Alsabur v. Autozone, Inc.

Filing 27

ORDER by Judge Kandis A. Westmore granting 20 Motion to Strike Plaintiff's Jury Demand. Absent a joint stipulation for a jury trial, a bench trial will be held on the originally scheduled trial date of May 5, 2014. (kawlc1, COURT STAFF) (Filed on 10/7/2013)

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United States District Court
Northern District of California

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JOWHAR ALSABUR, an individual
Plaintiff,

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v.

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AUTOZONE, INC., et al.,

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Case No.: CV 13-01689-KAW
ORDER GRANTING DEFENDANT
AUTOZONE, INC.’S MOTION TO STRIKE
PLAINTIFF’S JURY DEMAND

Defendants.

(Dkt. No. 20)

United States District Court
Northern District of California

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Before the Court is Defendant Autozone, Inc.’s motion to strike Plaintiff Jowhar Alsabur’s

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jury demand from his First Amended Complaint. On October 3, 2013, the Court held a hearing,

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and after careful consideration of the parties’ arguments, for the reasons set forth below, the Court

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GRANTS Defendant’s Motion to Strike Plaintiff’s Jury Demand.

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I. BACKGROUND
On January 23, 2013, Plaintiff filed this action in Alameda County Superior Court. (Dkt.

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No. 20.) The initial complaint contained no jury demand or reference to a jury trial. Id. On April

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9, 2013, Defendant filed its answer in state court. (Answer, Dkt. No. 1, Ex. D.)

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2013, Defendant removed this action to federal court. (Not. of Removal, Dkt. No. 1.) Plaintiff

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did not file and serve a separate demand for jury trial within 14 days of removal.

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On April 15,

At the July 16, 2013 Initial Case Management Conference, Defendant noted that Plaintiff

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may not be entitled to a jury trial, because the Complaint did not contain a jury demand.

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Plaintiff’s counsel reviewed the Complaint and confirmed that the jury demand had been

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inadvertently omitted. The parties agreed to file a stipulation to permit Plaintiff to file a First

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Amended Complaint, which would include a jury demand and one additional cause of action, by

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July 31, 2013. (See 7/16/13 Minute Entry, Dkt. No. 12.) Following the Case Management

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Conference, the Court issued a Case Management Scheduling Order that included a jury trial date

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of May 5, 2014. (7/22/13 Case Management Scheduling Order, Dkt. No. 13.)

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Later, the Court approved the stipulation of the parties to allow Plaintiff to file his First

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Amended Complaint, which explicitly preserved Defendant’s right to bring a motion to strike the

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jury demand within 21 days. (Stipulation to Allow Filing of First Am. Compl. and Order, “Stip.,”

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Dkt. No. 16 at 1.) On August 7, 2013, Plaintiff filed his First Amended Complaint, which added

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one cause of action and demanded a jury trial. (First Am. Compl., “FAC,” Dkt. No. 17.)

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On August 23, 2013, Defendant filed a motion to strike the jury demand from the First
Amended Complaint. (Def.’s Mot. to Strike, Dkt. No. 20.)
II. LEGAL STANDARD

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United States District Court
Northern District of California

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In removal cases, the applicable state law regarding jury demands governs. See Fed. R.

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Civ. P. 81(c)(3)(A). California law requires that a party make an “express demand” for a jury

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trial. Lewis v. Time Inc., 710 F.2d 549, 556 (9th Cir. 1983) (interpreting California Civil

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Procedure § 631 to require “express demand”). In order to avoid waiving the right to a jury trial,

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a party must serve a jury demand within 14 days of removal of the action to federal court if all

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necessary pleadings have been served at the time of removal. Fed. R. Civ. P. 81(c)(3)(B). Under

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Federal Rule of Civil Procedure 38(d), “[a] party waives a jury trial unless its demand is properly

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served and filed.”
III. DISCUSSION

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A. The Court’s July 22, 2013 Case Management Scheduling Order does not guarantee a
trial by jury.
Plaintiff contends that the Court’s Case Management Scheduling Order specifying that

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any trial would be by jury was a legal determination that Plaintiff was entitled to a jury trial. (Pl.’s

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Opp’n to Def.’s Mot. to Strike, “Pl.’s Opp’n,” Dkt. No. 21 at 2.) This is simply not the case. The

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scheduling order was not on the merits and did not address Defendant’s motion to strike as it had

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not yet been filed.

