Ross Dress for Less, Inc. v. Makarios-Oregon, LLC ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSS DRESS FOR LESS, INC., a No. 21-35106
Delaware corporation,
Plaintiff-Counter-Defendant- D.C. No.
Appellant, 3:14-cv-01971-SI
v.
MAKARIOS-OREGON, LLC, an
Oregon limited liability company,
Defendant-Counter-Claimant-
Appellee,
and
WALKER PLACE, LLC, an Oregon
limited liability company; CHARLES
W. CALOMARIS; KATHERINE
CALOMIRIS TOMPROS; JENNIFER
CALOMIRIS,
Defendants.
2 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
ROSS DRESS FOR LESS, INC., a No. 21-35132
Delaware corporation,
Plaintiff-Counter-Defendant- D.C. No.
Appellee, 3:14-cv-01971-SI
v.
OPINION
WALKER PLACE, LLC, an Oregon
limited liability company,
Defendant,
and
CHARLES W. CALOMARIS;
KATHERINE CALOMIRIS TOMPROS;
JENNIFER CALOMIRIS,
Defendants-Appellants,
MAKARIOS-OREGON, LLC, an
Oregon limited liability company,
Defendant-Counter-Claimant-
Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted May 10, 2022
Portland, Oregon
Filed July 8, 2022
ROSS DRESS FOR LESS V. MAKARIOS-OREGON 3
Before: Richard C. Tallman and Morgan Christen, Circuit
Judges, and Frederic Block,* District Judge.
Opinion by Judge Christen
SUMMARY**
Jury Trial
The panel affirmed the district court’s ruling granting
defendant-appellee Makarios-Oregon, LLC’s motion to
withdraw its demand for a jury trial in a diversity action
involving the parties’ lease obligations.
Plaintiff Ross Dress for Less, Inc. sued Makarios seeking
declaratory relief regarding its end-of-lease obligations in
connection with Ross’s lease of the Richmond Building, as to
which Makarios had received an assignment of rights and
thereafter acted as Ross’s landlord. Makarios filed
counterclaims against Ross and demanded a jury trial on its
counterclaims. In January 2016, Ross filed a document
waiving its right to a jury trial under Fed. R. Civ. P. 38. In
November 2018, Makarios moved to withdraw its jury
demand. Ross argued it was entitled to rely on Makarios’s
request for a jury. Makarios argued that because Ross waived
its right to a jury when it entered into the Richmond Building
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
lease, Ross could not object to Makarios’s withdrawal of its
jury demand or to take advantage of the general rule that
parties must consent to a bench trial after a proper jury
demand is made. The district court held a four-day Phase II
bench trial and entered judgment in favor of Makarios.
Fed. R. Civ. P. 38(d) provides that a proper jury trial
demand “may be withdrawn only if the parties consent.” Fed.
R. Civ. P. 39 requires trial by jury “on all issues demanded”
unless the parties stipulate or 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.”
Because jurisdiction in the district court was based on
diversity of citizenship, Oregon substantive law and federal
procedural law governed.
Ross contended that the district court erred by allowing
Makarios to unilaterally withdraw its demand for a jury trial
because Fed. R. Civ. P. 38(d) and 39(a) required Ross’s
consent. Neither party argued that the waiver in Section
13.04 of the lease was unknowing or involuntary, but the
parties disagreed on the scope of the provisions. First,
applying Oregon law, the panel held that the ordinary
meaning of Section 13.04 was clear and it established that
Ross waived its right to a jury trial on counterclaims filed by
Makarios. The panel affirmed the district court’s ruling as to
waiver. Second, the panel rejected Ross’s argument that even
if it contractually waived its jury trial right, it was still
entitled to rely on Makarios’s jury demand under Rules 38(d)
and 39(a). The panel affirmed the district court’s conclusion
that Rules 38 and 39 did not apply because Ross had no right
to a jury trial by virtue of its waiver in Section 13.04 of its
lease. The panel held that typically, the combination of Rules
ROSS DRESS FOR LESS V. MAKARIOS-OREGON 5
38(d) and 39(a) prevents a party from unilaterally
withdrawing its jury demand, even when no other party has
requested a jury trial. Although the right to rely on another
party’s jury demand is not unlimited, the exceptions to the
Rules did not apply here.
