Young v. Progressive Casualty Insurance Company
ORDER denying 16 Motion to add jury demand. signed by District Judge Donald W Molloy on 1/6/2017. (Ethridge, D)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JOHN CORDELL YOUNG, JR.,
On July 13, 2016, plaintiff John Young, Jr. filed suit against defendant
Progressive Insurance in California Superior Court, alleging breaches of contract
and of the implied covenant of good faith and fair dealing. (Doc. 1-1.) Young did
not make a jury demand. Progressive removed the action to federal court on
August 12, 2016. (Doc. 1.) Progressive indicated it desired a jury trial on the civil
cover sheet but failed to file a formal jury demand within the 14 days required by
Federal Rule of Civil Procedure 38(b). Nor was a jury demand noted or included
in Progressive’s initial Answer. Eastern District Local Rule 201 states that “[a]ny
notation on a civil cover sheet . . . concerning whether a jury trial is or is not
demanded, shall not constitute a demand for jury trial.” Having therefore waived
its right to a jury trial, Progressive now moves unopposed to add a jury demand.
(Doc. 16.) Despite three potential avenues for relief, Progressive’s motion fails.
Progressive cites Federal Rule of Civil Procedure 39(b) to support its
argument that, although it has waived its right to a jury trial by failing to timely
demand one, this Court nevertheless has the discretion to grant one. However,
“‘[t]hat discretion is narrow . . . and does not permit a court to grant relief when
the failure to make a timely demand results from an oversight or inadvertence.’”
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)). In the
Ninth Circuit, “[a]n untimely request for a jury trial must be denied unless some
cause beyond mere inadvertence is shown.” Id. (citing Mardesch v. Marciel, 538
F.2d 848, 849 (9th Cir. 1976)). Because, as its own brief argues, Progessive’s
omission of a jury demand resulted solely from inadvertence, Rule 39(b) provides
Progressive no assistance here. The fact that Progressive’s motion is unopposed
does not alter this conclusion.
Although not cited by Progressive, Federal Rule of Civil Procedure 81(c)
concerns the applicability of the Federal Rules of Civil Procedure in removal
actions such as this. Rule 81(c)(3)(A) speaks specifically to the effect of state law
on the jury trial demand requirement, providing that “[i]f the state law [does] 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 state law
in this context is California Code of Civil Procedure § 631, which states in
pertinent part that a jury trial in civil cases may be waived if a party “fail[s] to
announce that a jury is required.” In other words, under California law a party
desiring a civil jury trial must request one. Wave House Belmont Park, LLC. v.
Travelers Prop. Case. Co. of Am., 244 F.R.D. 608, 613 (S.D. Cal. 2007); see also
Grafton Partners L.P. v. Superior Court, 36 Cal.4th 944, 951-52, 956-57 (Cal.
2005) (discussing waiver of jury trial under the California constitution and § 631).
This Progressive did not do. In addition, even though § 631 would still have
allowed Progressive to request a jury trial in the underlying state action at the time
the case was removed to federal court, the requirement that a jury request actually
be made nevertheless remains. See Ortega v. Home Depot U.S.A., Inc., 2012 WL
77020, *3 (E.D. Cal. Jan. 10, 2012). Rule 81(c) therefore provides no relief.
Finally, Progressive argues that because its Amended Answer (Doc. 17)
raises new affirmative defenses, it is entitled to a renewed jury demand under Rule
38(b). However, “the presentation of a new theory does not constitute the
presentation of a new issue on which a jury trial should be granted under  Rule
38(b).” Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1050 (9th
Cir. 1974.) “Rather, Rule 38(b) is concerned with issues of fact.” Lutz v.
Glendale Union High Sch., Dist. No. 205, 403 F.3d 1061, 1066 (9th Cir. 2004)
(emphasis original) (citing Las Vegas Sun, Inc. v. Summar Corp., 610 F.2d 614,
620 (9th Cir. 1979)). Progressive’s Amended Answer asserts an additional
affirmative defense of policy exclusion, arguing that Young’s complaint is barred
“by the insuring agreement, exclusions, definitions, policy provisions,
endorsements and other terms and conditions contained in the written policy of
insurance at issue.” (Doc. 17 at 5.) This new defense neither introduces nor
requires new facts, as the insurance policy it relies upon is already at issue in this
The relief Progressive seeks is unavailable. Rule 39(b) is of no avail. Rule
81(c) serves only to confirm that a jury demand was required here. Rule 38(b) is
not triggered by the presentation of new legal theories. The incongruity between
the importance of a right guaranteed by both the United States and California
constitutions and the limited protection provided here is inescapable. To grant
Progressive’s motion, however, would be counter to prevailing legal authority in
this area and create a potentially appealable issue in this case.
Accordingly, IT IS ORDERED that Progressive’s motion (Doc. 16) is
DATED this 6th day of January, 2017.
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