United States District Court, W.D. Washington, Tacoma
CHERYL M. MAZANTI and KYLE MAZANTI, husband and wife, Plaintiffs,
NATIONWIDE INSURANCE COMPANY, a foreign corporation doing business in the State of Washington, and NATIONWIDE AGRIBUSINESS INSURANCE COMPANY, a foreign corporation doing business in the State of Washington, Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO STRIKE
PLAINTIFFS' JURY DEMAND
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Nationwide
Agribusiness Insurance Company's
(“Nationwide”) motion to strike Plaintiffs Mrs.
Cheryl Mazanti and Mr. Kyle Mazanti's (“the
Mazantis”) jury demand. Dkt. 12. The Court has
considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants the motion for the reasons stated herein.
January 18, 2019, the Mazantis filed a complaint for damages
against Nationwide in the Mason County Superior Court for the
State of Washington. Dkt. 1-1. Relevant to the instant
motion, the Mazantis did not request a jury trial.
Id. On February 15, 2019, Nationwide removed the
matter to this Court. Dkt. 1. On February 26, 2019,
Nationwide answered the complaint and added a counterclaim
for declaratory relief. Dkt. 9. On February 26, 2019, the
Mazantis answered. Dkt. 26. On March 19, 2019, the Mazantis
filed a demand for jury trial. Dkt. 11.
March 25, 2019, Nationwide filed the instant motion to strike
the Mazantis' jury demand. Dkt. 12. On March 26, 2019,
the Mazantis responded. Dkt. 13. On April 12, 2019,
Nationwide replied. Dkt. 14.
the Mazantis did not request a jury trial before this case
was removed from state court, Fed.R.Civ.P. 38(b), made
applicable to removed cases by Fed.R.Civ.P. 81(c), required
the Mazantis to demand a jury trial within fourteen days from
filing the last pleading concerned with the issues for which
trial by jury is sought. The parties agree that the
Mazantis' answer was the last relevant pleading. Dkt. 12
at 3; Dkt. 13 at 2. The Mazantis concede that their jury
demand was due March 12, 2019 but was not filed until March
19, 2019. Dkt. 13 at 2. Failure to file within the time
provided constitutes a waiver of the right to trial by jury.
Fed.R.Civ.P. 38(d). Despite the waiver, “the court may,
on motion, order a jury trial on any issue for which a jury
trial might have been demanded.” Fed.R.Civ.P. 39(b).
case, the Mazantis' counsel declares that the reason for
the late filing was that he inadvertently entered the due
date for the jury demand on the incorrect date in his
calendar. Dkt. 13-1 at 2. The Mazantis argue that Nationwide
cannot show prejudice and ask that the Court to follow
Johnson v. Dalton, 57 F.Supp.2d 958 (C.D. Cal. 1999)
and exercise discretion to override the waiver provisions of
Fed.R.Civ.P. 38. Dkt. 13 at 3. The court in Johnson
concluded that “[d]espite suggestions in Ninth Circuit
opinions that the Court does not have discretion in this
case, the Court finds that the Rule itself, case law, and
policy support the court's exercise of discretion
Johnson, the Ninth Circuit has continued to clearly
hold that inadvertence is not a permissible reason for a
district court to grant relief from the failure to make a
timely jury demand. According to the Ninth Circuit, the
court's discretion “does not permit a court to
grant relief when the failure to make a timely demand results
from an oversight or inadvertence.” Zivkovic v.
Southern California Edison Co., 302 F.3d 1080, 1086-87
(9th Cir. 2002). “An untimely request for a jury trial
must be denied unless some cause beyond mere inadvertence is
shown.” Pacific Fisheries Corp. v. HIH Cas. &
General Ins., Ltd., 239 F.3d 1000, 1003 (9th Cir. 2001).
The Mazantis' counsel explicitly declares that the only
reason for his untimely request was inadvertence. Dkt. 13-1
at 2. The Court finds that on the facts of this case,
Zivkovic and Pacific Fisheries are
controlling. The Court concludes that the Mazantis have
failed to timely demand a jury and have waived their right to
a trial by jury.
it is hereby ORDERED that Nationwide's
motion to strike the Mazantis' jury demand, Dkt. 12, is
 Nationwide informs the Court that
“‘Nationwide Insurance Company,' the other
entity plaintiffs sued, is not a legal entity and did not
issue the insurance policy that is the subject of ...