Opinion
No. CIV 02-595-TUC-CKJ.
October 18, 2005
ORDER
On September 26, 2005, the Court held a hearing relating to issues pertinent to the upcoming trial in this case. As all of Plaintiff's claims were dismissed from this case on summary judgment, and only Defendants' breach of contract counterclaim remains in this case, the Court ordered the parties to submit briefs addressing whether this case must be tried before the Court or a jury.
The Court has reviewed the parties briefs and finds that this case must be conducted as a bench trial as Plaintiff has waived her right to a jury trial. In response to the Counterclaim filed by Defendants on 9/18/03, Plaintiff failed to timely request a jury trial. Pursuant to FED.R.CIV.P. 38(b), Plaintiff was required to demand a jury trial within 10 days of being served with the jury triable breach of contract counterclaim; Plaintiff failed to do this. See Doc. #'s 28, 88, 89. As such, Plaintiff waived her right to a jury relating to Defendants' Counterclaim. See FED.R.CIV.P. 38(d) ("The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury."). In addition, Plaintiff waived her right to a jury trial in her Pretrial Statement when she stated a jury trial was inapplicable to the Counterclaim. See Doc. #164 (Pretrial Statement at 9); FED.R.CIV.P. 39(a) (providing that parties can consent to bench trial via a written stipulation); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (holding that pro se party waived his right to a jury trial by failing to file a timely demand for a jury trial). Lastly, the Court notes that Plaintiff failed to request a jury trial in both her initial Complaint filed on 12/6/02 and in her Amended Complaint filed on 5/5/03. See Doc. #'s 1, 13. Despite the fact that the various complaints arose out of the same nucleus of facts pertaining to the denial of a disability claim, the first time Plaintiff requested a jury was in another Amended Complaint filed on 6/25/04 pursuant to an Order granting Defendants' motion for a more definite statement. See Doc. #'s 1, 13, 16. Lastly, the Court notes that it has limited discretion to order a jury trial despite a party's waiver; however, as is the case here, the Court can not order a jury trial where the failure to timely demand a jury is simply the result of oversight, inadvertence, or lack of familiarity with the rules of procedure. See Pacific Fisheries Corp. v. HIH Cas. Gen. Ins., Ltd., 239 F.3d 1000, 1002 (9th Cir. 2001).
Accordingly, the Court finds that Plaintiff has waived her right to a jury trial, and this case shall be tried before the Court.