FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

R O S S D R

E S S F O R L E S S , I N C ., a Delaware corporation,Plaintiff-Counter-DefendantAppellant
,

v

.

M AK AR I O S -O R E G ON , L LC, an Oregon lim ited liability com pany,Defendant-Counter-ClaimantA ppellee
,

and

WAL K E R P LA C E , LLC, an Oregon lim ited liability com pany; C HA R L E S W

. C AL O M

AR I S ; K A T H E R I NE C AL O M I R

I S T O MP RO S ; J E

N N I F E R C AL O M I R

I S , D efendants. No. 21-35106

D.C. No. 3:14-cv-01971-SIR O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 2

R O S S D R

E S S F O R L E S S , I N C ., a Delaware corporation,Plaintiff-Counter-DefendantA ppellee
,

v

.

WAL K E R P LA C E , LLC, an Oregon lim ited liability com pany, Defendant
,

and

C HAR L E S W

. C AL O M

AR I S ; K A T H E R I NE C AL O M I R

I S T O M P RO S ; J E N NI F E R C AL O M I R

I S , Defendants-Appellants
,

M AK AR I O S -O R E G ON , L LC, an Oregon lim ited liability com pany,Defendant-Counter-ClaimantAppellant. No. 21-35132

D.C. No. 3:14-cv-01971-SI

OPINION

Appeal from

the United States District Court for the District of Oregon Michael H. Sim on, District Judge, Presiding

Argued and Subm itted May 10, 2022

Portland, Oregon

Filed July 8, 2022R O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 3

Before: Richard C. Tallm an and Morgan Christen, Circuit Judges, and Frederic Block, * District Judge.

Opinion by Judge Christen

SUMMARY * *

Jury Trial

The panel affirm ed the district court’s rul ing granting defendant-appellee Ma k arios-Oregon, LLC’s m otion to wi th dr aw its d em and for a jury trial in a diversity action involving the parties’ lease obligations.

Plaintiff Ross Dress for Less, Inc. sued Makarios seeking declaratory relief regarding its end-of-lease obligations in connection with Ross’s lease of the Richm ond Building, as to which Makario s h ad received an assignm ent of rights and thereafter acted as Ross’s landlord. Makar i os filed counterclaim s against Ross and dem an de d a jury trial on its counterclaim s. I n January 2 016, Ross filed a docum ent waiv in g its right to a jury trial under Fed. R. Civ. P

. 38. In Novem ber 2018, Makarios m oved to wi t h draw its jury dem and. Ross argued it was entitle d t o r e l y on Makarios’s request for a jury. Makarios argued that because Ross waived its right to a jury when it entered into the Richm ond Building

* The Honorable F rederic Block, United States District Judge for the Eastern District of New York, sitting by designation.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.R O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 4

lease, Ross could not object to Makarios’s withdrawal of its jury dem and o r to take advantage o f the g e n eral rule that parties m ust consent to a bench trial after a p r oper jury dem and is m ade. The district court held a four-day Phase II bench trial and entered judgm ent in favor of Makarios.

Fed. R. Civ. P. 38 ( d) provides that a proper jury trial dem and “m ay be withdrawn only if the parties consent.” Fed. R. Civ. P. 39 requires trial by jury “on all issues dem anded” unless the parties stipulate or the “court, on m otion, or on its
own, finds that on som e or all of those issues there is no federal right to a jury trial.”

Because jurisdiction in the distr i c t court was based on diversity of c it i z enship, O regon substantive law and federal procedural law governed.