The panel resolved the bulk of the issues on appeal in a
concurrently filed memorandum disposition.
COUNSEL
Gregory D. Call (argued) and Tracy E. Reichmuth, Crowell
& Moring LLP, San Francisco, California; Joel A. Parker,
Rebecca Boyette, and Sara Kobak, Schwabe Williamson &
Wyatt PC, Portland, Oregon; for Plaintiff-Counter-
Defendant-Appellant/Cross-Appellee.
Molly K. Honoré (argued), Paul S. Bierly, and Jeffrey M.
Edelson, Markowitz Herbold PC, Portland, Oregon, for
Defendant-Counter-Claimant-Appellee/Cross-Appellant.
6 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
OPINION
CHRISTEN, Circuit Judge:
Plaintiff-appellant Ross Dress for Less, Inc. appeals the
district court’s ruling granting defendant-appellee Makarios-
Oregon, LLC’s motion to withdraw its demand for a jury
trial. Ross argues the district court erred because Federal
Rules of Civil Procedure 38 and 39 generally allow a party to
rely on another party’s jury demand without having to file its
own demand. Ross further argues that the Rules require that
parties consent before the court may conduct a bench trial if
a proper jury demand has been made. Because Ross waived
its right to a jury trial in its lease with Makarios, we affirm
the district court’s ruling.
I
This appeal arises from Ross’s lease of the Richmond
Building, a five-story property located at 600 SW Fifth
Avenue in Portland, Oregon. The basement, first floor, and
second floor of the Richmond Building are connected by
concrete slabs to the same floors of the adjacent Failing
Building, a twelve-story structure on the National Register of
Historic Places. In September 1996, Ross assumed all rights
in the leases for the Richmond and Failing Buildings. Ross’s
lease for both buildings expired on September 30, 2016.
From 1986 to 2017, the Calomiris family owned the
Richmond Building. Makarios-Oregon is an entity associated
with the Calomiris family. Makarios received an assignment
of all rights to the lease of the Richmond Building in 2011,
and thereafter acted as Ross’s landlord.
ROSS DRESS FOR LESS V. MAKARIOS-OREGON 7
The lease for the Richmond Building was a “triple-net
lease,” meaning Ross, as tenant, was responsible for all taxes,
insurance, and other expenses related to the building’s
operation, maintenance, and repair. Ross paid $34,000
annually in rent for the entirety of its lease. Four provisions
of the lease are at the center of the parties’ dispute. Two
governed Ross’s end-of-lease obligations: Section 16.01
required Ross to surrender the property “in good order,
condition, and repair, except for reasonable wear and tear,”
and Section 16.02 required Ross to “make such alterations to
the building then erected on the demised premises as . . .
necessary to constitute such building an entirely independent
and self-sufficient structure.” The other two provisions are
relevant to the jury demand issue. Section 13.04 of the lease
provided that “[t]he Tenant waives all right to trial by jury in
any summary or other judicial proceedings hereafter
instituted by the Landlord against the Tenant in respect to the
demised premises.” Section 26.01 stated that “the terms,
conditions, covenants, provisions and agreements herein
contained shall be binding upon and inure to the benefit of the
Landlord, its successors and assigns, and the Tenant, its
successors and assigns.”
In December 2014, Ross sued Makarios and then-owner
of the Failing Building, Walker Place, in the United States
District Court for the District of Oregon seeking declaratory
relief regarding its end-of-lease obligations for the Richmond
and Failing Buildings. Ross asked the district court for a
declaratory judgment establishing that: (1) Ross was only
obligated to perform the work necessary to physically
separate the Richmond and Failing Buildings; (2) the work
Ross proposed to Makarios and Walker Place was sufficient
to satisfy its lease obligations; (3) Ross was not obligated to
perform additional work demanded by the landlords; and
8 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
(4) the landlords could not withhold consent to Ross’s
proposed plans. Ross’s complaint also demanded a jury trial.
