(PC) Shepard v. Borum

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA LAMONT SHEPARD, Case No. 1:18-cv-00277-ADA-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTIONS DEMANDING A BENCH TRIAL 13 v. (Doc. Nos. 113, 114) M. BORUM and J. ACEBEDO, 15 Defendants.

17 Plaintiff filed two separate motions in which he states he waives his right to a jury trial and demands a bench jury. (Doc. Nos. 113, 114). In his first motion, Plaintiff requests a bench trial pursuant to Article VII of California’s constitution. (Doc. No. 113 at 1). In his second motion, Plaintiff requests a bench trial pursuant to the United States Constitution. (Doc. No. 114).1 22 Under federal law, “[t]he right of trial by jury…is preserved to the parties inviolate.” Fed. R. Civ. P. 38(a). “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 A proper demand may be withdrawn only if the parties consent.” Rule 38(d). Unless all parties consent, a jury trial demand cannot be withdrawn. United States SEC v. Jensen, 853 F.3d 1100, Although Defendants have twenty-one (21) days to respond to Plaintiff motions, Local Rule 230(l), given Defendants earlier demand for a jury trial the Court does not find a response from Defendants necessary to rule on the pending motions. (Doc. Nos. 108 at 2, 19 at 5).

1 | 1107 (9th Cir. 2016).

2 As a court of federal jurisdiction, the state constitution of California has no bearing on this | Court. Further, Defendants have not withdrawn their earlier demands to a jury trial. (See | Defendants’ Answer at Doc. No. 19 at 5; Defendants’ Pretrial Statement at 108 at 2). Further, at | the recent telephonic trial confirmation hearing held on October 11, 2022, Plaintiff stated his | intent to waive his right to a jury trial and proceed to a bench trial, but Defendants unequivocally | stated that they will not waive their demand to a jury trial.

8 Accordingly, it is ORDERED: 9 Plaintiff's motions demanding a bench trial (Doc. Nos. 113, 114) are DENIED. Unless | Defendants consent to withdraw their earlier demands, this case will proceed to a jury trial. | Dated: _ November 28, 2022 Mihaw. Th fareh Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE