Opinion
No. CV 07-8163-PCT-JAT.
July 8, 2008
ORDER
Pending before the Court are Defendant's Motion to Strike Plaintiff's Jury Demand and Plaintiff's Motion for Jury Trial. The parties have fully briefed these motions. For the following reasons, the Court will grant Defendant's motion and will deny Plaintiff's motion.
The oral argument scheduled for July 24, 2008 is vacated because it would not have aided the Court's decisional process. The parties have adequately briefed the issues raised by the motions in their memoranda of law. See, e.g., Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake at Las Vegas Investors Group, Inc. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991).
I. Background
This action was originally filed in Arizona state court. Defendant removed the action to federal court on December 18, 2007, and filed its Answer on December 27, 2007. After not filing a jury demand in state court, Plaintiff did not file a jury demand in federal court until May 2, 2008 — more than four months after Defendant filed its Answer, and more than two months after Plaintiff represented to this Court that he was considering filing a motion for a jury trial under Federal Rule of Civil Procedure 39(b).
II. Discussion
Because this case was removed from Arizona state court, the timeliness of Plaintiff's jury demand is governed by Federal Rule of Civil Procedure 81(c). Conceding that his jury demand was untimely under any other portion of Rule 81(c), Plaintiff argues that his demand was timely under that portion of the rule that provides: "If the state law did not require an express demand for a jury trial, a party need not make one after removal unless the court orders the parties to do so within a specified time." Plaintiff argues that this provision applies here because, although Arizona law does concededly require an express demand, it did not require him to make that demand before Defendant removed the case. Plaintiff misapprehends the narrow applicability of this provision.
As the Advisory Committee Note to the 1963 amendment to Rule 81(c) makes clear, the Rule 81(c) provision at issue only applies in the narrow instance where a party is "entitled to" a jury trial under the applicable state law "without making an express demand." In other words, if the applicable state law requires a party to file a jury demand to secure the right to trial by jury, then the Rule 81(c) provision is inapplicable, regardless of when the demand must be filed. See also Cascone v. Ortho Pharm. Corp., 702 F.2d 389, 391 (2d Cir. 1983) (stating that the exception only applies when "the state from which the case is removed acts on the presumption that the parties desire a jury unless they affirmatively indicate otherwise"); Ramey v. Gordon Trucking, Inc., 2007 WL 1576002, at *1 (D. Ariz. May 30, 2007) ("The Rule 81(c) exception . . . is very narrow in that it dispenses with the jury demand only when the case would have been automatically set for a jury trial under the forum state's law without a jury demand."). Under Arizona law, as conceded by Plaintiff, the right to a jury trial is waived unless a proper demand is made. See Ariz. R. Civ. P. 38(d). Thus, the Rule 81(c) exception is inapplicable to this case, and Plaintiff has waived his right to a jury trial as a matter of law. Accordingly, the Court will grant Defendant's motion to strike the jury demand.
Plaintiff next argues that despite his waiver of the right to a jury trial, the Court nevertheless retains the discretion to grant him a jury trial pursuant to Federal Rule of Civil Procedure 39(b). The Court disagrees. "In the Ninth Circuit, unlike in some other circuits, a district court's discretion under Rule 39(b) to permit an untimely jury demand `is narrow . . . and does not permit a court to grant relief when the failure to make a timely demand results from oversight or inadvertence.'" Ramey, 2007 WL 1576002 at *1 (quoting Lewis v. Time, Inc., 710 F.2d 549, 556-57 (9th Cir. 1983)). Plaintiff does not even attempt to argue that his failure to file a timely jury demand resulted from anything other than oversight and inadvertence. Instead, Plaintiff argues at length that Lewis was wrongly decided and that courts have the discretion under Rule 39(b) to grant a jury trial even when the untimely jury demand was the result of oversight or inadvertence. Although the Court finds these arguments persuasive, this Court does not have the authority to overrule Lewis and is bound by this Ninth Circuit precedent. Plaintiff has preserved these arguments for any future appeal.
Accordingly,
IT IS ORDERED that Defendant's Motion to Strike Plaintiff's Jury Demand (Doc. # 21) is GRANTED;
IT IS FURTHER ORDERED that Plaintiff's Motion for Jury Trial (Doc. # 22) is DENIED.