Jacobs v. Bank of America, NA. et al
ORDER granting 39 Motion to Strike ; granting 56 Motion to Strike Signed by Magistrate Judge Jeremiah C. Lynch on 5/8/2017. (TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
JOHN G. JACOBS,
BANK OF AMERICA, N.A.;
RECONTRUST COMPANY, N.A.; and
This matter is before the Court upon Defendants’ motions requesting the
Plaintiff’s jury demand be stricken. Plaintiff opposes the motion. Having
considered the parties’ respective positions, the Court finds it appropriate to grant
Defendants’ motions to strike.
The facts underlying this case are well known to the parties and are only
repeated as necessary to inform the discussion.
In January 2012 Plaintiff Jacobs filed suit in Montana State District Court
against Bank of America, N.A. and ReconTrust Company, N.A. – both of which
are Defendants in this action – in relation to a mortgage foreclosure on Jacobs’
residence. Jacobs, who was represented by an attorney, entered a settlement
agreement with both Bank of America and ReconTrust Company resolving that
lawsuit. As part of the settlement agreement, all parties unequivocally agreed to
waive all right to a jury trial with respect to any litigation that might subsequently
arise in relation to enforcement of the settlement agreement itself.
On February 19, 2016, Jacobs commenced the present action in Montana
State District Court, alleging breach of the settlement agreement. In his state court
complaint, Jacobs made a jury demand in accordance with Mont. R. Civ. P. 38.
The complaint was expressly denominated “Complaint and Jury Demand.” On
April 15, 2016, Bank of America and ReconTrust Company removed the case to
this Court based upon diversity jurisdiction.
Shortly thereafter, Bank of America and ReconTrust Company filed their
respective answers, denominating their pleadings as “Answer to Complaint and
Jury Demand.” (See Docs. 4 and 6.) In the text of their answers, both entities also
noted that as part of the underlying settlement agreement Jacobs had expressly
agreed to waive his right to trial by jury. And they directed the Court to the
agreement that was attached to Jacobs’ complaint. On August 17, 2016, Jacobs
filed an amended complaint and renewed his jury trial demand. (See Docs. 31 and
On October 28, 2016, Bank of America filed a motion to strike – which
ReconTrust Company joined – Jacobs’ jury demand. They rely, of course, upon
the unequivocal waiver of the right to a jury trial contained in the settlement
In opposing the motions to strike, Jacobs does not challenge the validity of
the jury trial waiver contained in the settlement agreement. Rather, he argues that
both Bank of America and ReconTrust Company demanded trial by jury when
they titled their respective answers as an “Answer to Complaint and Demand for
Jury Trial.” From this premise, Jacobs invokes the mandate of Fed. R. Civ. P.
39(a)(1) which provides that a party may only withdraw a previously asserted jury
demand through an oral or written stipulation by all parties.
As Jacobs accurately notes, “once one party files such a [jury] demand other
parties are entitled to rely on that demand for the issues it covers, and need not file
their own demands.” Fuller v. City of Oakland, 47 F.3d 1522, 1531 (9th Cir.
1995). And it matters not that Jacobs had previously waived his right to a jury
trial. Fuller, 47 F.3d at 1531. But Fuller also reminds that in applying Fed. R.
Civ. P. 38 and 39, courts in the Ninth Circuit are not to take a literal approach but
Defendant Specialized Loan Servicing filed a separate motion to strike
predicated upon essentially the same argument advanced by Bank of America and
ReconTrust Company. (Doc. 52.)
an equitable one – striving to apply Rule 39 in a manner consistent with its
Under the facts of this case, equitable considerations dictate that Jacobs’
reliance on Fed. R. Civ. P. 39(a)(1) be rejected. Read fairly and as a whole the
original answers of Bank of America and ReconTrust Company cannot be said to
have invoked a jury demand under Fed. R. Civ. P. 38, thus bringing Rule 39(a)(1)
into play. To the contrary, the caption of these entities’ answers – however ill
advised – merely mimicked the caption of Jacobs’ original complaint. When read
in conjunction with the text of the answers, it cannot be equitably concluded that
either entity demanded a trial by jury of the issues presented for resolution by
Therefore, IT IS HEREBY ORDERED that Defendants’ motions to strike
DATED this 8th day of May, 2017.
Jeremiah C. Lynch
United States Magistrate Judge
The presiding judge, the Honorable Donald W. Molloy, obviously has the
discretion to utilize an advisory jury if he so chooses.
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