Opinion
No. C 08-3759 SI.
June 16, 2009
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE JURY DEMAND
Defendant Comcast Cable Communications Management, LLC has moved to strike plaintiff Mastec North America, Inc.'s demand for jury trial. The motion is currently scheduled for a hearing on June 19, 2009. Pursuant to Civil Local Rule 7-1(b), the Court determines that the motion is appropriate for resolution without oral argument, and VACATES the hearing. As set forth below, the Court GRANTS defendant's motion.
BACKGROUND
This case was filed in the California Superior Court for the County of Alameda on July 3, 2008. The complaint did not include a jury demand. See Ntc. of Removal, Ex. A, Dkt. No. 1. Defendant filed its answer on August 5, 2008, and removed the action to federal court on August 6, 2008. Id. Ex. B. On November 7, 2008, plaintiff filed a demand for a jury trial. Defendant moves to strike plaintiff's jury demand as untimely.
DISCUSSION
Defendant contends that plaintiff's November 7, 2008 demand for a jury trial was untimely and that plaintiff has therefore waived its right to a jury trial. 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 ten days after the last pleading directed to the issue is served. Fed.R.Civ.P. 38(b). When a case has been removed to federal court, and if all relevant pleadings had been served prior to removal, a jury demand must be made by a party within ten days of either filing or being served with a notice of removal. Fed.R.Civ.P. 81(c)(3)(B). Failure to make a timely jury trial request in federal court ordinarily equates to a waiver of the right to trial by jury. See Lutz v. Glendale Union High School, 403 F.3d 1061, 1063-64 (9th Cir. 2005) (citing Fed.R.Civ.P. 38(d)).Rule 81(c)(3)(A) recognizes an exception to the ten day limitation, stating: "[a] party, who, before removal, expressly demanded a jury trial in accordance with state law need not renew the demand after removal. 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." Fed.R.Civ.P. 81(c)(3)(A). However, the Ninth Circuit has held that because California is a state where an "express demand" is required, the exception in Rule 81(c)(3)(A) does not apply to cases removed from a California court. See Lewis v. Time, Inc., 710 F.2d 549, 556 (9th Cir. 1983) (holding California requires an express demand, and "[t]herefore, F.R.Civ.P. 38(d), made applicable by Rule 81(c), required Lewis to file a demand "not later than 10 days after the service of the last pleading directed to such issue [to be tried.]").
It is undisputed that plaintiff did not make an express jury trial demand either before removal or within ten days of being served with the notice of removal. Nor does plaintiff dispute that California is a state in which an express demand for a jury trial is required. See Pl. Opp. at 5, citing Cal. Civ. Proc. Code § 631(d)(4)-(6). Instead, and without citation to supporting authority, plaintiff argues that the Rule 81(c)(3)(A) exception applies here since under California law a plaintiff can make an express demand up until the time of trial. See Cal. Code Civ. Proc. § 631(d). Plaintiff argues that because California does not require an express jury demand at the time of removal, a plaintiff is free to make a jury demand at any time after removal. Plaintiff's argument is foreclosed by Lewis, in which the Ninth Circuit recognized that under California law a litigant did not waive his right to a jury trial until trial was set. Lewis, 710 F.2d at 556. To determine whether the Rule 81(c)(3)(A) exception applies, the key inquiry is whether the state from which the case was removed requires an express demand at any time. Id.; see also Ward v. Sunrise Assisted Living Invs. Inc., No. 05-3165, 2006 WL 37030, at *1 (N.D. Cal. Jan. 5, 2006) (citing Lewis, 710 F.2d at 556).
Plaintiff also argues that Lewis might have been decided differently in light of a 2002 amendment to the California Code of Civil Procedure. Again, plaintiff cites no authority in support of this assertion, and no court has acknowledged any effect of the 2002 amendment on the application of Lewis and the ten-day deadline. See Wave House Belmont Park, LLC v. Travelers Prop. Cas. Co. of America, 244 F.R.D. 608, 610 (S.D. Cal. 2007); Jimena v. UBS AG Bank, Inc., No. 07-367, 2008 WL 2951213, at *2 (E.D. Cal. July 28, 2008); Marcotte v. Allstate Idem. Co., No. 05-5160, 2006 WL 870692, at *2 (N.D. Cal Apr. 3, 2006); Ward, 2006 WL 37030, at *1. In sum, because there is still no dispute that California is a state where an express jury demand is required, Lewis is still the controlling law on this issue and plaintiff's jury demand is untimely.
In 2002, California added the following subsection to its jury trial demand statute: "The right to a trial by jury as declared by Section 16 of Article 1 of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (d)." Cal. Civ. Proc. Code § 631(a) (West 2009).
Had plaintiff moved for relief under Rule 39(b) on this particular issue, the Court would note that the Ninth Circuit has held that "an untimely jury demand due to legal mistake does not broaden the district court's narrow discretion to grant the demand" under Rule 39(b). See Pacific Fisheries Corp. v. HIH Cas. Gen. Ins. Ltd., 239 F.3d 1000, 1003 (9th Cir. 2001).