Luque v. Pompeo

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Victor Luque Luque, No. CV-19-00330-TUC-JGZ (LAB) 10 Plaintiff, ORDER v. Michael R Pompeo, 13 Defendant.

15 Pending before the Court is Defendant Michael Pompeo’s Motion to Strike Demand for a Jury Trial. (Doc. 35.) Defendant requests that the Court strike Plaintiff’s request and set the trial in this action before the Court because Plaintiff is not entitled to a jury trial on his claim, and even if he were entitled, he waived the entitlement because his request for a jury trial was untimely. (Doc. 35.) Plaintiff has filed a response. (Doc. 37.) Plaintiff argues that he is entitled to a jury trial, but concedes that his request for a jury trial is untimely. The Court will grant Defendant’s Motion.

22 Rule 38 of the Federal Rules of Civil Procedure provides for a jury trial only where the right is “provided by a federal statute” or “declared by the Seventh Amendment to the Constitution.” Fed. R. Civ. P. 38(a). “A party waives a jury trial unless its demand is properly served and filed.” Fed. R. Civ. P. 38(d); see also United States v. Missouri River Breaks Hunt Club, 641 F.2d 689, 692 (9th Cir. 1981) (“[T]he right to jury trial, although protected by constitutional guarantees, is not absolute; it may be waived if a timely demand is not made.”). Rule 38(a) requires that a jury demand be served no later than 14 days after || the last pleading directed to the issue is served. Fed. R. Civ. P. 38(a).

2 Plaintiffs request for a jury trial was due by September 23, 2019. Plaintiff did not || request a jury trial until June 12, 2020. (Doc. 32, p. 6.) Plaintiff concedes that the request is untimely. Plaintiff offers no basis, and the Court sees none, for excusing the delay. || Accordingly, for the foregoing reasons, 6 IT IS ORDERED that Defendant’s Motion to Strike Demand for a Jury Trial (Doc.

35)is GRANTED.

8 Dated this 17th day of August, 2020.

10 □ ll pote Soipe 1 ; Honorable Jennife ve Zipps United States District Judge -2-