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United States v. $71

United States District Court, D. New Mexico

April 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
$71, 000.00 IN U.S. CURRENCY, Defendant-in-rem, and JUSTIN MURPHY, Claimant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C RACK SENIOR U.S. DISTRICT JUDGE.

         THIS 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.

         I. Background

         The 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.)

         On 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. (Doc. 14.)

         On May 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.)

         Approximately 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.)

         II. Analysis

         A. Claimant did not properly demand a jury trial under Rule 38

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. Fed.R.Civ.P. 38(d).

         Here, 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 ...


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