United States District Court

For the Northern District of California

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NIBBI BROTHERS, INC.,

Plaintiff,

v.

NATIONAL UNION FIRE INSURANCE

COMPANY OF PITTSBURGH, PA,

Defendant.

___________________________________/

No. C-09-2231 EMC

ORDER DENYING PLAINTIFF’S

MOTION FOR TRIAL BY JURY

(Docket No. 24)

Plaintiff Nibbi Brothers, Inc. has filed suit against Defendant National Union Fire Insurance

Co. of Pittsburgh, PA for breach of the implied covenant of good faith and fair dealing. Currently

pending before the Court is Nibbi’s motion for a trial by jury. Having considered the parties’ briefs

and accompanying submissions, as well as all other evidence of record, the Court hereby DENIES

Nibbi’s motion.

I. FACTUAL & PROCEDURAL BACKGROUND

Nibbi initiated this lawsuit in state court on April 14, 2009. See Docket No. 1 (complaint). 

In its complaint, it did not make a demand for a jury. 

After National Union was served with the complaint, it removed the case to federal court

and, on May 28, 2009, filed an answer. See Docket No. 4 (answer). Under Federal Rule of Civil

Procedure 38(b),

a party may demand a jury trial by:

(1) serving the other parties with a written demand . . . no later

than 14 days after the last pleading directed to the issue is

served; and

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 Nibbi incorrectly claims that the statement was filed in early September 2009. See Mot. at 5-6.

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(2) filing the demand in accordance with Rule 5(d)

Fed. R. Civ. P. 38(b). Because National Union answered the complaint on May 28, per Rule 38(b),

Nibbi had 14 days – i.e., until June 11, 2009 – to make a jury demand. Nibbi failed to do so.

The first time that Nibbi informed the Court that it wanted a jury trial was on October 9,

2009, when it filed a case management conference statement.1 See Docket No. 13 (St. ¶ 18).

Under the current case management order, trial is set for September 27, 2010. Fact discovery

is to be completed by May 10, 2010, and expert discovery by June 7, 2010. See Docket No. 20

(order).

II. DISCUSSION

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). National Union does

not dispute that Nibbi could have asked for a jury trial on its claim for breach of the implied

covenant. National Union argues, however, that, under Ninth Circuit law, a trial court’s discretion

to grant an untimely request for a jury trial is narrow, and a trial court may not permit a jury trial

where the failure to make a timely demand is a result of mere oversight or inadvertence.

There is a conflict among the federal courts as to what standard should be applied in deciding

whether or not to grant a motion for a jury trial. “Several courts have stated that a Rule 39(b)

motion for a jury trial should always be granted unless there is a strong and compelling reason for

denying it.” 8-39 Moore’s Fed. Prac. – Civ. § 39.31[4][a]. But other 

courts have taken the position that a motion for a jury trial under Rule

39(b) should be granted only when the moving party shows adequate

and persuasive grounds for granting the motion. According to these

courts, mere oversight or inadvertence are not sufficient ground for

granting a motion for a jury trial. More and special circumstances are

required to justify granting the motion.

Id.; see also Ruiz v. Rodriguez, 206 F.R.D. 501, 504 (E.D. Cal. 2002) (noting “wide divergence of

opinion” – “[w]hile some Circuits take a restrictive view of the circumstances justifying relief under

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Rule 39(b), others find the discretion granted to be very broad”).

As National Union argues, the Ninth Circuit falls into the latter category. As the Ninth

Circuit held in Lutz v. Glendale Union High Sch., Dist. No. 205, 403 F.3d 1061, 1065 n.4 (9th Cir.

2004), “[a]n untimely request for a jury trial must be denied unless some cause beyond mere

inadvertence is shown.” There the plaintiff “points to no explanation other than inadvertence for her

failure to make a timely jury trial request as to liability.” In Pacific Fisheries Corp. v. H.I.H. Cas. &

Gen. Ins., Ltd., 239 F.3d 1000 (9th Cir. 2001), a removal case, the Ninth Circuit rejected the moving

party’s contention that its attorney had not acted inadvertently but rather made a “good faith mistake

of law” in misinterpreting federal and state rules and thereby erroneously calculating the period of

time available to make the jury demand. The court stated: “Counsel’s reasons for his errors are of

no consequence because they are still due to inadvertence or oversight.” Id. at 1002. See also

Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1086 (9th Cir. 2002) (a “district court’s

discretion under Rule 39(b) 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’ such as a good faith mistake of law

with respect to the deadline for demanding a jury trial”). 

In its papers, Nibbi argues that there is cause beyond mere inadvertence which should lead

this Court to grant Nibbi’s motion for a jury trial. See id. (noting that “[a]n untimely request for a

jury trial must be denied unless some cause beyond mere inadvertence is shown”). See, e.g., Jones

v. Pan American World Airways, Inc., No. 8-2033-DLJ, 1990 U.S. Dist. LEXIS 13728, at *21-22

(N.D. Cal. June 26, 1990) (concluding that “more than mere inadvertence led to the untimely

demand in this case” – “[p]laintiff’s failure to file a timely demand arose from the breakdown of his

communications with his attorney during the period immediately following the filing of the removal

petition[;] [b]ecause his attorney was preparing to withdraw from the case, no jury demand was

filed”); Ruiz, 206 F.R.D. at 505 (concluding that failure to serve the jury demand was not the result

of the mere oversight or inadvertence of counsel, but rather the failure of the server to follow

counsel’s instructions and therefore allowing jury trial). According to Nibbi, the cause beyond mere

inadvertence is “[t]he three venue changes from the date this case was originally filed through

September 2009 [which] caused the case to remain in limbo[;] [t]his made any filing uncertain until

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 The three venue changes that Nibbi appears to be referring to are: (1) filing of the case in state

court; (2) the removal of the case to federal court; and (3) the transfer of the case from Judge Brazil to

this Court. 

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the case was settled in a particular venue.”2 Reply at 3. This argument, however, is unavailing. 

Nibbi’s reason still amounts to oversight or inadvertence. The only “venue change” that matters was

the removal from state to federal court. The intradistrict “venue change” is immaterial. Once the

case was placed into federal court, Nibbi became bound by the federal procedural rules. Even if

Nibbi had moved to remand, it was still bound by the federal rules unless and until the case was

remanded back to state court. 

In its papers, Nibbi also suggests that it made a calculated decision not to make a jury

demand because it “was not sure if National Union’s answer was going to be the final pleading at

issue” because Nibbi was thinking about amending the complaint to add additional parties to the

lawsuit. Reply at 3. This argument is not convincing. Rule 38(b) does refer to a jury demand being

made “no later than 14 days after the last pleading directed to the issue is served” but there is no

authority to support Nibbi’s contention that a contemplated amendment renders an answer already

served something other than “the last pleading.” Fed. R. Civ. P. 38(b). In short, the reasons

advanced by Nibbi for failing to move timely under Rule 38(b) amounts to inadvertence and is not

sufficient to warrant relief.

III. CONCLUSION

For the reasons discussed above, the Court hereby DENIES Nibbi’s motion for a jury trial.

This order disposes of Docket No. 24.

IT IS SO ORDERED.

Dated: January 21, 2010

_________________________ EDWARD M. CHEN

United States Magistrate Judge

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