United States v. 2005-04-07 | 03-15745 | LUTZ VGLENDALE UNION HIGH | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CLAUDETTE LUTZ,
Plaintiff-Appellee,
No. 03-15745v.
D.C. No.GLENDALE UNION HIGH SCHOOL,  CV-98-01076-EHCDISTRICT NO. 205; GOVERNING
BOARD OF GLENDALE UNION HIGH OPINION
SCHOOL, DISTRICT NO. 205,
Defendants-Appellants. 
Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
December 6, 2004—San Francisco, California
Filed April 8, 2005
Before: Alex Kozinski, William A. Fletcher and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Kozinski
4075

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COUNSEL
Laurent R.G. Badoux, Littler Mendelson P.C., Phoenix, Ari-
zona, for the appellants.
John W. Stewart, Gold Canyon, Arizona, for the appellee.
OPINION
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 tri-
able 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
1“Glendale” refers to the school district and its governing board, both
defendants in this case.
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accommodations and that it fired her because she exercised
her rights under the ADA. Over Glendale’s objection, the dis-
trict 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
[1] 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.
[2] Lutz’s failure to make a timely jury trial request in fed-
eral 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
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Rule 38(b).”); see also Fed. R. Civ. P. 81(c) (“Repleading
[after removal] is not necessary unless the court so orders.”).
[3] 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.
[4] Whether her original state complaint meets the require-
ments 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 ref-
erences to a jury in her state complaint would have been suffi-
cient 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
2Fed. R. Civ. P. 38(b) provides in relevant part that a party “may
demand a trial by jury of any issue triable of right by a jury by . . . serving
upon the other parties a demand therefor in writing.”
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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. Ken-
nedy ex rel. Bogash, 301 U.S. 389, 393 (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 place-
ment 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 presump-
tion 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.
[5] 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.
3But see pages 4087-91 infra (holding that this issue is not “triable of
right by a jury”).
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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.
[6] 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 tri-
able 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 plain-
tiff’s reply thereto.’ ”); United States v. Anderson, 584 F.2d
369, 371 (10th Cir. 1978). Any other construction would ren-
der 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).
[7] 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
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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
[8] Lutz did include a general jury trial demand in her
amended complaint, which was filed almost a year after Glen-
dale’s answer. See pages 4079-80 supra. The district court
apparently believed that the filing “start[ed] again the time to
ask for a jury,” but it was mistaken. Rule 38 cut off Lutz’s
right to demand a jury trial ten days after Glendale’s answer
was served, see Fed. R. Civ. P. 38(b), and the amended com-
plaint did not revive that right as to the issues that Lutz had
raised in her original complaint, see Fed. R. Civ. P. 38(d)
(“The failure of a party to serve and file a demand as required
by this rule constitutes a waiver by the party of trial by
jury.”); see also W. Geophysical Co. of Am. v. Bolt Assocs.,
Inc., 440 F.2d 765, 769 (2d Cir. 1971) (“The authorities are
clear that when a party has waived the right to a [jury] trial
with respect to the original complaint and answer by failing
to make a timely demand, amendments of the pleadings that
do not change the issues do not revive this right.” (citations
omitted)).
4Lutz also argues that, notwithstanding her failure to make a timely jury
demand, the district court “in its discretion upon motion may order a trial
by a jury of any or all issues.” Fed. R. Civ. P. 39(b). We find nothing in
the record to indicate that the district court exercised its discretion in
allowing an untimely jury request; instead, the district judge apparently
believed Lutz’s request was timely. See page 4084 infra. In any event, had
the district judge ordered a jury trial under Rule 39(b), he would have
abused his discretion. See Pac. Fisheries, 239 F.3d at 1002 (“An untimely
request for a jury trial must be denied unless some cause beyond mere
inadvertence is shown.”). Lutz points to no explanation other than inadver-
tence for her failure to make a timely jury trial request as to liability.