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Moreover, any claim by Plaintiff that he relied on the Court’s Scheduling Order to protect

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his right to a jury trial is unavailing for two reasons. First, Plaintiff “had already waived his right
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to a jury trial long before the order was issued,” and the motion to strike was not before the Court

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when the Scheduling Order was issued. See Zahn v. Geren, 245 F. App'x 696, 697 (9th Cir. 2007)

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(scheduling order calling for a jury trial does not discharge previous waiver). Second, as

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Defendant stated in both the joint case management conference statement and in the stipulation to

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allow Plaintiff to file his First Amended Complaint, it did not believe that Plaintiff was eligible

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for a jury trial. In fact, Defendant explicitly preserved its right to file a motion to strike the jury

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demand in the stipulation.
Therefore, Plaintiff’s right to a jury trial was not decided by way of the Scheduling Order.

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B. California law requires express jury demands

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Plaintiff states that, in California state court, a party is not required to expressly demand a

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United States District Court
Northern District of California

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jury trial at the beginning of the case, and that a party only waives its right to a jury trial by failing

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to announce that a jury is required when the case is set for trial or in other circumstances provided

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by statute. See Cal. Civ. Proc. Code § 631(f). Plaintiff interprets this to mean that an express

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demand is not required, so Rule 81(c) precludes waiver unless a party is ordered by the court to

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file a demand within a specified time and fails to do so. (Pl.’s Opp’n at 3.)

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While Plaintiff is correct that California law does not require an express demand at the

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outset of a case, the Ninth Circuit has interpreted California law to require an express demand.

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Lewis v. Time Inc., 710 F.2d 549, 556 (9th Cir. 1983). Therefore, once an action is removed to

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federal court, an express jury demand must be made within 14 days. Fed. R. Civ. P. 81(c)(3)(B).

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Here, Plaintiff’s initial complaint filed in Alameda County Superior Court did not contain

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a jury demand. The defendant’s subsequent removal of the action to federal court on April 15,

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2013 triggered the 14-day period in which Plaintiff must file a jury demand pursuant to Rule

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81(c)(3)(B). Since an “express demand” is required in cases removed from California state court,

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the exception in Rule 81(c)(3)(A) cited by Plaintiff does not apply, and Plaintiff’s failure to file a

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jury demand within 14 days constitutes a waiver of his right to trial by jury. See Fed. R. Civ. P.

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38(d). Accordingly, Plaintiff has waived his right to a jury trial.

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C. The Court’s discretion to order a jury trial pursuant to Rule 39(b) is unavailable.
On January 23, 2013, Plaintiff filed his initial Complaint in state court, which did not

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contain a jury demand. (See Compl., Dkt. No. 1, Ex. A.) Defendant filed its answer on April 9,

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2013, and subsequently filed its notice of removal of this action to federal court on April 15,

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2013. Id. Under Federal Rule of Civil Procedure 81(c)(3)(B), if all necessary pleadings have been

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served at the time of removal, Plaintiff has 14 days to file a demand for a jury trial. As provided

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above, Plaintiff did not make a timely jury demand.

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Pursuant to Rule 39(b), the district court, in its discretion, may order a jury trial on a
motion by a party who has not filed a timely demand for one. Fed. R. Civ. P. 39(b). That
discretion, however, is narrow and does not permit a court to grant relief when the failure to make

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United States District Court
Northern District of California

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a timely demand results from an oversight or inadvertence. Chandler Supply Co. v. GAF Corp.,

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650 F.2d 983, 987-88 (9th Cir.1980); see also Lewis v. Time Inc., 710 F.2d 549, 556-57 (9th

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Cir.1983).

