Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 50

NOTICE OF MOTION AND MOTION to Enforce Waiver of Right to Jury Trial filed by Plaintiff Asia Economic Institute. Motion set for hearing on 6/28/2010 at 01:30 PM before Judge Stephen V. Wilson. (Attachments: # 1 Exhibit 1 to Declaration of Lisa J. Borodkin, # 2 Exhibit 2 to Declaration of Lisa J. Borodkin, # 3 Exhibit 3 to Declaration of Lisa J. Borodkin)(Borodkin, Lisa)

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DANIEL F. BLACKERT, ESQ., CSB No. 255021 LISA J. BORODKIN, ESQ., CSB No. 196412 Asia Economic Institute 11766 Wilshire Blvd., Suite 260 Los Angeles, CA 90025 Telephone [phone] Facsimile [phone] [e-mail] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiffs, Asia Economic Institute, LLC Raymond Mobrez, and Iliana Llaneras UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) XCENTRIC VENTURES, LLC, an Arizona LLC, d/b/a as BADBUSINESS ) ) BUREAU and/or ) BADBUSINESSBUREAU.COM ) and/or RIP OFF REPORT and/or ) RIPOFFREPORT.COM; BAD ) BUSINESS BUREAU, LLC, organized ) ) and existing under the laws of St. ) Kitts/Nevis, West Indies; EDWARD MAGEDSON an individual, and DOES ) ) 1 through 100, inclusive, ) ) Defendants. ) ASIA ECONOMIC INSTITUTE, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Case No.: 2:10-cv-01360-SVW-PJW PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR BENCH TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LISA J. BORODKIN AND CERTIFICATION OF COMPLIANCE WITH LOCAL CIVIL RULE 7-3 Judge: The Hon. Stephen V. Wilson June 28, 2010 1:30 p.m. 312 North Spring Street Los Angeles, California 90012 Courtroom: 6 Complaint Filed: Pretrial Conference: August 2, 2010 Trial Date: August 3, 2010 Date: Time: Place:

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TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on June 28, 2010 at 1:30 p.m., in Courtroom 6 of the above-entitled Court, located at 312 N. Spring Street, Los Angeles, California, 90012, the above-named plaintiffs will and hereby do move this Honorable Court for an order granting Plaintiffs a bench trial in the August 3, 2010 trial of this matter. The Motion is based on the grounds that the right to a jury trial has been waived pursuant to Federal Rules of Civil Procedure 38 and 81 because no demand for a jury trial has been filed in this action and it has been more than fourteen (14) days since the last pleading was filed directed at the causes of action set for trial on August 3, 2010; a bench trial would serve judicial economy; Plaintiffs would suffer prejudice from a jury trial because Plaintiffs have been

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preparing for trial in reliance on the lack of a jury demand; and the interests of
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justice would be served by a bench trial by sparing Plaintiffs the additional burden
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and expense of preparing jury instructions.
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This Motion is based on Federal Rules of Procedure 38 and 81, Local
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Civil Rule 7, the attached Memorandum of Points and Authorities and Declaration
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of Lisa J. Borodkin, the pleadings, papers and proceedings in this action, and such other matters as the Court deems proper. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on May 11, 2010. DATED: May 31, 2010 Respectfully submitted, By: /s/ Lisa J. Borodkin DANIEL F. BLACKERT LISA J. BORODKIN Attorneys for Plaintiffs Asia Economic Institute LLC, Raymond Mobrez, and Iliana Llaneras

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MEMORANDUM OF POINTS AND AUTHORITIES 1. Preliminary Statement Plaintiffs Asia Economic Institute LLC, Raymond Mobrez and Iliana Llaneras ("Plaintiffs") hereby move pursuant to Federal Rules of Civil Procedure 38 and 81 for an order granting Plaintiffs' motion for a bench trial. Defendants Xcentric Ventures, LLC and Edward Magedson ("Defendants") failed to serve and file a timely demand for a jury trial and thus, waived the right to a jury under Rule 38. The interests of justice require a bench trial. Plaintiffs have been preparing for a bench trial in reliance on the lack of a jury trial demand and would be prejudiced by the granting of any late request for a jury. 2. Background On January 27, 2010, Plaintiffs commenced this action by filing the Complaint in Los Angeles Superior Court. DN-1 at Ex. A.1 Plaintiffs claim violations of the federal Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C § 1962(c) and (d) ("RICO"), extortion, common law defamation, unfair business practices, civil conspiracy, defamation per se, false light, intentional and negligent interference with prospective economic relations, and inducing breach of contract. DN-1. On or about February 24, 2010, Defendants Xcentric Ventures, LLC and Edward Magedson removed the action to this Court. DN-1. On February 24, 2010, Defendants filed an Answer. DN-4. Defendants' Answer did not include a demand for a jury trial. DN-4. On April 19, 2010, proceedings were held before this Court. DN-26. This Court denied Defendants' Special Motion to Strike and Motion To Require RICO Case Statement, bifurcated the action, and set a trial date of August 3, 2010: THE COURT: And so anyway, I'm going to keep the