Ross contended th at the d istrict court erred by allowing Makarios to unilaterally withdraw its dem and for a jury trial because Fed. R. Civ. P. 3 8(d) and 39(a ) required Ross’s consent. Neither p art y argued that the waiver in Section 13.04 o f the lease was unknowing or inv oluntary, but the parties disagreed on the scope of the provisions. F irst, applying O regon law, the panel held th a t th e ordinary

m eaning o f Se ction 13.04 was clear and it established that Ross waived its right to a jury trial o n counterclaim s filed by Makarios. The panel affirm ed the district court’s ruling as to waiver. S econd, the p anel rejected Ross’s argum ent that even if it contractually waived its jury trial right, it was still entitled to rely on Makarios’s jury dem and under Rules 38(d) and 39(a). The panel affirm ed the district court’s conclusion that Rules 38 and 39 d id not apply b ecause Ross had no right
to a jury trial b y virtue o f i t s wa i ver in Section 13.04 of its lease. T he panel held that typically, the com bination of RulesR O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 5

38(d) and 39(a) prevents a party fr o m un ilaterally withdrawing its jury dem and, even when no o t h er party has requested a jury trial. Although the rig h t to rely on another party’s jury dem and is not unlim ited, the exceptions to the Rules did not apply here.

The p anel resolved the bulk of the issues on appeal in a concurrently filed m em o randum disposition.

C OUNSEL

Gregory D. Call (argued) and T racy E. Reichm uth, Crowell & Mori n g LLP, San F rancisco, California; Joel A. Parker, Re becca Boyette, and S ara Kobak, Schwabe W illiam so n & Wyatt PC, Portland, Oregon; for Plaintiff-CounterDefendant-Appellant/Cross-Appellee.

Molly K. H onoré (argued), Paul S. Bi e r l y , a nd Jeffrey M. Edelso n , Markowitz Herbold PC, P ortland, Oregon, for Defendant-Counter-Claim ant-Appellee/Cross-Appellant.R O S S D R E S S F O R L E S S V

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OPINION

CHRISTEN, Circuit Judge:

Plaintiff-appellant Ross Dress for Less, Inc. app eals the district court’s ruling granting defendant-appellee MakariosOregon, LLC’s m otion to withdraw i t s d e mand for a jury trial. Ross argues the d i strict court erred because Federal Rules of Civil P rocedure 38 and 39 generally allow a party to rely on another party’s jury dem and without having to file its

own dem and. Ross further argues that the R ules require that parties consent before the court m ay conduct a bench trial if

a proper jury dem and has been m ade. Because Ross waived its r i ght to a jury trial in its lease with Makarios, we affirm the district court’s ruling.

I

This appeal arises fr o m Ro s s’s lease o f the Richm ond Building, a five-story property locate d a t 6 00 SW Fifth Avenue in P o rt l a n d
, Oregon. The basem ent, first floor, and second floor o f the R ichm on d Bu i lding are connected by
concrete slabs to the sam e floors o f the adjacent F ailing Building, a twelve-story structure on the National Register o f Historic Places. In Septem ber 1996, Ross assum ed all rights in the leases for the R ichm ond and Failing Buildings. Ross’s l e ase for both buildings expired on S eptem ber 30, 201 6

. From 1986 to 2017, th e Calom iris fam ily owned the Richm ond Building. Mak ario s-O reg o n i s an entity associated with the Calom iris fam ily. Makarios received an assignm ent of all rights to the lease of the Ri ch mo nd Building in 2011, and thereafter acted as Ross’s landlord.R O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 7

The lease for the Richm ond Building w as a “triple-net lease,” m eaning Ross, as tenant, was responsible f or all taxes, insurance, and other expenses related to the b uilding’s operation, m aintenance, and repair. Ross pai d $ 3 4 ,000 annually in rent for the entirety o f its lease. Four provisions of the lease are at the center of the parti e s ’ dispute. Two govern e d Ross’s end-of-lease o bligations: S ection 16.01 required Ross to surrender th e property “in good order, condition, an d r e p a ir, except f or reasonable wear and tear,” and Section 16.02 required Ross to “m ake such alterations to the building then erected on the de mi se d p r e m ises as

. . . necessary to constitute such building an entirely independent and self- s u ffi cient structure.” The other two provisions are relevant to the jury dem and issue. Section 13.04 of the lease provided that “[t]he Tenant waives all right to trial by jury in
any summ ary or oth e r judicial proceedings hereafter instituted by the L andlord against the Tenant in respect to the dem ised prem ises

. ” Section 26.01 stated that “the term s, conditions, covenants, provi s i ons and agreem ents herein contained shall be binding upon and inure to the benefit of the Landlord, its successo r s and assigns, and the Tenant, its successors and assigns.”

