTIS, Plaintiff,
BCI COCA-COLA ENTERPRISES BOTTLING COMPANIES, Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE JURY DEMAND
BARBARA A. McAULIFFE, District Judge.
Defendant BCI Coca-Cola Bottling Company of Los Angeles ("Defendant") moves the Court to strike Plaintiff Maurice J. Curtis' jury demand. (Doc. 13). The Court deemed the matter suitable for decision without oral argument pursuant to Local Rule 230(g), and vacated the hearing. Having considered the parties' respective arguments, and for the reasons discussed below, Defendant's Motion to Strike is GRANTED and Plaintiff's Jury Demand is STRICKEN. (Docs. 4, 13).
On October 10, 2013, Plaintiff filed his initial employment discrimination complaint in the Fresno County Superior Court, which did not contain a jury demand. Defendant filed and served its answer on November 26, 2013, and on the basis of diversity jurisdiction, subsequently filed and served its Notice of Removal of this action to federal court on November 27, 2013. (Doc. 1). On January 24, 2014, Plaintiff filed in the Fresno County Superior Court a check-box state court case management statement, which included a request for a jury trial in this matter. (Doc. 20-1), Exhibit B at pg. 8. Four days later, on January 28, 2014, Defendant filed a Notice of Removal with the Fresno County Superior Court clerk. (Doc. 20-1), Exhibit A at pg. 2. On February 12, 2014, Plaintiff filed a demand for a jury trial in this Court (Doc. 4), which Defendant claims is untimely. The issue was discussed briefly at the April 10, 2014 initial scheduling conference. At that time, Plaintiff represented to this Court that he properly made and preserved his right to a jury trial while this action was still pending in the state court. Defendant disagreed. The parties were instructed to file a motion if a resolution could not be reached. The instant Motion followed.
A. Legal Standard
Generally, when in federal court, a party may demand a jury trial by properly serving the other parties with a written demand no later than fourteen (14) days after the last pleading directed to the issue is served. Fed.R.Civ.P. 38(b). "[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 waiver' of the jury trial right." Lutz, 403 F.3d at 1064 ( quoting Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393 (1937)).
Federal Rule of Civil Procedure 81 governs jury demands in a removed action. Fed.R.Civ.P. 81(c)(3). Under Rule 81, "a party [is] entitled to a jury trial... if the party serves a demand within 14 days after" removal. Id. "[F]ailure to make a timely jury trial request in federal court... ordinarily mean[s] that [the party] waived [the] right to trial by jury." Lutz, 403 F.3d at 1063 (citation omitted). "However, Rule 81(c) provides two possible avenues around waiver in removal cases": (1) if the party "made a proper jury request under state law before the case was removed, " id. (emphasis in original) (citing Fed R. Civ. P. 81(c)); or (2) "if [the] state complaint already contained a jury demand that would have satisfied Rule 38(b), " id. at 1064 (citations omitted).
Additionally, the court in its discretion "may, on motion, order a trial by a jury of any or all issues." Fed.R.Civ.P. 39(b); see also Lewis v. Time, Inc., 710 F.2d 549, 556 (9th Cir. 1983) ("The district court, in its discretion, may order a jury trial on a motion by a party who has not filed a timely demand for one." (citation omitted)), overruled on other grounds by Unelko Corp. v. Rooney, 912 F.2d 1049, 1052-53 (9th Cir. 1990). Notwithstanding the court's discretion, "[a]n untimely request for a jury trial must be denied unless some cause beyond mere inadvertence is shown." Pac. Fisheries Corp. v. H.I.H. Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001) (citations omitted); see also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1086 (9th Cir. 2002) (denying pro se's untimely jury demand). Absent such a showing, granting an untimely jury demand constitutes an abuse of discretion. Lutz, 403 F.3d at 1065 n.4 (citation omitted).
B. The Parties' Positions
Defendant moves to strike Plaintiff's jury demand on the grounds that Plaintiff's waived his right to a jury trial by failing to file his jury demand within fourteen (14) days of Defendant's November 27, 2013, notice of removal. Defendant concedes that it did not file a notice of removal with the clerk of the state court as required by subsection 1446(d) until January 28, 2014. However, Defendant contends that removal was effective upon filing the petition in federal court on November 27, 2013, and therefore, both Plaintiff's February 12, 2014 demand for a jury trial filed in federal court and Plaintiff's January 24, 2014 request for a jury trial in state court were untimely.
Plaintiff responds that he is entitled to a jury trial because his jury demand was timely made in state court on January 24, 2014, prior to Defendant's effective removal. According to Plaintiff, because his jury demand was filed in state court prior to Defendant's January 28, 2014 notice to state court, Plaintiff was not required to renew his jury demand in this Court. See Fed.R.Civ.P. 81(c)(3)(A). Plaintiff concedes that he did not demand a jury trial in the initial Complaint that he filed in state court, nor did he file a jury demand in this court within fourteen days after being served with notice of removal. Instead, Plaintiff argues that his state-filed January 24, 2014, demand for a jury trial was timely under the Rule 81 exception. Rule 81(c)(3)(A) excuses a party from Rule 81(c)'s fourteen-day requirement if the party "made a proper jury request under state law before the case was removed." Lutz, 403 F.3d at 1063 (emphasis in original) (citing Fed.R.Civ.P. 81(c)).
C. Timeliness of Plaintiff's Jury Demand
Defendant filed its Notice of Removal of this action to federal court on November 27, 2013. (Doc. 1). On that same date, Defendant served its Notice of Removal by mail on ...