Pankey et al v. Moriarty

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
NORTHERN DIVISION
In re: ) CASE NO. 9:11-bk-10019-RR
)
Wallace Patrick Moriarty and ) Chapter 7
Dorene Moriarty, )
) Adv. No. 9:11-ap-01137
Debtors. )
) ORDER STRIKING NOTICE
) OF JURY TRIAL
Elizabeth S. Pankey, Trustee, )
U/D/T December 6, 1985, Peter )
S. Pankey and Robert Hurst, ) No hearing set
)
Plaintiffs, )
vs. )
)
Wallace Patrick Moriarty, )
)
Defendant. )
)
The instant Adversary Proceeding, commenced on April 22, 2011,
seeks the determination of nondischargeability of debt under 11
U.S.C. §§523(a)(2)(A) and (a)(6). Trial is presently set for
January 29 and 30, 2013.
FILED & ENTERED
SEP 10 2012
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	rust
Case 9:11-ap-01137-RR Doc 25 Filed 09/10/12 Entered 09/10/12 13:39:07 Desc
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On September 6, 2012, Plaintiffs filed a Notice of Jury Trial.
F.R.Civ.P. 38 is applicable to adversary proceedings by
Bankruptcy Rule 9015. Subsection (b) provides:
On any issue triable of right by a jury, a party may
demand a jury trial by:
(1) (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) (2) filing the demand in accordance with Rule 5(d).
F.R.Civ.P. 38(b).
F.R.Civ.P. 38(d) provides, “A party waives a jury trial unless
its demand is properly served and filed. A proper demand may be
withdrawn only if the parties consent.” Additionally, F.R.Civ.P.
39(a)(2) provides:
When a jury trial has been demanded under Rule 38, the
action must be designated on the docket as a jury action.
The trial on all issues so demanded must be by jury
unless:
. . .
(2) the court, on motion or on its own, finds that on some
or all of those issues there is no federal right to a jury
trial.
F.R.Civ.P. 39(a)(2).
As contained in Rule 38(b), the phrase “last pleading directed
to the issue” has been interpreted to mean those pleadings
enumerated in Rule 7, i.e.: the complaint; an answer to a
complaint, counterclaim, crossclaim, or a third-party complaint; or
a reply to an answer. Burns v. Lawther, 53 F.3d 1237, 1241 (11th
Cir. 1995) (applying the ten day time period of the former rule in
effect prior to the 2009 Amendments). The “last pleading directed
to” an issue is not the pleading that raises the issue, but rather,
the pleading that contests the issue, which is normally an answer or
Case 9:11-ap-01137-RR Doc 25 Filed 09/10/12 Entered 09/10/12 13:39:07 Desc
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a reply to a counterclaim, and it is the filing of that document
which starts the 14-day period within which a demand for jury trial
must be filed. McCarthy v. Bronson, 906 F.2d 835, 840 (2nd Cir.
1990) (also applying the former ten-day period).
Plaintiffs’ Notice of Jury Trial, filed on September 6, 2012,
was the first such notice filed in the case. Neither the complaint,
filed April 22, 2011, nor the answer, filed May 24, 2011, included a
demand for jury trial. The “last pleading directed to the issue”
was therefore the answer, filed on May 24, 2011. Accordingly, June
7, 2011, would have been the deadline for filing a demand for jury
trial under the federal rules.
Plaintiffs’ Notice of Jury Trial, filed on September 6, 2012,
15 months after the deadline had expired, is untimely. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Notice of Jury Trial is
STRICKEN.
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United States Bankruptcy Judge
DATED: September 10, 2012
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SERVICE LIST FOR ENTERED ORDER
Counsel for Plaintiffs
Stephen G. Hammers, Esq.
Price, Crooke, Gary & Hammers
10 Corporate Park, Suite 300
Irvine, CA 92606-5140
Counsel for Defendant
Kenneth D. Sisco, Esq.
2262 Morgan Drive
Norco, CA 92860
Chapter 7 Trustee
Jerry Namba
504 East Chapel St.
Santa Maria, CA 93454
U.S. Trustee
Office of the U.S. Trustee Region 16
21051 Warner Center Lane, Ste 115
Woodland Hills, CA 91367
Brian Fittipaldi, Esq.
Office of the U.S. Trustee
128 East Carrillo Street
Santa Barbara, CA 93101
Case 9:11-ap-01137-RR Doc 25 Filed 09/10/12 Entered 09/10/12 13:39:07 Desc
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