In Decem ber 2014, Ross sued Makarios and then-owner of the Failing Building, W alker Place, in the Un i t e d States District Court for the District o f Oregon seeking declaratory relief regarding its end-of-lease obligations for the Richm ond and Failing Buildings. Ross a sked the district court for a declaratory judgm ent establishing that : ( 1 ) Ross was only obligated to perform the work necessary to physically separate the Richm ond and Failing Building s ; (2) the work Ross proposed to Makarios and W alker Place w as sufficient
to satisfy its lease obligations; (3) Ross was not obligated to perform additional work d em anded b y th e landlords; andR O S S D R E S S F O R L E S S V

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(4) th e landlords could n ot withhold consent to Ross’s proposed plans. Ross’s com plaint also dem anded a jury trial.

B o th d e f en d ants f iled counterclaim s against R o ss alleg in g breach of contract and requesting a declaratory j u d gm ent regarding Ross’s end-of-lease obligations. Makarios dem an de d a jury trial on its counterclaim s. The parties agreed to bifu r c a t e the case into two phases: in Phase I, the parties were to litigate their declaratory relief claim s, and their rem aining claim s and d am ages we r e t o be litigated in Phase II. In J a nu ary 2016, Ross filed a docum ent attesting that it “waives its right to a jury trial under the Federal Rules of Civil Pr o c edure 38, as to any issue in this case for which a right to a jury trial exists.” The m inutes for a March 2016
status conference with the district court m em ori a l i zed that “all parties w aived their rights to a jury trial on all claim s and counterclaim s” and the c o urt would conduct a “bench trial, rather than a jury trial.” But it appears the court interpreted these w aivers to apply only to Phase I of the bifurcated claim s because subsequent e n tries on the district court’s docket indicate the c o u rt anticipated Phase II would be tried to a jury.

At the co nc l u s i on of the Phase I bench trial, the district
court denied in p a rt and granted in p art the parties’ requests for declaratory judgm ent. Th e court ruled that Ross’s proposed plans to com

ply with its surrender obligations were insufficient, b ut it also ruled that Ross wa s not required to

com ply with the full scope of work the landlords dem anded. The court retained jurisdict i o n to address the parties’

rem aining claim s and to calculate dam ages in Phase II. Both defendants filed am ended co unterclaim s ag ain st R o ss in April 2017, and both dem anded a jury trial on those claim s. Ross’sR O S S D R E S S F O R L E S S V

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answers to the am ended counterclaim s al s o i n cluded a jury dem and.

In Septem

b er 2017, Ross entered into a global settlem ent agreem ent with W alker Place. Thereafter, m ultiple entries on the district court’s docket reflect the court’s p l a n t o hold a jury trial o n Makarios’s counterc l ai m s a gainst R oss. But in Novem ber 2018, Makarios m oved to withdraw i t s jury dem and. The district court received briefing on the m otion from both parties. In its opposition, Ross argued it was entitled to rely on Makarios’s requ e s t for a jury and that pursuant to Fe d e r al Rules o f C ivil Procedure 38 and 39, Makarios could not w ithdraw its dem and unle s s Ro ss consented. S

ee Reid Bros. Logging Co. v. Ketch i k a n Pulp Co.
, 699 F.2d 1292, 1304 (9 th Cir. 1 983) (explaining Rules 38 and 39 are “designed to allow parties to rely upon the jury dem and of other parties to the sam e case” without having to file their own dema n d )

. According to Makarios, because Ro s s wa i ved its right to a jury trial when it entered into the Richm ond B u ilding le a se, Ross had no ability to object to Makarios’s withdrawal of its jury dem and or to t a k e adv a n t age of the general rule that parties m ust consent to a bench trial after a proper jury dem and is m ade, see, e.g. , U .S. Sec. & Exch. Comm’n v. Jensen
, 835 F.3d 1100, 1107 (9th Cir. 2016).

