Rodriguez v. Sears Holdings Corporation et al, No. 3:2010cv01268 - Document 32 (N.D. Cal. 2010)
Court Description: ORDER granting 24 Motion to Strike 17 Jury Demand (sclc1, COURT STAFF) (Filed on 8/24/2010)
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Rodriguez v. Sears Holdings Corporation et al Doc. 32 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 PATRICK RODRIGUEZ, an individual, 8 Plaintiff, 9 v. United States District Court For the Northern District of California 10 11 13 SEARS HOLDING CORPORATION, a corporation, SEARS, ROEBUCK AND COMPANY, a corporation, and DOES 1 through 100, inclusive, 14 Defendants. 12 ) Case No. 10-1268 SC ) ) ORDER GRANTING ) MOTION TO STRIKE ) ) ) ) ) ) ) ) ) ) 15 16 I. 17 INTRODUCTION Now before the Court is a fully briefed Motion by Defendants 18 Sears Holdings Corporation and Sears, Roebuck and Company 19 ("Defendants") to strike the jury trial demand made by Plaintiff 20 Patrick Rodriquez ("Plaintiff"). 21 ("Opp'n"), 29 ("Reply"). 22 GRANTS Defendants' Motion. ECF Nos. 24 ("Mot."), 28 For the following reasons, the Court 23 24 25 II. BACKGROUND Plaintiff originally filed this action on February 11, 2010 in 26 California Superior Court for the County of Alameda. 27 ("Notice of Removal") Ex. A ("Compl."). 28 of Defendants, and brought a putative class action on behalf of ECF No. 1 Plaintiff was an employee Dockets.Justia.com 1 himself and others similarly situated for violations of various 2 provisions of California's Labor Code and Business and Professions 3 Code, including failure to pay overtime wages, failure to allow and 4 pay for meal and rest periods, failure to pay compensation upon 5 discharge, and failure to provide proper wage statements. 6 Initial Complaint made no demand for a jury trial. United States District Court The See id. On March 25, 2010, Defendants removed this action to this 7 For the Northern District of California Id. 8 Court under 28 U.S.C. § 1441(a). 9 did not oppose removal. See Notice of Removal. Plaintiff On June 8, 2010, Plaintiff filed and 10 served his First Amended Complaint. 11 causes of action identified in the FAC are identical to those in 12 the Initial Complaint, and the FAC does not include a demand for 13 jury trial. 14 for Jury Trial. 15 2010, Defendants filed their motion to strike this demand. 16 Mot. 17 with the same five causes of action stated in the FAC and Initial 18 Complaint. 19 occurred in this action; a conference scheduled for July 9, 2010 20 was continued by the Court to September 17, 2010. See id. ECF No. 13 ("FAC"). The On June 22, 2010, Plaintiff filed a Demand ECF No. 17 ("Demand for Jury Trial"). On July 6, See Plaintiff filed a Second Amended Complaint on August 3, 2010, ECF No. 30 ("SAC"). No Case Management Conference has ECF No. 23. 21 22 III. LEGAL STANDARD The Seventh Amendment to the U.S. Constitution provides a 23 24 right to jury trial in suits at common law. U.S. Const. amend. 25 VII. 26 procedure for exercising this right. 27 waives a jury trial unless its demand is properly served and filed. 28 A proper demand may be withdrawn only if the parties consent." Rule 38 of the Federal Rules of Civil Procedure provides the 2 Under Rule 38(d), "[a] party 1 Under Rule 38(b): On any issue triable of right by a jury, a party may demand a jury trial by: 2 3 (1) serving the other parties with a written demand -- which may be included in a pleading -- no later than 14 days after the last pleading directed to the issue is served; and 4 5 6 (2) filing the demand in accordance with Rule 5(d). United States District Court For the Northern District of California 7 8 Rule 6(d) adds three days to Rule 38(b)'s fourteen-day window when 9 service is made electronically under Rule 5(b)(E). When a party 10 files an amended complaint, if "the issues in the original 11 complaint and the amended complaint turn on the same matrix of 12 facts," a party's failure to demand a jury trial in response to the 13 original complaint waives its right to a jury trial on the claims 14 in the amended complaint. 15 F.2d 614, 620 (9th Cir. 1979). 16 its discretion, order a jury trial on a motion by a party who has 17 not filed a timely demand for one, this discretion is narrow, "and 18 does not permit a court to grant relief when the failure to make a 19 timely demand results from an oversight or inadvertence." 20 Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 21 (9th Cir. 2001). Las Vegas Sun, Inc. v. Summa Corp., 610 While the district court may, in Pac. 22 23 24 IV. DISCUSSION Defendants argue that Plaintiff's jury demand is untimely and 25 procedurally improper. Mot. at 2. 26 Rules 38(b) and 6(d) of the Federal Rules of Civil Procedure, 27 Plaintiff's jury demand was due seventeen days after service of 28 Defendants' removal, making the deadline April 19, 2010. 3 Defendants argue that under Id. at 3. 1 Defendants also argue that Plaintiff failed to demand a jury trial 2 while the action was in state court. 3 that the Initial Complaint, FAC, and SAC contain the same causes of 4 action and do not raise new issues that would render the jury 5 demand timely. 