Official Committee of Unsecured Creditors of Legac v. Bryan et al

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UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re
THE LEGACY ESTATE GROUP, No. 05-14659
Debtor(s).
______________________________________/
OFFICIAL CREDITORS COMMITTEE,
Plaintiff(s),
v. A.P. No. 06-1173
JOHN M. BRYAN, et al.,
Defendant(s).
_______________________________________/
Memorandum re Motion to Certify Case to District Court for Jury Trial
_________________
Plaintiff originally demanded a jury trial in this adversary proceeding, but withdrew its demand. Three
defendants have asked the court to transfer the case to district court for jury trial, even though at least two of
them, John M. Bryan and the J. M. Bryan Family Trust, have filed proofs of claim. The filing of a proof of
claim waives the right to a jury. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 59 n.14, 109 S.Ct. 2782,
106 L.Ed.2d 26 (1989).
Contrary to defendants’ arguments, Rule 38(d) of the Federal Rules of Civil Procedure does not bar
Entered on Docket
March 28, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 06-01173 Doc# 53 Filed: 03/28/07 Entered: 03/28/07 14:12:09 Page 1 of 2

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the withdrawal of a jury demand by plaintiff where the defendant did not rely on the demand. Fuller v. City
of Oakland, 47 F.3d 1522, 1531 (9th Cir. 1995); White v. McGinnis, 903 F.2d 699, 701 (9th Cir. 1990);
Reid Bros. Logging Co. v. Kitchikan Pulp Co., 699 F.2d 1292, 1304 (9th Cir. 1983). Moreover, a party
has no standing to object to waiver of a right by another party unless it is aggrieved by the waiver. Since
Bryan and the J. M. Bryan Family Trust have waived the right to a jury, they have no standing to object to
plaintiff’s waiver of its right to a jury trial.
The rights of the third defendant, the John M. and Florence E. Bryan Trust, are more problematical.
This defendant has not filed a claim in its own name. However, it appears that its alter ego may have filed a
proof of claim or that it is close enough in identity to be bound by the jury waiver of other entities. Resolution
of this matter requires an evidentiary hearing and further briefing.
For the foregoing reasons, the motion will be denied with prejudice as to defendants John M. Bryan
and the J. M. Bryan Family Trust. As to the John M. and Florence E. Bryan Trust, the parties shall arrange
an evidentiary hearing and submit supplemental briefs. In the event that the court determines that this
defendant is entitled to a jury trial, the claims against it will be severed and only those severed claims will be
transferred to the district court; the case will proceed in this court as to defendants who have waived their
right to a jury.
Counsel for plaintiff shall submit an appropriate form of order.
Dated: March 28, 2007
SAlan Jaroslovsky
U.S. Bankruptcy Judge
Case: 06-01173 Doc# 53 Filed: 03/28/07 Entered: 03/28/07 14:12:09 Page 2 of 2