United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant's motion to
strike Plaintiff's jury demand and for attorney fees
(Dkt. No. 27). Having thoroughly considered the parties'
briefing and the relevant record, the Court finds oral
argument unnecessary and hereby DENIES the motion for the
reasons explained herein.
January 10, 2019, Plaintiff, proceeding pro se,
filed a lawsuit in King County Superior Court against
Defendant, alleging discrimination and retaliation claims
under the Washington Law Against Discrimination
(“WLAD”), Wash. Rev. Code §§ 49.60.180,
49.60.210. (See Dkt. No. 1-2.) Under the heading
“Requested Relief, ” the complaint contained the
following language: “Under Washington law a jury may
award unlimited economic losses as well as unlimited
‘general damages' for the suffering of
discrimination and retaliation. Under Federal law the jury
may award up to $300, 000 per ‘violation' as
punitive damages. Therefore, plaintiff seeks $300, 000 per
violation.” (Id. at 23.) The complaint did not
contain any other language regarding a jury. (See
January 28, 2019, Plaintiff filed an amended complaint. (Dkt.
No. 8-6.) The amended complaint contained the identical
language regarding a jury as contained in the original
complaint. (Compare Dkt. No. 1-2, with Dkt.
No. 8-6.) The following day, Defendant removed the case to
this Court based on diversity jurisdiction. (Dkt. No. 1-2.)
Plaintiff retained counsel in this matter on May 21, 2019,
and eight days later, filed a motion for leave to file a
second amended complaint. (Dkt. Nos. 11, 12.) In seeking
leave to amend, Plaintiff stated that “[t]he only
substantive change between the Amended Complaint and the
Second Amended Complaint is the addition of Jonathon Addison,
one of Plaintiff's supervisors, and clarification of the
identity of Plaintiff's actual employer.” (Dkt. No.
12 at 5.) Notwithstanding this statement, the proposed second
amended complaint contained the following language:
“Plaintiff requests this court order that this matter
be heard by a jury and upon proof grant the following relief
. . . .” (Dkt. No. 12-2 at 46.) Defendant opposed
Plaintiff's motion for leave to file a second amended
complaint, arguing that Mr. Addison was a non-diverse party
who, if joined, would destroy diversity jurisdiction. (Dkt.
No. 15 at 1.) Defendant further argued that joinder was
unwarranted because Plaintiff's claims against Mr.
Addison were time-barred. (Id. at 7.) Neither party
said anything in its briefing regarding the jury demand
contained in the proposed second amended complaint.
(See Dkt. Nos. 12, 15.)
17, 2019, the Court granted in part and denied in part
Plaintiff's motion for leave to file a second amended
complaint. (Dkt. No. 25.) The Court denied Plaintiff leave to
join Mr. Addison, but allowed Plaintiff leave to amend
“as it pertain[ed] to her other proposed technical
changes, such as correcting the name of Defendant Jacobs
Engineering Group, Inc. and summarizing her existing claims
and relief requested.” (Id. at 7.) Plaintiff
filed a second amended complaint that included the following
language: “Plaintiff requests this court order that
this matter be heard by a jury and upon proof grant the
following relief . . . .” (Dkt. No. 26 at 15.)
to the Court issuing its order, it held a status conference
on July 9, 2019. (Dkt. No. 23.) At the status conference, the
Court scheduled a bench trial for August 24, 2020, and
neither party objected. (Id.) On July 31, 2019,
Defendant filed the present motion to strike the jury demand
from Plaintiff's second amended complaint. (Dkt. No. 27.)
Defendant argues that Plaintiff's amended complaint did
not contain a jury demand, and that Plaintiff's attempt
to add a jury demand to the second amended complaint was
untimely. (Id. at 4-5.) Plaintiff asserts that her
amended complaint contained sufficient language to represent
a jury demand. (Dkt. No. 31 at 1-2.)
right of trial by jury as declared by the Seventh Amendment
to the Constitution__or as provided by a federal statute__is
preserved to the parties inviolate.” Fed.R.Civ.P.
38(a). A party must 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; and (2) filing the
demand in accordance with Rule 5(d).” Fed.R.Civ.P.
38(b). A party waives its right to a jury unless its demand
is properly served and timely filed. See Fed. R.
Civ. P. 38(d).
party fails to make a timely jury demand after a case is
removed from state court, there are two situations in which
that party can avoid waiving its right to a jury trial.
See Fed. R. Civ. P. 81(c). First, a party is
entitled to a jury in federal court so long as it made a
proper jury demand under state law prior to the case being
removed. See Fed. R. Civ. P. 81(c) (“A party
who, prior to removal, has made an express demand for trial
by jury in accordance with state law, need not make a demand
after removal.”). Second, a party does not have to
request a jury after removal if it filed a pleading in state
court that contained a jury demand that would satisfy Rule
38(b). See Mondor v. U.S. Dist. Court, 910 F.2d 585,
587 (9th Cir. 1990) (“[W]here a pre-removal jury demand
would satisfy federal . . . requirements, that demand is
incorporated into the federal record upon removal, and is
deemed to satisfy Rule 38(b).”); see also Fed.
R. Civ. P. 81(c) (“Repleading [after removal] is not
necessary unless the court so orders.”).
courts are to “indulge every reasonable presumption
against waiver” of the jury trial right. Lutz v.
Glendale Union High Sch., 403 F.3d 1061, 1064 (9th Cir.
2005) (quoting Aetna Ins. Co. v. Kennedy ex rel.
Bogash, 301 U.S. 389, 393 (1937)). In the Ninth Circuit,
a jury demand must be “sufficiently clear to alert a
careful reader that a jury trial is requested on an
issue.” Id. at 1064. The Ninth Circuit allows
for a “great deal of flexibility in how the [jury]
request is made . . . while still recognizing that the
purpose of Rule 38's demand requirement is to
‘inform the Court and counsel well in advance of trial
as to the trial method desired.'” Id.
(quoting Gallagher v. Del. & H.R. Corp., 15
F.R.D. 1, 3 (M.D. Pa. 1953)).
case, it is undisputed that Plaintiff did not move to amend
her complaint to add an explicit jury demand until several
months after Defendant filed its answer. (Compare
Dkt. No. 9, with Dkt. No. 12.) Therefore,
Plaintiff's attempt to amend the complaint to add a jury
demand was untimely. See Fed. R. Civ. P. 38(b);
see also Pac. Fisheries Corp. v. HIH Cas. & Gen.
Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001)
(“An untimely request for a jury trial must be denied
unless some cause beyond mere inadvertence is shown.”).
Nor did Plaintiff's amended complaint comply with
Washington State's Superior Court Rules for demanding a
jury trial. See Wash. R. Sup. Ct. 38(b) (“At
or prior to the time the case is called to be set for trial,
any party may demand a trial by jury of any issue triable of
right by a jury by serving upon the other parties a demand
therefore in writing, by filing the demand with the clerk,
and by paying the jury fee required by law.”). Thus,
the only way that Plaintiff could have preserved her right to
a jury trial is if the amended complaint filed in state court
satisfied the Rule 38 notice requirement. See Fed.
R. Civ. P. 81(c); Mondor, 910 F.2d at 587.
argues that Plaintiff's amended complaint did not contain
a jury demand that satisfied Rule 38. (Dkt. No. 27 at
Plaintiff counters that the language contained in the amended
complaint regarding a jury was sufficient to meet the
requirements of Rule 38. (Dkt. No. 31 at 3-4.) The Court
agrees with Plaintiff that the language contained in her
amended complaint was sufficiently clear ...