United States of America v. Harkins et al
Filing
76
Opinion and Order. The Court DENIES Harkins Defendants' Motion 55 to Request Trial by Jury. Signed on 12/20/2011 by Judge Anna J. Brown. See attached five page Opinion and Order. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
UNITED STATES OF AMERICA,
3: ll-CV-00554-BR
Plaintiff,
OPINION AND ORDER
v.
ROBERT G. HARKINS; JUDy J.
HARKINS; OFFICE OF OVERSEER
ROBERT G. HARKINS; PUDDING
CREEK MINISTRIES; AMERICAN
FAMILY ENTERPRISE, INC.;
BONDAGE BREAKERS;
CITIMORTGAGE, INC.; FIRST
NATIONAL BANK OF OMAHA;
DISCOVER BANK; FIA CARD
SERVICES, N.A.,
Defendants.
S. AMANDA MARSHALL
United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1053
1 - OPINION AND ORDER
KARl MADRENE LARSON
Trial Attorney, Tax Division
United States Department of Justice
P.O. Box 683
Washington, D.C. 20044-0683
(202) 616-3822
Attorneys for Plaintiff
ROBERT G. HARKINS
JUDy J. HARKINS
7951 Pudding Creek Dr. S.E.
Salem, OR 97301
Defendants, Pro Se
BROWN, Judge.
This matter comes before the Court on the Motion (#55) to
Request Trial By Jury of Robert and Judge Harkins (Harkins
Defendants).
For the reasons that follow, the Court DENIES
Harkins Defendants' Motion.
BACKGROUND
On May 6, 2011, the government filed this action against
Defendants seeking (1) to reduce to judgment federal tax
assessments against Harkins Defendants;
(2) to obtain a
declaration from the Court that the real property located in
Marion County, Oregon (Pudding Creek property), is held by a
nominee or alter ego of Harkins Defendants or, in the
alternative, that transfers of the Pudding Creek property were
fraudulent transfers that should be set aside;
2 - OPINION AND ORDER
(3) to foreclose
federal tax liens on the Pudding Creek property; and (4) to sell
the Pudding Creek property and to distribute the proceeds in
accordance with the Court's
findings as to the validity and
priority of the liens and claims of all parties.
On October 11, 2011, Harkins Defendants filed an Answer,
which did not include a jury demand.
On November 23, 2011, Harkins Defendants filed a Motion to
Request Trial By Jury.
DISCUSSION
Federal Rule of Civil Procedure 38(b) (1) provides:
On any issue triable of right by a jury, a party
may demand a jury trial by:
(1) serving the other parties with a written
demand - which may be included in a pleading
- no later than 14 days after the last
pleading directed to the issue is served.
The last pleading directed to the issue of a jury trial in
this matter was Harkins Defendants' Answer.
Harkins Defendants,
however, did not file their jury demand within 14 days of their
Answer.
Accordingly, the Court concludes Defendants' Motion is
untimely pursuant to Rule 38(b).
The Court has discretion under Federal Rule of Civil
Procedure 39(b) to order a jury trial when a party fails to
comply with the time limit set out in Rule 38(b).
The Ninth
Circuit, however, has narrowly construed the Court's discretion
3 - OPINION AND ORDER
See, e.g., Pac. Fisheries Corp. v. HIH Cas. &
under Rule 39(b).
Gen. Ins., 239 F.3d 1000, 1002 (9 th Cir. 2001) (The court's
"discretion [under Rule 39(b)] is narrow, however, and does not
permit a court to grant relief when the failure to make a timely
demand results from an oversight or inadvertence.").
The Ninth
Circuit has made clear that Rule 39(b) does not permit a court to
grant relief from the time limit set out in Rule 38(b) if the
failure to file a timely jury demand is the result of oversight,
inadvertence, or lack of familiarity with the Federal Rules of
Civil Procedure.
477
Craig v. Atlantic Richfield Co., 19 F.3d 472,
(9 th Cir. 1994).
Harkins Defendants assert they are entitled to relief under
Rule 39(b) because they are pro se litigants.
The Ninth Circuit,
however, has concluded a pro se litigant's "good faith mistake as
to the deadline for demanding a jury trial establishes no more
than inadvertence, which is not a sufficient basis to grant
relief from an untimely jury demand."
Zivkovic v. S. Cal. Edison
Co., 302 F.3d 1080, 1086-87 (9 th Cir. 2002) (citing Kulas v.
Flores, 255 F.3d 780,784 (9 th Cir.2001)).
The Court, therefore, concludes Harkins Defendants' jury
demand is untimely under Rule 38(b) and that the Court lacks
discretion to grant Harkins Defendants relief under Rule 39(b).
Accordingly, the Court denies Harkins Defendants' Motion to
Request Trial By Jury.
4 - OPINION AND ORDER
,
,
,
[.
CONCLUSION
For these reasons, the Court DENIES Harkins Defendants'
Motion (#55) to Request Trial By Jury.
IT IS SO ORDERED.
DATED this 20 th day of December, 2011.
AN~~
United States District Judge
5 - OPINION AND ORDER
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