The district court conducted a telephonic h e a r ing on Makarios’s m o tion in Decem ber 2018, a n d in an oral ruling the court granted Makarios’s m otion. T he court reasoned that Section 13.04 of the lease i nc l uded “an unequivocal and voluntary and knowing waiver

. . . by th e t e n a nt and its
successors, including Ross, to a jury trial.” The court acknowledged that Rules 38 and 39 generally allow a party to rely on anoth e r p arty’s jury dem and, but explained thatR O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 10

because the lease included a waiver of the tenant’s right to a jury trial, Ross could n ot invoke the protections of the Rules
to o p pose Makarios’s w ithdrawal o f its d em and. “[I]n order
to elim inate any potential risk of prejudice to Ross” for having to prepare for a bench trial, the district cou rt authorized Ross to reopen any d epositions and to substitute any of its expert witnesses.

In Decem

be r 20 19, the court held a four-day Phase II bench trial. The district court entered final judgm ent in favor of Makarios for $2,931,829 in J anuary 2021. Ross tim ely
ap p ealed
, an d Makarios cross-appealed. W e h av e ju risdictio n pursuant to 28 U.S.C. § 1291. The bulk o f t h e i ssues on appeal are resolved in a c o ncurrently filed m em orandum d isposition. Here, w e affirm the district court’s or d e r granting Makarios’s m otion to w ith d raw its jury trial dem and.

II

Whether a party is enti tl ed to a jury trial is a q uestion o f law that we review de novo. Thomas v. Or. Fruit Prods. Co.
, 228 F.3d 9 91, 995 (9th Cir. 2000); Jensen
, 835 F.3d at 1106. W e also review d e novo “the district court’s interpretation o f
contract p rovisions,” but we review the d istrict court’s factual findings for clear error. OneBeacon Ins. Co. v. Hass Indus., Inc.
, 634 F.3d 1092, 10 9 6 (9th Cir. 2011). Because jurisdiction in t he district court was based on diversity o f

c i t i zenship, Oregon substantive law and federal procedural law govern. S

ee Feldman v. Allstate Ins. Co.
, 322 F.3d 660, 666 (9th Cir. 2003). When applying Oregon substantive law,

we are bound by decisions of the Oregon Suprem e Court. See In re Kirkland
, 915 F.2d 1236, 1 2 38–39 (9th Cir. 1990). Where there is no Oregon Suprem e Court decision on point,

we m ust use “interm ediate appellate cou rt decisions,R O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 11

decisions f

rom other jurisdictions, statutes, treatises, and
restatem ents as guidance” to d ecide how the O regon Suprem e Court would rule. Id. at 1239.

III

Ross contends the district court erred by allowing Makarios to unilaterally withdraw its dem and for a jury trial because R

ules 38(d) and 39(a) required Ross’s consent. Makarios m aintains that R oss cannot take advantage of Rules 38 and 39 because, pursuant to the term s of the parties’ lease, Ross waived its right to a jury trial in any proceeding initiated by the l a n d l o rd. W e m

ust decide: (1) whether Ross waived its right to a jury trial pursuant to Section 1 3.04; and, if so, (2) whether R o ss is nevertheless entitled to rely on Rules 38 and 39 to oppose Makarios’s withdrawal of its jury dem and.

A

“Because the right t o a j ury trial is a fundam ental right guaranteed to o ur citizenry by the Constitution,” we “indulge

eve ry reasonable presum ption against waiver.” Solis v. County of Los Angeles
, 5 14 F.3d 946, 953 (9th Ci r

. 2 008) (quoting Pradier v. Elespuru
, 6 4 1 F.2d 808, 811 (9th Cir. 1981)). A federal court sitting in d iversity jurisdiction applies fe deral procedural law to determ ine the validity of a jury trial waiver, unless the underlying state law is m ore protective than federal law. See In re County of Orange
, 784 F .3d 520, 530–31 (9th Cir. 2015). Like federal law, Oregon law perm its a party to waive its constitutional right to

a jury trial by knowing and voluntary agreem ent. S ee Ha ys Grp., Inc. v. Biege
, 193 P.3d 1028, 1029–30 ( Or

. Ct. App. 2008). Neither Ross nor Makarios argue t h e waiver inR O S S D R E S S F O R L E S S V

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Section 13.04 of the lease was unknowing or involuntary, but the parties do disagree on the scope of the provision.

