Guthrie v. Cuellar et al

Filing 79

ORDER. ORDERED that plaintiff's Opposition to Defendants' Joint Notice of Withdrawal of Jury Demands 75 prevents defendants' withdrawal of their jury demands in this case. Signed by Judge Philip A. Brimmer on 01/30/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02460-PAB-KMT
TAMITHY GUTHRIE,
Plaintiff,
v.
JOSE CUELLAR,
TOKHIR KASIMOV, and
ZARA LOGISTICS, INC.,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s Opposition to Defendants’ Joint
Notice of Withdrawal of Jury Demands [Docket No. 75]. The Court has jurisdiction
pursuant to 28 U.S.C. § 1332.
On September 4, 2014, plaintiff filed her complaint seeking relief for injuries
arising out of a motor vehicle accident. Docket No. 1. The complaint does not request
a jury trial. On October 2, 2014, defendants Tokhir Kasimov and Zara Logistics, Inc.
filed their answer and jury demand. Docket No. 8. On November 3, 2014, defendant
Jose Cuellar filed his answer and jury demand. Docket No. 9. On December 16, 2016,
the defendants filed a joint notice of withdrawal of jury demands. Docket No. 72.
Plaintiff filed a brief in opposition to defendants’ notice of withdrawal of jury demands,
Docket No. 75, and defendants Kasimov and Zara have filed a response. Docket
No. 76.

Under Federal Rule of Civil Procedure 38(d), a “proper [jury] demand may be
withdrawn only if the parties consent.” Fed. R. Civ. P. 38(d). As demonstrated by her
opposition brief, plaintiff does not consent to defendants’ withdrawals of their jury
demands. Docket No. 75 at 2. Nevertheless, defendants argue that plaintiff has
waived her right to a jury trial under Fed. R. Civ. P. 81(c)(3)(A), which provides special
rules for jury demands in removed cases. Rule 81(c) applies to “a civil action after it is
removed from a state court.” While plaintiff initially filed her claims in the District Court
for Adams County, Colorado, Docket No. 76-1 at 1-5, plaintiff dismissed that case on
September 3, 2014. Docket No. 76-1 at 13-15. Def endants Kasimov and Zara argue
that, given plaintiff’s dismissal of the Adams County case, plaintiff’s filing of this case
constitutes “constructive” removal and that Rule 81(c) should therefore apply. Docket
No. 76 at 3, ¶ 10. Defendants cite no authority for interpreting Rule 81(c) to apply to
“constructive” removals. As a factual matter, this case was not removed and, as such,
the Court finds that Rule 81(c) does not apply.
The Court finds that Fed. R. Civ. P. 38 applies to the jury demand in this case.
Defendants made proper jury demands when they filed their answers. Plaintiff does not
consent to the withdrawal of the jury demands and therefore they may not be
withdrawn. Fed. R. Civ. P. 38(d); see also 9 Charles Alan Wright & Arthur R. Miller,
Fed. Prac. & Proc. Civ. § 2318 (3d ed.) (“Rule 38(d) establishes that [a jury demand]
cannot be withdrawn without the consent of all parties. This is necessary to protect the
reliance that other parties may be placing on the demand.”). Accordingly, it is

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ORDERED that plaintiff’s Opposition to Defendants’ Joint Notice of Withdrawal
of Jury Demands [Docket No. 75] prevents defendants’ withdrawal of their jury
demands in this case.

DATED January 30, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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