William J. Mouren Farming, Inc. v. Phillips 66 Pipeline, LLC, et al., No. 1:2018cv00404 - Document 20 (E.D. Cal. 2018)
Court Description: ORDER Granting Defendants' 10 Motion to Strike Jury Demand and Denying Plaintiff's 15 Counter-Motions for Relief, signed by District Judge Dale A. Drozd on 7/24/2018. (Gaumnitz, R)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 WILLIAM J. MOUREN FARMING, INC., a California corporation, d/b/a W.J. MOUREN FARMING, 13 14 15 16 17 18 No. 1:18-cv-00404-DAD-BAM ORDER GRANTING DEFENDANTS’ MOTION TO STRIKE JURY DEMAND AND DENYING PLAINTIFF’S COUNTERMOTIONS FOR RELIEF Plaintiff, v. PHILLIPS 66 PIPELINE, LLC, a Delaware limited liability company; CONOCOPHILLIPS, a Delaware corporation; and Does 1 through 100, (Doc. No. 10, 15) Defendants. 19 20 This matter is before the court on defendants’ motion to strike plaintiff’s jury demand 21 (Doc. Nos. 10–11), and plaintiff’s counter-motions for relief (Doc. No. 15). The court held a 22 hearing on these motions on June 19, 2018, at which plaintiff’s counsel John Kinsey appeared in 23 person and defendant’s counsel Morgan Lopez appeared telephonically. (Doc. No. 18.) For the 24 reasons that follow, defendants’ motion to strike plaintiff’s untimely jury demand will be granted, 25 and plaintiff’s counter-motions for relief will be denied. 26 FACTUAL BACKGROUND 27 On February 1, 2018, plaintiff filed a verified complaint in the Fresno County Superior 28 Court naming Phillips 66 Pipeline, LLC and ConocoPhillips as defendants. (Doc. No. 1 at 15.) 1 1 The complaint alleged eight causes of action, all of which are based on the allegation that an oil 2 pipeline that runs through plaintiff’s property must be removed. (Id.) Plaintiff’s complaint did 3 not include a jury trial demand. 4 On March 26, 2018, defendants filed and served a notice of removal and removed the 5 action to this federal court. (Doc. No. 1.) On April 20, 2018, defendants answered the verified 6 complaint and did not demand a jury trial. (Doc. No. 5.) On May 10, 2018, plaintiff filed and 7 served a first amended complaint (“FAC”) setting forth the same eight claims for relief with 8 minor revisions to the allegations of the complaint. (Doc. No. 6.) At that time, plaintiff also filed 9 a demand for a jury trial as a supplement to the FAC. (Doc. No. 6-3.) 10 On May 16, 2018, defendants filed the pending motion to strike plaintiff’s jury trial 11 demand. (Doc. Nos. 10, 11.) On June 5, 2018, plaintiff filed an opposition to that motion, as well 12 as a counter-motion for relief pursuant to Federal Rules of Civil Procedure 6, 39, and 41. (Doc. 13 No. 15.) On June 12, 2018, defendants filed a reply. (Doc. No. 16.) 14 15 LEGAL STANDARDS Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a court may strike from a 16 complaint “any redundant, immaterial, impertinent, or scandalous matter.” “The function of a 17 12(f) motion to strike is to avoid the expenditure of time and money that must arise from 18 litigating spurious issues.” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 19 1983). Motions to strike are generally disfavored and “should not be granted unless it is clear that 20 the matter to be stricken could have no possible bearing on the subject matter of the litigation.” 21 Neveu v. City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (citation and quotation 22 marks omitted); see also Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d. 1101, 1152 (C.D. 23 Cal. 2003) (“Motions to strike are generally regarded with disfavor because of the limited 24 importance of pleading in federal practice, and because they are often used as a delaying tactic.”) 25 Although granting a motion to strike is within its discretion, in considering such a motion, the 26 court must view the pleading in a light most favorable to the non-moving party and resolve any 27 doubt as to the relevance of the challenged allegations in favor of the non-moving party. See In 28 re 2TheMart.com, Inc. v. Sec. Litig., 114 F. Supp. 2d 955, 965 (C.D. Cal. 2000). 