Section 13.04 provides that “[t]he Tenant waives all right
to trial by jury in any summ ary or other judicial proceedings hereafter instituted by the Landlord against t h e Tenant in respect to the dem ised prem ises.” Oregon’s three-part test for
contract interpretation governs our interp r et ation of this provision. See Yogman v. Parrott
, 937 P.2d 1019, 1021 (Or. 1997). “First, the c o urt exam ines the text of the disputed provision, in the context of the doc u me n t as a whole. If the provision is clear, the analysis en d s .” Id. If the contractual provision is am

biguous, the cou rt m oves to the second step and exam ines extrinsic e vi dence of the parties’ intent. Id.
at 1022. If that step does not resolve the am biguity, the court proceeds to the last step and “relies on appropriate m axim s o f [contract] construction.” Id.

Oregon courts rout inely rely on dictionary definitions at the first step to understan d the “ordinary m eaning” of a contract’s te rms. See id. To understand the m eaning of the
term “proceeding” as it applies in Section 13.04, both parties quote B lack’s Law Dictionary, which defines “ p r oceeding” to include:

1. The regular and o rderly progression of a lawsuit, including all acts and events between the tim e of comm en c e ment and the entry o f judgm ent. 2

. Any procedural m eans for

s e eking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a court or other official body; a hearing.R O S S D R E S S F O R L E S S V

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Proceeding
, B LA C K ’ S L AW D I C T I O N A R Y ( 1 1 th ed

. 2 0 1 9). The Oregon Court of Appeals has also cited with approval Black’s definition of the term “judicial p roceeding,” as m eaning “any court proceeding; any p ro ceedi n g in itiated to procure an order

or decree, whether in law or in equity.” Baldwin v. Seida
, 441 P.3d 720, 725 ( Or

. Ct. App. 2019) (alterations and

em pha se s o mitted). Cf. Whelchel v. Washington
, 232 F.3d 1197, 1209 (9th Cir. 2000) (concluding that a deposition fell within the m eaning of a “judicial proceeding,” as defined in the Sixth Edition of Black’s Law Dictionary).

Ross argues Section 13.04’s waiver does not apply to the
p re se n t dispute because Ross w as the first to f ile suit and Section 13.04 only applies to p r o c eedings initiated by the landlord. We a r e not persuaded. The ordinary m eaning o f “judicial proceeding” com pels a broader interpretation o f Section 1 3

. 04 than the one Ross advocates. Makarios can fa i r l y be said to have initiated judicial p roceedings when i t filed counterclaim s agai nst Ross because, like Ross, it too invoked a “procedura l means f or seeking redress” f

rom the
court by filing its own claim s. Se e Proceeding
, B LA C K ’ S L AW D I C T I ON

AR Y (11th ed. 2019). A t bottom
, Section 13.04 unequivocally states the tenant “waives all right t o trial by jury in any. . . judicial proceedings . . . .”

The ordinary m eaning of Section 13.04 is clear and it establishes that Ross waived its r i ght to a jury trial on

cou n t e r claim s filed by Makarios. Because the ordinary

m eaning of the disputed provision is unam biguous, we need not engage in the latter two steps of Oregon’s three-part test for contract interpretation. See Yo gman , 937 P.2d
at 1021–22. And because the parties do not dispute whetherR O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 14

Ros s ’ s w aiver was knowing and voluntary, we affirm the district court’s ruling as to waiver. 1

B

Next, Ross argues that even if it contractually w aived its jury trial right, it was still entitled to rely on Makarios’s jury dem and p er Rules 38(d) and 39(a). Rule 38(d) provides that

a proper jury tri a l de mand “m ay be withdrawn only if the parties consent.” Fed. R. Civ. P. 38(d). Rule 39(a) requires trial by jury “on all issues so dem anded” unless the p ar t ies stipulate or “the court, on m otion or on its own, finds that on

som e or all of those issues there is no f ederal right to a jury trial.” Fed. R. Civ. P. 39(a)(1)–(2).

