Published in Law360 (March 25, 2019) You are in federal court facing a motion to compel arbitration, and you reach for your well-worn copy of the Federal Rules of Civil Procedure in order to confirm how to go about your next step -- demanding a jury trial for example. Better reach for your perhaps less well-worn copy of the Federal Arbitration Act (“FAA”) first. Fed. R. Civ. P. 81 tells you that procedures set out in the FAA supersede the corresponding Federal Rules. And then the courts weigh in and it gets complicated. Regarding a demand for a jury trial, for example, on the one hand, (a) Fed. R. Civ. P. 38(b) tells you that you must “serv[e] the other parties with a written demand -- which may be included in a pleading -- no later than 14 days after the last pleading directed to the issuer is served” and then file that demand in accordance with Fed. R. Civ. P. 5(d); but (b) FAA §4 (9 U.S.C. §4) says that “where ... an issue [a material fact in dispute] is raised, the party alleged to be in default [of an alleged arbitration agreement] may ... on or before the return date of the notice of application [to compel arbitration], demand a jury trial of such issue....” What to do? Fed. R. Civ. P. 81 provides that “These Rules [i.e., the Federal Rules of Civil Procedure], to the extent applicable, govern proceedings under the following laws, except as these laws provide other procedures: ... (B) 9 U.S.C., relating to arbitration....” Fed. R. Civ. P. 81(a)(6)(B) (emphasis added). Thus, the Federal Rules apply only where the FAA is silent.[1] Clearly, then, FAA §4 determines the proper timing o

Stanley markets in the United States five different versions of the Fubar, all based upon the Fubar design in Stanley’s U.S. Patent No. D562,101 (“the ’101 patent”). Almost five months after Richardson brought suit against Stanley, Richardson requested a jury trial, which Stanley moved to strike as untimely under Fed. R. Civ. P. 38(b). In response, Richardson requested that a jury trial be granted under Rule 39(b).

Consequently, Judge M. Smith would have held that while Produce Pay could sue to recover its investment in contract or tort, it was not entitled to PACA’s protections.ROSS DRESS FOR LESS, INC. V. MAKARIOS-OREGON, LLCIn an issue of first impression, the Court holds that Federal Rules of Civil Procedure 38 and 39 do not entitle a litigant to rely on an opposing party’s jury trial waiver when the party asserting reliance has contractually waived its jury trial rights.Panel: Judges Tallman, Christen, and Block (E.D.N.Y.), with Judge Christen writing the opinion.

The court explained that it was not its “duty to scour the record in search of evidence,” id., and went on to explain why Master Hand’s arguments would fail as a matter of law regardless of the evidence. The appellees had moved for sanctions under Fed. R. Civ. P. 38, and Master Hand never replied. As a result, Master Hand not only lost its appeal, but will suffer the indignity of paying its opponents’ costs and attorneys’ fees for the appeal.View This Blog

In Ryan D. Burch v. P.J. Cheese, Inc., 861 F.3d 1338 (2017), the Eleventh Circuit held that a general jury demand in the plaintiff’s complaint was not enough to preserve his statutory right to a jury trial on questions of arbitrability. Specifically, the Court held that the FAA’s procedural requirements for demanding a jury trial on arbitrability trumped the normal requirements for a jury demand found in Federal Rule of Civil Procedure 38. While the case specifically concerns a jury demand, it also demonstrates that the FAA contains procedural requirements and that the Federal Rules only fill the gaps.

The Court first examines the competing timing requirements within which a party must demand a jury trial. Under FRCP 38, the party's written demand must be served "no later than 14 days after the last pleading directed to the issue is served," while under FAA §4, the party must make the jury demand "on or before the return date of the notice of application" or rely on the Court's authority to "specially call a jury." The Federal Rules of Civil Procedure do not preempt the FAA, and become applicable in a motion to compel proceeding only when the FAA is silent.

A few days later at the pretrial conference, Judge Real ordered a bench trial instead, emphasizing again that his decision was based on the SEC not having asked for a jury trial in the first place.The Ninth Circuit rejected this reasoning. Citing to Federal Rule of Civil Procedure 38, the panel found that Judge Real committed an error because subsection (d) clearly describes situations in which jury demands may be withdrawn: “only if the parties consent.” As the panel explained further, “other parties are ‘entitled to rely’ on the original demand, ‘and need not file their own demands.

Lutz filed her case in Arizona state court, and the school district removed the action to federal court. Lutz then had 10 days during which to demand a jury, which she failed to do until 11 months later. Notwithstanding her failure to comply with the requirements of F.R.C.P. 38(b), the district court allowed Lutz’s action to be tried to a jury. The Ninth Circuit reversed, holding that although Lutz’s complaint made reference to a jury’s awarding damages, it did not make a similar reference in connection with the determination of liability.

After the bench trial, the district court concluded that Tegal was entitled to a permanent injunction and attorney fees based on TEA’s willful infringement of the ‘223 patent. On appeal, TEA claimed that the district court had improperly denied it the right to a jury trial because (1) it had an independent right to a jury trial; (2) the district court had improperly focused only on the nature of the remedy—injunctive relief—as opposed to the nature of the action; and (3) the district court had violated Fed. R. Civ. P. 38(d) and 39(a). TEA also challenged the district court’s finding that the asserted claims were valid and enforceable and that it had committed willful infringement.