2 1 2 ANALYSIS Defendants argue that plaintiff’s demand for a jury trial was untimely under Federal Rule 3 of Civil Procedure 38(b)(1) and should be stricken. (Doc. No. 11 at 2–3.) Plaintiff opposes the 4 motion to strike their jury trial demand, first arguing that Federal Rule of Civil Procedure 81(c) is 5 applicable here. (Doc. No. 15 at 7–9.) Plaintiff also contends that the courts in the Ninth Circuit 6 have incorrectly interpreted the plain language of Rule 81(c) and that under a proper 7 interpretation of that provision, its jury trial demand was timely. (Id.) Finally, plaintiff asserts 8 that even if Rule 38 applies rather than Rule 81, its jury trial demand was timely because it was 9 made with the filing of its FAC. (Id.) Below, the court addresses each of the provisions invoked 10 by the parties and their possible application here. 11 I. Federal Rules of Civil Procedure 38 and 39 12 Rule 38 states that “a party may demand a jury trial by . . . serving the other parties with a 13 written demand—which may be included in a pleading—no later than 14 days after the last 14 pleading directed to the issue is served.” Fed. R. Civ. P. 38. The Ninth Circuit has held that “a 15 party’s failure to serve and file the demand in the manner specified in Rule 38(b) constitutes a 16 waiver of the right to a trial by jury.” Solis v. County of Los Angeles, 514 F.3d 946, 953–54 (9th 17 Cir. 2008) (citing Fed. R. Civ. P. 38(d)); see also Kulas v. Flores, 255 F.3d 780, 784 (9th Cir. 18 2001) (“Kulas waived any right to a jury by failing to file a timely demand as required by Fed. R. 19 Civ. P. 38(b).”). 20 Under Rule 39(b) the court has discretion to order a trial by jury despite a party’s failure 21 to make a timely demand. However, the Ninth Circuit has held that the discretion granted the 22 court under that rule is “narrow” and ‘“does not permit a court to grant relief when the failure to 23 make a timely demand results from an oversight or inadvertence’ such as a good faith mistake of 24 law with respect to the deadline for demanding a jury trial.” Zivkovic v. S. Cal. Edison Co., 302 25 F.3d 1080, 1086-87 (9th Cir. 2002) (quoting Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 26 239 F.3d 1000, 1002-03 (9th Cir. 2001)); see also Richardson v. Stanley Works, Inc., 597 F.3d 27 1288, 1297-98 (Fed. Cir. 2010); Duhn Oil Tool, Inc. v. Cooper Cameron Corp., 818 F. Supp. 2d 28 1193, 1205 (E.D. Cal. 2011) (“A district court’s discretion under Rule 39(b) is narrow and does 3 1 not permit a court to grant relief when the failure to make a timely demand results from an 2 oversight or inadvertence.”). Because it is an oversight and/or inadvertence that appears to be at 3 issue here, relief pursuant to Rule 39(b) is unavailable under Ninth Circuit precedent. 4 II. Federal Rule of Civil Procedure 38 and the Filing of a First Amended Complaint 5 As noted, plaintiff argues that under Rule 38, its jury trial demand was timely because it 6 was made with its FAC. The argument is unpersuasive. As used in Rule 38, the word “issue” has 7 been found to refer to “issues of fact, not issues of law.” Trixler Brokerage Co. v. Ralston Purina 8 Co., 505 F.2d 1045, 1050 (9th Cir. 1974); see also Lutz v. Glendale Union High School, 403 F.3d 9 1061, 1066 (9th Cir. 2005) (“Rather, Rule 38(b) is concerned with issues of fact.”); Bentler v. 10 Bank of America Nat’l Trust & Sav. Ass’n, 959 F2d 138, 141 (9th Cir. 1992). Therefore, the “last 11 pleading directed to the issue” refers to the pleading asserting the responsive denial to the factual 12 allegations underlying a plaintiff’s claim. Pac. Fisheries Corp., 239 F.3d at 1002, n.2 (finding 13 that the answer was the “last pleading directed to such issue”). When the original complaint and 14 an amended complaint turn on the same matrix of facts, the amended complaint does not 15 constitute the presentation of a new issue for which a jury trial should be granted as matter of 16 right. Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 620 (9th Cir. 1979); see also Lutz, 403 17 F.3d at 1066 (“Our caselaw is clear, though, that ‘the presentation of a new theory does not 18 constitute the presentation of a new issue on which a jury trial should be granted [as of right] 19 under . . . Rule 38(b).’”) (quoting Trixler Brokerage Co., 505 F.2d at 1050). Here, defendants’ answer was served on April 20, 2018. (Doc. No. 5.) Plaintiff’s 20 21 amended complaint did not change its claims for relief, add any new issues to this action, or 22 substantially change the matrix of facts upon which it is based. (See Doc. Nos. 1, 6.) Therefore, 23 the “last pleading directed to the issue” within the meaning of Rule 38 was defendants’ answer.1 24 (Doc. No. 5.) Plaintiff’s demand for a jury trial was first filed with its FAC on May 10, 2018, 25 26 27 28 An answer may not be the only pleading that constitutes the “last pleading directed to the issue.” See Bentler v. Bank of Am. Nat. Tr. & Sav. Ass’n, 959 F.2d 138, 141 (9th Cir. 1992) (“Moreover, we have found a number of appellate decisions holding that where a defendant files with its answer a counterclaim that involves the same factual issues as the plaintiff's complaint, a plaintiff's jury demand served within 10 days of its reply is timely as to both the counterclaim and the original claim.”). 4 1 1 which was past the fourteen-day deadline set forth in Rule 38. (Doc. No. 6.) As alluded to 2 above, the typical remedy for such an untimely jury trial demand is to strike it. Pac. Fisheries 3 Corp., 239 F.3d at 1002 (“An untimely request for a jury trial must be denied unless some cause 4 beyond mere inadvertence is shown.”); see also Lutz, 403 F.3d at 1065, n.4. 5 III. 6 Plaintiff’s primary contention is that its jury trial demand submitted with its FAC was 7 timely according to the plain language of Rule 81(c). (Doc. No. 15 at 6.) Defendant disputes 8 whether Rule 81(c) is applicable here and argues that, even if it is, plaintiff’s jury trial demand 9 would be untimely. 10 Federal Rule of Civil Procedure 81 Rule 81(c) effectively creates three exceptions in removed actions to Rule 38(b)’s 11 requirement that a jury trial demand must be made within fourteen days of service of the “last 12 pleading directed to the issue.” No jury demand is required under Rule 38(b) if: (1) a demand 13 was made before the action was removed (see Fed. R. Civ. P. 81(c)(3)(A)); (2) the state in which 14 the action was filed did not require an “express demand” (see id.); or (3) all necessary pleadings 15 to place the case at issue have been filed in the state court, and the demand is served within 16 fourteen days of removal (see Fed. R. Civ. P. 81(c)(3)(B)). 17 Here, plaintiff concedes that the first and third exceptions under Rule 81 do not apply 18 because its original complaint filed in state court did not include a jury trial demand. (See Doc. 19 Nos. 1; 15 at 6–9.) However, plaintiff argues that at the time of the removal to this federal court, 20 California law “did not require an express demand for a jury trial” because jury trials can only be 21 waived by “failing to announce that a jury is required, at the time the cause is first set for trial, if 22 it is set upon notice or stipulation, or within five days after notice of setting if it is set without 23 notice or stipulation.” (Doc. No. 15 at 7–9) (citing Cal. Code Civ. Proc. § 631(a)). According to 24 plaintiff, at the time of removal, this action had not yet been set for trial in state court and the time 25 to demand a jury trial had not yet arrived. (Doc. No. 15 at 7.) 