Both defendants filed counterclaims against Ross alleging
breach of contract and requesting a declaratory judgment
regarding Ross’s end-of-lease obligations. Makarios
demanded a jury trial on its counterclaims. The parties
agreed to bifurcate the case into two phases: in Phase I, the
parties were to litigate their declaratory relief claims, and
their remaining claims and damages were to be litigated in
Phase II. In January 2016, Ross filed a document attesting
that it “waives its right to a jury trial under the Federal Rules
of Civil Procedure 38, as to any issue in this case for which
a right to a jury trial exists.” The minutes for a March 2016
status conference with the district court memorialized that
“all parties waived their rights to a jury trial on all claims and
counterclaims” and the court would conduct a “bench trial,
rather than a jury trial.” But it appears the court interpreted
these waivers to apply only to Phase I of the bifurcated claims
because subsequent entries on the district court’s docket
indicate the court anticipated Phase II would be tried to a
jury.
At the conclusion of the Phase I bench trial, the district
court denied in part and granted in part the parties’ requests
for declaratory judgment. The court ruled that Ross’s
proposed plans to comply with its surrender obligations were
insufficient, but it also ruled that Ross was not required to
comply with the full scope of work the landlords demanded.
The court retained jurisdiction to address the parties’
remaining claims and to calculate damages in Phase II. Both
defendants filed amended counterclaims against Ross in April
2017, and both demanded a jury trial on those claims. Ross’s
ROSS DRESS FOR LESS V. MAKARIOS-OREGON 9
answers to the amended counterclaims also included a jury
demand.
In September 2017, Ross entered into a global settlement
agreement with Walker Place. Thereafter, multiple entries on
the district court’s docket reflect the court’s plan to hold a
jury trial on Makarios’s counterclaims against Ross. But in
November 2018, Makarios moved to withdraw its jury
demand. The district court received briefing on the motion
from both parties. In its opposition, Ross argued it was
entitled to rely on Makarios’s request for a jury and that
pursuant to Federal Rules of Civil Procedure 38 and 39,
Makarios could not withdraw its demand unless Ross
consented. See Reid Bros. Logging Co. v. Ketchikan Pulp
Co., 699 F.2d 1292, 1304 (9th Cir. 1983) (explaining Rules
38 and 39 are “designed to allow parties to rely upon the jury
demand of other parties to the same case” without having to
file their own demand). According to Makarios, because
Ross waived its right to a jury trial when it entered into the
Richmond Building lease, Ross had no ability to object to
Makarios’s withdrawal of its jury demand or to take
advantage of the general rule that parties must consent to a
bench trial after a proper jury demand is made, see, e.g., U.S.
Sec. & Exch. Comm’n v. Jensen, 835 F.3d 1100, 1107 (9th
Cir. 2016).
The district court conducted a telephonic hearing on
Makarios’s motion in December 2018, and in an oral ruling
the court granted Makarios’s motion. The court reasoned that
Section 13.04 of the lease included “an unequivocal and
voluntary and knowing waiver . . . by the tenant and its
successors, including Ross, to a jury trial.” The court
acknowledged that Rules 38 and 39 generally allow a party to
rely on another party’s jury demand, but explained that
10 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
because the lease included a waiver of the tenant’s right to a
jury trial, Ross could not invoke the protections of the Rules
to oppose Makarios’s withdrawal of its demand. “[I]n order
to eliminate any potential risk of prejudice to Ross” for
having to prepare for a bench trial, the district court
authorized Ross to reopen any depositions and to substitute
any of its expert witnesses.
In December 2019, the court held a four-day Phase II
bench trial. The district court entered final judgment in favor
of Makarios for $2,931,829 in January 2021. Ross timely
appealed, and Makarios cross-appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1291. The bulk of the issues on
appeal are resolved in a concurrently filed memorandum
disposition. Here, we affirm the district court’s order
granting Makarios’s motion to withdraw its jury trial demand.
II
Whether a party is entitled to a jury trial is a question of
law that we review de novo. Thomas v. Or. Fruit Prods. Co.,
228 F.3d 991, 995 (9th Cir. 2000); Jensen, 835 F.3d at 1106.
We also review de novo “the district court’s interpretation of
contract provisions,” but we review the district court’s factual
findings for clear error. OneBeacon Ins. Co. v. Hass Indus.,
Inc., 634 F.3d 1092, 1096 (9th Cir. 2011). Because
jurisdiction in the district court was based on diversity of
citizenship, Oregon substantive law and federal procedural
law govern. See Feldman v. Allstate Ins. Co., 322 F.3d 660,
666 (9th Cir. 2003). When applying Oregon substantive law,
we are bound by decisions of the Oregon Supreme Court. See
In re Kirkland, 915 F.2d 1236, 1238–39 (9th Cir. 1990).
