Haley v. Clark Construction Group-California, Inc.

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LAWRENCE HALEY, Case No. 18-cv-07542-HSG

8 Plaintiff, ORDER GRANTING DEFENDANT'S MOTION TO MODIFY THE 9 v. SCHEDULING ORDER

10 CLARK CONSTRUCTION GROUP- Re: Dkt. No. 23 CALIFORNIA, INC., 11 Defendant. 12 13 Defendant Clark Construction Group-California, Inc. filed a motion to modify the Court’s 14 scheduling order. Dkt. No. 23 (“Mot.”). Specifically, Defendant requests that the Court modify 15 its order to provide that the scheduled March 23, 2020 trial will be a bench rather than a jury trial. 16 Id. at 1. For the reasons articulated below, the Court GRANTS Defendant’s motion. 17 I. RELEVANT PROCEDURAL FACTS 18 Plaintiff Lawrence Haley filed his complaint in San Francisco Superior Court on October 19 24, 2018 and served Defendant on November 14, 2018. Dkt. No. 1-1, Ex. A. The Complaint did 20 not pray for a jury trial. See id. Defendant filed its answer and removed the action to federal court 21 on December 14, 2018. Dkt. No. 1; Dkt. No. 1-2, Ex. B. The parties filed their joint case 22 management statement on March 13, 2019, in which Plaintiff for the first time requested a jury 23 trial. Dkt. No. 16 at 10. Defendant objected to Plaintiff’s request, arguing that Plaintiff did not 24 make a timely jury demand. Id. 25 In May 2019, the Court issued its scheduling order and set a jury trial for March 2020. 26 Dkt. No. 22. Defendant filed this motion, requesting that the Court modify the jury trial to be a 27 bench trial. See generally Mot. Plaintiff did not file his opposition to the motion within the 1 L.R. 7-3(a). The Court then issued an order to show cause why Defendant’s motion should not be 2 granted in light of Plaintiff’s failure to oppose. Dkt. No. 52. Plaintiff filed his response and 3 opposition to Defendant’s motion on September 20, 2019, citing an attorney’s illness as the reason 4 for counsel’s oversight in filing a timely opposition. Dkt. No. 54 (“Opp.”) at 8. 5 II. LEGAL STANDARD 6 Although styled as a motion to modify the scheduling order, the substance of Defendant’s 7 motion is to strike Plaintiff’s jury demand. Under Federal Rule of Civil Procedure 38(b), a party 8 may demand a jury trial on any issue triable of right by serving the other parties with a written 9 demand “no later than 14 days after the last pleading directed to the issue is served.” Fed. R. Civ. 10 P. 38(b)(1). If demand is not properly served and filed, then a party waives the right to a jury trial. 11 Fed. R. Civ. P. 38(d). In the case of removal proceedings, if all necessary pleadings have been 12 served at the time of removal, then a party is entitled to a jury trial if the party serves a demand 13 within 14 days after it files a notice of removal, or is served with a notice of removal. Fed. R. Civ. 14 P. 81(c)(3).1 15 If a party fails to make a timely jury demand, the district court may, in its discretion, order 16 a jury trial on any issue for which a jury might have been demanded. Fed. R. Civ. P. 39(b). 17 However, the Ninth Circuit has held that this “discretion is narrow,” and “does not permit a court 18 to grant relief when the failure to make a timely demand results from an oversight or 19 inadvertence.” Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 20 2001) (citations omitted). “An untimely request for a jury trial must be denied unless some cause 21 beyond mere inadvertence is shown.” Id. (citations omitted). 22 III. DISCUSSION 23 Plaintiff does not dispute that he did not make a jury trial demand when this matter was 24 pending in state court. Nor does he dispute that he did not make a jury trial demand within 25 fourteen days after Defendant filed its answer and removed this action to state court. See Fed. R. 26 Civ. P. 38(b); Fed. R. Civ. P. 81(c)(3). Instead, he proffers that by taking “the first opportunity to 27 1 advise the court of the expressed demand for jury trial by way of the Initial Joint Case 2 || Management Conference Statement,” he did not waive his right to a jury trial. Opp. at 5. 3 The Court disagrees with Plaintiff. It is unambiguous that under either Rule 38 or Rule 81, 4 || Plaintiffs request for a jury trial, made three months after removal and the filing of Defendant’s 5 answer, is insufficient to constitute a timely jury demand. And Plaintiffs counsel does not 6 || provide any reason why the Court, in its discretion, should grant the untimely jury demand. The 7 || Court is bound by Ninth Circuit law, and given Plaintiff's failure to show the untimely request 8 || resulted from more than mere inadvertence or oversight, the Court cannot grant the untimely jury 9 demand. See Pac. Fisheries, 239 F.3d at 1002; see also Lutz v. Glendale Union High Sch., 403 10 || F.3d 1061, 1065 n.4 (9th Cir. 2005) (“had the district judge ordered a jury trial under Rule 39(b), 11 he would have abused his discretion ... [plaintiff] points to no explanation other than inadvertence 12 || for her failure to make a timely jury trial request”); Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 13 1087 (9th Cir. 2002) (pro se plaintiff's good faith mistake as to the deadline and requirements 14 || establishes “no more than inadvertence, which is not a sufficient basis to grant relief from an 3 15 || untimely jury demand”); Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d 68, 71 (9th Cir. a 16 1996) (district court correctly denied motion for jury trial when failure was due to inadvertence or 3 17 oversight); Lewis v. Time Inc., 710 F.2d 549, 556 (9th Cir. 1983) (same); Chandler Supply Co. v. 18 GAF Corp., 650 F.2d 983, 988 (9th Cir. 1980) (that the lawyer “was swamped with other work” is 19 insufficient to excuse failure to file a timely jury demand).” 20 IV. CONCLUSION 21 The Court GRANTS Defendant’s motion to modify the scheduling order. The Court 22 RESETS the schedule as follows: 3-Day Bench Trial set for March 23, 2020 at 8:30 a.m. 23 IT IS SO ORDERED. 24 || Dated: 9/27/2019 Abeyyrel 5 Sb |p AYWOOD S. GILLIAM, JR. 25 United States District Judge 26 07 > Plaintiff argues that the Court, in its discretion, should extend time for Plaintiff to file a jury demand under Rule 6(b). Opp. at 6. But that “discretion should rarely be exercised” to grant an 2g || untimely jury request. Rutledge v. Elec. Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975) (citation omitted).