Lutz v. Glendale Union High School

• Decision Date: 08 April 2005
• Docket Number: No. 03-15745.,03-15745.
• Parties: Claudette LUTZ, Plaintiff-Appellee, v. GLENDALE UNION HIGH SCHOOL, District No. 205; Governing Board of Glendale Union High School, District No. 205, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

403 F.3d 1061

Claudette LUTZ, Plaintiff-Appellee, v. GLENDALE UNION HIGH SCHOOL, District No. 205; Governing Board of Glendale Union High School, District No. 205, Defendants-Appellants.

No. 03-15745.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2004.

Filed April 8, 2005.

COPYRIGHT MATERIAL OMITTED

Laurent R.G. Badoux, Littler Mendelson P.C., Phoenix, AZ, for the appellants.

John W. Stewart, Gold Canyon, AZ, for the appellee.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CV-98-01076-EHC.

Before: ALEX KOZINSKI, WILLIAM A. FLETCHER and JAY S. BYBEE, Circuit Judges.

KOZINSKI, Circuit Judge:

We probe the mysteries of demanding a jury trial under Fed.R.Civ.P. 38(b).

I

Lutz, a longtime teacher and assistant principal at schools in Glendale Union High School District, sued Glendale¹ in Arizona state court, claiming she was fired in violation of the Americans with Disabilities Act ("ADA"). Glendale removed the case to the United States District Court for the District of Arizona, where it successfully moved for summary judgment on the issue whether Lutz is substantially limited in a major life activity and therefore disabled. We reversed, finding a triable issue as to whether she is substantially limited in the major life activity of walking. See Lutz v. Glendale Union High Sch., Dist. No. 205, 8 Fed. Appx. 720, 721-22 (9th Cir.2001) (mem.).

On remand, Lutz filed an amended complaint, raising new claims under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and under the Arizona Civil Rights Act, Ariz.Rev.Stat. §§ 41-1461 et seq. She also divided her ADA claim into separate claims that Glendale failed to provide reasonable accommodations and that it fired her because she exercised her rights under the ADA. Over Glendale's objection, the district court tried all of Lutz's claims to a jury, which found for Lutz. Glendale appeals, arguing that the district court erred in submitting the case to a jury because Lutz had waived her right to a jury trial.

II

Because Glendale had not filed its answer before it removed the case, Lutz was entitled to demand a jury trial at any time until ten days after she was served with the answer. See Fed.R.Civ.P. 38(b); Pac. Fisheries Corp. v. HIH Cas. & Gen. Ins., Ltd., 239 F.3d 1000, 1002 n. 2 (9th Cir.2001); cf. Fed.R.Civ.P. 81(c) (requiring a jury trial demand "within 10 days after service ... of the notice of filing the [removal] petition" if "at the time of removal all necessary pleadings have been served"). Lutz did not demand a jury trial in federal court until she filed her amended complaint — about eleven months after Glendale filed its answer.

Lutz's failure to make a timely jury trial request in federal court would ordinarily mean that she waived her right to trial by jury. See Fed.R.Civ.P. 38(d). However, Rule 81(c) provides two possible avenues around waiver in removal cases. First, Lutz would have been entitled to a federal jury trial had she made a proper jury request under state law before the case was removed. See Fed.R.Civ.P. 81(c) ("A party who, prior to removal, has made an express demand for trial by jury in accordance with state law, need not make a demand after removal."). Second, Lutz would not have had to request a jury trial after removal if her state complaint already contained a jury demand that would have satisfied Rule 38(b). See Mondor v. United States Dist. Court, 910 F.2d 585, 587 (9th Cir.1990) ("[W]here a pre-removal jury demand would satisfy federal ... requirements, that demand is incorporated into the federal record upon removal, and is deemed to satisfy Rule 38(b)."); see also Fed.R.Civ.P. 81(c) ("Repleading [after removal] is not necessary unless the court so orders.").

Lutz's complaint plainly fails to qualify for the former alternative. In Arizona, a jury trial demand "shall not be endorsed on or be combined with any [motion other than the motion to set the case for trial] or pleading filed with the court," Ariz. R. Civ. P. 38(b), and Lutz had not separately demanded trial by jury.

