United States District Court, N.D. California
ORDER GRANTING MOTION TO STRIKE JURY DEMAND
RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE
motion of plaintiff Consumer Financial Protection Bureau
(“CFPB”) to strike as untimely the jury demand
first presented by defendants in their amended answer (and
restated in subsequent amendments) has been submitted without
oral argument, pursuant to Civil Local Rule 7-1(b). The
motion will be granted.
is no dispute that defendants' original answer in this
action, filed July13, 2015, contained no jury demand.
Pursuant to Rule 38 of the Federal Rules of Civil Procedure,
defendants had up to fourteen days after that answer was
filed to serve and file a jury demand- i.e., until
July 27, 2015. Defendants did not do so.
contend that the jury demand contained in their amended
answer-filed on August 10, 2015-is nevertheless timely given
(1) their right under Rule 15 to amend as a matter of course
once within twenty-one days, and (2) the fact that CFPB
encouraged them to file such an amendment and the parties
then stipulated to extend the time for doing so. This
argument is a non sequitur. There is no doubt that
defendants were permitted to amend their answer as a matter
of course anytime up to twenty-one days after filing it.
That, however, does not somehow change or extend the fact
that they had only fourteen days after filing the
original answer within which to make the jury
does the fact that CFPB allegedly encouraged an amendment,
nor the fact the parties stipulated to extend time to amend,
change the analysis. Even assuming that parties can stipulate
to extend the deadline for making a jury demand, nothing in
the stipulation here mentioned any jury demand. Moreover, by
the time the stipulation was filed on July 30, 2015,
defendants' deadline for demanding a jury had already
Circuit law is well-settled that the court has discretion to
relieve a party from its failure to make a timely jury demand
only in very limited circumstances. The court in Pacific
Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239
F.3d 1000 (9th Cir. 2001) surveyed the precedents and
summarized the rule:
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 . . . . That discretion is narrow, however, 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, 556-57 (9th
Cir.1983); see also Chandler Supply Co. v. GAF
Corp., 650 F.2d 983, 987-88 (9th Cir.1980). An untimely
request for a jury trial must be denied unless some cause
beyond mere inadvertence is shown. See Mardesich v.
Marciel, 538 F.2d 848, 849 (9th Cir. 1976); see also
Russ v. Standard Ins. Co., 120 F.3d 988, 989-90 (9th
Cir. 1997) (holding that the district court could not employ
another rule to circumvent this circuit's prohibition on
granting untimely jury demands due to inadvertence);
Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d
68, 71 (9th Cir. 1996) (denying untimely jury demand when due
to counsel's oversight and inadvertence); Wall v.
Nat'l R.R. Passenger Corp., 718 F.2d 906, 910 (9th
Cir. 1983) (holding district court's denial of untimely
jury demand not an abuse of discretion where counsel's
inadvertence was the only reason shown).
Pacific Fisheries, 239 F.3d at 1002 (some citations
and footnote omitted).
defendants have offered no evidence, or even argument, that
the failure to make a timely demand for a jury could
reasonably be characterized as anything other than oversight
or inadvertence. Accordingly, there is no basis for the Court
to exercise discretion to relieve defendants from their
waiver. See also, Lutz, supra, 403
F.3d at 1065 n.4 (“In any event, had the district judge
ordered a jury trial under Rule 39(b), he would have abused
also argue that CFPB should be estopped from challenging the
timeliness of the jury demand, or that it has waived the
timeliness objection, given that it did not raise the issue
until trial was imminent. Defendants point to the fact that
CFPB vigorously litigated other aspects of defendants'
answers and counterclaims, and signed off on joint case
management statements referencing defendants' jury
demand, without ever raising the timeliness issue. Defendants
also argue a handful of district court opinions, primarily
from other circuits, and one Fifth Circuit decision show a
party's delay in moving to strike a jury demand can
sometimes justify denying relief. Defendants have not
established, however, that the CFPB's delay here calls
for its motion to be denied under any controlling precedent.
defendants also effectively concede they have no jury right
on their counterclaims against the CFPB, a governmental
agency. Although they contend the jury should hear those
claims in an advisory capacity, their argument presupposes
they have not waived a jury on the claims against them. There
is certainly no basis to empanel a jury solely to act in an
advisory capacity on the counterclaims.
the CFPB's motion to strike defendants' jury demand
is granted. This matter remains set for trial-bench
trial-commencing on April 24, 2017, with a pretrial
conference to be held on April 7, 2017 at 10:00 a.m.