Where there is no Oregon Supreme Court decision on point,
we must use “intermediate appellate court decisions,
ROSS DRESS FOR LESS V. MAKARIOS-OREGON 11
decisions from other jurisdictions, statutes, treatises, and
restatements as guidance” to decide how the Oregon Supreme
Court would rule. Id. at 1239.
III
Ross contends the district court erred by allowing
Makarios to unilaterally withdraw its demand for a jury trial
because Rules 38(d) and 39(a) required Ross’s consent.
Makarios maintains that Ross cannot take advantage of Rules
38 and 39 because, pursuant to the terms of the parties’ lease,
Ross waived its right to a jury trial in any proceeding initiated
by the landlord. We must decide: (1) whether Ross waived
its right to a jury trial pursuant to Section 13.04; and, if so,
(2) whether Ross is nevertheless entitled to rely on Rules 38
and 39 to oppose Makarios’s withdrawal of its jury demand.
A
“Because the right to a jury trial is a fundamental right
guaranteed to our citizenry by the Constitution,” we “indulge
every reasonable presumption against waiver.” Solis v.
County of Los Angeles, 514 F.3d 946, 953 (9th Cir. 2008)
(quoting Pradier v. Elespuru, 641 F.2d 808, 811 (9th Cir.
1981)). A federal court sitting in diversity jurisdiction
applies federal procedural law to determine the validity of a
jury trial waiver, unless the underlying state law is more
protective than federal law. See In re County of Orange,
784 F.3d 520, 530–31 (9th Cir. 2015). Like federal law,
Oregon law permits a party to waive its constitutional right to
a jury trial by knowing and voluntary agreement. See Hays
Grp., Inc. v. Biege, 193 P.3d 1028, 1029–30 (Or. Ct. App.
2008). Neither Ross nor Makarios argue the waiver in
12 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
Section 13.04 of the lease was unknowing or involuntary, but
the parties do disagree on the scope of the provision.
Section 13.04 provides that “[t]he Tenant waives all right
to trial by jury in any summary or other judicial proceedings
hereafter instituted by the Landlord against the Tenant in
respect to the demised premises.” Oregon’s three-part test for
contract interpretation governs our interpretation of this
provision. See Yogman v. Parrott, 937 P.2d 1019, 1021 (Or.
1997). “First, the court examines the text of the disputed
provision, in the context of the document as a whole. If the
provision is clear, the analysis ends.” Id. If the contractual
provision is ambiguous, the court moves to the second step
and examines extrinsic evidence of the parties’ intent. Id.
at 1022. If that step does not resolve the ambiguity, the court
proceeds to the last step and “relies on appropriate maxims of
[contract] construction.” Id.
Oregon courts routinely rely on dictionary definitions at
the first step to understand the “ordinary meaning” of a
contract’s terms. See id. To understand the meaning of the
term “proceeding” as it applies in Section 13.04, both parties
quote Black’s Law Dictionary, which defines “proceeding”
to include:
1. The regular and orderly progression of a
lawsuit, including all acts and events between
the time of commencement and the entry of
judgment. 2. Any procedural means for
seeking redress from a tribunal or agency.
3. An act or step that is part of a larger action.
4. The business conducted by a court or other
official body; a hearing.
ROSS DRESS FOR LESS V. MAKARIOS-OREGON 13
Proceeding, BLACK’S LAW DICTIONARY (11th ed. 2019). The
Oregon Court of Appeals has also cited with approval Black’s
definition of the term “judicial proceeding,” as meaning “any
court proceeding; any proceeding initiated to procure an order
or decree, whether in law or in equity.” Baldwin v. Seida,
441 P.3d 720, 725 (Or. Ct. App. 2019) (alterations and
emphases omitted). Cf. Whelchel v. Washington, 232 F.3d
1197, 1209 (9th Cir. 2000) (concluding that a deposition fell
within the meaning of a “judicial proceeding,” as defined in
the Sixth Edition of Black’s Law Dictionary).