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[9] Nevertheless, in her amended complaint, Lutz raised
new claims under section 504 of the Rehabilitation Act and
under the Arizona Civil Rights Act, and she divided her ADA
claim into two distinct claims. See pages 4079-80 supra. If
these additional claims were new “issue[s]” under Rule 38(b),
then Lutz’s jury trial demand on liability was timely as to
them. See Fed. R. Civ. P. 38(b) (requiring that the jury
demand on an issue be made “not later than 10 days after the
service of the last pleading directed to such issue”); see also
Williams v. Farmers & Merchants Ins. Co., 457 F.2d 37, 38
(8th Cir. 1972) (“Once waived, the [jury trial] right is revived
by amendments to the pleadings only if new issues are raised
in such amendments.”).
[10] Our caselaw is clear, though, that “the presentation of
a new theory does not constitute the presentation of a new
issue on which a jury trial should be granted [as of right]
under . . . Rule 38(b).” Trixler Brokerage Co. v. Ralston
Purina Co., 505 F.2d 1045, 1050 (9th Cir. 1974). Rather,
Rule 38(b) is concerned with issues of fact. See Las Vegas
Sun, Inc. v. Summa Corp., 610 F.2d 614, 620 (9th Cir. 1979).
And there is no significant difference in the facts necessary to
support Lutz’s original ADA claim and those supporting her
new claims.5 Lutz noted in her motion to file the amended
complaint that the Rehabilitation Act claim “is the same basic
claim as the ADA claim already alleged and predicated upon
the same set of facts,” and that her claim under the Arizona
Civil Rights Act, which “parallels very closely the ADA,”
“operates upon the same set of facts as the underlying ADA
claim.” Lutz also informed the court that she divided her
ADA claims solely “to make it clear that [she was] seeking
relief for . . . retaliatory action in addition to her claim for
5Indeed, the factual allegations in Lutz’s state complaint and her
amended federal complaint are virtually identical. The only real differ-
ence, as Lutz herself acknowledged, is that the amended complaint “set[s]
out in greater detail the major life activities that are severely limited” by
her disability.
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[Glendale]’s failure to provide her a reasonable accommoda-
tion,” but that her allegation that Glendale fired her in retalia-
tion “had been contained in the original complaint.”
[11] Because it is clear that “the issues in the original com-
plaint and the amended complaint turn on the same matrix of
facts,” Las Vegas Sun, 610 F.2d at 620, Lutz’s failure to
request a jury trial on liability for her original ADA claim
means that she could not later request that a jury determine
liability for the new legal theories raised in her amended com-
plaint.
IV
[12] Because the liability portion of this case was tried to
a jury despite Lutz’s waiver of her jury trial right on that
issue, we must vacate the verdict and remand for the district
court to determine liability, either after a new trial on that
issue or, in its discretion, on the record of the first trial. If, on
remand, the district court decides the liability issues in Glen-
dale’s favor, then that will end the case. But if the district
court decides liability for Lutz, it will be necessary to decide
what effect, if any, to give to the jury’s determination of the
appropriate remedy.
1. Lutz properly requested a jury on the amount of her pain
and suffering damages—an issue as to which she is entitled
to a jury trial, see 42 U.S.C. § 1981a(c)(1)—and the jury actu-
ally determined that amount. If the district court finds for Lutz
on liability, it need not empanel a second jury to determine
pain and suffering damages; it may accept the first jury’s ver-
dict as to the appropriate measure of damages.6
6This approach is consistent with the Seventh Amendment’s admonition
that “no fact tried by a jury, shall be otherwise reexamined in any Court
of the United States, than according to the rules of the common law.” U.S.
Const. amend. VII. There would be no constitutional difficulty if the dis-
trict court were to submit the issue of damages to a new jury; indeed, the
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2. Lutz also requested that a jury determine the appropriate
amount of back pay, but Glendale argues that, under the
ADA, back pay is a matter for resolution by the court, not an
issue triable of right by a jury. The Seventh Amendment jury
trial right extends only to “Suits at common law,” which
refers to “suits in which legal rights [are] to be ascertained
and determined, in contradistinction to those where equitable
rights alone [are] [recognized], and equitable remedies [are]
administered.” Chauffeurs Local No. 391 v. Terry, 494 U.S.
