HARRIS v. CITY OF SEATTLE

MARSHA J. PECHMAN, United States District Judge

This matter comes before the Court on Defendants' motion to strike Plaintiff's demand for a jury trial. Dkt. No. 9. Plaintiff Ruby Dell Harris brings civil suit against Defendants for racial discrimination, violations of civil rights, defamation, as well as numerous torts and related causes of action. These claims arise from employment disputes, an investigative report conducted on behalf of the City of Seattle, Harris's trip to a Las Vegas convention, and a televised report about Harris aired by King Broadcasting Company. Because Plaintiff raises no new issue of fact in her amended complaint, Defendants' motion to strike the jury demand is GRANTED. Plaintiff's late — filed response brief was due to excusable neglect. Therefore, Defendants' motion to strike the response brief, Dkt. No. 28, is DENIED, and Plaintiff's motion for an extension of time, Dkt. No. 31, is MOOT.

BACKGROUND

Plaintiff is Secretary and Chief Examiner of the City of Seattle Public Safety Civil Service Commission. On October 3, 2001, Harris filed suit in state court against Defendants, the City of Seattle and its current and former employees — Noreen Skagen, Marilyn Sherron, Mark Sidran, Susan Cohen, Carolyn Van Noy, Rachael Schade, Rose Alves, Valerie Harris, and Rhonda Weston — and the Washington Firm Ltd. and its employees — Nina Sanders, Desree Griffin, and Kristina Moris. Harris alleged claims of racial discrimination, violations of civil rights, conspiracy, retaliation, and defamation under 42 U.S.C. § 1983, 1985, 1986, and 1988, the Washington State Constitution, and common law.

On October 22, 2001, the case was removed to federal court. On January 2, 2002, Harris filed a demand for trial by jury. On February 19, 2002, this Court ruled that Harris's failure to timed file her jury demand pursuant to Federal Rule of Civil Procedure 38(b) was a clear case of"oversight or inadvertence." The Court, having no discretion to grant relief under Federal Rule of Civil Procedure 39(b), granted Defendants' motion to strike the jury demand and denied Harris's cross-motion for trial by jury.

On April 2, 2002, Harris's motion for leave to file an amended complaint was granted, and the federal claims alleged in the original compliant were dismissed with prejudice. On April 9, 2002, Harris filed her first amended complaint for racial discrimination, conspiracy, and defamation The factual basis alleged in the first amended complaint was identical to that alleged in the original complaint. On Plaintiff's motion, the case was remanded to the Superior Court of the State of Washington for King County on April 29, 2002.

On September 4, 2002, Harris filed a motion in state court for leave to amend her complaint. This motion was granted, and on September 19, 2002, Harris filed a second amended complaint (hereafter "amended complaint"). The amended complaint names four new Defendants — King Broadcasting Company (hereafter "King"), Jim Compton, Duane Pohlman, and Paul Schell — and incorporates by reference all alleged claims in her original complaint and first amended complaint. The amended complaint also alleges claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968 (except as against the City of Seattle), false light, intrusion, intentional emotional distress, outrage, violation of state constitutional rights, and conflict of interest. The amended complaint requests declaratory relief and injunctive relief under the conflict of interest claim, and demands a trial by jury. Amend. Compl. ¶ 121. Defendants again removed the matter to federal court.

On December 2, 2002, Defendants filed a motion to strike Harris's jury demand in her amended complaint. On January 8, 2003, two days past the filing deadline, Harris filed a response opposition to Defendants' motion to strike. On January 9, 2003, Defendants filed a motion to strike Plaintiff's response as untimely. On the same day, Harris filed a additional response and cross-motion for enlargement of time asserting that the two day delay was due to illness of Harris's attorney, Phillip Aaron.

ANALYSIS I. Jury Demand in Amended Complaint

Under Federal Rule of Civil Procedure 38(b), "[a]ny 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 . . . not later than 10 days after the service of the last pleading directed to such issue." Fed.R.Civ.P. 38(b)(1). A jury demand made for the first time in an amended complaint creates a right to a jury trial only as to new issues.Trixler Brokerage Co. v. Ralston Purina Co., 505 F.2d 1045, 1049-1050 (9th Cir 1974). "Issue" refers to issues of fact, not issues of law. Id. at 1050. The assertion of new legal theories based on facts previously pled does not constitute the presentation of a new issue on which jury trial should be granted under Federal Rule of Civil Procedure 38(b). Las Vegas Sun Inc. v. Summa Corp., 610 F.2d 614, 620 (9th Cir. 1979), cert. denied, 447 U.S. 906 (1980). The addition the new defendants does not change the underlying claims or nature of relief desired to revive p1aintiff: right to a jury trial. See Sunenblick v. Harrell, 145 F.R.D. 314 (S.D.N.Y. 1993).

Mere elaboration of facts or addition of detail is insufficient to create a new issue. The Court in Las Vegas denied plaintiff's subsequent jury demand because its amended complaint contained new legal theories that did not involve "significantly different issues of fact from the original complaint." Las Vegas, 610 F.2d at 620. Similarly, in Trixler, the court denied plaintiff's subsequent jury demand because its amended complaint contained two new legal theories that elaborated on a claim in the original complaint, and the claim at issue in the original complaint was sufficiently broad to permit evidence of acts charged in the new claims. Trixler, 505 F.2d at 1049-1050. A plaintiff must allege new issues of fact in order to revive her right to trial by jury, and is only entitled to a jury trial as to those new factual issues. Clement v. American Greetings Corp., 636 F. Supp. 1326, 1334 (S.D. Cal. 1986).

