Luque v. Pompeo

Opinion

WO

Victor Luque Luque, No. CV-19-00330-TUC-JGZ (LAB)

Plaintiff, ORDER

v.

Michael R Pompeo,

Defendant. Pending before the Court is Defendant Michael Pompeo’s Motion to Strike Demand for a Jury Trial. (Doc. 35.) Defendant requests that the Court strike Plaintiff’s request and set the trial in this action before the Court because Plaintiff is not entitled to a jury trial on his claim, and even if he were entitled, he waived the entitlement because his request for a jury trial was untimely. (Doc. 35.) Plaintiff has filed a response. (Doc. 37.) Plaintiff argues that he is entitled to a jury trial, but concedes that his request for a jury trial is untimely. The Court will grant Defendant’s Motion. Rule 38 of the Federal Rules of Civil Procedure provides for a jury trial only where the right is “provided by a federal statute” or “declared by the Seventh Amendment to the Constitution.” Fed. R. Civ. P. 38(a). “A party waives a jury trial unless its demand is properly served and filed.” Fed. R. Civ. P. 38(d); see also United States v. Missouri River Breaks Hunt Club, 641 F.2d 689, 692 (9th Cir. 1981) (“[T]he right to jury trial, although protected by constitutional guarantees, is not absolute; it may be waived if a timely demand is not made.”). Rule 38(a) requires that a jury demand be served no later than 14 days after the last pleading directed to the issue is served. Fed. R. Civ. P. 38(a). Plaintiffs request for a jury trial was due by September 23, 2019. Plaintiff did not request a jury trial until June 12, 2020. (Doc. 32, p. 6.) Plaintiff concedes that the request is untimely. Plaintiff offers no basis, and the Court sees none, for excusing the delay. Accordingly, for the foregoing reasons, IT IS ORDERED that Defendant’s Motion to Strike Demand for a Jury Trial (Doc. 35)is GRANTED. Dated this 17th day of August, 2020. □ ll pote Soipe ; Honorable Jennife ve Zipps United States District Judge

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