eMove Incorporated v. SMD Software Incorporated et al
ORDER re 125 Memorandum - I FIND that the defendants have withdrawn any indication of consent within a sufficient time in advance of trial, and for that reason as well Rule 39(c)(2) does not apply. In conclusion, the plaintiff failed to properly demand a jury trial under the Federal Rules of Civil Procedure, and absent a reason beyond mere inadvertence, the court does not have discretion to order a jury trial under Rule 39(b). The plaintiff's motion is DENIED. Signed by Judge Joseph R Goodwin on 3/6/2012. (KMG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
SMD SOFTWARE INCORPORATED, et al.,
MEMORANDUM OPINION AND ORDER
Pending before the court is the Plaintiff Emove Inc.’s Memorandum Regarding Demand for
Jury Trial and in the Alternative, Rule 39(b) Request for Trial by Jury [Docket 125]. For the
reasons discussed below, this Motion is DENIED and the suit will proceed as a bench trial.
The plaintiff filed its complaint on August 31, 2010, in Maricopa County Superior Court,
Arizona. On September 23, 2010, the defendant removed the case to this court, and filed its
answer the next day. The court issued an Order Setting Rule 16 Scheduling Conference on
October 26, 2010. In its order, the court stated: “the parties shall develop a joint proposed
Discovery Plan which contains the following information: . . . 13. Whether a jury trial has been
requested and whether the request for jury trial is contested (if the request is contested, set forth
the reasons).” (Ord. Setting Rule 16 Scheduling Conference, [Docket 7] at 4.) The parties’ Joint
Proposed Discovery Plan, filed on January 21, 2011, states in paragraph 13: “Plaintiff requests a
jury trial.” (Joint Proposed Discovery Plan, [Docket 12] at 13.) This issue was not discussed at
the January 28, 2011 scheduling conference. The court’s Order Granting Stipulation Regarding
Motions, filed on November 14, 2011, scheduled a bench trial for April 2, 2012, and in its
January 24, 2012 Order, the court rescheduled the bench trial for May 21, 2012. In addition, the
case has been docketed as a bench trial.
Federal Rule of Civil Procedure 38 preserves the right to a jury trial. It states that: “The right
of trial by jury as declared by the Seventh Amendment to the Constitution . . . is preserved to the
parties inviolate.” FED. R. CIV. P. 38(a). Rule 38 provides that a party may demand a jury trial
by: “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.” FED. R. CIV. P. 38(b). A
party waives its right to a jury trial if it fails to properly serve and file its demand. FED. R. CIV.
P. 38(d). Here, the defendants answered on September 24, 2010, and the plaintiff did not
demand a jury trial within 14 days of the answer, failing to comply with Rule 38(b).
However, when a case is removed from state court, demand for a jury trial is also governed
by Rule 81(c)(3):
(A) As Affected by State Law. A party who, before removal, expressly demanded
a jury trial in accordance with state law need not renew the demand after
removal. If the state law did not require an express demand for a jury trial, a
party need not make one after removal unless the court orders the parties to
do so within a specified time. The court must so order at a party’s request and
may so order on its own. A party who fails to make a demand when so
ordered waives a jury trial.
(B) Under Rule 38. If all necessary pleadings have been served at the time of
removal, a party entitled to a jury trial under Rule 38 must be given one if the
party serves a demand within 14 days after: (i) it files a notice of removal; or
(ii) it is served with a notice of removal filed by another party.
In this case, the plaintiff did not expressly demand a jury trial before removal, so the first
scenario outlined above does not apply. Under the second scenario, where state law does not
require an express demand for a jury trial, a party does not have to make an express demand in
federal court unless ordered by the court. In Arizona, demand for a jury trial may be made “at
any time after the commencement of the action, but not later than the date of setting the case for
trial or ten days after a motion to set the case for trial is served, whichever first occurs.” ARIZ. R.
CIV. P. 38(b). A party waives trial by jury if it does not serve a demand in accordance with the
rules. ARIZ. R. CIV. P. 38(d). Consequently, Arizona expressly requires a jury trial demand so
the second scenario is not applicable.1 Part (B) also does not apply because all the necessary
pleadings had not been filed at the time of removal.
If neither party timely demands a jury trial, “the court may, on motion, order a jury trial
on any issue for which a jury might have been demanded.” FED. R. CIV. P. 39(b). Different
circuits of the U.S. Courts of Appeals maintain different standards for how judges should
exercise their discretion under Rule 39(b). 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 2334 (3d ed. 1987). In the Ninth Circuit, “An untimely
request for a jury trial must be denied unless some cause beyond mere inadvertence is shown.”
Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001); see
also Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1086 (9th Cir. 2002). Moreover, “A good
faith mistake of law is no different than inadvertence or oversight.” Pac. Fisheries Corp., 302
F.3d at 1003. eMove provides no reason for its untimely request beyond mere inadvertence or
perhaps mistake of law, neither of which is sufficient for the court to order a jury trial under Rule
The plaintiff’s final argument is that it is entitled to a jury trial under Rule 39(c)(2)
because the defendants consented to a jury trial. The plaintiff explains that it informed the
Rule 81(c) does not apply even when the plaintiff has not yet waived its right to a jury trial under the state
procedural rules. Ortega v. Home Depot, U.S.A., Inc., Civ. 2:11-1921, 2012 WL 77020, at *3 (E.D. Cal. Jan. 10,
2012) (“The application of Rule 81(c) does not vary based on the stage of litigation in state court at the time of
removal, but rather on whether the state requires an express demand to preserves the party’s right to a jury trial.”)
defendants during its Rule 16 Conference that it requested a jury trial and the defendants did not
oppose this request. According to the plaintiff, the defendants did not oppose a jury trial until
November 2011. Therefore, the plaintiff argues that “the objection comes too late” and the court
should find that the defendants have consented to a jury trial.
Rule 39(c)(2) states:
In an action not triable of right by a jury, the court, on motion or on its own: . . .
(2) may, with the parties’ consent, try any issue by a jury whose verdict has the
same effect as if a jury trial had been a matter of right, unless the action is against
the United States and a federal statute provides for a nonjury trial.
FED. R. CIV. P. 39(c)(2). For a couple of reasons, I do not invoke Rule 39(c)(2) to order a jury
trial. First, the plaintiff has not demonstrated that Rule 39(c)(2) even applies to the instant suit.
Under this rule, the court may try an issue by a jury with the parties’ consent, “[i]n an action not
triable of right by a jury.” See 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PROCEDURE § 2333 (3d ed. 1987). In other words, it applies when at least one
party demands a jury trial on issues where there is no constitutional or statutory right to trial by a
jury, like when the plaintiff seeks equitable relief. See, e.g., Pals v. Schepel Buick & GMS
Truck, Inc., 220 F.3d 495, 500-01 (7th Cir. 2000) (upholding a judgment where the jury
determined equitable relief in the form of back pay and front pay on an Americans with
Disabilities Act claim when the defendant’s answer demanded a jury trial as to all issues, the
plaintiff did not object, and the case proceeded to jury trial). eMove does not allege that it did
not have a constitutional or statutory right to a jury trial. Rather, the plaintiff’s complaint alleges
business defamation, tortious interference with business relationships, interference with valid
business expectancy, violation of the Lanham Act, and unfair competition. In this case, the
plaintiff had a right to a jury trial as to the factual issues and damages, but waived it by failing to
make a timely demand. Consequently, I FIND that Rule 39(c)(2) does not apply.
Even if Rule 39(c)(2) applied, “there is no restraint in the text of Rule 39 on the ability of
a party to withdraw its consent to a jury trial.” Kramer v. Banc of America Sec., LLC, 355 F.3d
961, 968 (7th Cir. 2004), Thaler v. PRB Metal Prods., Inc., 810 F. Supp. 49, 50 (E.D.N.Y. 1993).
Although consent does not have to be express, the defendants here expressly object to a jury trial.
In Kramer, the defendant filed its motion to strike the jury demand two weeks before trial. In
contrast, eMove states that the defendants first opposed a jury trial in November 2011—several
months in advance of trial. Although the plaintiff claims that it has been preparing for a jury
trial, it does not adequately explain how it has been prejudiced by the defendants’ objection to a
jury trial. Accordingly, I FIND that the defendants have withdrawn any indication of consent
within a sufficient time in advance of trial, and for that reason as well Rule 39(c)(2) does not
In conclusion, the plaintiff failed to properly demand a jury trial under the Federal Rules
of Civil Procedure, and absent a reason beyond mere inadvertence, the court does not have
discretion to order a jury trial under Rule 39(b). The plaintiff’s motion is DENIED. The court
DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented
ENTER: March 6, 2012
Even if Rule 39(c)(2) applied because the plaintiff’s action is not triable of right by the jury and the defendants
consented, Rule 39(c) is permissive and the court is not obligated to order a jury trial. Kramer, 355 F.3d 961 at 968
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