United States of America v. Harkins et al, No. 3:2011cv00554 - Document 76 (D. Or. 2011)

Court Description: Opinion and Order. The Court DENIES Harkins Defendants' Motion 55 to Request Trial by Jury. Signed on 12/20/2011 by Judge Anna J. Brown. See attached five page Opinion and Order. (bb)

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United States of America v. Harkins et al Doc. 76 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION UNITED STATES OF AMERICA, 3: ll-CV-00554-BR Plaintiff, OPINION AND ORDER v. ROBERT G. HARKINS; JUDy J. HARKINS; OFFICE OF OVERSEER ROBERT G. HARKINS; PUDDING CREEK MINISTRIES; AMERICAN FAMILY ENTERPRISE, INC.; BONDAGE BREAKERS; CITIMORTGAGE, INC.; FIRST NATIONAL BANK OF OMAHA; DISCOVER BANK; FIA CARD SERVICES, N.A., Defendants. S. AMANDA MARSHALL United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 (503) 727-1053 1 - OPINION AND ORDER Dockets.Justia.com KARl MADRENE LARSON Trial Attorney, Tax Division United States Department of Justice P.O. Box 683 Washington, D.C. 20044-0683 (202) 616-3822 Attorneys for Plaintiff ROBERT G. HARKINS JUDy J. HARKINS 7951 Pudding Creek Dr. S.E. Salem, OR 97301 Defendants, Pro Se BROWN, Judge. This matter comes before the Court on the Motion (#55) to Request Trial By Jury of Robert and Judge Harkins (Harkins Defendants). For the reasons that follow, the Court DENIES Harkins Defendants' Motion. BACKGROUND On May 6, 2011, the government filed this action against Defendants seeking (1) to reduce to judgment federal tax assessments against Harkins Defendants; (2) to obtain a declaration from the Court that the real property located in Marion County, Oregon (Pudding Creek property), is held by a nominee or alter ego of Harkins Defendants or, in the alternative, that transfers of the Pudding Creek property were fraudulent transfers that should be set aside; 2 - OPINION AND ORDER (3) to foreclose federal tax liens on the Pudding Creek property; and (4) to sell the Pudding Creek property and to distribute the proceeds in accordance with the Court's findings as to the validity and priority of the liens and claims of all parties. On October 11, 2011, Harkins Defendants filed an Answer, which did not include a jury demand. On November 23, 2011, Harkins Defendants filed a Motion to Request Trial By Jury. DISCUSSION Federal Rule of Civil Procedure 38(b) (1) provides: On any issue triable of right by a jury, a party may demand a jury trial by: (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. The last pleading directed to the issue of a jury trial in this matter was Harkins Defendants' Answer. Harkins Defendants, however, did not file their jury demand within 14 days of their Answer. Accordingly, the Court concludes Defendants' Motion is untimely pursuant to Rule 38(b). The Court has discretion under Federal Rule of Civil Procedure 39(b) to order a jury trial when a party fails to comply with the time limit set out in Rule 38(b). The Ninth Circuit, however, has narrowly construed the Court's discretion 3 - OPINION AND ORDER See, e.g., Pac. Fisheries Corp. v. HIH Cas. & under Rule 39(b). Gen. Ins., 239 F.3d 1000, 1002 (9 th Cir. 2001) (The court's "discretion [under Rule 39(b)] is narrow, however, and does not permit a court to grant relief when the failure to make a timely demand results from an oversight or inadvertence."). The Ninth Circuit has made clear that Rule 39(b) does not permit a court to grant relief from the time limit set out in Rule 38(b) if the failure to file a timely jury demand is the result of oversight, inadvertence, or lack of familiarity with the Federal Rules of Civil Procedure. 477 Craig v. Atlantic Richfield Co., 19 F.3d 472, (9 th Cir. 1994). Harkins Defendants assert they are entitled to relief under Rule 39(b) because they are pro se litigants. The Ninth Circuit, however, has concluded a pro se litigant's "good faith mistake as to the deadline for demanding a jury trial establishes no more than inadvertence, which is not a sufficient basis to grant relief from an untimely jury demand." Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1086-87 (9 th Cir. 2002) (citing Kulas v. Flores, 255 F.3d 780,784 (9 th Cir.2001)). The Court, therefore, concludes Harkins Defendants' jury demand is untimely under Rule 38(b) and that the Court lacks discretion to grant Harkins Defendants relief under Rule 39(b). Accordingly, the Court denies Harkins Defendants' Motion to Request Trial By Jury. 4 - OPINION AND ORDER , , , [. CONCLUSION For these reasons, the Court DENIES Harkins Defendants' Motion (#55) to Request Trial By Jury. IT IS SO ORDERED. DATED this 20 th day of December, 2011. 5 - OPINION AND ORDER United States District Judge

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