Ro s s argues that it was entitled to rely on Makario s ’s proper de mand for a jury trial and that Rules 38 and 39 p rev e nted Mak ario s f

r o m u n ilat e r a l l y w i t

h d raw in g its d em an d b ec aus e the parties did not stipulate to a bench trial and the
court did not find that no right to a jury trial exists. The district court c o ncluded Rules 3 8 and 39 did not apply because Ross h a d no r ight to a jury trial by v irtue o f its waiver in Section 13.04 of its lease. The precise function o f Rules 3 8 and 39 in the scenario p resented here appears to be an issue of first impression in our court.

1 The p arties did not rai se , and the d istrict court d id not address, Ross’s January 2016 filing in the d istrict court stating that Ross w aived “its right to a j ury tri a l under [the] Federal Rule[s]

. . . as to any issue in this case f or which a right t o jury trial exists.” A s noted, som e entries o n the district court docket tha t p o s t -date the parties’ March 2016 status

co n fe rence indicate the court was contem plating that Phase II would be
tri e d t o a jury. Because Section 13.04 was a knowing and voluntary waiver, we need not decide whether t he January 2016 filing constituted a separate waiver of Ross’s right to a jury trial.R O S S D R E S S F O R L E S S V

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A p arty is generally enti t l e d to rely on another party’s original j ury d e m and and need not file their o wn. See U .S. Sec. & Exch. Comm’n v. Jensen
, 835 F.3d 1100, 1107 (9th Cir. 2 016). Typically, the com bination of Rules 3 8(d) and 39(a) prevents a party from unilaterally withdrawing its jury dem and, even when no other party has requested a jury trial. Cf. White v. McGinnis
, 903 F .2d 6 99, 703 (9th Cir. 1990) (en banc) (“Rule 39(a) is designed to protect again s t som e

c a r e l ess statem ent or am

biguous docum ent being held to b e

a waiver when one was not intended.”). But the right to rely

on another party ’ s jury dem and is not unlim ited. For

exam p le, we h ave said the right extends only to issues that the original dem and actually covered. See, e.g. , Cal. Scents v. Surco Pr o d

., Inc.
, 406 F.3d 1102, 1105–08 (9th Cir. 2 005) (explaining a party bringing claim s m ay not rely o n another party’s jury d eman d unless those claim s “turn on the sam e

m atrix of fa c t s ” or “concern [] the sam e g eneral area o f dispute” as the cl a i m s o n which a dem and was originally

m ade (alterations in original) (first quoting Las Vegas Sun, Inc. v. Summa Corp.
, 610 F.2d 614, 620 (9th Cir. 1979); and then quoting In r e N-500L Cases
, 691 F.2d 15, 23 (9th Cir. 1982))).

W e have recognized at least two o ther exceptions to these Rules. First, a party m ay consent to the unilateral withdrawal of a jury dem and through its conduct, and t h e reby waive its right to rely o n the protections of Rules 38(d) and 39(a). See Rei d B ros. Logging Co. v. Ketchikan Pulp Co.
, 699 F.2d 1292, 1304–05 (9th Cir. 1983). “Once a party dem onstrates through its actions that it has not relied o n a n o ther’s jury dem and in failing to file its own, the reason for allowing it to objec t wh e n another side unilaterally seeks to withdraw its dem and dissolves.” Fuller v. City of Oakland
, 47 F.3d 1522, 1532 (9th C ir. 1995). For exam ple, we will decline to enforceR O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 16

