US BANK TRUST NA v. MENEZES et al

Filing 31

ORDER ON PLAINTIFF'S MOTION TO STRIKE DEFENDANTS' JURY DEMAND granting 29 Motion to Strike By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
U.S. BANK TRUST, N.A.,
as Trustee for LSF9 MASTER
PARTICIPATION TRUST,
Plaintiff,
v.
JONATHAN MENEZES
a/k/a JONATHAN MENEZES, SR., and
SHONDA MENEZES
a/k/a SHANDA MENEZES
f/k/a SHONDA BOUCHER,

Defendants.

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) Docket no. 2:17-CV-66-GZS
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ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ JURY DEMAND
Before the Court is Plaintiff’s Motion to Strike Defendants’ Demand for Trial by Jury (ECF
No. 29) in this foreclosure action. After considering Plaintiff’s Motion and Defendants’ Response
(ECF No. 30), the Court GRANTS the Motion.
Federal Rule of Civil Procedure 38(b) provides that a written demand for a jury trial must
be served on the other parties “no later than 14 days after the last pleading directed to the issue is
served.” Calculating from June 6, 2017, when Plaintiff filed a Reply to Defendants’ Answer and
Counterclaim, at the latest, any demand for a jury trial by Defendants had to have been filed by
June 20, 2017, and Defendants did not meet this deadline.1 Rule 38 is extremely clear that “[a]
party waives a jury trial unless its demand is properly served and filed.” Fed. R. Civ. P. 38(d).
Although the Court understands that Defendants may not have thought they were “on the clock”

Defendants’ written jury demand (ECF No. 28) was dated and post-marked August 17, 2017, and was docketed by
the clerk on August 21.
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during the time that the Court was deciding their Motion for Mediation (ECF No. 17) and Motion
to Dismiss (ECF No. 23), neither their confusion nor their pro se status means that they did not
have to comply with Rule 38(b). See Jolivet v. Deland, 966 F.2d 573, 578 (10th Cir. 1992) (stating,
in determining that a pro se party had waived his right to a jury trial, that “[t]he fact that Jolivet is
proceeding pro se does not entitle him to special consideration under Rule 38.”). Furthermore,
even if they were waiting for the disposition of their Motions, Defendants waited a few weeks after
the Court issued its Order on July 26, 2017 (ECF No. 26) before submitting their jury demand.
Defendants are of course free to file a motion pursuant to Federal Rule of Civil Procedure 39(b) if
they believe that there are reasons for the Court to excuse their failure to comply with Rule 38(b).2
Finally, the Court notes that both sides have indicated a desire or willingness to engage in
mediation to settle this matter. See Defs.’ Mot. for Mediation (ECF No. 17); Pl.’s Resp. to Mot.
for Mediation (ECF No. 19), PageID # 178 (“[T]he Plaintiff would be willing to consent to
engaging in mediation with the Defendants.”). The Court encourages the parties to pursue this
course if there is any chance that this matter can be expeditiously and favorably resolved without
need for further litigation.
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 27th day of September, 2017.

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Plaintiff is incorrect is asserting that Maine law regarding the right to jury trials is dispositive; federal law controls
the issue in this Court. See Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 97 (1st Cir. 2014) (“[T]he settled
rule is that a litigant’s right to a jury under the Seventh Amendment for state-law claims in federal court is a matter of
federal, not state, law.”). Although it is generally the case that there is no right to jury trial in a foreclosure action
under federal law, see Walter E. Heller and Co. v. O/S Sonny V., 595 F.2d 968, 976 n.7 (5th Cir. 1979), there are
non-foreclosure claims at play in this matter that may or may not be appropriate for trial to a jury.

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