558, 564 (1990) (quoting Parsons v. Bedford, 28 U.S. (3 Pet.)
433, 447 (1830) (emphasis added)) (internal quotation marks
omitted) (third alteration added); see also Ross v. Bernhard,
396 U.S. 531, 538 (1970) (“The Seventh Amendment ques-
tion depends on the nature of the issue to be tried rather than
the character of the overall action.”). The question, then, is
whether back pay under the ADA is a legal or an equitable
remedy.
[13] The ADA expressly incorporates the remedies avail-
able under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-4, 2000e-5, 2000e-6, 2000e-8, 2000e-9. See
id. § 12,117(a). Title VII, in turn, authorizes the district court
to “order such affirmative action as may be appropriate,
which may include . . . reinstatement . . . , with or without
back pay . . . , or any other equitable relief as the court deems
appropriate.” Id. § 2000e-5(g)(1). The reference to “other
common law rule was that, “[i]f the verdict was erroneous with respect to
any issue, a new trial was directed as to all.” Gasoline Prods. Co. v.
Champlin Ref. Co., 283 U.S. 494, 497 (1931). Nor is there any bar to let-
ting the existing damages verdict stand after a new finding of liability,
because the issues of liability and damages in this case are sufficiently dis-
tinct that the issue of liability can be tried separately without injustice. See
id. at 499 (“[W]here the requirement of a jury trial has been satisfied by
a verdict according to law upon one issue of fact, that requirement does
not compel a new trial of that issue even though another and separable
issue must be tried again.”); see also Dazenko v. James Hunter Mach. Co.,
393 F.2d 287, 291 & n.7 (7th Cir. 1968).
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equitable relief,” id. (emphasis added), would make sense
only if the relief previously described—reinstatement, which
may be awarded with or without back pay—is itself equitable.
See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S.
204, 218 n.4 (2002). Consistent with this language, we have
held that “the award of back pay is an integral part of the
equitable remedy of reinstatement,” and must therefore be
tried to the court. Slack v. Havens, 522 F.2d 1091, 1094 (9th
Cir. 1975); see also Johnson v. Ga. Highway Express, Inc.,
417 F.2d 1122, 1125 (5th Cir. 1969) (“The demand for back
pay is not in the nature of a claim for damages, but rather is
an integral part of the statutory equitable remedy, to be deter-
mined through the exercise of the court’s discretion, and not
by a jury.”).7
7Other courts of appeals have reached the same result by emphasizing
that back pay is purely discretionary and thus equitable. See, e.g., Crocker
v. Piedmont Aviation, Inc., 49 F.3d 735, 748 (D.C. Cir. 1995) (“[T]he
characterization of Title VII backpay awards as equitable is bolstered by
the fact that judges formally retain some degree of equitable discretion in
deciding whether to award back pay in individual cases once violations are
proven, even though the Court has severely constrained the exercise of this
discretion.” (citations omitted)); see also Curtis v. Loether, 415 U.S. 189,
197 (1974) (“In Title VII cases, . . . the courts have relied on the fact that
the decision whether to award backpay is committed to the discretion of
the trial judge.”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 443
(1975) (Rehnquist, J., concurring) (“To the extent . . . that the District
Court retains substantial discretion as to whether or not to award backpay
notwithstanding a finding of unlawful discrimination, the nature of the
jurisdiction which the court exercises is equitable, and under our cases nei-
ther party may demand a jury trial.”). And still others have suggested that
back pay is equitable because it is restitutionary. See, e.g., Robinson v.
Lorillard Corp., 444 F.2d 791, 802 (4th Cir. 1971) (“The back pay award
is not punitive in nature, but equitable—intended to restore the recipients
to their rightful economic status absent the effects of the unlawful discrim-
ination.”); see also Curtis, 415 U.S. at 196-97 & n.13 (“In Title VII cases
the courts of appeals have characterized backpay as an integral part of an
equitable remedy, a form of restitution.”). But cf. Great-West Life & Annu-
ity Ins. Co., 534 U.S. at 218 n.4 (noting that neither Curtis nor Terry, 494
U.S. at 572, says that “since [back pay] is restitutionary, it is therefore
equitable”).