Rules 3 8 and 39 “when the party claim ing the jury trial right is attempting to act strategically—participating in the bench trial in the hopes o f achieving a favorable o ut c om e, then

ass e rt i n g lack of consent to the bench trial when the result
turns o ut to be unfavorable to him .” Solis v. C ounty of L os Angeles
, 514 F.3d 946, 955 (9th Cir. 2 008). An d in White
, we explained that a party who “vigorously” argues its case to

a judge “can only be ascribed to k n owledg e able

r e l i nquishm ent of the p rior jury dem and” and cannot lat e r object that its case was tried to the b ench. See 9 03 F.2d
at 700, 703. In contrast, one’s “[r]eluctant participation in a bench trial” does not am ount to waiver of their right to a jury. Solis
, 514 F.3d at 956. 2

Separately, w e have recognized that the circum stances und er wh i ch Rule 39(a) allows a jury dem and to be withdrawn a r e n ot unlim ited. Jensen cautioned that Rule 39(a) applies “[a]s l ong as there is a federal right to a jury trial” in the first place. 835 F .3d at 1 107. The plain language of Rule 39 requires this excepti o n b ecause it provides that a court m ay o rder a bench tri a l if it “finds that on som e or all

. . . issues there is no federal right to a jury t r i a l .” Fed. R. Civ. P. 39(a)(2).

Two cases invol v ing jury dem ands are particularly instructive. First, in Craig v. Atlantic Richfield C o. , 19 F.3d 472 ( 9th Cir. 1994), we affirm ed a district court’s ruling

2 This exception does not apply after trial b egins because at that point “other reliance interests com e into play.” Fuller
, 47 F.3d at 1532. Once trial is underway, we enforce Rule 39(a)’s withdrawal procedures strictly. See id. (“[O]nce trial begins, a party m ay no l onger unilaterally withdraw its j ury dem and; other parties are entitled to rely whether they h ave waived their rights or not, and withdrawal m ay occur only in com pliance with the language of Rule 39(a).”).R O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 17

rejecting a Jones Act plaintiff’s attem pt to rely on the defendant’s jury trial d e mand
, id. at 479. W e reasoned that the f ederal court’s sole b a s is for jurisdiction was the Jones Act claim and the defendant d id n ot have the right to dem and

a jury trial for the Jones Act claim

. Id. at 476–77 (explaining defendant “had neither a constitutional nor a statutory right to dem and a jury trial,” and thus its dem and could “not have been m ade ‘as provided in Ru l e 38’ for purposes of Rule 39”).

Rachal v. Ingram Corp.
, 795 F.2d 1 2 10 (5th Cir. 1986), is a case o n which both Makarios and the district court relied. There, the Fifth Circuit affirm ed a district court’s decision to allow the plaintiff to unilaterally strike its jury dem and, over the defendant’s objection, a ft er the plaintiff am ended his

com plaint to re mo ve the only b asis for a jury trial. Id.
at 1213–17. Consistent with our court’s interpretation o f Rule 39(a), the Fi fth C ircuit explained that Rule 3 9(a)’s
consent requirem ent generally serves to protect the rights o f

a party who d id not m ake the initial jury dem and, but R ule 39 does not gran t t h a t p a rty “any new or independent right to a jury trial; it sim

ply protects rights to a jury trial that the [nonrequesting party] m ay have been granted elsewh e re .” Id. at 1215–16.

The d istrict court’s ruling in this case is analogous to the Fifth Circuit’s ruling in Rachal
, and is also consistent wi th

our precedent and our practice of interpreting the Rules “in a

m anner consistent with their underlying purpose.” Reid Br os. , 699 F.2d at 1 305. W e therefore affirm the distr i ct court’s interpretation of Rules 38 and 3 9. W e also affirm its rulin g that the application o f Rules 38 and 39 here did not entitle Ross to a jury trial after Makarios withdrew its dem and because the parties’ lease included a wa i ver of theR O S S D R E S S F O R L E S S V

. M AK AR I O S -O R E G ON 18

tenant’s right t o a jury trial in proceedings initiated by the landlord.

AFFIRMED.