Whether her original state complaint meets the requirements of Rule 38(b) is less clear. Her complaint did not explicitly demand that her case be tried to a jury. However, in her prayer for relief, she requested that the court "[e]nter a Judgment in favor of Plaintiff for such back pay and value of lost employment benefits as may be found by a jury" (emphasis added). She also requested compensatory damages for pain and suffering in "such amount as may be awarded by a jury" (emphasis added). We must decide whether these references to a jury in her state complaint would have been sufficient to invoke the right to a jury trial in federal court.²

Lutz's requests are hardly the ideal way to request a jury trial: They were made in passing and buried in the body of the complaint, where they could easily be overlooked by court staff, who must decipher pleadings to decide how to calendar a case. See Whitman Elec. Inc. v. Local 363, Int'l Bhd. of Elec. Workers, 398 F.Supp. 1218, 1223 (S.D.N.Y.1974) ("A demand for jury trial should be indorsed on the pleading, rather than merely set forth in the body of the pleading, to give proper notice to the Clerk and the Court in preparing trial calendars."). Ideally, we would prefer that parties make jury trial demands "in a separate document or set off from the main body of the pleading in order to make [them] readily recognizable." Charles Alan Wright & Arthur R. Miller, 9 Federal Practice and Procedure § 2318, at 135 (2d ed.1994).

Nevertheless, we "indulge every reasonable presumption against waiver" of the jury trial right, Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 U.S. 389, 393, 57 S.Ct. 809, 81 L.Ed. 1177 (1937), and therefore accept jury demands that fall far short of the ideal. See, e.g., Gargiulo v. Delsole, 769 F.2d 77, 78-79 (2d Cir.1985) ("While defendants' demand, made on the last page of their answer, was not in the preferred style, and its obscure placement perhaps caused the clerk of the court to overlook it, we nonetheless conclude that it complied with Rule 38(b)."); Pradier v. Elespuru, 641 F.2d 808, 810-11 (9th Cir.1981) (holding that, where the body of a pleading contains a jury trial demand, the pleading need not also state in its caption that a jury trial is requested in order to comply with Rule 38(b) — even if a district court rule requires such a statement). What we do insist on is that the jury demand be sufficiently clear to alert a careful reader that a jury trial is requested on an issue. This approach allows a great deal of flexibility in how the request is made, and so comports with our presumption against waiver, while still recognizing that the purpose of Rule 38's demand requirement is to "inform the Court and counsel well in advance of trial as to the trial method desired." Gallagher v. Del. & H.R. Corp., 15 F.R.D. 1, 3 (M.D.Pa.1953), cited in Mondor, 910 F.2d at 587.

While Lutz's requests certainly could have been clearer, they did provide sufficient notice to the court and opposing counsel that she wanted a jury trial on two remedial issues: back pay,³ and damages for pain and suffering. We therefore hold that her requests were sufficient to "demand a trial by jury" on these issues.

However, the district court submitted the entire case to the jury, including the question of liability. Yet, nowhere in her state complaint does Lutz ask for a jury trial on liability; her only references to a jury are in the prayer for relief. Thus, we must consider whether Lutz's jury references as to damages were enough to invoke a jury trial right as to the entire case.

Rule 38 provides that a party may "demand a trial by jury of any issue triable of right by a jury." Fed.R.Civ.P. 38(b) (emphasis added). But it does not require that a party itemize every issue it wants presented to a jury. Instead, "[i]n the demand a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable." Fed.R.Civ.P. 38(c). A party seeking a jury trial thus has a choice: either list specific issues for the jury to consider, or make a general demand, which will be deemed to cover all issues triable to a jury. As the word "otherwise" indicates, though, a jury demand will be deemed to cover all issues only if it doesn't specify particular issues. Cf. 5 James Wm. Moore, Moore's Federal Practice ¶ 38.40, at 38-381 (2d ed. 1996) ("Pursuant to Rule 38(c) the demand may be general, as: `plaintiff demands trial by jury in this action.' Or the demand may specify the issues, as: `defendant [demands] trial by jury of the issues raised by the defendant's counterclaim and plaintiff's reply thereto.'"); United States v. Anderson, 584 F.2d 369, 371 (10th Cir.1978). Any other construction would render the first clause of Rule 38(c) a nullity. Lutz did specify particular issues: She requested that a jury determine back pay and certain compensatory damages. As a result, we cannot deem her requests "to have demanded trial by jury for all of the issues ... triable" to a jury pursuant to Rule 38(c).

While we do not lightly conclude that the right to a jury trial has been waived, we are mindful that the purpose of a jury demand is to inform the court and opposing counsel that certain issues will be tried to a jury. Because Lutz's complaint asked for a jury on some issues but not others, a careful reader would not reasonably conclude that Lutz wanted a jury on all issues presented in the complaint. We hold that Lutz's state complaint did not contain a jury demand on liability that would have satisfied federal standards. The district court thus erred in submitting the question of liability to the jury.⁴

III

Lutz did include a general jury trial demand in her amended complaint, which was filed almost a year after Glendale's...