Luque v. Pompeo

Opinion

1 WO 2 3 4 5

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

10 Plaintiff, ORDER

11 v.

12 Michael R Pompeo,

13 Defendant. 14 15 Pending before the Court is Defendant Michael Pompeo’s Motion to Strike Demand 16 for a Jury Trial. (Doc. 35.) Defendant requests that the Court strike Plaintiff’s request 17 and set the trial in this action before the Court because Plaintiff is not entitled to a jury trial 18 on his claim, and even if he were entitled, he waived the entitlement because his request 19 for a jury trial was untimely. (Doc. 35.) Plaintiff has filed a response. (Doc. 37.) Plaintiff 20 argues that he is entitled to a jury trial, but concedes that his request for a jury trial is 21 untimely. The Court will grant Defendant’s Motion. 22 Rule 38 of the Federal Rules of Civil Procedure provides for a jury trial only where 23 the right is “provided by a federal statute” or “declared by the Seventh Amendment to the 24 Constitution.” Fed. R. Civ. P. 38(a). “A party waives a jury trial unless its demand is 25 properly served and filed.” Fed. R. Civ. P. 38(d); see also United States v. Missouri River 26 Breaks Hunt Club, 641 F.2d 689, 692 (9th Cir. 1981) (“[T]he right to jury trial, although 27 protected by constitutional guarantees, is not absolute; it may be waived if a timely demand 28 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). 2 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, 6 IT IS ORDERED that Defendant’s Motion to Strike Demand for a Jury Trial (Doc. 35)is GRANTED. 8 Dated this 17th day of August, 2020. 9 10 □ ll pote Soipe 1 ; Honorable Jennife ve Zipps United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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