United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

LEGAL ADDITIONS LLC,

Plaintiff,

v.

JEROME KOWALKSI, et al.,

Defendants.

___________________________________/

No. C-08-2754 EMC

ORDER GRANTING PLAINTIFF’S

MOTION FOR ORDER REVIVING AND

REINSTATING JURY TRIAL

(Docket No. 148)

Previously, the Court granted Plaintiff’s motion to reconsider, thereby permitting the fraud

claim against Defendant Jerome Kowalski in his individual capacity to proceed to trial. Plaintiff

thereafter filed the currently pending motion in which it asks for an order reviving and reinstating a

jury trial as to all claims remaining for trial -- i.e., not only the fraud claim against Mr. Kowalski but

also the breach-of-contract and accounting claims against the Kowalski corporate defendant. 

Having considered the parties’ briefs and accompanying submissions, as well as the oral argument

of counsel, the Court hereby GRANTS Plaintiff’s motion.

With respect to the fraud claim against Mr. Kowalski as an individual, the Court finds that

Plaintiff never waived a jury trial. The language of the parties’ stipulation of March 22, 2010,

clearly indicates that Plaintiff intended to waive a jury trial with respect to the breach-of-contract

and accounting claims against Kowalksi corporate entity only. See Docket No. 116 (stipulation). 

This limited scope of the waiver is consistent with the procedural history of this case. Up until this

Court’s dismissal of the fraud claim against Mr. Kowalski individually, a jury trial had been

Case 3:08-cv-02754-EMC Document 160 Filed 06/04/10 Page 1 of 3
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

demanded and scheduled. It was this Court’s order dismissing that claim that precipitated the

stipulation waiving a jury trial.

As for the claims for breach of contract and accounting, as noted above, Plaintiff did waive

the right to a jury trial. Nevertheless, under Federal Rule of Civil Procedure 39(b), a “court may, on

motion, order a jury trial on any issue for which a jury might have been demanded.” Fed. R. Civ. P.

39(b). While the Ninth Circuit has stated that a court’s discretion under Rule 39(b) is “is narrow”

and that a court may not “grant relief when the failure to make a timely demand results from an

oversight or inadvertence,” Pacific Fisheries Corp. v. H.I.H. Cas. & Gen. Ins., Ltd., 239 F.3d 1000,

1002 (9th Cir. 2001), Plaintiff has established that its limited waiver here was based on more than

mere inadvertence. As noted above, Plaintiff made its decision to waive the right to a jury trial on

the breach-of-contract and accounting claims only because of the Court’s prior order dismissing the

fraud claim. In short, Plaintiff’s limited waiver was the result of reliance on the decision of the

Court which, in granting reconsideration, conceded error in its ruling. In this respect, the situation

here is somewhat analogous to that in Daniel International Corp. v. Fischbach & Moore, Inc., 916

F.2d 1061 (5th Cir. 1990). There, the Fifth Circuit concluded that the counterplaintiff did not act

with mere inadvertence in failing to make a jury demand; the trial court itself had mistakenly

believed that the counterclaim was set for a jury trial and the counterdefendant did not move to

strike the matter off the jury calendar until late in the day. The counterplaintiff’s reliance thereon

transcended inadvertence and warranted relief. The same is true here.

As a final point, the Court notes that factors considered by other courts (including the Fifth

Circuit in Daniel) in determining whether to grant relief from waiver under Rule 39(b) also weigh in

Plaintiff’s favor. Those factors are as follows: (1) whether the case involves issues which are best

tried to a jury; (2) whether granting the motion would result in a disruption of the court’s schedule or

that of an adverse party; (3) the degree of prejudice to the adverse party; (4) the length of the delay

in having requested a jury trial; and (5) the reason for the movant’s tardiness in requesting a jury

trial. See id. at 1064; see also 8-39 Moore’s Fed. Prac. -- Civ. § 39.31[5][a]. The majority of these

factors clearly weigh in favor of a jury trial in the instant case. For example, this case is neither

highly technical nor complex but rather involves issues well within the comprehension of a jury --

Case 3:08-cv-02754-EMC Document 160 Filed 06/04/10 Page 2 of 3
United States District Court

For the Northern District of California

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

for instance, what promises were made by Defendants to Plaintiff. See Daniel, 916 F.2d at 1064

(finding a contract dispute well within the comprehension of a jury). Moreover, there may be some

overlap in the evidence relevant to the contract and fraud claims; thus, a consolidated jury trial

rather than a bifurcated proceeding will minimize the risk of confusion and inconsistency. In

addition, permitting a jury trial will not result in a disruption of the Courts’ schedule. The Court is

able to accommodate the jury trial on largely the same days as the previously contemplated bench

trial. Moreover, permitting a jury trial on this schedule will not prejudice Defendants. The time to

prepare for a jury trial is negligible given the substantial overlap in evidence (both documentary and

testimonial) on all claims. Finally, Plaintiff did not delay in requesting a jury trial as it moved for

relief from the waiver promptly after the Court granted the motion to reconsider.

For the foregoing reasons, Plaintiffs’ motion to revive and reinstate a jury trial is

GRANTED. There shall be a jury trial on all claims remaining in the action. 

This order disposes of Docket No. 148.

IT IS SO ORDERED.

Dated: June 4, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

Case 3:08-cv-02754-EMC Document 160 Filed 06/04/10 Page 3 of 3