Tarrer v. Pierce County
3:10-cv-05670
W.D. Wash.Apr 21, 2011Background
- Plaintiffs Tarrier and Garland sue Pierce County and others in Western District of Washington (Tacoma) over unnamed claims; case number C10-5670BHS.
- Plaintiffs moved to strike Defendants’ jury demand on March 17, 2011; response filed March 28, 2011; reply March 31, 2011.
- Defendants filed their answer December 6, 2010 without a jury demand; jury demand was filed January 26, 2011.
- Joint status report filed January 27, 2011 expressed Defendants’ request for a jury trial and Plaintiffs’ belief the demand was untimely.
- Court previously set the matter for jury trial in response to the joint status report; issue is whether the demand was timely.
- Court concludes Defendants’ jury demand was untimely and that no substantial reason exists to order a jury trial under Rule 39(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of jury demand under Rule 38(b) | Tarrier/Garland: demand untimely | Defendants: demand timely relative to JSR | Untimely; rule requires last pleading, not JSR, so no relief under Rule 39(b). |
| Discretionary relief under Rule 39(b) after untimely demand | No discretionary relief for untimely demand | Rule 39(b) relief unavailable without timely motion | Court cannot order jury trial in its discretion. |
| What constitutes the last pleading directing to the issue | JSR not a pleading under Rule 38 | Jury demand timely because before JSR | Last pleading triggering Rule 38 is December 6, 2010 Answer. |
Key Cases Cited
- General Tire & Rubber Co. v. Watkins, 331 F.2d 192 (4th Cir. 1964) (waiver of jury trial may be avoided if timely; not absolute)
- Aetna Ins. Co. v. Kennedy, 301 U.S. 389 (1937) (right to jury trial is fundamental but may be waived if untimely)
- Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002) (Rule 39(b) discretion is narrow; cannot cure mere inadvertence)
- Pacific Fisheries Corp. v. HIH Cas. & General Ins., Ltd., 239 F.3d 1000 (9th Cir. 2001) (untimely jury demand requires substantial reason beyond inadvertence)
- Pacific Fisheries Corp., 239 F.3d 1002 (9th Cir. 2001) ((cited) corroborating narrow Rule 39(b) discretion)
- Solis v. Los Angeles, 514 F.3d 946 (9th Cir. 2008) (timeliness governs waiver of jury demand)
- Pradier v. Elespuru, 641 F.2d 808 (9th Cir. 1981) (Rule 38 purposes; pleading scope includes certain documents)
- Burns v. Lawther, 53 F.3d 1237 (11th Cir. 1995) (textual definition of pleadings for Rule 38)