A. False Light, Outrage, Intentional Emotional Distress, Intrusion, and RICO

In the present case, the amended complaint simply contains additional particularized facts under new claims of false light, outrage, intentional emotional distress, intrusion, and RICO. This is insufficient to create a right to a jury trial.

In her original complaint, Harris states that she was "vilified in the press" and "suffered great emotional distress" because of having to answer questions from the media, co-workers, professional colleagues, her family, and the public. Compl. at 3-5, 6. Under new claims of false light, outrage, and intentional emotional distress in the amended complaint, Harris's facts are merely more particularized. For example, she states that King aired a false and highly humiliating report, misled viewers about budget over expenditures of the Public Safety Civil Service Commission, and published, broadcasted, and disseminated a news report that was "extreme and outrageous" intending to cause Harris to "suffer severe emotional distress." Amend. Compl. ¶¶ 67, 68, 105.

Similarly, Harris's original complaint states that she was deprived of due process when officials and employees of the City of Seattle had "plaintiff followed to Las Vegas in violation of her privacy." Compl. at 12, ¶ Z. The amended complaint reasserts a violation of her "right to privacy's with more particularity by stating, "Defendants King and Pohlman were secretly following, surveying, photographing, and disseminating information about her." Amend. Compl. ¶¶ 66, 107.

Additionally, Harris asserts that there are 68 paragraphs of facts in the amended complaint under the RICO cause of action. P1. Resp. at 3. However, these facts do not raise a new issue, but merely elaborate on and provide more detail regarding the underlying allegations. Under RICO, Harris' amended complaint asserts the same factual basis pled under the false light, intrusion, and intentional emotion distress claims, again elaborating on the original complaint. Also, Harris's original complaint, for example, states that a Defendant "conspired with the named employees and others to undermine, discredit, and usurp" Harris's authority because she is African American, and furtherance of the purpose of "undermining the independence of the Public Safety Civil Service Commission." Compl. at 4, 6-10. Under the RICO claim, the amended complaint states that a Defendant, "[a]s part of the scheme, conspiracy, and racially discriminatory actions," met with certain members of the African American community and provided them with "false, derogatory, defaming information" about Harris for the purpose of "humiliating, embarrassing, and placing in a false light, and attempting to create a hostile and adverse environment in the African American community against Harris." Amend. Compl. ¶ 98. Thus, the factual basis in the amended complaint under RICO turns on the same set of underlying facts pled in the original complaint under racial discrimination, violations of civil rights, conspiracy, retaliation, and defamation.

Because Harris fails to allege new issues of fact, and the claims in the original complaint under racial discrimination, retaliation, defamation, violations of civil rights, and conspiracy are sufficiently broad to permit evidence of acts charged in the new claims, Defendants' motion to strike the jury demand under false light, outrage, intentional emotional distress, intrusion, and RICO is GRANTED.

B. State Constitutional Rights

Harris's amended complaint reasserts a cause of action under State constitutional rights that is asserted in the original complaint. Compl. at 1, 25. As with the other new claims, the amended complaint fails to provide new issues of fact, and rests on the underlying facts in the original complaint. Accordingly, Defendants' motion to strike the jury demand under State constitutional violations is GRANTED.

C. Conflict of lnterest

Harris's amended complaint requests only declaratory and injunctive relief on the conflict of interest cause of action. Amend. Compl.¶¶ 8, 121. If the only relief sought is equitable, such as declaratory or injunction relief, the party seeking that relief is not entitled to a jury trial. Great Am. Fed. Sav. Loan Ass'n v. Novotny, 442 U.S. 366, 374-75 (1979); United States v. Louisiana, 339 U.S. 699, 706 (1950). Accordingly, the Court GRANTS Defendant's motion to strike Harris's jury demand for the conflict of interest claim.

II. Jury Demand in Original Complaint

Harris asserts that this Court's denial in February 2002 of her original cross-motion for a jury demand was improper because under a state court order setting the civil case schedule her jury demand in federal court would have been timely. Because federal rules, not state rules, apply to a case removed to federal court, this Court's earlier decision was correct. See Granny Goose Foods, Inc. v. Brotherhood of Teamsters Auto Truck Drivers, 415 U.S. 423, 437 (1974). Regardless, this Court will not entertain an untimely motion to reconsider an issue that has already been resolved in this case. See United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998) (a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case). Accordingly, Plaintiff's attempt to revive a jury demand under her original complaint is DISMISSED.

III. Motion to Strike Harris's Response Brief

Under Federal Rule of Civil Procedure Rule 6(b)(2), once a deadline has expired the court may only grant extensions of time where the party's failure to act was due to "excusable neglect." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 896 (1990). "Excusable neglect" under Rule 6(b)(2) is equivalent to "good cause." Putnam v. Morris, 833 F.2d 903, 905 (10th Cir. 1987). Some showing of "good faith" on the party seeking the enlargement and some reasonable basis for noncompliance within the time specified, is generally required to justify an extension of time. Id.

In the present case, Harris's two day delay in filing a motion for extension was the result of her attorney's illness. Aaron Decl. ¶¶ 1-5. Illness of an attorney can support a finding of excusable neglect.Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283 (9th Cir. 1985). Defendants' prejudice appears minimal since they timely filed a reply brief one day later. Because Harris made a showing of good cause, Defendants' motion to strike Plaintiff's response to Defendants' motion to strike the jury demand is DENIED.

CONCLUSION

The Court concludes that Harris's amended complaint fails to allege new issues of fact. Harris is not entitled to a jury trial for declaratory and injunctive relief under the conflict of interest claim, and Harris's attempt to revive a jury demand under her original complaint is precluded from reconsideration. Accordingly, Defendants' motion to strike the jury demand in the amended complaint is GRANTED. Defendants' motion to strike Harris's response to Defendants' motion to strike the jury demand is DENIED.