Unpublished Disposition, 887 F.2d 1089 (9th Cir. 1985)

MEMORANDUM^** 

Appellant Edward Lewis appeals pro se from dismissal of his 42 U.S.C. § 1983 action on two grounds: (1) he was denied a default judgment upon defendants' failure to answer his complaint, and (2) he was denied a jury trial.

The motion for default judgment was frivolous. Defendants Phillips and Apple answered Lewis' complaint within the time required and appeared at trial. Defendant Zeller was not properly served but nonetheless appeared at trial and was fully examined and cross-examined.

Lewis did not request a jury trial in his November 29, 1984 complaint. His April 10, 1985 reply to defendants' answer was not ordered by the court, and therefore was not a pleading authorized by Fed. R. Civ. P. 7(a). Lewis' July 8, 1985 motion for leave to file an amended pleading was properly denied for the reasons given in the court's July 25, 1985 order. Since Lewis' motion for a jury trial was filed on July 10, 1985, more than 10 days after the service of the last pleading--defendant's answer filed January 4, 1985--it was not timely under Fed. R. Civ. P. 38.

AFFIRMED.