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[14] Following Slack, we would hold that Lutz’s request for
back pay, which she included along with her demand for rein-
statement, sought an equitable remedy, but we must first
decide whether Slack is still good law. When we decided
Slack, “Title VII afforded only ‘equitable’ remedies.” Land-
graf v. USI Film Prods., 511 U.S. 244, 252 (1994). Congress
subsequently adopted the Civil Rights Act of 1991, which
expanded the remedies available under Title VII. An
employee may now recover “compensatory and punitive dam-
ages” for certain Title VII violations, 42 U.S.C. § 1981a(a)(2),
and he is entitled to have a jury determine the amount of such
awards, id. § 1981a(c)(1).
[15] However, Congress provided that the compensatory
and punitive damages remedies it created were “in addition to
any relief authorized by section 706(g) of the Civil Rights Act
of 1964,” as amended, 42 U.S.C. § 2000e-5(g). Id.
§ 1981a(a)(2); see also Landgraf, 511 U.S. at 253 (“[T]he
new compensatory damages provision of the 1991 Act is ‘in
addition to,’ and does not replace or duplicate, the backpay
remedy allowed under prior law.”). Thus, Congress did not
alter the remedial scheme it had established for back pay. See
42 U.S.C. § 2000e-5(g). In fact, Congress excluded back pay
from the types of damages for which it authorized a jury trial.
See id. § 1981a(b)(2) (“Compensatory damages awarded
under this section shall not include backpay . . . .”); id.
§ 1981a(c)(1) (granting a jury trial right where “a complain-
ing party seeks compensatory or punitive damages under this
section”). In light of the nearly uniform view of the courts of
appeals that back pay under Title VII must be tried to the court,8
8Although the Supreme Court had declined to address this issue, see
Lorillard v. Pons, 434 U.S. 575, 583-84 (1978); but cf. Albemarle Paper
Co., 422 U.S. at 416 (referring to the district court’s discretion to award
back pay as “equitable in nature”), the courts of appeals had consistently
held that back pay is an equitable remedy, for which there is no right to
trial by jury. See Curtis, 415 U.S. at 196-97 & n.13 (collecting cases);
Baker v. City of Detroit, 458 F. Supp. 379, 381 (E.D. Mich. 1978) (“In
actions brought for back pay and injunctive relief under Title VII of the
Civil Rights Act of 1964, the courts of appeals have uniformly held that
no right to trial by jury attaches.” (citation omitted)); id. at 382; see also
note 7 supra and accompanying text.
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it is particularly telling that Congress provided a jury trial
right for some Title VII claims while expressly declining to
do so for back pay. Cf. Faragher v. City of Boca Raton, 524
U.S. 775, 792 (1998) (“[T]he force of precedent . . . is
enhanced by Congress’s amendment to the liability provisions
of Title VII [after the Supreme Court interpreted those provi-
sions], without providing any modification of our holding.”);
Cannon v. Univ. of Chi., 441 U.S. 677, 696-98 & n.21 (1979)
(presuming that Congress was aware of the prior interpreta-
tion given to a statutory provision by four courts of appeals
and a handful of district courts when it adopted that language
in a different statute).9
[16] Accordingly, we hold that there is no right to have a
jury determine the appropriate amount of back pay under Title
VII, and thus the ADA, even after the Civil Rights Act of
1991. Instead, back pay remains an equitable remedy to be
awarded by the district court in its discretion. See Albemarle
Paper Co. v. Moody, 422 U.S. 405, 415-16 (1975).
[17] Lutz also requested back pay under the Rehabilitation
Act and the Arizona Civil Rights Act. Because the Rehabilita-
tion Act, like the ADA, incorporates Title VII’s back pay
remedy, see 29 U.S.C. § 794a(a)(1) (incorporating 42 U.S.C.
