(PC) Shepard v. Borum ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 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) 14 M. BORUM and J. ACEBEDO, 15 Defendants. 16 17 Plaintiff filed two separate motions in which he states he waives his right to a jury trial 18 and demands a bench jury. (Doc. Nos. 113, 114). In his first motion, Plaintiff requests a bench 19 trial pursuant to Article VII of California’s constitution. (Doc. No. 113 at 1). In his second 20 motion, Plaintiff requests a bench trial pursuant to the United States Constitution. (Doc. No. 21 114).1 22 Under federal law, “[t]he right of trial by jury…is preserved to the parties inviolate.” Fed. 23 R. Civ. P. 38(a). “A party waives a jury trial unless its demand is properly served and filed. A 24 proper demand may be withdrawn only if the parties consent.” Rule 38(d). Unless all parties 25 consent, a jury trial demand cannot be withdrawn. United States SEC v. Jensen, 853 F.3d 1100, 26 1 Although Defendants have twenty-one (21) days to respond to Plaintiff motions, Local Rule 230(l), given 27 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). 28 1 | 1107 (9th Cir. 2016). 2 As a court of federal jurisdiction, the state constitution of California has no bearing on this 3 | Court. Further, Defendants have not withdrawn their earlier demands to a jury trial. (See 4 | Defendants’ Answer at Doc. No. 19 at 5; Defendants’ Pretrial Statement at 108 at 2). Further, at 5 | the recent telephonic trial confirmation hearing held on October 11, 2022, Plaintiff stated his 6 | intent to waive his right to a jury trial and proceed to a bench trial, but Defendants unequivocally 7 | 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 10 | 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 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28