26 However, the Ninth Circuit has held that California law requires an “express demand” for 27 jury trial for purposes of applying Rule 81(c) and that the timing of the state court’s demand 28 requirements is irrelevant. See Lewis v. Time Inc., 710 F.2d 549, 556 (9th Cir. 1983) (“Under 5 1 California law, a litigant waives trial by jury by, inter alia, failing to ‘announce that one is 2 required’ when the trial is set. Cal. Civ. Proc. Code §§ 631, 631.01. . . . We understand that to 3 mean that an ‘express demand’ is required.”) overruled on other grounds by Unelko Corp. v. 4 Rooney, 912 F.2d 1049, 1052–53 (9th Cir. 1990); Tetravue Inc. v. St. Paul Fire & Marine 5 Insurance Co., No. 14-CV-2021 W (BLM), 2018 WL 1185216, at *2 (S. D. Cal. Mar. 7, 2018) 6 (“Plaintiffs’ contention that California law does not require an express jury demand has been 7 rejected by the Ninth Circuit, as well as a number of district courts in this circuit.”) (citing cases); 8 Ortega v. Home Depot U.S.A., Inc., No. CIV. 2:11-1921 WBS, 2012 WL 77020, at *2 (E.D. Cal. 9 Jan. 10, 2012) (“The Ninth Circuit, however, has held that California is an express demand state 10 . . .. [I]n California, jury demand is required under Rule 81 within fourteen days of removal.”); 11 Wave House Belmont Park, LLC v. Travelers Prop. Cas. Co. of Am., 244 F.R.D. 608, 613 (S.D. 12 Cal. 2007) (“California law requires an express demand to obtain a jury trial.”). The court is not 13 free to disregard the Ninth Circuit’s decision in Lewis, and therefore declines plaintiff’s invitation 14 to do so. Plaintiff’s failure to make a timely express jury trial demand waives its right to do so 15 under Rule 38 and 81. 16 IV. 17 Plaintiff also moves for relief under Federal Rules of Civil Procedure 6 and 41. (Doc. No. Federal Rules of Civil Procedure 6 and 41 18 15 at 10–16.) First, plaintiff argues that it is entitled to relief under Rule 6(b), which provides: 19 “When an act may or must be done within a specified time, the court may, for good cause, extend 20 the time . . . on motion made after the time has expired if the party failed to act because of 21 excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). However, the Ninth Circuit has specifically held 22 that “[r]elief under [Rule 6(b)] is within the ‘discretion’ of the District Court, and that discretion 23 should rarely be exercised to grant a trial by jury in default of a proper request for it.” Rutledge v. 24 Elec. Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975). Some courts have rejected the 25 possibility of Rule 6(b) under circumstances such as those presented here outright. See Urtnowski 26 v. Unisys Corp., No. SACV 07-0714 AG, 2008 WL 11340317, at *2 (C.D. Cal. Feb. 25, 2008) 27 (rejecting plaintiff’s request for the enlargement of time to demand a jury trial pursuant to Rule 28 6(b)(2) because “[t] he Ninth Circuit has clearly and specifically established the standard for a 6 1 grant of relief under Rule 39(b), and this Court will not undermine that clear standard by resorting 2 to other more general provisions of the Federal Rules”); see also Gonzalez v. Target, No. 2:13- 3 CV-01615-KJM-AC, 2014 WL 2548726, at *4 (E.D. Cal. June 5, 2014) (concluding that the 4 court was without discretion to order a jury trial under the circumstances); Hansen v. Safeway, 5 Inc., No. C 10-0377 RS, 2010 WL 2593611, at *2 (N.D. Cal. June 22, 2010) (citing the decision 6 in Rutledge and implicitly rejecting the granting of relief under Rule 6(b) where it is not called for 7 under Rules 38, 39 and 81); Vaxiion Therapeutics, Inc. v. Foley & Lardner LLP, 2008 WL 8 11337433, at *4 (S.D. Cal. Nov. 7, 2008) (Following the rationale of Russ v. Standard Ins. Co., 9 120 F.3d 988 989-90 (9th Cir 1997) in concluding that “the more specific rule in the instant case, 10 Rule 39(b), must trump the more general Rule 6(b)(1)(B).”) Other courts, however, have 11 acknowledged that “there is some authority supporting the availability of the claimed Rule 6(b) 12 avenue of relief” under such circumstances. Level 3 Commc’ns, Inc. v. Lidco Imperial Valley, 13 Inc., No. 11CV01258 BTM (MDD), 2012 WL 4848929, at *7 (S.D. Cal. Oct. 11, 2012) 14 (declining to reach the issue of whether Rule 38(b)’s jury trial demand deadline can be extended 15 under Rule 6(b)); see also Barnes v. Sony Music Entertainment Inc., 2015 WL 12911759, at *4 16 (C.D. Cal. Apr. 23, 2015) (recognizing that the Ninth Circuit “has held that, although extension of 17 time under Rule 6(b) may be within the Court’s discretion, it should rarely be awarded for an 18 untimely jury trial” and declining to extend time under Rule 6(b) in light of a ten month delay). 