Ross argues Section 13.04’s waiver does not apply to the
present dispute because Ross was the first to file suit and
Section 13.04 only applies to proceedings initiated by the
landlord. We are not persuaded. The ordinary meaning of
“judicial proceeding” compels a broader interpretation of
Section 13.04 than the one Ross advocates. Makarios can
fairly be said to have initiated judicial proceedings when it
filed counterclaims against Ross because, like Ross, it too
invoked a “procedural means for seeking redress” from the
court by filing its own claims. See Proceeding, BLACK’S
LAW DICTIONARY (11th ed. 2019). At bottom, Section 13.04
unequivocally states the tenant “waives all right to trial by
jury in any . . . judicial proceedings . . . .”
The ordinary meaning of Section 13.04 is clear and it
establishes that Ross waived its right to a jury trial on
counterclaims filed by Makarios. Because the ordinary
meaning of the disputed provision is unambiguous, we need
not engage in the latter two steps of Oregon’s three-part test
for contract interpretation. See Yogman, 937 P.2d
at 1021–22. And because the parties do not dispute whether
14 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
Ross’s waiver was knowing and voluntary, we affirm the
district court’s ruling as to waiver. 1
B
Next, Ross argues that even if it contractually waived its
jury trial right, it was still entitled to rely on Makarios’s jury
demand per Rules 38(d) and 39(a). Rule 38(d) provides that
a proper jury trial demand “may be withdrawn only if the
parties consent.” Fed. R. Civ. P. 38(d). Rule 39(a) requires
trial by jury “on all issues so demanded” unless the parties
stipulate or “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.” Fed. R. Civ. P. 39(a)(1)–(2).
Ross argues that it was entitled to rely on Makarios’s
proper demand for a jury trial and that Rules 38 and 39
prevented Makarios from unilaterally withdrawing its demand
because the parties did not stipulate to a bench trial and the
court did not find that no right to a jury trial exists. The
district court concluded Rules 38 and 39 did not apply
because Ross had no right to a jury trial by virtue of its
waiver in Section 13.04 of its lease. The precise function of
Rules 38 and 39 in the scenario presented here appears to be
an issue of first impression in our court.
1
The parties did not raise, and the district court did not address,
Ross’s January 2016 filing in the district court stating that Ross waived
“its right to a jury trial under [the] Federal Rule[s] . . . as to any issue in
this case for which a right to jury trial exists.” As noted, some entries on
the district court docket that post-date the parties’ March 2016 status
conference indicate the court was contemplating that Phase II would be
tried to a jury. Because Section 13.04 was a knowing and voluntary
waiver, we need not decide whether the January 2016 filing constituted a
separate waiver of Ross’s right to a jury trial.
ROSS DRESS FOR LESS V. MAKARIOS-OREGON 15
A party is generally entitled to rely on another party’s
original jury demand and need not file their own. See U.S.
Sec. & Exch. Comm’n v. Jensen, 835 F.3d 1100, 1107 (9th
Cir. 2016). Typically, the combination of Rules 38(d) and
39(a) prevents a party from unilaterally withdrawing its jury
demand, even when no other party has requested a jury trial.
Cf. White v. McGinnis, 903 F.2d 699, 703 (9th Cir. 1990) (en
banc) (“Rule 39(a) is designed to protect against some
careless statement or ambiguous document being held to be
a waiver when one was not intended.”). But the right to rely
on another party’s jury demand is not unlimited. For
example, we have said the right extends only to issues that the
original demand actually covered. See, e.g., Cal. Scents v.
Surco Prod., Inc., 406 F.3d 1102, 1105–08 (9th Cir. 2005)
(explaining a party bringing claims may not rely on another
party’s jury demand unless those claims “turn on the same
matrix of facts” or “concern [] the same general area of
dispute” as the claims on which a demand was originally
made (alterations in original) (first quoting Las Vegas Sun,
Inc. v. Summa Corp., 610 F.2d 614, 620 (9th Cir. 1979); and
then quoting In re N-500L Cases, 691 F.2d 15, 23 (9th Cir.
1982))).