§ 2000e-5(g)), Lutz is not entitled to a jury trial on her back
9That Congress did not alter the nature of Title VII back pay awards in
1991 is further borne out by our recent cases’ repeated references to such
awards as equitable. See Caudle v. Bristow Optical Co., 224 F.3d 1014,
1020 (9th Cir. 2000) (“Title VII of the Civil Rights Act of 1964 permits
courts to grant equitable remedies to employees . . . . The relevant reme-
dies include . . . awards of back pay . . . . An award of back pay is appro-
priate to advance Congress’ intent to make persons whole for injuries
suffered through past discrimination.” (quoting Loeffler v. Frank, 486 U.S.
549, 558 (1988) (quoting Albemarle Paper Co., 422 U.S. at 421)) (citation
and internal quotation marks omitted)); see also, e.g., Amantea-Cabrera
v. Potter, 279 F.3d 746, 749 (9th Cir. 2002) (referring to an “equitable
award of back pay and lost benefits”); EEOC v. Dinuba Med. Clinic, 222
F.3d 580, 584 (9th Cir. 2000) (“[T]he district court granted equitable relief
to Marquez, in the form of back pay . . . .”).
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pay claim under that act. And since Title VII caselaw is per-
suasive in interpreting the Arizona Civil Rights Act, we do
not interpret Arizona law as entitling Lutz to a jury trial on
her state law request for back pay. See Ariz. Rev. Stat. § 41-
1481(G) (remedies for employment discrimination “may
include . . . reinstatement or hiring of employees with or with-
out back pay . . . or any other equitable relief as the court
deems appropriate.”); Higdon v. Evergreen Int’l Airlines, Inc.,
673 P.2d 907, 909 n.3 (Ariz. 1983) (“The Arizona Civil
Rights Act is modeled after and generally identical to [Title
VII]. Accordingly, we find federal Title VII case law persua-
sive in the interpretation of our Civil Rights Act.”); cf. Tim-
mons v. City of Tucson, 830 P.2d 871, 875 (Ariz. Ct. App.
1991) (“Both [Title VII and the Arizona Civil Rights Act]
provide for the recovery of back pay, a remedy that has been
held to be equitable in nature.” (citing Albemarle Paper Co.)).
If the district court holds for Lutz on the question of liabil-
ity, it therefore cannot reinstate the jury’s verdict as to the
appropriate amount of back pay under any of the three acts
Lutz claims Glendale violated. Rather, the district court must
exercise its discretion to determine an appropriate amount of
back pay, if any. See Albemarle Paper Co., 422 U.S. at
415-22.
V
Glendale raises a number of other issues on appeal, some
of which we need not address in light of our decision to
remand the case for a bench trial on liability. It argues that the
district court erred by declining to enter judgment in its favor
because of alleged inconsistencies between the jury’s general
verdict on liability and its answers to interrogatories, see Fed.
R. Civ. P. 49, or in refusing to order a new trial because of
those alleged inconsistencies, see Fed. R. Civ. P. 59, but each
of these arguments depends on the jury verdict that we now
vacate. We likewise do not address Glendale’s argument that
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the district court erred in denying its motion for judgment as
a matter of law. See Fed. R. Civ. P. 50.
Three of Glendale’s arguments, however, concern issues
that might arise in case of a retrial, or if the district court
decides to base its findings on the record of the first trial. We
therefore address these arguments here.
1. First, Glendale argues that the district court improperly
allowed Lutz to testify that Glendale had fired her in violation
of its disciplinary policies, even though a state court had pre-
viously determined that Glendale had complied with its inter-
nal rules. The district court recognized that Glendale’s
disciplinary policies had already been the subject of litigation
in state court, and it sustained Glendale’s objection to the tes-
timony on that basis. However, the district court did not
instruct the jury to disregard the testimony. Because we are
setting aside the jury verdict on other grounds, we need not
consider whether the absence of an instruction was prejudi-
cial. On remand, the district court shall not permit Lutz to tes-
tify about alleged violations of Glendale’s disciplinary
policies in the event of a retrial, or shall disregard her previ-
ous testimony on that score if it decides the case on the exist-
ing record.