References to "DN-_" are to entries on the civil docket for this action.
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dates, and then we'll be flexible if we have to. But, you know, I'll know more when you make your summary judgment motion, and I'll react accordingly. So the date is when again, Paul? THE CLERK: August 3rd at 9:00 a.m. THE COURT: And the pretrial the day before. And the trial is

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bifurcated, RICO extortion only, no damages. And you can set a motion any
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time that you feel you have the wherewithal to make it. Declaration of Lisa J. Borodkin ("Borodkin Dec.") ¶4; Ex. 1; DN-26. To date, Defendants have not served or filed a demand for a jury trial. 3. Legal Argument A. Defendants Waived the Right to a Jury by Failing to Serve and File a Timely Jury Demand Pursuant to Fed. R. Civ. Proc. 38(d). Federal Rule of Civil Procedure 38 provides in part: (b) Demand. 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; and (2) filing the demand in accordance with Rule 5(d). * * * (d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed[.] Fed. R. Civ. Proc. 38(b), (d) (emphasis added). The federal "rules apply to a civil action after it is removed from a state court." Fed. R. Civ. Proc. 81(c)(1). Federal Rule 8l provides, in part:

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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. Fed. R. Civ. Proc. 81(c)(3)(A). Under California law, a litigant waives a jury trial, inter alia, by failing to "announce that a jury is required" at the time the trial is set: (d) A party waives trial by jury in any of the following ways: (1) By failing to appear at the trial. (2) By written consent filed with the clerk or judge. (3) By oral consent, in open court, entered in the minutes.

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(4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation. (5) By failing to deposit with the clerk, or judge, advance jury fees as provided in subdivision (b). (6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day's session, the sum provided in subdivision (c). Cal. Code. Civ. Proc. §§ 631(d) (emphasis added). The Ninth Circuit interpreted this statute as requiring an "express demand." See Lewis v. Time, 710 F.2d 559, 556 (9th Cir. 1983). Therefore, a

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demand for a jury trial must be filed "not later than [14]2 days after the service of the last pleading directed to such issue [to be tried]." Id. Failure to file a jury demand within this time is a waiver of the right to trial by jury. See id. Defendants have not served or filed a demand for a jury trial. It has been approximately three months since the Defendants filed the Answer. See DN4. Defendants have been aware since at least April 30, 2010 that Plaintiffs want a bench trial. See Borodkin Dec. ¶7. Even after May 11, 2010, when counsel for the parties met and conferred regarding Defendants' failure to file a jury demand,

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Defendants have not served or filed a jury demand. Id. ¶5.
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These failures are more than simple inadvertence or mistake of law. They are knowing waivers of the right to a jury. Therefore, this Court should grant Plaintiffs' motion for a bench trial. B. This Court Should Not Exercise Its Discretion To Relieve Defendants Of Their Obligation To Demand A Jury Trial. While district courts are afforded some discretion to relieve parties of this burden under F.R.C.P. 39(b), this discretion is narrow and "does not permit a court to grant relief when the failure to make a timely demand results from oversight or inadvertence." The Court of Appeals for the Ninth Circuit has held that where no demand for a jury trial has been made, and the failure to do so is no more than inadvertence, a litigant waives his right to a jury trial: A district court's discretion [to relieve a party of a failure to timely demand a jury] is narrow and `does not permit a court to grant relief when the failure to make a timely demand results from an