We have recognized at least two other exceptions to these
Rules. First, a party may consent to the unilateral withdrawal
of a jury demand through its conduct, and thereby waive its
right to rely on the protections of Rules 38(d) and 39(a). See
Reid Bros. Logging Co. v. Ketchikan Pulp Co., 699 F.2d
1292, 1304–05 (9th Cir. 1983). “Once a party demonstrates
through its actions that it has not relied on another’s jury
demand in failing to file its own, the reason for allowing it to
object when another side unilaterally seeks to withdraw its
demand dissolves.” Fuller v. City of Oakland, 47 F.3d 1522,
1532 (9th Cir. 1995). For example, we will decline to enforce
16 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
Rules 38 and 39 “when the party claiming the jury trial right
is attempting to act strategically—participating in the bench
trial in the hopes of achieving a favorable outcome, then
asserting lack of consent to the bench trial when the result
turns out to be unfavorable to him.” Solis v. County of Los
Angeles, 514 F.3d 946, 955 (9th Cir. 2008). And in White,
we explained that a party who “vigorously” argues its case to
a judge “can only be ascribed to knowledgeable
relinquishment of the prior jury demand” and cannot later
object that its case was tried to the bench. See 903 F.2d
at 700, 703. In contrast, one’s “[r]eluctant participation in a
bench trial” does not amount to waiver of their right to a jury.
Solis, 514 F.3d at 956.2
Separately, we have recognized that the circumstances
under which Rule 39(a) allows a jury demand to be
withdrawn are not unlimited. Jensen cautioned that Rule
39(a) applies “[a]s long as there is a federal right to a jury
trial” in the first place. 835 F.3d at 1107. The plain language
of Rule 39 requires this exception because it provides that a
court may order a bench trial if it “finds that on some or all
. . . issues there is no federal right to a jury trial.” Fed. R.
Civ. P. 39(a)(2).
Two cases involving jury demands are particularly
instructive. First, in Craig v. Atlantic Richfield Co., 19 F.3d
472 (9th Cir. 1994), we affirmed a district court’s ruling
2
This exception does not apply after trial begins because at that point
“other reliance interests come into play.” Fuller, 47 F.3d at 1532. Once
trial is underway, we enforce Rule 39(a)’s withdrawal procedures strictly.
See id. (“[O]nce trial begins, a party may no longer unilaterally withdraw
its jury demand; other parties are entitled to rely whether they have waived
their rights or not, and withdrawal may occur only in compliance with the
language of Rule 39(a).”).
ROSS DRESS FOR LESS V. MAKARIOS-OREGON 17
rejecting a Jones Act plaintiff’s attempt to rely on the
defendant’s jury trial demand, id. at 479. We reasoned that
the federal court’s sole basis for jurisdiction was the Jones
Act claim and the defendant did not have the right to demand
a jury trial for the Jones Act claim. Id. at 476–77 (explaining
defendant “had neither a constitutional nor a statutory right to
demand a jury trial,” and thus its demand could “not have
been made ‘as provided in Rule 38’ for purposes of Rule
39”).
Rachal v. Ingram Corp., 795 F.2d 1210 (5th Cir. 1986),
is a case on which both Makarios and the district court relied.
There, the Fifth Circuit affirmed a district court’s decision to
allow the plaintiff to unilaterally strike its jury demand, over
the defendant’s objection, after the plaintiff amended his
complaint to remove the only basis for a jury trial. Id.at 1213–17. Consistent with our court’s interpretation of
Rule 39(a), the Fifth Circuit explained that Rule 39(a)’s
consent requirement generally serves to protect the rights of
a party who did not make the initial jury demand, but Rule 39
does not grant that party “any new or independent right to a
jury trial; it simply protects rights to a jury trial that the [non-
requesting party] may have been granted elsewhere.” Id.at 1215–16.
The district court’s ruling in this case is analogous to the
Fifth Circuit’s ruling in Rachal, and is also consistent with
our precedent and our practice of interpreting the Rules “in a
manner consistent with their underlying purpose.” Reid
Bros., 699 F.2d at 1305. We therefore affirm the district
court’s interpretation of Rules 38 and 39. We also affirm its
ruling that the application of Rules 38 and 39 here did not
entitle Ross to a jury trial after Makarios withdrew its
demand because the parties’ lease included a waiver of the
18 ROSS DRESS FOR LESS V. MAKARIOS-OREGON
tenant’s right to a jury trial in proceedings initiated by the
landlord.
AFFIRMED.