United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C RACK SENIOR U.S. DISTRICT JUDGE.
MATTER is before the Court on the United States'
Motion to Strike Claimant's Untimely Jury Trial Demand.
(Doc. 44.) For the reasons set forth below, the Court
GRANTS the motion and strikes Claimant
Justin Murphy's jury demand (Doc. 43). The Court will
conduct a bench trial in this case.
United States filed its verified complaint for forfeiture
in rem on December 15, 2017. (Doc. 1.) The complaint
did not include a jury demand. (Id.) On February 21,
2018, Claimant Justin Murphy (“Claimant”) filed a
verified notice of claim asserting an interest in the
defendant property. (Doc. 7.) On March 8, 2018, Claimant
filed an answer to the verified complaint. (Doc. 9.) Claimant
did not make a jury demand in either his answer or his notice
of claim. (Id.)
April 26, 2018, Plaintiff filed the parties' Joint Status
Report and Provisional Discovery Plan (JSR). (Doc. 11.) The
JSR gave conflicting information regarding a jury demand.
(Id. at 8- 9.) The parties initially marked the
trial as a “non-jury case”, but at the end of the
JSR, “counsel for Claimant demand[ed] a [j]ury
[t]rial.” Id. On May 4, 2018, the Court
entered a Scheduling Order with a six-month discovery track.
7, 2018, the Court set the case for a two-day bench trial
commencing on July 29, 2019. (Doc. 20 (Notice).) The Court
also set pretrial conferences for May 24, 2019, and June 28,
2019. (Docs. 18-19.)
eight months later, on January 9, 2019, Claimant filed a
formal Jury Demand. (Doc. 43.) Claimant specifically demanded
a twelve-person jury in the case “pursuant to Rules 38
and 39 of the Federal Rules of Civil Procedure.”
(Id.) The United States now moves to strike
Claimant's jury demand as untimely. (Doc. 44.) Although
the United States indicates that its motion to strike is
opposed, Claimant did not file a response to the motion. The
United States filed a notice of briefing completion on March
4, 2019. (Doc. 45.)
Claimant did not properly demand a jury trial under Rule
Rule 38(b) provides that a party may demand a jury trial by:
(1) Serving the other parties with a written demand-which may
be included in a pleading-no later than 14 days after the
last pleading directed to the issue is served; and
(2) filing the demand in accordance with Rule 5(d).
Fed. R. Civ. P. 38(b). The “last pleading directed to
the issue” will “generally be an answer or a
reply, if appropriate, and is determined on a claim by claim
basis.” In re Kaiser Steel Corp., 911 F.2d
380, 388 (10th Cir. 1990); see also McCarthy v.
Bronson, 906 F.2d 835, 840 (2d Cir. 1990) (the last
pleading directed to an issue is normally “an answer,
or, with respect to a counterclaim, a reply”). Rule 38
further provides that the failure to serve and file a jury
demand properly waives a party's right to a jury trial.
Claimant did not include a jury demand in his verified
answer, which was the last pleading in this matter. (Doc. 9.)
Claimant's verified answer was filed and served on March
8, 2018. (Id.) Claimant's formal jury demand is
untimely because it was filed and served on January 9, 2019 -
nearly ten months past the 14-day time period given in Rule
38. (Doc. 43.) Even if the Court assumes that Claimant's
request for a jury trial in the JSR was adequate under Rule
38, that request was also untimely because the JSR was filed
on April 26, 2018, a little over one month after the 14-day