ORDER AND OPINION [Re: Motion at docket 44]
JOHN W. SEDWICK, Senior District Judge.
I. MOTION PRESENTED
At docket 44, defendant Matanuska-Susitna Borough ("MSB") moves to strike the jury demand filed by plaintiff Andrea Richey ("Richey"). Richey's response is at docket 45. MSB replies at docket 46. Oral argument has not been requested and would not assist the court.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 81 governs jury demands in a removed action. Pursuant to Rule 81, a party is entitled to a jury trial if the party serves a demand within 14 days after removal.
Pursuant to Rule 39 of the Federal Rules of Civil Procedure, a court in its discretion "may, on motion, order a trial by a jury of any or all issues."
The complaint by the original plaintiff in this class action case dated January 17, 2014, was filed in state court. In July of 2014, plaintiff moved to file an amended complaint adding, for the first time, a claim arising under federal law. The state court judge granted the motion in an order signed August 11, 2014. Thereafter, MSB timely removed the case to this court. It is undisputed that plaintiff did not file a demand for a jury trial in federal court after removal. Thus, the issue presented in defendant's motion is whether plaintiff properly filed a jury demand under state law before removal.
Plaintiff first filed a demand for jury trial on April 16, 2014, while the case was in state court. The filing was untimely under Alaska Rule of Civil Procedure 38(b). It has long been recognized that failing to file a timely demand for a jury trial waives the right to a jury under Alaska law.
The amended answer was almost identical to the original answer. According to MSB, the only change was addition of a defense asserting discretionary function immunity. However, the court notes that the amended answer also added as a defense an allegation that plaintiffs failed to exhaust administrative remedies. MSB correctly argues that where an amended pleading is almost identical to the original pleading the time within which a jury demand may be made is not re-started.
To begin with, asserting defenses of qualified immunity and failure to exhaust administrative remedies raises legal issues which go beyond those raised in the earlier answer. Turning first to the qualified immunity defense, it should be noted that in Alaska, municipal governments such as MSB are immune from tort liability when the action complained of resulted from the exercise of a discretionary function.
MSB cites Cutler v. Kodiak Island Borough
The defense of failure to exhaust administrative remedies necessarily involves facts that would not need to be addressed, but for the addition of that defense. The validity of the defense raises a number of subsidiary issues: were such remedies generally available; if so, were they available remedies with respect to all claims advanced by plaintiffs; if so, did plaintiffs use or attempt to use those remedies; would pursuit of such remedies have been futile for some reason; etc. These issues turn on facts that would not need to be addressed absent the new defense.
In sum, it appears to the court that addition of the two new defenses implicates facts not implicated in their absence. The amended answer is the last pleading directed at the newly raised issues, which is controlling under the applicable rule.
Plaintiff asserts in her response that the court should exercise its discretion to order a jury trial as to all remaining issues pursuant to Rule 39 of the Federal Rules of Civil Procedure. However, as noted above, the court's discretion is limited: "An untimely request for a jury trial must be denied unless some cause beyond mere inadvertence is shown."
For the reasons above, the motion at docket 44 is