2. Glendale also argues that the district court improperly
limited the number of witnesses it could call and the number
of days it had to present evidence, which it claims “unfairly
allowed Lutz to monopolize the time spent in front of the
jury.” The district court decided that these limitations were
appropriate to avoid cumulative evidence. The district judge
noted, for instance, that it would be cumulative “to hear from
everyone who was at all of these [events],” or to “have an
inordinate number of people testifying about the same thing.”
And, when he limited the time Glendale had available to pre-
sent its case, he explained that it could “present evidence that
is not cumulative of what we’ve already heard,” but that “to
just simply go back and [ask previous witnesses] how they
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felt or how they were impacted about something is simply
cumulative.”
[18] District courts have “broad authority to impose reason-
able time limits” during trial to “prevent . . . needless presen-
tation of cumulative evidence.” Navellier v. Sletten, 262 F.3d
923, 941 (9th Cir. 2001) (quoting Amarel v. Connell, 102
F.3d 1494, 1513 (9th Cir. 1997) (quoting Monotype Corp. v.
Int’l Typeface Corp., 43 F.3d 443, 450 (9th Cir. 1994) (quot-
ing Johnson v. Ashby, 808 F.2d 676, 678 (8th Cir. 1987))))
(internal quotation marks omitted). Likewise, the district court
has broad authority to limit the number of witnesses on a par-
ticular point to avoid cumulative evidence. See Loux v. United
States, 389 F.2d 911, 917 (9th Cir. 1968) (“As a practical
matter, the court needs the right to impose some limitation on
the number of witnesses testifying about a particular fact.
Decision as to how many must be left to the sound discretion
of the judge.”); cf. Fed. R. Evid. 403 (“Although relevant, evi-
dence may be excluded if its probative value is substantially
outweighed by . . . considerations of . . . needless presentation
of cumulative evidence.”). The district court did not abuse its
broad discretion in limiting either the number of witnesses
Glendale could call to testify as to particular issues or the time
it had to present its case.
[19] 3. Finally, Glendale contends that the district court
should have sanctioned Lutz for discovery violations. Lutz
did not produce recordings of various meetings between Lutz
and school officials until two weeks after the discovery dead-
line had passed. However, the district court noted that tran-
scripts and tapes of the recordings had been produced well in
advance of trial, and that, in light of the late disclosures, Glen-
dale was given an extension of time to complete its discovery.
The district court therefore did not abuse its discretion in
declining to impose sanctions. See Adriana Int’l Corp. v.
Thoeren, 913 F.2d 1406, 1408 (9th Cir. 1990).10
10Glendale nonetheless contends that it did not receive one particular
tape until the second day of trial. The record does not appear to support
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[20] Lutz also did not provide expert witness reports to
Glendale until about a month and a half before trial. Glendale
argues that these reports were untimely under Fed. R. Civ. P.
26(a)(2)(C) because they were disclosed less than 90 days
before trial.11 But the 90-day rule applies only “[i]n the
absence of other directions from the court.” Id. If the court
speaks to the issue, expert witness reports must be disclosed
“at the times and in the sequence” it directs. Id. The district
court carefully managed the schedule for discovery and deter-
mined that Lutz’s expert reports were timely; we find no
abuse of discretion.
* * *
Because Lutz did not make a timely request for a jury trial
on liability, she waived her right to have a jury determine that
issue. See Fed. R. Civ. P. 38(d). The district court thus erred
in submitting the issue of liability to a jury. We vacate the
jury’s verdict and remand for further proceedings in confor-
mity with our opinion.
REVERSED AND REMANDED.
this claim, but, even if it were true, Glendale has not explained how it was
prejudiced so greatly by this single discovery violation that the district
court abused its discretion in declining to impose sanctions.
11Glendale also argues that Lutz should have been sanctioned because
the expert reports she submitted did not contain background information.
See Fed. R. Civ. P. 26(a)(2)(B). Because Glendale did not raise this argu-
ment below, we decline to consider it. See Alaska Airlines, Inc. v. United
Airlines, Inc., 948 F.2d 536, 546 n.15 (9th Cir. 1991).
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