KFD Enterprises Inc v. City of Eureka

Filing 692

ORDER denying 687 Motion to Strike (sclc1, COURT STAFF) (Filed on 5/20/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

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KFD ENTERPRISES, INC.,

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Plaintiff,

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v.

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CITY OF EUREKA, et al.

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Defendants.

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) Case No. 08-cv-04571-SC
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) ORDER DENYING MOTION TO STRIKE
) JURY TRIAL DEMAND
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Now before the Court is Plaintiff KFD Enterprises, Inc.'s

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("KFD") motion to withdraw its own jury trial demand and to strike

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Defendant City of Eureka's ("Eureka") jury demand.

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fully briefed 1 and appropriate for determination without oral

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argument per Civil Local Rule 7-1(b).

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below, KFD's motion to strike the jury trial demand is DENIED.

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KFD noticed and filed this motion on April 25, 2014.

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687; Mot. at 6.

The motion is

For the reasons set forth

On August 23, 2013, this Court issued a Status

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ECF No.

ECF Nos. 687-1 ("Mot."), 689 ("Opp."), 691 ("Reply").

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be May 2, 2014.

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file, serve, and notice motions 35 days prior to the assigned

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hearing date.

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which KFD could have timely filed its motion.

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at this late date would require Eureka to significantly alter its

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United States District Court

Conference Order, ECF No. 632.

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For the Northern District of California

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That Order set a trial date of June

trial strategy and begin preparing for a nonjury trial less than

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three weeks before trial begins.

Pursuant to Civil Local Rule 7-2(a), parties must

Consequently, March 28, 2014 was the last date on
Granting the motion

The motion is untimely and

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granting it would likely prejudice Eureka.

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DENIED.

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to consider the motion on the merits.

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For those reasons it is

However, the Court would deny the motion even if it were

KFD's Fourth Amended Complaint includes a demand for a jury

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trial pursuant to Federal Rule of Civil Procedure 38.

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("FAC") at 34.

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Fourth Amended Counter-Claim and Cross-Claim.

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The Federal Rules permit withdrawal of a "proper" jury demand "only

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if the parties consent."

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consented, and thus KFD may withdraw its demand only if it was

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improper.

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ECF No. 410

Eureka also includes a jury trial demand in its
ECF No. 355 at 26.

Fed. R. Civ. P. 38(d).

Eureka has not

KFD argues that its jury demand was improper because it seeks

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only equitable relief.

While a right to a trial by jury exists

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where a party seeks monetary damages, no such right exists where a

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party seeks only equitable relief.

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Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S.

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558, 564-65 (1990) (right to jury trial depends in part on whether

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legal or equitable relief is sought).

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explicitly clear that KFD seeks damages as well as equitable

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See U.S. Const. amend. VII;

Though KFD's FAC makes it

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relief, FAC at 33-34, KFD argues that it seeks against Eureka only

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specific performance in the form of an injunction ordering Eureka

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to repair or update its sewers.

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it sought damages only against the other defendants in this case,

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all of whom have settled.

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seeks monetary damages remains in the case, KFD argues that it has

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no right to a jury trial.

United States District Court

For the Northern District of California

KFD asserts that

Because no defendant against whom KFD

It is clear from KFD's FAC that it seeks monetary damages as

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KFD Reply at 4.

well as injunctive relief in its claims against Eureka.

In

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addition to the general prayer for damages, FAC at 34, KFD

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specifically requests damages in common law and state law claims it

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brought against Eureka.

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nuisance, public nuisance per se, and dangerous condition of public

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property all include specific claims for damages.

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98-102.

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"Plaintiff has been, and will be, damaged by incurring costs to

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respond to the alleged hazardous substance contamination in and

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around the Property in an amount to be established at trial."

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¶ 86.

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brought only against Eureka, includes the allegation that Eureka's

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failure to properly maintain its sewer caused "Plaintiff's damages

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including, but not limited to, response costs incurred and to be

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incurred in the future to properly respond to the alleged

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contamination near the Property, and related costs in making the

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property safe from contamination."

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that KFD sought monetary damages on claims brought against Eureka,

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and specifically against Eureka.

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trial by jury when it filed its complaint, and its jury demand was

KFD's claims for private nuisance, public

FAC ¶¶ 77-92,

For example, KFD's public nuisance claim asserts that

Id.

KFD's dangerous condition of public property claim, which it

Id. ¶ 102.

The Court finds

Therefore, KFD was entitled to a

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proper.

KFD cannot unilaterally withdraw its jury trial demand.

KFD's motion to strike is untimely.

But even were the Court

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to consider the motion on its merits, the Court would find that

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KFD's demand for a jury trial was proper.

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not unilaterally withdraw its demand for a jury trial.

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KFD's motion to withdraw its jury trial demand and to strike

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Eureka's jury trial demand is DENIED.

Consequently, KFD may
Plaintiff

United States District Court

For the Northern District of California

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IT IS SO ORDERED.

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Dated: May 20, 2014

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UNITED STATES DISTRICT JUDGE

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