Burkes v. County Of Monterey

Filing 24

ORDER Setting Jury Trial. Signed by Magistrate Judge Howard R. Lloyd on 12/20/2011. (hrllc2, COURT STAFF) (Filed on 12/20/2011)

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*E-FILED 12-20-2011*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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For the Northern District of California

United States District Court

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No. C11-04952 HRL

MARK S. BURKES,

ORDER SETTING JURY TRIAL

Plaintiff,
v.
COUNTY OF MONTEREY,
Defendant.
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Plaintiff Mark S. Burkes sues for alleged wrongful discharge and violation of his state

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and federal due process rights. This action was filed in the Monterey County Superior Court.

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The state court granted plaintiff’s request for leave to file a Second Amended Complaint (SAC),

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which includes a claim under 42 U.S.C. § 1983. Defendant answered the complaint and then

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removed the matter here, asserting federal question jurisdiction.

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Several weeks later, plaintiff filed a jury demand, which defendant claims is untimely.

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The issue was discussed briefly at the December 6, 2011 initial case management conference.

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At that time, plaintiff represented to this court that he properly made and preserved his right to a

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jury trial while this action was still pending in the state court. Defendant disagreed. The parties

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were given an opportunity to brief the matter. Having considered the parties’ respective

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arguments, this court will set this matter for a jury trial.

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Rule 81(c)(3) of the Federal Rules of Civil Procedure provides that “[a] party who,

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before removal, expressly demanded a jury trial in accordance with state law need not renew the

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demand after removal.” There is no dispute that California law requires an express demand.

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California law provides that a litigant waives a jury trial by, among other things, failing to

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announce that a jury is required at the time the case is first set for trial or by failing to timely

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deposit the requisite jury fees. CAL. CODE CIV. PRO. § 631. Here, the record presented shows

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that plaintiff (and defendant) expressly demanded a jury trial by the date the case apparently

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was first set for trial; the state court did, in fact, set the matter for a jury trial; and plaintiff

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timely deposited the required jury fees with the state court. There is no indication that any of

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the grounds for waiver set forth in California Code of Civil Procedure § 631 occurred.
Defendant nevertheless contends that plaintiff was required to renew his jury demand as

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For the Northern District of California

United States District Court

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to his SAC, the operative pleading. The apparent basis for this contention is that the SAC adds

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a new claim under 42 U.S.C. § 1983. Plaintiff’s § 1983 claim, however, merely presents a new

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theory of liability, not new facts. Indeed, all of the factual allegations of plaintiff’s SAC are

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virtually identical to those contained in his prior pleading, the only difference being that the

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SAC adds an allegation that plaintiff was constructively discharged. But that is nothing new—

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plaintiff’s prior pleading also included a claim for constructive discharge. The presentation of a

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new theory of recovery does not constitute the presentation of a new issue. This court therefore

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finds that, prior to removal, plaintiff properly made and preserved his right to a jury trial as to

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all issues triable by jury. Cf. Lutz v. Glendale Union High School, 403 F.3d 1061, 1066 (9th

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Cir. 2005) (if a jury trial is waived in an original complaint, it is also waived as to claims

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contained in an amended pleading that raises no new fact issues); Trixler Brokerage Co. v.

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Ralston Purina Co., 505 F.2d 1045, 1050 (9th Cir. 1974) (same). Defendant’s cited cases, all of

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which the court finds inapposite, do not compel a contrary conclusion.

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SO ORDERED.
Dated: December 20, 2011

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HOWARD R. LLOYD
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UNITED STATES MAGISTRATE JUDGE

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5:10-cv-05338-HRL Notice has been electronically mailed to:

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Edward Rick Buell , III

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Jonah Sampson VanZandt

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Peter Joseph Salmon

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Stephen Conrad Ruehmann

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Thomas Nathaniel Abbott

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

[e-mail], [e-mail], [e-mail]
[e-mail]

[e-mail]
[e-mail]
[e-mail], [e-mail]

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For the Northern District of California

United States District Court

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