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Shepard v. Borum

United States District Court, Eastern District of California
Nov 28, 2022
1:18-cv-00277-ADA-HBK (E.D. Cal. Nov. 28, 2022)

Opinion

1:18-cv-00277-ADA-HBK

11-28-2022

LAMONT SHEPARD, Plaintiff, v. M. BORUM and J. ACEBEDO, Defendants.


ORDER DENYING PLAINTIFF'S MOTIONS DEMANDING A BENCH TRIAL

(DOC. NOS. 113, 114)

Helena M. Barch-Kuchta, United States Magistrate Judge

Plaintiff filed two separate motions in which he states he waives his right to a jury trial and demands a bench jury. (Doc. Nos. 113, 114). In his first motion, Plaintiff requests a bench trial pursuant to Article VII of California's constitution. (Doc. No. 113 at 1). In his second motion, Plaintiff requests a bench trial pursuant to the United States Constitution. (Doc. No. 114).

Although Defendants have twenty-one (21) days to respond to Plaintiff motions, Local Rule 230(1), given Defendants earlier demand for a jury trial the Court does not find a response from Defendants necessary to rule on the pending motions. (Doc. Nos. 108 at 2, 19 at 5).

Under federal law, “[t]he right of trial by jury.. .is preserved to the parties inviolate.” Fed.R.Civ.P. 38(a). “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 A proper demand may be withdrawn only if the parties consent.” Rule 38(d). Unless all parties consent, a jury trial demand cannot be withdrawn. United States SEC v. Jensen, 853 F.3d 1100, 1107 (9th Cir. 2016).

As a court of federal jurisdiction, the state constitution of California has no bearing on this Court. Further, Defendants have not withdrawn their earlier demands to a jury trial. (See Defendants' Answer at Doc. No. 19 at 5; Defendants' Pretrial Statement at 108 at 2). Further, at the recent telephonic trial confirmation hearing held on October 11, 2022, Plaintiff stated his intent to waive his right to a jury trial and proceed to a bench trial, but Defendants unequivocally stated that they will not waive their demand to a jury trial.

Accordingly, it is ORDERED:

Plaintiff's motions demanding a bench trial (Doc. Nos. 113, 114) are DENIED. Unless Defendants consent to withdraw their earlier demands, this case will proceed to a jury trial.


Summaries of

Shepard v. Borum

United States District Court, Eastern District of California
Nov 28, 2022
1:18-cv-00277-ADA-HBK (E.D. Cal. Nov. 28, 2022)
Case details for

Shepard v. Borum

Case Details

Full title:LAMONT SHEPARD, Plaintiff, v. M. BORUM and J. ACEBEDO, Defendants.

Court:United States District Court, Eastern District of California

Date published: Nov 28, 2022

Citations

1:18-cv-00277-ADA-HBK (E.D. Cal. Nov. 28, 2022)