Northern District Strikes Jury Demand in Wage & Hour Class Action for Failure to Timely Plead

Becker jury going to luncheon (LOC)
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The Northern District struck a jury trial demand in a putative wage and hour class action.  Rodriguez v. Sears Holding Corporation, No. 10-1268 SC, 2010 WL 3341656 (N.D. Cal. Aug. 24, 2010).  Plaintiff originally filed his complaint in Alameda Superior Court.  Id. *1.  Plaintiff was an employee of Defendants, and brought a putative class action on behalf of himself and others similarly situated for violations of various provisions of California’s Labor Code and Business and Professions Code, including failure to pay overtime wages, failure to allow and pay for meal and rest periods, failure to pay compensation upon discharge, and failure to provide proper wage statements. Id. The complaint made no demand for a jury trial. Id. Defendant removed on March 25, 2010.  Plaintiff did not seek remand.  Plaintiff filed and served his First Amended Complaint, but again did not include a demand for jury trial. Id. On June 22, 2010, Plaintiff filed a Demand for Jury Trial.  Id. Defendants moved to strike the jury demand. Id.

Under Rule 38 of the Federal Rules of Civil Procedure, “[a] party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.” Under Rule 38(b) a party may demand a jury trial by 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 filing the demand in accordance with Rule 5(d).  Id. The court noted that while the “district court may, in its discretion, order a jury trial on a motion by a party who has not filed a timely demand for one, this discretion is narrow, and ‘does not permit a court to grant relief when the failure to make a timely demand results from an oversight or inadvertence.'” Id. (citing Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001)).

Plaintiff conceded that the jury demand was eight weeks late “due to plaintiff’s counsel’s belief a jury had been demanded in state court already”, and did not argue that new issues were raised in the amended complaints that would render the Jury Demand timely. Id. Rather, Plaintiff stressed the importance of this constitutional right and argues that the Court has discretion to grant relief from an inadvertent waiver of jury under Rule 39(b).  Id.

The court held that while Plaintiff’s inadvertent failure to make a timely demand for a jury trial may be harmless, “a district court abuses its discretion when it permits a jury trial despite a plaintiff’s inadvertent failure to make a timely demand.”  Id. *3.


Hon. Samuel Conti.


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