19 Here, plaintiff relies on the decision in Baldwin v. United States, 823 F. Supp. 2d 1087, 20 1113 (D. N. Mar. I. 2011) in arguing that relief under Rule 6(b) should be granted to permit the 21 jury trial demand submitted with its FAC. (Doc. No. 15 at 13–15.) In Baldwin, the court applied 22 “a four-factor equitable test for determining what constitutes ‘excusable neglect’: ‘the danger of 23 prejudice to the [non-moving party], the length of the delay and its potential impact on judicial 24 proceedings, the reason for the delay, including whether it was within the reasonable control of 25 the movant, and whether the movant acted in good faith.’” Baldwin, 823 F. Supp. 2d at 1114. 26 (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 113 (1993)). The 27 district court in Baldwin found that there was no danger of prejudice to the non-moving party, the 28 length of the delay was only two days and had minimal impact on the proceedings, the reason for 7 1 the delay was because of oversight or inadvertence, and that the moving party acted in good faith. 2 Id. at 1117–1120. Additionally, the court noted that the plaintiff there had prepaid over five 3 million dollars in taxes to secure a jury trial on his claims seeking a refund of allegedly illegal and 4 erroneous taxes, penalties, and interest, and that denying him a jury trial under those 5 circumstances would “work a manifest injustice.” Id. at 1119. Accordingly, the court permitted 6 plaintiff’s late jury trial demand under Rule 6(b). Id. at 1120. 7 Here, the undersigned declines to adopt the district court’s analysis in Baldwin for several 8 reasons. First, there is no Ninth Circuit authority supporting application of the Pioneer factors to 9 permit an otherwise untimely jury trial demand under Rule 6(b). Second, applying the Pioneer 10 factors in a case like this one, in which the failure to submit a timely jury trial demand appears to 11 have simply been an inadvertent mistake, would run afoul of the Ninth Circuit’s clear admonition 12 that the court’s “discretion [to order a jury trial on a motion by a party who has not filed a timely 13 demand for one] is narrow . . . and does not permit a court to grant relief when the failure to make 14 a timely demand results from an oversight or inadvertence.” Lewis, 710 F.2d at 556–57; see also 15 Pac. Fisheries Corp., 239 F.3d at 1002 (citing Lewis); Gonzalez, 2014 WL 2548726, at *4 16 (denying plaintiff’s untimely request for jury trial based on inadvertence). Third, the Ninth 17 Circuit has strongly discouraged district courts from extending the deadline for the making of a 18 jury trial demand by applying other procedural rules. See Russ, 120 F.3d at 990 (reversing the 19 district court’s dismissal of an action pursuant to Rule 41(a)(2) so as to allow plaintiff to refile 20 claims and make a timely jury demand, because such a decision served to frustrate “the specific 21 purpose of Rules 38 and 39 to encourage prompt notice of a jury demand.”).2 For these reasons, 22 the undersigned cannot grant plaintiff relief with respect to its untimely jury trial demand. 23 Defendant’s motion to strike that demand will therefore be granted. 24 ///// 25 26 27 28 2 Plaintiff also argues that it is entitled to relief under Rule 41 and should be permitted to voluntarily dismiss this case and re-file it with a jury trial demand to avoid its waiver of trial by jury. (Doc. No. 15 at 15.) As noted above, Ninth Circuit precedent prohibits this procedural workaround. See Russ, 120 F.3d at 990 (“[A]llowing the district court to accomplish under Rule 41(a)(2) what we specifically prohibit it from doing under Rule 39(b) introduces an unnecessary conflict between these two federal rules.”). 8 1 CONCLUSION 2 Accordingly, 3 1. Defendant’s motion to strike (Doc. No. 11) is granted; and 4 2. Plaintiff’s countermotion for relief (Doc. No. 15) is denied. 5 6 7 IT IS SO ORDERED. Dated: July 24, 2018 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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