United States District Court, W.D. Washington, Seattle
PAULA SARDINAS, individually, and on behalf of her minor child, G.M., Plaintiffs,
UNITED AIRLINES, INC., et al., Defendants.
ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO
FILE A JURY DEMAND
L. ROBART UNITED STATES DISTRICT JUDGE
the court is Plaintiffs Paula Sardinas and G.M.'s
(collectively “Plaintiffs”) motion for leave to
file a jury demand. (Mot. (Dkt. # 9).) Defendant United
Airlines, Inc. (“United”) opposes the motion.
(Resp. (Dkt. # 13).) The court has considered the
parties' submissions, the relevant portions of the
record, and the applicable law. Being fully advised,
court DENIES Plaintiffs' motion.
Sardinas is the mother of G.M., a minor child. (See
Compl. (Dkt. # 1-1) ¶¶ 3-4.) Plaintiffs commenced
this action in King County Superior Court on January 17,
2019, alleging that United, as well as John and Jane Does
1-10, who were members of the flight crew on United Flight
1695, were negligent and indifferent towards G.M.'s
safety by allowing a passenger to sexually assault G.M. on
the flight. (Id. ¶¶ 2, 16-17.) The state
court set a jury demand filing deadline for October 7, 2019.
(Daheim Decl. (Dkt. # 10) ¶ 2, Ex. 1.) On February 22,
2019, United removed the case to this court. (Not. of Rem.
(Dkt. # 1).) On March 1, 2019, the court set a schedule for
the parties' initial disclosures, Rule 26(f) discovery
conference, and joint status report. (Scheduling Order (Dkt.
# 6).) The same day, United filed its answer. (Answer (Dkt. #
March 14, 2019, Plaintiffs sent United a draft joint status
report. (Daheim Decl. ¶ 8.) This draft indicated that
Plaintiffs intended to seek a jury trial. (Id., Ex.
4 at 31.) On March 31, 2019, United returned the
draft joint status report to Plaintiffs with proposed
revisions. (Jorgensen Decl. (Dkt. # 14) ¶ 6; Daheim
Decl. ¶ 10.) According to United, because “neither
party filed a jury demand by March 15, ” United revised
the answer to “Non-Jury or Jury Trial” from
“Jury” to “Non-Jury.” (Jorgensen
Decl. ¶ 6; see also Daheim Decl.
¶ 10, Ex. 5 at 38.) On April 1, 2019, United told
Plaintiffs that it believed Plaintiffs had failed to timely
file a jury demand. (Daheim Decl. ¶ 11, Ex. 3 at 18-20.)
filed the present motion on April 2, 2019, arguing that they
did not waive their right to a jury and that, in the event
they did, the court could exercise its discretion to relieve
such waiver. (See generally Mot.; Reply (Dkt. #
15).) In response, United argues that the court should deny
the motion because Plaintiffs' jury demand is untimely
and because it would be improper for the court to use its
discretion to relieve Plaintiffs' waiver under the
circumstances. (See generally Resp.) The court now
addresses the motion.
right to a jury trial in a civil lawsuit is fundamental.
Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937).
However, a party may waive the right if it fails to timely
file and serve a jury demand. Fed.R.Civ.P. 38(d); see,
e.g., Fuller v. City of Oakland, Cal., 47 F.3d
1522, 1530 (9th Cir. 1995). Rule 38 governs the timing of
jury demands in federal court and requires parties to make
any written demand for a jury “no later than 14 days
after the last pleading directed to the issue is
served.” Fed.R.Civ.P. 38(b). But, in the context of a
removed case, Rule 81(c)(3) also applies and provides
exceptions to Rule 38's timeline. Fed.R.Civ.P. 81(c)(3).
together, the Rules present four scenarios for filing timely
jury demands in removed cases. First, no jury demand is
necessary after removal when a party expressly and properly
demanded a jury trial prior to removal. Fed.R.Civ.P.
81(c)(3)(A). Second, if the state court from which the case
was removed did not require an express jury demand, a party
need not make a jury demand after removal unless and until
the court so orders. Id. Third, if state law
requires an express jury demand and all the necessary
pleadings have been served at the time of removal, a party
must make the jury demand in federal court within 14 days of
filing or service of a notice of removal. Fed.R.Civ.P.
81(c)(3)(B). Fourth, if state law requires an express jury
demand and all the necessary pleadings have not been served
at the time of removal, a party must make the jury demand
within 14 days of service of the last pleading directed to
the issue. See Fed. R. Civ. P. 38(b); Pac.
Fisheries Corp. v. H.I.H. Cas. & Gen. Ins., Ltd.,
239 F.3d 1000, 1002 n.2 (9th Cir. 2001).
Plaintiffs' Jury Demand Requirement
first scenario discussed above does not apply because
Plaintiffs did not expressly demand a jury trial in state
court prior to removal. Fed.R.Civ.P. 81(c)(3)(A); (see
generally Mot.; Daheim Decl.) Likewise, the third
scenario is inapplicable because all the necessary pleadings
had not been served at the time of removal. See Fed.
R. Civ. P. 81(c)(3)(B). An answer is a necessary pleading.
See, e.g., Lutz v. Glendale Union High
Sch., 403 F.3d 1061, 1063 (9th Cir. 2005) (noting that
“[b]ecause [the defendant] had not filed its answer
before it removed the case, [the plaintiff] was entitled to
demand a jury trial at any time until ten days after she was
served with the answer”). And, as discussed, United did not
file its answer until March 1, 2019, after it removed the
case on February 22, 2019. (See Answer; Not. of
however, argue that their jury demand is timely under the
second scenario, which is expressed in the second sentence of
Rule 81(c)(3)(A). (See Mot. at 9-10; Reply at 2);
Fed.R.Civ.P. 81(c)(3)(A). The second sentence of Rule
81(c)(3)(A) reads: “If the state law did not
require an express demand for a jury trial, a party need not
make one after removal unless the court orders the parties to
do so within a specified time.” Fed.R.Civ.P.
81(c)(3)(A) (emphasis added). The parties do not dispute that
Washington law requires an express jury demand “at or
prior to the time the case is called to be set for
trial.” (See Resp. at 6; Reply at 2); see
also Wash. State Court Civil Rules CR 38(b);
id. CR 38(d) (stating that the failure to pay the
jury fee and serve and file a jury demand as required by the
rule constitutes a waiver of trial by jury). According to
Plaintiffs, the language of Rule 81(c)(3)(A) means that,
because state law “did ...