Figueroa v. Gannett Company Incorporated et al

Filing 107

ORDER GRANTING 30 Plaintiff's Request for a Jury Trial filed by Natalie Figueroa. Signed by Senior Judge Cindy K Jorgenson on 4/27/21.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Natalie Figueroa,

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Plaintiff,

No. CV-19-00022-CKJ
ORDER

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v.

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Gannett Co. Inc., et al.,

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Defendants.

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Pending before the Court is Plaintiff Natalie Figueroa’s Request for Jury Trial,

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(Doc. 30). For the reasons that follow, Plaintiff’s Request for Jury Trial is hereby

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GRANTED.

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BACKGROUND AND PROCEDURAL HISTORY

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Figueroa filed her complaint in the Pima County Superior Court on November 6,

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2018, alleging wrongful termination of employment and discrimination under the ADA.

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(Doc. 1-3 at 13-16) The Complaint did not include a request for a jury trial. (Id.) In fact,

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both the civil cover sheet, (Doc. 1-1), and the supplemental cover sheet (Doc. 1-2), noted

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this lack of a request for a jury trial.

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Defendants removed the action to this Court on January 14, 2019. (Doc. 1)

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Defendants claim, and Figueroa does not deny, that at the time of the removal, the

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Complaint and Summons constituted all filings served upon Defendants. (Id. at 2)

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Defendants filed their Answer to Figueroa’s Complaint on January 15, 2019. (Doc. 6)

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Plaintiff’s counsel mentioned an intent to request a jury trial in the Joint Case

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Management Report on April 23, 2019. (Doc. 22 at 11) Figueroa then filed her Request

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for Jury Trial on December 12, 2019. (Doc. 30) Defendants filed their Response in

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Opposition to Plaintiff’s Request for Jury Trial. (Doc. 88) An opposition, (Doc. 90), and

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sur-reply in opposition, (Doc. 100), were also filed.

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ANALYSIS

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Figueroa did not waive her right to a jury trial. In federal courts, a party must serve

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her request for a jury trial on the other parties within 14 days “after the last pleading

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directed to the issue is served.” Fed. R. Civ. P. 38(b)(1). The federal rules define pleadings

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as “a complaint; an answer to a complaint; an answer to a counterclaim designated as a

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counterclaim; an answer to a crossclaim; a third-party complaint; an answer to a third-party

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complaint; and if the court orders one, a reply to an answer.” Fed. R. Civ. P. 7. “A party

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waives a jury trial unless its demand is properly served and filed.” Fed. R. Civ. P. 38(d).

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But, in removed actions, there are exceptions to this rule. See Fed. R. Civ. P.

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81(c)(3). Important to this case, “[a] party who, before removal, expressly demanded a

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jury trial in accordance with state law need not renew the demand after removal” and,

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alternatively, “if the state law did not require an express demand for a jury trial, a party

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need not make one after removal unless the court orders the parties to do so within a

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specified time.” Fed. R. Civ. P. 81(c)(3)(A). Indeed, “the court must so order at a party’s

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request and may so order on its own.” Id. “Courts indulge every reasonable presumption

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against waiver” while also insisting “the jury demand be sufficiently clear to alert a careful

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reader that a jury trial is requested on an issue.” Lutz v. Glendale Union High Sch., 403

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F.3d 1061, 1064 (9th Cir. 2005).

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The pertinent Arizona rule changed on January 1, 2019, which fell between when

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Figueroa filed the Complaint, November 6, 2018, and Defendants filed for removal on

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January 14, 2019. The version of Ariz. R. Civ. P. 38 in effect on the date of Figueroa’s

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filing her Complaint required an express jury trial demand for non-medical malpractice

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actions saying, in part, in non-medical malpractice actions:

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a party may obtain a jury trial by filing and serving a written demand at any
time after the action is commended, but no later than the date on which the
court sets the trial date or 10 days after the date a Joint Report and Proposed
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Scheduling Order under Rule 16(c) are filed, whichever occurs first.

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1 ARIZONA RULES OF COURT, 103 (Thompson Reuters, 2017). “[A] party waives a jury

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trial unless its demand is properly filed and served.” Id.

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However, the amended rule, which went into effect on January 1, 2019, before the

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case’s removal does not require an express demand. The rule says, in part, “[t]he right of

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trial by jury is preserved to the parties inviolate. On any issue triable of right by a jury, a

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party need not file a written demand or take any other action in order to preserve its right

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to trial by jury.” Ariz. R. Civ. P. 38(a).

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In a case that was removed from Arizona state court to federal court in 2017, another

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Arizona district court held a plaintiff “failed to make a timely jury trial demand” because

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“when the action was filed in 2017, the Arizona Rules required an express demand.” See

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Ramos v. Wells Fargo Home Mortg., No. CV-17-00316-PHX-GMS, 2019 WL 2717095,

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at *5, n. 1 (D. Ariz. June 28, 2019). “The latest amendments to Arizona Rule 38 do not

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resurrect a jury trial right that was waived more than two years ago.” Id.

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Figueroa clearly did not meet the 14-day deadline in Federal Rule 38, serving her

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Request for Jury Trial on Defendants on December 12, 2019, (Doc. 30), almost a year after

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Defendants filed their answer on January 15, 2019, (Doc. 6). However, indulging the

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“every reasonable presumption against waiver” this Court finds the Fed. R. Civ. P.

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81(c)(3)(A) exception applies.

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Had Defendants removed the action before the rule change, this case would be

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similar to Ramos. However, in reviewing Federal Rule 81(c)(3)(A), the Court finds the

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date of removal to be determinative rather than the date of the action being filed. No party

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should be required to play by federal rules before arriving in federal court. Thirteen days

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before Figueroa’s case arrived in federal court, the Arizona rule changed and did not

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require an “express demand.” Had she stayed in state court, Figueroa could have filed her

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jury trial request up until the earliest date between the date of setting a trial date or 10 days

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after a Joint Report and Proposed Scheduling order. Ariz. R. Civ. P. 38 (eff. in 2018). This

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puts her in a significantly different position than the Ramos plaintiff, who waived her right

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to a jury trial “two years” before the court order.

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Additionally, the Court, whether on its own or by motion, never ordered the parties

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to make the request by a specified time. Defendants declined to submit this motion between

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Figueroa’s notification that she would request a jury trial in the Joint Case Management

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Report on April 23, 2019, (Doc. 22), and Figueroa’s very clear request on December 12,

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2019, (Doc. 30). Therefore, despite Figueroa’s Request for Jury Trial arriving more than

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a year after the action was filed in state court and close to a year after the case’s removal

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to this Court, the request is timely under Fed. R. Civ. P. 81(c)(3)(A).

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Accordingly, IT IS ORDERED Plaintiff’s Request for a Jury Trial (Doc. 30) is
GRANTED.
Dated this 27th day of April, 2021.

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