Richey v. Matanuska-Susitna Borough
ORDER re 44 Motion to Strike. The motion at docket 44 is GRANTED IN PART AND DENIED IN PART. Factual issues related to the immunity defense and the exhaustion of remedies defense will be tried by a jury. All other issues will be tried by the court. Signed by Judge John W. Sedwick on 2/20/15. (GMM, CHAMBERS STAFF)
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
ORDER AND OPINION
[Re: Motion at docket 44]
I. MOTION PRESENTED
At docket 44, defendant Matanuska-Susitna Borough (“MSB”) moves to strike
the jury demand filed by plaintiff Andrea Richey (“Richey”). Richey’s response is at
docket 45. MSB replies at docket 46. Oral argument has not been requested and
would not assist the court.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 81 governs jury demands in a removed action.
Pursuant to Rule 81, a party is entitled to a jury trial if the party serves a demand within
14 days after removal.1 A party is also entitled to a jury trial under Rule 81 if the party
made a proper jury request under state law before removal2 or if the state complaint
Fed. R. Civ P. 81(c)(3)(B).
Fed. R. Civ. P. 81(c)(3)(A).
contained a jury demand that would have satisfied Rule 38(b) [of the Federal Rules of
Pursuant to Rule 39 of the Federal Rules of Civil Procedure, a court in its
discretion “may, on motion, order a trial by a jury of any or all issues.”4 However, the
court’s discretion is limited under Ninth Circuit law: The court may not “grant relief when
the failure to make a timely demand results from an oversight or inadvertence.”5
The complaint by the original plaintiff in this class action case dated January 17,
2014, was filed in state court. In July of 2014, plaintiff moved to file an amended
complaint adding, for the first time, a claim arising under federal law. The state court
judge granted the motion in an order signed August 11, 2014. Thereafter, MSB timely
removed the case to this court. It is undisputed that plaintif f did not file a demand for a
jury trial in federal court after removal. Thus, the issue presented in defendant’s motion
is whether plaintiff properly filed a jury demand under state law before removal.
Plaintiff first filed a demand for jury trial on April 16, 2014, while the case was in
state court. The filing was untimely under Alaska Rule of Civil Procedure 38(b). It has
long been recognized that failing to file a timely demand for a jury trial waives the right
to a jury under Alaska law.6 MSB relies on these straightforward principles to support
Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1064 (9th Cir. 2005).
Fed. R. Civ. P. 39(b).
Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001)
(quoting Lewis v. Time Inc., 710 F.2d 549, 556-57 (9th Cir. 1983)) (internal quotations omitted).
State v. First Nat’l Bank of Anchorage, 660 P.2d 406, 424 (Alaska 1982).
its motion. To avoid the waiver, Richey argues that the filing of an amended answer in
state court on April 16, 2014, which raised new issues, revived her right to demand a
jury trial. Indeed, under Alaska law, an amended pleading that raises new issues gives
rise to the right to demand a jury, but only as to the newly raised issues.7 Thus, even if
defendant’s amended answer raised new issues, plaintiff’s demand was only timely as
to those newly asserted issues.
The amended answer was almost identical to the original answer. According to
MSB, the only change was addition of a defense asserting discretionary function
immunity. However, the court notes that the amended answer also added as a defense
an allegation that plaintiffs failed to exhaust administrative remedies. MSB correctly
argues that where an amended pleading is almost identical to the original pleading the
time within which a jury demand may be made is not re-started. 8 However, the issue is
a bit more complicated here.
To begin with, asserting defenses of qualified immunity and failure to exhaust
administrative remedies raises legal issues which go beyond those raised in the earlier
answer. Turning first to the qualified immunity defense, it should be noted that in
Alaska, municipal governments such as MSB are immune from tort liability when the
action complained of resulted from the exercise of a discretionary function.9 MSB
argues that the availability of discretionary function immunity is an issue of law to be
See Hollembaek v. Alaska Rural Rehabilitation Corp., 447 P.2d 67, 69 n.4, 70 (Alaska
1968); see also Jerald Jay Director, Rule 38 of Federal Rules of Civil Procedure: Waived Right
to Jury Trial as Revived by Amended or Supplemental Pleadings, 18 A.L.R. Fed. 754 (1974).
Pankratz v. State Dep’t of Highways, 652 P.2d 68, 71 n.5 (Alaska 1982).
AS § 09.65.070(d)(2).
decided by the court, not a jury. If that is accurate and applicable here, then MSB is
correct to assert that Richey should not have a renewed opportunity to demand a jury
because this defense was added.
MSB cites Cutler v. Kodiak Island Borough 10 to support its argument. In Cutler
the defendant borough had argued to the trial court that it was entitled to discretionary
function immunity, but the trial court granted summary judgment to the borough on
other grounds and did not address the issue. On appeal the Alaska Suprem e Court
reversed the trial court’s decision awarding summary judgment to the borough on the
merits, but determined that the borough was immune from a claim for damages based
on its exercise of a discretionary function.11 While it is correct to say that the ultimate
decision on whether a defendant is entitled to discretionary immunity is a decision to be
made by the court, it is also true that where factual disputes must first be resolved in
order to provide the factual basis upon which the judicial determination can be made,
resolution of those disputes is for the jury.12 Here, resolution of the claim to qualified
immunity might involve underlying factual disputes which the finder of fact would not
have to resolve but for the addition of that defense.
The defense of failure to exhaust administrative remedies necessarily involves
facts that would not need to be addressed, but f or the addition of that defense. The
validity of the defense raises a number of subsidiary issues: were such remedies
290 P.3d 415 (Alaska 2012).
Id. at 420-21.
State Dep’t of Health and Human Servs. v. Mullins, 328 P.3d 1038, 1044 (Alaska
generally available; if so, were they available remedies with respect to all claims
advanced by plaintiffs; if so, did plaintiffs use or attempt to use those remedies; would
pursuit of such remedies have been futile for some reason; etc. These issues turn on
facts that would not need to be addressed absent the new defense.
In sum, it appears to the court that addition of the two new defenses implicates
facts not implicated in their absence. The amended answer is the last pleading directed
at the newly raised issues, which is controlling under the applicable rule. 13 The jury
demand as to the newly raised issues was, therefore, timely under state law. Thus, the
two new defenses would need to be evaluated by the trier of fact, unless they are not in
dispute. At this stage it is impossible to ascertain what all the facts would be and
whether they would be disputed.
Plaintiff asserts in her response that the court should exercise its discretion to
order a jury trial as to all remaining issues pursuant to Rule 39 of the Federal Rules of
Civil Procedure. However, as noted above, the court’s discretion is limited: “An
untimely request for a jury trial must be denied unless some cause beyond mere
inadvertence is shown.”14 Plaintiff failed to present any evidence demonstrating that the
failure to properly demand a jury trial under state law prior to removal or within 14 days
of removal was the result of anything other than inadvertence. Thus, the court cannot
use its discretion to simplify matters and have a jury decide all factual issues. Although,
because of the difficulties in compartmentalizing the facts so as to allow a jury trial on
Alaska R. Civ. P. 38(b).
Pac. Fisheries Corp., 239 F.3d at 1002.
some factual issues but not others, the court may consider using “an advisory jury” on
the remaining factual issues pursuant to Rule 39(c), but the court will leave that matter
to be resolved after motion practice concludes.
For the reasons above, the motion at docket 44 is GRANTED IN PART AND
DENIED IN PART. Factual issues related to the immunity defense and the exhaustion
of remedies defense will be tried by a jury. All other issues will be tried by the court.
DATED this 20th day of February 2015.
/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE
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