Shepard v. Borum et al

Filing 115

ORDER DENYING Plaintiff's 113 114 Motions Demanding a Bench Trial signed by Magistrate Judge Helena M. Barch-Kuchta on 11/28/2022. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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Plaintiff,

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Case No. 1:18-cv-00277-ADA-HBK
ORDER DENYING PLAINTIFF’S MOTIONS
DEMANDING A BENCH TRIAL

v.
(Doc. Nos. 113, 114)

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M. BORUM and J. ACEBEDO,

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Defendants.

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Plaintiff filed two separate motions in which he states he waives his right to a jury trial

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and demands a bench jury. (Doc. Nos. 113, 114). In his first motion, Plaintiff requests a bench

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trial pursuant to Article VII of California’s constitution. (Doc. No. 113 at 1). In his second

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motion, Plaintiff requests a bench trial pursuant to the United States Constitution. (Doc. No.

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114).1
Under federal law, “[t]he right of trial by jury…is preserved to the parties inviolate.” Fed.

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R. Civ. P. 38(a). “A party waives a jury trial unless its demand is properly served and filed. A

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proper demand may be withdrawn only if the parties consent.” Rule 38(d). Unless all parties

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consent, a jury trial demand cannot be withdrawn. United States SEC v. Jensen, 853 F.3d 1100,

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Although Defendants have twenty-one (21) days to respond to Plaintiff motions, Local Rule 230(l), given
Defendants earlier demand for a jury trial the Court does not find a response from Defendants necessary to rule on
the pending motions. (Doc. Nos. 108 at 2, 19 at 5).

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1107 (9th Cir. 2016).

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As a court of federal jurisdiction, the state constitution of California has no bearing on this

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Court. Further, Defendants have not withdrawn their earlier demands to a jury trial. (See

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Defendants’ Answer at Doc. No. 19 at 5; Defendants’ Pretrial Statement at 108 at 2). Further, at

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the recent telephonic trial confirmation hearing held on October 11, 2022, Plaintiff stated his

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intent to waive his right to a jury trial and proceed to a bench trial, but Defendants unequivocally

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stated that they will not waive their demand to a jury trial.

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Accordingly, it is ORDERED:

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Plaintiff’s motions demanding a bench trial (Doc. Nos. 113, 114) are DENIED. Unless

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Defendants consent to withdraw their earlier demands, this case will proceed to a jury trial.
Dated:

November 28, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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