Joe Hand Promotions, Inc. v. McInnis et al

Filing 85

ORDER REGARDING JURY TRIAL DEMAND. Signed by Judge Koh on 6/1/2011. (Attachments: # 1 Certificate of mailing)(lhklc1, COURT STAFF) (Filed on 6/1/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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JOE HAND PROMOTIONS, INC.,
Plaintiff,

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v.
THOMAS RICH MCINNIS, et al.,
Defendants.

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Case No.: 10-CV-01614-LHK
ORDER REGARDING JURY TRIAL
DEMAND

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This case is currently set for a jury trial to commence June 20, 2011. However, in

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reviewing the docket, it appears that Defendants have waived any right to a jury trial by failing to

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properly serve and file a demand for a jury trial. Pursuant to Federal Rule of Civil Procedure

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38(b), a party may demand a jury trial by:

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(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).

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It does not appear that Defendants demanded a jury trial, either in their Answer or through any

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other document filed with the Court.

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Pursuant to Rule 39(b), when a jury trial is not properly demanded, the issues are to be tried

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by the court without a jury. The district court has limited discretion to order a jury trial, upon

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motion, where a jury trial was not properly demanded. Fed. R. Civ. P. 39(b). “That discretion is
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Case No.: 10-CV-01614-LHK
ORDER REGARDING JURY TRIAL DEMAND

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narrow, however, and does not permit a court to grant relief when the failure to make a timely

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demand results from an oversight or inadvertence.” Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins.

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Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001) (quoting Lewis v. Time Inc., 710 F.2d 549, 556-57 (9th

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Cir. 1983)). A pro se litigant’s good faith mistake as to the deadline for demanding a jury trial is

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not a sufficient basis to grant relief from an untimely jury demand. Zivkovic v. Southern California

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Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

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Accordingly, it appears that this case must be tried by the Court, and not a jury. If
Defendants believe that they served and filed a jury demand in compliance with Rule 38, they must

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notify the Court and provide documentation showing proper service and filing of the demand by

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United States District Court
For the Northern District of California

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Monday, June 6, 2011. Otherwise, the case will be tried by the Court on June 20, 2011 at 9 a.m.

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In order to ensure that Defendants receive timely notice of this deadline, court staff will call

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Defendants and inform them of this Order. A copy of this Order will also be mailed to Defendants’

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addresses.

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IT IS SO ORDERED.

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Dated: June 1, 2011

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 10-CV-01614-LHK
ORDER REGARDING JURY TRIAL DEMAND