Brennan v. Stites

• Court: District Court, W.D. Washington
• Decided: August 30, 2021
• Docket: 2:17-cv-01928
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 RONALD BRENNAN JR., 9 Plaintiff, Case No. C17-1928-MLP 10 v. ORDER 11 ANTHONY ASTON, et al., 12 Defendants. 13

14 Plaintiff Ronald Brennan Jr. (“Plaintiff”), proceeding pro se, filed this 42 U.S.C. § 1983 15 civil rights action while he was a pretrial detainee at the Snohomish County Jail. This matter 16 comes before the Court on Plaintiff’s motion requesting a jury trial (“Plaintiff’s Motion”). (Dkt. 17 # 301.) Defendants have filed a response (dkt. # 306) but Plaintiff did not submit a reply. 18 Plaintiff filed his original complaint in this matter on February 2, 2018. (Dkt. # 14.) On 19 February 14, 2018, Plaintiff filed his first amended complaint after being granted leave to amend 20 to correct deficiencies in his first complaint submission. (Dkt. # 18.) On April 18, 2018, Plaintiff 21 filed the operative second amended complaint after again being granted leave to amend. (Dkt. 22 # 27.) However, Plaintiff’s original complaint, first amended complaint, and second amended 23 complaint each failed to request or demand a jury trial. (See dkt. ## 14, 18, 27.) 1 On October 2, 2018, Defendants filed an answer to Plaintiff’s amended complaint. (Dkt. 2 # 101.) Defendant John Hatchell, who was separately represented by counsel, filed a separate 3 answer on October 2, 2018, which included a jury demand.1 (Dkt. # 102.) Plaintiff did not make 4 a request for a jury trial until the submission of his Motion on August 12, 2021. (See dkt. # 301.)

5 Federal Rule of Civil Procedure 38(b) requires a party wishing to assert the right of trial 6 by jury to demand a jury trial by: “(1) serving the other parties with a written demand – which 7 may be included in a pleading – no later than 14 days after the last pleading directed to the issue 8 is served; and (2) filing the demand in accordance with Rule 5(d).” A party’s failure to serve and 9 file the demand in the manner specified in Rule 38(b) constitutes a waiver of the right to a trial 10 by jury. Fed. R. Civ. P. 38(d). While the Court may order a jury trial on a motion by a party who 11 has not filed a timely demand for one in its discretion, that discretion is narrow. See Fed. R. Civ. 12 P. 39(b); Pac. Fisheries Corp. v. HIH Cas. & General Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 13 2001) (citing Lewis v. Time Inc., 710 F.2d 549, 556-57 (9th Cir. 1983)). “An untimely request for 14 a jury trial must be denied unless some cause beyond mere inadvertence is shown.” Id.

15 Here, the last pleadings directed to the issue were Defendants’ answers on October 2, 16 2018. See Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (noting that 17 the “last pleading directed to the issue” was the answer); Pac. Fisheries Corp., 239 F.3d at 1002 18 (same). As a result, Plaintiff’s jury demand was due 14 days later, on October 16, 2018. 19 However, as previously noted, Plaintiff’s first documented request for a jury trial was August 12, 20 2021. (See dkt. #301.) Plaintiff’s jury trial demand is therefore untimely. In addition, Plaintiff 21 22

23 1 Defendant Hatchell was previously dismissed from this action on October 16, 2019, upon the adoption of this Court’s previous Report and Recommendation granting Defendant Hatchell’s motion for summary judgment. (Dkt. # 234.) 1 has failed to demonstrate that some cause beyond mere inadvertence or oversight occasioned his 2 failure to timely request a jury trial. 3 Accordingly, the Court finds Plaintiff waived any right to a jury trial by failing to file a 4 timely demand as required by Fed. R. Civ. P. 38(b). Plaintiff’s Motion (dkt. # 301) is DENIED.

5 6 Dated this 30th day of August, 2021. 7 A 8 MICHELLE L. PETERSON United States Magistrate Judge 9 10

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