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Plaintiff has failed to demonstrate how the court may exercise its limited discretion in this

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instance. An untimely request for a jury trial must be denied unless some cause beyond mere

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inadvertence is shown. Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir.1976); see also Russ v.

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Standard Ins. Co., 120 F.3d 988, 989-90 (9th Cir.1997) (holding that the district court could not

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employ another rule to circumvent this circuit’s prohibition on granting untimely jury demands

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due to inadvertence); Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d 68, 71 (9th Cir.1996)

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(denying untimely jury demand when due to counsel's oversight and inadvertence); Wall v. Nat'l

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R.R. Passenger Corp., 718 F.2d 906, 910 (9th Cir.1983) (denial of untimely jury demand not an

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abuse of discretion where counsel's inadvertence was the only reason shown). Further, mistake of

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law is not sufficient grounds for the court to exercise its discretion. Beckham v. Safeco Ins. Co. of

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Am., 691 F.2d 898, 905 (9th Cir. 1982)(refusal to order jury trial was proper in case removed

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from California state court when attorney mistakenly believed no demand was necessary under

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Rule 81(c)). At the hearing, Plaintiff’s counsel admitted that her failure to make a timely jury

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demand was unintentional. Indeed, Plaintiff’s counsel confirmed her mistake or oversight at the

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Case Management Conference when the Court raised the issue. As a result, the Court cannot
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order a jury trial under Rule 39(b), as Plaintiff’s failure to make a timely demand was the result of

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oversight or inadvertence.

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D. Plaintiff’s new cause of action does not relieve waiver.
Plaintiff contends that even if he previously waived his right to a jury trial, filing an

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amended complaint that includes the new cause of action for wrongful termination in violation of

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public policy, along with additional facts, “triggers his right to demand a jury trial at the same

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time.” (Pl.’s Opp’n at 3.)
When “the issues in the original complaint and the amended complaint turn on the same

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matrix of facts,” a party’s failure to demand a jury trial in the original complaint waives its right

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to a jury trial on the claims in the amended complaint. Las Vegas Sun, Inc. v. Summa Corp., 610

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United States District Court
Northern District of California

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F.2d 614, 620 (9th Cir.1979). See also Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d

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1045, 1050 (9th Cir. 1974)(“the presentation of a new theory does not constitute the presentation

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of a new issue on which a jury trial should be granted [as of right] under ... Rule 38(b)”); Betta

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Products, Inc., v. Distribution Systems and Services, Inc., No. 07-2071 SC., 2007 WL 1750211, at

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*1. Additionally, the Ninth Circuit invalidated a jury demand where there had been no initial

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request and “there [was] no significant difference in the facts necessary to support [the plaintiff's]

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original ADA claim and those supporting her new claims.” Lutz v. Glendale Union High School,

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403 F.3d 1061, 1066 (9th Cir.2005).

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Having reviewed both the initial and amended complaints, the Court finds that the issues

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in both “turn on the same matrix of facts,” as there appears to be no significant difference in the

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facts necessary to support Plaintiff’s original claim and those supporting his new claim. See Las

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Vegas Sun, Inc., 610 F.2d at 620. Despite Plaintiff’s counsel’s assertions to the contrary, the facts

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that she cited regarding the termination were, as pointed out by Defense counsel, included in the

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initial complaint. Moreover, the cases that Plaintiff cites are unpersuasive and not binding on this

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Court. Accordingly, Plaintiff’s addition of a new a new cause of action does not preclude waiver.

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IV. CONCLUSION

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For the reasons set forth above, Defendant’s Motion to Strike Plaintiff’s Jury Demand
from the First Amended Complaint is GRANTED. The demand for jury trial is hereby stricken
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from the First Amended Complaint. Accordingly, absent a joint stipulation for a jury trial, a

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bench trial will be held on the originally scheduled trial date of May 5, 2014.

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IT IS SO ORDERED.
DATE: October 7, 2013

___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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