United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Opposition to Plaintiffs Request for a Jury Trial (ECF No. 90) filed by Defendants.
On September 22, 2011, Plaintiff, proceeding pro se, initiated this action by filing a Complaint in San Diego County Superior Court. (ECF No.1 at 6). The Complaint alleges in its entirety:
1. CIVIL RIGHTS: San Diego Police arrested me at [the] San Diego Big Balloon Parade on Thursday December 30, 2010 while I was protesting'" against [the] CIA under the live reporter TV station booth. Officer Lopez and Valaez squeezed my arms in my back and dragged me out of the TV booth. I was handcuffed, stuffed in a patrol car, questioned, evaluated, and then handed over to a mental-health BHC of Scripps Mercy hospital. This act violated badly FIRST AMENDMENT (Freedom of Speech).
2. DEFAMATION: Officer Michael Moran and K. Albans lied to medical staff of Scripps Mercy that I was a mental ill, had malnourished appearance' and I yelled at women and children at the parade. So they put me in mental-health jail under Section 5150. This damaged my reputation so much. I had two master degrees in Computer Science and Physics. I might not get any jobs in future because I had been slandered as a mental ill person In Police record. This can cost me a fortune.
3. FRAUD: San Diego Police arrested me under Section 5150 is a fraud: false arrest. To thousands of people at the parade and at the hospital, I was a bad guy who had been arrested by police. In short, not only... had [I]... suffered during police arrest and two days in mental jail, but I also had... suffered loss of my reputation and loss of earning capacity for the rest of my life.
Id. at 6-7.
On November 7, 2011, Defendants removed the action to this Court on the basis of federal question jurisdiction. (ECF No.1). On November 14, 2011, Defendants San Diego Police Department, McFalls, Lopez, Valdez, and Moran filed an Answer. (ECF No.2).
On November 22, 2011, Defendant Alban filed a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No.6). On December 12, 2011, Plaintiff filed an opposition to the motion to dismiss. (ECF No. 13). On March 14, 2012, the Court granted the motion to dismiss and dismissed the Complaint as to Defendant Alban for failure to comply with the applicable pleading standards. (ECF No. 22).
On December 19, 2012, all remaining Defendants filed a motion for summary judgment. (ECF No. 28). On August 15, 2013, the Court issued an Order granting in part and denying in part the motion for summary judgment. (ECF No.47). The motion for summary judgment was denied as to the following claims: the First Amendment claim against Lopez and Valdez; the Fourth Amendment excessive force claim against Lopez and Valdez; the Fourth Amendment detention without probable cause claim against Lopez and Valdez; and the state law false arrest claim against Lopez, Valdez and the San Diego Police Department. Id.
On April 27, 2014, Plaintiff filed the First Amended Complaint ("FAC") with jury demand. (ECF No. 69). The First Amended Complaint asserts the following claims for relief: (1) violation of Plaintiffs First Amendment rights, free speech, against Defendants Cesena, Lopez and Valdez; (2) violation of Plaintiffs Fourth Amendment rights, excessive force, against Defendants Lopez and Valdez; (3) violation of Plaintiffs Fourth Amendment rights, false arrest, against Defendants Lopez, Valdez and Alban; (4) violation of California law, false arrest, against Defendants Lopez, Valdez, San Diego Police Department and Alban; (5) violation of California Civil Code section 52.1 against Defendants Lopez, Valdez, San Diego Police Department and Alban; (6) negligence, California Government Code section 820, against Defendants Lopez, Valdez, San Diego Police Department and Alban; (7) battery, California Government Code section 820, against Defendants Lopez, Valdez, San Diego Police Department and Alban.
On May 12, 2014, Defendants Cessena, Lopez, San Diego Police Department, and Valdez filed a motion to dismiss First Amended Complaint. (ECF No. 71). On May 19, 2014, Defendant Albans filed a motion to dismiss for lack of jurisdiction. (ECF No. 72). On June 30, 2014, the Court issued an Order granting the unopposed motions to dismiss the First Amended Complaint. (ECF No. 75). The Order stated that "[t]he sole remaining claims are causes of action one through three of the First Amended Complaint against Lopez and Valdez." ld. at 1. On July 14, 2014, Defendants Lopez and Valdez filed an Answer. (ECF No. 76).
On April 15, 2015, Defendants filed the Opposition to Plaintiff's Request for a Jury Trial. (ECF No. 90). Defendants contend that Rule 38(b) requires a party to serve and file his jury demand no later than fourteen days after service of the last pleading directed to an issue, and noncompliance constitutes a waiver of a jury trial. Defendants contend that the last pleading directed to the remaining issues before the Court is Defendants' Answer filed and served on November 14, 2011, but Plaintiff did not demand a jury under Rule 38(b) until filing the First Amended Complaint on April 27, 2014, more than two years later. Defendants contend that Plaintiff's First Amended Complaint did not revive his right to a jury trial. Defendants further contend that Rule ...