6 Circuit case law -- specifically, Pacific Fisheries, 239 F.3d 1000, 7 and other cases -- the Court lacks discretion to order a jury trial 8 where the plaintiff's demand is untimely as a result of 9 inadvertence or neglect. United States District Court For the Northern District of California 10 Id. at 6-7. Id. at 5. Defendants argue Defendants claim that under Ninth Id. at 8. Plaintiff concedes that the jury demand was eight weeks late 11 "due to plaintiff's counsel's belief a jury had been demanded in 12 state court already", and does not argue that new issues were 13 raised in the amended complaints that would render the Jury Demand 14 timely. 15 this constitutional right and argues that the Court has discretion 16 to grant relief from an inadvertent waiver of jury under Rule 17 39(b), which provides: "Issues on which a jury trial is not 18 properly demanded are to be tried by the court. 19 on motion, order a jury trial on any issue for which a jury might 20 have been demanded." 21 circuits providing a number of factors for determining whether to 22 excuse an untimely jury demand and order a jury trial: 23 24 25 26 27 28 Opp'n at 2. Rather, Plaintiff stresses the importance of But the court may, Plaintiff also points to case law from other (1) whether the case involves issues which are best tried to a jury, (2) whether there will be any prejudice to the opposing party in granting the relief; (3) whether granting the request for a jury trial will delay the trial or otherwise disrupt the proceedings; (4) the length of the delay in having requested the jury trial, and (5) whether granting the request will have a negative effect on the court’s calendar or the administration of justice. 4 1 Opp'n at 8 (citing Parrott v. Wilson, 707 F.2d 1262, 1267 (11th 2 Cir. 1983). United States District Court For the Northern District of California 3 Plaintiff argues that under the Parrott factors, the late jury 4 demand should be excused because: (1) the case involves issues 5 which are best tried to a jury (namely, a finding of willfulness by 6 Defendant in failing to pay all wages due upon termination, as well 7 as the damages amount); (2) there will be no prejudice to 8 Defendants; (3) it will not delay trial or disrupt proceedings, as 9 no status conference has occurred and no court dates have been set; 10 (4) the delay -- eight weeks -- is relatively short; and (5) a jury 11 trial will not have a negative effect on the Court's calendar. 12 Opp'n. at 8-9. 13 Johnson v. Dalton, 57 F. Supp. 2d 958, 960 (C.D. Cal. 1999), in 14 which the court found that it had the discretion to order a jury 15 trial despite an untimely jury demand. 16 Ninth Circuit cases Defendants cite for the proposition that the 17 court lacks discretion to order a jury trial when the jury demand 18 is late due to inadvertence or neglect are essentially dicta; 19 Plaintiff notes that none are cases in which the Ninth Circuit 20 reversed for abuse of discretion a lower court's ordering of a jury 21 trial despite a late and unexcused jury demand. 22 Plaintiff also cites to a district court case, Plaintiff claims that the Opp'n at 6. The Court finds that while the authority cited by Defendants 23 may be dicta, it is on-point dicta. While Plaintiff's inadvertent 24 failure to make a timely demand for a jury trial may be harmless, 25 Defendants cite a half-dozen Ninth Circuit cases with unambiguous 26 language stating that a district court abuses its discretion when 27 it permits a jury trial despite a plaintiff's inadvertent failure 28 to make a timely demand. See Mardesich v. Marciel, 538 F.2d 848, 5 United States District Court For the Northern District of California 1 849 (9th Cir. 1976) (finding that district court had "no discretion 2 to exercise" in its decision to deny plaintiff's untimely request 3 for jury trial); Lewis v. Time Inc., 710 F.2d 4 Cir. 1983) (district court's discretion "does not permit a court to 5 grant relief when the failure to make a timely demand results from 6 an oversight or inadvertence"); 7 Sch. Dist., 91 F.3d 68, 71 (9th Cir. 1996) (same); Pac. Fisheries, 8 239 F.3d at 1002 (same); Lutz v. Glendale Union High Sch., 403 F.3d 9 1061, 1065 n.4 (9th Cir. 2005) ("had the district judge ordered a 549, 556-57 (9th Kletzelman v. Capistrano Unified 10 jury trial under Rule 39(b), he would have abused his discretion"). 11 Plaintiff never argues that anything other than counsel's oversight 12 caused him to miss the Rule 39(b) deadline. 13 facts and the unambiguous language from our reviewing court, the 14 Court GRANTS Defendants' motion to strike Plaintiff's Jury Demand 15 as untimely. In light of these 16 17 18 V. CONCLUSION For the foregoing reasons, the Court GRANTS the Motion by 19 Defendants Sears Holdings Corporation and Sears, Roebuck and 20 Company to strike the demand for jury trial made by Plaintiff 21 Patrick Rodriquez. 22 tried before the Court. There will be no jury trial; the case will be 23 24 IT IS SO ORDERED. 25 26 27 Dated: August 24, 2010 UNITED STATES DISTRICT JUDGE 28 6
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