Tello v. Bank Of America, N.A. et al

Filing 41

ORDER Granting 36 Defendant's Motion for Jury Trial. IT IS FURTHER ORDERED that 37 Plaintiff's Motion to Extend Time to File a Jury Demand is DENIED as moot. Signed by Magistrate Judge Robert J. Johnston on 12/26/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARIO P. TELLO

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Plaintiff,
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vs.
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BANK OF AMERICA, N.A., et al.,
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Defendants.
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_________________________________________ )

2:12-cv-01040-GMN-RJJ
ORDER

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This matter comes before the Court on the Plaintiff’s Motion for Jury Trial (#36) and the

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Plaintiff’s Motion to Extend Time to File Jury Demand (#37). The Court has considered the

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Plaintiff’s Motions (#36) and (#37). No response or reply has been filed in this matter. Responses

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were due November 30, 2012.

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BACKGROUND

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On May 29, 2012, Plaintiff Mario P. Tello filed the Verified Complaint against Defendants

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Bank of America et al. in the Eight Judicial District Court District of Nevada. Verified Complaint,

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attached as Exhibit 1 to Petition for Removal (#1). The Defendants removed this case to the United

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States District Court for the District of Nevada. Minute Order (#3). Subsequently, on June 26, 2012,

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the Defendants moved to dismiss this case for improper service and failure to state a claim. Motion

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to Dismiss (#5). On October 30, 2012, the Court stayed discovery pending a decision on the Motion

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to Dismiss. Order Granting Motion to Stay (#34).

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On November 13, 2012, Tello filed the present motion for trial by jury (#36). That same day,

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he moved for an extension of time to file the jury demand (#37). Tello requested the extension of

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time to file the Jury Demand (#37) because he was unaware whether his motion for a jury trial (#36)

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was timely. The Defendants have not filed an opposition, which was due November 30, 2012.

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DISCUSSION

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Federal Rule of Civil Procedure 38(b) permits a party to demand a jury trial. FED. R. CIV.

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P. 38(b). Such demand may be made by “(1) serving the other parties with a written demand–which

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may be included in a pleading–no later than 14 days after the last pleading directed to the issue is

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served; and (2) filing the demand in accordance with Rule 5(d).” FED. R. CIV. P. 38(b). A party

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waives the right to a jury trial if the party fails to make a timely demand. See, Bell v. Cameron

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Meadows Land Co., 669 F.2d 1278, 1285 (9th Cir. 1982).

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In this case, the Defendants have not filed an Answer. Rather, the Defendants moved to

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dismiss the action for insufficient service and for failure to state a claim. Motion to Dismiss (#5).

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Should the Court deny the Motion to Dismiss, this litigation will continue at which point the

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Defendants will likely file an Answer. Thus, because the parties have not filed all the pleadings in

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this case, the Plaintiff’s Motion for a Jury Trial (#36) was timely. Further, the Motion for an

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Extension of Time (#37) is moot because no extension is needed.

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CONCLUSION

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Based on the foregoing, and good cause appearing therefore,

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IT IS HEREBY ORDERED that Defendant’s Motion for Jury Trial (#36) is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff’s Motion to Extend Time to File Jury Demand

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(#37) is DENIED as moot.
DATED this 26th day of December, 2012.

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ROBERT J. JOHNSTON
United States Magistrate Judge

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