The quotation from Lewis v. Time states that 10 days is the standard. However,

in 2009 the statute was amended to allow for jury demand 14 days after the last pleading.
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oversight or inadvertence' such as a good faith mistake of law with respect to the deadline for demanding a jury trial. See Zivkovic v. S. Cal. Edicson Co., 302 F.3d 1080, 1086-87 (9th Cir. 2002) (emphasis added). See also Rook v. Universal Songs of Polygram, 350 Fed. Appx. 102, 104 (9th Cir. 2009) (district court did not abuse its discretion when it denied untimely motion for a jury trial because movant "did not demonstrate that his failure to request a jury trial in a timely manner was anything more than inadvertence."); Pacific Fisheries Corp. v. H.I.H. Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001) ("An untimely request for a jury trial must be denied unless some cause beyond mere inadvertence is shown."); Russ v. Standard Ins. Co., 120 F.3d 988, 989-90 (9th Cir. 1997) (holding that the district court could not employ another rule to circumvent this circuit's prohibition on granting untimely jury demands due to inadvertence); Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d 68, 71 (9th Cir. 1996) (denying untimely jury demand when due to counsel's oversight and inadvertence); Wall v. Nat'l R.R. Passenger Corp., 718 F.2d 906, 910 (9th Cir. 1983) (holding district court's denial of untimely jury demand not an abuse of discretion where counsel's inadvertence was the only reason shown). Defendants have made no showing that their failure to demand a jury trial was anything other than a mistake on their part. Furthermore, due to Defendants' failure to make a jury trial demand, Plaintiffs have been operating under the assumption that they are preparing for a bench trial. Changing the nature of the trial at this stage would be extremely prejudicial to the Plaintiffs. Preparing jury instructions would be burdensome and expensive for Plaintiffs, and add unnecessarily to the length of trial. Therefore, this Court should grant this motion for a bench trial. CONCLUSION For the foregoing reasons, this motion should be granted in its entirety.
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DATED: May 31, 2010 By:

Respectfully submitted, /s/ Lisa J. Borodkin DANIEL F. BLACKERT LISA J. BORODKIN Attorneys for Plaintiffs, Asia Economic Institute LLC, Raymond Mobrez, and Iliana Llaneras

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DECLARATION OF LISA J. BORODKIN AND CERTIFICATION OF COMPLIANCE WITH LOCAL CIVIL RULE 7-3 I, Lisa J. Borodkin, declare: 1. I am an attorney at law, duly admitted to practice before all the courts of the State of California and this Honorable Court. I am co-counsel of record for Plaintiffs Asia Economic Institute LLC, Raymond Mobrez and Iliana Llaneras ("Plaintiffs") in this action. I have first-hand, personal knowledge of the facts set forth below and, if called as a witness, I could and would testify competently thereto. 2. Bench Trial. 3. Attached hereto as Exhibit "1" is a true and correct copy of the Reporter's Transcript of the April 19, 2010 proceedings before this Court by Ms. Deborah K. Gackle. 4. On April 19, 2010, this Court set a trial date of August 3, 2010 for the RICO extortion claims in this action: THE COURT: And so anyway, I'm going to keep the dates, and then we'll be flexible if we have to. But, you know, I'll know more when you make your summary judgment motion, and I'll react accordingly. So the date is when again, Paul? THE CLERK: August 3rd at 9:00 a.m. THE COURT: And the pretrial the day before. And the trial is This Declaration is made in support of Plaintiffs' Motion for

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bifurcated, RICO extortion only, no damages. And you can set a motion any
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time that you feel you have the wherewithal to make it.
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Ex. 1 at 22:11-:20. 5. Counsel for Defendants, David S. Gingras, did not make a request for jury trial on April 19, 2010, when this Court set a trial date. Defendants have not otherwise filed a jury demand.
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7.

On Friday, April 30, 2010, I sent Defense counsel a draft Rule

26(f) report, which contained Plaintiffs' statement that "Plaintiffs request a bench trial, not a jury trial." On May 7, 2010, I learned for the first time that Defendants' counsel thought this case was set for a jury trial. I advised Mr. Gingras that Plaintiffs believe a jury was waived, and asked if Defendants wanted a jury trial. 8. On May 7, 2010, Mr. Gingras advised me by email that Defendants' position is that "if this case goes to trial, we believe it is appropriate for the matter to be tried to a jury as the court's trial setting order already indicates." Attached hereto as Exhibit "2" is a true and correct copy of relevant correspondence between Mr. Gingras and me on May 7, 2010 evidencing Defendants' position. 9. On May 11, 2010, I met and conferred telephonically in good faith with Mr. Gingras pursuant to Local Civil Rule 7-3 in an attempt to eliminate the need for this motion. I advised Mr. Gingras in advance of the Rule 7-3 teleconference that Plaintiffs believe Defendants waived the right to a jury by not timely filing and serving a jury demand, and that the references to a jury trial in the Court minutes of the April 19, 2010 proceeding are a clerical error. Attached hereto as Exhibit "3" is a true and correct copy of relevant correspondence dated May 11, 2010 from me to Mr. Gingras setting forth Plaintiffs' position regarding the waiver of jury trial. 10. The May 11, 2010 teleconference was unsuccessful in eliminating the need for this Motion. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this 31st day of May, 2010, in Los Angeles, California. /s/ Lisa J. Borodkin Lisa J. Borodkin
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